G.R. No. 79974 December 17, 1987
The
ULPIANO P. SARMIENTO III AND JUANITO G.
ARCILLA, petitioners,  This case assumes added significance because, at bottom line, it
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.  The task of the Court is rendered lighter by the existence of relatively
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.  Constitution. He shall also appoint all other officers of
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.
parties were also heard in oral argument on 8 December 1987. 
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. 
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
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
1
 in the President alone, in the courts, or in the heads of following the accepted rule in constitutional and statutory construction
the departments, agencies, commissions or boards.  that an express enumeration of subjects excludes others not
enumerated, it would follow that only those appointments to positions
The President shall have the power to make expressly stated in the first group require the consent (confirmation) of
appointments during the recess of the Congress, the Commission on Appointments. But we need not rely solely on this
whether voluntary or compulsory, but such basic rule of constitutional construction. We can refer to historical
appointments shall be effective only until disapproval by background as well as to the records of the 1986 Constitutional
the Commission on Appointments or until the next Commission to determine, with more accuracy, if not precision, the
adjournment of the Congress.  intention of the framers of the 1987 Constitution and the people
adopting it, on whether the appointments by the President, under the
It is readily apparent that under the provisions of the 1987 Constitution, second, third and fourth groups, require the consent (confirmation) of
just quoted, there are four (4) groups of officers whom the President the Commission on Appointments. Again, in this task, the following
shall appoint. These four (4) groups, to which we will hereafter refer advice of Mr. Chief Justice J. Abad Santos in Gold Creek is apropos: 
from time to time, are: 
In deciding this point, it should be borne in mind that a
First, the heads of the executive departments, constitutional provision must be presumed to have
ambassadors, other public ministers and consuls, been framed and adopted in the light and
officers of the armed forces from the rank of colonel or understanding of prior and existing laws and with
naval captain, and other officers whose appointments reference to them. "Courts are bound to presume that
are vested in him in this Constitution; 
2 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
Second, all other officers of the Government whose
judgment and opinion in its adoption." (Barry vs. Truax
appointments are not otherwise provided for by law;  3

13 N.D., 131; 99 N.W., 769,65 L. R. A., 762.)  6

Third, those whom the President may be authorized by

It will be recalled that, under Sec. 10, Article VII of the 1935
law to appoint; 
Constitution, it is provided that — 
Fourth, officers lower in rank   whose appointments the
4

xxx xxx xxx

Congress may by law vest in the President alone. 
(3) The President shall nominate and with the consent
The first group of officers is clearly appointed with the consent of the
of the Commission on Appointments, shall appoint the
Commission on Appointments. Appointments of such officers are
heads of the executive departments and bureaus,
initiated by nomination and, if the nomination is confirmed by the
officers of the army from the rank of colonel, of the
Commission on Appointments, the President appoints.  5

Navy and Air Forces from the rank of captain or

commander, and all other officers of the Government
The second, third and fourth groups of officers are the present bone of whose appointments are not herein otherwise provided
contention. Should they be appointed by the President with or without for, and those whom he may be authorized by law to
the consent (confirmation) of the Commission on Appointments? By appoint; but the Congress may by law vest the

2
 appointment of inferior officers, in the President alone, successive amendments, placed the absolute power of appointment in
in the courts, or in the heads of departments.  the President with hardly any check on the part of the legislature. 

(4) The President shall havethe power to make Given the above two (2) extremes, one, in the 1935 Constitution and
appointments during the recess of the Congress, but the other, in the 1973 Constitution, it is not difficult for the Court to state
such appointments shall be effective only until that the framers of the 1987 Constitution and the people adopting it,
disapproval by the Commission on Appointments or struck a "middle ground" by requiring the consent (confirmation) of the
until the next adjournment of the Congress.  Commission on Appointments for the first group of appointments and
leaving to the President, without such confirmation, the appointment of
xxx xxx xxx 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. 
(7) ..., and with the consent of the Commission on
Appointments, shall appoint ambassadors, other public The proceedings in the 1986 Constitutional Commission support this
ministers and consuls ...  conclusion. The original text of Section 16, Article VII, as proposed by
the Committee on the Executive of the 1986 Constitutional
Upon the other hand, the 1973 Constitution provides that-  Commission, read as follows: 

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.
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   [Emphasis supplied]. 
7

Thus, in the 1935 Constitution, almost all presidential appointments

required the consent (confirmation) of the Commission on The above text is almost a verbatim copy of its counterpart provision in
Appointments. It is now a sad part of our political history that the power the 1935 Constitution. When the frames discussed on the floor of the
of confirmation by the Commission on Appointments, under the 1935 Commission the proposed text of Section 16, Article VII, a feeling was
Constitution, transformed that commission, many times, into a venue of manifestly expressed to make the power of the Commission on
"horse-trading" and similar malpractices.  Appointments over presidential appointments more limited than that
held by the Commission in the 1935 Constitution. Thus- 
On the other hand, the 1973 Constitution, consistent with the
authoritarian pattern in which it was molded and remolded by Mr. Rama: ... May I ask that
Commissioner Monsod be recognized

3
 The President: We will call 'colonel or naval captain to MAJOR
Commissioner Davide later.  GENERAL OR REAR ADMIRAL. This
last amendment which is co-authored
Mr. Monsod: With the Chair's by Commissioner de Castro is to put a
indulgence, I just want to take a few period (.) after the word ADMIRAL, and
minutes of our time to lay the basis for on line 29 of the same page, start a new
some of the amendments that I would sentence with: HE SHALL ALSO
like to propose to the Committee this APPOINT, et cetera. 
morning. 
MR. REGALADO: May we have the
xxx xxx xxx amendments one by one. The first
proposed amendment is to delete the
On Section 16, I would like to suggest that the power of words "and bureaus" on line 26. 
the Commission on Appointments be limited to the
department heads, ambassadors, generals and so on MR. FOZ: That is correct. 
but not to the levels of bureau heads and colonels. 
MR. REGALADO: For the benefit of the
xxx xxx xxx   (Emphasis supplied.)
8 other Commissioners, what would be
the justification of the proponent for
In the course of the debates on the text of Section 16, there were two such a deletion? 
(2) major changes proposed and approved by the Commission. These
were (1) the exclusion of the appointments of heads of bureaus from MR. FOZ: The position of bureau
the requirement of confirmation by the Commission on Appointments; director is actually quite low in the
and (2) the exclusion of appointments made under the second executive department, and to require
sentence   of the section from the same requirement. The records of
9 further confirmation of presidential
the deliberations of the Constitutional Commission show the following:  appointment of heads of bureaus would
subject them to political influence. 
MR. ROMULO: I ask that Commissioner
Foz be recognized  MR. REGALADO: The Commissioner's
proposed amendment by deletion also
THE PRESIDENT: Commissioner Foz includes regional directors as
is recognized  distinguished from merely staff
directors, because the regional directors
have quite a plenitude of powers within
MR. FOZ: Madam President, my
the regions as distinguished from staff
proposed amendment is on page 7,
directors who only stay in the office. 
Section 16, line 26 which is to delete
the words "and bureaus," and on line 28
of the same page, to change the phrase

4
 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?  departments, ambassadors. . . .
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
 

MR. FOZ: It is still the President who THE PRESIDENT: Is there any
will appoint them but their appointment objection to delete the phrase 'and
shall no longer be subject to bureaus' on page 7, line 26? (Silence)
confirmation by the Commission on The Chair hears none; the amendments
Appointments.  is approved. 

MR. MAAMBONG: In other words, it is xxx xxx xxx

in line with the same answer of
Commissioner de Castro? MR. ROMULO: Madam President.

MR. FOZ: Yes.  THE PRESIDENT: The Acting Floor

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.  the Committee accepts the proposed
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,

5
 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.  Davide restate his proposed
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: Yes, Madam President,
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
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"? 
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. 
6
 THE PRESIDENT: So we have now this well; besides, too" (Webster's International Dictionary, p. 62, 1981
proposed amendment of edition) which meanings could, on the contrary, stress that the word
Commissioners Foz and Davide.  "also" in said second sentence means that the President, in addition to
nominating and, with the consent of the Commission on Appointments,
xxx xxx xxx appointing the officers enumerated in the first sentence, can appoint
(without such consent (confirmation) the officers mentioned in the
THE PRESIDENT: Is there any second sentence- 
objection to this proposed amendment
of Commissioners Foz and Davide as Rather than limit the area of consideration to the possible meanings of
accepted by the Committee? (Silence) the word "also" as used in the context of said second sentence, the
The Chair hears none; the amendment, Court has chosen to derive significance from the fact that the first
as amended, is approved 10 (Emphasis sentence speaks of nomination by the President and appointment by
supplied).  the President with the consent of the Commission on Appointments,
whereas, the second sentence speaks only of appointment by the
It is, therefore, clear that appointments to the second President. And, this use of different language in two (2) sentences
and third groups of officers can be made by the proximate to each other underscores a difference in message
President without the consent (confirmation) of the conveyed and perceptions established, in line with Judge Learned
Commission on Appointments.  Hand's observation that "words are not pebbles in alien juxtaposition"
but, more so, because the recorded proceedings of the 1986
It is contended by amicus curiae, Senator Neptali Constitutional Commission clearly and expressly justify such
Gonzales, that the second sentence of Sec. 16, Article differences. 
VII reading- 
As a result of the innovations introduced in Sec. 16, Article VII of the
He (the President) shall also appoint all other officers of 1987 Constitution, there are officers whose appointments require no
the Government whose appointments are not otherwise confirmation of the Commission on Appointments, even if such officers
provided for by law and those whom he may be may be higher in rank, compared to some officers whose appointments
authorized by law to appoint . . . . (Emphasis supplied)  have to be confirmed by the Commission on Appointments under the
first sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the
with particular reference to the word "also," implies that the President appointment of the Central Bank Governor requires no confirmation by
shall "in like manner" appoint the officers mentioned in said second the Commission on Appointments, even if he is higher in rank than a
sentence. In other words, the President shall appoint the officers colonel in the Armed Forces of the Philippines or a consul in the
mentioned in said second sentence in the same manner as he Consular Service. 
appoints officers mentioned in the first sentence, that is, by nomination
and with the consent (confirmation) of the Commission on But these contrasts, while initially impressive, merely underscore the
Appointments.  purposive intention and deliberate judgment of the framers of the 1987
Constitution that, except as to those officers whose appointments
Amicus curiae's reliance on the word "also" in said second sentence is require the consent of the Commission on Appointments by express
not necessarily supportive of the conclusion he arrives at. For, as the mandate of the first sentence in Sec. 16, Art. VII, appointments of other
Solicitor General argues, the word "also" could mean "in addition; as officers are left to the President without need of confirmation by the

7
Commission on Appointments. This conclusion is inevitable, if we are The Court is not impressed by both arguments. It is of the considered
to presume, as we must, that the framers of the 1987 Constitution were opinion, after a careful study of the deliberations of the 1986
knowledgeable of what they were doing and of the foreseable effects Constitutional Commission, that the use of the word alone" after the
thereof.  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
Besides, the power to appoint is fundamentally executive or that, in the 1935 Constitution, the following provision appears at the
presidential in character. Limitations on or qualifications of such power end of par. 3, section 1 0, Article VII thereof — 
should be strictly construed against them. Such limitations or
qualifications must be clearly stated in order to be recognized. But, it is ...; but the Congress may by law vest the appointment
only in the first sentence of Sec. 16, Art. VII where it is clearly stated of inferior officers, in the President alone, in the courts,
that appointments by the President to the positions therein enumerated or in the heads of departments. [Emphasis supplied]. 
require the consent of the Commission on Appointments. 
The above provision in the 1935 Constitution appears immediately
As to the fourth group of officers whom the President can appoint, the after the provision which makes practically all presidential
intervenor Commission on Appointments underscores the third appointments subject to confirmation by the Commission on
sentence in Sec. 16, Article VII of the 1987 Constitution, which reads:  Appointments, thus- 

The Congress may, by law, vest the appointment of 3. The President shall nominate and with the consent of
other officers lower in rank in the President alone, in the the Commission on Appointments, shall appoint the
courts, or in the heads of departments, agencies, heads of the executive departments and bureaus,
commissions, or boards. [Emphasis supplied].  officers of the Army from the rank of colonel, of the
Navy and Air Forces from the rank of captain or
and argues that, since a law is needed to vest the appointment of commander, and all other officers of the Government
lower-ranked officers in the President alone, this implies that, in the whose appointments are not herein provided for, and
absence of such a law, lower-ranked officers have to be appointed by those whom he may be authorized by law to appoint; ...
the President subject to confirmation by the Commission on
Appointments; and, if this is so, as to lower-ranked officers, it follows In other words, since the 1935 Constitution subjects, as a general rule,
that higher-ranked officers should be appointed by the President, presidential appointments to confirmation by the Commission on
subject also to confirmation by the Commission on Appointments.  Appointments, the same 1935 Constitution saw fit, by way of an
exception to such rule, to provide that Congress may, however, by law
The respondents, on the other hand, submit that the third sentence of vest the appointment of inferior officers (equivalent to 11 officers lower
Sec. 16, Article VII, abovequoted, merely declares that, as to lower- in rank" referred to in the 1987 Constitution) in the President alone, in
ranked officers, the Congress may by law vest their appointment in the the courts, or in the heads of departments, 
President, in the courts, or in the heads of the various departments,
agencies, commissions, or boards in the government. No reason In the 1987 Constitution, however, as already pointed out, the clear
however is submitted for the use of the word "alone" in said third and expressed intent of its framers was to exclude presidential
sentence.  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

8
use in the third sentence of Sec. 16, Article VII the word "alone" after 601. Chief Officials of the Bureau.-The Bureau of
the word "President" in providing that Congress may by law vest the Customs shall have one chief and one assistant chief,
appointment of lower-ranked officers in the President alone, or in the to be known respectively as the Commissioner
courts, or in the heads of departments, because the power to appoint (hereinafter known as the 'Commissioner') and
officers whom he (the President) may be authorized by law to appoint Assistant Commissioner of Customs, who shall each
is already vested in the President, without need of confirmation by the receive an annual compensation in accordance with the
Commission on Appointments, in the second sentence of the same rates prescribed by existing laws. The Assistant
Sec. 16, Article VII.  Commissioner of Customs shall be appointed by the
proper department head.
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 Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972
law vest their appointment in the President, in the courts, or in the by Presidential Decree No. 34, amending the Tariff and Customs Code
heads of various departments of the government. In short, the word of the Philippines. Sec. 601, as thus amended, now reads as follows: 
"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, Sec. 601. Chief Officials of the Bureau of Customs.-The
Article VII of the 1935 Constitution, appears to be redundant in the light Bureau of Customs shall have one chief and one
of the second sentence of Sec. 16, Article VII. And, this redundancy assistant chief, to be known respectively as the
cannot prevail over the clear and positive intent of the framers of the Commissioner (hereinafter known as Commissioner)
1987 Constitution that presidential appointments, except those and Deputy Commissioner of Customs, who shall each
mentioned in the first sentence of Sec. 16, Article VII, are not subject to receive an annual compensation in accordance with the
confirmation by the Commission on Appointments.  rates prescribed by existing law. The Commissioner
and the Deputy Commissioner of Customs shall be
Coming now to the immediate question before the Court, it is evident appointed by the President of the
that the position of Commissioner of the Bureau of Customs (a bureau Philippines (Emphasis supplied.) 
head) is not one of those within the first group of appointments where
the consent of the Commission on Appointments is required. As a Of course, these laws (Rep. Act No. 1937 and PD No. 34) were
matter of fact, as already pointed out, while the 1935 Constitution approved during the effectivity of the 1935 Constitution, under which
includes "heads of bureaus" among those officers whose appointments the President may nominate and, with the consent of the Commission
need the consent of the Commission on Appointments, the 1987 on Appointments, appoint the heads of bureaus, like the Commissioner
Constitution on the other hand, deliberately excluded the position of of the Bureau of Customs. 
"heads of bureaus" from appointments that need the consent
(confirmation) of the Commission on Appointments.  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,
Moreover, the President is expressly authorized by law to appoint the with the result that, while the appointment of the Commissioner of the
Commissioner of the Bureau of Customs. The original text of Sec. 601 Bureau of Customs is one that devolves on the President, as an
of Republic Act No. 1937, otherwise known as the Tariff and Customs appointment he is authorizedby law to make, such appointment,
Code of the Philippines, which was enacted by the Congress of the however, no longer needs the confirmation of the Commission on
Philippines on 22 June 1957, reads as follows:  Appointments. 

9
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.

10
 EN BANC
[G.R. No. 107369. August 11, 1999]
JESULITO A. MANALO, Petitioner, v. PEDRO G. SISTOZA,
REGINO ARO III, NICASIO MA. CUSTODIO, GUILLERMO
DOMONDON, RAYMUNDO L. LOGAN, WILFREDO R.
REOTUTAR, FELINO C. PACHECO, JR., RUBEN J. CRUZ,
GERONIMO B. VALDERRAMA, MERARDO G. ABAYA,
EVERLINO B. NARTATEZ, ENRIQUE T. BULAN, PEDRO J.
NAVARRO, DOMINADOR M. MANGUBAT, RODOLFO M.
GARCIA and HONORABLE SALVADOR M. ENRIQUEZ II In
His Capacity as Secretary of Budget and
Management, Respondents.
DECISION
PURISIMA, J.:
The case at bar is not of first impression. The issue posed
concerning the limits of the power of the Commission on
Appointments to confirm appointments issued by the Chief
Executive has been put to rest in a number of cases. The court
finds no basis for departing from the ruling laid down in those
cases.
In this special civil action for Prohibition under Rule 65 of the
Revised Rules of Court, petitioners question the constitutionality
and legality of the permanent appointments issued by former
President Corazon C. Aquino to the respondent senior officers of
the Philippine National Police who were promoted to the ranks of
Chief Superintendent and Director without their appointments
submitted to the Commission on Appointments for confirmation
under Section 16, Article VII of the 1987 Constitution and
Republic Act 6975 otherwise known as the Local Government Act
of 1990. Impleaded in the case is the former Secretary of Budget
and Management Salvador M. Enriquez III, who approved and
effected the disbursements for the salaries and other
emoluments of subject police officers.
The antecedents facts are as follows:
On December 13, 1990, Republic Act 6975 creating the
Department of Interior and Local Government was signed into
law by former President Corazon C. Aquino. Pertinent provisions
of the said Act read:
Sec. 26. Powers, Functions and Term of Office of the PNP Chief. -
The command and direction of the PNP shall be vested in the
Chief of the PNP who shall have the power to direct and control
tactical as well as strategic movements, deployment, placement,
utilization of the PNP or any of its units and personal, including
its equipment, facilities and other resources. Such command and
direction of the Chief of the PNP may be delegated to
subordinate officials with respect to the units under their
respective commands, in accordance with the rules and
regulations prescribed by the Commission. The Chief of the PNP
shal also have the power to issue detailed implementing policies
and instructions regarding personnel, funds, properties, records,
correspondence and such other matters as may be necesary to
effectively carry out the functions, powers and duties of the
Bureau. The Chief of the PNP shall be appointed by the President
from among the senior officers down to the rank of the chief
superintendent, subject to confirmation by the Commission on
Appointments:Provided, That the Chief of the PNP shall serve a
term of office not to exceed four (4) years: Provided, further,
That in times of war or other national emergency declared by
Congress, the President may extend such term of
office. 1(underlining supplied).
Sec.31. Appointment of PNP Officers and Members. - The
appointment of the officers and members of the PNP shall be
effected in the following manner:
11
(a) Police Officer I to Senior Police Officer IV - Appointed by the
PNP regional director for regional personnel or by the Chief of the
PNP for the national headquarters personnel and attested by the
Civil Service Commission;
(b) Inspector to Superintendent - Appointed by the Chief of the
PNP, as recommended by their immediate superiors, and
attested by the Civil Service Commission;
(c) Senior Superintendent to Deputy Director General -
Appointed by the President upon recommendation of the Chief of
the PNP, with the proper endorsement by the Chairman of the
Civil Service Commission and subject to confirmation by the
Commission on Appointments; and
(d) Director General - Appointed by the President from among
the senior officers down to the rank of chief superintendent in
the service, subject to confirmation by the Commission on
Appointments; Provided, That the Chief of the PNP shall serve a
tour of duty not to exceed four (4) years; Provided, further,
That, in times of war or other national emergency declared by
Congres, the President may extend such tour of duty.
(underlining supplied).
In accordance therewith, on March 10, 1992, the President of the
Philippines, through then Executive Secretary Franklin M. Drilon,
promoted the fifteen (15) respondent police officers herein, by
appointing them to positions in the Philippine National Police with
the rank of Chief Superintendent to Director2, namely:
Chief Supt. PEDRO G. SISTOZA - Director
Chief Supt. REGINO ARO III - Director
Chief Supt. NICASIO MA. CUSTODIO - Director
Chief Supt. GUILLERMO DOMONDON - Director
Chief Supt. RAYMUNDO L. LOGAN - Director
Senior Supt. WILFREDO REOTUTAR - Chief Superintendent
Senior Supt. FELINO C. PACHECO, JR. - Chief Superintendent
Senior Supt. RUBEN J. CRUZ - Chief Superintendent
Senior Supt. GERONIMO B. VALDERRAMA - Chief Superintendent
Senior Supt. MERARDO G. ABAYA - Chief Superintendent
Senior Supt. EVERLINO NARTATEZ - Chief Superintendent
Senior Supt. ENRIQUE T. BULAN - Chief Superintendent
Senior Supt. PEDRO J. NAVARRO - Chief Superintendent
Senior Supt. DOMINADOR MANGUBAT - Chief Superintendent
Senior Supt. RODOLFO M. GARCIA - Chief Superintendent
The appointments of respondent police officers were in a
permanent capacity. Their letters of appointment stated in part :
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.3
Without their names submitted to the Commission on
Appointments for confirmation, the said police officers took their
oath of office and assumed their respective positions. Thereafter,
the Department of Budget and Management, under the then
Secretary Salvador M. Enriquez III, authorized disbursements for
their salaries and other emoluments.
12
On October 21, 1992, the petitioner brought before this Court
this present original petition for prohibition, as a taxpayer suit, to
assail the legality of subject appointments and disbursements
made therefor.
Petitioner contends that:
I. Respondent officers, in assuming their offices and discharging
the functions attached thereto, despite their invalid
appointments, in view of the failure to secure the required
confirmation of the Commission on Appointments as required by
the Constitution and the law, are acting without or in excess of
their jurisdiction or with grave abuse of discretion, considering
that :
A. Republic Act 6975 is a valid law that duly requires
confirmation of the appointments of officers from the rank of
senior superintendent and higher by the Commission on
Appointments;
B. The Philippine National Police is akin to the Armed Forces
where the Constitution specifically requires confirmation by the
Commission on Appointments.
II. Respondent Secretary in allowing and/or effecting
disbursements in favor of respondent officers despite the
unconstitutionality and illegality of their appointments is acting
without or in excess of his jurisdiction or with grave abuse of
discretion.
The petition must fail. It is not impressed with merit.
Petitioner theorizes that Republic Act 6975 enjoys the
presumption of constitutionality and that every statute passed by
Congress is presumed to have been carefully studied and
considered before its enactment. He maintains that the respect
accorded to each department of the government requires that
the court should avoid, as much as possible, deciding
constitutional questions.
The Court agrees with petitioner. However, it is equally
demanded from the courts, as guardians of the Constitution, to
see to it that every law passed by Congress is not repugnant to
the organic law. Courts have the inherent authority to determine
whether a statute enacted by the legislature transcends the limit
delineated by the fundamental law.4 When it does, the courts will
not hesitate to strike down such unconstitutional law.
The power to make appointments is vested in the Chief Executive
by Section 16, Article VII of the Constitution, which provides:
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 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 aforecited provision of the Constitution has been the subject
of several cases on the issue of the restrictive function of the
Commission on Appointments with respect to the appointing
power of the President. This court touched upon the historical
antecedent of the said provision in the case of Sarmiento III vs.
13
Mison5 in which it was ratiocinated upon that Section 16 of Article
VII of the 1987 Constitution requiring confirmation by the
Commission on Appointments of certain appointments issued by
the President contemplates a system of checks and balances
between the executive and legislative branches of government.
Experience showed that when almost all presidential
appointments required the consent of the Commission on
Appointments, as was the case under the 1935 Constitution, the
commission became a venue of horse-trading and similar
malpractices.6 On the other hand, placing absolute power to
make appointments in the President with hardly any check by
the legislature, as what happened under 1973 Constitution, leads
to abuse of such power. Thus was perceived the need to
establish a middle ground between the 1935 and 1973
Constitutions. The framers of the 1987 Constitution deemed it
imperative to subject certain high positions in the government to
the power of confirmation of the Commission on Appointments
and to allow other positions within the exclusive appointing
power of the President.
Conformably, as consistently interpreted and ruled in the leading
case of Sarmiento III vs. Mison7, and in the subsequent cases of
Bautista vs. Salonga8, Quintos-Deles vs. Constitutional
Commission9, and Calderon vs. Carale10; under Section 16,
Article VII, of the Constitution, there are four groups of officers
of the government to be appointed by the President:
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.
It is well-settled that only presidential appointments belonging to
the first group require the confirmation by the Commission on
Appointments. The appointments of respondent officers who are
not within the first category, need not be confirmed by the
Commission on Appointments. As held in the case of Tarrosa vs.
Singson11, Congress cannot by law expand the power of
confirmation of the Commission on Appointments and require
confirmation of appointments of other government officials not
mentioned in the first sentence of Section 16 of Article VII of the
1987 Constitution.
Consequently, unconstitutional are Sections 26 and 31 of
Republic Act 6975 which empower the Commission on
Appointments to confirm the appointments of public officials
whose appointments are not required by the Constitution to be
confirmed. But the unconstitutionality of the aforesaid sections
notwithstanding, the rest of Republic Act 6975 stands. It is well-
settled that when provisions of law declared void are severable
from the main statute and the removal of the unconstitutional
provisions would not affect the validity and enforceability of the
other provisions, the statute remains valid without its voided
sections.12
cräläwvirtualibräry
It is petitioners submission that the Philippine National Police is
akin to the Armed Forces of the Philippines and therefore, the
appointments of police officers whose rank is equal to that of
colonel or naval captain require confirmation by the Commission
on Appointments.
This contention is equally untenable. The Philippine National
Police is separate and distinct from the Armed Forces of the
Philippines. The Constitution, no less, sets forth the distinction.
Under Section 4 of Article XVI of the 1987 Constitution,
14
The Armed Forces of the Philippines shall be composed of a
citizen armed force which shall undergo military training and
service, as may be provided by law. It shall keep a regular force
necessary for the security of the State.
On the other hand, Section 6 of the same Article of the
Constitution ordains that:
The State shall establish and maintain one police force, which
shall be national in scope and civilian in character to be
administered and controlled by a national police commission. The
authority of local executives over the police units in their
jurisdiction shall be provided by law.
To so distinguish the police force from the armed forces,
Congress enacted Republic Act 6975 which states in part:
appointees requiring the confirmation by the Commission on
Appointments.
In view of the foregoing disquisition and conclusion, the
respondent former Secretary Salvador M. Enriquez III of the
Department of Budget and Management, did not act with grave
abuse of discretion in authorizing and effecting disbursements for
the salaries and other emoluments of the respondent police
officers whose appointments are valid.
WHEREFORE, for lack of merit, the petition under consideration
is hereby DISMISSED. No pronouncement as to costs.
SO ORDERED.

Section 2. Declaration of policy - It is hereby declared to be the

policy of the State to promote peace and order, ensure public
safety and further strengthen local government capability aimed
towards the effective delivery of the basic services to the
citizenry through the establishment of a highly efficient and
competent police force that is national in scope and civilian in
character. xxx

The policy force shall be organized, trained and equipped

primarily for the performance of police functions. Its national
scope and civilian character shall be paramount. No element of
the police force shall be military nor shall any position thereof be
occupied by active members of the Armed Forces of the
Philippines.

Thereunder, the police force is different from and independent of

the armed forces and the ranks in the military are not similar to
those in the Philippine National Police. Thus, directors and chief
superintendents of the PNP, such as the herein respondent police
officers, do not fall under the first category of presidential

15
G.R. No. 131429           August 4, 1999
OSCAR BERMUDEZ, ARTURO A. LLOBRERA and CLAUDIO L.
DAYAON, petitioners,  Provincial Prosecutor by issuing office orders and memoranda, signing
vs.
EXECUTIVE SECRETARY RUBEN TORRES, BUDGET
SECRETARY SALVADOR ENRIQUEZ, JR., JUSTICE SECRETARY
TEOFISTO GUINGONA, JR., and ATTY. CONRADO
QUIAOIT, respondents.
VITUG, J.:
The validity and legality of the appointment of respondent Conrado
Quiaoit to the post of Provincial Prosecutor of Tarlac by then President
Fidel V. Ramos is assailed in this petition for review on certiorari on a
pure question of law which prays for the reversal of the Order,1 dated
20 October 1997, of the Regional Trial Court (Branch 63) of Tarlac,
Tarlac, dismissing the petition for prohibition and/or injunction
and mandamus, with a prayer for the issuance of a writ of
injunction/temporary restraining order, instituted by herein petitioners.
The occurrence of a vacancy in the Office of the Provincial Prosecutor
of Tarlac impelled the main contestants in this case, petitioner Oscar
Bermudez and respondent Conrado Quiaoit, to take contrasting views
on the proper interpretation of a provision in the 1987 Revised
Administrative Code. Bermudez, the First Assistant Provincial
Prosecutor of Tarlac and Officer-In-Charge of the Office of the
Provincial Prosecutor, was a recommendee2 of then Justice Secretary
Teofisto Guingona, Jr., for the position of Provincial Prosecutor.
Quiaoit, on the other hand, would appear to have had the support of
then Representative Jose Yap of the Second Legislative District of
Tarlac.3 On 30 June 1997, Quiaoit emerged the victor when he was
appointed by President Ramos to the coveted office. Quiaoit received a
certified xerox copy of his appointment and, on 21 July 1997, took his
oath of office before Executive Judge Angel Parazo of the Regional
Trial Court (Branch 65) of Tarlac, Tarlac. On 23 July 1997, Quiaoit
assumed office and immediately informed the President, as well as the
Secretary of Justice and the Civil Service Commission, of that
assumption. Bermudez refused to vacate the Office of Provincial
Prosecutor claiming that the original copy of Quiaoit's appointment had
not yet been released by the Secretary of Justice.4 Quiaoit,
nonetheless, performed the functions and duties of the Office of
resolutions on preliminary investigations, and filing several informations
before the courts. Quiaoit had since been regularly receiving the
salary, RATA and other emoluments of the office.
On 17 September 1997, Bermudez and Quiaoit were summoned to
Manila by Justice Secretary Guingona. The three met at the
Department of Justice and, following the conference, Bermudez was
ordered to wind up his cases until 15 October 1997 and to turn-over
the contested office to Quiaoit the next day.1âwphi1.nêt
In his First Indorsement, dated 22 September 1997, for the Chief State
Prosecutor, Assistant Chief State Prosecutor Nilo Mariano transmitted
the original copy of Quiaoit's appointment to the Regional State
Prosecutor Carlos de Leon, Region III, at San Fernando, Pampanga. In
turn, in his Second Indorsement, dated 02 October 1997, Regional
State Prosecutor de Leon forwarded to Quiaoit said original copy of his
appointment. On the basis of the transmittal letter of Regional State
Prosecutor de Leon, Quiaoit, as directed, again so assumed office on
16 October 1997. On even date, Bermudez was detailed at the Office
of the Regional State Prosecutor, Region III, in San Fernando
Pampanga.
In the meantime, on 10 October 1997, Bermudez together with his co-
petitioners Arturo Llobrera and Claudio Dayaon, the Second Assistant
Provincial Prosecutor and the Fourth Assistant Provincial Prosecutor of
Tarlac, respectively, filed with the Regional Trial Court of Tarlac, a
petition for prohibition and/or injunction, and mandamus, with a prayer
for the issuance of a writ of injunction/temporary restraining order,
against herein respondents, challenging the appointment of Quiaoit
primarily on the ground that the appointment lacks the
recommendation of the Secretary of Justice prescribed under the
Revised Administrative Code of 1987. After hearing, the trial court
considered the petition submitted for resolution and, in due time,
issued its now assailed order dismissing the petition. The subsequent
move by petitioners to have the order reconsidered met with a denial.
16
Hence, the instant recourse.
The core issue for consideration is whether or not the absence of a
recommendation of the Secretary of Justice to the President can be
held fatal to the appointment of respondent Conrado Quiaoit. This
question would, in turn, pivot on the proper understanding of the
provision of the Revised Administrative Code of 1987 (Book IV, Title III,
Chapter II, Section 9) to the effect that —
All provincial and city prosecutors and their assistants shall be
appointed by the President upon the recommendation of the
Secretary.
Petitioners contend that an appointment of a provincial prosecutor
mandatorily requires a prior recommendation of the Secretary of
Justice endorsing the intended appointment citing, by analogy, the
case of San Juan vs. CSC  5where the Court held:
. . . The DBM may appoint only from the list of qualified
recommendees nominated by the Governor. If none is
qualified, he must return the list of nominees to the Governor
explaining why no one meets the legal requirements and ask
for new recommendees who have the necessary eligibilities
and qualifications.
The Provincial Budget Officer (PBO) is expected to
synchronize his work with DBM.6 (Emphasis supplied.)
Insisting on the application of San Juan, petitioners call attention to the
tenor of Executive Order No. 1127 —
Sec. 1. All budget officers of provinces, cities and municipalities
shall be appointed henceforth by the Minister of Budget and
Management upon recommendation of the local chief executive
concerned. . . . —
that, they claim, can be likened to the aforequoted provision of the
Revised Administrative Code of 1987. Respondents argue differently.
The legislative intent is, of course, primordial. There is no hard-and-fast
rule in ascertaining whether the language in a statute should be
considered mandatory or directory, and the application of a ruling in
one particular instance may not necessarily be apt in another8 for each
must be determined on the basis of the specific law in issue and the
peculiar circumstances attendant to it. More often than not, the
problem, in the final analysis, is firmed up and addressed on a case-to-
case basis. The nature, structure and aim of the law itself is often
resorted to in looking at the legislative intent. Generally, it is said that if
no consequential rights or liabilities depend on it and no injury can
result from ignoring it, and that the purpose of the legislature can be
accomplished in a manner other than that prescribed when
substantially the same results can be obtained, then the statute should
be regarded merely as directory, rather than as mandatory, in
character.9
An "appointment" to a public office is the unequivocal act of
designating or selecting by one having the authority therefor of an
individual to discharge and perform the duties and functions of an
office or trust.10 The appointment is deemed complete once the last act
required of the appointing authority has been complied with and its
acceptance thereafter by the appointee in order to render it
effective.11 Appointment necessarily calls for an exercise of discretion
on the part of the appointing authority.12 In Pamantasan ng Lungsod ng
Maynila vs. Intermediate Appellate Court,13 reiterated in Flores
vs. Drilon,14 this Court has held:
The power to appoint is, in essence, discretionary. The
appointing power has the right of choice which he may exercise
freely according to his judgment, deciding for himself who is
best qualified among those who have the necessary
qualifications and eligibilities. It is a prerogative of the
appointing power . . .15
Indeed, it may rightly be said that the right of choice is the heart of the
power to appoint.16 In the exercise of the power of appointment,
discretion is an integral part thereof.
17
When the Constitution17 or the law18 clothes the President with the
power to appoint a subordinate officer, such conferment must be
understood as necessarily carrying with it an ample discretion of whom
to appoint. It should be here pertinent to state that the President is the
head of government whose authority includes the power of control over
all "executive departments, bureaus and offices." Control means the
authority of an empowered officer to alter or modify, or even nullify or
set aside, what a subordinate officer has done in the performance of
his duties, as well as to substitute the judgment of the latter,19 as and
when the former deems it to be appropriate. Expressed in another way,
the President has the power to assume directly the functions of an
executive department, bureau and office.20 It can accordingly be
inferred therefrom that the President can interfere in the exercise of
discretion of officials under him or altogether ignore their
recommendations.21
It is the considered view of the Court, given the above disquisition, that
the phrase "upon recommendation of the Secretary," found in Section
9, Chapter II, Title III, Book IV, of the Revised Administrative Code,
should be interpreted, as it is normally so understood, to be a mere
advise, exhortation or indorsement, which is essentially persuasive in
character and not binding or obligatory upon the party to whom it is
made.22 The recommendation is here nothing really more than advisory
in nature.23 The President, being the head of the Executive
Department, could very well disregard or do away with the action of the
departments, bureaus or offices even in the exercise of discretionary
authority, and in so opting, he cannot be said as having acted beyond
the scope of his authority.
The doctrine in San Juan, relied upon by petitioners, is tangential.
While the tenor of the legal provision in Executive Order No. 112 has
some similarity with the provision in the 1987 Administrative Code in
question, it is to be pointed out, however, that San Juan,24 in construing
the law, has distinctively given stress to the constitutional mandate on
local autonomy; thus:
The issue before the Court is not limited to the validity of the
appointment of one Provincial Budget Officer. The tug of war
between the Secretary of Budget and Management and the
Governor of the premier province of Rizal over a seemingly
innocuous position involves the application of a most important
constitutional policy and principle, that of local autonomy. We
have to obey the clear mandate on local autonomy. Where a
law is capable of two interpretations, one in favor of centralized
power in Malacañang and the other beneficial to local
autonomy, the scales must be weighed in favor of autonomy.
xxx     xxx     xxx
When the Civil Service Commission interpreted the
recommending power of the Provincial Governor as purely
directory, it went against the letter and spirit of the
constitutional provisions on local autonomy. If the DBM
Secretary jealously hoards the entirety of budgetary powers
and ignores the right of local governments to develop self-
reliance and resoluteness in the handling of their own funds,
the goal of meaningful local autonomy is frustrated and set
back.25
The Court there has explained that the President merely exercises
general supervision over local government units and local
officials,26 hence, in the appointment of a Provincial Budget Officer, the
executive department, through the Secretary of Budget and
Management, indeed had to share the questioned power with the local
government.
In the instant case, the recommendation of the Secretary of Justice
and the appointment of the President are acts of the Executive
Department itself, and there is no sharing of power to speak of, the
latter being deemed for all intents and purposes as being merely an
extension of the personality of the President.
WHEREFORE, the petition is DENIED. No costs.
1âwphi1.nêt
SO ORDERED.
18
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,  Rule 45 of the 1997 Rules of Civil Procedure. In G.R. No. 139554,
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
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.
19
 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,
20
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
21
President's constitutional and/or statutory power of supervision and
control over government corporations restrict or modify the application
of the CCP Charter."12
The Court of Appeals, moreover, denied the Endriga group's motion for
immediate execution of judgment on the ground that the reasons
submitted to justify execution pending appeal were not persuasive.
The Issues
In G.R. No. 139554, the Rufino group, through the Solicitor General,
contends that the Court of Appeals committed reversible error:
I
x x x in holding that it was "not actuated" to pass upon the
constitutionality of Section 6(b) of PD 15 inasmuch as the issue
was raised for the first time in [Rufino et al.'s] motion for
reconsideration;
II
x x x in not holding that Section 6(b) of PD 15 is
unconstitutional considering that:
A. x x x [it] is an invalid delegation of the President's appointing
power under the Constitution;
B. x x x [it] effectively deprives the President of his
constitutional power of control and supervision over the CCP;
III
x x x in declaring the provisions of PD 15 as clear and
complete and in failing to apply the executive/administrative
construction x x x which has been consistently recognized and
accepted since 1972;
IV
x x x in finding that [Endriga et al.] have a clear legal right to be
the incumbent trustees and officers of the CCP considering
that:
A. Endriga et al. are estopped from instituting the quo
warranto action since they recognized and benefited from the
administrative construction regarding the filling of vacancies in
the CCP Board of Trustees x x x;
B. x x x [Endriga et al.'s] terms did not legally commence as
[they] were not validly elected under PD 15;
C. assuming that [Endriga et al.] were validly elected, they lost
their right to retain their offices because their terms as trustees
expired on 31 December 1998;
D. [Endriga et al.] assumed positions in conflict x x x with their
offices in the CCP and were thus not entitled to retain the
same;
V
x x x in not dismissing the quo warranto petition for being moot
x x x;
VI
x x x in holding that [Rufino et al.'s] prayer [that the] disputed
offices [be declared] entirely as vacant is bereft of basis and
amounts to "an admission of their lack of right to the office they
claim."13
In G.R. No. 139565, the Endriga group raises the following issue:
whether a writ of quo warranto involving a public office should
be declared a self-executing judgment and deemed
22
 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
23
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 barriers19 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:
24
 (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.
25
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.
26
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."
27
Fifth, the 1935, 1973, and 1987 Constitutions make a clear distinction THE PRESIDENT: Does the Committee accept?
whenever granting the power to appoint lower-ranked officers to
members of a collegial body or to the head of that collegial body. Thus, xxxx
the 1935 Constitution speaks of vesting the power to appoint "in the
courts, or in the heads of departments." Similarly, the 1973 MR. SUMULONG: We accept the amendment.
Constitution speaks of "members of the Cabinet, courts, heads of
agencies, commissions, and boards."
MR. ROMULO: The Committee has accepted the amendment,
Madam President.
Also, the 1987 Constitution speaks of vesting the power to appoint "in
the courts, or in the heads of departments, agencies, commissions, or
THE PRESIDENT: Is there any objection to the addition of the
boards." This is consistent with Section 5(6), Article VIII of the 1987
words "AGENCIES, COMMISSIONS, OR BOARDS" on line 3,
Constitution which states that the "Supreme Court shall x x x [a]ppoint
page 8? (Silence) The Chair hears none; the amendment is
all officials and employees of the Judiciary in accordance with the Civil
approved.34 (Italicization in the original; boldfacing supplied)
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 As an enumeration of offices, what applies to the first office in the
the power "in the heads of departments, agencies, commissions, or enumeration also applies to the succeeding offices mentioned in the
boards." 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,
In addition, the 1987 Constitution expressly provides that in the case of
commissions, or boards."
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 The Chairperson of the CCP Board is the Head of CCP
Commissions shall appoint their officials and employees in accordance
with law." 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
Sixth, the last clause of the pertinent sentence in Section 16, Article VII head of CCP. Thus, Section 8 of PD 15 provides:
of the 1987 Constitution is an enumerationof offices whose heads
may be vested by law with the power to appoint lower-ranked officers. Appointment of Personnel. — The Chairman, with the
This is clear from the framers' deliberations of the 1987 Constitution, confirmation of the Board, shall have the power to appoint all
thus: officers, staff and personnel of the Center with such
compensation as may be fixed by the Board, who shall be
THE PRESIDENT: Commissioner Davide is recognized. 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
MR. DAVIDE: On page 8, line 3, change the period (.) after
same rights and privileges as well as obligations as those
"departments" to a comma (,) and add AGENCIES,
enjoyed or borne by persons in the government service.
COMMISSIONS, OR BOARDS. This is just to complete the
Officials and employees of the Center shall be exempt from the
enumeration in the 1935 Constitution from which this additional
coverage of the Civil Service Law and Rules.
clause was taken.

28
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
29
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
30
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
31
 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.  currently holding office shall be the first trustees to serve on the
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
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.
32
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
33
 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.
34
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
35
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. xxx22
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
36
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
37
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
38
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
39
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.
40
 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
41
 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
42
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
43
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
44
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
45
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,
46
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
47
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
48
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.

49
 EN BANC
G.R. No. 224302, November 29, 2016
HON. PHILIP A. AGUINALDO, HON. REYNALDO A. ALHAMBRA, HON.
DANILO S. CRUZ, HON. BENJAMIN T. POZON, HON. SALVADOR V.
TIMBANG, JR., AND THE INTEGRATED BAR OF THE PHILIPPINES
(IBP), Petitioners, v. HIS EXCELLENCY PRESIDENT BENIGNO SIMEON
C. AQUINO III, HON. EXECUTIVE SECRETARY PAQUITO N. OCHOA,
HON. MICHAEL FREDERICK L. MUSNGI, HON. MA. GERALDINE FAITH
A. ECONG, HON. DANILO S. SANDOVAL, HON. WILHELMINA B.
JORGE-WAGAN, HON. ROSANA FE ROMERO-MAGLAYA, HON.
MERIANTHE PACITA M. ZURAEK, HON. ELMO M. ALAMEDA, AND HON.
VICTORIA C. FERNANDEZ-BERNARDO, Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
Before this Court is a Petition for Quo Warranto under Rule 66
and Certiorari and Prohibition under Rule 65 with Application for Issuance of
Injunctive Writs1 filed by petitioners Judge Philip A. Aguinaldo (Aguinaldo) of
the Regional Trial Court (RTC), Muntinlupa City, Branch 207; Judge Reynaldo
A. Alhambra (Alhambra) of RTC, Manila, Branch 53; Judge Danilo S. Cruz (D.
Cruz) of RTC, Pasig City, Branch 152; Judge Benjamin T. Pozon (Pozon) of
RTC, Makati City, Branch 139; Judge Salvador V. Timbang, Jr. (Timbang) of
RTC, Las Piñas City, Branch 253; and the Integrated Bar of the Philippines
(IBP), against respondents former President Benigno Simeon C. Aquino III
(Aquino), Executive Secretary Paquito N. Ochoa (Ochoa), Sandiganbayan
Associate Justice Michael Frederick L. Musngi (Musngi), Sandiganbayan
Associate Justice Ma. Geraldine Faith A. Econg (Econg), Atty. Danilo S.
Sandoval (Sandoval), Atty. Wilhelmina B. Jorge-Wagan (Jorge-Wagan), Atty.
Rosana Fe Romero-Maglaya (Romero Maglaya), Atty. Merianthe Pacita M.
Zuraek (Zuraek), Atty. Elmo M. Alameda (Alameda), and Atty. Victoria C.
Fernandez-Bernardo (Fernandez-Bernardo). The Petition assails President
Aquino's appointment of respondents Musngi and Econg as Associate
Justices of the Sandiganbayan.2 chanrobleslaw
I 5. SANDOVAL, DANILO S.  - 5 votes
FACTUAL ANTECEDENTS
On June 11, 1978, then President Ferdinand E. Marcos (Marcos) issued
Presidential Decree No. 1486, creating a special court called the
Sandiganbayan, composed of a Presiding Judge and eight Associate Judges
to be appointed by the President, which shall have jurisdiction over criminal
and civil cases involving graft and corrupt practices and such other offenses
committed by public officers and employees, including those in government
owned or controlled corporations.3 A few months later, on December 10,
1978, President Marcos also issued Presidential Decree No. 1606,4 which
elevated the rank of the members of the Sandiganbayan from Judges to
Justices, co-equal in rank with the Justices of the Court of Appeals; and
provided that the Sandiganbayan shall sit in three divisions of three Justices
each.5Republic Act No. 79756 was approved into law on March 30, 1995 and
it increased the composition of the Sandiganbayan from nine to fifteen
Justices who would sit in five divisions of three members each. Republic Act
No. 10660,7 recently enacted on April 16, 2015, created two more divisions
of the Sandiganbayan with three Justices each, thereby resulting in six
vacant positions.
On July 20, 2015, the Judicial and Bar Council (JBC) published in the
Philippine Star and Philippine Daily Inquirer and posted on the JBC website
an announcement calling for applications or recommendations for the six
newly created positions of Associate Justice of the Sandiganbayan.8 After
screening and selection of applicants, the JBC submitted to President Aquino
six shortlists contained in six separate letters, all dated October 26, 2015,
which read: ChanRoblesVirtualawlibrary
1) For the 16th Sandiganbayan Associate Justice:
chanRoblesvirtualLawlibrary Your Excellency:
Pursuant to Article VIII, Section 9 of the Constitution, the Judicial and
chanRoblesvirtualLawlibrary
Bar Council (JBC) has the honor to submit the following nominations for the
vacancy for the SIXTEENTH ASSOCIATE JUSTICE of the SANDIGANBAYAN,
with their respective votes:
chanRoblesvirtualLawlibrary
1. AGUINALDO, PHILIP A. - 5 votes  
2. ALHAMBRA, REYNALDO A. - 5 votes  
3. CRUZ, DANILO S.  - 5 votes  
4. POZON, BENJAMIN T. - 5 votes  
 
6. TIMBANG, SALVADOR JR.  - 5 votes9  
2) For the 17th Sandiganbayan Associate Justice:
50
chanRoblesvirtualLawlibrary Your Excellency: Pursuant to Article VIII, Section 9 of the Constitution, the Judicial and
chanRoblesvirtualLawlibrary

Pursuant to Article VIII, Section 9 of the Constitution, the Judicial and
chanRoblesvirtualLawlibrary
Bar Council (JBC) has the honor to submit the following nominations for the
vacancy for the SEVENTEENTH ASSOCIATE JUSTICE of the
Bar Council (JBC) has the honor to submit the following nominations for the
vacancy for the NINETEENTH ASSOCIATE JUSTICE of the SANDIGANBAYAN,
with their respective votes:
chanRoblesvirtualLawlibrary

SANDIGANBAYAN, with their respective votes:

1. GUANZON, FRANCES V. - 6 votes
chanRoblesvirtualLawlibrary

1. CORPUS-MAÑALAC, MARYANN E. - 6 votes   2. MACARAIG-GUILLEN, MARISSA - 6 votes

2. MENDOZA-ARCEGA, MARIA THERESA V. - 6 votes   3. CRUZ, REYNALDO P. - 5 votes

3. QUIMBO, RODOLFO NOEL S. - 6 votes   4. PAUIG, VILMA T. - 5 votes

4. DIZON, MA. ANTONIA EDITA CLARIDADES - 5 votes   5. RAMOS, RENAN E. - 5 votes

5. SORIANO, ANDRES BARTOLOME - 5 votes10   6. ROXAS, RUBEN REYNALDO G. - 5 votes12

3) For the 18th Sandiganbayan Associate Justice: 5) For the 20th Sandiganbayan Associate Justice:

chanRoblesvirtualLawlibrary Your Excellency: chanRoblesvirtualLawlibrary Your Excellency:

Pursuant to Article VIII, Section 9 of the Constitution, the Judicial and

chanRoblesvirtualLawlibrary
Pursuant to Article VIII, Section 9 of the Constitution, the Judicial and
chanRoblesvirtualLawlibrary

Bar Council (JBC) has the honor to submit the following nominations for the Bar Council (JBC) has the honor to submit the following nominations for the
vacancy for the EIGHTEENTH ASSOCIATE JUSTICE of the SANDIGANBAYAN, vacancy for the TWENTIETH ASSOCIATE JUSTICE of the SANDIGANBAYAN,
with their respective votes: with their respective votes.
chanRoblesvirtualLawlibrary

1. BAGUIO, CELSO O. - 5 votes   1. MIRANDA, KARL B. - 6 votes

2. DE GUZMAN-ALVAREZ, MA. TERESA E. - 5 votes   2. ATAL-PAÑO, PERPETUA - 5 votes

3. FERNANDEZ, BERNELITO R. - 5 votes   3. BUNYI-MEDINA, THELMA - 5 votes

4. PANGANIBAN, ELVIRA DE CASTRO - 5 votes   4. CORTEZ, LUISITO G. - 5 votes

5. SAGUN, FERNANDO JR. T. - 5 votes   5. FIEL-MACARAIG, GERALDINE C. - 5 votes

6. TRESPESES, ZALDY V. - 5 votes11   6. QUIMPO-SALE, ANGELENE MARY W. - 5 votes

4) For the 19th Sandiganbayan Associate Justice: 7. JACINTO, BAYANI H. - 4 votes13

chanRoblesvirtualLawlibrary Your Excellency: 6) For the 21st Sandiganbayan Associate Justice:

51
 Petitioner IBP avers that it comes before this Court through a taxpayer's
chanRoblesvirtualLawlibrary Your Excellency: suit, by which taxpayers may assail an alleged illegal official action where
there is a claim that public funds are illegally disbursed, deflected to an
Pursuant to Article VIII, Section 9 of the Constitution, the Judicial and
chanRoblesvirtualLawlibrary improper use, or wasted through the enforcement of an invalid or
Bar Council (JBC) has the honor to submit the following nominations for the unconstitutional law. Petitioner IBP also maintains that it has locus
vacancy for the TWENTY-FIRST ASSOCIATE JUSTICE of the standi considering that the present Petition involves an issue of
SANDIGANBAYAN, with their respective votes: transcendental importance to the people as a whole, an assertion of a public
chanRoblesvirtualLawlibrary
right, and a subject matter of public interest. Lastly, petitioner IBP contends
that as the association of all lawyers in the country, with the fundamental
1. JORGE-WAGAN, WILHELMINA B. - 6 votes purpose of safeguarding the administration of justice, it has a direct interest
in the validity of the appointments of the members of the Judiciary.
2. ECONG, GERALDINE FAITH A. - 5 votes
Petitioners base their instant Petition on the following arguments: ChanRoblesVirtualawlibrary

3. ROMERO-MAGLAYA, ROSANNA FE
4. ZURAEK, MERIANTHE PACITA M.
- 5 votes PRESIDENT AQUINO VIOLATED SECTION 9, ARTICLE VIII OF THE 1987
CONSTITUTION IN THAT:
- 5 votes
(A) HE DID NOT APPOINT ANYONE FROM THE SHORTLIST SUBMITTED BY
chanRoblesvirtualLawlibrary

5. ALAMEDA, ELMO M. - 4 votes
6. FERNANDEZ-BERNARDO, VICTORIA C. - 4 votes
14
7. MUSNGI, MICHAEL FREDERICK L. - 4 votes
President Aquino issued on January 20, 2015 the appointment papers for the
six new Sandiganbayan Associate Justices, namely: (1) respondent Musngi;
(2) Justice Reynaldo P. Cruz (R. Cruz); (3) respondent Econg; (4) Justice
Maria Theresa V. Mendoza-Arcega (Mendoza-Arcega); (5) Justice Karl B.
Miranda (Miranda); and (6) Justice Zaldy V. Trespeses (Trespeses). The
THE JBC FOR THE VACANCY FOR POSITION OF THE 16TH ASSOCIATE
JUSTICE OF THE SANDIGANBAYAN; AND
(B) HE APPOINTED UNDERSECRETARY MUSNGI AND JUDGE ECONG AS
ASSOCIATE JUSTICES OF THE SANDIGANBAYAN TO THE VACANCY FOR THE
POSITION OF 21STASSOCIATE JUSTICE OF THE SANDIGANBAYAN.
(C) THE APPOINTMENTS MADE WERE NOT IN ACCORDANCE WITH THE
SHORTLISTS SUBMITTED BY THE JUDICIAL AND BAR COUNCIL FOR EACH
VACANCY, THUS AFFECTING THE ORDER OF SENIORITY OF THE ASSOCIATE
JUSTICES.16 chanroblesvirtuallawlibrary

appointment papers were transmitted on January 25, 2016 to the six new According to petitioners, the JBC was created under the 1987 Constitution to
Sandiganbayan Associate Justices, who took their oaths of office on the reduce the politicization of the appointments to the Judiciary, i.e., "to rid the
same day all at the Supreme Court Dignitaries Lounge. Respondent Econg, process of appointments to the Judiciary from the political pressure and
with Justices Mendoza-Arcega and Trespeses, took their oaths of office partisan activities."17 chanrobleslaw

before Supreme Court Chief Justice Maria Lourdes P. A. Sereno (Sereno);

while respondent Musngi, with Justices R. Cruz and Miranda, took their oaths Article VIII, Section 9 of the 1987 Constitution contains the mandate of the
of office before Supreme Court Associate Justice Francis H. Jardeleza JBC, as well as the limitation on the President's appointing power to the
(Jardeleza).15 chanrobleslaw
Judiciary, thus: ChanRoblesVirtualawlibrary

Arguments of the Petitioners
Petitioners Aguinaldo, Alhambra, D. Cruz, Pozon, and Timbang
(Aguinaldo, et al.), were all nominees in the shortlist for the
16th Sandiganbayan Associate Justice. They assert that they possess the
legal standing or locus standi to file the instant Petition since they suffered a
direct injury from President Aquino's failure to appoint any of them as the
16th Sandiganbayan Associate Justice.
Sec. 9. The Members of the Supreme Court and judges of lower courts shall
be appointed by the President from a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy. Such
appointments need no confirmation.
For the lower courts, the President shall issue the appointments within
ninety days from the submission of the list.
It is the function of the JBC to search, screen, and select nominees
recommended for appointment to the Judiciary. It shall prepare a list with at
least three qualified nominees for a particular vacancy in the Judiciary to be

52
submitted to the President, who, in turn, shall appoint from the shortlist for Petitioners observe the following infirmities in President Aquino's
said specific vacancy. Petitioners emphasize that Article VIII, Section 9 of appointments: ChanRoblesVirtualawlibrary

the 1987 Constitution is clear and unambiguous as to the mandate of the

JBC to submit a shortlist of nominees to the President for "every vacancy" to a.
the Judiciary, as well as the limitation on the President's authority to appoint
members of the Judiciary from among the nominees named in the shortlist
submitted by the JBC.
b.
In this case, the JBC submitted six separate lists, with five to seven
nominees each, for the six vacancies in the Sandiganbayan, particularly, for
the 16th, 17th, 18th, 19th, 20th and 21st Associate Justices. Petitioners contend c.
that only nominees for the position of the 16th Sandiganbayan Associate
Justice may be appointed as the 16th Sandiganbayan Associate Justice, and
the same goes for the nominees for each of the vacancies for the 17th, 18th,
19th, 20th, and 21st Sandiganbayan Associate Justices. However, on January d.
20, 2016, President Aquino issued the appointment papers for the six new
Sandiganbayan Associate Justices, to wit: ChanRoblesVirtualawlibrary
Michael Frederick L. Musngi, nominated for the vacancy of the
21st Associate Justice, was appointed as the 16th Associate Justice;
Reynaldo P. Cruz, nominated for the vacancy of the 19th Associate
Justice, was appointed as the 17th Associate Justice;
Geraldine Faith A. Econg, also nominated for the vacancy of the
21st Associate Justice, but was appointed as the 18th Associate
Justice;
Maria Theresa V. Mendoza[-Arcega], nominated for the vacancy of
the 17thAssociate Justice, but was appointed as the 19th Associate
Justice;

VACANCY IN THE PERSON e. Zaldy V. Trespeses, nominated for the vacancy of the 18th Associate
BAR CODE SHORTLISTED
SANDIGANBAYA APPOINTE Justice, but was appointed as the 21st Associate Justice.
NO. FOR
N D
60. Only the appointment of Karl B. Miranda as the 20th Associate
th Michael st Justice is in accordance with his nomination.18
16  Associate PNOY01944 21  Associate
Frederick L.
Justice 5 Justice
Musngi Petitioners insist that President Aquino could only choose one nominee from
each of the six separate shortlists submitted by the JBC for each specific
17th Associate Reynaldo P. PNOY01944 19th Associate vacancy, and no other; and any appointment made in deviation of this
Justice Cruz 6 Justice procedure is a violation of the Constitution. Hence, petitioners pray, among
other reliefs, that the appointments of respondents Musngi and Econg, who
Geraldine belonged to the same shortlist for the position of 21st Associate Justice, be
18th Associate PNOY01944 21st Associate declared null and void for these were made in violation of Article VIII,
Faith A.
Justice 7 Justice Section 9 of the 1987 Constitution.
Econg
Arguments of the Respondents
Maria
19th Associate Theresa V. PNOY01944 17th Associate The Office of the Solicitor General (OSG), on behalf of the Office of the
Justice Mendoza- 8 Justice President (OP), filed a Comment,19 seeking the dismissal of the Petition on
Arcega procedural and substantive grounds.

20th Associate Karl B. PNOY01944 20th Associate On matters of procedure, the OSG argues, as follows:
Justice Miranda 9 Justice First, President Aquino should be dropped as a respondent m the instant
chanRoblesvirtualLawlibrary

st th case on the ground of his immunity from suit.

21  Associate Zaldy V. PNOY01945 18  Associate
Justice Trespeses 0 Justice Second, petitioners Aguinaldo, et al. cannot institute an action for quo

53
warranto because usurpation of public office, position, or franchise is a
public wrong, and not a private injury. Hence, only the State can file such an
action through the Solicitor General or public prosecutor, under Sections 2
and 3, Rule 6620of the Rules of Court. As an exception, an individual may
commence an action for quo warranto in accordance with Section 5, Rule
6621 of the Rules of Court if he/she claims entitlement to a public office or
position. However, for said individual's action for quo warranto to prosper,
he/she must prove that he/she suffered a direct injury as a result of the
usurpation of public office or position; and that he/she has a clear right, and
not merely a preferential right, to the contested office or position. Herein
petitioners Aguinaldo, et al. have failed to show that they are entitled to the
positions now being held by respondents Musngi and Econg, as the inclusion
of petitioners Aguinaldo, et al. in the shortlist for the 16th Sandiganbayan
Associate Justice had only given them the possibility, not the certainty, of
appointment to the Sandiganbayan. Petitioners Aguinaldo, et al., as
nominees, only had an expectant right because their appointment to the
Sandiganbayan would still be dependent upon the President's discretionary
appointing power.
Third, petitioner IBP can only institute the certiorari and prohibition case, but
not the action for quo warranto against respondents Musngi and Econg
because it cannot comply with the direct injury requirement for the latter.
Petitioner IBP justifies its locus standi to file the petition for certiorari and
prohibition by invoking the exercise by this Court of its expanded power of
judicial review and seeking to oust respondents Musngi and Econg as
Sandiganbayan Associate Justices based on the alleged unconstitutionality of
their appointments, and not on a claim of usurpation of a public office. Yet,
based on Topacio v. Ong,22 a petition for certiorari or prohibition is a
collateral attack on a public officer's title, which cannot be permitted. Title to
a public office can only be contested directly in a quo warrantoproceeding.
Moreover, it is the JBC, not petitioner IBP, which has legal standing to file
the present suit, as the dispute here is between the JBC and the OP. The
fundamental question in this case is "whether the JBC can corral the
discretion of the President to appoint, a core constitutional prerogative, by
designating qualified nominees within specific, artificial numerical categories
and forcing the President to appoint in accordance with those artificial
numerical categories." The Court, though, is barred from deciding said
question because the JBC is not a party herein.
Fourth, petitioners have erroneously included Jorge-Wagan, Romero
Maglaya, Zuraek, Alameda, and Fernandez-Bernardo (Jorge-Wagan, et al.)
as unwilling co-petitioners in the Petition at bar. Apart from the fact that
Jorge-Wagan, et al. do not claim entitlement to the positions occupied by
respondents Musngi and Econg, non-appointed nominees for the positions of
16th and 21st Associate Justices of the Sandiganbayan cannot simultaneously
claim right to assume two vacancies in said special court.
And fifth, petitioners disregarded the hierarchy of courts by directly filing the
instant Petition for Quo warranto and Certiorari and Prohibition before this
Court. Even in cases where the Court is vested with original concurrent
jurisdiction, it remains a court of last resort, not a court of first instance.
The OSG next addresses the substantive issues.
The OSG submits that the core argument of petitioners stems from their
erroneous premise that there are existing numerical positions in the
Sandiganbayan: the 1st being the Presiding Justice, and the succeeding
2nd to the 21st being the Associate Justices. It is the assertion of the OSG
that the Sandiganbayan is composed of a Presiding Justice and 20 Associate
Justices, without any numerical designations. Presidential Decree No. 1606
and its amendments do not mention vacancies for the positions of
"2nd Associate Justice," "3rd Associate Justice," etc. There are no such items
in the Judiciary because such numerical designations are only used to refer
to the seniority or order of precedence of Associate Justices in collegiate
courts such as the Supreme Court, Court of Appeals, Court of Tax Appeals,
and Sandiganbayan.
The OSG further contends that the power to determine the order of
precedence of the Associate Justices of the Sandiganbayan is reposed in the
President, as part of his constitutional power to appoint. Citing Section 1,
third paragraph of Presidential Decree No. 160623 and Rule II, Section 1 of
the Revised Internal Rules of the Sandiganbayan,24 the OSG explains that
the order of precedence of the Associate Justices of the Sandiganbayan shall
be according to the order of their appointments, that is, according to the
dates of their respective commissions, or, when two or more commissions
bear the same date, according to the order in which their commissions had
been issued by the President. It is the averment of the OSG that the
constitutional power of the JBC to recommend nominees for appointment to
the Judiciary does not include the power to determine their seniority.
President Aquino correctly disregarded the order of precedence in the
shortlists submitted by the JBC and exercised his statutory power to
determine the seniority of the appointed Sandiganbayan Associate Justices.
The OSG interprets Article VIII, Section 9 of the 1987 Constitution differently
from petitioners. According to the OSG, said provision neither requires nor
allows the JBC to cluster nominees for every vacancy in the Judiciary; it only
mandates that for every vacancy, the JBC shall present at least three
nominees, among whom the President shall appoint a member of the
Judiciary. As a result, if there are six vacancies for Sandiganbayan Associate
Justice, the JBC shall present, for the President's consideration, at least 18
nominees for said vacancies. In the case at bar, the JBC submitted 37
54
nominees for the six vacancies in the Sandiganbayan; and from said pool of
37 nominees, the President appointed the six Sandiganbayan Associate
Justices, in faithful compliance with the Constitution.
It is also the position of the OSG that the President has the absolute
discretion to determine who is best suited for appointment among all the
qualified nominees. The very narrow reading of Article VIII, Section 9 of the
1987 Constitution proposed by petitioners unreasonably restricts the
President's choices to only a few nominees even when the JBC recognized 37
nominees qualified for the position of Sandiganbayan Associate Justice. This
gives the JBC, apart from its power to recommend qualified nominees, the
power to dictate upon the President which among the qualified nominees
should be contending for a particular vacancy. By dividing nominees into
groups and artificially designating each group a numerical value, the JBC
creates a substantive qualification to various judicial posts, which potentially
impairs the President's prerogatives in appointing members of the Judiciary.
The OSG additionally points out that the JBC made a categorical finding that
respondents Musngi and Econg were "suitably best" for appointment as
Sandiganbayan Associate Justice. The functions of the 16th Sandiganbayan
Associate Justice are no different from those of the 17th, 18th, 19th, 20th, or
21stSandiganbayan Associate Justice. Since respondents Musngi and Econg
were indubitably qualified and obtained sufficient votes, it was the
ministerial duty of the JBC to include them as nominees for any of the six
vacancies in the Sandiganbayan presented for the President's final
consideration.
Furthermore, the OSG alleges that it is highly unjust to remove respondents
Musngi and Econg from their current positions on the sole ground that the
nominees were divided into six groups. The JBC announced "the
opening/reopening, for application or recommendation" of "[s]ix (6) newly-
created positions of Associate Justice of the Sandiganbayan." Respondents
Musngi and Econg applied for the vacancy of "Associate Justice of the
Sandiganbayan." In its announcements for interview, the JBC stated that it
would be interviewing applicants for "six (6) newly created positions of
Associate Justice of the Sandiganbayan." It was only on October 26, 2015,
the date of submission of the shortlists, when the nominees had been
clustered into six groups. The OSG notes that there are no JBC rules on the
division of nominees in cases where there are several vacancies in a
collegiate court. In this case, the OSG observes that there were no
measurable standards or parameters for dividing the 37 nominees into the
six groups. The clustering of nominees was not based on the number of
votes the nominees had garnered. The nominees were not evenly distributed
among the six groups, i.e., there were five nominees for 17th Sandiganbayan
Associate Justice; six nominees for 16th, 18th, and 19th Sandiganbayan
Associate Justices; and seven nominees for the 20th and 21st Sandiganbayan
Associate Justices.
The OSG then refers to several examples demonstrating that the previous
practice of the JBC was to submit only one shortlist for several vacancies in
a collegiate court.
The other respondents had likewise filed their respective Comments or
Manifestations:
1) In respondent Fernandez-Bernardo's Comment,25  she recognizes the
chanRoblesvirtualLawlibrary cralawred
legal, substantial, and paramount significance of the ruling of the Court on
the interpretation and application of Article VIII, Section 9 of the 1987
Constitution, which will serve as a judicial precedent for the guidance of the
Executive and Legislative Departments, the JBC, the Bench, and the Bar.
2) Respondent Musngi states in his Manifestation26 that he will no longer file
a separate Comment and that he adopts all the averments, issues,
arguments, discussions, and reliefs in the Comment of the OSG.
3) In her Comment,27 respondent Jorge-Wagan maintains that she is not the
proper party to assail the validity of the appointment of the
16th Sandiganbayan Associate Justice as she was nominated for the
21st Sandiganbayan Associate Justice; and that she is also not the proper
party to seek the nullification of the appointments of respondents Musngi
and Econg as Sandiganbayan Associate Justices. Not being a proper party-
in-interest, respondent Jorge-Wagan argues that she cannot be considered
an "unwilling co-plaintiff."
4) Respondent Romero-Maglaya makes the following averments in her
Manifestation/Comment28: that she should not have been impleaded as a
respondent or an unwilling co-plaintiff in the instant Petition because her
rights as a nominee for judicial appointment were not violated; that she had
no claim of entitlement to the position of Sandiganbayan Associate Justice;
and that she had no participation in the alleged violation of the Constitution
or exercise of grave abuse of discretion amounting to lack or excess of
jurisdiction.
5) Respondent Econg manifests in her Comment29 that while she is
adopting in toto the arguments in the Comment of the OSG, she is also
making certain factual clarifications and additional procedural and
substantive averments.
Respondent Econg clarifies that her real name is Geraldine Faith A. Econg,
and not Ma. Geraldine Faith A. Econg.
Respondent Econg believes that the present Petition is really for quo
55
warranto because it seeks to declare null and void the respective
appointments of respondents Musngi and Econg. Respondent Econg,
however, asseverates that petitioners Aguinaldo, et al. have no clear,
unquestionable franchise to the Office of Associate Justice of the
Sandiganbayan simply because they had been included in the shortlist
submitted for the President's consideration. Nomination is not equivalent to
appointment and the removal of respondents Musngi and Econg will not
automatically grant petitioners Aguinaldo, et al. the right to the Office of
Associate Justice of the Sandiganbayan. Petitioners Aguinaldo, et al., except
for petitioner Alhambra, are even uncertain about their right to the
position/s of 16th and/or 21st Sandiganbayan Associate Justice/s as they have
also applied for the position of Sandiganbayan Associate Justice in lieu of
Sandiganbayan Associate Justice Teresita V. Diaz-Baldos, who eventually
retired on July 22, 2016. Even assuming for the sake of argument that
petitioners' alternative remedy of certiorari is proper, respondent Econg
contends that petitioners only had 60 days to file such a petition from
January 20, 2016, the date she and respondent Musngi were appointed.
Petitioners belatedly filed their Petition before the Court on May 17, 2016.
Respondent Econg also raises the concern that if the Court affirms the
petitioners' position that there are no valid appointments for the 16th and
21st Sandiganbayan Associate Justices, the seniority or order of precedence
among the Sandiganbayan Associate Justices will be adversely affected.
Respondent Econg avers that there was only one list of nominees for the six
vacant positions of Sandiganbayan Associate Justice, considering that: (a)
the announcement of the opening for application/recommendation was for
the six newly-created positions of Sandiganbayan Associate Justice; (b)
respondent Econg's application was for the six newly-created positions of
Sandiganbayan Associate Justice; and (c) the announcement of the public
interview of candidates was for the six newly-created positions of
Sandiganbayan Associate Justice.
Thus, respondent Econg prays for, among other reliefs, the dismissal of the
instant Petition for Quo Warranto and Certiorari and Prohibition for lack of
merit, and the declaration that the appointments of respondents Musngi and
Econg as Sandiganbayan Associate Justices are valid.
6) In respondent Sandoval's Comment,30 he avows that he opts not to join
the petitioners as he subscribes to the principle that the heart and core of
the President's power to appoint is the freedom to choose. The power to
appoint rests on the President and the President alone. Respondent
Sandoval has already accepted the fact that he was not appointed despite
being nominated by the JBC for the position of Sandiganbayan Associate
Justice and he is looking forward to another opportunity to apply for a higher
position in the Judiciary.
Respondents Zuraek and Almeda have not filed their comments despite
notice and are deemed to have waived their right to do so.
On November 26, 2016, the JBC belatedly filed a Motion for Intervention in
the Petition at bar, or more than six months from the filing of the herein
Petition on May 17, 2016 and after Chief Justice Sereno, the Chairperson of
the JBC herself, administered the oath of office of respondent Econg, whose
appointment is now being questioned for having been done in disregard of
the clustering of nominees by the JBC.
II
The Ruling of the Court
The Court takes cognizance of the present Petition despite several
procedural infirmities given the transcendental importance of the
constitutional issue raised herein.
The Petition at bar is for (a) Quo Warranto under Rule 66 of the Revised
Rules of Court; and (b) Certiorari and Prohibition under Rule 65 of the same
Rules.
Rule 66 of the Revised Rules of Court particularly identifies who can file a
special civil action of Quo Warranto, to wit:ChanRoblesVirtualawlibrary
RULE 66
Quo Warranto
Sec. 1. Action by Government against individuals. - An action for the
usurpation of a public office, position or franchise may be commenced by a
verified petition brought in the name of the Republic of the Philippines
against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercises a
chanRoblesvirtualLawlibrary
public office, position or franchise;
(b) A public officer who does or suffers an act which, by the provision of law,
constitutes a ground for the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines without
being legally incorporated or without lawful authority so to act
Sec. 2. When Solicitor General or public prosecutor must commence action.
- The Solicitor General or a public prosecutor, when directed by the
President of the Philippines, or when upon complaint or otherwise he has
good reason to believe that any case specified in the preceding section can
be established by proof, must commence such action.
56
Sec. 3. When Solicitor General or public prosecutor may commence action
with permission of court. - The Solicitor General or a public prosecutor may,
with the permission of the court in which the action is to be commenced,
bring such an action at the request and upon the relation of another person;
but in such case the officer bringing it may first require an indemnity for the
expenses and costs of the action in an amount approved by and to be
deposited in the court by the person at whose request and upon whose
relation the same is brought.
xxxx
Sec. 5. When an individual may commence such an action. - A person
claiming to be entitled to a public office or position usurped or unlawfully
held or exercised by another may bring an action therefor in his own name.
In Topacio v. Ong,31 the Court pronounced that: ChanRoblesVirtualawlibrary
A quo warranto proceeding is the proper legal remedy to determine the right
or title to the contested public office and to oust the holder from its
enjoyment. It is brought against the person who is alleged to have usurped,
intruded into, or unlawfully held or exercised the public office, and may be
commenced by the Solicitor General or a public prosecutor, as the case may
be, or by any person claiming to be entitled to the public office or position
usurped or unlawfully held or exercised by another.
Nothing is more settled than the principle, which goes back to the 1905 case
of Acosta v. Flor, reiterated in the recent 2008 case of Feliciano v. Villasin,
that for a quo warrantopetition to be successful, the private person
suing must show a clear right to the contested office. In fact, not
even a mere preferential right to be appointed thereto can lend a
modicum of legal ground to proceed with the action. (Emphasis
supplied, citations omitted.)
Petitioners Aguinaldo, et al., as nominees for the 16th Saridiganbayan
Associate Justice, did not have a clear right to said position, and therefore
not proper parties to a quo warranto proceeding. Being included in the list of
nominees had given them only the possibility, but not the certainty, of being
appointed to the position, given the discretionary power of the President in
making judicial appointments. It is for this same reason that respondents
Jorge-Wagan, et al., nominees for the 21st Sandiganbayan Associate Justice,
may not be impleaded as respondents or unwilling plaintiffs in a quo
warranto proceeding. Neither can the IBP initiate a quo warranto proceeding
to oust respondents Musngi and Econg from their currents posts as
Sandiganbayan Associate Justices for the IBP does not qualify under Rule
66, Section 5 of the Revised Rules of Court as an individual claiming to be
entitled to the positions in question.
Nevertheless, the Court takes in consideration the fact that the present
Petition is also for Certiorari and Prohibition under Rule 65 of the Revised
Rules of Court, which alleges that President Aquino violated Article VIII,
Section 9 of the 1987 Constitution and committed grave abuse of discretion
amounting to lack or excess of jurisdiction in his appointment of respondents
Musngi and Econg as Sandiganbayan Associate Justices.
Article VIII, Section 1 of the 1987 Constitution vests upon the Court the
expanded power of judicial review, thus: ChanRoblesVirtualawlibrary
Article VIII
Sec. 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
The Court recognized in Jardeleza v. Sereno (Jardeleza Decision)32 that a
"petition for certiorari is a proper remedy to question the act of any branch
or instrumentality of the government on the ground of grave abuse of
discretion amounting to lack or excess of jurisdiction by any branch or
instrumentality of the government, even if the latter does not exercise
judicial, quasi-judicial or ministerial functions."
In opposing the instant Petition for Certiorari and Prohibition, the OSG
cites Topacio in which the Court declares that title to a public office may not
be contested except directly, by quo warranto proceedings; and it cannot be
assailed collaterally, such as by certiorari and prohibition.33 chanrobleslaw
However, Topacio is not on all fours with the instant case. In Topacio, the
writs of certiorari and prohibition were sought against Sandiganbayan
Associate Justice Gregory S. Ong on the ground that he lacked the
qualification of Filipino citizenship for said position. In contrast, the present
Petition for Certiorari and Prohibition puts under scrutiny, not any
disqualification on the part of respondents Musngi and Econg, but the act of
President Aquino in appointing respondents Musngi and Econg as
Sandiganbayan Associate Justices without regard for the clustering of
nominees into six separate shortlists by the JBC, which allegedly violated the
Constitution and constituted grave abuse of discretion amounting to lack or
excess of jurisdiction. This would not be the first time that the Court, in the
exercise of its expanded power of judicial review, takes cognizance of a
petition for certiorari that challenges a presidential appointment for being
unconstitutional or for having been done in grave abuse of discretion. As the
Court held in Funa v. Villar34:
ChanRoblesVirtualawlibrary
Anent the aforestated posture of the OSG, there is no serious disagreement
as to the propriety of the availment of certiorari as a medium to inquire on
57
whether the assailed appointment of respondent Villar as COA Chairman
infringed the constitution or was infected with grave abuse of discretion. For
under the expanded concept of judicial review under the 1987 Constitution,
the corrective hand of certiorari may be invoked 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 the government." "Grave abuse of
discretion" denotes:ChanRoblesVirtualawlibrary
such capricious and whimsical exercise of judgment as is equivalent to lack
of jurisdiction, or, in other words, where the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility, and
it must be so patent and gross as to amount to an evasion of positive duty
or to a virtual refusal to perform the duty enjoined or to act in contemplation
of law.
We find the remedy of certiorari applicable to the instant case in view of the
allegation that then President Macapagal-Arroyo exercised her appointing
power in a manner constituting grave abuse of discretion. (Citations
omitted.)
Even so, the Court finds it proper to drop President Aquino as respondent
taking into account that when this Petition was filed on May 17, 2016, he
was still then the incumbent President who enjoyed immunity from suit. The
presidential immunity from suit remains preserved in the system of
government of this country, even though not expressly reserved in the 1987
Constitution.35 The President is granted the privilege of immunity from suit
"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."36 It is sufficient that former Executive
Secretary Ochoa is named as respondent herein as he was then the head of
the OP and was in-charge of releasing presidential appointments, including
those to the Judiciary.37 chanrobleslaw
Since the Petition at bar involves a question of constitutionality, the Court
must determine the locus standi or legal standing of petitioners to file the
same. The Court will exercise its power of judicial review only if the case is
brought before it by a party who has the legal standing to raise the
constitutional or legal question. "Legal standing" means a personal and
substantial interest in the case such that the party has sustained or will
sustain direct injury as a result of the governmental act that is being
challenged; while "interest" refers to material interest, an interest in issue
and to be affected by the decree or act assailed, as distinguished from mere
interest in the question involved, or a mere incidental interest. The interest
of the plaintiff must be personal and not one based on a desire to vindicate
the constitutional right of some third and unrelated party.38 chanrobleslaw
In David v. Macapagal-Arroyo,39 the Court acknowledged exceptional
circumstances which justified liberality and relaxation of the rules on legal
standing: ChanRoblesVirtualawlibrary
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."
xxxx
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.
Thus, the Court has adopted a rule that even where the petitioners have
failed to show direct injury, they have been allowed to sue under the
principle of "transcendental importance." Pertinent are the following
cases:ChanRoblesVirtualawlibrary
58
 (1) Chavez v. Public Estates Authority, where the Court ruled that the
enforcement of the constitutional right to information and the equitable
diffusion of natural resources are matters of transcendental importance
which clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora, wherein the Court held that
"given the transcendental importance of the issues involved, the Court may
relax the standing requirements and allow the suit to prosper despite the
lack of direct injury to the parties seeking judicial review" of the Visiting
Forces Agreement;
(3) Lim v. Executive Secretary, while the Court noted that the petitioners
may not file suit in their capacity as taxpayers absent a showing that
"Balikatan 02-01" involves the exercise of Congress' taxing or spending
powers, it reiterated its ruling in Bagong Alyansang Makabayan v. Zamora,
that in cases of transcendental importance, the cases must be settled
promptly and definitely and standing requirements may be relaxed.
By way of summary, the following rules may be culled from the cases
decided by this Court. Taxpayers, voters, concerned citizens, and legislators
may be accorded standing to sue, provided that the following requirements
are met:ChanRoblesVirtualawlibrary
(1)  the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement
of public funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in
the validity of the election law in question;
(4) for concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must
be settled early; and
(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as
legislators.
While neither petitioners Aguinaldo, et al. nor petitioner IBP have legal
standing to file a petition for quo warranto, they have legal standing to
institute a petition for certiorari.
The clustering of nominees by the JBC, which the President, for justifiable
reasons, did not follow, could have caused all nominees direct injury, thus,
vesting them with personal and substantial interest, as the clustering limited
their opportunity to be considered for appointment to only one of the six
vacant positions for Sandiganbayan Associate Justice instead of all the six
vacant positions to which the JBC found them as qualified for appointment.
This is the far-reaching adverse consequence to petitioners Aguinaldo, et
al. that they have missed. More importantly, for a complete resolution of this
Petition, the Court must inevitably address the issue of the validity of the
clustering of nominees by the JBC for simultaneous vacancies in collegiate
courts, insofar as it seriously impacts on the constitutional power of the
President to appoint members of the Judiciary, which will be explained
below.
One of the fundamental purposes of the IBP is to improve the administration
of justice.40 As the association of all lawyers in the country, petitioner IBP
has an interest in ensuring the validity of the appointments to the Judiciary.
It is recognized that the administration of justice is primarily a joint
responsibility of the judge and the lawyer.41 Definitely, lawyers cannot
effectively discharge their duties if they entertain doubts, or worse, had lost
their faith in judges and/or justices. It is clearly imperative for the IBP to
prevent that situation from happening by exercising vigilance and ensurmg
that the judicial appointment process remains transparent and credible.
Given that the constitutional issue in the Petition at bar is of transcendental
importance and of public interest, and for the above mentioned reasons, the
Court shall accord petitioners the legal standing to sue.
The instant Petition fundamentally challenges President Aquino's
appointment of respondents Musngi and Econg as the 16th and
18th Sandiganbayan Associate Justices. Petitioners contend that only one of
them should have been appointed as both of them were included in one
cluster of nominees for the 21stSandiganbayan Associate Justice. The Petition
presents for resolution of the Court the issue of whether President Aquino
violated Article VIII, Section 9 of the 1987 Constitution and gravely abused
his discretionary power to appoint members of the Judiciary when he
disregarded the clustering by the JBC of the nominees for each specific
vacant position of Sandiganbayan Associate Justice. The issue is of
paramount importance for it affects the validity of appointments to collegiate
courts and, ultimately, the administration of justice, for if there are
questions as to the right of the appointee to his position as judge/justice,
then doubts shall likewise shadow all his acts as such. This will indubitably
undermine the faith of the public in the judicial system. Since at hand is a
constitutional issue of first impression, which will likely arise again when
there are simultaneous vacancies in collegiate courts, it is imperative for the
Court to already resolve the same for the guidance of the Bench and Bar,
and the general public as well.
The OSG also prays for the dismissal of this Petition on the additional ground
59
 that petitioners, by coming directly before this Court, violated the hierarchy
of courts. Relevant to this matter are the following pronouncements of the
Court in Querubin v. Commission on Elections42: ChanRoblesVirtualawlibrary
Notwithstanding the non-exclusivity of the original jurisdiction over
applications for the issuance of writs of certiorari, however, the doctrine of
hierarchy of courts dictates that recourse must first be made to the lower-
ranked court exercising concurrent jurisdiction with a higher court. The
rationale behind the principle is explained in Bañez, Jr. v. Concepcion in the
following wise: ChanRoblesVirtualawlibrary
The Court must enjoin the observance of the policy on the hierarchy of
courts, and now affirms that the policy is not to be ignored without serious
consequences. The strictness of the policy is designed to shield the Court
from having to deal with causes that are also well within the competence of
the lower courts, and thus leave time to the Court to deal with the more
fundamental and more essential tasks that the Constitution has assigned to
it. The Court may act on petitions for the extraordinary writs of certiorari,
prohibition and mandamus only when absolutely necessary or when serious
and important reasons exist to justify an exception to the policy.
Petitioners do not have the absolute and unrestrained freedom of choice of
the court to which an application for certiorari will be directed. Indeed,
referral to the Supreme Court as the court of last resort will simply be empty
rhetoric if party-litigants are able to flout judicial hierarchy at will. The Court
reserves the direct invocation of its jurisdiction only when there are special
and important reasons clearly and especially set out in the petition that
would justify the same.
In the leading case of The Diocese of Bacolod v. Comelec, the Court
enumerated the specific instances when direct resort to this Court is allowed,
to wit:ChanRoblesVirtualawlibrary
(a)  When there are genuine issues of constitutionality that
must be addressed at the most immediate time;
(b)  When the issues involved are of transcendental importance;
(c)  Cases of first impression;
(d) When the constitutional issues raised are best decided by
this Court;
(e) When the time element presented in this case cannot be
ignored;
(f)  When the petition reviews the act of a constitutional organ;
(g)  When there is no other plain, speedy, and adequate remedy
in the ordinary course of law;
(h)  When public welfare and the advancement of public policy
so dictates, or when demanded by the broader interest of
justice;
(i)  When the orders complained of are patent nullities; and
(j) When appeal is considered as clearly an inappropriate
remedy. (Citations omitted.)
Inasmuch as the Petition at bar involves a constitutional question of
transcendental importance and of first impression and demanded by the
broader interest of justice, the Court, in the exercise of its discretion,
resolves to exercise primary jurisdiction over the same.
Lastly, respondent Econg opposes the Petition at bar for being filed out of
time. According to respondent Econg, the 60-day period for petitioners to file
this Petition commenced on January 20, 2016, the date she and her co-
respondent Musngi were appointed by President Aquino. Based on
respondent Econg's argument, the 60-day period ended on March 20, 2016,
Sunday, so petitioners only had until March 21, 2016, Monday, to timely file
the Petition. For their part, petitioners aver that after learning of the
appointments of respondents Musngi and Econg as Sandiganbayan Associate
Justices from the media, they obtained copies of the shortlists for the
vacancies for the 16th to the 21st Sandiganbayan Associate Justices on March
22, 2016. Counting the 60-day period from March 22, 2016, petitioners
allege that they had until May 21, 2016 to file their Petition.
Rule 65, Section 4 of the Revised Rules of Court explicitly states
that certiorari should be instituted within a period of 60 days from notice of
the judgment, order, or resolution sought to be assailed. The 60-day period
is inextendible to avoid any unreasonable delay that would violate the
constitutional rights of parties to a speedy disposition of their case. The
question though is when said 60-day period began to run in this case. The
Court refers to its ruling in Velicaria-Garafil v. Office of the President.43 In
said case, the Court declared that appointment is a process. For an
appointment to be valid, complete, and effective, four elements must always
concur, to wit: "(1) authority to appoint and evidence of the exercise of
authority, (2) transmittal of the appointment paper and evidence of the
transmittal, (3) a vacant position at the time of appointment, and (4) receipt
of the appointment paper and acceptance of the appointment by the
appointee who possesses all the qualifications and none of the
60
disqualifications." The Court expounded on the importance of the last
element as follows: ChanRoblesVirtualawlibrary
Acceptance is indispensable to complete an appointment. Assuming office
and taking the oath amount to acceptance of the appointment. An oath of
office is a qualifying requirement for a public office, a prerequisite to the full
investiture of the office.
Javier v. Reyes is instructive in showing how acceptance is indispensable to
complete an appointment. On 7 November 1967, petitioner Isidro M. Javier
(Javier) was appointed by then Mayor Victorino B. Aldaba as the Chief of
Police of Malolos, Bulacan. The Municipal Council confirmed and approved
Javier's appointment on the same date. Javier took his oath of office on 8
November 1967, and subsequently discharged the rights, prerogatives, and
duties of the office. On 3 January 1968, while the approval of Javier's
appointment was pending with the CSC, respondent Purificacion C. Reyes
(Reyes), as the new mayor of Malolos, sent to the CSC a letter to recall
Javier's appointment. Reyes also designated Police Lt. Romualdo F.
Clemente as Officer-in-Charge of the police department. The CSC approved
Javier's appointment as permanent on 2 May 1968, and even directed Reyes
to reinstate Javier. Reyes, on the other hand, pointed to the appointment of
Bayani Bernardo as Chief of Police of Malolos, Bulacan on 4 September
1967. This Court ruled that Javier's appointment prevailed over that of
Bernardo. It cannot be said that Bernardo accepted his appointment because
he never assumed office or took his oath.
Excluding the act of acceptance from the appointment process leads us to
the very evil which we seek to avoid (i.e., antedating of appointments).
Excluding the act of acceptance will only provide more occasions to honor
the Constitutional provision in the breach. The inclusion of acceptance by the
appointee as an integral part of the entire appointment process prevents the
abuse of the Presidential power to appoint. It is relatively easy to antedate
appointment papers and make it appear that they were issued prior to the
appointment ban, but it is more difficult to simulate the entire appointment
process up until acceptance by the appointee.44 (Citations omitted.)
The records show that on January 25, 2016, the appointment papers were
transmitted to and received by the six newly-appointed Sandiganbayan
Associate Justices, including respondents Musngi and Econg, who, on the
same day, already took their oaths of office. Therefore, pursuant
to Velicaria-Garafil, the appointment process became complete and effective
on January 25, 2016. If the Court is to count the 60-day reglementary
period for filing a petition for certiorari from January 25, 2016, it expired on
March 25, 2016. The present Petition for Certiorari and Prohibition was filed
on May 17, 2016.
Just like any rule, however, there are recognized exceptions to the strict
observance of the 60-day period for filing a petition for certiorari, viz.: (1)
most persuasive and weighty reasons; (2) to relieve a litigant from an
injustice not commensurate with his failure to comply with the prescribed
procedure; (3) good faith of the defaulting party by immediately paying
within a reasonable time from the time of the default; (4) the existence of
special or compelling circumstances; (5) the merits of the case; (6) a cause
not entirely attributable to the fault or negligence of the party favored by the
suspension of the rules; (7) a lack of any showing that the review sought is
merely frivolous and dilatory; (8) the other party will not be unjustly
prejudiced thereby; (9) fraud, accident, mistake, or excusable negligence
without appellant's fault; (10) peculiar legal and equitable circumstances
attendant to each case; (11) in the name of substantial justice and fair play;
(12) importance of the issues involved; and (13) exercise of sound
discretion by the judge guided by all the attendant circumstances. There
should be an effort, though, on the part of the party invoking liberality to
advance a reasonable or meritorious explanation for his/her failure to
comply with the rules.45 chanrobleslaw
The peculiar circumstances of this case, plus the importance of the issues
involved herein, justify the relaxation of the 60-day period for the filing of
this Petition for Certiorari and Prohibition. Indeed, the official act assailed by
petitioners is the appointment by President Aquino of respondents Musngi
and Econg as Sandiganbayan Associate Justices, which was completed on
January 25, 2016 when said respondents took their oaths of office. Yet,
petitioners could not have sought remedy from the Court at that point. As
basis for petitioners' opposition to the said appointments, they needed to
see and secure copies of the shortlists for the 16th to the 21st Sandiganbayan
Associate Justices. It was only after petitioners obtained copies of all six
shortlists on March 22, 2016 that petitioners would have been able to
confirm that no one from the shortlist for the 16th Sandiganbayan Associate
Justice was appointed to any of the six vacancies for Sandiganbayan
Associate Justice; and that respondents Musngi and Econg, both in the
shortlist for the 21st Sandiganbayan Associate Justice, were appointed as the
16th and 18thSandiganbayan Associate Justices, respectively. In addition,
respondent Econg is not unjustly prejudiced by the delay, but will even
benefit from the Court resolving once and for all the questions on her right
to the position of Sandiganbayan Associate Justice.
The Court reiterates that there can be no valid objection to its discretion to
waive one or some procedural requirements if only to remove any
impediment to address and resolve the constitutional question of
transcendental importance raised in this Petition, the same having far-
reaching implications insofar as the administration of justice is concemed.46 chanrobleslaw
President Aquino did not violate the Constitution or commit grave
abuse of discretion in disregarding the clustering of nominees into
six separate shortlists for the six vacancies for Sandiganbayan
61
Associate Justice.
Article VIII, Section 9 of the 1987 Constitution provides that "[t]he Members
of the Supreme Court and judges of lower courts shall be appointed by the
President from a list of at least three nominees prepared by the Judicial and
Bar Council for every vacancy."
The appointment process for the Judiciary seems simple enough if there is
only one vacancy to consider at a time. The power of the President to
appoint members of the Judiciary is beyond question, subject to the
limitation that the President can only appoint from a list of at least three
nominees submitted by the JBC for every vacancy. However, the controversy
in this case arose because by virtue of Republic Act No. 10660, creating two
new divisions of the Sandiganbayan with three members each, there were
six simultaneous vacancies for Associate Justice of said collegiate court; and
that the JBC submitted six separate shortlists for the vacancies for the
16th to the 21st Sandiganbayan Associate Justices.
On one hand, petitioners assert that President Aquino's power to appoint is
limited to each shortlist submitted by the JBC. President Aquino should have
appointed the 16th Sandiganbayan Associate Justice from the nominees in
the shortlist for the 16th Sandiganbayan Associate Justice, the
17th Sandiganbayan Associate Justice from the nominees in the shortlist for
the 17th Sandiganbayan Associate Justice, and so on and so forth. By totally
overlooking the nominees for the 16th Sandiganbayan Associate Justice and
appointing respondents Musngi and Econg, who were both nominees for the
21st Sandiganbayan Associate Justice, as the 16th and 18th Sandiganbayan
Associate Justices, respectively, President Aquino violated the 1987
Constitution and committed grave abuse of discretion amounting to lack or
excess of jurisdiction.
Respondents, on the other hand, maintain that President Aquino acted in
accordance with the 1987 Constitution and well-within his discretionary
power to appoint members of the Judiciary when he disregarded the
clustering of nominees by the JBC into six separate shortlists and collectively
considered all 37 nominees named in said shortlists for the six vacancies for
Sandiganbayan Associate Justice.
The primordial question then for resolution of the Court is whether President
Aquino, under the circumstances, was limited to appoint only from the
nominees in the shortlist submitted by the JBC for each specific vacancy.
The Court answers in the negative.
The JBC was created under the 1987 Constitution with the principal function
of recommending appointees to the Judiciary.47 It is a body, representative
of all the stakeholders in the judicial appointment process, intended to rid
the process of appointments to the Judiciary of the evils of political pressure
and partisan activities.48 The extent of the role of the JBC in recommending
appointees vis-a-vis the power of the President to appoint members of the
Judiciary was discussed during the deliberations of the Constitutional
Commission (CONCOM) on July 10, 1986, thus: ChanRoblesVirtualawlibrary
MR. RODRIGO: Let me go to another point then.
On page 2, Section 5, there is a novel provision about appointments of
members of the Supreme Court and of judges of lower courts. At present it
is the President who appoints them. If there is a Commission on
Appointments, then it is the President with the confirmation of the
Commission on Appointments. In this proposal, we would like to establish a
new office, a sort of a board composed of seven members, called the Judicial
and Bar Council. And while the President will still appoint the members of
the judiciary, he will be limited to the recommendees of this Council.
MR. CONCEPCION: That is correct.
MR. RODRIGO: And the Council will, whenever there is a vacancy,
recommend three.
MR. CONCEPCION: At least three for every vacancy.
MR. RODRIGO: And the President cannot appoint anybody outside of the
three recommendees.
MR. CONCEPCION: Nomination by the Council would be one of the
qualifications for appointment.49chanroblesvirtuallawlibrary
It is apparent from the aforequoted CONCOM deliberations that nomination
by the JBC shall be a qualification for appointment to the Judiciary, but this
only means that the President cannot appoint an individual who is not
nominated by the JBC. It cannot be disputed herein that respondents Musngi
and Econg were indeed nominated by the JBC and, hence, qualified to be
appointed as Sandiganbayan Associate Justices.
It should be stressed that the power to recommend of the JBC cannot be
used to restrict or limit the President's power to appoint as the latter's
prerogative to choose someone whom he/she considers worth appointing to
the vacancy in the Judiciary is still paramount. As long as in the end, the
President appoints someone nominated by the JBC, the appointment is valid.
On this score, the Court finds herein that President Aquino was not obliged
to appoint one new Sandiganbayan Associate Justice from each of the six
shortlists submitted by the JBC, especially when the clustering of nominees
into the six shortlists encroached on President Aquino's power to appoint
members of the Judiciary from all those whom the JBC had considered to be
62
qualified for the same positions of Sandiganbayan Associate Justice.
Moreover, in the case at bar, there were six simultaneous vacancies for the
position of Sandiganbayan Associate Justice, and the JBC cannot, by
clustering of the nominees, designate a numerical order of seniority of the
prospective appointees. The Sandiganbayan, a collegiate court, is composed
of a Presiding Justice and 20 Associate Justices divided into seven divisions,
with three members each. The numerical order of the seniority or order of
preference of the 20 Associate Justices is determined pursuant to law by the
date and order of their commission or appointment by the President.
This is clear under Section 1, paragraph 3 of Presidential Decree No. 1606,
which reads: ChanRoblesVirtualawlibrary
Sec. 1. Sandiganbayan; composition; qualifications; tenure; removal and
compensation. - x x x
xxxx
The Presiding Justice shall be so designated in his commission and the other
Justices shall have precedence according to the dates of their respective
commissions, or, when the commissions of two or more of them shall bear
the same date, according to the order in which their commissions have been
issued by the President.
Consistent with the foregoing, Rule II, Section 1(b) of the Revised Internal
Rules of the Sandiganbayan similarly provides: ChanRoblesVirtualawlibrary
Sec. 1. Composition of the Court and Rule on Precedence.-
xxxx
(b) Rule on Precedence - The Presiding Justice shall enjoy precedence over
the other members of the Sandiganbayan in all official functions. The
Associate Justices shall have precedence according to the order of their
appointments.
Apropos herein is the following ruling of the Court in Re: Seniority Among
the Four (4) Most Recent Appointments to the Position of Associate Justices
of the Court of Appeals,50 which involved the Court of Appeals, another
collegiate court: ChanRoblesVirtualawlibrary
For purposes of appointments to the judiciary, therefore, the date the
commission has been signed by the President (which is the date appearing
on the face of such document) is the date of the appointment. Such date will
determine the seniority of the members of the Court of Appeals in
connection with Section 3, Chapter I of BP 129, as amended by RA 8246. In
other words, the earlier the date of the commission of an appointee,
the more senior he/she is over the other subsequent appointees. It
is only when the appointments of two or more appointees bear the
same date that the order of issuance of the appointments by the
President becomes material. This provision of statutory law (Section 3,
Chapter I of BP 129, as amended by RA 8246) controls over the provisions
of the 2009 IRCA which gives premium to the order of appointments as
transmitted to this Court. Rules implementing a particular law cannot
override but must give way to the law they seek to implement. (Emphasis
supplied.)
Evidently, based on law, rules, and jurisprudence, the numerical order of the
Sandiganbayan Associate Justices cannot be determined until their actual
appointment by the President.
It bears to point out that part of the President's power to appoint members
of a collegiate court, such as the Sandiganbayan, is the power to determine
the seniority or order of preference of such newly appointed members by
controlling the date and order of issuance of said members' appointment or
commission papers. By already designating the numerical order of the
vacancies, the JBC would be establishing the seniority or order of preference
of the new Sandiganbayan Associate Justices even before their appointment
by the President and, thus, unduly arrogating unto itself a vital part of the
President's power of appointment.
There is also a legal ground why the simultaneous vacant positions of
Sandiganbayan Associate Justice should not each be assigned a specific
number by the JBC. The Sandiganbayan Associate Justice positions were
created without any distinction as to rank in seniority or order of preference
in the collegiate court. The President appoints his choice nominee to the post
of Sandiganbayan Associate Justice, but not to a Sandiganbayan Associate
Justice position with an identified rank, which is automatically determined by
the order of issuance of appointment by the President. The appointment
does not specifically pertain to the 16th, 17th, 18th, 19th, 20th, or
21st Sandiganbayan Associate Justice, because the Sandiganbayan Associate
Justice's ranking is temporary and changes every time a vacancy occurs in
said collegiate court. In fact, by the end of 2016, there will be two more
vacancies for Sandiganbayan Associate Justice.51 These vacancies will surely
cause movement in the ranking within the Sandiganbayan. At the time of
his/her appointment, a Sandiganbayan Associate Justice might be ranked
16th, but because of the two vacancies occurring in the court, the same
Sandiganbayan Associate Justice may eventually be higher ranked.
Furthermore, the JBC, in sorting the qualified nominees into six clusters, one
for every vacancy, could influence the appointment process beyond its
constitutional mandate of recommending qualified nominees to the
President. Clustering impinges upon the President's power of appointment,
as well as restricts the chances for appointment of the qualified nominees,
because (1) the President's option for every vacancy is limited to the five to
seven nominees in the cluster; and (2) once the President has appointed
from one cluster, then he is proscribed from considering the other nominees
63
in the same cluster for the other vacancies. The said limitations are utterly July 17, 1997
without legal basis and in contravention of the President's appointing power.
HIS EXCELLENCY 
To recall, the JBC invited applications and recommendations and conducted PRESIDENT FIDEL V. RAMOS 
interviews for the "six newly created positions of Associate Justice of the Malacañan, Manila
Sandiganbayan." Applicants, including respondents Musngi and Econg,
applied for the vacancy for "Associate Justice of the Sandiganbayan." Dear Mr. President:
Throughout the application process before the JBC, the six newly-created
positions of Sandiganbayan Associate Justice were not specifically identified Pursuant to the provisions of Article VIII, Section 9 of the Constitution,
chanRoblesvirtualLawlibrary

and differentiated from one another for the simple reason that there was the Judicial and Bar Council has the honor to submit the nominations (in
really no legal justification to do so. The requirements and qualifications, as alphabetical order) for six (6) positions of Associate Justice of the
well as the power, duties, and responsibilities are the same for all the Sandiganbayan, per the JBC Minutes of July 9 and 16, 1997: ChanRoblesVirtualawlibrary

Sandiganbayan Associate Justices. If an individual is found to be qualified for 1. Asuncion, Elvi John S.
one vacancy, then he/she is also qualified for all the other vacancies. It was 2. Badoy Jr., Anacleto D.
only at the end of the process that the JBC precipitously clustered the 37 3. Castañeda Jr., Catalina D.
qualified nominees into six separate shortlists for each of the six vacant 4. De Castro, Teresita Leonardo
positions. 5. Fineza, Antonio J.
6. Flores, Alfredo C.
The Court notes that the clustering of nominees is a totally new practice of 7. Gustilo, Alfredo J.
the JBC. Previously, the JBC submitted only one shortlist for two or more 8. Hernandez, Jose R.
vacancies in a collegiate court. Worth reproducing below are the examples 9. Ilarde, Ricardo M.
cited by the OSG: ChanRoblesVirtualawlibrary 10. Laggui, Pedro N.
77. For instance, in June 2011, there were 2 vacancies for Associate Justice 11. Lee Jr., German G.
of the Supreme Court. Out of 30 candidates, the JBC submitted to the 12. Legaspi, Godofredo L.
President only 1 short list of 6 nominees. Based on this short list, President 13. Makasiar, Ramon P.
Aquino appointed Associate Justices Bienvenido L. Reyes, and Estela Perlas- 14. Mallillin, Hesiquio R.
Bernabe. 15. Martinez, Wilfredo C.
16. Mirasol, Teodulo E.
78. In January 2012, there were 3 vacancies for Associate Justice of the CA. 17. Nario, Narciso S.
Out of sixty-three (63) candidates, the JBC prepared only 1 short list of 13 18. Navarro, Flordelis Ozaeta
nominees for these 3 vacancies. Based on this short list, President Aquino 19. Ortile, Senecio D.
appointed Associate Justices Ma. Luisa C. QuijanoPadilla, Renate C. 20. Pineda, Ernesto L.
Francisco, and Jhosep Y. Lopez. 21. Ponferrada, Bernardo T.
22. Quimsing, Godofredo P.
79. In June 2012, there were 3 vacancies for Associate Justice of the CA. 23. Rivera, Candido V.
Out of 53 candidates, the JBC submitted to the President only 1 short list of 24. Rosario Jr., Eriberto U.
14 nominees who obtained the required number of votes. Based on this 25. Salonga, Josefina Guevara
short list, President Aquino appointed Associate Justices Henri Jean Paul B. 26. Sultan, Justo M.
Inting, Oscar V. Badelies, and Marie Christine Azcarraga Jacob.52 chanroblesvirtuallawlibrary 27. Umali, Mariano M.
Additionally, in 1995, when Republic Act No. 7975 increased the divisions in Their respective curriculum vitae are hereto attached.
the Sandiganbayan from three to five, which similarly created six Once more, on November 23, 2009, the JBC, then headed by Supreme Court
simultaneous vacant positions of Sandiganbayan Associate Justice, the JBC, Chief Justice Reynato S. Puno (Puno), submitted to former President Gloria
with then Supreme Court Chief Justice Andres R. Narvasa as Chairman, Macapagal-Arroyo (Macapagal-Arroyo) a single list of nominees for two
submitted a single list of nominees from which former President Fidel V. vacant positions of Supreme Court Associate Justice, from which President
Ramos subsequently chose his six appointees. Reproduced in full below was Macapagal-Arroyo ultimately appointed Associate Justices Jose P. Perez and
the nomination submitted by the JBC on said occasion:     Jose C. Mendoza. The letter of nomination of the JBC reads:    

64
November 23, 2009 ASSOCIATE JUSTICE of the SUPREME COURT, per the JBC Minutes of even
date, as follows:ChanRoblesVirtualawlibrary

Her Excellency
President Gloria Macapagal Arroyo 1. Reyes, Jose, Jr. C. - 7 votes  
Malacañang Palace
Manila 2. Robles, Rodolfo D. - 7 votes  

Your Excellency: 3. De Leon, Magdangal M. - 6 votes  

Pursuant to Section 9, Article VIII of the Constitution, the Judicial and

chanRoblesvirtualLawlibrary 4. Reyes, Bienvenido L.  - 6 votes  
Bar Council has the honor to submit nominations for two (2) positions of
Associate Justice of the Supreme Court (vice Hon. Leonardo A. Quisumbing 5. Bernabe, Estela Perlas - 5 votes  
and Hon. Minita V. Chico-Nazario), per the JBC Minutes of even date, to
wit: ChanRoblesVirtualawlibrary

6. Dimaampao, Japar B. - 5 votes  

1. Abdulwahid, Hakim S. - 6 votes   Their respective curriculum vitae are hereto attached.
There is no explanation for the shift in practice by the JBC, which impaired
2. Mendoza, Jose C. - 6 votes   the power of the President to appoint under the 1987 Constitution and his
statutory authority to determine seniority in a collegiate court. The
3. Perez, Jose P. - 5 votes   clustering by the JBC of the qualified nominees for the six vacancies for
Sandiganbayan Associate Justice appears to have been done arbitrarily,
4. Villaruz, Francisco, Jr. H. - 5 votes   there being no clear basis, standards, or guidelines for the same. The
number of nominees was not even equally distributed among the clusters.
5. De Leon, Magdangal M. - 4 votes  
In view of the foregoing, President Aquino validly exercised his discretionary
power to appoint members of the Judiciary when he disregarded the
6. Tijam, Noel G.  - 4 votes  
clustering of nominees into six separate shortlists for the vacancies for the
Their respective curriculum vitae are hereto attached. 16th, 17th, 18th, 19th, 20th and 21st Sandiganbayan Associate Justices.
And, as mentioned by the OSG, the JBC, during the Chairmanship of President Aquino merely maintained the well-established practice, consistent
Supreme Court Chief Justice Renato C. Corona, submitted to President with the paramount Presidential constitutional prerogative, to appoint the six
Aquino on June 21, 2011 just one list of nominees for two vacant positions new Sandiganbayan Associate Justices from the 37 qualified nominees, as if
of Supreme Court Associate Justice, from which President Aquino eventually embodied in one JBC list. This does not violate Article VIII, Section 9 of the
appointed Associate Justices Bienvenido L. Reyes and Estela M. Perlas- 1987 Constitution which requires the President to appoint from a list of at
Bernabe. Such list is fully quoted hereunder:     least three nominees submitted by the JBC for every vacancy. To meet the
June 21, 2011 minimum requirement under said constitutional provision of three nominees
per vacancy, there should at least be 18 nominees from the JBC for the six
His Excellency vacancies for Sandiganbayan Associate Justice; but the minimum
President Benigno Simeon C. Aquino III requirement was even exceeded herein because the JBC submitted for the
Malacañang Palace President's consideration a total of 37 qualified nominees. All the six newly
Manila appointed Sandiganbayan Associate Justices met the requirement of
nomination by the JBC under Article VIII, Section 9 of the 1987 Constitution.
Your Excellency: Hence, the appointments of respondents Musngi and Econg, as well as the
other four new Sandiganbayan Associate Justices, are valid and do not suffer
Pursuant to Article VIII, Section 9 of the Constitution, the Judicial and
chanRoblesvirtualLawlibrary from any constitutional infirmity.
Bar Council has the honor to submit nominations for the two (2) positions of
The ruling of the Court in this case shall similarly apply to the situation

65
wherein there are closely successive vacancies in a collegiate court, to which
the President shall make appointments on the same occasion, regardless of
whether the JBC carried out combined or separate application process/es for
the vacancies. The President is not bound by the clustering of nominees by
the JBC and may consider as one the separate shortlists of nominees
concurrently submitted by the JBC. As the Court already ratiocinated herein,
the requirements and qualifications, as well as the power, duties, and
responsibilities are the same for all the vacant posts in a collegiate court;
and if an individual is found to be qualified for one vacancy, then he/she is
also qualified for all the other vacancies. It is worthy of note that the JBC, in
previous instances of closely successive vacancies in collegiate courts, such
as the Court of Appeals and the Supreme Court, faithfully observed the
practice of submitting only a single list of nominees for all the available
vacancies, with at least three nominees for every vacancy, from which the
President made his appointments on the same occasion. This is in keeping
with the constitutional provisions on the President's exclusive power to
appoint members of the Judiciary and the mandate of the JBC to recommend
qualified nominees for appointment to the Judiciary.
The Court denies the Motion for Intervention of the JBC in this
Petition.
In its Motion for Intervention, the JBC echoes the arguments of the OSG in
the latter's Comment that the dispute is between the JBC and the OP and it
cannot be decided by the Court since the JBC is not a party, much less, a
complaining party in this case. The JBC asserts that it has legal interest in
the matter of litigation because it will be adversely affected by the judgment
or decision in the present case, having submitted the controverted shortlists
of nominees to the OP. The JBC likewise claims that its intervention will not
unduly delay or prejudice the adjudication of the rights of the original parties
in the case. The JBC, thus, prays that it be allowed to intervene in the
instant case and to submit its complaint-in-intervention within 30 days from
receipt of notice allowing its intervention.
Intervening in a case is not a matter of right but of sound discretion of the
Court.53 The allowance or disallowance of a motion for intervention rests on
the sound discretion of the court after consideration of the appropriate
circumstances. It is not an absolute right. The statutory rules or conditions
for the right of intervention must be shown. The procedure to secure the
right to intervene is to a great extent fixed by the statute or rule, and
intervention can, as a rule, be secured only in accordance with the terms of
the applicable provision.54chanrobleslaw
It bears to point out that petitioners did not name the JBC as a respondent
in this case because petitioners precisely wanted the shortlists submitted by
the JBC upheld; they were on the same side. Petitioners already presented
the arguments for the constitutionality of and strict adherence by the
President to the separate shortlists submitted by the JBC for the six
simultaneous vacancies for Sandiganbayan Associate Justice. Significantly,
not one of the parties moved, and not even the Court motu proprio ordered,
to implead the JBC as an indispensable party herein.
The JBC avers in its Motion for Intervention that it has a legal interest in the
Petition at bar and its intervention will not unduly delay or prejudice the
adjudication of the rights of the original parties in the case.
The Court is unconvinced.
The instant Petition was filed before this Court on May 17, 2016, yet, the
JBC filed its Motion for Intervention only on November 26, 2016, more than
six months later, and even praying for an additional 30-day period from
notice to submit its complaint-in-intervention. Therefore, allowing the
intervention will undoubtedly delay the resolution of the case; and further
delay in the resolution of this case will only perpetuate the doubts on the
legitimacy of the appointments of respondents Musngi and Econg as
Sandiganbayan Associate Justices, to the detriment of said court, in
particular, and the entire justice system, in general. What is more, unless
promptly resolved by the Court, the instant case is capable of repetition
given the forthcoming vacancies in collegiate courts, particularly, the
Supreme Court.
Even if the intervention of the JBC will evidently cause delay in the
resolution of this case and prejudice to the original parties herein, are there
compelling substantive grounds to still allow the intervention of the JBC? The
JBC, through its own fault, did not provide the Court with a way to make
such a determination. The Revised Rules of Court explicitly requires that the
pleading-in-intervention already be attached to the motion for
intervention.55 The JBC could have already argued the merits of its case in
its complaint-in-intervention. However, the JBC not only failed to attach its
complaint-in-intervention to its Motion for Intervention, but it also did not
provide any explanation for such failure.
The Court can reasonably assume, as well, that the JBC is well-aware of
President Aquino's appointment of the six Sandiganbayan Associate Justices,
including respondents Musngi and Econg, on January 20, 2015. The six
newly-appointed Sandiganbayan Associate Justices all took their oaths of
office on January 25, 2016 at the Supreme Court Dignitaries Lounge.
Respondent Econg, with Justices Mendoza-Arcega and Trespeses, took their
oaths of office before Chief Justice Sereno, who is also the Chairperson of
the JBC; while respondent Musngi, with Justices R. Cruz and Miranda, took
their oaths of office before Supreme Court Associate Justice Jardeleza on the
same occasion and at the same venue. Despite its knowledge of the
66
appointment and assumption of office of respondents Musngi and Econg in
January 2016, the JBC did not take any action to challenge the same on the
ground that President Aquino appointed respondents Musngi and Econg in
disregard of the clustering of nominees by the JBC through the separate
shortlists for the six vacancies for Sandiganbayan Associate Justice. The
silence of the JBC all this while, for a period of eleven (11) months, can
already be deemed as acquiescence to President Aquino's appointment of
respondents Musngi and Econg.
For the foregoing reasons, the Court denies the Motion for Intervention of
the JBC.
There are several other new rules and practices adopted by the JBC
which the Court takes cognizance of as a separate administrative
matter.
The Court takes cognizance of several other matters covered by the new
rules and practices adopted by the JBC.
Item No. 1: The Court takes judicial notice of the fact that the JBC
promulgated on September 20, 2016 JBC No. 2016-1, "The Revised Rules of
the Judicial and Bar Council" (Revised JBC Rules), to take effect on October
24, 2016. Notably, the Revised JBC Rules explicitly states among its
Whereas clauses: ChanRoblesVirtualawlibrary
WHEREAS, the President of the Philippines may appoint only one from the
list of at least three nominees for every vacancy officially transmitted by the
Council to the Office of the President[.]
This is an obvious attempt by the JBC to institutionalize through the Revised
JBC Rules its newly-introduced practice of clustering nominees for
simultaneous vacancies in collegiate courts. The timing likewise is disturbing
as the instant case is pending resolution by this Court and with existing and
upcoming vacancies in several collegiate courts, i.e., the Sandiganbayan, the
Court of Appeals, and even this Court. As the Court has categorically
declared herein, the clustering by the JBC of nominees for simultaneous
vacancies in collegiate courts constitute undue limitation on and impairment
of the power of the President to appoint members of the Judiciary under the
1987 Constitution. It also deprives qualified nominees equal opportunity to
be considered for all vacancies, not just a specific one. Incorporating such
Whereas clause into the Revised JBC Rules will not serve to legitimize an
unconstitutional and unfair practice. Accordingly, such Whereas clause shall
not bind the President pursuant to the pronouncements of the Court in the
present Petition.
Item No. 2: The same Revised JBC Rules deleted a significant part of JBC-
009, the former JBC Rules, specifically, Rule 8, Section 1, which
provided:ChanRoblesVirtualawlibrary
Sec. 1. Due weight and regard to the recommendees of the Supreme Court.
- In every case involving an appointment to a seat in the Supreme Court,
the Council shall give due weight and regard to the recommendees of the
Supreme Court. For this purpose, the Council shall submit to the Court a list
of candidates for any vacancy in the Court with an executive summary of its
evaluation and assessment of each of them, together with all relevant
records concerning the candidates from whom the Court may base the
selection of its recommendees.
The deletion of this provision will likewise institutionalize the elimination by
Chief Justice Sereno of the voting by the Supreme Court Justices on who
among the applicants to the Supreme Court they believe are most
deserving.
Through Rule 8, Section 1 of JBC-009, the JBC had accorded through the
years due weight and regard to the recommendees of the Supreme Court for
the vacancies in said Court. The JBC had consistently complied with said rule
and furnished the Court in prior years with the list of candidates for
vacancies in the Court, together with an executive summary of the
evaluation and assessment of each candidate by the JBC and all relevant
documents concerning the candidates, for the incumbent Justices'
consideration, but stopped doing so ever since Chief Justice Sereno became
the Chairperson of the JBC. Although the JBC was not bound by the list of
recommendees of the Court, the JBC at least took the list under advisement.
The deletion of the foregoing provision from the Revised JBC Rules formally
institutionalizes Chief Justice Sereno's unilateral decision to abandon a well-
established rule, procedure, and practice observed by the Court, and
completely precludes the incumbent Supreme Court Justices from expressing
their views on the qualifications of the applicants to the vacancies in the
Supreme Court.
The Court calls attention to the fact that the JBC, in JBC-009 and the
Revised JBC Rules, invites the public to give any comment or opposition
against the applicants to the Judiciary.
According to Rule 1, Section 9 of JBC-009: ChanRoblesVirtualawlibrary
Sec. 9. Publication of list of applicants. The list of applicants or
recommendees which the Council shall consider in a given time shall be
published once in a newspaper of general circulation in the Philippines and
once in a newspaper of local circulation in the province or city where the
vacancy is located. The publication shall invite the public to inform the
Council within the period fixed therein of any complaint or
derogatory information against the applicant. x x x (Emphasis
supplied.)
A similar provision can be found in the Revised JBC Rules as Rule 1, Section
8:ChanRoblesVirtualawlibrary
67
Sec. 8. Publication of List of Applicants. The list of applicants who meet the
minimum qualifications and the Council's evaluative criteria prescribed in January 5, 1988 to June 29,
Marcelo B. Fernan+
Sections 2 and 3 of Rule 3 of these Rules, which the Council shall consider in 1988
a given time, shall be published once in two newspapers of general
circulation in the Philippines. May 6, 1988 to December
Andres R. Narvasa
5, 1991
The publication shall inform the public that any complaint or
opposition against applicants may be filed with the secretariat of the July 21, 1988 to November
Council. A copy of the list shall likewise be posted in the JBC website. Leo M. Medialdea+
4, 1992
(Emphasis supplied.)
Yet, Chief Justice Sereno, without consulting the Court en banc, has done
away with the settled practice of seeking the views of the incumbent Justices
January 16, 1992 to March
Ameurfina M. Herrera
on the applicants to the vacant positions in the Supreme Court. 30, 1992

To recall, Chief Justice Sereno had previously disregarded Rule 8, Section 1 December 21, 1993 to
Josue N. Bellosillo
of JBC-009, during the nomination process for the vacancy of Supreme November 13, 2003
Court Associate Justice following the retirement of Associate Justice Roberto
A. Abad on May 22, 2014. As Associate Justice Arturo D. Brion narrated in November 20, 2003 to July
his Separate Concurring Opinion in the Jardeleza Decision56: Jose C. Vitug
ChanRoblesVirtualawlibrary

14, 2004
[Of particular note in this regard is this Court's own experience when it failed
to vote for its recornmendees for the position vacated by retired Associate
July 21, 2004 to December
Justice Roberto A. Abad, because of a letter dated May 29, 2014 from the Artemio V. Panganiban
Chief Justice representing to the Court that "several Justices" requested that 19, 2005
the Court do away with the voting for Court recornmendees, as provided in
Section 1, Rule 8 of JBC-009. When subsequently confronted on who these January 1, 2006 to
Leonardo A. Quisumbing
Justices were, the Chief Justice failed to name anyone. As a result, November 5, 2009
applicants who could have been recommended by the Court (Jardeleza,
among them), missed their chance to be nominees.]57 December 11, 2006 to
Consuelo Y. Santiago
chanroblesvirtuallawlibrary

The Supreme Court Justices were also not given the opportunity to know the October 4, 2009
applicants to the succeeding vacant position in the Court (to which Associate
Justice Alfredo Benjamin S. Caguioa was eventually appointed) as Rule 8,
November 6, 2009 to May
Section 1 of JBC-009 was again not followed. Renato C. Corona
16, 2010
Item No. 3: The JBC currently has no incumbent Supreme Court Associate
Justice as consultant. By practice, since the creation of the JBC, the two (2) Antonio T. Carpio October 5, 2009 to May 16,
most senior Supreme Court Associate Justices had acted as consultants of 2010
the JBC. From 1987 until 2016, the following Associate Justices of this Court, September 10, 2012 to
during their incumbency, served as JBC consultants: ChanRoblesVirtualawlibrary

January 28, 2014

Supreme Court Associate
Period Presbiterio J. Velasco, Jr.  June 4, 2012 to August 23,
Justices as JBC Consultants
2012
December 10, 1987 to April September 10, 2012 to
Pedro L. Yap+ [August 2016]
13, 1988

68

Teresita J. Leonardo-De Castro June 4, 2012 to August 23,
2012
[February 1, 2014] to
[August 2016]58
Without notice, warning, or explanation to the Supreme Court En Banc, Chief
Justice Sereno recently unceremoniously relieved Supreme Court Associate
Justices Presbiterio J. Velasco, Jr. and Teresita J. Leonardo De Castro as JBC
consultants, and in their stead, the Chief Justice appointed retired Chief
Justices Hilario G. Davide, Jr., Artemio V. Panganiban, and Reynato S. Puno
as JBC consultants. The experience and wisdom of the three retired Chief
Justices are undisputed. However, practicality and prudence also dictate that
incumbent Associate Justices of the Court should be retained as JBC
consultants since their interest in the Judiciary is real, actual, and direct.
Incumbent Associate Justices of the Court are aware of the present state,
needs, and concerns of the Judiciary, and consultants from the Court, even if
they have no right to vote, have served, from the organization of the JBC, as
the only link to the supervisory authority of the Court over the JBC under
the 1987 Constitution. Moreover, Hon. Angelina Sandoval-Gutierrez already
sits as a regular member of the JBC representing the Retired Supreme Court
Justices, pursuant to Article VIII, Section 8(1) of the 1987 Constitution,
which expressly describes the composition of the JBC, as follows: ChanRoblesVirtualawlibrary
Sec. 8. (1) A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice
as Chairman, the Secretary of Justice, and a representative of the Congress
as Members, a representative of the Integrated Bar, a professor of law, a
retired Member of the Supreme Court, and a representative of the
private sector. (Emphasis supplied.)
These changes in settled rules and practices recently adopted by the JBC
under Chief Justice Sereno are disconcerting. There appears to be a
systematic move by the JBC, under Chief Justice Sereno to arrogate to itself
more power and influence than it is actually granted by the Constitution and
this Court, and at the same time, to ease out the Court from any legitimate
participation in the nomination process for vacancies in the Judiciary,
specifically, in the Supreme Court. This behooves the Court, through the
exercise of its power of supervision over the JBC, to take a closer look into
the new rules and practices of the JBC and ensure that these are in accord
with the 1987 Constitution, the pertinent laws, and the governmental
policies of transparency and accountability in the nomination process for
vacancies in the Judiciary.
Article VIII, Section 8 of the 1987 Constitution gives the JBC the principal
function of "recommending appointees to the Judiciary," but it also explicitly
states that the JBC shall be "under the supervision of the Court" and that
"[i]t may exercise such other functions and duties as the Supreme Court
may assign to it."
Book IV, Chapter 7, Section 38(2) of Executive Order No. 292, otherwise
known as The Administrative Code of the Philippines, defines supervision as
follows: ChanRoblesVirtualawlibrary
Sec. 38. Definition of Administrative Relationship. - Unless otherwise
expressly stated in the Code or in other laws defining the special
relationships of particular agencies, administrative relationships shall be
categorized and defmed as follows:
xxxx
chanRoblesvirtualLawlibrary
(2) Administrative Supervision. - (a) Administrative supervlSlon which shall
govern the administrative relationship between a department or its
equivalent and regulatory agencies or other agencies as may be provided by
law, shall be limited to the authority of the department or its equivalent to
generally oversee the operations of such agencies and to insure that they
are managed effectively, efficiently and economically but without
interference with day-to-day activities; or require the submission of reports
and cause the conduct of management audit, performance evaluation and
inspection to determine compliance with policies, standards and guidelines of
the department; to take such action as may be necessary for the proper
performance of official functions, including rectification of violations, abuses
and other forms of maladministration; and to review and pass upon budget
proposals of such agencies but may not increase or add to them;
(b) Such authority shall not, however, extend to: (1) appointments and
other personnel actions in accordance with the decentralization of personnel
functions under the Code, except when appeal is made from an action of the
appointing authority, in which case the appeal shall be initially sent to the
department or its equivalent, subject to appeal in accordance with law; (2)
contracts entered into by the agency in the pursuit of its objectives, the
review of which and other procedures related thereto shall be governed by
appropriate laws, rules and regulations; and (3) the power to review,
reverse, revise, or modify the decisions of regulatory agencies in the
exercise of their regulatory or quasi-judicial functions; and 
cralawlawlibrary
(c) Unless a different meaning is explicitly provided in the specific law
governing the relationship of particular agencies, the word "supervision"
shall encompass administrative supervision as defined in this paragraph.
The Court also provided the following definition of supervision in
the Jardeleza Decision59:
ChanRoblesVirtualawlibrary
As a meaningful guidepost, jurisprudence provides the definition and scope
of supervision. It is the power of oversight, or the authority to see that
subordinate officers perform their duties. It ensures that the laws and the
rules governing the conduct of a government entity are observed and
69
complied with. Supervising officials see to it that rules are followed, but they
themselves do not lay down such rules, nor do they have the discretion to SO ORDERED. chanroblesvirt

modify or replace them. If the rules are not observed, they may order the
work done or redone, but only to conform to such rules. They may not
prescribe their own manner of execution of the act. They have no discretion
on this matter except to see to it that the rules are followed. (Citation
omitted.)
"Supervision" is differentiated from "control," thus:ChanRoblesVirtualawlibrary

Supervisory power, when contrasted with control, is the power of mere

oversight over an inferior body; it does not include any restraining authority
over such body. Officers in control lay down the rules in the doing of an act.
If they are not followed, it is discretionary on his part to order the act
undone or re-done by his subordinate or he may even decide to do it
himself. Supervision does not cover such authority. Supervising officers
merely sees to it that the rules are followed, but he himself does not lay
down such rules, nor does he have the discretion to modify or replace them.
If the rules are not observed, he may order the work done or re-done to
conform to the prescribed rules. He cannot prescribe his own manner for the
doing of the act.60 (Citations omitted.)
The Court had recognized that "[s]upervision 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."61chanrobleslaw

In the exercise of its power of supervision over the JBC, the Court shall take
up the aforementioned Item Nos. 2 and 3 as a separate administrative
matter and direct the JBC to file its comment on the same.

WHEREFORE, premises considered, the Court DISMISSES the instant

Petition for Quo Warranto and Certiorari and Prohibition for lack of merit.
The Court DECLARES the clustering of nominees by the Judicial and Bar
Council UNCONSTITUTIONAL, and the appointments of respondents
Associate Justices Michael Frederick L. Musngi and Geraldine Faith A. Econg,
together with the four other newly-appointed Associate Justices of the
Sandiganbayan, as VALID. The Court further DENIES the Motion for
Intervention of the Judicial and Bar Council in the present Petition,
but ORDERS the Clerk of Court En Banc to docket as a separate
administrative matter the new rules and practices of the Judicial and Bar
Council which the Court took cognizance of in the preceding discussion
as Item No.2: the deletion or non-inclusion in JBC No. 2016-1, or the
Revised Rules of the Judicial and Bar Council, of Rule 8, Section 1 of JBC-
009; and Item No. 3: the removal of incumbent Senior Associate Justices of
the Supreme Court as consultants of the Judicial and Bar Council, referred to
in pages 35 to 40 of this Decision. The Court finally DIRECTS the Judicial
and Bar Council to file its comment on said Item Nos. 2 and 3 within thirty
(30) days from notice.

70
 hand, and on the other, the Supreme Court and the Juducial and Bar
Council over which the Court exercises general supervision and wields
specific powers including the assignment to it of other functions and
duties in addition to its principal one of recommending appointees to
the Judiciary, and the determination of its Members emoluments. 1

I. The Relevant Facts

The Resolution of the Court En Banc, handed down on May 14, 1998,
sets out the relevant facts and is for that reason hereunder reproduced
in full.

Referred to the Court En Banc by the Chief Justice are

A.M. No. 98-5-01-SC November 9, 1998
In Re Appointments dated March 30, 1998 of Hon. Mateo A.
Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional
Trial Court of Branch 62, Bago City and of Branch 24,
Cabananatuan City, respectively.
the appointments signed by His Excellency the
President under date of March 30, 1998 of Hon. Mateo
A. Valenzuela and Hon. Placido B. Vallarta as Judges
of the Regional Trial Court of Branch 62, Bago City and
of Branch 24, Cabanatuan City, respectively. The
appointments were received at the Chief Justice's
chambers on May 12, 1998. The referral was made in
view of the serious constitutional issue concerning said
appointments arising from the pertinent antecedents.

The issue was first ventilated at the meeting of the

Judicial and Bar Council on March 9, 1998. The
NARVASA, C.J.: meeting had been called, according to the Chief Justice
as Ex Officio Chairman, to discuss the question raised
The question presented for resolution in the administrative matter at by some sectors about the "constitutionality
bar is whether, during the period of the ban on appointments imposed of ** appointments" to the Court of Appeals,
by Section 15, Article VII of the, Constitution, the President is specifically, in light of the forthcoming presidential
nonetheless required to fill vacancies in the judiciary, in view of elections. Attention was drawn to Section 15, Article VII
Sections 4(1) and 9 of Article VIII. A corollary question is whether he of the Constitution reading as follows:
can make appointments to the judiciary during the period of the ban in
the interest of public service. Sec. 15. Two months immediately
before the next presidential elections
Resolution of the issues is needful; it will preclude a recurrence of any and up to the end of his, term, a
conflict in the matter of nominations and appointments to the Judiciary President or Acting President shall not
— as that here involved — between the Chief Executive, on the one make appointments, except temporary
appointments to executive positions

71
 when continued vacancies therein will
prejudice public service or endanger
public safety.
On the other hand, appointments to fill vacancies in the
Supreme Court during the period mentioned in the
provision just quoted could seemingly be justified by
another provision of the same Constitution Section 4 (1)
of Article VIII which states:
Sec. 4 (1) The Supreme Court shall be
composed of a Chief Justice and
fourteen Associate Justices. ** **. Any
vacancy shall be filled within ninety
days from the occurrence thereof.
Also pertinent although not specifically discussed is
Section 9 of the same Article VIII which provides that
for the lower courts, the President shall issue the
appointments — from a list of at least three nominees
prepared by the Council for every vacancy — within
ninety days from the submission of the list.
The view was then expressed by Senior Associate
Justice Florenz D. Regalado, Consultant of the Council,
who had been a member of the Committee of the
Executive Department and of the Committee on the
Judicial Department of the 1986 Constitutional
Commission, that on the basis of the commission's
records, the election ban had no application to
appointments to the Court of Appeals. Without any
extended discussion or any prior research and study on
the part of the other Members of the JBC, this
hypothesis was accepted, and was then submitted to
the President for consideration, together with the
Council's nominations for eight (8) vacancies in the
Court of Appeals.
On April 6, 1998 the Chief Justice received an official
communication from the Executive Secretary
transmitting the appointments of eight (8) Associate
Justices of the Court of Appeals all of which had been
duly signed on March 11, 1998 by His Excellency the
President. In view of the fact that all the appointments
had been sign on March 11, 1998 — the day
immediately before the commencement of the ban on
appointments imposed by Section 15, Article VII of the
Constitution — who impliedly but no less clearly
indicated that the President's Office did not agree with
the hypothesis that appointments to the Judiciary were
not covered by said ban, the Chief Justice resolved to
defer consideration of nominations for the vacancy in
the Supreme Court created by the retirement of
Associate Justice Ricardo J. Francisco, specially
considering that the Court had scheduled sessions in
Baquio City in April, 1998, that the legislature's
representatives to the JBC were occupied with the
forthcoming elections, and that a member of the
Council was going on a trip out of the country.
On May 4, 1998, the Chief Justice received a letter
from the President, addressed to the JBC, requesting
transmission of the "list of final nominees" for the
vacancy "no later than Wednesday, May 6, 1998" in
view of the duty imposed on him by the Constitution "to
fill up the vacancy ** within ninety (90) days from
February 13, 1998, the date the present vacancy
occurred.
On May 5, 1998, Secretary of Justice Silvestre Bello III
requested the Chief Justice for "guidance" respecting
the expressed desire of the "regular members" of the
JBC to hold a meeting immediately to fill up the
vacancy in the Court in line with the President's letter of
May 4. The Chief Justice advised Secretary Bello to
await the reply that he was drafting to the President's
72
communication, a copy of which he would give the
Secreatary the following day.
On May 6, 1998 the Chief Justice sent his reply to the
President. He began by stating that no sessions had
been scheduled for the Council until after the May
elections for the reason that apparently the President's
Office did not share the view posited by the JBC that
Section 15, Article VII of the Constitution had no
application to JBC-recommendend appointments — the
appointments to the Court of Appeals having been all
uniformly dated March 11, 1998, before the
commencement of the prohibition in said provision —
thus giving rise to the "need to undertake further study
of the matter," prescinding from "the-desire to avoid any
constitutional isssue regarding the appointment to the
mentioned vacancy" and the further fact that "certain
senior members of the Court of Appeals ** (had) asked
the Council to reopen the question of their exclusion on
account of age from such (final) list." He closed with the
assurance that the JBC expected to deliberate on the
nominations "forthwith upon the completion of the
coming elections." The letter was delivered to
Malacañang at about 5 o'clock in the afternoon of May
6, 1998 and a copy given to the Office of Justice
Secretary Bello shortly before that hour.
It would appear, however, that the Justice Secretary
and the regular members of the Council had already
taken action without awaiting the Chief Justice's
promised response to the President's letter of May 4,
1998. On that day, May 6, 1998, they met at some
undisclosed place, deliberated, and came to an
agreement on a resolution which they caused to be
reduced to writing and thereafter signed. In that two-
page Resolution they drew attention to Section 4 (1),
Article VIII of the Constitution (omitting any mention of
Section 15, Article VII) as well as to the President's
letter of May 4 in which he "emphatically requested that
the required list of final nominees be submitted to him;"
and pointing out that the "Council would be remiss in its
duties" should it fail to submit said nominations, closed
with an appeal that the Chief Justice convene the
Council for the purpose "on May 7, 1998, at 2:00
o'clock in the afternoon." This Resolution they
transmitted to the Chief Justice together with their
letter, also dated May 6, in which they emphasized that
"we are pressed for time" again drawing attention to
Section 4 (1). Article VIII of the Constitution (and again
omitting any reference to Section 15, Article VII). They
ended their letter with the following intriguing
paragraph:
Should the Chief Justice be not
disposed to call for the meeting
aforesaid, the undersigned members
constituting the majority will be
constrained to convene the Council for
the purpose of complying with its
Constitutional mandate:
It seems evident, as just intimated, that the resolution
and the covering letter were deliberated on, prepared
and signed hours before delivery of the Chief Justice's
letter to the President and the Justice Secretary.
Since the Members of the Council appeared
determined to hold a meeting regardless of the Chief
Justice's wishes, the latter convoked the Council to a
meeting at 3 o'clock in the afternoon of May 7, 1998.
Present at the meeting were the Chief Justice,
Secretary Bello, ex officio member and the regular
members of the Council: Justice Regino Hermosisima.
Atty. Teresita Cruz Sison, Judge Cesar C. Peralejo.
Also present, on invitation of the Chief Justice, were
Justices Hilario G. Davide, Jr., Flerida Ruth P. Romero,
Josue N. Bellosillo, Reynato S. Puno, Jose C. Vitug,
Vicente V. Mendoza, Artemio V. Panganiban, Antonio
73
M. Martinez, Leonardo A. Quisumbing and Fidel P. and the JBC came to have the
Purisima. The Chief Justice reviewed the events impression that you did not share the
leading to the session, and after discussion, the body view expressed in the JBC minutes of
agreed to give the President time to answer the Chief March 9, 1998 that there is no election
Justice's letter of May 6, 1998. ban with regard to the JBC
appointments. Be this as it may, the
On May 7, 1998, the Chief Justice received a letter Court feels that there is a serious
from his Excellency the President in reply to his letter of question concerning the matter in light
May 6 (which the President said had been "received of the seemingly inconsistent provision
early this morning"). The President expressed the view of the Constitution. The first of these is
that "the election-ban provision (Article VII, Sec. Section 15, Article VII, which reads:
15) ** applies only to executive appointments or
appointments in the executive branch of government," Sec. 15. Two months immediately
the whole article being "entitled 'EXECUTIVE before the next presidential elections
DEPARTMENT."' He also observed that further proof of and up to the end of his term, a
his theory "is the fact that appointments to the judiciary President or Acting President shall not
have special, specific provisions applicable to them" make appointments, except temporary
(citing Article VIII, Sec, 4 (1) and Article VIII, Section 9. appointments to executive positions
In view thereof, he "firmly and respectfully when continued vacancies therein will
reiterate(d) ** (his) request for the Judicial and Bar prejudice public service or endanger
Council to transmit ** the final list of nominees for the public safety.
lone Supreme Court vacancy."
The second is Section 4 (1) of Article VIII which states:
The Chief Justice replied to the letter the following day,
May 8, 1998. Since the Chief Justice's letter explains Sec. 4 (1) The Supreme Court shall be composed of a
the issue quite, plainly, it is here quoted in full. Chief Justice and fourteen Associate Justices. ** ** Any
vacancy shall be filled within ninety days from the
Thank you for your letter of May 7, occurrence thereof.
1998, responding to my own
communication of May 6, 1998 which, I As you can see, Your Excellency, Section 15 of Article
would like to say reflects the collective VII imposes a direct prohibition on the President: he
sentiments of my colleagues in the "shall not make appointments" within the period
Supreme Court. Knowing how busy you mentioned, and since there is no specification of which
are, I will deal straightaway with the appointments are proscribed, the same may be
points set out in your letter. considered as applying to all appointments of any kind
and nature. This is the general rule then, the only
The dating of the latest appointments to exception being only as regards "executive positions"
the Court of Appeals was adverted to as to which "temporary appointments may be made
merely to explain how we in the Court within the interdicted period "when continued vacancies

74
therein will prejudice public service or endanger public
safety." As the exception makes reference only to
"executive" positions, it would seem that "judicial"
positions are covered by the general rule.
On the other hand, Section 4 (1) of Article VIII, requires
that any vacancy in the Supreme Court "shall be filled
within ninety days from the occurrence thereof." Unlike
Section 15 Article VII, the duty of filling the vacancy is
not specifically imposed on the President; hence, it may
be inferred that it is a duty shared by the Judicial and
Bar Council and the President.
Now, in view of the general prohibition in the first-
quoted provision, how is the requirement of filling in the
Court within ninety days to be construed? One
interpretation that immediately suggests itself is that
Section 4 (1), Article VIII is a general provision while
Section 15, Article VII is a particular one; that is to say,
normally, when there are no presidential elections —
which after all, occur only every six years — Section 4
(1), Article VIII shall apply: vacancies in the Supreme
Court shall be filled within 90 days; but when (as now)
there are presidential elections, the prohibition in
Section 15, Article VII comes into play: the President
shall not make any appointments. The reason for said
prohibition, according to Fr. J. Bernas, S.J., an authority
on Constitutional Law and himself a member of the
Constitutional Commission, is "(i)n order not to tie the
hands of the incoming President through midnight
appointments." Another interpretation is that put forth in
the Minutes of the JBC meeting of March 9, 1998.
I must emphasize that the validity of any appointment to
the Supreme Court at this time hinges on the correct
interpretation of the foregoing sections of the
Constitution. On account of the importance of the
question, I consulted the Court about it but, as I stated
in my letter of May 6, 1998, "it declined to take any
position, since obviously there had not been enough
time to delivarate on the same ** (although it) did agree
that further study wass necessary **.
Since the question has actually come up, and its
importance cannot be gainsaid, and it is the Court that
is empowered under the Constitution to make an
authoritative interpretation of its (provisions) or of those
of any other law. I believe that the Court may now
perhaps consider the issue ripe for determination and
come to grips with it, to avoid any possible polemics
concerning the matter. However the Court resolves the
issue, no serious prejudice will be done. Should the
Court rule that the President is indeed prohibited to
make appointments in a presidential election year, then
any appointment Attempted within the proscribed
period would be void anyway. If the Court should
adjudge that the ban has no application to
appointments to the Supreme Court, the JBC may
submit nominations and the President may make the
appointment forthwith upon such adjudgment.
The matter is a delicate one, quite obviously, and must
thus be dealt with with utmost circumspection, to avoid
any question regarding the validity of an appointment to
the Court at this time, or any accusation of "midnight"
appointments or rash hasty action on the part of the
JBC or the President
In view thereof, and upon the advice and consent of the
Members of the Court, I am requesting the regular
Members of the Judicial Bar Council to defer action on
the matter until further device by the Court. I earnestly
make the same request of you, Your Excellency. I
assure you, however that as befits a matter in which the
Chief Executive has evinced much interest, my
colleagues and I will give it preferential and expeditious
attention and consideration. To this end, I intend to
convene the Court by next week, at the latest.
75
On May 8, 1998, again on the insistence of the regular
Members of the JBC, another meeting was held at
which were present the Chief Justice, the Secretary of
Justice and the three regular, Members above
mentioned, as well as Justices Hilario G. Davide, Jr.,
Flerida Ruth P. Romero, Josue N. Bellosillo, Reynato
S. Puno, Jose C. Vitug, Santiago M. Kapunan, Vicente
V. Mendoza, Artemio V. Panganiban, Antonio M.
Martinez, Leonardo A. Quisumbing and Fidel P.
Purisima. The meeting closed with a resolution that "the
constitutional provisions ** (in question) be referred to
the Supreme Court En Bancfor appropriate action,
together with the request that the Supreme Court
consider that the ninety-day period stated in Section 4
(1), Article VIII be suspended or interrupted in view of
the peculiar circumstances. **.
On May 12, 1998, the Chief Justice received from
Malacañang the appointments of two (2) Judges of the
Regional Trial Court mentioned above. This places on
the Chief Justice the obligation of acting thereon: i.e.,
transmitting the appointments to the appointees so that
they might take their oaths and assume the duties of
their office. The trouble is that in doing so, the Chief
Justice runs the risk of acting in a manner inconsistent
with the Constitution, for these appointments
appear prima facie, at least, to be expressly prohibited
by Section 15, Article VII of the Charter. This
circumstance, and the referral of the constitutional
question to the Court in virtue of the Resolution of May
8, 1998, supra operate to raise a justiciable issue
before the Court, an issue of sufficient importance to
warrant consideration and adjudication on the merits.
Accordingly, the Court Resolved to (1) CONSIDER the
case at bar an administrative matter and cause it to be
appropriately docketed: (2) to DIRECT the Clerk of
Court to immediately serve copies of this Resolution on
(a) the Office of the President, (b) the Office of the
Solicitor General. (c) Hon. Mateo A. Valenzuela, and
(d) Hon. Placido B. Vallarta (at their addresses
recorded in the Judicial and Bar Council); and (3) to
REQUIRE the Office of the President, the Office of the
Solicitor General, Hon. Mateo A. Valenzuela, and Hon.
Placido B. Vallarta to file their comments on this
Resolution within fifteen (15) days from notice thereof.
The Court further Resolved that (1) pending the
foregoing proceedings and the deliberation by the Court
on the matter, and until further orders, no action be
taken on the appointments of Hon. Valenzuela and
Hon. Vallarta which in the meantime shall be held in
abeyance and not given any effect and said appointees
shall refrain from taking their oath of office; and that (2)
exercising its power of supervision over the Judicial and
Bar Council, said Council and its ex officio and regular
Members herein mentioned be INSTRUCTED, as they
are herby INSTRUCTED, to defer all action on the
matter of nominations to fill up the lone vacancy in the
Supreme Court or any other vacancy until further
orders.
SO ORDERED.
II The Relevant Pleadings
In compliance with the foregoing Resolution, the following pleadings
and other documents were filed; to wit:
1) the manifestation dated May 28,
1998 of Hon. Mateo A.Valenzuela in
compliance with the Resolution of May
14, 1998;
2) the letter dated June 1, 1998 of Hon.
Placido B. Vallarta in compliance with
the same Resolution;
76
 3) the "Comments" of Hon. Valenzuela
dated May 25, 1998;
4) his "Addendum to Comments" dated
June 8, 1998;
5) his "Explanation" dated June 8, 1998;
6) the letter of Hon. Vallarta dated June
8, 1998;
7) his letter dated June 16, 1998;
8) the "Explanation" of Hon.Valenzuela
dated July 17, 1998: and
9) the "Comment" of the Office of the
Solicitor General dated August 5, 1998.
A. Valenzuela's Assumption of Duty
as Judge on May 14, 1998
In his Manifestation dated May 28, 1998, Judge Valenzuela
alleged inter alia :
** that on May 14, 1998, he took his Oath of Office as
Judge, RTC Branch 62, Bago City, before Hon.
Anastacio C. Rufon, Judge RTC, Branch 52, Bacolod
City, pursuant to the Appointment dated March 30,
1998, (and) he also, reported for duty as such before
said RTC Branch 62, Bago City ** (and that he did so)
"faultless!y," ** without knowledge of the on-going
deliberations on the matter.
At that time, the originals of the appointments of Messrs. Valenzuela
and Vallarta, dated March 30, 1998 — addressed to them "Thru: the
Chief Justice, Supreme Court of the Philippines, Manila, and which had
been sent to and received by the Chief Justice on May 12, 1998  — 2
were still in the latter's Office, and had not been transmitted to them
precisely because of the serious issue concerning the validily of their
appointments. Indeed, one of the directives in the Resolution of May
14, 1998 was that "pending ** deliberatibn by the Court on the matter,
and until further orders, no action be taken on the
appointments ** which in the meantime shall be held in abeyance and
not given any effect **." For this reason, by Resolution dated June 23,
1998, the Court required Valenzuela to EXPLAIN by what authority he
had taken his oath on May 14, 1998 as Judge of Branch 62 of the RTC
at Bago City. In his "Explanation" dated July 17, 1998. Valenzuela
stated that he did so because on May 7, 1998 he "received from
Malacañang copy of his appointment **" which contained the following
direction: "By virtue hereof, you may qualify and enter upon the
performance of the duties of the office **."
The Court then deliberated on the pleadings and documents above
mentioned, in relation to the facts and circumstances on record and
thereafter Resolved to promulgate the following opinion.
III. The Relevant Constitutional Provisions
The provisons of the Constitution material to the inquiry at bar read as
follows:3
Sec. 15, Article VII:
Two months immediately before the next presidential
elections and up to the end of his term, a President or
Acting President shall not make appointments, except
temporary appointments to executive positions when
continued vacancies therein will prejudice public
service or endanger public safety.
Sec. 4 (1), Article VIII :
The Supreme Court shall be composed of a Chief
Justice and fourteen Associate Justices. It may sit en
77
 banc or in its discretion, in divisions of three, five, or
seven Members. Any vacancy shall be filled within
ninety days from the occurrence thereof.
Sec. 9, Article VIII :
The members of the Supreme Court and judges in
lower courts shall be appointed by the President from a
list of at least three nominees prepared by the Judicial
and Bar Council for, every vacancy. Such appointments
need no confirmation.
For the lower courts, the President shall issue the
appointments within ninety days from the submission of
the list.
IV.  The Court's View
The Court's view is that during the period stated in Section 15. Article
VII of the Constitution — "(t)wo months immediatey before the next
presidential elections and up to the end his term" — the President is
neither required to make appointments to the courts nor allowed to do
so; and that Sections 4(1) and 9 of Article VIII simply mean that the
President is required to fill vacancies in the courts within the time
frames provided therein unless prohibited by Section 15 of Article VII. It
is not noteworthy that the prohibition on appointments comes into
effect only once every six years.
V Intent of the Constitutional Commission
The journal of the Commission which drew up the present Constitution
discloses that the original proposal was to have an eleven-member
Supreme Court. Commissioner Eulogio Lerum wanted to increase the
number of Justices to fifteen. He also wished to ensure that that
number would not be reduced for any appreciable length of time (even
only temporarily), and to this end proposed that any vacancy. "must be
filled within two months from the date that the vacancy occurs." His
proposal to have a 15-member Court was not initially adopted.
Persisting however in his desire to make certain that the size of the
Court would not be decreased for any substantial period as a result of
vacancies, Lerum proposed the insertion in the provision (anent the
Court's membership) of the same mandate that "IN CASE OF ANY
VACANCY, THE SAME SHALL BE FILLED WITHIN TWO MONTHS
FROM OCCURRENCE THEREOF." He later agreed to suggestions to
make the period three, instead of two, months. As thus amended, the
proposal was approved.  As it turned out; however, the Commission
4
ultimately agreed on a fifteen-member Court.  Thus it was that the
5
section fixing the composition of the Supreme Court came to include a
command to fill up any vacancy therein within 90 days from its
occurrence.
In this connection, it may be pointed out that that instruction that any
"vacany shall be filled within ninety days" (in the last sentence of
Section 4 (1) of Article VIII) contrasts with the prohibition Section 15,
Article VII, which is couched in stronger negative language — that "a
President or Acting President shall not make appointments. . ."
The Commission later approved a proposal of Commissioner Hilario G.
Davide, Jr. (now a Member of this Court) to add to what is now Section
9 of Article VIII, the following paragraph: WITH RESPECT TO LOWER
COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT
WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST" (of
nominees by the Judicial and Bar Council to the President).  Davide
6
stated that his purpose was to provide a "uniform rule" for lower courts.
According to him, the 90-day period should be counted from
submission of the list of nominees to the President in view of the
possibility that the President might reject the list submitted to him and
the JBC thus need more time to submit a new one. 7
On the other hand, Section 15, Article VII — which in effect deprives
the President of his appointing power "two months immediately before
the next presidential elections up to the end of his term" — was
approved without discussion.
VI. Analysis of Provisions
78
Now, it appears that Section 15, Article VI is directed against two types
of appointments: (1) those made for buying votes and (2) those made
for partisan considerations. The first refers to those appointments
made within the two months preceding a Presidential election and are
similar to those which are declared elections offenses in the Omnibus
Election Code, viz.:
8
Sec. 261. Prohibited Acts. — The following shall be
guilty of an election offense:
(a) Vote-buying and vote-selling. — (1) Any person who
gives, offer or promises money or anything of
value gives or promises any office or employment,
franchise or grant, public or private, or makes or offers
to make an expenditure, directly or indirectly, or cause
an expenditure to be made to any person, association,
corporation, entity, or community in order to induce
anyone or the public in general to vote for or against
any candidate or withhold his vote in the election, or to
vote for or against any aspirant for the nomination or
choice of a candidate in a convention or similar
selection process of a political party.
xxx xxx xxx
(g) Appointment of new employees, creation of new
position, promotion, or giving salary increases. —
During the period of forty-five days before a regular
election and thirty days before a regular election and
thirty days before a special election, (1) any head,
official or appointing officer of a government office,
agency or instrumentality, whether national or local,
including government-owned or controlled
corporations, who appoints or hires any new employee,
whether provisional, temporary, or casual, or creates
and fills any new position, except upon prior authority of
the Commission. The Commission shall not grant the
authority sought unless, it is satisfied that the position
to be filled is essential to the proper functioning of the
office or agency concerned, and that the position shall
not be filled in a manner that mayinfluence the election.
The second type of appointments prohibited by Section 15, Article VII
consist of the so-called "midnight" appointments. In Aytona v.
Castillo,  it was held that after the proclamation of Diosdado Macapagal
9
as duly elected President, President Carlos P. Garcia, who was
defeated in his bid for reelection, became no more than a "caretaker"
administrator whose duty was to "prepare for the transfer of authority to
the incoming President." Said the Court:
The filling up of vacancies in important positions, if few,
and so spaced as to afford some assurance of
deliberate action and careful consideration of the need
for the appointment and the appointee's qualifications
may undoubtedly be permitted. But the issuance of 350
appointments in one night and the planned induction of
almost all of them a few hours before the inauguration
of the new President may, with some reason, be
regarded by the latter as an abuse of Presidential
prerogatives, the steps taken being apparently a mere
partisan effort to fill all vacant positions irrespective of
fitness and other conditions, and thereby to deprive the
new administration of an opportunity to make the
corresponding appointments.
As indicated, the Court recognized that there may well be
appointments to important positions which have to be made even after
the proclamations of a new President. Such appointments, so long as
they are "few and so spaced as to afford some assurance of deliberate
action and careful consideration of the need for the appointment and
the appointee's qualifications,"  can be made by the outgoing
10
President. Accordingly, several appointments made by President
Garcia, which were shown to have been well considered, were
upheld.11
Sec. 15, Article VII has a broader scope than the Aytona ruling. It may
not unreasonably be deemed to contemplate not only "midnight"
appointments — those made obviously for partisan reasons as shown
79
by their number and the time of their making — but also appointments
of the Presidential election.
On the other hand, the exception in the same Section 15 of Article VII
— allowing appointments to be made during the period of the ban
therein provided — is much narrower than that recognized in Aytona.
The exception allows only the making of temporary appointments
to executive positions when continued vacancies will prejudice public
service or endanger public safety. Obviously, the article greatly
restricts the appointing power of the President during the period of the
ban.
Considering the respectives reasons for the time frames for filling
vacancies in the courts and the restriction on the President's power of
appointments, it is this Court's view that, as a general proposition, in
case of conflict, the former should yield to the latter. Surely, the
prevention of vote-buying and similar evils outweighs the need for
avoiding delays in filling up of court vacancies or the disposition of
some cases. Temporary vacancies can abide the period of the ban
which, incidentally and as earlier pointed out, comes to exist only once
in every six years. Moreover, those occurring in the lower courts can
be filled temporarily by designation. But prohibited appointments are
long-lasting and permanent in their effects. They may, as earlier
pointed out, their making is considered an election offense.
To the contention that may perhaps be asserted, that Sections 4 (1)
and 9 of Article VIII should prevail over Section 15 of Article VII,
because they may be considered later expressions of the people when
they adopted the Constitution, it suffices to point out that the
Constitution must be construed in its entirely as one, single instrument.
To be sure, instances may be conceived of the imperative need for an
appointment, during the period of the ban, not only in the executive but
also in the Supreme Court. This may be the case should the
membership of the Court be so reduced that it will have no quorum, or
should the voting on a particularly important question requiring
expeditious resolution be evenly divided. Such a case, however, is
covered by neither Section 15 of Article VII nor Sections 4 (1) and 9 of
Article VIII.
12
VII. A Last Word
A final word, concerning Valenzuela's oath-taking and "reporting for
duty" as Presiding Judge of RTC Branch 62, Bago City, on May 14,
1998.  Standing practice is for the originals of all apointments to the
13
Judiciary — from the highest to the lowest court — to be sent by the
Office of the President to the Office of the Chief Justice, the
appointments being addressed to the appointee's "Thru: the Chief
Justice, Supreme Court Manila." It is the Clerk of Court of the Supreme
Court in the Chief Justice's behalf, who thereafter advises the
individual appointee's of their appointments and also of the date of
commencement of the pre-requisite orientation seminar to be
conducted by the Philippine Judicial Academy for new Judges. The
rationale of this procedure is salutary and readily precieved. The
procedure ensures the authenticity of the appointments, enables the
Court, particularly the Office of the Court Administrator, to enter in the
appropriate records all appointments to the Judiciary as well as other
relevant data such as the dates of qualification, the completion by the
appointee's of their pre-requisite orientation seminars, their assumption
of duty, etc.
The procedure also precludes the possibility, however remote of
Judges acting on spurious or otherwise defective appointments. It is
obviously not advisable, to say the least, for a Judge to take his oath of
office and enter upon the performance of his duties on the basis alone
of a document purporting to be a copy of his appointment coming from
Malacañang, the authenticity of which has not been verified from the
latter or the Office of the Court Administrator; or otherwise to begin
performing his duties as Judge without the Court Administrator
knowing of that fact. The undesirability of such a situation is illustrated
by the case of Judge Valenzuela who acted, with no little impatience or
rashness, on a mere copy of his supposed appointment without having
received any formal notice from this Court and without verifying the
authenticity of the appointment or the propriety of taking oath on the
basis thereof. Had he bothered to inquire about his appointment from
the Court Administrator's Office, he would havebeen informed of the
question concerning it and the Court's injunction.
VIII. Conclusion
80
The appointments of Messrs. Valenzuela and Vallarta on March 30,
1998 (transmitted to the Office of the Chief Justice on May 14, 998)
were unquestionably made during the period of the ban. Consequently,
they come within the operation of the first prohibition relating to
appointments which are considered to be for the purpose of buying
votes or influencing the election. While the filling of vacancies in the
judiciary is undoubtedly in the public interest, there is no showing in
this case of any compelling reason to justify the making of the
appointments during the period of the ban. On the other hand, as
already discussed, there is a strong public policy for the prohibition
against appointments made within the period of the ban. 

In view of the foregoing considerations, the Court Resolved to

DECLARE VOID the appointments signed by His Excellency the
President under date of March 30, 1998 of Hon. Mateo A. Valenzuela
and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of
Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively
and to order them, forthwith on being served with notice of this
decision, to forthwith CEASE AND DESIST from discharging the office
of Judge of the Courts to which they were respectively appointed on
March 30, 1998. This without prejudice to their being considered anew
by the Judicial and Bar Council for re-nomination to the same
positons. 

IT IS SO ORDERED.

81

G.R. No. 203372               June 16, 2015
ATTY. CHELOY E. VELICARIA-GARAFIL, Petitioner, 
vs.
OFFICE OF THE PRESIDENT and HON. SOLICITOR GENERAL
JOSE ANSELMO I. CADIZ, Respondents.
x-----------------------x
G.R. No. 206290
ATTY. DINDO G. VENTURANZA, Petitioner,  who was appointed Commissioner of the National Commission of
vs.
OFFICE OF THE PRESIDENT, LEILA M. DE LIMA, in her capacity
as the Secretary of the Department of Justice, CLARO A.
ARELLANO, in his capacity as the Prosecutor General, and
RICHARD ANTHONY D. FADULLON, in his capacity as the Officer-
in-Charge of the Office of the City Prosecutor of Quezon
City,Respondents.
x-----------------------x
G.R. No. 209138
IRMA A. VILLANUEVA and FRANCISCA B. ROSQUITA, Petitioners, 
vs.
COURT OF APPEALS and THE OFFICE OF THE
PRESIDENT, Respondents.
x-----------------------x
G.R. No. 212030
EDDIE U. TAMONDONG, Petitioner, 
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondent.
DECISION
CARPIO, J.:
The present consolidated cases involve four petitions: G.R. No.
203372 with Atty. Cheloy E. Velicaria-Garafil (Atty. Velicaria-Garafil),
who was appointed State Solicitor II at the Office of the Solicitor
General (OSG), as petitioner; G.R. No. 206290 with Atty. Dindo G.
Venturanza (Atty. Venturanza), who was appointed Prosecutor IV (City
Prosecutor) of Quezon City, as petitioner; G.R. No. 209138 with Irma
A. Villanueva (Villanueva), who was appointed Administrator for
Visayas of the Board of Administrators of the Cooperative
Development Authority (CDA), and Francisca B. Rosquita (Rosquita),
Indigenous Peoples (NCIP), as petitioners; and G.R. No. 212030 with
Atty. Eddie U. Tamondong (Atty. Tamondong), who was appointed
member of the Board of Directors of the Subic Bay Metropolitan
Authority (SBMA), as petitioner. All petitions question the
constitutionality of Executive Order No. 2 (EO 2) for being inconsistent
with Section 15, Article VII of the 1987 Constitution.
Petitioners seek the :reversal of the separate Decisions of the Court of
Appeals (CA) that dismissed their petitions and upheld the
constitutionality of EO 2. G.R. No. 203372 filed by Atty. Velicaria-
Garafil is a Petition for Review on Certiorari,  assailing the
1
82
Decision  dated 31 August 2012 of the CA in CA-G.R. SP No. 123662.
2
G.R. No. 206290 filed by Atty. Venturanza is a Petition for Review on
Certiorari,  assailing the Decision  dated 31 August 2012 and
3 4
Resolution  dated 12 March 2013 of the CA in CA-G.R. SP No.
5
123659. G.R. No. 209138 filed by Villanueva and Rosquita is a Petition
for Certiorari,  seeking to nullify the Decision  dated 28 August 2013 of
6 7
the CA in CA-G.R. SP Nos. 123662, 123663, and 123664.  Villanueva
8
and Rosquita filed a Petition-in-Intervention in the consolidated cases
before the CA. G.R. No. 212030 is a Petition for Review on
Certiorari,  assailing the Decision  dated 31 August 2012 of the CA in
9 10
CAG.R. SP No. 123664 and Resolution  dated 7 April 2014 of the CA
11
in CAG.R. SP Nos. 123662, 123663, and 123664. 12
Facts of the Cases
Prior to the conduct of the May 2010 elections, then President Gloria
Macapagal-Arroyo (President Macapagal-Arroyo) issued more than
800 appointments to various positions in several government offices.
The ban on midnight appointments in Section 15, Article VII of the
1987 Constitution reads:
Two months immediately before the next presidential elections and up
to the end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions
when continued vacancies therein will prejudice public service or
endanger public safety.
Thus, for purposes of the 2010 elections, 10 March 2010 was the cutoff
date for valid appointments and the next day, 11 March 2010, was the
start of the ban on midnight appointments. Section 15, Article VII of the
1987 Constitution recognizes as an exception to the ban on midnight
appointments only "temporary appointments to executive positions
when continued vacancies therein will prejudice public service or
endanger public safety." None of the petitioners claim that their
appointments fall under this exception.
Appointments
G.R. No. 203372
The paper evidencing Atty. Velicaria-Garafil's appointment as State
Solicitor II at the OSG was dated 5 March 2010.  There was a
13
transmittal letter dated 8 March 2010 of the appointment paper from
the Office of the President (OP), but this transmittal letter was received
by the Malacañang Records Office (MRO) only on 13 May 2010. There
was no indication as to the OSG's date of receipt of the appointment
paper. On 19 March 2010, the OSG's Human Resources Department
called up Atty. Velicaria-Garafil to schedule her oath-taking. Atty.
Velicaria-Garafil took her oath of office as State Solicitor II on 22 March
2010 and assumed her position on 6 April 2010.
G.R. No. 206290
The paper evidencing Atty. Venturanza's appointment as Prosecutor IV
(City Prosecutor) of Quezon City was dated 23 February 2010.  It is
14
apparent, however, that it was only on 12 March 2010 that the OP, in a
letter dated 9 March 2010, transmitted Atty. Venturanza's appointment
paper to then Department of Justice (DOJ) Secretary Alberto C.
Agra.  During the period between 23 February and 12 March 2010,
15
Atty. Venturanza, upon verbal advice from Malacañang of his
promotion but without an official copy of his appointment paper,
secured clearances from the Civil Service Commission
(CSC),  Sandiganbayan,  and the DOJ.  Atty. Venturanza took his
16 17 18
oath of office on 15 March 2010, and assumed office on the same day.
G.R. No. 209138
The paper evidencing Villanueva's appointment as Administrator for
Visayas of the Board of Administrators of the CDA was dated 3 March
2010.  There was no transmittal letter of the appointment paper from
19
the OP. Villanueva took her oath of office on 13 April 2010.
The paper evidencing Rosquita's appointment as Commissioner,
representing Region I and the Cordilleras, of the NCIP was dated 5
March 2010.  Like Villanueva, there was no transmittal letter of the
20
83
 appointment paper from the OP. Rosquita took her oath of office on 18
March 2010. G.R. No. 212030
The paper evidencing Atty. Tamondong's appointment as member,
representing the private sector, of the SBMA Board of Directors was
dated 1 March 2010.  Atty. Tamondong admitted that the appointment
21
On 30 June 2010, President Benigno S. Aquino III (President Aquino)
took his oath of office as President of the Republic of the Philippines.
On 30 July 2010, President Aquino issued EO 2 recalling, withdrawing,
and revoking appointments issued by President Macapagal-Arroyo
which violated the constitutional ban on midnight appointments.

paper was received by the Office of the SBMA Chair on 25 March The entirety of EO 2 reads:
2010  and that he took his oath of office on the same day.  He took
22 23

another oath of office on 6 July 2010 as "an act of extra caution EXECUTIVE ORDER NO. 2
because of the rising crescendo of noise from the new political
mandarins against the so-called 'midnight appointments."' 24
RECALLING, WITHDRAWING, AND REVOKING APPOINTMENTS
ISSUED BY THE PREVIOUS ADMINISTRATION IN VIOLATION OF
To summarize, the pertinent dates for each petitioner are as follows: THE CONSTITUTIONAL BAN ON MIDNIGHT APPOINTMENTS, AND
FOR OTHER PURPOSES.
G.R. No. Date of Date of Date of Date of Assumption
Appointment Transmittal Receipt by Oath of WHEREAS, Sec. 15, Article VII of the 1987 Constitution provides that
Letter Letter MRO Office  "Two months immediately before the next presidential elections and up
to the end of his term, a President or Acting President shall not make
203372 appointments, except temporary appointments to executive positions
22 March 6 April
when continued vacancies therein will prejudice public service or
(Atty. Velicaria- 5 March 2010 8 March 2010 13 May 2010
2010 2010endanger public safety."; WHEREAS, in the case of "In re:
Garafil) 
Appointments dated March 30, 1998 of Hon. Mateo Valenzuela and
206290 Hon. Vallarta as Judges of the Regional Trial Court of Branch 62 of
23 February 12 March 15 March 15 March
(Atty. 9 March 2010
2010 2010 2010 2010Bago City and Branch 24 of Cabanatuan City, respectively" (A.M. No.
Venturanza) 98-5-01-SC Nov. 9, 1998), the Supreme Court interpreted this
provision to mean that the President is neither required to make
209138 13 April appointments nor allowed to do so during the two months immediately
3 March 2010   4 May 2010  
(Villanueva) 2010 before the next presidential elections and up to the end of her term.
The only known exceptions to this prohibition are (1) temporary
209138 18 March
5 March 2010   13 May 2010   appointments in the executive positions when continued vacancies will
(Rosquita) 2010
prejudice public service or endanger public safety and in the light of the
212030 25 March recent Supreme Court decision in the case of De Castro, et al. vs. JBC
(Atty. 1 March 2010     2010 and   and PGMA, G.R. No. 191002, 17 March 2010, (2) appointments to the
Tamondong) 6 July 2010 Judiciary;

WHEREAS, Section 261 of the Omnibus Election Code provides that:

Issuance of EO 2

84
"Section 261. Prohibited Acts.-The following shall be guilty of an
election offense:
(g) Appointments of new employees, creation of new
position, promotion, or giving salary increases. - During
the period of forty-five days before a regular election
and thirty days before a special election.
(1) Any head, official or appointing officer of a
government office, agency or instrumentality, whether
national or local, including government-owned or
controlled corporations, who appoints or hires any new
employee, whether provisional, temporary or casual, or
creates and fills any new position, except upon prior
authority to the Commission. The Commission shall not
grant the authority sought unless it is satisfied that the
position to be filled is essential to the proper functioning
of the office or agency concerned, and that the position
shall not be filled in a manner that may influence the
election.
As an exception to the foregoing provisions, a new
employee may be appointed in the case of urgent need:
Provided, however, that notice of the appointment shall
be given to the Commission within three days from the
date of the appointment. Any appointment or hiring in
violation of this provision shall be null and void.
(2) Any government official who promotes or gives any
increase of salary or remuneration or privilege to any
government official or employee, including those in
government-owned or controlled corporations.";
WHEREAS, it appears on record that a number of appointments were
made on or about 10 March 2010 in complete disregard of the intent
and spirit of the constitutional ban on midnight appointment and which
deprives the new administration of the power to make its own
appointment;
WHEREAS, based on established jurisprudence, an appointment is
deemed complete only upon acceptance of the appointee;
WHEREAS, in order to strengthen the civil service system, it is
necessary to uphold the principle that appointments to the civil service
must be made on the basis of merit and fitness, it is imperative to
recall, withdraw, and revoke all appointments made in violation of the
letter and spirit of the law;
NOW, THEREFORE, I, BENIGNO S. AQUINO III, by virtue of the
powers vested in me by the Constitution as President of the
Philippines, do hereby order and direct that:
SECTION 1. Midnight Appointments Defined. - The following
appointments made by the former President and other appointing
authorities in departments, agencies, offices, and instrumentalities,
including government-owned or controlled corporations, shall be
considered as midnight appointments:
(a) Those made on or after March 11, 2010, including
all appointments bearing dates prior to March 11, 2010
where the appointee has accepted, or taken his oath, or
assumed public office on or after March 11, 2010,
except temporary appointments in the executive
positions when continued vacancies will prejudice
public service or endanger public safety as may be
determined by the appointing authority.
(b) Those made prior to March 11, 2010, but to take
effect after said date or appointments to office that
would be vacant only after March 11, 2010.
(c) Appointments and promotions made during the
period of 45 days prior to the May 10, 2010 elections in
violation of Section 261 of the Omnibus Election Code.
85
SECTION 2. Recall, Withdraw, and Revocation of Midnight
Appointments. Midnight appointments, as defined under Section 1, are
hereby recalled, withdrawn, and revoked. The positions covered or
otherwise affected are hereby declared vacant.
SECTION 3. Temporary designations. - When necessary to maintain
efficiency in public service and ensure the continuity of government
operations, the Executive Secretary may designate an officer-in-charge
(OIC) to perform the duties and discharge the responsibilities of any of
those whose appointment has been recalled, until the replacement of
the OIC has been appointed and qualified.
SECTION 4. Repealing Clause. - All executive issuances, orders, rules
and regulations or part thereof inconsistent with the provisions of this
Executive Order are hereby repealed or modified accordingly.
SECTION 5. Separability Clause. - If any section or provision of this
executive order shall be declared unconstitutional or invalid, the other
sections or provision not affected thereby shall remain in full force and
effect.
SECTION 6. Effectivity. - This Executive order shall take effect
immediately.
DONE in the City of Manila, this 30th day of July, in the year Two
Thousand and Ten.
By the President:
(Sgd.) PAQUITO N. OCHOA, JR.
Executive Secretary 25
(Sgd.) BENIGNO S. AQUINO III
Effect of the Issuance of EO 2
G.R. No. 203372
On 5 August 2010, Jose Anselmo Cadiz assumed office as Solicitor
General (Sol. Gen. Cadiz). On 6 August 2010, Sol. Gen. Cadiz
instructed a Senior Assistant Solicitor General to inform the officers
and employees affected by EO 2 that they were terminated from
service effective the next day.
Atty. Velicaria-Garafil reported for work on 9 August 2010 without any
knowledge of her termination. She was made to return the office-
issued laptop and cellphone, and was told that her salary ceased as of
7 August 2010. On 12 August 2010, Atty. Velicaria-Garafil was
informed that her former secretary at the OSG received a copy of a
memorandum on her behalf. The memorandum, dated 9 August 2010,
bore the subject "Implementation of Executive Order No. 2 dated 30
July 2010" and was addressed to the OSG's Director of Finance and
Management Service.
Atty. Velicaria-Garafil filed a petition for certiorari (G.R. No. 193327)
before this Court on 1 September 2010. The petition prayed for the
nullification of EO 2, and for her reinstatement as State Solicitor II
without loss of seniority, rights and privileges, and with full backwages
from the time that her salary was withheld. 26
G.R. No. 206290
On 1 September 2010, Atty. Venturanza received via facsimile
transmission an undated copy of DOJ Order No. 556. DOJ Order No.
556, issued by DOJ Secretary Leila M. De Lima (Sec. De Lima),
designated Senior Deputy State Prosecutor Richard Anthony D.
Fadullon (Pros. Fadullon) as Officer-in-Charge of the Office of the City
Prosecutor in Quezon City. In a letter to Sec. De Lima dated 15
September 2010, Atty. Venturanza asked for clarification of his status,
duties, and functions since DOJ Order No. 556 did not address the
same. Atty. Venturanza also asked for a status quo ante order to
prevent Pros. Fadullon ·from usurping the position and functions of the
City Prosecutor of Quezon City. Atty. Venturanza also wrote a letter to
President Aquino on the same day, and sought reaffirmation of his
promotion as City Prosecutor of Quezon City.
86
On 6 October 2010, Atty. Venturanza received a letter dated 25 August
2010 from Sec. De Lima which directed him to relinquish the office to
which he was appointed, and to cease from performing its functions.
Atty. Venturanza filed a Petition for Certiorari, Prohibition, Mandamus
with Urgent Prayer for Status Quo Ante Order, Temporary Restraining
Order and/or Preliminary Mandatory Injunction (G.R. No. 193 867)
before this Court on 14 October 2010. 27
G.R. No. 209138
The OP withheld the salaries of Villanueva and Rosquita on the basis
of EO 2. On 3 August 2010, Villanueva and Rosquita sought to
intervene in G.R. No. 192991.  On 1 October 2010, Executive
28
Secretary Paquito N. Ochoa, Jr. revoked Rosquita's appointment as
NCIP Commissioner.  On 13 October 2010, Villanueva and Rosquita
29
notified this Court that they wanted to intervene in Atty. Tamondong's
petition (G.R. No. 192987) instead.
G.R. No. 212030
Atty. Tamondong was removed from the SBMA Board of Directors on
30 July 2010. He filed a petition for prohibition, declaratory relief and
preliminary injunction with prayer for temporary restraining order (G.R.
No. 192987) before this Court on 9 August 2010. The petition prayed
for the prohibition of the implementation of EO 2, the declaration of his
appointment as legal, and the declaration of EO 2 as unconstitutional. 30
Referral to CA
There were several petitions  and motions for intervention  that
31 32
challenged the constitutionality of EO 2.
On 31 January 2012, this Court issued a Resolution referring the
petitions, motions for intervention, as well as various letters, to the CA
for further proceedings, including the reception and assessment of the
evidence from all parties. We defined the issues as follows:
1. Whether the appointments of the petitioners and intervenors
were midnight appointments within the coverage of EO 2;
2. Whether all midnight appointments, including those of
petitioners and intervenors, were invalid;
3 . Whether the appointments of the petitioners and intervenors
were made with undue haste, hurried maneuvers, for partisan
reasons, and not in accordance with good faith; and
4. Whether EO 2 violated the Civil Service Rules on
Appointment. 33
This Court gave the CA the authority to resolve all pending matters and
applications, and to decide the issues as if these cases were originally
filed with the CA.
Rulings of the CA
Even though the same issues were raised in the different petitions, the
CA promulgated separate Decisions for the petitions. The CA
consistently ruled that EO 2 is constitutional. The CA, however, issued
different rulings as to the evaluation of the circumstances of petitioners'
appointments. In the cases of Attys. Velicaria-Garafil and Venturanza,
the CA stated that the OP should consider the circumstances of their
appointments. In the cases of Villanueva, Rosquita, and Atty.
Tamondong, the CA explicitly stated that · the revocation of their
appointments was proper because they were midnight appointees.
G.R. No. 203372 (CA-G.R. SP No. 123662)
The CA promulgated its Decision in CA-G.R. SP No. 123662 on 31
August 2012. The CA ruled that EO 2 is not unconstitutional. However,
the CA relied on Sales v. Carreon  in ruling that the OP should
34
evaluate whether Atty. Velicaria-Garafil's appointment had extenuating
circumstances that might make it fall outside the ambit of EO 2.
The dispositive portion of the CA's Decision reads:
87
WHEREFORE, the petition for certiorari and mandamus [is] DENIED.
Executive Order No. 2, dated July 30, 2010, is NOT unconstitutional.
The issue on whether or not to uphold petitioner's appointment as
State Solicitor II at the OSG is hereby referred to the Office of the
President which has the sole authority and discretion to pass upon the
same.
SO ORDERED. 35
G.R. No. 212030 (CA-G.R. SP No. 123664)
On 31 August 2012, the CA promulgated its Decision in CA-G.R. SP
No. 123664. The dispositive portion reads as follows:
WHEREFORE, premises considered, the instant Petition is hereby
DISMISSED. Executive Order No. 2 is hereby declared NOT
UNCONSTITUTIONAL. Accordingly, the revocation of Atty. Eddie
Tamondong's appointment as Director of Subic Bay Metropolitan
Authority is VALID for being a midnight appointment.
SO ORDERED. 39
The Issues for Resolution
We resolve the following issues in these petitions: (1) whether
petitioners' appointments violate Section 15, Article VII of the 1987
Constitution, and (2) whether EO 2 is constitutional. Ruling of the Court
The petitions have no merit. All of petitioners' appointments are
midnight appointments and are void for violation of Section 15, Article
VII of the 1987 Constitution. EO 2 is constitutional. Villanueva and
Rosquita, petitioners in G.R. No. 209138, did not appeal the CA's
ruling under Rule 45, but instead filed a petition for certiorari under
Rule 65. This procedural error alone warrants an outright dismissal of
G.R. No. 209138. Even if it were correctly filed under Rule 45, the
petition should still be dismissed for being filed out of time.  There was
40
also no explanation as to why they did not file a motion for
reconsideration of the CA's Decision. Midnight Appointments
This ponencia and the dissent both agree that the facts in all these
cases show that "none of the petitioners have shown that their
appointment papers (and transmittal letters) have been issued (and
released) before the ban." The dates of receipt by the MRO, which in
41
these cases are the only reliable evidence of actual transmittal of the
appointment papers by President Macapagal-Arroyo, are dates clearly
falling during the appointment ban. Thus, this ponencia and the dissent
both agree that all the appointments in these cases are midnight
appointments in violation of Section 15, Article VII of the 1987
Constitution.
Constitutionality of EO 2
Based on prevailing jurisprudence, appointment to a government post
is a process that takes several steps to complete. Any valid
appointment, including one made under the exception provided in
Section 15, Article VII of the 1987 Constitution, must consist of the
President signing an appointee's appointment paper to a vacant office,
the official transmittal of the appointment paper (preferably through the
MRO), receipt of the appointment paper by the appointee, and
acceptance of the appointment by the appointee evidenced by his or
her oath of office or his or her assumption to office.
Aytona v. Castillo (Aytona)  is the basis for Section 15, Article VII of
42
the 1987 Constitution. Aytona defined "midnight or last minute"
appointments for Philippine jurisprudence.  President Carlos P. Garcia
1âwphi1
submitted on 29 December 1961, his last day in office, 350
appointments, including that of Dominador R. Aytona for Central Bank
Governor. President Diosdado P. Macapagal assumed office on 30
December 1961, and issued on 31 December 1961 Administrative
Order No. 2 recalling, withdrawing, and cancelling all appointments
made by President Garcia after 13 December 1961 (President
Macapagal's proclamation date). President Macapagal appointed
Andres V. Castillo as Central Bank Governor on 1 January 1962. This
Court dismissed Aytona's quo warranto proceeding against Castillo,
88
and upheld Administrative Order No. 2's cancellation of the "midnight
or last minute" appointments. We wrote:
x x x But the issuance of 350 appointments in one night and the
planned induction of almost all of them a few hours before the
inauguration of the new President may, with some reason, be regarded
by the latter as an abuse of Presidential prerogatives, the steps taken
being apparently a mere partisan effort to fill all vacant positions
irrespective of fitness and other conditions, and thereby to deprive the
new administration of an opportunity to make the corresponding
appointments.
x x x Now it is hard to believe that in signing 350 appointments in one
night, President Garcia exercised such "double care" which was
required and expected of him; and therefore, there seems to be force
to the contention that these appointments fall beyond the intent and
spirit of the constitutional provision granting to the Executive authority
to issue ad interim appointments.
Under the circumstances above described, what with the separation of
powers, this Court resolves that it must decline to disregard the
Presidential .Administrative Order No. 2, cancelling such "midnight" or
"last-minute" appointments.
Of course the Court is . aware of many precedents to the effect that
once an appointment has been issued, it cannot be reconsidered,
specially where the appointee has qualified. But none of them refer to
mass ad interim appointments (three hundred and fifty), issued in the
last hours of an outgoing Chief Executive, in a setting similar to that
outlined herein. On the other hand, the authorities admit of exceptional
circumstances justifying revocation and if any circumstances justify
revocation, those described herein should fit the exception.
Incidentally, it should be stated that the underlying reason for denying
the power to revoke after the appointee has qualified is the latter's
equitable rights. Yet it is doubtful if such equity might be successfully
set up in the present situation, considering the rush conditional
appointments, hurried maneuvers and other happenings detracting
from that degree of good faith, morality and propriety which form the
basic foundation of claims to equitable relief. The appointees, it might
be argued, wittingly or unwittingly cooperated with the stratagem to
beat the deadline, whatever the resultant consequences to the dignity
and efficiency of the public service. Needless to say, there are
instances wherein not only strict legality, but also fairness, justice and
righteousness should be taken into account. 43
During the deliberations for the 1987 Constitution, then Constitutional
Commissioner (now retired Supreme Court Chief Justice) Hilario G.
Davide, Jr. referred to this Court's ruling in Aytona and stated that his
proposal seeks to prevent a President, whose term is about to end,
from preempting his successor by appointing his own people to
sensitive positions.
MR. DAVIDE: The idea of the proposal is that about the end of the
term of the President, he may prolong his rule indirectly by appointing
people to these sensitive positions, like the commissions, the
Ombudsman, the judiciary, so he could perpetuate himself in power
even beyond his term of office; therefore foreclosing the right of his
successor to make appointments to these positions. We should realize
that the term of the President is six years and under what we had voted
on, there is no reelection for him. Yet he can continue to rule the
country through appointments made about the end of his term to these
sensitive positions.44
The 1986 Constitutional Commission put a definite period, or an
empirical value, on Aytona's intangible "stratagem to beat the
deadline," and also on the act of "preempting the President's
successor," which shows a lack of "good faith, morality and propriety."
Subject to only one exception, appointments made during this period
are thus automatically prohibited under the Constitution, regardless of
the appointee's qualifications or even of the President's motives. The
period for prohibited appointments covers two months before the
elections until the end of the President's term. The Constitution, with a
specific exception, ended the President's power to appoint "two months
immediately before the next presidential elections." For an appointment
to be valid, it must be made outside of the prohibited period or, failing
that, fall under the specified exception.
89
The dissent insists that, during the prohibited period, an appointment
should be viewed in its "narrow sense." In its narrow sense, an
appointment is not a process, but is only an "executive act that the
President unequivocally exercises pursuant to his discretion."  The
45
dissent makes acceptance of the appointment inconsequential. The
dissent holds that an appointment is void if the appointment is made
before the ban but the transmittal and acceptance are made after the
ban. However, the dissent holds that an appointment is valid, or
"efficacious," if the appointment and transmittal are made before the
ban even if the acceptance is made after the ban. In short, the dissent
allows an appointment to take effect during the ban, as long as the
President signed and transmitted the appointment before the ban, even
if the appointee never received the appointment paper before the ban
and accepted the appointment only during the ban.
The dissent's view will lead to glaring absurdities. Allowing the
dissent's proposal that an appointment is complete merely upon the
signing of an appointment paper and its transmittal, excluding the
appointee's acceptance from the appointment process, will lead to the
absurdity that, in case of non-acceptance, the position is considered
occupied and nobody else may be appointed to it. Moreover, an
incumbent public official, appointed to another public office by the
President, will automatically be deemed to occupy the new public office
and to have automatically resigned from his first office upon transmittal
of his appointment paper, even if he refuses to accept the new
appointment. This will result in chaos in public service.
Even worse, a President who is unhappy with an incumbent public
official can simply appoint him to another public office, effectively
removing him from his first office without due process. The mere
transmittal of his appointment paper will remove the public official from
office without due process and even without cause, in violation of the
Constitution.
The dissent's proferred excuse (that the appointee is not alluded to in
Section 15, Article VII) for its rejection of "acceptance by the
appointee" as an integral part of the appointment process ignores the
reason for the limitation of the President's power to appoint, which is .to
prevent the outgoing President from continuing to rule the country
indirectly after the end of his term. The 1986 Constitutional
Commission installed a definite cut-off date as an objective and
unbiased marker against which this once-in-every-six-years prohibition
should be measured.
The dissent's assertion that appointment should be viewed in its
narrow sense (and is not a process) only during the prohibited period is
selective and time-based, and ignores well-settled jurisprudence. For
purposes of complying with the time limit imposed by the appointment
ban, the dissent' s position cuts short the appointment process to the
signing of the appointment paper and its transmittal, excluding the
receipt of the appointment paper and acceptance of the appointment
by the appointee.
The President exercises only one kind of appointing power. There is no
need to differentiate the exercise of the President's appointing power
outside, just before, or during the appointment ban. The Constitution
allows the President to exercise the power of appointment during the
period not covered by the appointment ban, and disallows (subject to
an exception) the President from exercising the power of appointment
during the period covered by the appointment ban. The concurrence of
all steps in the appointment process is admittedly required for
appointments outside the appointment ban. There is no justification
whatsoever to remove acceptance as a requirement in the appointment
process for appointments just before the start of the appointment ban,
or during the appointment ban in appointments falling within the
exception. The existence of the appointment ban makes no difference
in the power of the President to appoint; it is still the same power to
appoint. In fact, considering the purpose of the appointment ban, the
concurrence of all steps in the appointment process must be strictly
applied on appointments made just before or during the appointment
ban.
In attempting to extricate itself from the obvious consequences of its
selective application, the dissent glaringly contradicts itself:
Thus, an acceptance is still necessary in order for the appointee to
validly assume his post and discharge the functions of his new office,
and thus make the appointment effective. There can never be an
90
instance where the appointment of an incumbent will automatically
result in his resignation from his present post and his subsequent
assumption of his new position; or where the President can simply
remove an incumbent from his current office by appointing him to
another one. I stress that acceptance through oath or any positive act
is still indispensable before any assumption of office may
occur.  (Emphasis added)
46
The dissent proposes that this Court ignore well-settled jurisprudence
during the appointment ban, but apply the same jurisprudence outside
of the appointment ban.
[T]he well-settled rule in our jurisprudence, that an appointment is a
process that begins with the selection by the appointing power and
ends with acceptance of the appointment by the appointee, stands. As
early as the 1949 case of Lacson v. Romero, this Court laid down the
rule that acceptance by the appointee is the last act needed to make
an appointment complete. The Court reiterated this rule in the 1989
case of Javier v. Reyes. In the 1996 case of Garces v. Court of
Appeals, this Court emphasized that acceptance by the appointee is
indispensable to complete an appointment. The 1999 case of
Bermudez v. Executive Secretary, cited in the ponencia, affirms this
standing rule in our jurisdiction, to wit:
"The appointment is deemed complete once the last act required of the
appointing authority has been complied with and its acceptance
thereafter by the appointee in order to render it effective."
47
The dissent's assertion creates a singular exception to the well-settled
doctrine that appointment is a process that begins with the signing of
the appointment paper, followed by the transmittal and receipt of the
appointment paper, and becomes complete with the acceptance of the
appointment. The dissent makes the singular exception that during the
constitutionally mandated ban on appointments, acceptance is not
necessary to complete the appointment. The dissent gives no reason
why this Court should make such singular exception, which is contrary
to the express provision of the Constitution prohibiting the President
from making appointments during the ban. The dissent's singular
exception will allow the President, during the ban on appointments, to
remove from office incumbents without cause by simply appointing
them to another office and transmitting the appointment papers the day
before the ban begins, appointments that the incumbents cannot
refuse because their acceptance is not required during the ban.
Adoption by this Court of the dissent's singular exception will certainly
wreak havoc on the civil service.
The following elements should always concur in the making of a valid
(which should be understood as both complete and effective)
appointment: (1) authority to appoint and evidence of the exercise of
the authority; (2) transmittal of the appointment paper and evidence of
the transmittal; (3) a vacant position at the time of appointment; and (4)
receipt of the appointment paper and acceptance of the appointment
by the appointee who possesses all the qualifications and none of the
disqualifications. The concurrence of all these elements should always
apply, regardless of when the appointment is made, whether outside,
just before, or during the appointment ban. These steps in the
appointment process should always concur and operate as a single
process. There is no valid appointment if the process lacks even one
step. And, unlike the dissent's proposal, there is no need to further
distinguish between an effective and an ineffective appointment when
an appointment is valid.
Appointing Authority
The President's exercise of his power to appoint officials is provided for
in the Constitution and laws.  Discretion is an integral part in the
48
exercise of the power of appointment.  Considering that appointment
49
calls for a selection, the appointing power necessarily exercises a
discretion. According to Woodbury, J., "the choice of a person to fill an
office constitutes the essence of his appointment," and Mr. Justice
Malcolm adds that an "[a]ppointment to office is intrinsically an
executive act involving the exercise of discretion." In Pamantasan ng
Lungsod ng Maynila v. Intermediate Appellate Court we held:
The power to appoint is, in essence, discretionary. The appointing
power has the right of choice which he may exercise freely according
to his judgment, deciding for himself who is best qualified among those
91
who have the necessary qualifications and eligibilities. It is a
prerogative of the appointing power x x x x
Indeed, the power of choice is the heart of the power to appoint.
Appointment involves an exercise of discretion of whom to appoint; it is
not a ministerial act of issuing appointment papers to the appointee. In
other words, the choice of the appointee is a fundamental component
of the appointing power.
Hence, when Congress clothes the President with the power to appoint
an officer, it (Congress) cannot at the same time limit the choice of the
President to only one candidate. Once the power of appointment is
conferred on the President, such conferment necessarily carries the
discretion of whom to appoint. Even on the pretext of prescribing the
qualifications of the officer, Congress may not abuse such power as to
divest the appointing authority, directly or indirectly, of his discretion to
pick his own choice. Consequently, when the qualifications prescribed
by Congress can only be met by one individual, such enactment
effectively eliminates the discretion of the appointing power to choose
and constitutes an irregular restriction on the power of appointment.
Transmittal
It is not enough that the President signs the appointment paper. There
should be evidence that the President intended the appointment paper
to be issued. It could happen that an appointment paper may be dated
and signed by the President months before the appointment ban, but
never left his locked drawer for the entirety of his term. Release of the
appointment paper through the MRO is an unequivocal act that
signifies the President's intent of its issuance.
The MRO was created by Memorandum Order No. 1, Series of 1958,
Governing the Organization and Functions of the Executive Office and
General Matters of Procedure Therein. Initially called the Records
Division, the MRO functioned as an administrative unit of the Executive
Office. Memorandum Order No. 1 assigned the following functions:
a. Receive, record and screen all incoming correspondence,
telegrams, documents and papers, and
(1) Forward those of a personal and unofficial nature to
the President's Private Office; and
(2) Distribute those requiring action within the Office or
requiring staff work prior to presentation to the
President to the appropriate units within the Office.
b. Follow up on correspondence forwarded to entities outside
the Office to assure that prompt replies are made and copies
thereof furnished the Office.
c. Dispatch outgoing correspondence and telegrams.
d. Have custody of records of the Office, except personal
papers of the President, and keep them in such condition as to
meet the documentary and reference requirements of the
50
Office.
e. Keep and maintain a filing and records system for acts,
memoranda, orders, circulars, correspondence and other
documents affecting the Office for ready reference and use.
f. Issue certified true copies of documents on file in the Division
m accordance with prevailing standard operating procedure.
g. Keep a separate record of communications or documents of
confidential nature.
h. Have custody of the Great Seal of the Republic of the
Philippines.
i. Prepare and submit to the approving authority, periodic
disposition schedules of non-current records which have no
historical, legal and/or claim value.
92
j. With the approval of the Executive Secretary, assist other
offices in the installation or improvement of their records
management system; and
k. Give instructions or deliver lectures and conduct practical
training to in-service trainees from other offices and to students
from educational institutions on records management. 51
The Records Division was elevated to an Office in 1975, with
the addition of the following functions:
1. Maintain and control vital documents and essential
records to support the functions of the OP in its day to
day activities;
2. Monitor the flow of communications' from their time
of receipt up to their dispatch;
3. Service the documentary, information and reference
requirements of top management and action officers of
the OP, and the reference and research needs of other
government agencies and the general public;
4. Ensure the proper storage, maintenance, protection
and preservation of vital and presidential documents,
and the prompt disposal of obsolete and valueless
records;
5. Effect the prompt publication/dissemination of laws,
presidential issuances and classified documents;
6. Provide computerized integrated records
management support services for easy reference and
retrieval of data and information; and
7. To be able to represent the OP and OP officials in
response to Subpoena Duces Tecum and
Testificandum served by courts and other investigating
bodies. 52
For purposes of verification of the appointment paper's existence and
authenticity, the appointment paper must bear the security marks (i.e.,
handwritten signature of the President, bar code, etc.) and must be
accompanied by a transmittal letter from the MRO.
The testimony of Mr. Mariani to Dimaandal, Director IV of the MRO,
underscores the purpose of the release of papers through his office.
Q: What are the functions of the MRO?
A: The MRO is mandated under Memorandum Order No. 1, series of
1958 to (1) receive, record, and screen all incoming correspondence,
telegrams, documents, and papers; (2) follow up on correspondence
forwarded to entities outside the Office of the President ("OP") to
assure that prompt replies are made and copies thereof furnished the
OP; (3) timely dispatch all outgoing documents and correspondence;
(4) have custody of records of the OP, except personal papers of the
President, and keep them in such condition as to meet the
documentary and reference requirements of the Office; (5) keep and
maintain a filing and records system for Acts, Memoranda, Orders,
Circulars, correspondence, and other pertinent documents for ready
reference and use; ( 6) issue certified copies of documents on file as
requested and in accordance with prevailing standard operating
procedures; (7) maintain and control vital documents and essential
records to support the OP in its day-to-day activities; (8) monitor the
flow of communications from the time of receipt up to their dispatch;
and (9) other related functions.
xxxx
Q: As you previously mentioned, the MRO is the custodian of all
documents emanating from Malacañang pursuant to its mandate under
Memorandum Order No. 1, Series of 1958. Is the MRO required to
follow a specific procedure in dispatching outgoing documents?
93
A: Yes.
Q: Is this procedure observed for the release of an appointment paper
signed by the President? A: Yes. It is observed for the release of the
original copy of the appointment paper signed by the President.
Q: Can you briefly illustrate the procedure for the release of the original
copy of the appointment paper signed by the President?
A: After an appointment paper is signed by the President, the Office of
the Executive Secretary (OES) forwards the appointment paper
bearing the stamp mark, barcode, and hologram of the Office of the
President, together with a transmittal letter, to the MRO for official
release. Within the same day, the MRO sends the original copy of the
appointment paper together with the transmittal letter and a delivery
receipt which contains appropriate spaces for the name of the
addressee, the date released, and the date received by the addressee.
Only a photocopy of the appointment is retained for the MRO's official
file.
Q: What is the basis for the process you just discussed?
A: The Service Guide of the MRO.
xxxx
Q: What is the legal basis for the issuance of the MRO Service Guide,
if any?
A: The MRO Service Guide was issued pursuant to Memorandum
Circular No. 35, Series of 2003 and Memorandum Circular No. 133,
Series of 2007.
xxxx
Q: Do you exercise any discretion in the release of documents
forwarded to the MRO for transmittal to various offices?
A: No. We are mandated to immediately release all documents and
correspondence forwarded to us for transmittal.
Q: If a document is forwarded by the OES to the MRO today, when is it
officially released by the MRO to the department or agency
concerned?
A: The document is released within the day by the MRO if the
addressee is within Metro Manila. For example, in the case of the
appointment paper of Dindo Venturanza, the OES forwarded to the
MRO on March 12, 2010 his original appointment paper dated
February 23, 2010 and the transmittal letter dated March 9, 2010
prepared by the OES. The MRO released his appointment paper on
the same day or on March 12, 2010, and was also received by the DOJ
on March 12, 2010 as shown by the delivery receipt.
Q: What is the effect if a document is released by an office or
department within Malacañan without going through the MRO?
A: If a document does not pass through the MRO contrary to
established procedure, the MRO cannot issue a certified true copy of
the same because as far as the MRO is concerned, it does not exist in
our official records, hence, not an official document from the
Malacañang. There is no way of verifying the document's existence
and authenticity unless the document is on file with the MRO even if
the person who claims to have in his possession a genuine document
furnished to him personally by the President. As a matter of fact, it is
only the MRO which is authorized to issue certified true copies of
documents emanating from Malacañan being the official custodian and
central repository of said documents. Not even the OES can issue a
certified true copy of documents prepared by them.
Q: Why do you say that, Mr. Witness?
A: Because the MRO is the so-called "gatekeeper" of the Malacañang
Palace. All incoming and outgoing documents and correspondence
must pass through the MRO. As the official custodian, the MRO is in
charge of the official release of documents.
94
Q: What if an appointment paper was faxed by the Office of the
Executive Secretary to the appointee, is that considered an official
release by the MRO?
A: No. It is still the MRO which will furnish the original copy of the
appointment paper to the appointee. That appointment paper is, at
best, only an "advanced copy."
Q: Assuming the MRO has already received the original appointment
paper signed by the President together with the transmittal letter
prepared by the OES, you said that the MRO is bound to transmit
these documents immediately, that is, on the same day?
A: Yes.
Q: Were there instances when the President, after the original
appointment paper has already been forwarded to the MRO, recalls the
appointment and directs the MRO not to transmit the documents?
A: Yes, there were such instances.
Q: How about if the document was already transmitted by the MRO,
was there any instance when it was directed to recall the appointment
and retrieve the documents already transmitted? A: Yes, but only in a
few instances. Sometimes, when the MRO messenger is already in
transit or while he is already in the agency or office concerned, we get
a call to hold the delivery. Q: You previously outlined the procedure
governing the transmittal of original copies of appointment papers to
the agency or office concerned. Would you know if this procedure was
followed by previous administrations?
A: Yes. Since I started working in the MRO in 1976, the procedure has
been followed. However, it was unusually disregarded when the
appointments numbering more than 800 were made by then President
Arroyo in March 2010. The MRO did not even know about some of
these appointments and we were surprised when we learned about
them in the newspapers.
Q: You mentioned that then President Arroyo appointed more than 800
persons in the month of March alone. How were you able to determine
this number?
A: My staff counted all the appointments made by then President An-
oyo within the period starting January 2009 until June 2010.
Q: What did you notice, if any, about these appointments?
A: There was a steep rise in the number of appointments made by then
President Arroyo in the month of March 2010 compared to the other
months.
Q: Do you have any evidence to show this steep rise?
A: Yes. I prepared a Certification showing these statistics and the
graphical representation thereof.
Q: If those documents will be shown to you, will you be able to
recognize them?
A: Yes.
Q: I am showing you a Certification containing the number of
presidential appointees per month since January 2009 until June 2010,
and a graphical representation thereof. Can you go over these
documents and tell us the relation of these documents to the ones you
previously mentioned?
A: These are [sic] the Certification with the table of statistics I prepared
after we counted the appointments, as well as the graph thereof.
xxxx
Q: Out of the more than 800 appointees made in March 2010, how
many appointment papers and transmittal letters were released
through the MRO?
95
A: Only 133 appointment papers were released through the MRO.
Q: In some of these transmittal letters and appointment papers which
were not released through the MRO but apparently through the OES,
there were portions on the stamp of the OES which supposedly
indicated the date and time it was actually received by the agency or
office concerned but were curiously left blank, is this regular or
irregular?
A: It is highly irregular.
Q: Why do you say so?
A: Usually, if the document released by the MRO, the delivery receipt
attached to the transmittal letter is filled out completely because the
dates when the original appointment papers were actually received are
very material. It is a standard operating procedure for the MRO
personnel to ask the person receiving the documents to write his/her
name, his signature, and the date and time when he/she received it.
Q: So, insofar as these transmittal letters and appointment papers
apparently released by the OES are concerned, what is the actual date
when the agency or the appointee concerned received it?
A: I cannot answer. There is no way of knowing when they were
actually received because the date and time were deliberately or
inadvertently left blank.
Q: Can we say that the date appearing on the face of the transmittal
letters or the appointment papers is the actual date when it was
released by the OES?
A: We cannot say that for sure. That is why it is very unusual that the
person who received these documents did not indicate the date and
time when it was received because these details are very important.
The MRO's exercise of its mandate does not prohibit the President or
the Executive Secretary from giving the appointment paper directly to
the appointee. However, a problem may arise if an appointment paper
is not coursed through the MRO and the appointment paper is lost or
the appointment is questioned. The appointee would then have to
prove that the appointment paper was directly given to him.
Dimaandal's counsel made this manifestation about petitioners'
appointment papers and their transmittal:
Your Honors, we respectfully request for the following markings to be
made:
1. A) The Transmittal Letter pertinent to the appointment of
petitioner DINDO VENTURANZA dated March 9, 2010 as
Exhibit "2-F" for the respondents;
B) The delivery receipt attached in front of the letter
bearing the date March 12, 2010 as Exhibit "2-F-l";
C) The Appointment Paper of DINDO VENTURANZA
dated February 23, 2010 as Exhibit "2-G" for the
respondents;
2. A) The Transmittal Letter pertinent to the appointment of
CHELOY E. VELICARIA-GARAFIL turned over to the MRO on
May 13, 2010 consisting of seven (7) pages as Exhibits "2-H,"
"2-H-l," "2-H-2," "2-H-3," "2-H-4," "2-H-5," and "2-H-6"
respectively for the respondents;
i. The portion with the name "CHELOY E.
VELICARIAGARAFIL" as "State Solicitor II,
Office of the Solicitor General" located on the
first page of the letter as Exhibit "2-H-7;"
ii. The portion rubber stamped by the Office of
53
the Executive Secretary located at the back of
the last page of the -letter showing receipt by
the DOJ with blank spaces for the date and
96
 time when it was actually received as Exhibit "2-
H-8;"
B) The Appointment Paper of CHELOY E. VELICARIA-
GARAFIL dated March 5, 2010 as Exhibit "2-I" for the
respondents;
xxxx
4. A) The Transmittal Letter pertinent to the appointment of
EDDIE U. TAMONDONG dated 8 March 2010 but turned over
to the MRO only on May 6, 2010 consisting of two (2) pages as
Exhibits "2-L" and "2-L-l" respectively for the respondents;
(a) The portion with the name "EDDIE U.
TAMONDONG" as "Member, representing the Private
Sector, Board of Directors" as Exhibit "2-L-2";
(b) The portion rubber stamped by the Office of the
Executive Secretary located at the back of the last page
of the letter showing receipt by Ma. Carissa O.
Coscuella with blank spaces for the date and time when
it was actually received as Exhibit "2-L-3";
xxxx
8. A) The Transmittal Letter pertinent to the
appointments of x x x FRANCISCA BESTOYONG-
ROSQUITA dated March 8, 2010 but turned over to the
MRO on May 13, 2010 as Exhibit "2-T" for the
respondents;
xxxx
(c) The portion with the name "FRANCISCA
BESTOYONGROSQUIT A" as "Commissioner,
Representing Region I and the Cordilleras" as Exhibit
"2-T-3·"
(d) The portion rubber stamped by the Office of the
Executive Secretary at the back thereof showing receipt
by Masli A. Quilaman of NCIP-QC on March 15, 2010
as Exhibit "2-T-4;"
xxxx
D) The Appointment Paper of FRANCISCA
BESTOYONGROSQUIT A dated March 5, 2010 as Exhibit "2-
W" for the respondents;
9. A) The Transmittal Letter pertinent to the appointment of
IRMA A. VILLANUEVA as Administrator for Visayas, Board of
Administrators, Cooperative Development Authority,
Department of Finance dated March 8, 2010 as Exhibit "2-X"
for the respondents;
(a) The portion rubber stamped by the Office of the
Executive Secretary at the back thereof showing receipt
by DOF with blank spaces for the date and time when it
was actually received as Exhibit "2-X-1 ;"
B) The Appointment Paper of IRMA A. VILLANUEVA dated
March 3, 2010 as Exhibit "2-Y" for the respondents. 54
The testimony of Ellenita G. Gatbunton, Division Chief of File
Maintenance and Retrieval Division of the MRO, supports Dimaandal's
counsel's manifestation that the transmittal of petitioners' appointment
papers is questionable.
Q: In the case of Cheloy E. Velicaria-Garafil, who was appointed as
State Solicitor II of the Office of the Solicitor General, was her
appointment paper released through the MRO?
A: No. Her appointment paper dated March 5, 2010, with its
corresponding transmittal letter, was merely turned over to the MRO on
May 13, 2010. The transmittal letter that was turned over to the MRO
was already stamped "released" by the Office of the Executive
97
Secretary, but the date and time as to when it was actually received
were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the
MRO.
xxxx
Q: In the case of Eddie U. Tamondong, who was appointed as member
of the Board of Directors of Subic Bay Metropolitan Authority, was her
[sic] appointment paper released through the MRO?
A: No. His appointment paper dated March 1, 2010, with its
corresponding transmittal letter, was merely turned over to the MRO on
May 6, 2010. The transmittal letter that was turned over to the MRO
was already stamped "released" by the Office of the Executive
Secretary, but the date and time as to when it was actually received
were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the
MRO.
xxxx
Q: In the case of Francisca Bestoyong-Resquita who was appointed as
Commissioner of the National Commission on Indigenous Peoples,
representing Region 1 and the Cordilleras, was her appointment paper
released thru the MRO?
A: No. Her appointment paper dated March 5, 2010, with its
corresponding transmittal letter, was merely turned over to the MRO on
May 13, 2010. The transmittal letter that was turned over to the MRO
was already stamped "released" by the Office of the Executive
Secretary and received on March 15, 2010.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the
MRO.
xxxx
Q: In the case of Irma A. Villanueva who was appointed as
Administrator for Visayas of the Cooperative Development Authority,
was her appointment paper released thru the MRO?
A: No. Her appointment paper dated March 3, 2010, with its
corresponding transmittal letter, was merely turned over to the MRO on
May 4, 2010. The transmittal letter that was turned over to the MRO
was already stamped "released" by the Office of the Executive
Secretary, but the date and time as to when it was actually received
were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the
MR0. 55
The possession of the original appointment paper is not indispensable
to authorize an appointee to assume office. If it were indispensable,
then a loss of the original appointment paper, which could be brought
about by negligence, accident, fraud, fire or theft, corresponds to a loss
of the office.  However, in case of loss of the original appointment
56
paper, the appointment must be evidenced by a certified true copy
issued by the proper office, in this case the MRO. Vacant Position
An appointment can be made only to a vacant office. An appointment
cannot be made to an occupied office. The incumbent must first be
legally removed, or his appointment validly terminated, before one
could be validly installed to succeed him.57
To illustrate: in Lacson v. Romero,  Antonio Lacson (Lacson) occupied
58
the post of provincial fiscal of Negros Oriental. He was later nominated
98
and confirmed as provincial fiscal of Tarlac. The President nominated
and the Commission on Appointments confirmed Honorio Romero
(Romero) as provincial fiscal of Negros Oriental as Lacson's
replacement. Romero took his oath of office, but Lacson neither
accepted the appointment nor assumed office as provincial fiscal of
Tarlac. This Court ruled that Lacson remained as provincial fiscal of
Negros Oriental, having declined the appointment as provincial fiscal of
Tarlac. There was no vacancy to which Romero could be legally
appointed; hence, Romero's appointment as provincial fiscal ofNegros
Oriental vice Lacson was invalid.
The appointment to a government post like that of provincial fiscal to
be complete involves several steps. First, comes the nomination by the
President. Then to make that nomination valid and permanent, the
Commission on Appointments of the Legislature has to confirm said
nomination. The last step is the acceptance thereof by the appointee
by his assumption of office. The first two steps, nomination and
confirmation, constitute a mere offer of a post. They are acts of the
Executive and Legislative departments of the Government. But the last
necessary step to make the appointment complete and effective rests
solely with the appointee himself. He may or he may not accept the
appointment or nomination. As held in the case of Borromeo vs.
Mariano, 41 Phil. 327, "there is no power in this country which can
compel a man to accept an office." Consequently, since Lacson has
declined to accept his appointment as provincial fiscal of Tarlac and no
one can compel him to do so, then he continues as provincial fiscal of
Negros Oriental and no vacancy in said office was created, unless
Lacson had been lawfully removed as such fiscal of Negros Oriental. 59
Paragraph (b ), Section 1 of EO 2 considered as midnight
appointments those appointments to offices that will only be vacant on
or after 11 March 2010 even though the appointments are made prior
to 11 March 2010. EO 2 remained faithful to the intent of Section 15,
Article VII of the 1987 Constitution: the outgoing President is prevented
from continuing to rule the country indirectly after the end of his term.
Acceptance by the Qualified Appointee
Acceptance is indispensable to complete an appointment. Assuming
office and taking the oath amount to acceptance of the
appointment.  An oath of office is a qualifying requirement for a public
60
office, a prerequisite to the full investiture of the office.
61
Javier v. Reyes  is instructive in showing how acceptance is
62
indispensable to complete an appointment. On 7 November 1967,
petitioner Isidro M. Javier (Javier) was appointed by then Mayor
Victorino B. Aldaba as the Chief of Police of Malolos, Bulacan. The
Municipal Council confirmed and approved Javier's appointment on the
same date. Javier took his oath of office on 8 November 1967, and
subsequently discharged the rights, prerogatives, and duties of the
office. On 3 January 1968, while the approval of Javier's appointment
was pending with the CSC, respondent Purificacion C. Reyes (Reyes),
as the new mayor of Malolos, sent to the . CSC a letter to recall
Javier's appointment. Reyes also designated Police Lt. Romualdo F.
Clemente as Officer-in-Charge of the police department. The CSC
approved Javier's appointment as permanent on 2 May 1968, and
even directed Reyes to reinstate Javier. Reyes, on the other hand,
pointed to the appointment of Bayani Bernardo as Chief of Police of
Malolos, Bulacan on 4 September 1967. This Court ruled that Javier's
appointment prevailed over that of Bernardo. It cannot be said that
Bernardo accepted his appointment because he never assumed office
or took his oath.
Excluding the act of acceptance from the appointment process leads
us to the very evil which we seek to avoid (i.e., antedating of
appointments). Excluding the act of acceptance will only provide more
occasions to honor the Constitutional provision in the breach. The
inclusion of acceptance by the appointee as an integral part of the
entire appointment process prevents the abuse of the Presidential
power to appoint. It is relatively easy to antedate appointment papers
and make it appear that they were issued prior to the appointment ban,
but it is more difficult to simulate the entire appointment process up
until acceptance by the appointee.
Petitioners have failed to show compliance with all four elements of a
valid appointment. They cannot prove with certainty that their
appointment papers were transmitted before the appointment ban took
99
effect. On the other hand, petitioners admit that they took their oaths of
office during the appointment ban.
Petitioners have failed to raise any valid ground for the Court to declare
EO 2, or any part of it, unconstitutional. Consequently, EO 2 remains
valid and constitutional.
WHEREFORE, the petitions in G.R. Nos. 203372, 206290, and 212030
are DENIED, and the petition in G.R. No. 209138 is DISMISSED. The
appointments of petitioners Atty. Cheloy E. Velicaria-Garafil (G.R. No.
203372), Atty. Dindo G. Venturanza (G.R. No. 206290), Irma A.
Villanueva, and Francisca B. Rosquita (G.R. No. 209138), and Atty.
Eddie U. Tamondong (G.R. No. 212030) are declared VOID. We
DECLARE that Executive Order No. 2 dated 30 July 2010 is VALID
and CONSTITUTIONAL. SO ORDERED.
G.R. No. 191002               April 20, 2010
ARTURO M. DE CASTRO, Petitioner,  PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM;
vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA
MACAPAGAL - ARROYO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191032
JAIME N. SORIANO, Petitioner,  JR.; CONFEDERATION FOR UNITY, RECOGNITION AND
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191057
PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), Petitioner,  CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
A.M. No. 10-2-5-SC
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE
CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY,
ESTELITO P. MENDOZA, Petitioner,
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191149
JOHN G. PERALTA, Petitioner, 
vs.
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
ALFONSO V. TAN, JR.; NATIONAL UNION OF PEOPLE’S
LAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF THE
PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its
Immediate Past President, ATTY. ISRAELITO P. TORREON, and
the latter in his own personal capacity as a MEMBER of the
PHILIPPINE BAR; MITCHELL JOHN L. BOISER; BAGONG
ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P.
ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES,
ADVANCE-MENT OF GOVERNMENT EMPLOYEES (COURAGE)
CHAIRMAN FERDINAND GAITE; KALIPUNAN NG DAMAYANG
MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA
ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN NG
SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN)
CHAIRMAN KEN LEONARD RAMOS; TAYO ANG PAG-ASA
CONVENOR ALVIN PETERS; LEAGUE OF FILIPINO STUDENTS
(LFS) CHAIRMAN JAMES MARK TERRY LACUANAN RIDON;
NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP)
100
THE PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and
STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP)
CHAIRMAN MA. CRISTINA ANGELA GUEVARRA; WALDEN F.
BELLO and LORETTA ANN P. ROSALES; WOMEN TRIAL
LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by
YOLANDA QUISUMBING-JAVELLANA; BELLEZA ALOJADO
DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA. VERENA
KASILAG-VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE
JESUS; and GUINEVERE DE LEON; AQUILINO Q. PIMENTEL,
JR.;Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191342
ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern
Luzon), and ATTY. ROLAND B. INTING (IBPGovernor-Eastern
Visayas), Petitioners, 
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191420
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,  corresponding thereto in accordance with this decision.
vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA
MACAPAGAL-ARROYO, Respondents.
RESOLUTION
BERSAMIN, J.:
On March 17, 2010, the Court promulgated its decision, holding:  the Philippines-Davao del Sur (IBP-Davao del Sur, et al.); Christian
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R.
No. 191002 and G.R. No. 191149, and the petition for
mandamus in G.R. No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032
and G.R. No. 191342 for lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly,
directs the Judicial and Bar Council: 
(a) To resume its proceedings for the nomination of
candidates to fill the vacancy to be created by the
compulsory retirement of Chief Justice Reynato S.
Puno by May 17, 2010; 
(b) To prepare the short list of nominees for the position
of Chief Justice; 
(c) To submit to the incumbent President the short list
of nominees for the position of Chief Justice on or
before May 17, 2010; and 
(d) To continue its proceedings for the nomination of
candidates to fill other vacancies in the Judiciary and
submit to the President the short list of nominees
SO ORDERED.
Motions for Reconsideration
Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino
and Roland B. Inting (G.R. No. 191342), and Philippine Bar
Association (G.R. No. 191420), as well as intervenors Integrated Bar of
Robert S. Lim; Peter Irving Corvera; Bagong Alyansang Bayan and
others (BAYAN, et al.); Alfonso V. Tan, Jr.; the Women Trial Lawyers
Organization of the Philippines (WTLOP); Marlou B. Ubano; Mitchell
101
John L. Boiser; and Walden F. Bello and Loretta Ann P. Rosales
(Bello, et al.), filed their respective motions for reconsideration. Also
filing a motion for reconsideration was Senator Aquilino Q. Pimentel,
Jr., whose belated intervention was allowed.
We summarize the arguments and submissions of the various motions
for reconsideration, in the aforegiven order:
Soriano
1. The Court has not squarely ruled upon or addressed the
issue of whether or not the power to designate the Chief
Justice belonged to the Supreme Court en banc.
2. The Mendoza petition should have been dismissed, because
it sought a mere declaratory judgment and did not involve a
justiciable controversy.
3. All Justices of the Court should participate in the next
deliberations. The mere fact that the Chief Justice sits as ex
officio head of the JBC should not prevail over the more
compelling state interest for him to participate as a Member of
the Court.
Tolentino and Inting
1. A plain reading of Section 15, Article VII does not lead to an
interpretation that exempts judicial appointments from the
express ban on midnight appointments.
2. In excluding the Judiciary from the ban, the Court has made
distinctions and has created exemptions when none exists.
3. The ban on midnight appointments is placed in Article VII,
not in Article VIII, because it limits an executive, not a judicial,
power.
4. Resort to the deliberations of the Constitutional Commission
is superfluous, and is powerless to vary the terms of the clear
prohibition.
5. The Court has given too much credit to the position taken by
Justice Regalado. Thereby, the Court has raised the
Constitution to the level of a venerated text whose intent can
only be divined by its framers as to be outside the realm of
understanding by the sovereign people that ratified it.
6. Valenzuela should not be reversed.
7. The petitioners, as taxpayers and lawyers, have the clear
legal standing to question the illegal composition of the JBC.
Philippine Bar Association
1. The Court’s strained interpretation of the Constitution
violates the basic principle that the Court should not formulate
a rule of constitutional law broader than what is required by the
precise facts of the case.
2. Considering that Section 15, Article VII is clear and
straightforward, the only duty of the Court is to apply it. The
provision expressly and clearly provides a general limitation on
the appointing power of the President in prohibiting the
appointment of any person to any position in the Government
without any qualification and distinction.
3. The Court gravely erred in unilaterally ignoring the
constitutional safeguard against midnight appointments.
4. The Constitution has installed two constitutional safeguards:-
the prohibition against midnight appointments, and the creation
of the JBC. It is not within the authority of the Court to prefer
one over the other, for the Court’s duty is to apply the
safeguards as they are, not as the Court likes them to be.
102
5. The Court has erred in failing to apply the basic principles of
statutory construction in interpreting the Constitution.
6. The Court has erred in relying heavily on the title, chapter or
section headings, despite precedents on statutory construction
holding that such headings carried very little weight.
7. The Constitution has provided a general rule on midnight
appointments, and the only exception is that on temporary
appointments to executive positions.
8. The Court has erred in directing the JBC to resume the
proceedings for the nomination of the candidates to fill the
vacancy to be created by the compulsory retirement of Chief
Justice Puno with a view to submitting the list of nominees for
Chief Justice to President Arroyo on or before May 17, 2010.
The Constitution grants the Court only the power of supervision
over the JBC; hence, the Court cannot tell the JBC what to do,
how to do it, or when to do it, especially in the absence of a
real and justiciable case assailing any specific action or
inaction of the JBC.
9. The Court has engaged in rendering an advisory opinion and
has indulged in speculations.
10. The constitutional ban on appointments being already in
effect, the Court’s directing the JBC to comply with the decision
constitutes a culpable violation of the Constitution and the
commission of an election offense.
11. The Court cannot reverse on the basis of a secondary
authority a doctrine unanimously formulated by the Court en
banc.
12. The practice has been for the most senior Justice to act as
Chief Justice whenever the incumbent is indisposed. Thus, the
appointment of the successor Chief Justice is not urgently
necessary.
13. The principal purpose for the ban on midnight appointments
is to arrest any attempt to prolong the outgoing President’s
powers by means of proxies. The attempt of the incumbent
President to appoint the next Chief Justice is undeniably
intended to perpetuate her power beyond her term of office.
IBP-Davao del Sur, et al.
1. Its language being unambiguous, Section 15, Article VII of
the Constitution applies to appointments to the Judiciary.
Hence, no cogent reason exists to warrant the reversal of the
Valenzuela pronouncement.
2. Section 16, Article VII of the Constitution provides for
presidential appointments to the Constitutional Commissions
and the JBC with the consent of the Commission on
Appointments. Its phrase "other officers whose appointments
are vested in him in this Constitution" is enough proof that the
limitation on the appointing power of the President extends to
appointments to the Judiciary. Thus, Section 14, Section 15,
and Section 16 of Article VII apply to all presidential
appointments in the Executive and Judicial Branches of the
Government.
3. There is no evidence that the framers of the Constitution
abhorred the idea of an Acting Chief Justice in all cases.
Lim
1. There is no justiciable controversy that warrants the Court’s
exercise of judicial review.
2. The election ban under Section 15, Article VII applies to
appointments to fill a vacancy in the Court and to other
appointments to the Judiciary.
103
3. The creation of the JBC does not justify the removal of the
safeguard under Section 15 of Article VII against midnight
appointments in the Judiciary.
Corvera
1. The Court’s exclusion of appointments to the Judiciary from
the Constitutional ban on midnight appointments is based on
an interpretation beyond the plain and unequivocal language of
the Constitution.
2. The intent of the ban on midnight appointments is to cover
appointments in both the Executive and Judicial Departments.
The application of the principle of verba legis (ordinary
meaning) would have obviated dwelling on the organization
and arrangement of the provisions of the Constitution. If there
is any ambiguity in Section 15, Article VII, the intent behind the
provision, which is to prevent political partisanship in all
branches of the Government, should have controlled.
3. A plain reading is preferred to a contorted and strained
interpretation based on compartmentalization and physical
arrangement, especially considering that the Constitution must
be interpreted as a whole.
4. Resort to the deliberations or to the personal interpretation of
the framers of the Constitution should yield to the plain and
unequivocal language of the Constitution.
5. There is no sufficient reason for reversing Valenzuela, a
ruling that is reasonable and in accord with the Constitution.  provision admits only one exception, temporary appointments
BAYAN, et al.
1. The Court erred in granting the petition in A.M. No. 10-2-5-
SC, because the petition did not present a justiciable
controversy. The issues it raised were not yet ripe for
adjudication, considering that the office of the Chief Justice
was not yet vacant and that the JBC itself has yet to decide
whether or not to submit a list of nominees to the President.
2. The collective wisdom of Valenzuela Court is more important
and compelling than the opinion of Justice Regalado.
3. In ruling that Section 15, Article VII is in conflict with Section
4(1), Article VIII, the Court has violated the principle of ut magis
valeat quam pereat (which mandates that the Constitution
should be interpreted as a whole, such that any conflicting
provisions are to be harmonized as to fully give effect to all).
There is no conflict between the provisions; they complement
each other.
4. The form and structure of the Constitution’s titles, chapters,
sections, and draftsmanship carry little weight in statutory
construction. The clear and plain language of Section 15,
Article VII precludes interpretation.
Tan, Jr.
1. The factual antecedents do not present an actual case or
controversy. The clash of legal rights and interests in the
present case are merely anticipated. Even if it is anticipated
with certainty, no actual vacancy in the position of the Chief
Justice has yet occurred.
2. The ruling that Section 15, Article VII does not apply to a
vacancy in the Court and the Judiciary runs in conflict with long
standing principles and doctrines of statutory construction. The
in the Executive Department. Thus, the Court should not
distinguish, because the law itself makes no distinction.
3. Valenzuela was erroneously reversed. The framers of the
Constitution clearly intended the ban on midnight appointments
to cover the members of the Judiciary. Hence, giving more
104
weight to the opinion of Justice Regalado to reverse the en
banc decision in Valenzuela was unwarranted.  the basic principle of statutory construction to the effect that the
4. Section 15, Article VII is not incompatible with Section 4(1),
Article VIII. The 90-day mandate to fill any vacancy lasts until
August 15, 2010, or a month and a half after the end of the
ban. The next President has roughly the same time of 45 days
as the incumbent President (i.e., 44 days) within which to
scrutinize and study the qualifications of the next Chief Justice.
Thus, the JBC has more than enough opportunity to examine
the nominees without haste and political uncertainty. 1avvphi1
5. When the constitutional ban is in place, the 90-day period
under Section 4(1), Article VIII is suspended.
6. There is no basis to direct the JBC to submit the list of
nominees on or before May 17, 2010. The directive to the JBC
sanctions a culpable violation of the Constitution and
constitutes an election offense.
7. There is no pressing necessity for the appointment of a Chief
Justice, because the Court sits en banc, even when it acts as
the sole judge of all contests relative to the election, returns
and qualifications of the President and Vice-President.
Fourteen other Members of the Court can validly comprise the
Presidential Electoral Tribunal.
WTLOP
1. The Court exceeded its jurisdiction in ordering the JBC to
submit the list of nominees for Chief Justice to the President on
or before May 17, 2010, and to continue its proceedings for the
nomination of the candidates, because it granted a relief not
prayed for; imposed on the JBC a deadline not provided by law
or the Constitution; exercised control instead of mere
supervision over the JBC; and lacked sufficient votes to
reverse Valenzuela.
2. In interpreting Section 15, Article VII, the Court has ignored
literal meaning of the law must be applied when it is clear and
unambiguous; and that we should not distinguish where the law
does not distinguish.
3. There is no urgency to appoint the next Chief Justice,
considering that the Judiciary Act of 1948 already provides that
the power and duties of the office devolve on the most senior
Associate Justice in case of a vacancy in the office of the Chief
Justice.
Ubano
1. The language of Section 15, Article VII, being clear and
unequivocal, needs no interpretation
2. The Constitution must be construed in its entirety, not by
resort to the organization and arrangement of its provisions.
3. The opinion of Justice Regalado is irrelevant, because
Section 15, Article VII and the pertinent records of the
Constitutional Commission are clear and unambiguous.
4. The Court has erred in ordering the JBC to submit the list of
nominees to the President by May 17, 2010 at the latest,
because no specific law requires the JBC to submit the list of
nominees even before the vacancy has occurred.
Boiser
1. Under Section 15, Article VII, the only exemption from the
ban on midnight appointments is the temporary appointment to
an executive position. The limitation is in keeping with the clear
intent of the framers of the Constitution to place a restriction on
the power of the outgoing Chief Executive to make
appointments.
105
2. To exempt the appointment of the next Chief Justice from
the ban on midnight appointments makes the appointee
beholden to the outgoing Chief Executive, and compromises
the independence of the Chief Justice by having the outgoing
President be continually influential.
3. The Court’s reversal of Valenzuela without stating the
sufficient reason violates the principle of stare decisis.
Bello, et al.
1. Section 15, Article VII does not distinguish as to the type of
appointments an outgoing President is prohibited from making
within the prescribed period. Plain textual reading and the
records of the Constitutional Commission support the view that
the ban on midnight appointments extends to judicial
appointments.
2. The decision expands the constitutional powers of the
President in a manner totally repugnant to republican
constitutional democracy, and is tantamount to a judicial
amendment of the Constitution without proper authority.
Comments
The Office of the Solicitor General (OSG) and the JBC separately
represent in their respective comments, thus:
OSG
1. The JBC may be compelled to submit to the President a
short list of its nominees for the position of Chief Justice.
2. The incumbent President has the power to appoint the next
Chief Justice.

2. Supervision of the JBC by the Court involves oversight. The 3. Section 15, Article VII does not apply to the Judiciary.
subordinate subject to oversight must first act not in accord
with prescribed rules before the act can be redone to conform
4. The principles of constitutional construction favor the
to the prescribed rules.
exemption of the Judiciary from the ban on midnight
appointments.
3. The Court erred in granting the petition in A.M. No. 10-2-5-
1awph!1

SC, because the petition did not present a justiciable

5. The Court has the duty to consider and resolve all issues
controversy.
raised by the parties as well as other related matters.
Pimentel
JBC
1. Any constitutional interpretative changes must be
1. The consolidated petitions should have been dismissed for
reasonable, rational, and conformable to the general intent of
prematurity, because the JBC has not yet decided at the time
the Constitution as a limitation to the powers of Government
the petitions were filed whether the incumbent President has
and as a bastion for the protection of the rights of the people.
the power to appoint the new Chief Justice, and because the
Thus, in harmonizing seemingly conflicting provisions of the
JBC, having yet to interview the candidates, has not submitted
Constitution, the interpretation should always be one that
a short list to the President.
protects the citizenry from an ever expanding grant of authority
to its representatives.
2. The statement in the decision that there is a doubt on
whether a JBC short list is necessary for the President to

106
 appoint a Chief Justice should be struck down as bereft of
constitutional and legal basis. The statement undermines the
independence of the JBC.
3. The JBC will abide by the final decision of the Court, but in
accord with its constitutional mandate and its implementing
rules and regulations.
For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC)
submits his comment even if the OSG and the JBC were the only ones
the Court has required to do so. He states that the motions for
reconsideration were directed at the administrative matter he initiated
and which the Court resolved. His comment asserts:
1. The grounds of the motions for reconsideration were already
resolved by the decision and the separate opinion.
2. The administrative matter he brought invoked the Court’s
power of supervision over the JBC as provided by Section 8(1),
Article VIII of the Constitution, as distinguished from the Court’s
adjudicatory power under Section 1, Article VIII. In the former,
the requisites for judicial review are not required, which was
why Valenzuela was docketed as an administrative matter.
Considering that the JBC itself has yet to take a position on
when to submit the short list to the proper appointing authority,
it has effectively solicited the exercise by the Court of its power
of supervision over the JBC.
3. To apply Section 15, Article VII to Section 4(1) and Section
9, Article VIII is to amend the Constitution.
4. The portions of the deliberations of the Constitutional
Commission quoted in the dissent of Justice Carpio Morales,
as well as in some of the motions for reconsideration do not
refer to either Section 15, Article VII or Section 4(1), Article VIII,
but to Section 13, Article VII (on nepotism).
Ruling
We deny the motions for reconsideration for lack of merit, for all the
matters being thereby raised and argued, not being new, have all been
resolved by the decision of March 17, 2010. 
Nonetheless, the Court opts to dwell on some matters only for the
purpose of clarification and emphasis.
First: Most of the movants contend that the principle of stare decisis is
controlling, and accordingly insist that the Court has erred in
disobeying or abandoning Valenzuela.1
The contention has no basis. 
Stare decisis derives its name from the Latin maxim stare decisis et
non quieta movere, i.e., to adhere to precedent and not to unsettle
things that are settled. It simply means that a principle underlying the
decision in one case is deemed of imperative authority, controlling the
decisions of like cases in the same court and in lower courts within the
same jurisdiction, unless and until the decision in question is reversed
or overruled by a court of competent authority. The decisions relied
upon as precedents are commonly those of appellate courts, because
the decisions of the trial courts may be appealed to higher courts and
for that reason are probably not the best evidence of the rules of law
laid down. 2
Judicial decisions assume the same authority as a statute itself and,
until authoritatively abandoned, necessarily become, to the extent that
they are applicable, the criteria that must control the actuations, not
only of those called upon to abide by them, but also of those duty-
bound to enforce obedience to them.3 In a hierarchical judicial system
like ours, the decisions of the higher courts bind the lower courts, but
the courts of co-ordinate authority do not bind each other. The one
highest court does not bind itself, being invested with the innate
authority to rule according to its best lights.4
The Court, as the highest court of the land, may be guided but is not
controlled by precedent. Thus, the Court, especially with a new
membership, is not obliged to follow blindly a particular decision that it
107
determines, after re-examination, to call for a rectification.5 The
adherence to precedents is strict and rigid in a common-law setting like
the United Kingdom, where judges make law as binding as an Act of
Parliament.6 But ours is not a common-law system; hence, judicial
precedents are not always strictly and rigidly followed. A judicial
pronouncement in an earlier decision may be followed as a precedent
in a subsequent case only when its reasoning and justification are
relevant, and the court in the latter case accepts such reasoning and
justification to be applicable to the case. The application of the
precedent is for the sake of convenience and stability.
For the intervenors to insist that Valenzuela ought not to be disobeyed,
or abandoned, or reversed, and that its wisdom should guide, if not
control, the Court in this case is, therefore, devoid of rationality and
foundation. They seem to conveniently forget that the Constitution itself
recognizes the innate authority of the Court en banc to modify or
reverse a doctrine or principle of law laid down in any decision
rendered en banc or in division.7
Second: Some intervenors are grossly misleading the public by their
insistence that the Constitutional Commission extended to the
Judiciary the ban on presidential appointments during the period stated
in Section 15, Article VII.  Section 4(1) and Section 9, both of Article VIII, the express applicability
The deliberations that the dissent of Justice Carpio Morales quoted
from the records of the Constitutional Commission did not concern
either Section 15, Article VII or Section 4(1), Article VIII, but only
Section 13, Article VII, a provision on nepotism. The records of the
Constitutional Commission show that Commissioner Hilario G. Davide,
Jr. had proposed to include judges and justices related to the President
within the fourth civil degree of consanguinity or affinity among the
persons whom the President might not appoint during his or her tenure.
In the end, however, Commissioner Davide, Jr. withdrew the proposal
to include the Judiciary in Section 13, Article VII "(t)o avoid any further
complication,"8 such that the final version of the second paragraph of
Section 13, Article VII even completely omits any reference to the
Judiciary, to wit:
Section 13. xxx
The spouse and relatives by consanguinity or affinity within the fourth
civil degree of the President shall not during his tenure be appointed as
Members of the Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads
of bureaus or offices, including government-owned or controlled
corporations and their subsidiaries. 
Last: The movants take the majority to task for holding that Section 15,
Article VII does not apply to appointments in the Judiciary. They aver
that the Court either ignored or refused to apply many principles of
statutory construction.
The movants gravely err in their posture, and are themselves
apparently contravening their avowed reliance on the principles of
statutory construction. 
For one, the movants, disregarding the absence from Section 15,
Article VII of the express extension of the ban on appointments to the
Judiciary, insist that the ban applied to the Judiciary under the principle
of verba legis. That is self-contradiction at its worst.
Another instance is the movants’ unhesitating willingness to read into
of the ban under Section 15, Article VII during the period provided
therein, despite the silence of said provisions thereon. Yet,
construction cannot supply the omission, for doing so would generally
constitute an encroachment upon the field of the Constitutional
Commission. Rather, Section 4(1) and Section 9 should be left as they
are, given that their meaning is clear and explicit, and no words can be
interpolated in them.9Interpolation of words is unnecessary, because
the law is more than likely to fail to express the legislative intent with
the interpolation. In other words, the addition of new words may alter
the thought intended to be conveyed. And, even where the meaning of
the law is clear and sensible, either with or without the omitted word or
words, interpolation is improper, because the primary source of the
legislative intent is in the language of the law itself.10
Thus, the decision of March 17, 2010 has fittingly observed:
108
Had the framers intended to extend the prohibition contained in Section ACCORDINGLY, the motions for reconsideration are denied with
15, Article VII to the appointment of Members of the Supreme Court, finality.
they could have explicitly done so. They could not have ignored the
meticulous ordering of the provisions. They would have easily and SO ORDERED.
surely written the prohibition made explicit in Section 15, Article VII as
being equally applicable to the appointment of Members of the
Supreme Court in Article VIII itself, most likely in Section 4 (1), Article
VIII. That such specification was not done only reveals that the
prohibition against the President or Acting President making
appointments within two months before the next presidential elections
and up to the end of the President’s or Acting President’s term does
not refer to the Members of the Supreme Court. 

We cannot permit the meaning of the Constitution to be stretched to

any unintended point in order to suit the purposes of any quarter.

Final Word

It has been insinuated as part of the polemics attendant to the

controversy we are resolving that because all the Members of the
present Court were appointed by the incumbent President, a majority
of them are now granting to her the authority to appoint the successor
of the retiring Chief Justice.

The insinuation is misguided and utterly unfair. 

The Members of the Court vote on the sole basis of their conscience
and the merits of the issues. Any claim to the contrary proceeds from
malice and condescension. Neither the outgoing President nor the
present Members of the Court had arranged the current situation to
happen and to evolve as it has. None of the Members of the Court
could have prevented the Members composing the Court when she
assumed the Presidency about a decade ago from retiring during her
prolonged term and tenure, for their retirements were mandatory. Yet,
she is now left with an imperative duty under the Constitution to fill up
the vacancies created by such inexorable retirements within 90 days
from their occurrence. Her official duty she must comply with. So must
we ours who are tasked by the Constitution to settle the controversy.

109

G.R. No. 191002               April 20, 2010
ARTURO M. DE CASTRO, Petitioner,  LAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF THE
vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA
MACAPAGAL - ARROYO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191032
JAIME N. SORIANO, Petitioner, 
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191057
PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), Petitioner,  STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP)
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
A.M. No. 10-2-5-SC
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE
CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY,
ESTELITO P. MENDOZA, Petitioner,
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191149
JOHN G. PERALTA, Petitioner, 
vs.
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM;
ALFONSO V. TAN, JR.; NATIONAL UNION OF PEOPLE’S
PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its
Immediate Past President, ATTY. ISRAELITO P. TORREON, and
the latter in his own personal capacity as a MEMBER of the
PHILIPPINE BAR; MITCHELL JOHN L. BOISER; BAGONG
ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P.
ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES,
JR.; CONFEDERATION FOR UNITY, RECOGNITION AND
ADVANCE-MENT OF GOVERNMENT EMPLOYEES (COURAGE)
CHAIRMAN FERDINAND GAITE; KALIPUNAN NG DAMAYANG
MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA
ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN NG
SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN)
CHAIRMAN KEN LEONARD RAMOS; TAYO ANG PAG-ASA
CONVENOR ALVIN PETERS; LEAGUE OF FILIPINO STUDENTS
(LFS) CHAIRMAN JAMES MARK TERRY LACUANAN RIDON;
NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP)
CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF
THE PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and
CHAIRMAN MA. CRISTINA ANGELA GUEVARRA; WALDEN F.
BELLO and LORETTA ANN P. ROSALES; WOMEN TRIAL
LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by
YOLANDA QUISUMBING-JAVELLANA; BELLEZA ALOJADO
110
DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA. VERENA
KASILAG-VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE
JESUS; and GUINEVERE DE LEON; AQUILINO Q. PIMENTEL,
JR.;Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191342
ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern
Luzon), and ATTY. ROLAND B. INTING (IBPGovernor-Eastern
Visayas), Petitioners,  (b) To prepare the short list of nominees for the position
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191420
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,  candidates to fill other vacancies in the Judiciary and
vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA
MACAPAGAL-ARROYO, Respondents.
RESOLUTION
BERSAMIN, J.:
On March 17, 2010, the Court promulgated its decision, holding:  and Roland B. Inting (G.R. No. 191342), and Philippine Bar
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R.
No. 191002 and G.R. No. 191149, and the petition for
mandamus in G.R. No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032
and G.R. No. 191342 for lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly,
directs the Judicial and Bar Council: 
(a) To resume its proceedings for the nomination of
candidates to fill the vacancy to be created by the
compulsory retirement of Chief Justice Reynato S.
Puno by May 17, 2010; 
of Chief Justice; 
(c) To submit to the incumbent President the short list
of nominees for the position of Chief Justice on or
before May 17, 2010; and 
(d) To continue its proceedings for the nomination of
submit to the President the short list of nominees
corresponding thereto in accordance with this decision.
SO ORDERED.
Motions for Reconsideration
Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino
Association (G.R. No. 191420), as well as intervenors Integrated Bar of
the Philippines-Davao del Sur (IBP-Davao del Sur, et al.); Christian
Robert S. Lim; Peter Irving Corvera; Bagong Alyansang Bayan and
others (BAYAN, et al.); Alfonso V. Tan, Jr.; the Women Trial Lawyers
Organization of the Philippines (WTLOP); Marlou B. Ubano; Mitchell
John L. Boiser; and Walden F. Bello and Loretta Ann P. Rosales
(Bello, et al.), filed their respective motions for reconsideration. Also
filing a motion for reconsideration was Senator Aquilino Q. Pimentel,
Jr., whose belated intervention was allowed.
111
We summarize the arguments and submissions of the various motions
for reconsideration, in the aforegiven order:
Soriano
1. The Court has not squarely ruled upon or addressed the
issue of whether or not the power to designate the Chief
Justice belonged to the Supreme Court en banc.
2. The Mendoza petition should have been dismissed, because
it sought a mere declaratory judgment and did not involve a
justiciable controversy.
3. All Justices of the Court should participate in the next
deliberations. The mere fact that the Chief Justice sits as ex
officio head of the JBC should not prevail over the more
compelling state interest for him to participate as a Member of
the Court.
Tolentino and Inting
1. A plain reading of Section 15, Article VII does not lead to an
interpretation that exempts judicial appointments from the
express ban on midnight appointments.
2. In excluding the Judiciary from the ban, the Court has made
distinctions and has created exemptions when none exists.
3. The ban on midnight appointments is placed in Article VII,
not in Article VIII, because it limits an executive, not a judicial,
power.
4. Resort to the deliberations of the Constitutional Commission
is superfluous, and is powerless to vary the terms of the clear
prohibition.
5. The Court has given too much credit to the position taken by
Justice Regalado. Thereby, the Court has raised the
Constitution to the level of a venerated text whose intent can
only be divined by its framers as to be outside the realm of
understanding by the sovereign people that ratified it.
6. Valenzuela should not be reversed.
7. The petitioners, as taxpayers and lawyers, have the clear
legal standing to question the illegal composition of the JBC.
Philippine Bar Association
1. The Court’s strained interpretation of the Constitution
violates the basic principle that the Court should not formulate
a rule of constitutional law broader than what is required by the
precise facts of the case.
2. Considering that Section 15, Article VII is clear and
straightforward, the only duty of the Court is to apply it. The
provision expressly and clearly provides a general limitation on
the appointing power of the President in prohibiting the
appointment of any person to any position in the Government
without any qualification and distinction.
3. The Court gravely erred in unilaterally ignoring the
constitutional safeguard against midnight appointments.
4. The Constitution has installed two constitutional safeguards:-
the prohibition against midnight appointments, and the creation
of the JBC. It is not within the authority of the Court to prefer
one over the other, for the Court’s duty is to apply the
safeguards as they are, not as the Court likes them to be.
5. The Court has erred in failing to apply the basic principles of
statutory construction in interpreting the Constitution.
6. The Court has erred in relying heavily on the title, chapter or
section headings, despite precedents on statutory construction
holding that such headings carried very little weight.
112
7. The Constitution has provided a general rule on midnight
appointments, and the only exception is that on temporary
appointments to executive positions.
8. The Court has erred in directing the JBC to resume the
proceedings for the nomination of the candidates to fill the
vacancy to be created by the compulsory retirement of Chief
Justice Puno with a view to submitting the list of nominees for
Chief Justice to President Arroyo on or before May 17, 2010.
The Constitution grants the Court only the power of supervision
over the JBC; hence, the Court cannot tell the JBC what to do,
how to do it, or when to do it, especially in the absence of a
real and justiciable case assailing any specific action or
inaction of the JBC.
9. The Court has engaged in rendering an advisory opinion and
has indulged in speculations.
10. The constitutional ban on appointments being already in
effect, the Court’s directing the JBC to comply with the decision
constitutes a culpable violation of the Constitution and the
commission of an election offense.
11. The Court cannot reverse on the basis of a secondary
authority a doctrine unanimously formulated by the Court en
banc.
12. The practice has been for the most senior Justice to act as
Chief Justice whenever the incumbent is indisposed. Thus, the
appointment of the successor Chief Justice is not urgently
necessary.
13. The principal purpose for the ban on midnight appointments
is to arrest any attempt to prolong the outgoing President’s
powers by means of proxies. The attempt of the incumbent
President to appoint the next Chief Justice is undeniably
intended to perpetuate her power beyond her term of office.
IBP-Davao del Sur, et al.
1. Its language being unambiguous, Section 15, Article VII of
the Constitution applies to appointments to the Judiciary.
Hence, no cogent reason exists to warrant the reversal of the
Valenzuela pronouncement.
2. Section 16, Article VII of the Constitution provides for
presidential appointments to the Constitutional Commissions
and the JBC with the consent of the Commission on
Appointments. Its phrase "other officers whose appointments
are vested in him in this Constitution" is enough proof that the
limitation on the appointing power of the President extends to
appointments to the Judiciary. Thus, Section 14, Section 15,
and Section 16 of Article VII apply to all presidential
appointments in the Executive and Judicial Branches of the
Government.
3. There is no evidence that the framers of the Constitution
abhorred the idea of an Acting Chief Justice in all cases.
Lim
1. There is no justiciable controversy that warrants the Court’s
exercise of judicial review.
2. The election ban under Section 15, Article VII applies to
appointments to fill a vacancy in the Court and to other
appointments to the Judiciary.
3. The creation of the JBC does not justify the removal of the
safeguard under Section 15 of Article VII against midnight
appointments in the Judiciary.
Corvera
1. The Court’s exclusion of appointments to the Judiciary from
the Constitutional ban on midnight appointments is based on
113
an interpretation beyond the plain and unequivocal language of
the Constitution.
2. The intent of the ban on midnight appointments is to cover
appointments in both the Executive and Judicial Departments.
The application of the principle of verba legis (ordinary
meaning) would have obviated dwelling on the organization
and arrangement of the provisions of the Constitution. If there
is any ambiguity in Section 15, Article VII, the intent behind the
provision, which is to prevent political partisanship in all
branches of the Government, should have controlled.
3. A plain reading is preferred to a contorted and strained
interpretation based on compartmentalization and physical
arrangement, especially considering that the Constitution must
be interpreted as a whole.
4. Resort to the deliberations or to the personal interpretation of
the framers of the Constitution should yield to the plain and
unequivocal language of the Constitution.
5. There is no sufficient reason for reversing Valenzuela, a
ruling that is reasonable and in accord with the Constitution.  provision admits only one exception, temporary appointments
BAYAN, et al.
1. The Court erred in granting the petition in A.M. No. 10-2-5-
SC, because the petition did not present a justiciable
controversy. The issues it raised were not yet ripe for
adjudication, considering that the office of the Chief Justice
was not yet vacant and that the JBC itself has yet to decide
whether or not to submit a list of nominees to the President.
2. The collective wisdom of Valenzuela Court is more important
and compelling than the opinion of Justice Regalado.
3. In ruling that Section 15, Article VII is in conflict with Section
4(1), Article VIII, the Court has violated the principle of ut magis
valeat quam pereat (which mandates that the Constitution
should be interpreted as a whole, such that any conflicting
provisions are to be harmonized as to fully give effect to all).
There is no conflict between the provisions; they complement
each other.
4. The form and structure of the Constitution’s titles, chapters,
sections, and draftsmanship carry little weight in statutory
construction. The clear and plain language of Section 15,
Article VII precludes interpretation.
Tan, Jr.
1. The factual antecedents do not present an actual case or
controversy. The clash of legal rights and interests in the
present case are merely anticipated. Even if it is anticipated
with certainty, no actual vacancy in the position of the Chief
Justice has yet occurred.
2. The ruling that Section 15, Article VII does not apply to a
vacancy in the Court and the Judiciary runs in conflict with long
standing principles and doctrines of statutory construction. The
in the Executive Department. Thus, the Court should not
distinguish, because the law itself makes no distinction.
3. Valenzuela was erroneously reversed. The framers of the
Constitution clearly intended the ban on midnight appointments
to cover the members of the Judiciary. Hence, giving more
weight to the opinion of Justice Regalado to reverse the en
banc decision in Valenzuela was unwarranted. 
4. Section 15, Article VII is not incompatible with Section 4(1),
Article VIII. The 90-day mandate to fill any vacancy lasts until
August 15, 2010, or a month and a half after the end of the
ban. The next President has roughly the same time of 45 days
as the incumbent President (i.e., 44 days) within which to
scrutinize and study the qualifications of the next Chief Justice.
114
Thus, the JBC has more than enough opportunity to examine
the nominees without haste and political uncertainty. 1avvphi1
5. When the constitutional ban is in place, the 90-day period
under Section 4(1), Article VIII is suspended.
6. There is no basis to direct the JBC to submit the list of
nominees on or before May 17, 2010. The directive to the JBC
sanctions a culpable violation of the Constitution and
constitutes an election offense.
7. There is no pressing necessity for the appointment of a Chief
Justice, because the Court sits en banc, even when it acts as
the sole judge of all contests relative to the election, returns
and qualifications of the President and Vice-President.
Fourteen other Members of the Court can validly comprise the
Presidential Electoral Tribunal.
WTLOP
1. The Court exceeded its jurisdiction in ordering the JBC to
submit the list of nominees for Chief Justice to the President on
or before May 17, 2010, and to continue its proceedings for the
nomination of the candidates, because it granted a relief not
prayed for; imposed on the JBC a deadline not provided by law
or the Constitution; exercised control instead of mere
supervision over the JBC; and lacked sufficient votes to
reverse Valenzuela.
2. In interpreting Section 15, Article VII, the Court has ignored
the basic principle of statutory construction to the effect that the
literal meaning of the law must be applied when it is clear and
unambiguous; and that we should not distinguish where the law
does not distinguish.
3. There is no urgency to appoint the next Chief Justice,
considering that the Judiciary Act of 1948 already provides that
the power and duties of the office devolve on the most senior
Associate Justice in case of a vacancy in the office of the Chief
Justice.
Ubano
1. The language of Section 15, Article VII, being clear and
unequivocal, needs no interpretation
2. The Constitution must be construed in its entirety, not by
resort to the organization and arrangement of its provisions.
3. The opinion of Justice Regalado is irrelevant, because
Section 15, Article VII and the pertinent records of the
Constitutional Commission are clear and unambiguous.
4. The Court has erred in ordering the JBC to submit the list of
nominees to the President by May 17, 2010 at the latest,
because no specific law requires the JBC to submit the list of
nominees even before the vacancy has occurred.
Boiser
1. Under Section 15, Article VII, the only exemption from the
ban on midnight appointments is the temporary appointment to
an executive position. The limitation is in keeping with the clear
intent of the framers of the Constitution to place a restriction on
the power of the outgoing Chief Executive to make
appointments.
2. To exempt the appointment of the next Chief Justice from
the ban on midnight appointments makes the appointee
beholden to the outgoing Chief Executive, and compromises
the independence of the Chief Justice by having the outgoing
President be continually influential.
3. The Court’s reversal of Valenzuela without stating the
sufficient reason violates the principle of stare decisis.
115
 Bello, et al.
1. Section 15, Article VII does not distinguish as to the type of
appointments an outgoing President is prohibited from making
within the prescribed period. Plain textual reading and the
records of the Constitutional Commission support the view that
the ban on midnight appointments extends to judicial
appointments.
2. Supervision of the JBC by the Court involves oversight. The
subordinate subject to oversight must first act not in accord
with prescribed rules before the act can be redone to conform
to the prescribed rules.
3. The Court erred in granting the petition in A.M. No. 10-2-5-
SC, because the petition did not present a justiciable
controversy.
Pimentel
1. Any constitutional interpretative changes must be
reasonable, rational, and conformable to the general intent of
the Constitution as a limitation to the powers of Government
and as a bastion for the protection of the rights of the people.
Thus, in harmonizing seemingly conflicting provisions of the
Constitution, the interpretation should always be one that
protects the citizenry from an ever expanding grant of authority
to its representatives.
2. The decision expands the constitutional powers of the
President in a manner totally repugnant to republican
constitutional democracy, and is tantamount to a judicial
amendment of the Constitution without proper authority.
Comments
The Office of the Solicitor General (OSG) and the JBC separately
represent in their respective comments, thus:
OSG
1. The JBC may be compelled to submit to the President a
short list of its nominees for the position of Chief Justice.
2. The incumbent President has the power to appoint the next
Chief Justice.
3. Section 15, Article VII does not apply to the Judiciary.
4. The principles of constitutional construction favor the
exemption of the Judiciary from the ban on midnight
appointments. 1awph!1
5. The Court has the duty to consider and resolve all issues
raised by the parties as well as other related matters.
JBC
1. The consolidated petitions should have been dismissed for
prematurity, because the JBC has not yet decided at the time
the petitions were filed whether the incumbent President has
the power to appoint the new Chief Justice, and because the
JBC, having yet to interview the candidates, has not submitted
a short list to the President.
2. The statement in the decision that there is a doubt on
whether a JBC short list is necessary for the President to
appoint a Chief Justice should be struck down as bereft of
constitutional and legal basis. The statement undermines the
independence of the JBC.
3. The JBC will abide by the final decision of the Court, but in
accord with its constitutional mandate and its implementing
rules and regulations.
For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC)
submits his comment even if the OSG and the JBC were the only ones
116
the Court has required to do so. He states that the motions for
reconsideration were directed at the administrative matter he initiated
and which the Court resolved. His comment asserts:
1. The grounds of the motions for reconsideration were already
resolved by the decision and the separate opinion.
2. The administrative matter he brought invoked the Court’s
power of supervision over the JBC as provided by Section 8(1),
Article VIII of the Constitution, as distinguished from the Court’s
adjudicatory power under Section 1, Article VIII. In the former,
the requisites for judicial review are not required, which was
why Valenzuela was docketed as an administrative matter.
Considering that the JBC itself has yet to take a position on
when to submit the short list to the proper appointing authority,
it has effectively solicited the exercise by the Court of its power
of supervision over the JBC.
3. To apply Section 15, Article VII to Section 4(1) and Section
9, Article VIII is to amend the Constitution.
4. The portions of the deliberations of the Constitutional
Commission quoted in the dissent of Justice Carpio Morales,
as well as in some of the motions for reconsideration do not
refer to either Section 15, Article VII or Section 4(1), Article VIII,
but to Section 13, Article VII (on nepotism).
Ruling
We deny the motions for reconsideration for lack of merit, for all the
matters being thereby raised and argued, not being new, have all been
resolved by the decision of March 17, 2010.  determines, after re-examination, to call for a rectification.5 The
Nonetheless, the Court opts to dwell on some matters only for the
purpose of clarification and emphasis.
First: Most of the movants contend that the principle of stare decisis is
controlling, and accordingly insist that the Court has erred in
disobeying or abandoning Valenzuela.1
The contention has no basis. 
Stare decisis derives its name from the Latin maxim stare decisis et
non quieta movere, i.e., to adhere to precedent and not to unsettle
things that are settled. It simply means that a principle underlying the
decision in one case is deemed of imperative authority, controlling the
decisions of like cases in the same court and in lower courts within the
same jurisdiction, unless and until the decision in question is reversed
or overruled by a court of competent authority. The decisions relied
upon as precedents are commonly those of appellate courts, because
the decisions of the trial courts may be appealed to higher courts and
for that reason are probably not the best evidence of the rules of law
laid down. 2
Judicial decisions assume the same authority as a statute itself and,
until authoritatively abandoned, necessarily become, to the extent that
they are applicable, the criteria that must control the actuations, not
only of those called upon to abide by them, but also of those duty-
bound to enforce obedience to them.3 In a hierarchical judicial system
like ours, the decisions of the higher courts bind the lower courts, but
the courts of co-ordinate authority do not bind each other. The one
highest court does not bind itself, being invested with the innate
authority to rule according to its best lights.4
The Court, as the highest court of the land, may be guided but is not
controlled by precedent. Thus, the Court, especially with a new
membership, is not obliged to follow blindly a particular decision that it
adherence to precedents is strict and rigid in a common-law setting like
the United Kingdom, where judges make law as binding as an Act of
Parliament.6 But ours is not a common-law system; hence, judicial
precedents are not always strictly and rigidly followed. A judicial
pronouncement in an earlier decision may be followed as a precedent
in a subsequent case only when its reasoning and justification are
relevant, and the court in the latter case accepts such reasoning and
117
justification to be applicable to the case. The application of the
precedent is for the sake of convenience and stability.
For the intervenors to insist that Valenzuela ought not to be disobeyed,
or abandoned, or reversed, and that its wisdom should guide, if not
control, the Court in this case is, therefore, devoid of rationality and
foundation. They seem to conveniently forget that the Constitution itself
recognizes the innate authority of the Court en banc to modify or
reverse a doctrine or principle of law laid down in any decision
rendered en banc or in division.7
Second: Some intervenors are grossly misleading the public by their
insistence that the Constitutional Commission extended to the
Judiciary the ban on presidential appointments during the period stated
in Section 15, Article VII.  Another instance is the movants’ unhesitating willingness to read into
The deliberations that the dissent of Justice Carpio Morales quoted
from the records of the Constitutional Commission did not concern
either Section 15, Article VII or Section 4(1), Article VIII, but only
Section 13, Article VII, a provision on nepotism. The records of the
Constitutional Commission show that Commissioner Hilario G. Davide,
Jr. had proposed to include judges and justices related to the President
within the fourth civil degree of consanguinity or affinity among the
persons whom the President might not appoint during his or her tenure.
In the end, however, Commissioner Davide, Jr. withdrew the proposal
to include the Judiciary in Section 13, Article VII "(t)o avoid any further
complication,"8 such that the final version of the second paragraph of
Section 13, Article VII even completely omits any reference to the
Judiciary, to wit:
Section 13. xxx
The spouse and relatives by consanguinity or affinity within the fourth
civil degree of the President shall not during his tenure be appointed as
Members of the Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads
of bureaus or offices, including government-owned or controlled
corporations and their subsidiaries.  being equally applicable to the appointment of Members of the
Last: The movants take the majority to task for holding that Section 15,
Article VII does not apply to appointments in the Judiciary. They aver
that the Court either ignored or refused to apply many principles of
statutory construction.
The movants gravely err in their posture, and are themselves
apparently contravening their avowed reliance on the principles of
statutory construction. 
For one, the movants, disregarding the absence from Section 15,
Article VII of the express extension of the ban on appointments to the
Judiciary, insist that the ban applied to the Judiciary under the principle
of verba legis. That is self-contradiction at its worst.
Section 4(1) and Section 9, both of Article VIII, the express applicability
of the ban under Section 15, Article VII during the period provided
therein, despite the silence of said provisions thereon. Yet,
construction cannot supply the omission, for doing so would generally
constitute an encroachment upon the field of the Constitutional
Commission. Rather, Section 4(1) and Section 9 should be left as they
are, given that their meaning is clear and explicit, and no words can be
interpolated in them.9Interpolation of words is unnecessary, because
the law is more than likely to fail to express the legislative intent with
the interpolation. In other words, the addition of new words may alter
the thought intended to be conveyed. And, even where the meaning of
the law is clear and sensible, either with or without the omitted word or
words, interpolation is improper, because the primary source of the
legislative intent is in the language of the law itself.10
Thus, the decision of March 17, 2010 has fittingly observed:
Had the framers intended to extend the prohibition contained in Section
15, Article VII to the appointment of Members of the Supreme Court,
they could have explicitly done so. They could not have ignored the
meticulous ordering of the provisions. They would have easily and
surely written the prohibition made explicit in Section 15, Article VII as
Supreme Court in Article VIII itself, most likely in Section 4 (1), Article
118
VIII. That such specification was not done only reveals that the
prohibition against the President or Acting President making
appointments within two months before the next presidential elections
and up to the end of the President’s or Acting President’s term does
not refer to the Members of the Supreme Court. 

We cannot permit the meaning of the Constitution to be stretched to

any unintended point in order to suit the purposes of any quarter.

Final Word

It has been insinuated as part of the polemics attendant to the

controversy we are resolving that because all the Members of the
present Court were appointed by the incumbent President, a majority
of them are now granting to her the authority to appoint the successor
of the retiring Chief Justice.

The insinuation is misguided and utterly unfair. 

The Members of the Court vote on the sole basis of their conscience
and the merits of the issues. Any claim to the contrary proceeds from
malice and condescension. Neither the outgoing President nor the
present Members of the Court had arranged the current situation to
happen and to evolve as it has. None of the Members of the Court
could have prevented the Members composing the Court when she
assumed the Presidency about a decade ago from retiring during her
prolonged term and tenure, for their retirements were mandatory. Yet,
she is now left with an imperative duty under the Constitution to fill up
the vacancies created by such inexorable retirements within 90 days
from their occurrence. Her official duty she must comply with. So must
we ours who are tasked by the Constitution to settle the controversy.

ACCORDINGLY, the motions for reconsideration are denied with

finality.

SO ORDERED.

119
 Gracella Glory Bookkeeper II June 27, 1995

Ma. Petra Muffet Lucce Accounting Clerk III June 27, 1995

Felicidad Orindag Accounting Clerk II June 27, 1995

Bernardita Mendoza Agricultural Technologist June 27, 1995

EN BANC
[G.R. No. 131136. February 28, 2001.]
CONRADO L. DE RAMA, Petitioner, v. THE COURT OF APPEALS
(NINTH DIVISION, THE CIVIL SERVICE COMMISSION), ELADIO
MARTINEZ, DIVINO DE JESUS, MORELL AYALA, ARISTEO CATALLA,
DAISY PORTA, FLORDELIZA ORIASEL, GRACIELA GLORY, FELECIDAD
ORINDAY, MA. PETRA MUFFET LUCE, ELSA MARINO, BERNARDITA
MENDOZA, JANE MACATANGAY, ADELFO GLODOVIZA and FLORINO
RAMOS, Respondents.
DECISION
Flordeliza Oriazel Clerk I June 27, 1995
Jane Macatangay Day Care Worker I June 27, 1995
Adolfo Glodoviza Utility Worker II June 27, 1995
Florencio Ramos Utility Foreman June 27, 1995 1 
Petitioner de Rama justified his recall request on the allegation that the
appointments of the said employees were "midnight" appointments of the
former mayor, Ma. Evelyn S. Abeja, done in violation of Article VII, Section
15 of the 1987 Constitution, which provides: chanrob1es virtual 1aw library

YNARES-SANTIAGO, J.:
Upon his assumption to the position of Mayor of Pagbilao, Quezon, petitioner
Conrado L. de Rama wrote a letter dated July 13, 1995 to the Civil Service
Commission (or CSC), seeking the recall of the appointments of fourteen
(14) municipal employees, namely:
chanrob1es virtua1 1aw 1ibrary
SECTION 15. Two months immediately before the next presidential elections
and up to the end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public
safety. (Emphasis supplied)
While the matter was pending before the CSC, three of the above-named
employees, namely: Elsa Marino, Morell Ayala, and Flordeliza Oriazel, filed
with the CSC a claim for payment of their salaries, alleging that although

their appointments were declared permanent by Conrado Gulim, Director II

NAME POSITION DATE OF
of the CSC Field Office based in Quezon, petitioner de Rama withheld the
payment of their salaries and benefits pursuant to Office Order No. 95-01,
APPOINTMENT
which was issued on June 30, 1995, wherein the appointments of the said
fourteen (14) employees were recalled.
Eladio Martinez Registration Officer I June 1, 1995
chanrob1es virtua1 1aw 1ibrary

Based on the documents submitted by Marino, Ayala and Oriazel, the Legal
Divino de Jesus Bookbinder III June 1, 1995
and Quasi-Judicial Division of the CSC issued an Order 2 finding that since
the claimants-employees had assumed their respective positions and
Morell Ayala Accounting Clerk III June 16, 1995
performed their duties pursuant to their appointments, they are therefore
entitled to receive the salaries and benefits appurtenant to their positions.
Daisy Porta Clerk IV June 27, 1995
Citing Rule V, Section 10 of the Omnibus Rules 3 which provides, in part,
that "if the appointee has assumed the duties of the position, he shall be
Aristeo Catalla Gen. Services Officer June 19, 1995
entitled to receive his salary at once without awaiting the approval of his
appointment by the Commission," the CSC Legal and Quasi-Judicial Division
Elsa Marino Mun. Agriculturist June 19, 1995

120
ruled that the said employees cannot be deprived of their salaries and
benefits by the unilateral act of the newly-assumed mayor.
On April 30, 1996, the CSC denied petitioner’s request for the recall of the
appointments of the fourteen employees, for lack of merit. The CSC also
cited Rule V, Sections 9 and 10 of the Omnibus Rules, and declared that the
appointments of the said employees were issued in accordance with
pertinent laws. Thus, the same were effective immediately, and cannot be
withdrawn or revoked by the appointing authority until disapproved by the
CSC. The CSC also dismissed petitioner’s allegation that these were
"midnight" appointments, pointing out that the Constitutional provision
relied upon by petitioner prohibits only those appointments made by an
outgoing President and cannot be made to apply to local elective officials.
Thus, the CSC opined, "the appointing authority can validly issue
appointments until his term has expired, as long as the appointee meets the
qualification standards for the position." 4 
The CSC upheld the validity of the appointments on the ground that they
had already been approved by the Head of the CSC Field Office in Lucena
City, and for petitioner’s failure to present evidence that would warrant the
revocation or recall of the said appointments.
Petitioner moved for the reconsideration of the CSC’s Resolution, as well as
the Order of the CSC Legal and Quasi-Judicial Division, averring that the
CSC was without jurisdiction: (1) to refuse to revoke the subject
appointments; and (2) to uphold the validity of said appointments, even
assuming that there was failure to present evidence that would prove that
these appointments contravened existing laws or rules. He also posited that
the CSC erred in finding the appointments valid despite the existence of
circumstances showing that the same were fraudulently issued and
processed.
On November 21, 1996, the CSC denied petitioner’s motion for
reconsideration. The CSC reiterated its ruling that: chanrob1es virtua1 1aw 1ibrary
In the absence of any showing that these alleged midnight appointments
were defective in form and in substance, nor is there evidence presented to
show that subject appointments were issued in contravention of law or rules,
these appointments are deemed valid and in effect.
x          x          x
Mayor de Rama failed to present evidence that subject appointments should
be revoked or recalled because of any of the above-mentioned grounds
enumerated. As a matter of fact, said appointments were even approved by
the Head, Civil Service Field Office, Lucena City when submitted for
attestation. In the absence of a clear showing that these appointments were
issued in violation of any of these grounds, the Commission has no other
recourse but to uphold their validity. (Emphasis supplied)
The CSC also cited the Supreme Court ruling in the case of Aquino v. Civil
Service Commission, 5 wherein this Court held that: chanrob1es virtual 1aw library
It is well-settled that once an appointment is issued and the moment the
appointee assumes a position in the civil service under a completed
appointment, he acquires a legal, not merely equitable right (to the
position), which is protected not only by statute, but also by the
Constitution, and cannot be taken away from him either by revocation of the
appointment, or by removal, except for cause, and with previous notice and
hearing. (Emphasis supplied)
Consequently, petitioner filed a petition for review before the Court of
Appeals, arguing that the CSC arrived at the erroneous conclusion after it
ignored his "supplement to the consolidated appeal and motion for
reconsideration" wherein he laid out evidence showing that the subject
appointments were obtained through fraud. chanrob1es virtua1 1aw 1ibrary
After reviewing the facts and issues raised by petitioner, the Court of
Appeals issued a Resolution 6 dated May 16, 1997 which held that there was
no abuse of the power of appointment on the part of the outgoing mayor.
The Court of Appeals further held that the fact that the appointments of
Marino, Ayala, Ramos, Mendoza and Glory were made more than four (4)
months after the publication of the vacancies to which they were appointed
is of no moment. Setting aside petitioner’s suppositions, the Court of
Appeals ruled that Republic Act No. 7041 does not provide that every
appointment to the local government service must be made within four (4)
months from publication of the vacancies. It cited Section 80 of said Act, to
wit:
chanrob1es virtual 1aw library
SECTION 80. Public Notice of Vacancy: Personnel Selection Board. — (a)
Whenever a local chief executive decides to fill a vacant career position,
there shall be posted notices of the vacancy in at least three (3) conspicuous
public places in the local government unit concerned for a period of not less
than fifteen (15) days.
(b) There shall be established in every province, city or municipality a
personnel selection board to assist the local chief executive in the judicious
and objective selection of personnel for employment as well as for
promotion, and in the formulation of such policies as would contribute to
employee welfare.
121

(c) The personnel selection board shall be headed by the local sanggunian
concerned. A representative of the Civil Service Commission, if any, and the
personnel officer of the local government unit concerned shall be ex officio
members of the board. 7  and by the appointing authority as required by the Civil Service rules;
Likewise, neither did the CSC’s own Circular Order No. 27, Section 7, Series
of 1991, require that vacant positions published in a government quarterly
must be filled up before the advent of the succeeding quarter.
On the basis of all the foregoing findings, the Court of Appeals denied for
lack of merit the petition for review.
Petitioner filed a motion for reconsideration arguing that the appellate court
erred in upholding the CSC’s resolutions despite the following defects:
I. No screening process and no criteria were adopted by the Personnel
Selection Board in nominating the respondents;
II. No posting in three (3) conspicuous public places of notice of vacancy as
required by the rules and the law;
III. Merit and fitness requirements were not observed by the selection board
and by the appointing authority as required by the Civil Service rules;
IV. Petitioner has valid grounds to recall the appointments of respondents.
8  that the said appointments were tainted by irregularities or anomalies that
In a Resolution dated October 20, 1997, the Court of Appeals denied the
motion for reconsideration.
Hence, the instant petition for review on certiorari on the following assigned
errors:chanrob1es virtua1 1aw 1ibrary
I. THE PUBLIC RESPONDENT COURT OF APPEALS, GRAVELY AND SERIOUSLY
ERRED IN FINDING THAT THE CIVIL SERVICE COMMISSION WAS CORRECT
IN NOT UPHOLDING THE PETITIONERS RECALL OF THE APPOINTMENTS OF
PRIVATE RESPONDENTS IN THE FACE OF FRAUD AND VIOLATION OF RULES
AND LAWS ON ISSUANCE OF APPOINTMENTS.
II. THE PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN
FINDING THAT THE PARTICULAR GROUNDS NAMELY: chanrob1es virtual 1aw library
I. No screening process and no criteria were adopted by the Personnel
Selection Board in nominating the respondents;
chanrob1es virtual 1aw library
II. No posting in three (3) conspicuous public places of notice of vacancy as
required by the rules and the law;
III. Merit and fitness requirements were not observed by the selection board
IV. Petitioner has valid grounds to recall the appointments of respondents.
ARE NEW ISSUES BECAUSE THE GROUNDS FOR RECALL OF THE
APPOINTMENTS BY THE PETITIONER WERE PRECISELY THE VIOLATION OF
LAWS AND REGULATIONS ON ISSUANCE OF APPOINTMENTS AS RAISED
BEFORE THE RESPONDENT CIVIL SERVICE COMMISSION.
Petitioner assails the findings of both the CSC and the Court of Appeals for
being contrary to law and not being supported by the evidence on record. chanrobles virtuallawlibrary
This argument is too specious to be given credence. The records reveal that
when the petitioner brought the matter of recalling the appointments of the
fourteen (14) private respondents before the CSC, the only reason he cited
to justify his action was that these were "midnight appointments" that are
forbidden under Article VII, Section 15 of the Constitution. However, the
CSC ruled, and correctly so, that the said prohibition applies only to
presidential appointments. In truth and in fact, there is no law that prohibits
local elective officials from making appointments during the last days of his
or her tenure. Petitioner certainly did not raise the issue of fraud on the part
of the outgoing mayor who made the appointments. Neither did he allege
breached laws and regulations governing appointments. His solitary reason
for recalling these appointments was that they were, to his personal belief,
"midnight appointments" which the outgoing mayor had no authority to
make.
Even in petitioner’s consolidated appeal and motion for reconsideration, he
did not make any assertion that these appointments were violative of civil
service rules and procedures. Indeed, he harped on the CSC’s alleged lack of
jurisdiction to refuse to recall the subject appointments. After first invoking
the authority of the CSC to approve or affirm his act, he then contradicted
himself by arguing that the CSC had no jurisdiction to do so, but only after
the CSC had ruled that the recall was without legal basis. He emphasized
that he alone has sole discretion to appoint and recall the appointment of
municipal employees, an authority which, he stressed, the CSC cannot
usurp. Yet, nowhere in said pleading did he cite any other ground, much less
present proof that would warrant the recall of said appointments.
Perhaps realizing the weakness of his arguments, albeit belatedly, petitioner
filed a supplement to the appeal and motion for reconsideration where, for
122
the very first time, he alleged that the appointments were fraught with
irregularities for failing to comply with CSC rules and regulations.
Nevertheless, the CSC overruled petitioner’s assertions, holding that no new
evidence had been presented to warrant a reversal of its earlier resolution.
Thus, in a petition for review before the Court of Appeals, petitioner
questioned the CSC’s conclusion because it had ignored the allegations and
documents he presented in the supplement to his earlier consolidated appeal
and motion for reconsideration. He argued that these form part of the
records of the case and that the CSC erred in failing to consider the
assertions he raised therein. The appellate court, however, agreed with the
CSC when it ruled that the documents presented by petitioner in the
supplemental pleading did not constitute "new evidence" that would
convince the CSC to reverse its earlier ruling. In fine, the Court of Appeals,
as did the CSC, simply dismissed petitioner’s allegations and documents
attached to the supplemental pleading for they did not constitute new
evidence that a court, board or tribunal may entertain.
Herein lies the inconsistency of petitioner’s arguments. He faults the Court of
Appeals and the CSC for ignoring his supplemental pleading, while at the
same time arguing that the grounds for recall such as violations of laws and
regulations on issuance of appointments are not new issues because he had
timely raised them before the CSC.
There is no question that parties may file supplemental pleadings to supply
deficiencies in aid of an original pleading, but which should not entirely
substitute the latter. 9 The propriety and substance of supplemental
pleadings are prescribed under Rule 10, Section 6 of the 1997 Rules of Civil
Procedure, which provides: chanrob1es virtua1 1aw 1ibrary
SECTION 6. Supplemental Pleadings. — Upon motion of a party the court
may, upon reasonable notice and upon such terms as are just, permit him to
serve a supplemental pleading setting forth transactions, occurrences or
events which have happened since the date of the pleading sought to be
supplemented. The adverse party may plead thereto within ten (10) days
from notice of the order admitting the supplemental pleading.
Supplemental pleadings must be with reasonable notice, and it is
discretionary upon the court or tribunal to allow the same or not. Thus, the
CSC was under no obligation to admit the supplemental pleading, or even to
consider the averments therein.
Secondly, a supplemental pleading must state transactions, occurrences or
events which took place since the time the pleading sought to be
supplemented was filed. In the instant case, petitioner alleged fraud and
irregularities that supposedly occurred contemporaneous to the execution of
the appointments. They should have been raised at the very first
opportunity. They are not new events which petitioner could not have
originally included as grounds for the recall of the appointments.
Accordingly, the CSC, as well as the Court of Appeals, found that the
allegations in his supplemental pleading did not constitute "new evidence"
that can be the proper subject of a supplemental pleading. These were old
facts and issues which he failed to raise earlier. Consequently, the CSC and
the Court of Appeals did not err in refusing to give credence to the
supplemental pleading.
Be that as it may, these alleged irregularities were considered by the CSC
and the Court of Appeals as new issues which were raised for the first time
on appeal. It is rather too late for petitioner to raise these issues for the first
time on appeal. It is well-settled that issues or questions of fact cannot be
raised for the first time on appeal. 10 We have consistently held that
matters, theories or arguments not brought out in the original proceedings
cannot be considered on review or appeal where they are raised for the first
time. 11 To consider the alleged facts and arguments raised belatedly in the
supplemental pleading to the appeal at this very late stage in the
proceedings would amount to trampling on the basic principles of fair play,
justice and due process. 12 
The grounds for the recall of the appointments that petitioner raised in his
supplemental pleading to the consolidated appeal and motion for
reconsideration are that: (1) the rules on screening of applicants based on
adopted criteria were not followed; (2) there was no proper posting of notice
of vacancy; and (3) the merit and fitness requirements set by the civil
service rules were not observed. These are grounds that he could have
stated in his order of recall, but which he did not. Neither did he raise said
grounds in original appeal, but only by way of a supplemental pleading.
Failure of the petitioner to raise said grounds and to present supporting
documents constitute a waiver thereof, and the same arguments and
evidence can no longer be entertained on appeal before the CSC, nor in the
Court of Appeals, and much less in a petition for review before the Supreme
Court. 13 In fine, the raising of these factual issues for the first time in a
pleading which is supplemental only to an appeal is barred by estoppel. 14 
Petitioner asks this Court to appreciate and consider these factual issues. It
must be recalled that the jurisdiction of the Supreme Court in a petition for
review on certiorari under Rule 45 of the Revised Rules of Court is limited to
reviewing only errors of law, not of fact. 15 That is, of course, unless the
factual findings assailed by petitioner are devoid of support by the evidence
on record or the impugned judgment is based on a misapprehension of facts.
16 
123
A thorough perusal of the records reveal that the CSC’s ruling is supported
by the evidence and the law. The fourteen (14) employees were duly
appointed following two meetings of the Personnel Selection Board held on
May 31 and June 26, 1995. There is no showing that any of the private
respondents were not qualified for the positions they were appointed to.
Moreover, their appointments were duly attested to by the Head of the CSC
field office at Lucena City. By virtue thereof, they had already assumed their
appointive positions even before petitioner himself assumed his elected
position as town mayor. Consequently, their appointments took effect
immediately and cannot be unilaterally revoked or recalled by petitioner.
It has been held that upon the issuance of an appointment and the
appointee’s assumption of the position in the civil service, "he acquires a
legal right which cannot be taken away either by revocation of the
appointment or by removal except for cause and with previous notice and
hearing" 17 Moreover, it is well-settled that the person assuming a position
in the civil service under a completed appointment acquires a legal, not just
an equitable, right to the position. This right is protected not only by statute,
but by the Constitution as well, which right cannot be taken away by either
revocation of the appointment, or by removal, unless there is valid cause to
do so, provided that there is previous notice and hearing. 18  Accordingly, the appointments of the private respondents may only be
Petitioner admits that his very first official act upon assuming the position of
town mayor was to issue Office Order No. 95-01 which recalled the
appointments of the private respondents. There was no previous notice,
much less a hearing accorded to the latter. Clearly, it was petitioner who
acted in undue haste to remove the private respondents without regard for
the simple requirements of due process of law. In doing so, he overstepped
the bounds of his authority. While he argues that the appointing power has
the sole authority to revoke said appointments, there is no debate that he
does not have blanket authority to do so. Neither can he question the CSC’s
jurisdiction to affirm or revoke the recall.
Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised
Administrative Code specifically provides that "an appointment accepted by
the appointee cannot be withdrawn or revoked by the appointing authority
and shall remain in force and in effect until disapproved by the Commission."
Thus, it is the CSC that is authorized to recall an appointment initially
approved, but only when such appointment and approval are proven to be in
disregard of applicable provisions of the civil service law and regulations. 19 
Moreover, Section 10 of the same rule provides: chanrob1es virtual 1aw library
SECTION 10. An appointment issued in accordance with pertinent laws and
rules shall take effect immediately upon its issuance by the appointing
authority, and if the appointee has assumed the duties of the position, he
shall be entitled to receive his salary at once without awaiting the approval
of his appointment by the Commission. The appointment shall remain
effective until disapproved by the Commission. In no case shall an
appointment take effect earlier than the date of its issuance. chanrob1es virtua1 1aw 1ibrary
Section 20 of Rule VI also provides: chanrob1es virtual 1aw library
SECTION 20. Notwithstanding the initial approval of an appointment, the
same may be recalled on any of the following grounds: chanrob1es virtual 1aw library
chanrob1es virtua1 1aw 1ibrary
(a) Non-compliance with the procedures/criteria provided in the agency’s
Merit Promotion Plan;
(b) Failure to pass through the agency’s Selection/Promotion Board;
(c) Violation of the existing collective agreement between management and
employees relative to promotion; or
(d) Violation of other existing civil service law, rules and regulations.
recalled on the above-cited grounds. And yet, the only reason advanced by
the petitioner to justify the recall was that these were "midnight
appointments." The CSC correctly ruled, however, that the constitutional
prohibition on so-called "midnight appointments," specifically those made
within two (2) months immediately prior to the next presidential elections,
applies only to the President or Acting President.
If ever there were other procedural or legal requirements that were violated
in implementing the appointments of the private respondents, the same
were not seasonably brought before the Civil Service Commission. These
cannot be raised for the first time on appeal.
WHEREFORE, in view of all the foregoing, the instant petition for review is
DENIED and the Resolution of the Court of Appeals in CA-G.R. SP No. 42896
affirming CSC Resolutions Nos. 96-2828 and 96-7527 is hereby AFFIRMED in
toto.
No pronouncement as to costs.
SO ORDERED.
Kapunan, Quisumbing, Pardo, Buena and Sandoval-Gutierrez, JJ., concur.
Bellosillo, J., I concur for the reason that in this case bad faith cannot be
presumed.
124
Puno, J., I concur on the ground that evidence of bad faith is weak.
Vitug, J., I concur; I perceive no clear irregularities in the appointments.
Separate Opinions
MENDOZA, J., dissenting: chanrob1es virtual 1aw library
By its decision in this case today, the majority sanctions the making of
"midnight appointments" by local executives on the simplistic reasoning that
Art. VII, §15 1 of the Constitution applies only to Presidents and Acting
Presidents. What the majority overlooks is that Art. VII, §15 is simply an
application of a broader principle that after the appointing authority has lost
the elections, his is the duty of a prudent caretaker of the office, and,
therefore, he should not fill positions in the government unless required by
the imperatives of public service. This rule binds all, including mayors, who
are vested with the power of appointment, and it flows from the principle
that a public office is a public trust. 2 In Aytona v. Castillo, 3 this Court did
not need a specific constitutional or statutory provision to rule that the
making of 350 appointments after the proclamation of a new President and
during the last hours of the outgoing Chief Executive could not be upheld
consistent with "good faith, morality, and propriety." 4 So why should the
majority in this case demand a specific rule before it puts its foot down on
this pernicious practice of making "midnight" or last-hour appointments by
local executives?
For such indeed are the 14 appointments made in this case to various
positions in the municipal government of Pagbilao, Quezon. They were made
by Mayor Ma. Evelyn S. Abeja after she had lost her bid for re-election.
Despite the fact that the results of the election were proclaimed on May 11,
1995, she made several appointments within the space of 27 days, from
June 1, 1995 to June 27, 1995, just three days before she bowed out of the
service. Even when there was no urgent need to do so, she went ahead and
filled the vacancies in the municipal government a few days before the new
mayor, herein petitioner Conrado L. de Rama, took office on June 30, 1995.
The majority justifies the appointments on the ground that they were made
with the advice of the Personnel Selection Board of the Municipality and
attested by the Head of the Civil Service Field Office in Lucena City. As
petitioner points out, however, the 14 appointments were considered in only
two brief meetings of the board. Nine were passed upon by the Personnel
Selection Board in its meeting of June 16, 1995 which lasted only an hour,
from 4:30 to 5:30 P.M. These were the appointments of the following
respondents: chanrob1es virtua1 1aw 1ibrary
Aristeo G. Catalla Gen. Services Officer
Elsa M. Marino Mun. Agriculturist
Graciela V. Glory Bookkeeper II
Ma. Petra Muffet Luce Accounting Clerk III
Felicidad T. Orinday Accounting Clerk II
Bernardita M. Mendoza Agricultural Technologist
Flordeliza S. Oriasel Clerk I
Jane Macatangay Day Care Worker I
Adolfo Glodoviza Utility Worker II
On June 27, 1995, the nine (9) respondents were issued their appointments
by Mayor Abeja.
The appointments of four other respondents were considered by the
Personnel Selection Board in its meeting of May 31, 1995, which lasted only
an hour and ten minutes, from 3 P.M. to 4:10 P.M. These respondents are
the following, with the dates of their appointments set opposite their
names: chanrob1es virtual 1aw library
Eladio P. Martinez Registration Officer I June 1, 1995
Divino M. de Jesus Bookbinder III June 1, 1995
Morell M. Ayala Accounting Clerk III June 16, 1995
Daisy D. Porta Clerk IV June 27, 1995
In short, respondents’ appointments were made at two meetings of the
Personnel Selection Board, held on May 31, 1995 and June 16, 1995, each
meeting lasting no more than an hour. At both meetings of the board, Mayor
Abeja presided as chairperson. There was just a perfunctory compliance with
legal requirements. In the case of respondent Florencio S. Ramos, there is
even no record that his appointment on June 27, 1995 as Utility Foreman
was passed by the Personnel Selection Board.
Yet, neither the Civil Service Commission nor the Court of Appeals found
anything wrong or irregular with the 14 appointments made by outgoing
125
Mayor Abeja. The Civil Service Commission said: chanrob1es virtual 1aw library
Sections 9 and 10, Rule V, Omnibus Rules Implementing Book V of the
Revised Administrative Code of 1987 provides as follows:
SECTION 9. An appointment accepted by the appointee cannot be withdrawn
or revoked by the appointing authority and shall remain in force and effect
until disapproved by the Commission. However, an appointment may be void
from the beginning due to fraud on the part of the appointee or because it
was issued in violation of law.
SECTION 10. An appointment issued in accordance with pertinent laws or
rules shall take effect immediately upon its issuance by the appointing
authority, and if the appointee has assumed the duties of the position, he
shall be entitled to receive his salary at once without awaiting the approval
of his appointment by the Commission. The appointment shall remain
effective until disapproved by the Commission. In no case shall an
appointment take effect earlier than the date of its issuance.
In the absence of any showing that these alleged midnight appointments
were defective in form and in substance, nor is there evidence presented to
show that subject appointments were issued in contravention of law or rules,
these appointments are deemed valid and in effect. chanrob1es virtua1 1aw 1ibrary
The Honorable Mayor anchored his request for the recall of subject
appointments on the fact that these appointments were issued in violation of
Section 15, Article VII of the 1987 Constitution which provides as follows:
library
SECTION 15. Two months immediately before the next presidential elections
and up to the end of his term, as President or Acting President shall not
make appointments, except temporary appointments to executive positions
when continued vacancies therein will prejudice public service or endanger
public safety. (Emphasis supplied)
Clearly, the constitutional provision cited by Mayor De Rama speaks of
presidential elections. The instant case involves local elections and no
analogy can be made that what is prohibited during the presidential
elections is applicable also to local elections without any express provision of
law. Hence, the appointing authority can validly issue appointments until his
term has expired, as long as the appointee meets the qualification standards
for the position.
This ruling of the Civil Service Commission is echoed at pages 11-12 of the
majority opinion.
It is clear, however, that the Civil Service Commission did not find anything
wrong or irregular in the appointments of respondents because it failed to
appreciate the fact that "midnight appointments" — whether made by the
President or by a mayor — are bad, because they are made hurriedly,
chanrob1es virtual 1aw library without due deliberation and careful consideration of the needs of the office
and the qualifications of the appointees, and by an appointing authority on
the eve of his departure from office. "Midnight appointments" are bad
because, as the Aytona decision puts it, they offend principles of "fairness,
justice and righteousness." 5 They cannot be less bad because they are
made at the local level, by mayors and other local executives. The fact that
in this case the appointments were subsequently attested by the Civil
Service Commission Field Office in Lucena City does not make them any less
odious.chanrob1es virtua1 1aw 1ibrary
Public office — it cannot be too often repeated — is a public trust. As trustee
of a public office, the duty of Mayor Ma. Evelyn S. Abeja, as outgoing
executive, was to preserve the vacancies in the municipal government for
her successor to fill or not to fill. What this Court said in Aytona v. Castillo
applies with equal force to Mayor Abeja: chanrob1es virtual 1aw library
But it is common sense to believe that after the proclamation of the election
of President Macapagal, [outgoing President Garcia] was no more than a
"care-taker" administration. He was duty bound to prepare for the orderly
transfer of authority to the incoming President, and he should not do acts
which he ought to know, would embarrass or obstruct the policies of his
successor. The time for debate had passed; the electorate had spoken. It
was not for him to use his powers as incumbent President to continue the
chanrob1es virtual 1aw political warfare that had ended or to avail himself of presidential
prerogatives to serve partisan purposes. The filling up of vacancies in
important positions, if few, and so spaced as to afford some assurance of
deliberate action and careful consideration of the need for the appointment
and the appointee’s qualifications may undoubtedly be permitted. But the
issuance of 350 appointments in one night and the planned induction of
almost all of them a few hours before the inauguration of the new President
may, with some reason, be regarded by the latter as an abuse of
Presidential prerogatives, the steps taken being apparently a mere partisan
effort to fill all vacant positions irrespective of fitness and other conditions,
and thereby to deprive the new administration of an opportunity to make the
corresponding appointments. 6 
Of course an outgoing executive retains the power of appointment up to the
last day he is in his office. As the above excerpt from Aytona says, however,
the exercise of such power is circumscribed by the requirement that the
appointments made must be "few and so spaced as to afford some
assurance of deliberate action and careful consideration of the need for the
appointment and the appointee’s qualifications." 7 The hurried appointments
of respondents detract from that degree of good faith, morality, and
126
propriety required for appointments made by a faithful and prudent
caretaker in order to be considered valid.
chanrob1es virtua1 1aw 1ibrary
For these reasons, I vote to reverse the decision of the Court of Appeals and
to declare the appointments of private respondents as null and void.
G.R. No. 192791               April 24, 2012
DENNIS A. B. FUNA, Petitioner, 
vs.
THE CHAIRMAN, COMMISSION ON AUDIT, REYNALDO A.
VILLAR, Respondent.
DECISION
VELASCO, JR., J.:
In this Petition for Certiorari and Prohibition under Rule 65, Dennis A.
B. Funa challenges the constitutionality of the appointment of Reynaldo
A. Villar as Chairman of the Commission on Audit and accordingly
prays that a judgment issue "declaring the unconstitutionality" of the
appointment.
The facts of the case are as follows:
On February 15, 2001, President Gloria Macapagal-Arroyo (President
Macapagal-Arroyo) appointed Guillermo N. Carague (Carague) as
Chairman of the Commission on Audit (COA) for a term of seven (7)
years, pursuant to the 1987 Constitution. Carague’s term of office
1 
started on February 2, 2001 to end on February 2, 2008.
Meanwhile, on February 7, 2004, President Macapagal-Arroyo
appointed Reynaldo A. Villar (Villar) as the third member of the COA
for a term of seven (7) years starting February 2, 2004 until February 2,
2011.
Following the retirement of Carague on February 2, 2008 and during
the fourth year of Villar as COA Commissioner, Villar was designated
as Acting Chairman of COA from February 4, 2008 to April 14, 2008.
Subsequently, on April 18, 2008, Villar was nominated and appointed
as Chairman of the COA. Shortly thereafter, on June 11, 2008, the
Commission on Appointments confirmed his appointment. He was to
serve as Chairman of COA, as expressly indicated in the appointment
papers, until the expiration of the original term of his office as COA
Commissioner or on February 2, 2011. Challenged in this recourse,
Villar, in an obvious bid to lend color of title to his hold on the
chairmanship, insists that his appointment as COA Chairman accorded
him a fresh term of seven (7) years which is yet to lapse. He would
argue, in fine, that his term of office, as such chairman, is up to
February 2, 2015, or 7 years reckoned from February 2, 2008 when he
was appointed to that position.
Meanwhile, Evelyn R. San Buenaventura (San Buenaventura) was
appointed as COA Commissioner to serve the unexpired term of Villar
as Commissioner or up to February 2, 2011.
Before the Court could resolve this petition, Villar, via a letter dated
February 22, 2011 addressed to President Benigno S. Aquino III,
signified his intention to step down from office upon the appointment of
his replacement. True to his word, Villar vacated his position when
President Benigno Simeon Aquino III named Ma. Gracia Pulido-Tan
(Chairman Tan) COA Chairman. This development has rendered this
petition and the main issue tendered therein moot and academic.
case is considered moot and academic when its purpose has become
stale, or when it ceases to present a justiciable controversy owing to
2 
the onset of supervening events, so that a resolution of the case or a
3 
declaration on the issue would be of no practical value or use. In such
4 
instance, there is no actual substantial relief which a petitioner would
be entitled to, and which will anyway be negated by the dismissal of
the basic petition. As a general rule, it is not within Our charge and
5 
function to act upon and decide a moot case. However, in David v.
Macapagal-Arroyo, We acknowledged and accepted certain
6 
exceptions to the issue of mootness, thus:
127
The "moot and academic" principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will
decide cases, otherwise moot and academic, if: first, there is a grave
violation of the Constitution, second, the exceptional character of the
situation and the paramount public interest is involved, third, when
constitutional issue raised requires formulation of controlling principles
to guide the bench, the bar, and the public, and fourth, the case is
capable of repetition yet evading review.
Although deemed moot due to the intervening appointment of
Chairman Tan and the resignation of Villar, We consider the instant
case as falling within the requirements for review of a moot and
academic case, since it asserts at least four exceptions to the
mootness rule discussed in David, namely: there is a grave violation of
the Constitution; the case involves a situation of exceptional character
and is of paramount public interest; the constitutional issue raised
requires the formulation of controlling principles to guide the bench, the
bar and the public; and the case is capable of repetition yet evading
review. The situation presently obtaining is definitely of such
7 
exceptional nature as to necessarily call for the promulgation of
principles that will henceforth "guide the bench, the bar and the public"
should like circumstance arise. Confusion in similar future situations
would be smoothed out if the contentious issues advanced in the
instant case are resolved straightaway and settled definitely. There are
times when although the dispute has disappeared, as in this case, it
nevertheless cries out to be addressed. To borrow from Javier v.
Pacificador, "Justice demands that we act then, not only for the
8 
vindication of the outraged right, though gone, but also for the
guidance of and as a restraint in the future."
Both procedural and substantive issues are raised in this proceeding.
The procedural aspect comes down to the question of whether or not
the following requisites for the exercise of judicial review of an
executive act obtain in this petition, viz: (1) there must be an actual
case or justiciable controversy before the court; (2) the question before
it must be ripe for adjudication; (3) the person challenging the act must
be a proper party; and (4) the issue of constitutionality must be raised
at the earliest opportunity and must be the very litis mota of the case.9 
To Villar, all the requisites have not been met, it being alleged in
particular that petitioner, suing as a taxpayer and citizen, lacks the
necessary standing to challenge his appointment. On the other hand,
10 
the Office of the Solicitor General (OSG), while recognizing the validity
of Villar’s appointment for the period ending February 11, 2011, has
expressed the view that petitioner should have had filed a petition for
declaratory relief or quo warranto under Rule 63 or Rule 66,
respectively, of the Rules of Court instead of certiorari under Rule 65.
Villar’s posture on the absence of some of the mandatory requisites for
the exercise by the Court of its power of judicial review must fail. As a
general rule, a petitioner must have the necessary personality or
standing (locus standi) before a court will recognize the issues
presented. In Integrated Bar of the Philippines v. Zamora, We defined
locus standi as:
x x x a personal and substantial interest in the case such that the party
has sustained or will sustain a direct injury as a result of the
governmental act that is being challenged. The term "interest" means a
material interest, an interest in issue affected by the decree, as
distinguished from mere interest in the question involved, or a mere
incidental interest. The gist of the question of standing is whether a
party alleges "such personal stake in the outcome of the controversy
as to assure the concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of
difficult constitutional questions."
11 
To have legal standing, therefore, a suitor must show that he has
sustained or will sustain a "direct injury" as a result of a government
action, or have a "material interest" in the issue affected by the
challenged official act. However, the Court has time and again acted
12 
liberally on the locus standi requirements and has accorded certain
individuals, not otherwise directly injured, or with material interest
affected, by a Government act, standing to sue provided a
constitutional issue of critical significance is at stake. The rule on locus
13 
standi is after all a mere procedural technicality in relation to which the
Court, in a catena of cases involving a subject of transcendental
import, has waived, or relaxed, thus allowing non-traditional plaintiffs,
such as concerned citizens, taxpayers, voters or legislators, to sue in
128
the public interest, albeit they may not have been personally injured by
the operation of a law or any other government act. In David, the Court
14 
laid out the bare minimum norm before the so-called "non-traditional
suitors" may be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of illegal disbursement
of public funds or that the tax measure is unconstitutional;
2.) For voters, there must be a showing of obvious interest in
the validity of the election law in question;
3.) For concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must be
settled early; and
4.) For legislators, there must be a claim that the official action
complained of infringes their prerogatives as legislators.
This case before Us is of transcendental importance, since it obviously
has "far-reaching implications," and there is a need to promulgate rules
that will guide the bench, bar, and the public in future analogous cases.
We, thus, assume a liberal stance and allow petitioner to institute the
instant petition.
Anent the aforestated posture of the OSG, there is no serious
disagreement as to the propriety of the availment of certiorari as a
medium to inquire on whether the assailed appointment of respondent
Villar as COA Chairman infringed the constitution or was infected with
grave abuse of discretion. For under the expanded concept of judicial
review under the 1987 Constitution, the corrective hand of certiorari
may be invoked 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 the government." "Grave abuse of discretion"
15  commission as a body and that of its individual members. These are,
denotes:
such capricious and whimsical exercise of judgment as is equivalent to
lack of jurisdiction, or, in other words, where the power is exercised in
an arbitrary or despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to amount to an evasion
of positive duty or to a virtual refusal to perform the duty enjoined or to
act in contemplation of law.16 
We find the remedy of certiorari applicable to the instant case in view
of the allegation that then President Macapagal-Arroyo exercised her
appointing power in a manner constituting grave abuse of discretion.
This brings Us to the pivotal substantive issue of whether or not Villar’s
appointment as COA Chairman, while sitting in that body and after
having served for four (4) years of his seven (7) year term as COA
commissioner, is valid in light of the term limitations imposed under,
and the circumscribing concepts tucked in, Sec. 1 (2), Art. IX(D) of the
Constitution, which reads:
(2) The Chairman and Commissioners [on Audit] shall be appointed by
the President with the consent of the Commission on Appointments for
a term of seven years without reappointment. Of those first appointed,
the Chairman shall hold office for seven years, one commissioner for
five years, and the other commissioner for three years, without
reappointment. Appointment to any vacancy shall be only for the
unexpired portion of the term of the predecessor. In no case shall any
member be appointed or designated in a temporary or acting capacity.
(Emphasis added.) 17 
And if valid, for how long can he serve?
At once clear from a perusal of the aforequoted provision are the
defined restricting features in the matter of the composition of COA and
the appointment of its members (commissioners and chairman)
designed to safeguard the independence and impartiality of the
18 
first, the rotational plan or the staggering term in the commission
membership, such that the appointment of commission members
subsequent to the original set appointed after the effectivity of the 1987
Constitution shall occur every two years; second, the maximum but a
129
fixed term-limit of seven (7) years for all commission members whose
appointments came about by reason of the expiration of term save the
aforementioned first set of appointees and those made to fill up
vacancies resulting from certain causes; third, the prohibition against
reappointment of commission members who served the full term of
seven years or of members first appointed under the Constitution who
served their respective terms of office; fourth, the limitation of the term
of a member to the unexpired portion of the term of the predecessor;
and fifth, the proscription against temporary appointment or
designation.
To elucidate on the mechanics of and the adverted limitations on the
matter of COA-member appointments with fixed but staggered terms of
office, the Court lays down the following postulates deducible from
pertinent constitutional provisions, as construed by the Court:
1. The terms of office and appointments of the first set of
commissioners, or the seven, five and three-year termers
referred to in Sec. 1(2), Art. IX(D) of the Constitution, had
already expired. Hence, their respective terms of office find
relevancy for the most part only in understanding the operation
of the rotational plan. In Gaminde v. Commission on Audit, the19  from dominating the commissions." It has been 23
Court described how the smooth functioning of the rotational
system contemplated in said and like provisions covering the
two other independent commissions is achieved thru the
staggering of terms:
x x x [T]he terms of the first Chairmen and Commissioners of
the Constitutional Commissions under the 1987 Constitution
must start on a common date [February 02, 1987, when the
1987 Constitution was ratified] irrespective of the variations in
the dates of appointments and qualifications of the appointees
in order that the expiration of the first terms of seven, five and
three years should lead to the regular recurrence of the two-
year interval between the expiration of the terms.
x x x In case of a belated appointment, the interval between the
start of the terms and the actual appointment shall be counted
against the appointee. (Italization in the original; emphasis
20 
added.)
Early on, in Republic v. Imperial, the Court wrote of two
21 
conditions, "both indispensable to [the] workability" of
the rotational plan. These conditions may be described
as follows: (a) that the terms of the first batch of
commissioners should start on a common date; and (b)
that any vacancy due to death, resignation or disability
before the expiration of the term should be filled only for
the unexpired balance of the term. Otherwise, Imperial
continued, "the regularity of the intervals between
appointments would be destroyed." There appears to
be near unanimity as to the purpose/s of the rotational
system, as originally conceived, i.e., to place in the
commission a new appointee at a fixed interval (every
two years presently), thus preventing a four-year
administration appointing more than one permanent
and regular commissioner, or to borrow from
22 
Commissioner Monsod of the 1986 CONCOM, "to
prevent one person (the President of the Philippines)
 
declared too that the rotational plan ensures continuity
in, and, as indicated earlier, secure the independence
of, the commissions as a body. 24 
2. An appointment to any vacancy in COA, which arose from
an expiration of a term, after the first chairman and
commissioners appointed under the 1987 Constitution have
bowed out, shall, by express constitutional fiat, be for a term of
seven (7) years, save when the appointment is to fill up a
vacancy for the corresponding unserved term of an outgoing
member. In that case, the appointment shall only be for the
unexpired portion of the departing commissioner’s term of
office. There can only be an unexpired portion when, as a
direct result of his demise, disability, resignation or
impeachment, as the case may be, a sitting member is unable
to complete his term of office. To repeat, should the vacancy
25 
arise out of the expiration of the term of the incumbent, then
130
 there is technically no unexpired portion to speak of. The
vacancy is for a new and complete seven-year term and, ergo,
the appointment thereto shall in all instances be for a maximum
seven (7) years.
3. Sec. 1(2), Art. IX(D) of the 1987 Constitution prohibits the
"reappointment" of a member of COA after his appointment for
seven (7) years. Writing for the Court in Nacionalista Party v.
De Vera, a case involving the promotion of then COMELEC
26 
Commissioner De Vera to the position of chairman, then Chief
Justice Manuel Moran called attention to the fact that the
prohibition against "reappointment" comes as a continuation of
the requirement that the commissioners––referring to members
of the COMELEC under the 1935 Constitution––shall hold
office for a term of nine (9) years. This sentence formulation
imports, notes Chief Justice Moran, that reappointment is not
an absolute prohibition.
4. The adverted system of regular rotation or the staggering of
appointments and terms in the membership for all three
constitutional commissions, namely the COA, Commission on
Elections (COMELEC) and Civil Service Commission (CSC)
found in the 1987 Constitution was patterned after the
amended 1935 Constitution for the appointment of the
members of COMELEC with this difference: the 1935 version
27 
entailed a regular interval of vacancy every three (3) years,
instead of the present two (2) years and there was no express
provision on appointment to any vacancy being limited to the
unexpired portion of the his predecessor’s term. The model
1935 provision reads:
Section 1. There shall be an independent Commission on Elections
composed of a Chairman and two other members to be appointed by
the President with the consent of the Commission on Appointments,
who shall hold office for a term of nine years and may not be
reappointed. Of the Members of the Commission first appointed, one
shall hold office for nine years, another for six years and the third for
three years. x x x
Petitioner now asseverates the view that Sec. 1(2), Art. IX(D) of the
1987 Constitution proscribes reappointment of any kind within the
commission, the point being that a second appointment, be it for the
same position (commissioner to another position of commissioner) or
upgraded position (commissioner to chairperson) is a prohibited
reappointment and is a nullity ab initio. Attention is drawn in this regard
to the Court’s disposition in Matibag v. Benipayo. 28 
Villar’s promotional appointment, so it is argued, is void from the start,
constituting as it did a reappointment enjoined by the Constitution,
since it actually needed another appointment to a different office and
requiring another confirmation by the Commission on Appointments.
Central to the adjudication of the instant petition is the correct meaning
to be given to Sec. 1(2), Article IX(D) of the Constitution on the ban
against reappointment in relation to the appointment issued to
respondent Villar to the position of COA Chairman.
Without question, the parties have presented two (2) contrasting and
conflicting positions. Petitioner contends that Villar’s appointment is
proscribed by the constitutional ban on reappointment under the
aforecited constitutional provision. On the other hand, respondent Villar
initially asserted that his appointment as COA Chairman is valid up to
February 2, 2015 pursuant to the same provision.
The Court finds petitioner’s position bereft of merit. The flaw lies in
regarding the word "reappointment" as, in context, embracing any and
all species of appointment.
The rule is that if a statute or constitutional provision is clear, plain and
free from ambiguity, it must be given its literal meaning and applied
without attempted interpretation. This is known as the plain meaning
29 
rule enunciated by the maxim verba legis non est recedendum, or from
the words of a statute there should be no departure. 30 
The primary source whence to ascertain constitutional intent or
purpose is the language of the provision itself. If possible, the words in
31 
the Constitution must be given their ordinary meaning, save where
131
technical terms are employed. J.M. Tuason & Co., Inc. v. Land Tenure
Administration illustrates the verbal legis rule in this wise:
We look to the language of the document itself in our search for its
meaning. We do not of course stop there, but that is where we begin. It
is to be assumed that the words in which constitutional provisions are
couched express the objective sought to be attained. They are to be
given their ordinary meaning except where technical terms are
employed in which case the significance thus attached to them
prevails. 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 there are cases where the need for construction is
reduced to a minimum. (Emphasis supplied.)
32 
Let us dissect and examine closely the provision in question:
(2) The Chairman and Commissioners [on Audit] shall be appointed by
the President with the consent of the Commission on Appointments for
a term of seven years without reappointment. Of those first appointed,
the Chairman shall hold office for seven years, one commissioner for
five years, and the other commissioner for three years, without
reappointment. Appointment to any vacancy shall be only for the
unexpired portion of the term of the predecessor. x x x (Emphasis
added.)
The first sentence is unequivocal enough. The COA Chairman shall be
appointed by the President for a term of seven years, and if he has
served the full term, then he can no longer be reappointed or extended
another appointment. In the same vein, a Commissioner who was
appointed for a term of seven years who likewise served the full term is
barred from being reappointed. In short, once the Chairman or
Commissioner shall have served the full term of seven years, then he
can no longer be reappointed to either the position of Chairman or
Commissioner. The obvious intent of the framers is to prevent the
president from "dominating" the Commission by allowing him to appoint
an additional or two more commissioners.
The same purpose obtains in the second sentence of Sec. 1(2). The
Constitutional Convention barred reappointment to be extended to
commissioner-members first appointed under the 1987 Constitution to
prevent the President from controlling the commission. Thus, the first
Chairman appointed under the 1987 Constitution who served the full
term of seven years can no longer be extended a reappointment.
Neither can the Commissioners first appointed for the terms of five
years and three years be eligible for reappointment. This is the plain
meaning attached to the second sentence of Sec. 1(2), Article IX(D).
On the other hand, the provision, on its face, does not prohibit a
promotional appointment from commissioner to chairman as long as
the commissioner has not served the full term of seven years, further
qualified by the third sentence of Sec. 1(2), Article IX (D) that "the
appointment to any vacancy shall be only for the unexpired portion of
the term of the predecessor." In addition, such promotional
appointment to the position of Chairman must conform to the rotational
plan or the staggering of terms in the commission membership such
that the aggregate of the service of the Commissioner in said position
and the term to which he will be appointed to the position of Chairman
must not exceed seven years so as not to disrupt the rotational system
in the commission prescribed by Sec. 1(2), Art. IX(D).
In conclusion, there is nothing in Sec. 1(2), Article IX(D) that explicitly
precludes a promotional appointment from Commissioner to Chairman,
provided it is made under the aforestated circumstances or conditions.
It may be argued that there is doubt or ambiguity on whether Sec. 1(2),
Art. IX(D), as couched, allows a promotional appointment from
Commissioner to Chairman. Even if We concede the existence of an
ambiguity, the outcome will remain the same. J.M. Tuason & Co.,
Inc. teaches that in case of doubt as to the import and react of a
33 
constitutional provision, resort should be made to extraneous aids of
construction, such as debates and proceedings of the Constitutional
Convention, to shed light on and ascertain the intent of the framers or
the purpose of the provision being construed.
132
The understanding of the Convention as to what was meant by the
terms of the constitutional provision which was the subject of the
deliberation goes a long way toward explaining the understanding of
the people when they ratified it. The Court applied this principle in Civil
Liberties Union v. Executive Secretary:
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. (Emphasis added.)
34 
And again in Nitafan v. Commissioner on Internal Revenue:
x x x The ascertainment of that intent is but in keeping with the
fundamental principle of constitutional construction that the intent of the
framers of the organic law and of the people adopting it should be
given effect. The primary task in constitutional construction is to
ascertain and thereafter assure the realization of the purpose of the
framers and of the people in the adoption of the Constitution. It may
also be safely assumed that the people in ratifying the Constitution
were guided mainly by the explanation offered by the
framers. (Emphasis added.)
35 
Much weight and due respect must be accorded to the intent of the
framers of the Constitution in interpreting its provisions.
Far from prohibiting reappointment of any kind, including a situation
where a commissioner is upgraded to the position of chairman, the
1987 Constitution in fact unequivocally allows promotional
appointment, but subject to defined parameters. The ensuing
exchanges during the deliberations of the 1986 Constitutional
Commission (CONCOM) on a draft proposal of what would eventually
be Sec. 1(2), Art. IX(D) of the present Constitution amply support the
thesis that a promotional appointment is allowed provided no one may
be in the COA for an aggregate threshold period of 7 years:
MS. AQUINO: In the same paragraph, I would propose an amendment
x x x. Between x x x the sentence which begins with "In no case,"
insert THE APPOINTEE SHALL IN NO CASE SERVE AN
AGGREGATE PERIOD OF MORE THAN SEVEN YEARS. I was
thinking that this may approximate the situation wherein a
commissioner is first appointed as chairman. I am willing to withdraw
that amendment if there is a representation on the part of the
Committee that there is an implicit intention to prohibit a term that in
the aggregate will exceed more than seven years. If that is the
intention, I am willing to withdraw my amendment.
MR. MONSOD: If the [Gentlewoman] will read the whole Article, she
will notice that there is no reappointment of any kind and, therefore, as
a whole there is no way somebody can serve for more than seven
years. The purpose of the last sentence is to make sure that this does
not happen by including in the appointment both temporary and acting
capacities.
MS. AQUINO. Yes. Reappointment is fine; that is accounted for. But I
was thinking of a situation wherein a commissioner is upgraded to a
position of chairman. But if this provision is intended to cover that kind
of situation, then I am willing to withdraw my amendment.
MR. MONSOD. It is covered.
MR. FOZ. There is a provision on line 29 precisely to cover that
situation. It states: "Appointment to any vacancy shall be only for the
unexpired portion of the predecessor." In other words, if there is
upgrading of position from commissioner to chairman, the appointee
can serve only the unexpired portion of the term of the predecessor.
133
MS. AQUINO: But we have to be very specific x x x because it might
shorten the term because he serves only the unexpired portion of the
term of the predecessor.
MR. FOZ: He takes it at his own risk. He knows that he will only have
to serve the unexpired portion of the term of the predecessor.
(Emphasis added.) 36 
The phrase "upgrading of position" found in the underscored portion
unmistakably shows that Sec. 1(2), Art. IX(D) of the 1987 Constitution,
for all its caveat against reappointment, does not per se preclude, in
any and all cases, the promotional appointment or upgrade of a
commissioner to chairman, subject to this proviso: the appointee’s
tenure in office does not exceed 7 years in all. Indeed, such
appointment does not contextually come within the restricting phrase
"without reappointment" twice written in that section. Delegate Foz
even cautioned, as a matter of fact, that a sitting commissioner
accepting a promotional appointment to fill up an unexpired portion
pertaining to the higher office does so at the risk of shortening his
original term. To illustrate the Foz’s concern: assume that Carague left
COA for reasons other than the expiration of his threshold 7-year term
and Villar accepted an appointment to fill up the vacancy. In this
situation, the latter can only stay at the COA and served the unexpired
portion of Carague’s unexpired term as departing COA Chairman, even
if, in the process, his (Villar’s) own 7-year term as COA commissioner
has not yet come to an end. In this illustration, the inviolable regularity
of the intervals between appointments in the COA is preserved.
Moreover, jurisprudence tells us that the word "reappointment" means
a second appointment to one and the same office. As Justice Arsenio
37 
Dizon (Justice Dizon) aptly observed in his dissent in Visarra v.
Miraflor, the constitutional prohibition against the reappointment of a
38 
commissioner refers to his second appointment to the same office after
holding it for nine years. As Justice Dizon observed, "[T]he occupant
39 
of an office obviously needs no such second appointment unless, for
some valid cause, such as the expiration of his term or resignation, he
had ceased to be the legal occupant thereof."  The inevitable
40 
implication of Justice Dizon’s cogent observation is that a promotion
from commissioner to chairman, albeit entailing a second appointment,
involves a different office and, hence, not, in the strict legal viewpoint, a
reappointment. Stated a bit differently, "reappointment" refers to a
movement to one and the same office. Necessarily, a movement to a
different position within the commission (from Commissioner to
Chairman) would constitute an appointment, or a second appointment,
to be precise, but not reappointment.
A similar opinion was expressed in the same Visarra case by the
concurring Justice Angelo Bautista, although he expressly alluded to a
promotional appointment as not being a prohibited appointment under
Art. X of the 1935 Constitution.
Petitioner’s invocation of Matibag as additional argument to contest the
constitutionality of Villar’s elevation to the COA chairmanship is
inapposite. In Matibag, then President Macapagal-Arroyo appointed,
ad interim, Alfredo Benipayo as COMELEC Chairman and
Resurreccion Borra and Florentino Tuason as Commissioners, each
for a term of office of seven (7) years. All three immediately took their
oath of, and assumed, office. These appointments were twice renewed
because the Commission on Appointments failed to act on the first two
ad interim appointments. Via a petition for prohibition, some disgruntled
COMELEC officials assail as infirm the appointments of Benipayo, et
al.
Matibag lists (4) four situations where the prohibition on reappointment
would arise, or to be specific, where the proviso "[t]he Chairman and
the Commissioners shall be appointed x x x for a term of seven years
without reappointment" shall apply. Justice Antonio T. Carpio declares
in his dissent that Villar’s appointment falls under a combination of two
of the four situations.
Conceding for the nonce the correctness of the premises depicted in
the situations referred to in Matibag, that case is of doubtful
applicability to the instant petition. Not only is it cast against a different
milieu, but the lis mota of the case, as expressly declared in the main
opinion, "is the very constitutional issue raised by petitioner." And what
41 
is/are this/these issue/s? Only two defined issues in Matibag are
relevant, viz: (1) the nature of an ad interim appointment and
subsumed thereto the effect of a by-passed ad interim appointment;
134
and (2) the constitutionality of renewals of ad interim appointments.
The opinion defined these issues in the following wise: "Petitioner
[Matibag] filed the instant petition questioning the appointment and the
right to remain in office of Benipayo, Borra and Tuason as Chairman
and Commissioners of the COMELEC, respectively. Petitioner claims
that the ad interim appointments of Benipayo, et al. violate the
constitutional provisions on the independence of COMELEC, as well as
on the prohibitions on temporary appointments and reappointments of
its Chairman and members." As may distinctly be noted, an upgrade or
promotion was not in issue in Matibag.
We shall briefly address the four adverted situations outlined in
Matibag, in which, as there urged, the uniform proviso on no
reappointment––after a member of any of the three constitutional
commissions is appointed for a term of seven (7) years––shall apply.
Matibag made the following formulation:
The first situation is where an ad interim appointee after confirmation
by the Commission on Appointments serves his full 7-year term. Such
person cannot be reappointed whether as a member or as chairman
because he will then be actually serving more than seven (7) years.
The second situation is where the appointee, after confirmation, serves
part of his term and then resigns before his seven-year term of office
ends. Such person cannot be reappointed whether as a member or as
chair to a vacancy arising from retirement because a reappointment
will result in the appointee serving more than seven years.
The third situation is where the appointee is confirmed to serve the
unexpired portion of someone who died or resigned, and the appointee
completes the unexpired term. Such person cannot be reappointed
whether as a member or as chair to a vacancy arising from retirement
because a reappointment will result in the appointee also serving more
than seven (7) years.
The fourth situation is where the appointee has previously served a
term of less than seven (7) years, and a vacancy arises from death or
resignation. Even if it will not result in his serving more than seven
years, a reappointment of such person to serve an unexpired term is
also prohibited because his situation will be similar to those appointed
under the second sentence of Sec. 1(20), Art. IX-C of the Constitution
[referring to the first set of appointees (the 5 and 3 year termers)
whose term of office are less than 7 years but are barred from being
reappointed under any situation]." (Words in brackets and emphasis
42 
supplied.)
The situations just described constitute an obiter dictum, hence without
the force of adjudication, for the corresponding formulation of the four
situations was not in any way necessary to resolve any of the
determinative issues specifically defined in Matibag. An opinion entirely
unnecessary for the decision of the case or one expressed upon a
point not necessarily involved in the determination of the case is an
obiter.
43 
There can be no serious objection to the scenarios depicted in the first,
second and third situations, both hewing with the proposition that no
one can stay in any of the three independent commissions for an
aggregate period of more than seven (7) years. The fourth situation,
however, does not commend itself for concurrence inasmuch as it is
basically predicated on the postulate that reappointment, as earlier
herein defined, of any kind is prohibited under any and all
circumstances. To reiterate, the word "reappointment" means a second
appointment to one and the same office; and Sec. 1(2), Art. IX(D) of
the 1987 Constitution and similar provisions do not peremptorily
prohibit the promotional appointment of a commissioner to chairman,
provided the new appointee’s tenure in both capacities does not
exceed seven (7) years in all. The statements in Matibag enunciating
the ban on reappointment in the aforecited fourth situation, perforce,
must be abandoned, for, indeed, a promotional appointment from the
position of Commissioner to that of Chairman is constitutionally
permissible and not barred by Sec. 1(2), Art. IX (D) of the Constitution.
One of the aims behind the prohibition on reappointment, petitioner
urges, is to ensure and preserve the independence of COA and its
members, citing what the dissenting Justice J.B.L Reyes wrote in
44 
Visarra, that once appointed and confirmed, the commissioners should
be free to act as their conscience demands, without fear of retaliation
or hope or reward. Pursued to its logical conclusion, petitioner’s thesis
135
is that a COA member may no longer act with independence if he or
she can be rewarded with a promotion or appointment, for then he or
she will do the bidding of the appointing authority in the hope of being
promoted or reappointed.
The unstated reason behind Justice J.B.L. Reyes’ counsel is that
independence is really a matter of choice. Without taking anything
away from the gem imparted by the eminent jurist, what Chief Justice
Moran said on the subject of independence is just as logically sound
and perhaps even more compelling, as follows:
A Commissioner, hopeful of reappointment may strive to do good.
Whereas, without that hope or other hope of material reward, his
enthusiasm may decline as the end of his term approaches and he
may even lean to abuses if there is no higher restrain in his moral
character. Moral character is no doubt the most effective safeguard of
independence. With moral integrity, a commissioner will be
independent with or without the possibility of reappointment. 45 
The Court is likewise unable to sustain Villar’s proposition that his
promotional appointment as COA Chairman gave him a completely
fresh 7-year term––from February 2008 to February 2015––given his
four (4)-year tenure as COA commissioner devalues all the past
pronouncements made by this Court, starting in De Vera, then
Imperial, Visarra, and finally Matibag. While there had been divergence
of opinion as to the import of the word "reappointment," there has been
unanimity on the dictum that in no case can one be a COA member,
either as chairman or commissioner, or a mix of both positions, for an
aggregate term of more than 7 years. A contrary view would allow a
circumvention of the aggregate 7-year service limitation and would be
constitutionally offensive as it would wreak havoc to the spirit of the
rotational system of succession. Imperial, passing upon the rotational
system as it applied to the then organizational set-up of the
COMELEC, stated:
The provision that of the first three commissioners appointed "one shall
hold office for 9 years, another for 6 years and the third for 3 years,"
when taken together with the prescribed term of office for 9 years
without reappointment, evinces a deliberate plan to have a regular
rotation or cycle in the membership of the commission, by having
subsequent members appointable only once every three years. 46 
To be sure, Villar’s appointment as COA Chairman partakes of a
promotional appointment which, under appropriate setting, would be
outside the purview of the constitutional reappointment ban in Sec 1(2),
Art. IX(D) of the Constitution. Nonetheless, such appointment, even for
the term appearing in the underlying appointment paper, ought still to
be struck down as unconstitutional for the reason as shall be
explained.
Consider:
In a mandatory tone, the aforecited constitutional provision decrees
that the appointment of a COA member shall be for a fixed 7-year term
if the vacancy results from the expiration of the term of the
predecessor. We reproduce in its pertinent part the provision referred
to:
(2) The Chairman and Commissioners [on Audit] shall be appointed x x
x for a term of seven years without reappointment. x x x Appointment
to any vacancy shall be only for the unexpired portion of the term of the
predecessor. x x x
Accordingly, the promotional appointment as COA Chairman of Villar
for a stated fixed term of less than seven (7) years is void for violating
a clear, but mandatory constitutional prescription. There can be no
denying that the vacancy in the position of COA chairman when
Carague stepped down in February 2, 2008 resulted from the
expiration of his 7-year term. Hence, the appointment to the vacancy
thus created ought to have been one for seven (7) years in line with the
verbal legis approach of interpreting the Constitution. It is to be
47 
understood, however, following Gaminde, that in case of a belated
appointment, the interval between the start of the term and the actual
appointment shall be counted against the 7-year term of the appointee.
Posing, however, as an insurmountable barrier to a full 7-year
appointment for Villar is the rule against one serving the commission
for an aggregate term of more than seven (7) years.
136
Where the Constitution or, for that matter, a statute, has fixed the term
of office of a public official, the appointing authority is without authority
to specify in the appointment a term shorter or longer than what the law
provides. If the vacancy calls for a full seven-year appointment, the
President is without discretion to extend a promotional appointment for
more or for less than seven (7) years. There is no in between. He or
she cannot split terms. It is not within the power of the appointing
authority to override the positive provision of the Constitution which
dictates that the term of office of members of constitutional bodies shall
be seven (7) years. A contrary reasoning "would make the term of
48 
office to depend upon the pleasure or caprice of the [appointing
authority] and not upon the will [of the framers of the Constitution] of
the legislature as expressed in plain and undoubted language in the
law."49 
In net effect, then President Macapagal-Arroyo could not have had,
under any circumstance, validly appointed Villar as COA Chairman, for
a full 7-year appointment, as the Constitution decrees, was not legally
feasible in light of the 7-year aggregate rule. Villar had already served
4 years of his 7-year term as COA Commissioner. A shorter term,
however, to comply with said rule would also be invalid as the
corresponding appointment would effectively breach the clear purpose
of the Constitution of giving to every appointee so appointed
subsequent to the first set of commissioners, a fixed term of office of 7
years. To recapitulate, a COA commissioner like respondent Villar who
serves for a period less than seven (7) years cannot be appointed as
chairman when such position became vacant as a result of the
expiration of the 7-year term of the predecessor (Carague). Such
appointment to a full term is not valid and constitutional, as the
appointee will be allowed to serve more than seven (7) years under the
constitutional ban.
On the other hand, a commissioner who resigned before serving his 7-
year term can be extended an appointment to the position of chairman
for the unexpired period of the term of the latter, provided the
aggregate of the period he served as commissioner and the period he
will serve as chairman will not exceed seven (7) years. This situation
will only obtain when the chairman leaves the office by reason of
death, disability, resignation or impeachment. Let us consider, in the
concrete, the situation of then Chairman Carague and his successor,
Villar. Carague was appointed COA Chairman effective February 2,
2001 for a term of seven (7) years, or up to February 2, 2008. Villar
was appointed as Commissioner on February 2, 2004 with a 7-year
term to end on February 2, 2011. If Carague for some reason vacated
the chairmanship in 2007, then Villar can resign as commissioner in
the same year and later be appointed as chairman to serve only up to
February 2, 2008, the end of the unexpired portion of Carague’s term.
In this hypothetical scenario, Villar’s appointment to the position of
chairman is valid and constitutional as the aggregate periods of his two
(2) appointments will only be five (5) years which neither distorts the
rotational scheme nor violates the rule that the sum total of said
appointments shall not exceed seven (7) years. Villar would, however,
forfeit two (2) years of his original seven (7)-year term as
Commissioner, since, by accepting an upgraded appointment to
Carague’s position, he agreed to serve the unexpired portion of the
term of the predecessor. As illustrated earlier, following Mr. Foz’s line,
if there is an upgrading of position from commissioner to chairman, the
appointee takes the risk of cutting short his original term, knowing
pretty well before hand that he will serve only the unexpired portion of
the term of his predecessor, the outgoing COA chairman.
In the extreme hypothetical situation that Villar vacates the position of
chairman for causes other than the expiration of the original term of
Carague, the President can only appoint the successor of Villar for the
unexpired portion of the Carague term in line with Sec. 1(2), Art. IX(D)
of the Constitution. Upon the expiration of the original 7-year term of
Carague, the President can appoint a new chairman for a term of
seven (7) full years.
In his separate dissent, my esteemed colleague, Mr. Justice Mendoza,
takes strong exception to the view that the promotional appointment of
a sitting commissioner is plausible only when he is appointed to the
position of chairman for the unexpired portion of the term of said official
who leaves the office by reason of any the following reasons: death,
disability, resignation or impeachment, not when the vacancy arises
out as a result of the expiration of the 7-year term of the past chairman.
There is nothing in the Constitution, so Justice Mendoza counters, that
restricts the promotion of an incumbent commissioner to the
137
chairmanship only in instances where the tenure of his predecessor
was cut short by any of the four events referred to. As earlier
explained, the majority view springs from the interplay of the following
premises: The explicit command of the Constitution is that the
"Chairman and the Commissioners shall be appointed by the President
x x x for a term of seven years [and] appointment to any vacancy shall
be only for the unexpired portion of the term of the predecessor." To
repeat, the President has two and only two options on term
appointments. Either he extends an appointment for a full 7-year term
when the vacancy results from the expiration of term, or for a shorter
period corresponding to the unexpired term of the predecessor when
the vacancy occurs by reason of death, physical disability, resignation
or impeachment. If the vacancy calls for a full seven-year appointment,
the Chief Executive is barred from extending a promotional
appointment for less than seven years. Else, the President can trifle
with terms of office fixed by the Constitution.
Justice Mendoza likewise invites attention to an instance in history
when a commissioner had been promoted chairman after the
expiration of the term of his predecessor, referring specifically to the
appointment of then COMELEC Commissioner Gaudencio Garcia to
succeed Jose P. Carag after the expiration of the latter’s term in 1959
as COMELEC chairman. Such appointment to the position of chairman
is not constitutionally permissible under the 1987 Constitution because
of the policy and intent of its framers that a COA member who has
served his full term of seven (7) years or even for a shorter period can
no longer be extended another appointment to the position of chairman
for a full term of seven (7) years. As revealed in the deliberations of the
Constitutional Commission that crafted the 1987 Constitution, a
member of COA who also served as a commissioner for less than
seven (7) years in said position cannot be appointed to the position of
chairman for a full term of seven (7) years since the aggregate will
exceed seven (7) years. Thus, the adverted Garcia appointment in
1959 made under the 1935 Constitution cannot be used as a
precedent to an appointment of such nature under the 1987
Constitution. The dissent further notes that the upgrading remained
uncontested. In this regard, suffice it to state that the promotion in
question was either legal or it was not. If it were not, no amount of
repetitive practices would clear it of invalidating taint.
Lastly, Villar’s appointment as chairman ending February 2, 2011
which Justice Mendoza considers as valid is likewise unconstitutional,
as it will destroy the rationale and policy behind the rotational system
or the staggering of appointments and terms in COA as prescribed in
the Constitution. It disturbs in a way the staggered rotational system of
appointment under Sec. 1(2), Art. IX(D) of the 1987 Constitution.
Consider: If Villar’s term as COA chairman up to February 2, 2011 is
viewed as valid and constitutional as espoused by my esteemed
colleague, then two vacancies have simultaneously occurred and two
(2) COA members going out of office at once, opening positions for two
(2) appointables on that date as Commissioner San Buenaventura’s
term also expired on that day. This is precisely one of the mischiefs the
staggering of terms and the regular intervals appointments seek to
address. Note that San Buenaventura was specifically appointed to
succeed Villar as commissioner, meaning she merely occupied the
position vacated by her predecessor whose term as such
commissioner expired on February 2, 2011. The result is what the
framers of the Constitution doubtless sought to avoid, a sitting
President with a 6-year term of office, like President Benigno C. Aquino
III, appointing all or at least two (2) members of the three-man
Commission during his term. He appointed Ma. Gracia Pulido-Tan as
Chairman for the term ending February 2, 2015 upon the
relinquishment of the post by respondent Villar, and Heidi Mendoza
was appointed Commissioner for a 7-year term ending February 2,
2018 to replace San Buenaventura. If Justice Mendoza’s version is
adopted, then situations like the one which obtains in the Commission
will definitely be replicated in gross breach of the Constitution and in
clear contravention of the intent of its framers. Presidents in the future
can easily control the Commission depriving it of its independence and
impartiality.
To sum up, the Court restates its ruling on Sec. 1(2), Art. IX(D) of the
Constitution, viz:
1. The appointment of members of any of the three
constitutional commissions, after the expiration of the uneven
terms of office of the first set of commissioners, shall always be
for a fixed term of seven (7) years; an appointment for a lesser
period is void and unconstitutional.
138
The appointing authority cannot validly shorten the full term of
seven (7) years in case of the expiration of the term as this will
result in the distortion of the rotational system prescribed by the
Constitution.
2. Appointments to vacancies resulting from certain causes
(death, resignation, disability or impeachment) shall only be for
the unexpired portion of the term of the predecessor, but such
appointments cannot be less than the unexpired portion as this
will likewise disrupt the staggering of terms laid down under
Sec. 1(2), Art. IX(D).
WHEREFORE the petition is PARTLY GRANTED. The appointment of
then Commissioner Reynaldo A. Villar to the position of Chairman of
the Commission on Audit to replace Guillermo N. Carague, whose term
of office as such chairman has expired, is hereby declared
UNCONSTITUTIONAL for violation of Sec. 1(2), Art. IX(D) of the
Constitution.
SO ORDERED.

3. Members of the Commission, e.g. COA, COMELEC or CSC,

who were appointed for a full term of seven years and who
served the entire period, are barred from reappointment to any
position in the Commission. Corollarily, the first appointees in
the Commission under the Constitution are also covered by the
prohibition against reappointment.

4. A commissioner who resigns after serving in the

Commission for less than seven years is eligible for an
appointment to the position of Chairman for the unexpired
portion of the term of the departing chairman. Such
appointment is not covered by the ban on reappointment,
provided that the aggregate period of the length of service as
commissioner and the unexpired period of the term of the
predecessor will not exceed seven (7) years and provided
further that the vacancy in the position of Chairman resulted
from death, resignation, disability or removal by impeachment.
The Court clarifies that "reappointment" found in Sec. 1(2), Art.
IX(D) means a movement to one and the same office
(Commissioner to Commissioner or Chairman to Chairman).
On the other hand, an appointment involving a movement to a
different position or office (Commissioner to Chairman) would
constitute a new appointment and, hence, not, in the strict legal
sense, a reappointment barred under the Constitution.

5. Any member of the Commission cannot be appointed or

designated in a temporary or acting capacity.

139

EN BANC
G.R. No. 232131, April 24, 2018
REY NATHANIEL C. IFURUNG, Petitioner, v. HON. CONCHITA C.
CARPIO MORALES IN HER CAPACITY AS THE OMBUDSMAN, HON.
MELCHOR ARTHUR H. CARANDANG, HON. GERARD ABETO
MOSQUERA, HON. PAUL ELMER M. CLEMENTE, HON. RODOLFO M.
ELMAN, HON. CYRIL ENGUERRA RAMOS IN THEIR CAPACITIES AS
DEPUTIES OMBUDSMAN, AND THE OFFICE OF THE
OMBUDSMAN, Respondents.
DECISION
MARTIRES, J.:
Through this Petition for Certiorari and Prohibition, petitioner Rey Nathaniel
C. Ifurung (petitioner), in propria persona, seeks a declaration from the
Court that: (a) Section (Sec.)  8(3) in relation to Sec. 7 of Republic
Act (R.A.)  No. 6770, also known as the Ombudsman Act of 1989, is
unconstitutional for being an outright transgression of Sec. 11, in relation to
Secs. 8 and 10 of Article (Art.) XI of the 1987 Constitution; and (b) all
individual respondents as de facto  Ombudsman and Deputies Ombudsman,
respectively, and all these positions are vacant.1
The Petition
Petitioner, who claims to be a taxpayer, a concerned Filipino citizen, and a
member of the Bar, invokes the jurisprudence laid down by the Court
in Funa v. Villar,2 in asserting that he has locus standi to file the instant
petition. He avers that he is seeking the correction of a recurring statutory
wrong and a declaration from the Court that the positions held by the
respondents are vacant.3
Respondents are the incumbent officials of the Office of the
Ombudsman, viz:  Conchita Carpio Morales, Ombudsman (Ombudsman
Morales);  Melchor Arthur H. Carandang, Overall Deputy Ombudsman;
Gerard Abeto Mosquera, Deputy Ombudsman for Luzon; Paul Elmer M.
Clemente as Deputy Ombudsman for Visayas; Rodolfo M. Elman, Deputy
Ombudsman for Mindanao; and Cyril Enguerra Ramos, Deputy Ombudsman
for the Military.4
Petitioner maintains that the constitutional issue raised in his petition is of
transcendental importance since this Court's ruling will finally determine the
correct term and tenure of the Ombudsman and his deputies and settle the
matter as to the constitutionality of Sec. 8(3) of R.A. No. 6770. He alleges
that Sec. 8(3), in relation to Sec. 7 of R.A. No. 6770, which provides that in
case of a vacancy at the Office of the Ombudsman due to death, resignation,
removal or permanent disability of the incumbent Ombudsman and his
deputies, the newly appointed Ombudsman and his deputies shall be
appointed to a full term of seven (7) years, is constitutionally infirm as it
contravenes Sec. 11 in relation to Secs. 8 and 10 of Art. XI of the 1987
Constitution. He avers that like all constitutionally created positions, i.e.,
President, Vice-President, Senators, Members of the House of
Representatives and Members of the Civil Service Commission (CSC), the
Commission on Elections (COMELEC),  and the Commission on
Audit (COA), the successor to the positions of the Ombudsman and deputies
should serve only the unexpired term of the predecessor. Hence, petitioner
insists that the incumbent Ombudsman and deputies have been overstaying
in their present positions for more than two years considering that their
terms have expired on 1 February 2015. "To allow them to stay in the said
positions one day longer constitutes a continuing affront to the 1987
Constitution, unduly clips presidential prerogatives, and deprives the nation
of the services of legitimate Ombudsman and Deputies Ombudsman."5
To fortify his position, petitioner states that the intent of the framers of the
1987 Constitution during its 26 July 1986 discussion was to constitutionalize
the Office of the Ombudsman, i.e., by granting it autonomy and
independence the same as and equal to those of the other constitutionally
created offices and positions. That in the process of constitutionalizing the
Office of the Ombudsman, the framers ensured its stature and clout as a
constitutional body like the COMELEC, the COA, the CSC, and the
Commission on Human Rights (CHR), viz: by creating the office and giving it
fiscal autonomy and independence thus making it a constitutionally created
office; by providing the qualifications, disqualifications, manner of
appointment, cessation, and removal from office; and by specifying the
salary, positional rank, term of office, powers, functions, and duties thereof;
thereby making the Ombudsman and the deputies constitutionally created
positions. He claims that the intention of the framers was evident in Secs. 5
to 14, Art. XI of the 1987 Constitution.6
According to the petitioner, with the effectivity of the 1987 Constitution,
President Corazon C. Aquino (President Aquino),  on 24 July 1987, issued
140
pursuant to Sec. 6,7 Art. XVIII of the 1987 Constitution, Executive
Order (E.O.) No. 2438 creating the Office of the Ombudsman. On 17 3rd     10 Oct.      
November 1989, R.A. No. 6770 was approved. Considering that the intent of Simeon V. 2 Feb. 2002 Not Resignation 
the framers of the Constitution was that the position of the Ombudsman and Marcelo      2001   to  applicable 
the deputies shall have the same status as the three constitutional   to  Nov. 2005 
commissions, the limitations as to the latter's term of office shall likewise 1 Feb.
apply to the Ombudsman and the deputies. Hence, petitioner maintains that
Ma. Merceditas 2008  Not
the grant of a full term to an Ombudsman's successor, when the vacancy in
the office is for a cause other than the expiration of term, is an outright non- Navarro- 1 Dec. Not applicable 
observance of the intent of the framers and Sec. 11, Art. XI of the 1987 Gutierrez  2005 applicable 
Constitution.9 to 
1 Feb.
Petitioner insists that in Gaminde v. COA (Gaminde),10 the Court en banc has
determined that the starting point of the terms of office of the first
2008 
appointees to the constitutional commissions is uniformly set on 2 February
1987. He maintains as regards the appointment of Conrado M. Vasquez as 4th         
first Ombudsman in May 1988, the seven-year term which was supposed to Ma. Merceditas 2 Feb. 2 Feb. 2 Feb. Resignation 
start on 2 February 1987 and culminate seven (7) years thereafter, was not Navarro- 2008 2008  2008 
complied with.11 Gutierrez    to  to to 
1 Feb.   6 May 6 May
The petitioner presented the following table:12
2015  2011 2011 Not
                                 Conchita applicable 
Carpio Morales  25 July   Not
2011  applicable 
OMBUDSMAN  7-YEAR  ACTUAL DE FACTO  CESSATION  to 
  TENURE  SERVICE  OF SERVICE  1 Feb.
TERM  2015 
1st 5th 2 Feb.
Conrado M. 2 Feb. May 1988  2 Feb. Supposed Conchita  2 2015  2 Feb. Not
Vasquez  1987 to  1994  expiration of Carpio Morales  Feb. to 2015 applicable 
  to  May 1995  to    term  2015  present    to 
1 Feb. May 1995  to present 
1994  1 Feb.
2022 
2nd
Aniano A. 2 Feb. 4 Aug. 2 Feb. Supposed
Desierto  1994  1995  2001 expiration of Petitioner states that it can be gleaned from the above data that the explicit
to to   to    term  seven-year term for the Ombudsman and the deputies has neither been
 1   3 Aug. 3 Aug. followed nor complied with.13
Feb. 2002  2002 
2001  Petitioner claims that Ombudsman Morales should have ceased to hold office
on 1 February 2015 considering that the unexpired term of the supposed

141
fourth seven-year term ended on that date; thus, Ombudsman Morales has
been holding the position in a de facto  capacity since 2 February 2015 up to
the present. This observation, petitioner claims, holds true with the other
respondent deputies.14
Petitioner posits that the "recurrence of this cycle of noncompliance and
nonobservance of the intent of the framers and the explicit provision of the
1987 Philippine Constitution is an outright affront to the fundamental law of
the land and, if it remains unchecked, will create a cycle of non-compliance
with and nonobservance of what the Constitution provides."15
Petitioner argues that the Office of the Ombudsman is not sui generis; thus,
what applies and holds true for all the other constitutionally created offices
and positions should also apply to this office. The Ombudsman cannot be an
exception, to the rule set by the 1987 Constitution, i.e., to serve for the
unexpired term, so much so that each uncompleted term creates a fresh
term for the appointed Ombudsman. Petitioner speculates that such fresh
term of seven years could effectively deprive an incoming President the
power and opportunity to appoint an Ombudsman. Thus the term of the
Ombudsman will be subject to political maneuverings such that the outgoing
President can divest the next President of the prerogative to appoint. If the
unexpired term is the policy, every President can appoint an Ombudsman.16
Petitioner cites the ruling in Tañada v. Angara17  (Tañada)  and Imbong v.
Ochoa18  (Imbong) to justify his position that he availed of the appropriate
remedies of certiorari and prohibition in the instant case.19
Asserting that the present petition involves the resolution of a constitutional
issue which affects the very fabric and integrity of the Office of the
Ombudsman, petitioner pleads for the exemption from the observance of the
rule on hierarchy of courts in view of the transcendental importance of this
constitutional issue.[20
The Comment of the Respondents
Respondents, through the Office of the Solicitor General (OSG), claim that
petitioner failed to appreciate the verba legis  approach to constitutional
construction; and that, instead, petitioner resorted to an interpretation that
was not only self-serving but also devoid of basis and reason.21
Respondents aver that Sec. 11, Art. XI of the 1987 Constitution is clear that
the term of the Ombudsman and the Deputies shall be seven years without
reappointment without distinction on the cause of filling the vacancy.
According to the respondents, to follow petitioner's interpretation would lead
to a distinction not found in the law between: (1) the term of the
Ombudsman and the deputies who succeeded a predecessor who finished a
full term of seven years; and (2) the term of the Ombudsman and the
deputies who merely succeeded the predecessor who did not finish the full
term of seven years.22
Respondents state that unlike Sec. 11, Art. XI of the 1987 Constitution, the
term of office of the constitutionally created offices provides that a successor
who is appointed to any vacancy shall only serve the unexpired term of the
successor.23
To disprove the petitioner's assertion that the distinction as to the term of
office of constitutionally created offices applies to the Ombudsman and his
Deputies, respondents explain that there are other offices created by the
Constitution, viz: Supreme Court, Judicial and Bar Council (JBC),  Senate
Electoral Tribunal (SET), House of Representatives Electoral
Tribunal (HRET), judges of lower courts, elective local officials, and the CHR,
among others, where such distinction does not apply.24
Respondents allege that the deliberations of the framers of the Constitution
reveal their intent to grant the Ombudsman and his deputies the same rank
and salary as the Chair and members of the Constitutional Commissions but
not by the staggered term.25
Respondents contend that the ruling in Gaminde  where the rotational
system of appointment of the CSC chairperson and the commissioners was
crucial to the determination of the start of Commissioner Gaminde's term,
does not apply to the Office of the Ombudsman where there are no seven-
five-three-year rotational intervals for the appointment. Moreover, the Office
of the Ombudsman is not a commission composed of a chairperson and
several commissioners; thus, whether the term of the first Ombudsman
began on 2 February 1987 would be immaterial because the succeeding
Ombudsman shall have a fresh seven-year term.26
Respondents maintain that the present petition seeks to unseat respondents
from public office; thus, the Tañada  and Imbong  rulings on which petitioner
anchors his petition would not apply since these cases do not involve an
attack on a public officer's title. Moreover, the present petition, which
involves a collateral attack on the respondents' title, should be dismissed for
being an improper remedy. Respondents emphasize that the proper remedy
would have been a petition for quo warranto under Rule 66 of the Rules of
Court to be initiated by the Solicitor General or public prosecutor when
directed by the President of the Philippines.27
ISSUES
I.
142

Whether Section 8(3) of R.A. No. 6770 is unconstitutional for being violative
of Section 11 in relation to Sections 8 and 10, Article XI of the 1987
Philippine constitution and applicable jurisprudence.
II.
Whether the instant petition is the proper remedy.
III.
Whether this Honorable Court has jurisdiction.
OUR RULING
To properly resolve this petition, it would be better to dwell foremost on the
issue of whether petitioner has availed of the proper vehicle to obtain the
relief he pleads the Court.
A petition for certiorari is the  Court seeking to declare the following:
proper remedy to challenge the 
constitutionality of Sec. 8(3) of 
R.A. No. 6770.
To justify his claim that a petition for certiorari and prohibition is the proper
remedy to assail the validity of Sec. 8(3) of R.A. No. 6770, petitioner cites
the ruling in Tañada  and Imbong  that "certiorari, prohibition, and
mandamus are appropriate remedies to raise constitutional issues and to
review and/or prohibit/nullify, when proper, acts of legislative and executive
officials, as there is no plain, speedy, or adequate remedy in the ordinary
course of law."
To counter petitioner's justification and to prove that quo warranto  was the
proper remedy in this case, respondents cite Topacio v. Ong.28
Respondents failed to consider that the factual antecedents in Topacio are
not on four-square with the present petition. In that case, Ferdinand
Topacio's petition for certiorari and prohibition sought, in the main, to
prevent Justice Gregory Ong from further exercising the powers, duties, and
responsibilities of a Sandiganbayan Associate Justice. Topacio chiefly moored
his petition on the ground that Ong did not qualify to be appointed as an
Associate Justice of the Sandiganbayan on the basis of his citizenship, i.e.,
whether gauged from his birth certificate which indicates him to be a
Chinese citizen or against his bar records bearing out his status as a
naturalized Filipino citizen. Simply put, the petition principally involved a
review of Ong's qualification for appointment as Associate Justice of the
Sandiganbayan which violated, according to Topacio, Sec. 7,29 Art. VIII of
the 1987 Constitution requiring that the members of the Supreme Court or
any collegiate court be natural-born citizens of the Philippines. Thus, the
Court held:
While denominated as a petition for certiorari and prohibition, the petition
partakes of the nature of a quo warranto  proceeding with respect to Ong, for
it effectively seeks to declare null and void his appointment as an Associate
Justice of the Sandiganbayan for being unconstitutional. While the petition
professes to be one for certiorari and prohibition, petitioner even adverts to
a quo warranto  aspect of the petition.
Being a collateral attack on a public officer's title, the present petition for
certiorari and prohibition must be dismissed.30
On the one hand, petitioner prefaced his petition as follows:
This is a petition for certiorari and prohibition under Rule 65 of the Rules of
(a) Section 8(3) in relation to Section 7 of Republic Act No.
6770, also known as the Ombudsman Act of 1989, as
unconstitutional for being an outright transgression of
Section 11 in relation to Sections 8 and 10 of Article XI of
the 1987 Constitution; and 
(b)  All individual respondents as de facto Ombudsman and
Deputies Ombudsman, respectively, and all their positions
vacant.
This Honorable Court's jurisdiction over cases involving the constitutionality
of laws pursuant to Sections 4(2) and 5 of Article VIII of the 1987
Constitution is being respectfully invoked in view of the transcendental
importance of the instant matter.31
143
The pertinent provisions of Art. XI of the 1987 Constitution which petitioner
avers was transgressed by Sec. 8(3) of R.A. No. 6770 are as follows:
Sec. 8. The Ombudsman and his Deputies shall be natural-born citizens of
the Philippines, and at the time of their appointment, at least forty years old,
of recognized probity and independence, and members of the Philippine Bar,
and must not have been candidates for any elective office in the immediately
preceding election. The Ombudsman must have for ten years or more been
a judge or engaged in the practice of law in the Philippines.
xxxx
Sec. 10. The Ombudsman and his Deputies shall have the rank of Chairman
and Members, respectively, of the Constitutional Commissions, and they
shall receive the same salary, which shall not be decreased during their term
of office.
Sec. 11. The Ombudsman and his Deputies shall serve for a term of seven
years without reappointment. They shall not be qualified to run for any office
in the election immediately succeeding their cessation from office.
Clear from his petition was that the petitioner beseeches the Court for a
declaration primarily as to the unconstitutionality of Sec. 8(3) in relation to
Sec. 7 of R.A. No. 6770, and as a consequence thereof, a pronouncement
that the incumbent Ombudsman and the deputies are de facto  officers and
whose offices are vacant. The petition does not task the Court to scrutinize
the qualification of the respondents to hold office as Ombudsman and
deputies but rather to determine the constitutionality of Sec. 8(3) of R.A.
No. 6770 in so far as their term of office is concerned.
In contrast with Topacio  where the very issue involved was the qualification
to office of Ong, the present petition attacks the validity of a law, which
petitioner claims has transgressed Sec. 11 in relation to Secs. 10 and 11,
Art. XI of the 1987 Constitution. Petitioner points out that the legislature
went beyond the parameters of these constitutional provisions when it
crafted Sec. 8(3) of R.A. No. 6770,32 and that "there is no other plain,
speedy, and adequate remedy in the ordinary course of law that can correct
the long-running, pervasive, and continuous violation of Sec. 11 in relation
to Secs. 8 and 10, Art. XI of the 1987 Constitution and the applicable
jurisprudence."33
Under the 1987 Constitution, judicial power includes the duty of the courts
of justice 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 the
Government."34 Its expanded power of review provides:
Sec. 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.35
Fundamental is the rule that grave abuse of discretion arises when a lower
court or tribunal patently violates the Constitution, the law, or existing
jurisprudence.36 We have already ruled that petitions for certiorari and
prohibition filed before the Court "are the remedies by which the grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government may be determined under
the Constitution," and explained that "[w]ith respect to the Court, x x x the
remedies of certiorari  and prohibition are necessarily broader in scope and
reach, and the writ of certiorari or prohibition may be issued to correct
errors of jurisdiction committed not only by a tribunal, corporation, board or
officer exercising judicial, quasi-judicial or ministerial functions, but also to
set right, undo[,] and restrain any act of grave abuse of discretion
amounting to lack or excess of jurisdiction by any branch or
instrumentality of the Government, even if the latter does
not  exercise judicial, quasi-judicial or ministerial functions."37
"Where an action of the legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only the right but in fact the duty
of the judiciary to settle the dispute. The question thus posed is judicial
rather than political, x x x. The duty to adjudicate remains to assure that the
supremacy of the Constitution is upheld."38 The Court however, does not
have unrestrained authority to rule on just any and every claim of
constitutional violation. Hence, the legal teaching is that the power of
judicial review is limited by four exacting requisites, viz:  (a) there must be
an actual case or controversy; (b) the petitioners must possess locus
standi;  (c) the question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the lis mota  of
the case.39
An actual case or controversy involves a conflict of legal rights, an assertion
of opposite legal claims, susceptible of judicial resolution as distinguished
from a hypothetical or abstract difference or dispute.40Closely linked to this
requirement is that the question must be ripe for adjudication, i.e., when the
144
act being challenged has had a direct adverse effect on the individual or
entity challenging it.41 It is a prerequisite that something had then been
accomplished or performed by either branch before a court may come into
the picture, and the petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged action.42
The Court holds that the present petition involves an actual case or
controversy and that the same is ripe for judicial determination. It will be
noted that, granting there was merit to the position raised by the petitioner
that Sec. 8(3) of R.A. No. 6770 is unconstitutional, the incumbent
Ombudsman and deputies are de facto  officers who have overstayed in
office since 2 February 2015. Of prime consideration, too, if petitioner's
position is correct, is the alleged pervasive noncompliance and non-
observance of the constitution relative to the seven-year term of office of
the Ombudsman and the deputies, the principles of which, albeit relevant to
the constitutional commissions, have been settled in Gaminde.  It should
likewise be taken into account, granting that petitioner's challenge to Sec.
8(3) of R.A. No. 6770 was valid and legal, that there are continuing illegal
disbursements of public funds to pay the salaries of the de
facto Ombudsman and deputies. From these considerations, it cannot be
gainsaid that there is indeed a justiciable controversy involving an alleged
serious infringement of the fundamental law, and which the Court is duty
bound to resolve.
Locus standi is defined as follows:
A personal and substantial interest in the case such that the party has
sustained or will sustain a direct injury as a result of the governmental act
that is being challenged. The term "interest" means a material interest, an
interest in issue affected by the decree, as distinguished from mere interest
in the question involved, or a mere incidental interest. The gist of the
question of standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions.43
Jurisprudence dictates that a party challenging the constitutionality of a law,
act or statute must show "not only that the law is invalid, but also that he
has sustained or is in immediate or imminent danger of sustaining some
direct injury as a result of its enforcement, and not merely that he suffers
thereby in some indefinite way."[44 There is likewise the teaching that locus
standi  is merely a matter of procedure and that, in some cases, suits are not
brought by parties who have been personally injured by the operation of a
law or any other government act, but by concerned citizens, taxpayers, or
voters who actually sue in the public interest.[45 This liberal stance has been
exemplified in Funa v. Villar,46viz:
To have legal standing, therefore, a suitor must show that he has sustained
or will sustain a "direct injury" as a result of a government action, or have a
"material interest" in the issue affected by the challenged official act.
However, the Court has time and again acted liberally on the locus
standi requirements and has accorded certain individuals, not otherwise
directly injured, or with material interest affected, by a Government act,
standing to sue provided a constitutional issue of critical significance is at
stake. The rule on locus standi  is after all a mere procedural technicality in
relation to which the Court, in a catena  of cases involving a subject of
transcendental import, has waived, or relaxed, thus allowing non-traditional
plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to sue
in the public interest, albeit they may not have been personally injured by
the operation of a law or any other government act. In David, the Court laid
out the bare minimum norm before the so-called "non-traditional suitors"
may be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of illegal disbursement
of public funds or that the tax measure is unconstitutional; 
2.)  For voters, there must be a showing of obvious interest in
the validity of the election law in question; 
3.) For concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must
be settled early; and 
4.) For legislators, there must be a claim that the official action
complained of infringes their prerogatives as legislators.47
Petitioner, who claims to be a taxpayer, asserts that there has been illegal
disbursement of public funds in paying the salaries of the respondents. As a
concerned citizen, he avers that the issues in this petition are of
transcendental importance.
The Court has jurisdiction
over the instant petition.
In arguing that the Court should exercise its power of judicial review and
assume jurisdiction over his case, petitioner pleads this Court to consider the
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principal issue raised in his petition to be one of transcendental importance,
such that the principle of hierarchy of courts, which he perceives as a
possible obstacle to his cause, may no longer apply or should be dispensed
with. To this end, he pleads and outlines the following arguments:
41. This Honorable Court's percipient wisdom is exigent and urgently needed
in order to mark a watershed in the Office of the Ombudsman on account of
the following, viz:
i. First.  Direct resort to this Honorable Court is allowed because there
is a genuine issue of constitutionality which must be immediately
addressed. In the instant case, Section 8 (3) of R.A. No. 6770, if not
declared unconstitutional, will continue to contravene Section 11 in
relation to Sections 8 and 10, Article XI of the 1987 Philippine
Constitution, and applicable jurisprudence.
ii. Second. The issue raised herein is of transcendental importance. In
the instant case, there has been a pervasive non-compliance with
the seven (7) year term of the Ombudsman. The decision of this
Honorable Court in the instant case will, in the manner
of Gaminde,  provide for the correct term and tenure of succeeding
Ombudsmen.
iii. Third. The constitutional issue raised in this case is better decided
by this Honorable Court which can rule with finality as to the
constitutionality of Section 8 (3) of R.A. No. 6770.
iv. Fourth. The time element involved in the instant case cannot be
ignored. Respondent Carpio-Morales has been holding the position
of Ombudsman in a de facto capacity for more than two (2) years
already. The vacancy and the appointment of a new Ombudsman is
now imperative.
v. Fifth. The instant petition involves a constitutional organ. The Office
of the Ombudsman is a constitutional office, hence, in the words
of The Diocese of Bacolod,[48  "a ruling by this court would be in the
best interest of respondents, in order that their actions may be
guided accordingly in the future."
vi. Sixth.  There is no other plain, speedy and adequate remedy in the  other plain, speedy, and adequate remedy in the ordinary course of law; and
ordinary course of law that can correct the long running and
recurring, pervasive and continuous violation of Section 11 in  the advancement of public policy, or demanded by the broader interest of
relation to Sections 8 and 10, Article XI of the 1987 Philippine  justice, or the orders complained of were found to be patent nullities, or the
Constitution, and applicable jurisprudence.
vii. Seventh.  This petition directly puts into question the status and
legitimacy of respondent Carpio-Morales as Ombudsman and her
deputies' continued service as such considering that, pursuant to
Section 11 in relation to Sections 8 and 10, Article XI of the 1987
Philippine Constitution, and applicable jurisprudence, her term
already expired on 2 February 2015.49
Interestingly, the OSG hardly addressed these points in its Comment and
Memorandum. Nowhere did the OSG counter petitioner's claim that the
principal issue he raised is of such transcendental importance that his case
may escape the application of the principle of the hierarchy of courts.
The Court has explained the necessity of the application of the hierarchy of
courts Bañez, Jr. v. Concepcion:50
The Court must enjoin the observance of the policy on the hierarchy of
courts, and now affirms that the policy is not to be ignored without serious
consequences. The strictness of the policy is designed to shield the Court
from having to deal with causes that are also well within the competence of
the lower courts, and thus leave time to the Court to deal with the more
fundamental and more essential tasks that the Constitution has assigned to
it. The Court may act on petitions for the extraordinary writs of certiorari,
prohibition and mandamus only when absolutely necessary or when serious
and important reasons exist to justify an exception to the policy.51
However, the doctrine of hierarchy of courts is not an iron-clad rule as it in
fact admits the jurisprudentially established exceptions thereto, viz: (a) a
direct resort to this court is allowed when there are genuine issues of
constitutionality that must be addressed at the most immediate time. A
direct resort to this court includes availing of the remedies of certiorari and
prohibition to assail the constitutionality of actions of both legislative and
executive branches of the government; (b) when the issues involved are of
transcendental importance; (c) cases of first impression warrant a direct
resort to this court. In cases of first impression, no jurisprudence yet exists
that will guide the lower courts on this matter; (d) the constitutional issues
raised are better decided by this court; (e) the time element; (f) the filed
petition reviews the act of a constitutional organ; (g) petitioners have no
(h) the petition includes questions that are dictated by public welfare and
appeal was considered as clearly an inappropriate remedy.52 Petitioner has
amplified in his petition these exceptions to justify a relaxation on the
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adherence to the doctrine of hierarchy of courts.
Before proceeding any further, the Court observes that petitioner has named
only the incumbent Ombudsman and the deputies as respondents in his
petition although the present controversy deals with the constitutionality of
a legislative act and, corollary thereto, the act of the President in appointing
the respondents allegedly beyond the seven-year term as prescribed by the
constitution and explicated through our jurisprudential declarations. The
Court hastens to add that it was equally raised in this petition that there
were alleged illegal disbursement of public funds as a result of the pervasive
noncompliance with the constitutional requirement on the seven-year term
of office of the Ombudsman and the deputies; yet, the petitioner failed to
include the Department of Budget and Management (DBM) as a respondent.
Notwithstanding these observations, the Court notes that respondents'
present counsel, the OSG, would have likewise represented the legislative
body, the Office of the President, or the DBM had they been equally named
as respondents in this petition. Bearing in mind that the arguments of the
OSG relative to the constitutionality of Sec. 8(3) of R.A. No. 6770 would
have equally applied to these persons had they been included as
respondents in this petition and that the Court has already determined that
it shall take cognizance of this case pursuant to its expanded power of
review, we shall then set aside our misgivings on the failure of the petitioner
to include the other respondents in his petition.
The History of the Office of the
Ombudsman
The word "ombudsman" originated from Sweden when in 1809 it established
the position of Justlieombudsman  with the purpose of overseeing
government administration. The title loosely translates as "citizen's
defender" or "representative of the people."53 The Ombudsman was primarily
tasked with receiving complaints from persons aggrieved by administrative
action or inaction, conducting investigation thereon, and making
recommendations to the appropriate administrative agency based on his
findings. The Ombudsman relied mainly on the power of persuasion and the
high prestige of the office to effect his recommendations.54
In the Philippines, the Office of the Ombudsman considers the Permanent
Commission in the Revolutionary Government as its precursor. The
Permanent Commission, created pursuant to Art. 2155 of the Decree of 23
June 1898, was designated to decide, on appeal, all criminal cases resolved
by the provincial councils involving the department secretaries and the
provincial and municipal officials.56
The Permanent Commission continued its existence after the ratification of
the Constitution of 1899, popularly known as the Malolos Constitution. Under
No. 1, Art. 55 of said Constitution, one of the powers of the Commission was
to "declare if there is sufficient cause to proceed against the President of the
Republic, the Representatives, Department Secretaries, the Chief Justice of
the Supreme Court and the Solicitor General in the cases provided by the
Constitution."57
In May 1950, President Elpidio R. Quirino created the Integrity Board
charged with receiving complaints against public officials for acts of
corruption, dereliction of duty, and irregularity in office, and conducting a
thorough investigation of these complaints.58
On 30 December 1953, President Ramon Magsaysay issued Executive
Order (E.O.)  No. 1 creating the Presidential Complaints and Action
Commission for the purpose of expediting actions on all complaints against
the manner of various officials and personnel of the different executive
departments, bureaus, offices, agencies, instrumentalities, and government-
owned or -controlled corporations.
On 15 July 1958, President Carlos P. Garcia (President Garcia) issued E.O.
No. 306 creating the Presidential Committee on Administration Performance
Efficiency (PCAPE). The PCAPE was to be headed by a Technical Assistant
designated by the President, and who shall be known as the Chairman.
On 7 March 1960, President Garcia issued E.O. No. 382 which granted to
PCAPE all the powers of an investigating committee under Sects. 7159 and
58060 of the Revised Administrative Code,61 including the power to summon
witnesses, administer oaths, and take testimony or evidence relevant to the
investigation. However, on 29 December 1961, President Garcia issued E.O.
No. 456 abolishing the PCAPE.
When President Diosdado P. Macapagal (President Macapagal)  assumed
office on 30 December 1961, he issued E.O. No. 1 re-creating the PCAPE for
the purpose of achieving greater efficiency, competence, and dedication in
the administration of government and ensuring the prompt and faithful
performance of assigned duties, functions, and directives by the
implementing government offices, agencies, and instrumentalities. The
PCAPE was to be headed by a technical assistant designated by the
President, and who shall be known as the Presidential Executive Assistant
and be a member of the Cabinet.
On 18 January 1962, President Macapagal issued E.O. No. 4 which gave life
to the Presidential Anti-Graft Committee (PAGC)  to be composed of such
personnel as the President may designate from time to time. The PAGC had
the following functions:
147
 1. To inquire into, and take measures to prevent, the occurrence of
graft and of violations of R.A. No. 3019[62 in such departments,
bureaus, offices, agencies, or instrumentalities, including
government-owned or - controlled corporations, as the President
may determine, under the supervision of the Department Head
concerned; and
2. In such departments, bureau, offices, agencies, or instrumentalities,
including government-owned- or -controlled corporations, as the
President may determine, to implement and enforce R.A. No.
137963 by inquiring into, investigating, determining, and verifying
any and all unlawfully acquired properties of the officials and
employees thereof, and obtaining the needed evidence to establish
such unlawful acquisition of property or other forms of wealth
acquired by them while in public office.
By virtue of E.O. No. 4 issued on 7 January 1966, President Ferdinand E.
Marcos (President Marcos)  created the Presidential Agency on Reforms and
Government Operations (PARGO)  which shall be directly under and
responsible only to the President of the Philippines. The PARGO shall be
headed by the Assistant to the President, and is a member of the Cabinet.
In 1969, R.A. No. 602864 creating the Office of the Citizens Counselor, was
passed. Its pertinent provisions read:
Sec. 3. To carry out the purposes of this Act, there is hereby created an
office to be known as the Office of the citizen's Counselor to which the
President, with the consent of the Commission on Appointments, shall
appoint an officer to be known as the Citizen's counselor, hereinafter
referred to as the Counselor. The Citizen's Counselor shall be assisted by
two (2) Associate Counselors, who shall be appointed by the President of the
Philippines with the consent of the Commission on Appointments.
Sec. 4. No person may be appointed Counselor unless he has been a
member of the Supreme Court or of the Court of Appeals.
No person may be appointed Associate Counselor unless he is a citizen of
the Philippines, at least forty years of age and has for ten (10) years or
more been a judge of a court of record or engaged actively in the practice of
law.
No person may serve as Counselor or Associate Counselor (a) within two (2)
years of the last day on which he served as a member of Congress; (b)while
he is a candidate for or holds any other public office; or (c) while he is
actively engaged in any other calling for profit or reward.
No Counselor or Associate Counselor shall be a candidate for any public
office within two (2) years from the last day on which he served as
Counselor or Associate Counselor.
In 1970, President Marcos created a Complaints and Investigation Office and
in the following year, the Presidential Administrative Assistance Committee.65
In view of the failure of these offices to accomplish the noble purpose for
which they were created, the framers of the 1973 Constitution saw the need
to constitutionalize the office of the Ombudsman, to be known as
the Tanodbayan, in order to give it political independence and adequate
powers to enforce its recommendations.66 Thus, the Tanodbayan was vested
with the power to receive and investigate complaints relative to public office,
including those in government-owned or -controlled corporations; make
appropriate recommendations; and in case of failure of justice as defined by
law, file and prosecute the corresponding criminal, civil or administrative
cases before the proper court or body.67
In the exercise of his power under Proclamation No. 1081,68 President
Marcos issued on 11 June 1978, P.D. No. 1487 creating the Office of the
Ombudsman to be known as the Tanodbayan. Pertinently, Sec. 6 thereof
provides for the term of office of the Tanodbayan and the deputies as
follows:
Section 6. Term of Office.
(a) The Tanodbayan and his Deputies shall serve for a term of
seven years without reappointment unless removed by the
President upon his determination that the Tanodbayan or
any of his Deputies has become incapacitated or has been
guilty of neglect of duty, or misconduct. 
(b) If the Office of Tanodbayan becomes vacant for any
cause, the Senior Deputy Tanodbayan shall serve as
Acting Tanodbayan until the Tanodbayan shall have
been appointed for a full term. (emphasis and
underlining supplied)
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On 10 December 1978, President Marcos issued P.D. No. 160769 amending
P.D. No. 1487. Significantly, the above-quoted Sec. 6 of P.D. No. 1487 was
reiterated in P.D. No. 1607.
On 18 July 1979, P.D. Nos. 1487 and 1607 were amended when President
Marcos issued P.D. No. 163070wherein Sec. 6 merely repeated the same
section of its precursors as to the term of office of the Tanodbayan and the
deputies.
The independence of the Office of the Ombudsman was further reinforced
under the 1987 Constitution. Sec. 7, Art. XI of the 1987 Constitution
provides that the existing Tanodbayan shall hereafter be known as the Office
of the Special Prosecutor which shall continue to function and exercise its
powers as now or hereafter may be provided by law, except those conferred
on the Office of the Ombudsman created under the constitution. The
Ombudsman and the deputies shall have the rank of chairman and
members, respectively, of the constitutional commissions, and they shall
receive the same salary, which shall not be decreased during their term of
office.71 The Ombudsman and his deputies shall serve for a term of seven
years without reappointment. They shall not be qualified to run for any office
in the election immediately succeeding their cessation from office.72
On 24 July 1987, President Aquino, in the exercise of her legislative powers
pursuant to Sec. 6, Art. XVIII73 of the 1987 Constitution, issued E.O. No.
24374 providing for the framework of the Office of the Ombudsman. Sec. 6 of
E.O. No. 243 is quoted:
Sec. 6. The Ombudsman and his Deputies shall have the rank of Chairman
and Members, respectively, of the Constitutional Commissions, and they
shall receive the same salary, which shall not be decreased during their term
of office.
On 17 November 1989, the Eighth Congress approved R.A. No.
677075 providing for the functional and structural organization of the Office
of the Ombudsman. The pertinent provisions of R.A. No. 6770 read:
Section 7. Term of Office. — The Ombudsman and his Deputies,
including the Special Prosecutor, shall serve for a term of seven (7)
years without reappointment.
Section 8. Removal; Filling of Vacancy.  —
xxxx
(3) In case of vacancy in the Office of the Ombudsman due to death,
resignation, removal or permanent disability of the incumbent
Ombudsman, the Overall Deputy shall serve as Acting Ombudsman
in a concurrent capacity until a new Ombudsman shall have been
appointed for a full term. In case the Overall Deputy cannot assume the
role of Acting Ombudsman, the President may designate any of the
Deputies, or the Special Prosecutor, as Acting Ombudsman.
 x x x (emphasis supplied)
Sec. 8(3) of R.A. No. 6770 is not
unconstitutional.
Before proceeding to the very core issue of this petition, the Court reminds
itself of its ruling in Estrada v. Sandiganbayan,76viz:
Preliminarily, the whole gamut of legal concepts pertaining to the validity of
legislation is predicated on the basic principle that a legislative measure is
presumed to be in harmony with the Constitution. Courts invariably train
their sights on this fundamental rule whenever a legislative act is under a
constitutional attack, for it is the postulate of constitutional adjudication.
This strong predilection for constitutionality takes its bearings on the idea
that it is forbidden for one branch of the government to encroach upon the
duties and powers of another. Thus it has been said that the presumption is
based on the deference the judicial branch accords to its coordinate branch -
the legislature.
If there is any reasonable basis upon which the legislation may firmly rest,
the courts must assume that the legislature is ever conscious of the borders
and edges of its plenary powers, and has passed the law with full knowledge
of the facts and for the purpose of promoting what is right and advancing
the welfare of the majority. Hence, in determining whether the acts of the
legislature are in tune with the fundamental law, courts should proceed with
judicial restraint and act with caution and forbearance. Every intendment of
the law must be adjudged by the courts in favor of its constitutionality,
invalidity being a measure of last resort. In construing therefore the
provisions of a statute, courts must first ascertain whether an interpretation
is fairly possible to sidestep the question of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon we held that as long as
there is some basis for the decision of the court, the constitutionality of the
challenged law will not be touched and the case will be decided on other
available grounds. Yet the force of the presumption is not sufficient to
catapult a fundamentally deficient law into the safe environs of
constitutionality. Of course, where the law clearly and palpably transgresses
the hallowed domain of the organic law, it must be struck down on sight lest
the positive commands of the fundamental law be unduly eroded.
149
Verily, the onerous task of rebutting the presumption weighs heavily on the
party challenging the validity of the statute. He must demonstrate beyond
any tinge of doubt that there is indeed an infringement of the constitution,
for absent such a showing, there can be no finding of unconstitutionality. A
doubt, even if well-founded, will hardly suffice. As tersely put by Justice
Malcolm, "To doubt is to sustain."77 x x x (emphasis supplied)
Petitioner anchors his challenge on the constitutionality of Sec. 8(3) of R.A.
No. 6770 in the belief that because the Ombudsman and the deputies have
the same rank and salary as the chairman and the members of the
constitutional commissions, their term of office, following the Court's
disquisition in Gaminde,  shall always be seven years counted from 2
February 1987 and seven years thereafter, and not the full term of seven
years.
a. The Office of the Ombudsman is 
not a constitutional commission.
It must be stressed that the Office of the Ombudsman is not a constitutional
commission. Sec. 1, Art. IX of the 1987 Constitution specifically enumerates
the independent constitutional commissions in the Philippines, viz:  the CSC,
the COMELEC, and the COA. The common provisions among these three
constitutional commissions are as follows:
Section 2. No member of a Constitutional Commission shall, during his
tenure, hold any other office or employment. Neither shall he engage in the
practice of any profession or in the active management or control of any
business which, in any way, may be affected by the functions of his office,
nor shall he be financially interested, directly or indirectly, in any contract
with, or in any franchise or privilege granted by the Government, any of its
subdivisions, agencies, or instrumentalities, including government-owned or-
controlled corporations or their subsidiaries.
Section 3. The salary of the Chairman and the Commissioners shall be fixed
by law and shall not be decreased during their tenure.
Section 4. The Constitutional Commissions shall appoint their officials and
employees in accordance with law.
Section 5. The Commission shall enjoy fiscal autonomy. Their approved
annual appropriations shall be automatically and regularly released.
Section 6. Each Commission en banc may promulgate its own rules
concerning pleadings and practice before it or before any of its offices. Such
rules, however, shall not diminish, increase, or modify substantive rights.
Section 7. Each Commission shall decide by a majority vote of all its
Members, any case or matter brought before it within sixty days from the
date of its submission for decision or resolution. A case or matter is deemed
submitted for decision or resolution upon the filing of the last pleading, brief,
or memorandum required by the rules of the Commission or by the
Commission itself. Unless otherwise provided by this Constitution or by law,
any decision, order, or ruling of each Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof.
Section 8. Each Commission shall perform such other functions as may be
provided by law.[78
A commission is defined as "a board or committee officially appointed and
empowered to perform certain acts or exercise certain jurisdiction of a public
nature or relation."79 Noteworthy, the CSC is composed of a chairman and
two commissioners;80 the COMELEC, a chairman and six
commissioners;81 and the COA, a chairman and two commissioners. Clearly
provided in Sec. 7 is that these three constitutional commissions shall decide
by a majority vote of all its members any case or matter brought before it;
thus, the commissions are collegial bodies whose manner of working is
characterized by a sharing of responsibility among the chairman and the
commissioners of the commission.
In contrast, the present Office of the Ombudsman, albeit composed of the
Ombudsman to be known as Tanodbayan, the Overall Deputy, the Deputy
for Luzon, the Deputy for the Visayas, the Deputy for Mindanao, the Deputy
for the Military and Other Law Enforcement Office (MOLEO), and the Special
Prosecutor, is not a collegial body. The Ombudsman and the deputies do not
resolve cases by a majority of all its members but rather are confined within
the sphere of their respective jurisdiction, i.e., the Deputy Ombudsman for
Luzon, for cases involving public officials and employees assigned in Luzon;
the Deputy Ombudsman for Visayas, for those assigned in Visayas; the
Deputy Ombudsman for Mindanao, for those assigned in Mindanao; the
Deputy Ombudsman for MOLEO, for those assigned in the military and the
police; and the Special Prosecutor, in the conduct preliminary investigation
and prosecution of criminal cases within the jurisdiction of the
Sandiganbayan.82 The Overall Deputy, on the one hand, oversees and
administers the operations of the different offices under the Office of
Ombudsman83 while the Ombudsman is the final approving authority on the
150
disposition of cases before the sectoral offices, i.e., Luzon, Visayas, Manila has the rank of a justice of the Intermediate Appellate Court, and yet
Mindanao, MOLEO, and the Office of the Special Prosecutor. he is not part of the judiciary. So I think we should clarify that also and read
our discussions into the Record for purposes of the Commission and the
Committee.
b.  The undeniable intent of the framers 
of the 1987 Constitution in Sec. 10,  MR. ROMULO. Yes. If I may just comment: the Ombudsman in this
Art. XI was to provide that the rank  provision is a rank in itself really. That is how we look at it. But for
and salary of the Ombudsman and  purposes of government classification and salary, we thought we
have to give him a recognizable or an existing rank as a point of
his deputies shall be the same as that 
reference more than anything else. 84
of the chairman and members, 
respectively, of the constitutional  x x x x (emphasis supplied)
commissions.
and

Sec. 10, Art. XI of the 1987 Constitution reads: MR. DE LOS REYES. On lines 9 and 10 of page 4, it is stated:

SECTION 10. The Ombudsman and his Deputies shall have the rank of
Chairman and Members, respectively, of the Constitutional Commissions,
and they shall receive the same salary, which shall not be decreased during
their term of office. (underlining supplied)
"A deputy of the Ombudsman shall have the same rank of a Commissioner
of a Constitutional Commission and his salary, which shall not be decreased
during his term of office."
The sentence does not sound right.

A reading on the deliberation of the framers of the 1987 Constitution relative Will the Committee agree that we adopt the same arrangement in the first
to this provision is in order: sentence, so that the Deputy Ombudsman shall have the same rank of a
Commissioner and shall receive the same salary, which shall not be
decreased during his term of office?
MR. REGALADO. x x x
THE PRESIDENT. So, what is the proposed amendment?
On Section 10, regarding the Ombudsman, there has been concern aired by
Commissioner Rodrigo about who will see to it that the Ombudsman will
MR. DE LOS REYES. The proposed amendment is to delete the phrase "and
perform his duties because he is something like a guardian of the
his salary" on line 11 and instead, to substitute it with the phrase: AND
government. This recalls the statement of Juvenal that while the
SHALL RECEIVE THE SAME SALARY.
Ombudsman is the guardian of the people "quis custodiet ipsos
custodies" who will guard the guardians? I understand here that the
THE PRESIDENT. Is that accepted?
Ombudsman who has the rank of a chairman of a constitutional commission
is also removable only by impeachment.
xxxx
MR. ROMULO. That is the intention, Madam President.
MR. MAAMBONG. Madam President, I am sorry if I am taking a dual role
here but I have an anterior amendment to the same Section 10.
MR. REGALADO. Only the Ombudsman?
On page 4, Section 10, I propose to simplify the paragraph by deleting the
MR. MONSOD. Only the Ombudsman.
second sentence from lines 9 to 13. The first sentence of Section 10, starting
on line 6, should read: "The Ombudsman AND HIS DEPUTIES shall have the
MR. REGALADO. So not his deputies, because I am concerned with the
rank of a Chairman AND MEMBERS OF A CONSTITUTIONAL COMMISSION
phrase "have the rank of." We know, for instance, that the City Fiscal of
and THEY shall receive the salary, which shall not be decreased during

151
THEIR term of office."
xxxx
MR. DE LOS REYES. Would Commissioner Maambong be agreeable to the
insertion of the word RESPECTIVELY?
MR. MAAMBONG. In what portion of the amendment?
MR. DE LOS REYES. "CHAIRMAN AND MEMBERS OF THE CONSTITUTIONAL
COMMISSION, RESPECTIVELY."
MR. MAAMBONG. The amendment is accepted.
xxxx
THE PRESIDENT, Is there any objection to the proposed amendment on
Section 10? (Silence)  The Chair hears none; the amendment is approved.
MR. MAAMBONG. May I read the sentence for the record so that we will not
be confused. Section 10 reads: "The Ombudsman and his Deputies shall
have the rank of a Chairman and members of a Constitutional Commission,
respectively, and they shall receive the same salary, which shall not be
decreased during their term of office.85 x x x
The discussion confirms that the intent of the framers of the Constitution in
qualifying that the salary and rank of the Ombudsman and the deputies shall
be the same as that of the chairman and the members of the constitutional
commissions, was for the purpose of having a government classification as
to salary and a point of reference as to rank.
The words "salary" and "rank" were utilized by the framers in their ordinary
and common usage. The word "salary" is defined as "a reward or
recompense for services performed. In a more limited sense, a fixed
periodical compensation paid for services rendered."86 The word "rank," on
the other hand, "is often used to express something different from office.  It
then becomes a designation or title of honor, dignity or distinction conferred
upon an officer in order to fix his relative position in reference to other
officers in matters of privilege, precedence, and sometimes of command, or
by which to determine his pay and emoluments."87 From these definitions, it
is obvious that neither the words "salary" nor "rank" even remotely includes
the "term of office," which is the time during which the officer may claim to
hold the office as of right, and fixes the interval after which the several
incumbents shall succeed one another.88
It is a well-settled principle of legal hermeneutics that the words of a statute
will be interpreted in their natural, plain and ordinary acceptation and
signification, unless it is evident that the legislature, or in this case the
framers of the fundamental law, intended a technical or special legal
meaning to those words.89As much as possible, the words of the Constitution
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.90 It is presumed that the
framers and the people meant what they said when they said it, and that
this understanding was reflected in the Constitution and understood by the
people in the way it was meant to be understood when the fundamental law
was ordained and promulgated.91Index animi sermo  or "speech is the index
of intention" and verba legis non est recedendum or "from the words of a
statute there should be no departure."92
It must be underscored that the framers of the Constitution in Sec. 10, Art.
XI limited to rank and salary the similarity between the Ombudsman and
the deputies on one hand, and the chairman and the members of the
constitutional commission on the other. Applying the basic precept of
statutory construction that the express mention of one person, thing, act or
consequence excludes all others as expressed in the familiar
maxim expressio unius est exclusio alterius,93 it is beyond cavil that pursuant
to Sec. 10, Art. XI, it is only with reference to "salary" and "rank" that the
Ombudsman and his deputies should be similar to the chairman and the
members of the constitutional commission. Expressium facit cessare
tacitum. What is expressed puts an end to what is implied.94 Thus, where a
statute, by its terms, is expressly limited to certain matters, it may not, by
interpretation or construction, be extended to other matters,95 like "term of
office" for "rank" and "salary" as insisted by the petitioner. Time and time
again, it has been repeatedly declared by this Court that where the law
speaks in clear and categorical language, there is no room for interpretation,
only application.96 It is best to keep in mind the reminder from Holmes that
"there is no canon against using common sense in construing laws as saying
what it obviously means."97
Moreover, the framers of the fundamental law could have easily and
conveniently provided that the term of office of the Ombudsman and his
deputies shall be the same as that of the chairman and members of the
constitutional commissions if this was their obvious intent. Casus omissus
pro omisso habendus est.A person, object or thing omitted must have been
omitted intentionally.[98
c.  The constitutional commissions
observe the regular rotational plan 
152
 which cannot apply to the Office of  In Imperial,  we established that for the operation of the rotational plan, two
the Ombudsman.
The regular rotation or cycle that is explicitly provided in Art. IX of the 1987
Constitution and inherently unique to the constitutional commissions is an
argument that works heavily against the position of the petitioner that the
limitations on the term of office of these commissions equally apply to the
Ombudsman and his deputies.
It is instructive that in the 1949 case of Nationalista Party v. De Vera,99 the
Court laid down the following ruling when it interpreted Sec. 1, Art. X of the
1935 Constitution[100 relative to the term of office of the commissioners of
the independent COMELEC, to wit:
In order to carry out the purpose of the Constitution of placing in the
Commission a new member every three years, it is essential that after the
first Commissioners have been appointed, every subsequent appointment
shall so fix the appointee's term of office as to maintain the three years
difference between the dates of expiration of the respective terms of the
incumbents. And this can be done if after the appointments of the first three
Commissioners, the successor of any one of them who ceases prior to the
expiration of his term, be appointed only for the unexpired portion of that
term. Of course, when a Commissioner ceases because of the expiration of
his term his successor must be appointed for a term of nine years; but when
he ceases on other grounds prior to the expiration of his term, his successor
must be appointed only for the unexpired portion of that term, otherwise the
appointment would be offensive to the Constitution.101
In Republic v. Imperial,102 the Court held that this particular provision of the
1935 Constitution, when taken together with the prescribed term of office
for nine years without reappointment, evidences a deliberate plan to have a
regular rotation or cycle in the membership of the COMELEC, by having
subsequent members appointable only once every three years. With these
periods it was the intention to have one position vacant every three years,
so that no President can appoint more than one commissioner, thereby
preserving and safeguarding the independence and impartiality of the
Commission as a body, we may add, for the impartiality and independence
of each individual commissioner's tenure was safeguarded by other
provisions in the same Article X of the fundamental charter.103 Moreover, the
rotation of the commissioners' appointments at regular and fixed intervals of
three years was a deliberate plan, was shown by the history of the provision
and by selection of the fixed term of nine years for all subsequent
appointees, since no other term would give such a result.
conditions, both indispensable to its workability, are required, viz:  (1) that
the terms of the first three commissioners should start on a common
date; and (2) that any vacancy due to death, resignation or disability before
the expiration of the term should be filled only for the unexpired balance of
the term. Without satisfying these conditions, the regularity of the intervals
between appointments would be destroyed, and the evident purpose of the
rotation, i.e., to prevent that a four-year administration should appoint more
than one permanent and regular commissioner, would be frustrated. It was
settled therefore that of the first three COMELEC commissioners appointed
whose office shall all commence on a common date, one commissioner shall
have a term of office of nine years, the other for six years, and the
remaining one for three years.
The rotational plan, which was unique for the COMELEC under the 1935
Constitution, was subsequently applied to the CSC and the COA pursuant to
Art. XII of the 1973 Constitution, viz:
B. THE CIVIL SERVICE COMMISSION
SECTION 1. (1) The Civil Service embraces every branch, agency,
subdivision, and instrumentality of the Government, including every
government-owned or-controlled corporation. It shall be administered by an
independent Civil, Service Commission composed of a Chairman and two
Commissioners, who shall be natural-born citizens of the Philippines, and, at
the time of their appointment, are at least thirty-five years of age and
holders of a college degree, and must not have been candidates for any
elective position in the election immediately preceding their
appointment. The Chairman and the Commissioners shall be
appointed by the President for a term of seven years without
reappointment. Of the Commissioners first appointed, one shall hold
office for seven years, another for five years, and the third for three
years. Appointment to any vacancy shall be only for the unexpired
portion of the term of the predecessor.
xxxx
C. THE COMMISSION ON ELECTIONS 
SECTION 1. x x x
(2) The Chairman and the Commissioners shall be appointed by the
President for a term of seven years without reappointment. Of the
153
Commissioners first appointed, three shall hold office for seven
years, three for five years, and the last three for three years.
Appointment to any vacancy shall be only for the unexpired portion
of the term of the predecessor.
xxxx
D. COMMISION ON AUDIT  xxxx
SECTION 1. x x x
(2) The Chairman and the Commissioners shall be appointed by the
President for a term of seven years without reappointment. Of the
Commissioners first appointed, one shall hold office for seven years,
another for five years, and the third for three years. Appointment to
any vacancy shall be only for the unexpired portion of the term of
the predecessor. (emphases supplied)
The regular rotation in the constitutional commissions was carried over in
Art. IX of the 1987 Constitution, as follows:
B. The Civil Service Commission  (emphases supplied)
SECTION 1. x x x
(2) The Chairman and the Commissioners shall be appointed by the
President with the consent of the Commission on Appointments for a term of
seven years without reappointment. Of those first appointed, the
Chairman shall hold office for seven years, a Commissioner for five
years, and another Commissioner for three years, without
reappointment. Appointment to any vacancy shall be only for the
unexpired term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity.
xxxx
C. The Commission on Elections  brought before the Office of the Ombudsman. To stress, the Ombudsman
SECTION 1. x x x
(2) The Chairman and the Commissioners shall be appointed by the
President with the consent of the Commission on Appointments for a term of
seven years without reappointment. Of those first appointed, three
Members shall hold office for seven years, two Members for five
years, and the last Members for three years, without reappointment.
Appointment to any vacancy shall be only for the unexpired term of
the predecessor. In no case shall any Member be appointed or designated
in a temporary or acting capacity.
D. Commission on Audit 
SECTION 1. x x x
(2) The Chairman and the Commissioners shall be appointed by the
President with the consent of the Commission on Appointments for a term of
seven years without reappointment. Of those first appointed, the
Chairman shall hold office for seven years, one Commissioner for
five years, and the other Commissioner for three years, without
reappointment. Appointment to any vacancy shall be only for the
unexpired portion of the term of the predecessor. In no case shall any
Member be appointed or designated in a temporary or acting capacity,
Corollary to these provisions in the 1987 Constitution, the terms of the first
chairmen and commissioners of the constitutional commissions must start
on a common date, irrespective of the variations in the dates of
appointments and qualifications of the appointees, in order that the
expiration of the first terms of seven, five and three years should lead to the
regular recurrence of the two-year interval between the expiration of the
terms.104
Unlike the constitutional commissions in the 1973 and 1987 Constitutions,
the Ombudsman and the deputies do not make a collegial body thus, making
it implausible to apply the regular rotation or cycle in its membership. The
Ombudsman and the deputies, in contrast to the constitutional commissions,
do not decide by a majority vote of all its members any case or matter
and the deputies have their respective jurisdiction; hence, they could not
have common responsibility relative to the discharge of their separate and
distinct functions.
Granting that the regular rotation applies to the Office of the Ombudsman
and that the first appointed Ombudsman shall enjoy a seven-year term,
then these queries are posed: Will the seven-year term likewise apply to the
154
first appointed deputies? Who among the first appointed deputies shall take
the five-year term? Or the three-year term? Obviously, the 1987
Constitution does not provide the answers plainly because there is nothing
specific in the fundamental law that provides for the regular rotation of
seven-five-three-year term of office in the Office of the Ombudsman. Thus,
it is only apposite to apply the well-settled rule that the court may not, in
the guise of interpretation, enlarge the scope of a statute and include
therein situations not provided nor intended by the lawmakers105 or, in this
case, the framers of the 1987 Constitution. To stress, it is presumed that
these provisions have been carefully crafted in order to express the
objective it seeks to attain.106
Belatedly, as this issue is raised for the first time in his memorandum,
petitioner points out another dimension as to the alleged unconstitutionality
of Sec. 8(3) of R.A. No. 6770. Petitioner avers that Sec. 8(3) of R.A. No.
6770, in so far as provides that the Overall Deputy shall serve as Acting
Ombudsman in a concurrent capacity until a new Ombudsman shall have
been appointed for a full term runs counter to what is uniformly provided in
Sec. 2 of Art. IX(A), (B), and (C) of the 1987 Constitution, viz: "In no case
shall any member be appointed or designated in a temporary or acting
capacity."107
To the point of being monotonous, Art. IX of the 1987 Constitution refers
exclusively to the constitutional commissions; thus, such proscription as to
the appointment or designation in a temporary or acting capacity of a
member applies only to the constitutional commissions and cannot extend to
the Ombudsman and the deputies. Indeed, Art. XI of the constitution does
not provide for such prohibition. What is clear however, is that the
Ombudsman and the deputies shall, during their tenure, be subject to the
same disqualifications and prohibitions as provided for in Sec. 2 of Article
IX(A) of this Constitution, "[n]o Member of a Constitutional Commission
shall, during his tenure; hold any other office or employment. Neither shall
he engage in the practice of any profession or in the active management or
control of any business which in any way may be affected by the functions of
his office, nor shall he be financially interested, directly or indirectly, in any
contract with, or in any franchise or privilege granted by the Government,
any of its subdivisions, agencies, or instrumentalities, including government-
owned or -controlled corporations or their subsidiaries."
d.  The ruling in Gaminde as to the terms of 
office of the chairman and members of the
constitutional commissions does not apply  exclusively to the CSC, the COMELEC, and the COA for the reason that Art.
to the Ombudsman and the deputies.
In Gaminde, petitioner Gaminde was appointed on 11 June 1993 as ad
interim  CSC commissioner, and assumed office on 22 June 1993. From her
appointment paper, Gaminde's term was to expire on 2 February 1999.
When Gaminde sought clarification from the Office of the President as to the
expiration of her term of office, she was informed by the Chief Presidential
Legal Counsel that it would expire on 2 February 2000. The COA General
Counsel, however, opined otherwise, stating that Gaminde's term had
expired on 2 February 1999, conformably with the constitutional intent. As a
result, the salaries and emoluments of Gaminde and her co-terminous staff
effective 2 February 1999, were disallowed in audit. Gaminde appealed to
the COA en banc but the commission affirmed the propriety of the
disallowance. Gaminde's motion for reconsideration was denied by COA.
Finding that Gaminde's term expired on 2 February 1999, the Court ruled
that 2 February 1987 was the proper starting point of the terms of office of
the first appointees to the constitutional commissions with staggered seven-
five-three-year terms considering the plain language of Art. IX (B), Sec. 1
(2), Art. IX (C), Sec. 1 (2) and Art. IX (D), Sec. 1 (2) of the 1987
Constitution that uniformly prescribed a seven-year term of office for
members of the constitutional commissions, without re-appointment; and for
the first appointees terms of seven, five and three years, without re-
appointment. If there was a belated appointment or qualification, the
interval between the start of the term and the actual qualification of the
appointee must be counted against the latter.
Relevant to Sec. 15,108 Art. XVIII of the 1987 Constitution, the Court stated
that this provision under the Transitory Provisions contemplates tenure, not
term of the incumbent chairperson and members of the CSC, the COMELEC,
and the COA who shall continue in office for one year after the ratification of
this Constitution, unless they are sooner removed for cause or become
incapacitated to discharge the duties of their office or appointed to a new
term thereunder. The incumbent members of the constitutional
commissions shall continue in office for one year after the ratification of the
1987 Constitution pursuant to their existing appointments unless their
tenure is cut short by the appointing power. However, Sec. 15, Art. XVIII
will not have any effect on the term of office fixed in Art. IX of the 1987
Constitution providing for a seven-five-three year rotational interval for
the first appointees to the constitutional commissions.
The Court draws attention to the fact that its ruling in Gaminde applies
IX of the 1987 Constitution pertains solely to the constitutional commissions.
Indeed, the jurisprudential teachings since 1949 in Bautista  and De vera, in
1955 in Imperial, albeit referring to the terms of office of the COMELEC
155
chairman and members, and now in Gaminde,  pertain to the three
constitutional commissions, and nothing else. It will be absurd, as it is
devoid of any valid and legal reason, to extend the application of
the Gaminde ruling to the Office of the Ombudsman when this office is
admittedly not a constitutional commission.
e.  Sec 8(3) of R.A. No. 6770 is  years without reappointment. They shall not be qualified to run for any office
consistent with Sec. 11, Art. XI of  in the election immediately succeeding their cessation from office.
the 1987 Constitution.
Tracing the history of the creation of the now Office of the Ombudsman, the
1973 Constitution provides:
Sec. 6. The Batasang Pambansa shall create an office of the Ombudsman, to
be known as Tanodbayan, which shall receive and investigate complaints
relative to public office, including those in government-owned or -controlled
corporations, make appropriate recommendations, and in case of failure of
justice as defined by law, file and prosecute the corresponding criminal, civil,
or administrative case before the proper court or body.109
It was by virtue of P.D. No. 1487 that President Marcos, in the exercise of
his power under Proclamation No. 1081, clearly defined the term of office of
the Tanodbayan and his deputies, viz:
Section 6. Term of Office.
(a) The Tanodbayan and his Deputies shall serve for a term of
seven years without reappointment unless removed by the
President upon his determination that the Tanodbayan or
any of his Deputies has become incapacitated or has been
guilty of neglect of duty, or misconduct.  under the 1987 Constitution that the appointment of the Tanodbayan and
(b) If the Office of Tanodbayan becomes vacant for any
cause, the Senior Deputy Tanodbayan shall serve as
Acting Tanodbayan until the Tanodbayan shall have
been appointed for a full term. (emphasis and
underlining supplied)
P.D. No. 1607 and P.D. No. 1630 were subsequently issued by President
Marcos amending P.D. No. 1487. Significantly, the amendatory decrees
plainly reiterated the very same provision found in Sec. 6 of P.D. No. 1487.
On the one hand, Sec. 11, Art. XI of the 1987 Constitution reads:
Sec. 11. The Ombudsman and his Deputies shall serve for a term of seven
The quoted provision of the Constitution is clear and explicit: (a) the
Ombudsman and the deputies shall serve the term of seven years; (b) that
the Ombudsman and the deputies shall not be reappointed; and (c) the
Ombudsman and the deputies shall not run for any office in the election
immediately succeeding their cessation from office.
Contrary to the position of the petitioner, Sec. 11, Art. XI by itself is clear
and can stand on its own. Notably, the framers plainly provided for a seven-
year term of the Ombudsman and the deputies. For sure, nowhere in the
Constitution can it be gathered that the appointment to any vacancy for the
position of Ombudsman and the deputies shall be only for the unexpired
term of the predecessor. This can only mean that it was the intent of the
framers that the appointment to the positions of the Ombudsman and the
deputies, whether it be for the expired or unexpired term of the
predecessor, shall always be for a full term of seven years. Ubi lex non
distinguit nec nos distinguere debemus. Basic is the rule in statutory
construction that where the law does not distinguish, the courts should not
distinguish.110 Where the law is free from ambiguity, the court may not
introduce exceptions or conditions where none is provided from
considerations of convenience, public welfare, or for any laudable purpose;
neither may it engraft into the law qualifications not contemplated.111
More importantly, it can be easily deduced from the decrees issued by
President Marcos preceding the creation of the Office of the Ombudsman
the deputies shall be for a full term of seven years regardless of the reason
for the vacancy in the position.
Jurisprudence teaches us that a statute should be construed in harmony with
the constitution, viz:
As the constitution is the fundamental law to which all laws are subservient,
a statute should not be interpreted independently of the Constitution. The
statute should be construed in harmony with, and not in violation of, the
fundamental law. The legislature, in enacting a statute, is presumed to have
156
adhered to the constitutional limitations. Courts should accordingly presume
that it was the intention of the legislature to enact a valid, sensible, and just
law one which operates no further than maybe necessary to effectuate the
specific purpose of the law.112
In our review of Sec. 8(3) of R.A. No. 6770, we note that in case of death,
resignation, removal, or permanent disability of the Ombudsman, the new
Ombudsman shall be appointed for a full term. Undoubtedly, Sec. 8(3), R.A.
No. 6770 is consistent with Sec. 11, Art. XI of the 1987 Constitution in so far
as it provides that the Ombudsman and the deputies shall serve for a term
of seven years. Every statute is presumed valid. The presumption is that the
legislature intended to enact a valid, sensible and just law and one which
operates no further than may be necessary to effectuate the specific purpose
of the law.113
Petitioner asserts that in case of a vacancy for reasons other than the
expiration of the term in the other constitutionally created offices, the
successor shall serve for the unexpired term of the predecessor. In an
attempt to fortify his assertion he cites the term of the Office of the
President,114 the Vice-President,115the Senators, and the Members of the
House of Representatives. 116
The Court is not persuaded.
Petitioner failed to consider that there are other offices created under the
1987 Constitution where the successor is not limited to hold office for the
unexpired term of the predecessor. To name a few: (a) the justices of the
Supreme Court and the judges of the lower courts hold office during good
behavior until they reach the age of seventy years or become incapacitated
to discharge the duties of their office;117hence, in case the incumbent
reaches the age of seventy or when a vacancy occurs for any other reason,
the successor shall hold office until he reaches the age of seventy or
becomes incapacitated to discharge his duties; (b) the JBC, where the
regular members are the following: a representative each from the
Integrated Bar of the Philippines (IBP) and the private sector; a professor of
law; and a retired member of the Supreme Court.118 Of the regular members
first appointed, the representative of the IBP shall serve for four years, the
professor of law for three years, the retired Justice for two years, and the
representative of the private sector for one year. The Chief Justice shall be
the ex officio  Chairman of the JBC, and the Secretary of Justice and a
representative of the Congress as ex officio Members. Thus, the Chief
Justice shall remain as the ex officio  JBC Chairman until the mandatory
retirement age of 70 or becomes incapacitated to discharge the duties of the
office; the Secretary of Justice, while holding this Cabinet position; and the
representative of Congress,119 until recalled by the chamber or until the term
of the representative expires, his term prematurely ends due to death,
resignation, removal, or permanent disability; (c) the Senate and the House
Electoral Tribunal, where each electoral tribunal shall be composed of nine
members, three of whom shall be Justices of the Supreme Court to be
designated by the Chief Justice, and the remaining six shall be members of
the Senate or the House of Representatives, as the case may be, who shall
be chosen on the basis of proportional representation from the political
parties and the parties or organizations registered under the party-list
system represented therein. The senior Justice in the electoral tribunal shall
be its Chairman. Following the earlier discussion on the JBC, the term of the
Justices shall be until they reach the mandatory retirement age of 70 or
become incapacitated to discharge the duties of the office; and the members
of the Senate and the House of Representatives, until they are recalled by
the chamber, or their term expires, or their term prematurely ends due to
death, resignation, removal, or permanent disability; and (e) the
Commission on Appointments (CA),  which shall be composed of twelve
Senators and twelve members of the House of Representatives, elected by
each House on the basis of proportional representation from the political
parties and parties or organizations registered under the party-list system
represented herein. The President of the Senate shall be the ex
officio chairman of the CA.[120 Hence, the ex officio chairman shall remain as
such until he becomes the President of the Senate, while the members shall
continue as such until recalled by the chamber, or until their term expires, or
their term prematurely ends due to death, resignation, removal, or
permanent disability.
It is a legal teaching that the courts, as guardians of the Constitution, have
the inherent authority to determine whether a statute enacted by the
legislature transcends the limit imposed by the fundamental law. And where
the acts of the other branches of government run afoul of the Constitution, it
is the judiciary's solemn and sacred duty to nullify the same.[121 The Court
has punctiliously reviewed the 1987 Constitution and its jurisprudential
declarations but found nothing that would at the very least tenuously
support the argument of the petitioner that Sec. 8(3) of R.A. No. 6770 is
unconstitutional.
Going back to our earlier pronouncement that the onerous task of rebutting
the presumption weighs heavily on the party challenging the validity of the
statute, the Court rules that the petitioner has miserably failed to prove that
Sec. 8(3) of R.A. No. 6770 transgresses the provisions of the 1987
Constitution. As such, the Court has no option but to deny the petition.
To summarize:
Pertinent to Sec. 10, Art. XI of the 1987 Constitution, it is only as to the
rank and salary that the Ombudsman and the deputies shall be the same
157
with the chairman and members, respectively, of the constitutional
commissions.

Harmonizing Sec. 11, Art. XI of the 1987 Constitution with Sec. 8(3) of R.A.
No. 6770, in any vacancy for the positions of Ombudsman and the deputies,
whether as a result of the expiration of the term or death, resignation,
removal, or permanent disability of the predecessor, the successor shall
always be appointed for a full term of seven years.

Unlike the constitutional commissions in Art. IX of the 1987 Constitution, the

seven-year term of office of the first appointees for Ombudsman and the
deputies is not reckoned from 2 February 1987, but shall be reckoned from
their date of appointment. Accordingly, the present Ombudsman and
deputies shall serve a full term of seven years from their date of
appointment unless their term is cut short by death, resignation, removal, or
permanent disability.

The Gaminde ruling applies to the constitutional commissions and not to the

Office of the Ombudsman.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

G.R. No. 187298               July 03, 2012

JAMAR M. KULAYAN, TEMOGEN S. TULAWIE, HJI. MOH. YUSOP

ISMI, JULHAJAN AWADI, and SPO1 SATTAL H.
JADJULI, Petitioners, 
vs.
GOV. ABDUSAKUR M. TAN, in his capacity as Governor of Sulu;
GEN. JUANCHO SABAN, COL. EUGENIO CLEMEN PN, P/SUPT.
JULASIRIM KASIM and P/SUPT. BIENVENIDO G. LATAG, in their
capacity as officers of the Phil. Marines and Phil. National Police,
respectively, Respondents.

DECISION

SERENO, J.:

158
On 15 January 2009, three members from the International Committee Responsibilities of the Provincial Government:
of the Red Cross (ICRC) were kidnapped in the vicinity of the
Provincial Capitol in Patikul, Sulu. Andres Notter, a Swiss national and
1 
1) The Provincial Government shall source the funds and
head of the ICRC in Zamboanga City, Eugenio Vagni, an Italian logistics needed for the activation of the CEF;
national and ICRC delegate, and Marie Jean Lacaba, a Filipino
engineer, were purportedly inspecting a water and sanitation project for 2) The Provincial Government shall identify the Local
the Sulu Provincial Jail when inspecting a water and sanitation project Government Units which shall participate in the operations and
for the Sulu Provincial Jail when they were seized by three armed men to propose them for the approval of the parties to this
who were later confirmed to be members of the Abu Sayyaf Group agreement;
(ASG). The leader of the alleged kidnappers was identified as Raden
2 

Abu, a former guard at the Sulu Provincial Jail. News reports linked
3) The Provincial Government shall ensure that there will be no
Abu to Albader Parad, one of the known leaders of the Abu Sayyaf.
unilateral action(s) by the CEF without the knowledge and
approval by both parties.
On 21 January 2009, a task force was created by the ICRC and the
Philippine National Police (PNP), which then organized a parallel local
Responsibilities of AFP/PNP/ TF ICRC (Task Force ICRC):
group known as the Local Crisis Committee. The local group, later
3 

renamed Sulu Crisis Management Committee, convened under the

leadership of respondent Abdusakur Mahail Tan, the Provincial
Governor of Sulu. Its armed forces component was headed by
respondents General Juancho Saban, and his deputy, Colonel Eugenio
Clemen. The PNP component was headed by respondent Police
Superintendent Bienvenido G. Latag, the Police Deputy Director for
Operations of the Autonomous Region of Muslim Mindanao (ARMM).
1) The AFP/PNP shall remain the authority as prescribed by
law in military operations and law enforcement;
2) The AFP/PNP shall ensure the orderly deployment of the
CEF in the performance of their assigned task(s);
4 

3) The AFP/PNP shall ensure the safe movements of the CEF

Governor Tan organized the Civilian Emergency Force (CEF), a group in identified areas of operation(s);
of armed male civilians coming from different municipalities, who were
redeployed to surrounding areas of Patikul. The organization of the
5  4) The AFP/PNP shall provide the necessary support and/or
CEF was embodied in a "Memorandum of Understanding" entered into
6  assistance as called for in the course of
operation(s)/movements of the CEF. 8 

between three parties: the provincial government of Sulu, represented

by Governor Tan; the Armed Forces of the Philippines, represented by
Gen. Saban; and the Philippine National Police, represented by
P/SUPT. Latag. The Whereas clauses of the Memorandum alluded to
the extraordinary situation in Sulu, and the willingness of civilian
Meanwhile, Ronaldo Puno, then Secretary of the Department of Interior
and Local Government, announced to the media that government
troops had cornered some one hundred and twenty (120) Abu Sayyaf
members along with the three (3) hostages. However, the ASG made
9 

supporters of the municipal mayors to offer their services in order that

"the early and safe rescue of the hostages may be achieved." 7 
contact with the authorities and demanded that the military pull its
troops back from the jungle area. The government troops yielded and
10 

This Memorandum, which was labeled ‘secret’ on its all pages, also went back to their barracks; the Philippine Marines withdrew to their
outlined the responsibilities of each of the party signatories, as follows: camp, while police and civilian forces pulled back from the terrorists’

159
stronghold by ten (10) to fifteen (15) kilometers. Threatening that one
of the hostages will be beheaded, the ASG further demanded the
evacuation of the military camps and bases in the different barangays
in Jolo. The authorities were given no later than 2:00 o’clock in the
11 
afternoon of 31 March 2009 to comply. 12 
On 31 March 2009, Governor Tan issued Proclamation No. 1, Series of
2009 (Proclamation 1-09), declaring a state of emergency in the
province of Sulu. It cited the kidnapping incident as a ground for the
13 
said declaration, describing it as a terrorist act pursuant to the Human
Security
Act (R.A. 9372). It also invoked Section 465 of the Local Government
Code of 1991 (R.A. 7160), which bestows on the Provincial Governor
the power to carry out emergency measures during man-made and
natural disasters and calamities, and to call upon the appropriate
national law enforcement agencies to suppress disorder and lawless
violence.
In the same Proclamation, respondent Tan called upon the PNP and
the CEF to set up checkpoints and chokepoints, conduct general
search and seizures including arrests, and other actions necessary to
ensure public safety. The pertinent portion of the proclamation states:
NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED IN ME
BY LAW, I, ABDUSAKUR MAHAIL TAN, GOVERNOR OF THE
PROVINCE OF SULU, DO HEREBY DECLARE A STATE OF
EMERGENCY IN THE PROVINCE OF SULU, AND CALL ON THE
PHILIPPINE NATIONAL POLICE WITH THE ASSISTANCE OF THE
ARMED FORCES OF THE PHILIPPINES AND THE CIVILIAN
EMERGENCY FORCE TO IMPLEMENT THE FOLLOWING:
1. The setting-up of checkpoints and chokepoints in the
province;
2. The imposition of curfew for the entire province subject to
such Guidelines as may be issued by proper authorities;
3. The conduct of General Search and Seizure including
arrests in the pursuit of the kidnappers and their supporters;
and
4. To conduct such other actions or police operations as may
be necessary to ensure public safety.
DONE AT THE PROVINCIAL CAPITOL, PROVINCE OF SULU THIS
31STDAY OF MARCH 2009. Sgd. Abdusakur M. Tan Governor. 14 
On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to
report to respondent P/SUPT. Julasirim Kasim. Upon arriving at the
15 
police station, he was booked, and interviewed about his relationship to
Musin, Jaiton, and Julamin, who were all his deceased relatives. Upon
admitting that he was indeed related to the three, he was detained.
After a few hours, former Punong Barangay Juljahan Awadi, Hadji
Hadjirul Bambra, Abdugajir Hadjirul, as well as PO2 Marcial Hajan,
SPO3 Muhilmi Ismula, Punong Barangay Alano Mohammad and
jeepney driver Abduhadi Sabdani, were also arrested. The affidavit of
16  17 
the apprehending officer alleged that they were suspected ASG
supporters and were being arrested under Proclamation 1-09. The
following day, 2 April 2009, the hostage Mary Jane Lacaba was
released by the ASG.
On 4 April 2009, the office of Governor Tan distributed to civic
organizations, copies of the "Guidelines for the Implementation of
Proclamation No. 1, Series of 2009 Declaring a State of Emergency in
the Province of Sulu." These Guidelines suspended all Permits to
18 
Carry
Firearms Outside of Residence (PTCFORs) issued by the Chief of the
PNP, and allowed civilians to seek exemption from the gun ban only by
applying to the Office of the Governor and obtaining the appropriate
identification cards. The said guidelines also allowed general searches
and seizures in designated checkpoints and chokepoints.
160
On 16 April 2009, Jamar M. Kulayan, Temogen S. Tulawie, Hadji
Mohammad Yusop Ismi, Ahajan Awadi, and SPO1 Sattal H. Jadjuli,
residents of Patikul, Sulu, filed the present Petition for Certiorari and
Prohibition, claiming that Proclamation 1-09 was issued with grave
19 
abuse of discretion amounting to lack or excess of jurisdiction, as it
threatened fundamental freedoms guaranteed under Article III of the
1987 Constitution.
Petitioners contend that Proclamation No. 1 and its Implementing
Guidelines were issued ultra vires, and thus null and void, for violating
Sections 1 and 18, Article VII of the Constitution, which grants the
President sole authority to exercise emergency powers and calling-out
powers as the chief executive of the Republic and commander-in-chief
of the armed forces. Additionally, petitioners claim that the Provincial
20 
Governor is not authorized by any law to create civilian armed forces
under his command, nor regulate and limit the issuances of PTCFORs
to his own private army.
In his Comment, Governor Tan contended that petitioners violated the
doctrine on hierarchy of courts when they filed the instant petition
directly in the court of last resort, even if both the Court of Appeals
(CA) and the Regional Trial Courts (RTC) possessed concurrent
jurisdiction with the
Supreme Court under Rule 65. This is the only procedural defense
21 
raised by respondent Tan. Respondents Gen. Juancho Saban, Col.
Eugenio Clemen, P/SUPT. Julasirim Kasim, and P/SUPT. Bienvenido
Latag did not file their respective Comments. 1âwphi1
On the substantive issues, respondents deny that Proclamation 1-09
was issued ultra vires, as Governor Tan allegedly acted pursuant to
Sections 16 and 465 of the Local Government Code, which empowers
the Provincial Governor to carry out emergency measures during
calamities and disasters, and to call upon the appropriate national law
enforcement agencies to suppress disorder, riot, lawless violence,
rebellion or sedition. Furthermore, the Sangguniang Panlalawigan of
22 
Sulu authorized the declaration of a state of emergency as evidenced
by Resolution No. 4, Series of 2009 issued on 31 March 2009 during
its regular session.23 
The threshold issue in the present case is whether or not Section 465,
in relation to Section 16, of the Local Government Code authorizes the
respondent governor to declare a state of emergency, and exercise the
powers enumerated under Proclamation 1-09, specifically the conduct
of general searches and seizures. Subsumed herein is the secondary
question of whether or not the provincial governor is similarly clothed
with authority to convene the CEF under the said provisions.
We grant the petition.
I. Transcendental public Importance warrants a relaxation of the
Doctrine of Hierarchy of Courts
We first dispose of respondents’ invocation of the doctrine of hierarchy
of courts which allegedly prevents judicial review by this Court in the
present case, citing for this specific purpose, Montes v. Court of
Appeals and Purok Bagong Silang Association, Inc. v. Yuipco. Simply24 
put, the
doctrine provides that where the issuance of an extraordinary writ is
also within the competence of the CA or the RTC, it is in either of these
courts and not in the Supreme Court, that the specific action for the
issuance of such writ must be sought unless special and important
laws are clearly and specifically set forth in the petition. The reason for
this is that this Court is a court of last resort and must so remain if it is
to perform the functions assigned to it by the Constitution and
immemorial tradition. It cannot be burdened with deciding cases in the
first instance.
25 
The said rule, however, is not without exception. In Chavez v. PEA-
Amari, the Court stated:
26 
PEA and AMARI claim petitioner ignored the judicial hierarchy by
seeking relief directly from the Court. The principle of hierarchy of
courts applies generally to cases involving factual questions. As it is
not a trier of facts, the Court cannot entertain cases involving factual
issues. The instant case, however, raises constitutional questions of
transcendental importance to the public. The Court can resolve this
161
case without determining any factual issue related to the case. Also,
the instant case is a petition for mandamus which falls under the
original jurisdiction of the Court under Section 5, Article VIII of the
Constitution. We resolve to exercise primary jurisdiction over the
instant case.27 
The instant case stems from a petition for certiorari and prohibition,
over which the Supreme Court possesses original jurisdiction. More
28 
crucially, this case involves acts of a public official which pertain to
restrictive custody, and is thus impressed with transcendental public
importance that would warrant the relaxation of the general rule. The
Court would be remiss in its constitutional duties were it to dismiss the
present petition solely due to claims of judicial hierarchy.
In David v. Macapagal-Arroyo, the Court highlighted the
29 
transcendental public importance involved in cases that concern
restrictive custody, because judicial review in these cases serves as "a
manifestation of the crucial defense of civilians ‘in police power’ cases
due to the diminution of their basic liberties under the guise of a state
of emergency." Otherwise, the importance of the high tribunal as the
30 
court of last resort would be put to naught, considering the nature of
"emergency" cases, wherein the proclamations and issuances are
inherently short-lived. In finally disposing of the claim that the issue had
become moot and academic, the Court also cited transcendental public
importance as an exception, stating:
Sa kabila ng pagiging akademiko na lamang ng mga isyu tungkol sa
mahigpit na pangangalaga (restrictive custody) at pagmonitor ng galaw
(monitoring of movements) ng nagpepetisyon, dedesisyunan namin ito
(a) dahil sa nangingibabaw na interes ng madla na nakapaloob dito,
(b) dahil sa posibilidad na maaaring maulit ang pangyayari at (c) dahil
kailangang maturuan ang kapulisan tungkol dito.
The moot and academic principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will
decide cases, otherwise moot and academic, if: first, there is a grave
violation of the Constitution; second, the exceptional character of the
situation and the paramount public interest is involved; third, when [the]
constitutional issue raised requires formulation of controlling principles
to guide the bench, the bar, and the public; and fourth, the case is
capable of repetition yet evading review.
…There is no question that the issues being raised affect the public
interest, involving as they do the people’s basic rights to freedom of
expression, of assembly and of the press. Moreover, the
Court has the duty to formulate guiding and controlling constitutional
precepts, doctrines or rules. It has the symbolic function of educating
the bench and the bar, and in the present petitions, the military and the
police, on the extent of the protection given by constitutional
guarantees. And lastly, respondents contested actions are capable of
repetition. Certainly, the petitions are subject to judicial review.
Evidently, the triple reasons We advanced at the start of Our ruling are
justified under the foregoing exceptions. Every bad, unusual incident
where police officers figure in generates public interest and people
watch what will be done or not done to them. Lack of disciplinary steps
taken against them erode public confidence in the police institution. As
petitioners themselves assert, the restrictive custody of policemen
under investigation is an existing practice, hence, the issue is bound to
crop up every now and then. The matter is capable of repetition or
susceptible of recurrence. It better be resolved now for the education
and guidance of all concerned. (Emphasis supplied)
31 
Hence, the instant petition is given due course, impressed as it is with
transcendental public importance.
II. Only the President is vested with calling-out powers, as the
commander-in-chief of the Republic
i. One executive, one commander-in-chief
As early as Villena v. Secretary of Interior, it has already been
32 
established that there is one repository of executive powers, and that is
the President of the Republic. This means that when Section 1, Article
VII of the Constitution speaks of executive power, it is granted to the
162
President and no one else. As emphasized by Justice Jose P. Laurel,
33 
in his ponencia in Villena:
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 principle that "The executive power shall be vested
in a President of the Philippines." This means that the President of the
Philippines is the Executive of the Government of the Philippines, and
no other.34  special session, may revoke such proclamation or suspension, which
Corollarily, it is only the President, as Executive, who is authorized to
exercise emergency powers as provided under Section 23, Article VI,
of the Constitution, as well as what became known as the calling-out
powers under Section 7, Article VII thereof.
ii. The exceptional character of Commander-in-Chief powers dictate
that they are exercised by one president
Springing from the well-entrenched constitutional precept of One
President is the notion that there are certain acts which, by their very
nature, may only be performed by the president as the Head of the
State. One of these acts or prerogatives is the bundle of Commander-
in-Chief powers to which the "calling-out" powers constitutes a portion.
The President’s Emergency Powers, on the other hand, is balanced
only by the legislative act of Congress, as embodied in the second
paragraph of Section 23, Article 6 of the Constitution:
Article 6, Sec 23(2). In times of war or other national emergency, the
Congress may, by law, authorize the President, for a limited period and
subject to such restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national policy. Unless
sooner withdrawn by resolution of the Congress, such powers shall
cease upon the next adjournment thereof. 35  over the military, making the civilian president the nation’s supreme
Article 7, Sec 18. The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it becomes necessary,
he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when
the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or
revocation shall not be set aside by the President. Upon the initiative of
the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall, within twenty-four hours
following such proclamation or suspension, convene in accordance
with its rules without need of a call.36 
The power to declare a state of martial law is subject to the Supreme
Court’s authority to review the factual basis thereof.  By constitutional
37 
fiat, the calling-out powers, which is of lesser gravity than the power to
declare martial law, is bestowed upon the President alone. As noted in
Villena, "(t)here are certain constitutional powers 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 x x x. 38 
Indeed, while the President is still a civilian, Article II, Section 3 of the
39 
Constitution mandates that civilian authority is, at all times, supreme
military leader. The net effect of Article II, Section 3, when read with
Article VII,
163
Section 18, is that a civilian President is the ceremonial, legal and
administrative head of the armed forces. The Constitution does not
require that the President must be possessed of military training and
talents, but as Commander-in-Chief, he has the power to direct military
operations and to determine military strategy. Normally, he would be
expected to delegate the actual command of the armed forces to
military experts; but the ultimate power is his. As Commander-in-Chief,
40 
he is authorized to direct the movements of the naval and military
forces placed by law at his command, and to employ them in the
manner he may deem most effectual. 41 
In the case of Integrated Bar of the Philippines v. Zamora, the Court
42 
had occasion to rule that the calling-out powers belong solely to the
President as commander-in-chief:
When the President calls the armed forces to prevent or suppress
lawless violence, invasion or rebellion, he necessarily exercises a
discretionary power solely vested in his wisdom. This is clear from the
intent of the framers and from the text of the Constitution itself. The
Court, thus, cannot be called upon to overrule the President’s wisdom
or substitute its own. However, this does not prevent an examination of
whether such power was exercised within permissible constitutional
limits or whether it was exercised in a manner constituting grave abuse
of discretion. In view of the constitutional intent to give the President
full discretionary power to determine the necessity of calling out the
armed forces, it is incumbent upon the petitioner to show that the
President’s decision is totally bereft of factual basis.
There is a clear textual commitment under the Constitution to bestow
on the President full discretionary power to call out the armed forces
and to determine the necessity for the exercise of such
power. (Emphasis supplied)
43 
Under the foregoing provisions, Congress may revoke such
proclamation or suspension and the Court may review the sufficiency
of the factual basis thereof. However, there is no such equivalent
provision dealing with the revocation or review of the President’s action
to call out the armed forces. The distinction places the calling out
power in a different category from the power to declare martial law and
the power to suspend the privilege of the writ of habeas corpus,
otherwise, the framers of the Constitution would have simply lumped
together the three powers and provided for their revocation and review
without any qualification.
44 
That the power to call upon the armed forces is discretionary on the
president is clear from the deliberation of the Constitutional
Commission:
FR. BERNAS. It will not make any difference. I may add that there is a
graduated power of the President as Commander-in-Chief. First, he
can call out such Armed Forces as may be necessary to suppress
lawless violence; then he can suspend the privilege of the writ of
habeas corpus, then he can impose martial law. This is a graduated
sequence.
When he judges that it is necessary to impose martial law or suspend
the privilege of the writ of habeas corpus, his judgment is subject to
review. We are making it subject to review by the Supreme Court and
subject to concurrence by the National Assembly. But when he
exercises this lesser power of calling on the Armed Forces, when he
says it is necessary, it is my opinion that his judgment cannot be
reviewed by anybody.
x x x           x x x          x x x
MR. REGALADO. That does not require any concurrence by the
legislature nor is it subject to judicial review.
The reason for the difference in the treatment of the aforementioned
powers highlights the intent to grant the President the widest leeway
and broadest discretion in using the power to call out because it is
considered as the lesser and more benign power compared to the
power to suspend the privilege of the writ of habeas corpus and the
power to impose martial law, both of which involve the curtailment and
suppression of certain basic civil rights and individual freedoms, and
thus necessitating safeguards by Congress and review by this Court.
164
x x x Thus, it is the unclouded intent of the Constitution to vest upon
the President, as Commander-in-Chief of the Armed Forces, full
discretion to call forth the military when in his judgment it is necessary
to do so in order to prevent or suppress lawless violence, invasion or
rebellion. (Emphasis Supplied)
45 
In the more recent case of Constantino, Jr. v. Cuisia, the Court
46 
characterized these powers as exclusive to the President, precisely
because they are of exceptional import:
These distinctions hold true to this day as they remain embodied in our
fundamental law. There are certain presidential powers which arise out
of exceptional circumstances, and if exercised, would involve the
suspension of fundamental freedoms, or at least call for the
supersedence of executive prerogatives over those exercised by co-
equal branches of government. The declaration of martial law, the
suspension of the writ of habeas corpus, and the exercise of the
pardoning power, notwithstanding the judicial determination of guilt of
the accused, all fall within this special class that demands the exclusive
exercise by the President of the constitutionally vested power. The list
is by no means exclusive, but there must be a showing that the
executive power in question is of similar gravitas and exceptional
import.47 
In addition to being the commander-in-chief of the armed forces, the
President also acts as the leader of the country’s police forces, under
the mandate of Section 17, Article VII of the Constitution, which
provides that, "The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed." During the deliberations of the Constitutional
Commission on the framing of this provision, Fr. Bernas defended the
retention of the word "control," employing the same rationale of
singularity of the office of the president, as the only Executive under
the presidential form of government. 48 
Regarding the country’s police force, Section 6, Article XVI of the
Constitution states that: "The State shall establish and maintain one
police force, which shall be national in scope and civilian in character,
to be administered and controlled by a national police commission. The
authority of local executives over the police units in their jurisdiction
shall be provided by law." 49 
A local chief executive, such as the provincial governor, exercises
operational supervision over the police, and may exercise control only
50 
in day-to-day operations, viz:
Mr. Natividad: By experience, it is not advisable to provide either in our
Constitution or by law full control of the police by the local chief
executive and local executives, the mayors. By our experience, this
has spawned warlordism, bossism and sanctuaries for vices and
abuses. If the national government does not have a mechanism to
supervise these 1,500 legally, technically separate police forces, plus
61 city police forces, fragmented police system, we will have a lot of
difficulty in presenting a modern professional police force. So that a
certain amount of supervision and control will have to be exercised by
the national government.
For example, if a local government, a town cannot handle its peace
and order problems or police problems, such as riots, conflagrations or
organized crime, the national government may come in, especially if
requested by the local executives. Under that situation, if they come in
under such an extraordinary situation, they will be in control. But if the
day-to-day business of police investigation of crime, crime prevention,
activities, traffic control, is all lodged in the mayors, and if they are in
complete operational control of the day-to-day business of police
service, what the national government would control would be the
administrative aspect.
x x x           x x x          x x x
Mr. de los Reyes: so the operational control on a day-to-day basis,
meaning, the usual duties being performed by the ordinary policemen,
will be under the supervision of the local executives?
Mr. Natividad: Yes, Madam President.
x x x           x x x          x x x
165
Mr. de los Reyes: But in exceptional cases, even the operational
control can be taken over by the National Police Commission?
Mr. Natividad: If the situation is beyond the capacity of the local
governments. (Emphases supplied)
51 
Furthermore according to the framers, it is still the President who is
authorized to exercise supervision and control over the police, through
the National Police Commission:
Mr. Rodrigo: Just a few questions. The President of the Philippines is
the Commander-in-Chief of all the armed forces.
Mr. Natividad: Yes, Madam President.
Mr. Rodrigo: Since the national police is not integrated with the armed
forces, I do not suppose they come under the Commander-in-Chief
powers of the President of the Philippines.
Mr. Natividad: They do, Madam President. By law, they are under the
supervision and control of the President of the Philippines.
Mr. Rodrigo: Yes, but the President is not the Commander-in-Chief of
the national police.
Mr. Natividad: He is the President.
Mr. Rodrigo: Yes, the Executive. But they do not come under that
specific provision that the President is the Commander-in-Chief of all
the armed forces.
Mr. Natividad: No, not under the Commander-in-Chief provision.
Mr. Rodrigo: There are two other powers of the President. The
President has control over ministries, bureaus and offices, and
supervision over local governments. Under which does the police fall,
under control or under supervision?
Mr. Natividad: Both, Madam President.
Mr. Rodrigo: Control and supervision.
Mr. Natividad: Yes, in fact, the National Police Commission is under
the Office of the President.52 
In the discussions of the Constitutional Commission regarding the
above provision it is clear that the framers never intended for local
chief executives to exercise unbridled control over the police in
emergency situations. This is without prejudice to their authority over
police units in their jurisdiction as provided by law, and their
prerogative to seek assistance from the police in day to day situations,
as contemplated by the Constitutional Commission. But as a civilian
agency of the government, the police, through the NAPOLCOM,
properly comes within, and is subject to, the exercise by the President
of the power of executive control. 53 
iii. The provincial governor does not possess the same calling-out
powers as the President
Given the foregoing, respondent provincial governor is not endowed
with the power to call upon the armed forces at his own bidding. In
issuing the assailed proclamation, Governor Tan exceeded his
authority when he declared a state of emergency and called upon the
Armed Forces, the police, and his own Civilian Emergency Force. The
calling-out powers contemplated under the Constitution is exclusive to
the President. An exercise by another official, even if he is the local
chief executive, is ultra vires, and may not be justified by the invocation
of Section 465 of the Local Government Code, as will be discussed
subsequently.
Respondents, however, justify this stance by stating that nowhere in
the seminal case of David v. Arroyo, which dealt squarely with the
166
issue of the declaration of a state of emergency, does it limit the said
authority to the President alone. Respondents contend that the ruling in
David expressly limits the authority to declare a national emergency, a
condition which covers the entire country, and does not include
emergency situations in local government units. This claim is belied by
54 
the clear intent of the framers that in all situations involving threats to
security, such as lawless violence, invasion or rebellion, even in
localized areas, it is still the President who possesses the sole
authority to exercise calling-out powers. As reflected in the Journal of
the Constitutional Commission:
Thereafter, Mr. Padilla proposed on line 29 to insert the phrase OR
PUBLIC DISORDER in lieu of "invasion or rebellion." Mr. Sumulong
stated that the committee could not accept the amendment because
under the first section of Section 15, the President may call out and
make use of the armed forces to prevent or suppress not only lawless
violence but even invasion or rebellion without declaring martial law.
He observed that by deleting "invasion or rebellion" and substituting
PUBLIC DISORDER, the President would have to declare martial law
before he can make use of the armed forces to prevent or suppress
lawless invasion or rebellion.
Mr. Padilla, in reply thereto, stated that the first sentence contemplates
a lighter situation where there is some lawless violence in a small
portion of the country or public disorder in another at which times, the
armed forces can be called to prevent or suppress these incidents. He
noted that the Commander-in-Chief can do so in a minor degree but he
can also exercise such powers should the situation worsen. The words
"invasion or rebellion" to be eliminated on line 14 are covered by the
following sentence which provides for "invasion or rebellion." He
maintained that the proposed amendment does not mean that under
such circumstances, the President cannot call on the armed forces to
prevent or suppress the same. (Emphasis supplied)
55 
III. Section 465 of the Local
Government Code cannot be invoked to justify the powers enumerated
under Proclamation 1-09
Respondent governor characterized the kidnapping of the three ICRC
workers as a terroristic act, and used this incident to justify the exercise
of the powers enumerated under Proclamation 1-09. He invokes
56 
Section 465, in relation to Section 16, of the Local Government Code,
which purportedly allows the governor to carry out emergency
measures and call upon the appropriate national law enforcement
agencies for assistance. But a closer look at the said proclamation
shows that there is no provision in the Local Government Code nor in
any law on which the broad and unwarranted powers granted to the
Governor may be based.
Petitioners cite the implementation of "General Search and Seizure
including arrests in the pursuit of the kidnappers and their
supporters," as being violative of the constitutional proscription on
57 
general search warrants and general seizures. Petitioners rightly assert
that this alone would be sufficient to render the proclamation void, as
general searches and seizures are proscribed, for being violative of the
rights enshrined in the Bill of Rights, particularly:
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 under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or
things to be seized.58 
In fact, respondent governor has arrogated unto himself powers
exceeding even the martial law powers of the President, because as
the Constitution itself declares, "A state of martial law does not
suspend the operation of the Constitution, nor supplant the functioning
of the civil courts or legislative assemblies, nor authorize the
conferment of the jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ."59 
We find, and so hold, that there is nothing in the Local Government
Code which justifies the acts sanctioned under the said Proclamation.
167
Not even Section 465 of the said Code, in relation to Section 16, which
states:
Section 465. The Chief Executive: Powers, Duties, Functions, and
Compensation.
x x x           x x x          x x x
(b) For efficient, effective and economical governance the purpose of
which is the general welfare of the province and its inhabitants
pursuant to Section 16 of this Code, the provincial governor shall:
(1) Exercise general supervision and control over all programs,
projects, services, and activities of the provincial government, and in
this connection, shall:
x x x           x x x          x x x
(vii) Carry out such emergency measures as may be necessary during
and in the aftermath of man-made and natural disasters and
calamities;
(2) Enforce all laws and ordinances relative to the governance of the
province and the exercise of the appropriate corporate powers
provided for under Section 22 of this Code, implement all approved
policies, programs, projects, services and activities of the province and,
in addition to the foregoing, shall:
x x x           x x x          x x x
(vi) Call upon the appropriate national law enforcement agencies to
suppress disorder, riot, lawless violence, rebellion or sedition or to
apprehend violators of the law when public interest so requires and the
police forces of the component city or municipality where the disorder
or violation is happening are inadequate to cope with the situation or
the violators.
Section 16. General Welfare. - Every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental for
its efficient and effective governance, and those which are essential to
the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among
other things, the preservation and enrichment of culture, promote
health and safety, enhance the right of the people to a balanced
ecology, encourage and support the development of appropriate and
self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full
employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants. (Emphases
supplied)
Respondents cannot rely on paragraph 1, subparagraph (vii) of Article
465 above, as the said provision expressly refers to calamities and
disasters, whether man-made or natural. The governor, as local chief
executive of the province, is certainly empowered to enact and
implement emergency measures during these occurrences. But the
kidnapping incident in the case at bar cannot be considered as a
calamity or a disaster. Respondents cannot find any legal mooring
under this provision to justify their actions.
Paragraph 2, subparagraph (vi) of the same provision is equally
inapplicable for two reasons. First, the Armed Forces of the Philippines
does not fall under the category of a "national law enforcement
agency," to which the National Police Commission (NAPOLCOM) and
its departments belong.
Its mandate is to uphold the sovereignty of the Philippines, support the
Constitution, and defend the Republic against all enemies, foreign and
domestic. Its aim is also to secure the integrity of the national territory.
60 
Second, there was no evidence or even an allegation on record that
the local police forces were inadequate to cope with the situation or
apprehend the violators. If they were inadequate, the recourse of the
provincial governor was to ask the assistance of the Secretary of
168
Interior and Local Government, or such other authorized officials, for
the assistance of national law enforcement agencies.
The Local Government Code does not involve the diminution of central
powers inherently vested in the National Government, especially not
the prerogatives solely granted by the Constitution to the President in
matters of security and defense.
The intent behind the powers granted to local government units is
fiscal, economic, and administrative in nature. The Code is concerned
1âwphi1
only with powers that would make the delivery of basic services more
effective to the constituents, and should not be unduly stretched to
61  National Government."
confer calling-out powers on local executives.
In the sponsorship remarks for Republic Act 7160, it was stated that
the devolution of powers is a step towards the autonomy of local
government units (LGUs), and is actually an experiment whose
success heavily relies on the power of taxation of the LGUs. The
underpinnings of the Code can be found in Section 5, Article II of the
1973 Constitution, which allowed LGUs to create their own sources of
revenue. During the interpellation made by Mr. Tirol addressed to Mr.
62 
de Pedro, the latter emphasized that "Decentralization is an
administrative concept and the process of shifting and delegating
power from a central point to subordinate levels to promote
independence, responsibility, and quicker decision-making. … (I)t does
not involve any transfer of final authority from the national to field
levels, nor diminution of central office powers and responsibilities.
Certain government agencies, including the police force, are exempted
from the decentralization process because their functions are not
inherent in local government units."63 
IV. Provincial governor is not authorized to convene CEF
Pursuant to the national policy to establish one police force, the
organization of private citizen armies is proscribed. Section 24 of
Article XVIII of the Constitution mandates that:
Private armies and other armed groups not recognized by duly
constituted authority shall be dismantled. All paramilitary forces
including Civilian Home Defense Forces (CHDF) not consistent with
the citizen armed force established in this Constitution, shall be
dissolved or, where appropriate, converted into the regular force.
Additionally, Section 21of Article XI states that, "The preservation of
peace and order within the regions shall be the responsibility of the
local police agencies which shall be organized, maintained,
supervised, and utilized in accordance with applicable laws. The
defense and security of the regions shall be the responsibility of the
Taken in conjunction with each other, it becomes clear that the
Constitution does not authorize the organization of private armed
groups similar to the CEF convened by the respondent Governor. The
framers of the Constitution were themselves wary of armed citizens’
groups, as shown in the following proceedings:
MR. GARCIA: I think it is very clear that the problem we have here is a
paramilitary force operating under the cloak, under the mantle of
legality is creating a lot of problems precisely by being able to operate
as an independent private army for many regional warlords. And at the
same time, this I think has been the thrust, the intent of many of the
discussions and objections to the paramilitary units and the armed
groups.
MR. PADILLA: My proposal covers two parts: the private armies of
political warlords and other armed torces not recognized by constituted
authority which shall be dismantled and dissolved. In my trips to the
provinces, I heard of many abuses committed by the CHDF (Civilian
Home Defense Forces), specially in Escalante, Negros Occidental. But
I do not know whether a particular CHDF is approved or authorized by
competent authority. If it is not authorized, then the CHDF will have to
be dismantled. If some CHDFs, say in other provinces, are authorized
by constituted authority, by the Armed Forces of the Philippines,
through the Chief of Staff or the Minister of National Defense, if they
are recognized and authorized, then they will not be dismantled. But I
cannot give a categorical answer to any specific CHDF unit, only the
169
principle that if they are armed forces which are not authorized, then
they should be dismantled.  (Emphasis supplied)
64 

Thus, with the discussions in the Constitutional Commission as guide,

the creation of the Civilian Emergency Force (CEF) in the present
case, is also invalid.

WHEREFORE, the instant petition is GRANTED. Judgment is

rendered commanding respondents to desist from further proceedings
m implementing Proclamation No. 1, Series of 2009, and its
Implementing Guidelines. The said proclamation and guidelines are
hereby declared NULL and VOID for having been issued in grave
abuse of discretion, amounting to lack or excess of jurisdiction.

SO ORDERED.

EN BANC

G.R. No. 235935, February 06, 2018

REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO S. VILLARIN,

EDGAR R. ERICE, TEDDY BRAWNER BAGUILAT, JR., GARY C.
ALEJANO, AND EMMANUEL A. BILLONES, Petitioners, v.SENATE
PRESIDENT AQUILINO PIMENTEL III, SPEAKER PANTALEON D.
ALVAREZ, EXECUTIVE SECRETARY SALVADOR C.
MEDIALDEA,DEFENSE SECRETARY DELFIN N. LORENZANA, BUDGET
SECRETARY BENJAMIN E. DIOKNO AND ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL REY LEONARDO
GUERRERO, Respondents.

G.R. No. 236061, February 06, 2018

170
 EUFEMIA CAMPOS CULLAMAT, NOLI VILLANUEVA, RIUS VALLE,
ATTY. NERI JAVIER COLMENARES, DR. MARIA CAROLINA P.
ARAULLO, RENATO M. REYES, JR. CRISTINA E. PALABAY, BAYAN
MUNA PARTYLIST REPRESENTATIVE CARLOS ISAGANI T. ZARATE,
GABRIELA WOMEN'S PARTY REPRESENTATIVES EMERENCIANA A. DE
JESUS AND ARLENE D. BROSAS, ANAKPAWIS REPRESENTATIVE
ARIEL B. CASILAO, ACT TEACHERS' REPRESENTATIVES ANTONIO L.
TINIO,AND FRANCISCA L. CASTRO, AND KABATAAN PARTYLIST
REPRESENTATIVE SARAH JANE I. ELAGO, Petitioners, v. PRESIDENT
RODRIGO DUTERTE, SENATE PRESIDENT AQUILINO PIMENTEL III,
HOUSE SPEAKER PANTALEON ALVAREZ, EXECUTIVE SECRETARY
SALVADOR MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA,
ARMED FORCES OF THE PHILIPPINES CHIEF-OF-STAFF GEN. REY
LEONARDO GUERRERO, PHILIPPINE NATIONAL POLICE DIRECTOR-
GENERAL RONALDO DELA ROSA, Respondents.
G.R. No. 236145, February 06, 2018
LORETTA ANN P. ROSALES, Petitioner, v. PRESIDENT RODRIGO R.
DUTERTE, REPRESENTED BY EXECUTIVE SECRETARY SALVADOR C.
MEDIALDEA, MARTIAL LAW ADMINISTRATOR SECRETARY DELFIN N.
LORENZANA, MARTIAL LAW IMPLEMENTER GENERAL REY L.
GUERRERO, AND PHILIPPINE NATIONAL POLICE DIRECTOR
GENERAL RONALDO M. DELA ROSA, AND THE CONGRESS OF THE
PHILIPPINES, CONSISTING OF THE SENATE OF THE PHILIPPINES
REPRESENTED BY SENATE PRESIDENT AQUILINO Q. PIMENTEL III,
AND THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HOUSE
SPEAKER PANTALEON D. ALVAREZ, Respondents.
G.R. No. 236155, February 06, 2018
CHRISTIAN S. MONSOD, DINAGAT ISLANDS REPRESENTATIVE
ARLENE J. BAG-AO, RAY PAOLO J. SANTIAGO, NOLASCO RITZ LEE B.
SANTOS III, MARIE HAZEL E. LAVITORIA, NICOLENE S. ARCAINA,
AND JOSE RYAN S. PELONGCO, Petitioners, v. SENATE PRESIDENT
AQUILINO PIMENTEL III, SPEAKER PANTALEON D. ALVAREZ,
EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, DEPARTMENT OF
NATIONAL DEFENSE (DND) SECRETARY DELFIN N. LORENZANA,
DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT (DILG)
SECRETARY (OFFICER-IN-CHARGE) EDUARDO M. AÑO, ARMED
FORCES OF THE PHILIPPINES (AFP) CHIEF OF STAFF GENERAL REY
LEONARDO GUERRERO, PHILIPPINE NATIONAL POLICE (PNP) CHIEF
DIRECTOR GENERAL RONALD M. DELA ROSA, NATIONAL SECURITY
ADVISER HERMOGENES C. ESPERON, JR., Respondents.
DECISION
TIJAM, J.:
Safety from external danger is the most powerful director of
national conduct. Even the ardent love of liberty will, after a time,
give way to its dictates. - Alexander Hamilton
There is an ongoing rebellion in the Philippines. NPA rebels, Maute rebels,
ASG rebels, BIFF rebels, Islamic fundamentalists and other armed groups
are on the loose. They are engaged in armed conflict with government
forces; they seek to topple the government; and they sow terror and panic
in the community. To ignore this reality and to claim that these are
non-existent is to court consequences that endanger public safety.
A state of martial law is not the normative state. Neither does it take a
perpetual form. It is an extraordinary power premised on necessity meant to
protect the Republic from its enemies. Territorial and temporal limitations
germane to the Constitutional prerequisites of the existence or persistence
of actual rebellion or invasion and the needs of public safety severely restrict
the declaration of martial law, or its extensions. The government can lift the
state of martial law once actual rebellion no longer persists and that public
safety is amply ensured. Should the government, through its elected
President and the Congress, fail in their positive duties prescribed by the
Constitution or transgress any of its safeguards, any citizen is empowered to
question such acts before the Court. When its jurisdiction is invoked, the
Court is not acting as an institution superior to that of the Executive or the
Congress, but as the champion of the Constitution ordained by the sovereign
Filipino people. For, after all, a state of martial law, awesome as it is
perceived to be, does not suspend the operations of the Constitution which
defines and limits the powers of the government and guarantees the bill of
rights to every person.
The Case
These are consolidated petitions,1 filed under the third paragraph, Section 18
of Article VII of the Constitution, assailing the constitutionality of the
extension of the proclamation of martial law and suspension of the privilege
of the writ of habeas corpus in the entire Mindanao for one year from
January 1 to December 31, 2018. Petitioners in G.R. No. 235935
alternatively, but not mandatorily, invoke the Court's expanded jurisdiction
under Section 1 of Article VIII of the Constitution. Petitioners in G.R. Nos.
235935, 236061 and 236155 pray for a temporary restraining order (TRO)
and/or writ of preliminary injunction to enjoin respondents from
implementing the one-year extension.
The Antecedents
171

On May 23, 2017, President Rodrigo Roa Duterte issued Proclamation No.
216,2 declaring a state of martial law and suspending the privilege of the
writ of habeas corpus in the whole of Mindanao for a period not exceeding
sixty (60) days, to address the rebellion mounted by members of the Maute
Group and Abu Sayyaf Group (ASG).
On May 25, 2017, within the 48-hour period set in Section 18, Article VII of
the Constitution, the President submitted to the Senate and the House of
Representatives his written Report, citing the events and reasons that
impelled him to issue Proclamation No. 216. Thereafter, the Senate adopted
P.S. Resolution No. 3883 while the House of Representatives issued House
Resolution No. 1050,4 both expressing full support to the Proclamation and
finding no cause to revoke the same.
Three separate petitions5 were subsequently filed before the Court,
challenging the sufficiency of the factual basis of Proclamation No. 216. In a
Decision rendered on July 4, 2017, the Court found sufficient factual bases
for the Proclamation and declared it constitutional.
On July 18, 2017, the President requested the Congress to extend the
effectivity of Proclamation No. 216. In a Special Joint Session on July 22,
2017, the Congress adopted Resolution of Both Houses No. 26extending
Proclamation No. 216 until December 31, 2017.
In a letter7 to the President, through Defense Secretary Delfin N. Lorenzana
(Secretary Lorenzana), the Armed Forces of the Philippines (AFP) Chief of
Staff, General Rey Leonardo Guerrero (General Guerrero), recommended the
further extension of martial law and suspension of the privilege of the writ
of habeas corpus in the entire Mindanao for one year beginning January 1,
2018 "for compelling reasons based on current security assessment." On the
basis of this security assessment, Secretary Lorenzana wrote a similar
recommendation to the President "primarily to ensure total eradication of
DAESH-inspired Da'awatul Islamiyah Waliyatul Masriq (DIWM), other like-
minded Local/Foreign Terrorist Groups (L/FTGs) and Armed Lawless Groups
(ALGs), and the communist terrorists (CTs) and their coddlers, supporters
and financiers, and to ensure speedy rehabilitation, recovery and
reconstruction efforts in Marawi, and the attainment of lasting peace,
stability, economic development and prosperity in Mindanao."8
Acting on said recommendations, the President, in a letter9 dated December
8, 2017, asked both the Senate and the House of Representatives to further
extend the proclamation of martial law and the suspension of the privilege of
the writ of habeas corpus in the entire Mindanao for one year, from January
1, 2018 to December 31, 2018, or for such period as the Congress may
determine. Urging the Congress to grant the extension based on the
"essential facts" he cited, the President wrote:
A further extension of the implementation of Martial Law and suspension of
the privilege of the writ of habeas corpus in Mindanao will help the AFP, the
Philippine National Police (PNP), and all other law enforcement agencies to
quell completely and put an end to the on-going rebellion in Mindanao and
prevent the same from escalating to other parts of the country. Public safety
indubitably requires such further extension, not only for the sake of security
and public order, but more importantly to enable the government and the
people of Mindanao to pursue the bigger task of rehabilitation and the
promotion of a stable socio-economic growth and development.10
Attached to the President's written request were the letters of Secretary
Lorenzana11 and General Guerrero12 recommending the one-year extension.
On December 13, 2017, the Senate and the House of Representatives, in a
joint session, adopted Resolution of Both Houses No. 413 further extending
the period of martial law and suspension of the privilege of the writ
of habeas corpus in the entire Mindanao for one year, from January 1, 2018
to December 31, 2018. In granting the President's request, the Congress
stated:
WHEREAS, the President informed the Congress of the Philippines of the
remarkable progress made during the period of Martial Law, but
nevertheless reported the following essential facts, which as Commander-in-
Chief of all armed forces of the Philippines, he has personal knowledge of:
First, despite the death of Hapilon and the Maute brothers, the remnants of
their groups have continued to rebuild their organization through the
recruitment and training of new members and fighters to carry on the
rebellion; Second, the Turaifie Group has likewise been monitored to be
planning to conduct bombings, notably targeting the Cotabato area; Third,
the Bangsamoro Islamic Freedom Fighters continue to defy the government
by perpetrating at least fifteen (15) violent incidents during the Martial Law
period in Maguindanao and North Cotabato; Fourth, the remnants of the Abu
Sayyaf Group in Basilan, Sulu, Tawi-tawi, and Zamboanga Peninsula remain
a serious security concern; and last, the New People's Army took advantage
of the situation and intensified their decades-long rebellion against the
government and stepped up terrorist acts against innocent civilians and
private entities, as well as guerrilla warfare against the security sector and
public and government infrastructure, purposely to seize political power
through violent means and supplant the country's democratic form of
government with Communist rule.
WHEREAS, Section 18, Article VII of the 1987 Constitution authorizes the
Congress of the Philippines to extend, at the initiative of the President, such
proclamation or suspension for a period to be determined by the Congress of
the Philippines, if the invasion or rebellion shall persist and public safety
requires it;
172

WHEREAS, on December 13, 2017, after thorough discussion and extensive
debate, the Congress of the Philippines in a Joint Session by two hundred
forty (240) affirmative votes comprising the majority of all its Members, has
determined that rebellion persists, and that public safety indubitably
requires the further extension of the Proclamation of Martial Law and the
Suspension of the Privilege of the Writ of Habeas Corpus in the Whole of
Mindanao; Now, therefore, be it Resolved by the Senate and the House of
Representatives in a Joint Session Assembled, To further extend
Proclamation No. 216, Series of 2017, entitled "Declaring a State of Martial
Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole
of Mindanao" for a period of one (1) year from January 1, 2018 to December
31, 2018.14
The Parties' Arguments
A. Petitioners' case
Based on their respective petitions and memoranda and their oral arguments
before this Court on January 16, 2018 and January 17, 2018, petitioners'
arguments are summarized as follows:
(a) The petitioners' failure to attach the Congress' Joint Resolution approving
the extension is not fatal to the consolidated petitions. Such failure is
justified by the non-availability of the Resolution at the time the petition was
filed. In any case, the Rules on Evidence allow the Court to take judicial
notice of the Resolution as an official act of the legislative.15
(b) The doctrine of presidential immunity does not apply in a sui
generis proceeding under Section 18, Article VII as such immunity pertains
only to civil and criminal liability.16 In this proceeding, the President is not
being held personally liable for damages, or threatened with any
punishment. If at all, he is being held to account for non-compliance with a
constitutional requirement.17
(c) The principle of conclusiveness of judgment is not a bar to raising the
issue of the sufficiency of the factual basis of the extension, being different
from the factual and legal issues raised in the earlier case of Lagman v.
Medialdea.18 At any rate, the Court's decision in Lagman is transitory
considering the volatile factual circumstances.19 Commissioner Joaquin G.
Bernas (Fr. Bernas) emphasized during the deliberations on the 1987
Constitution that the evaluation of the Supreme Court in a petition which
assails such factual situation would be "transitory if proven wrong by
subsequent changes in the factual situation."20
(d) As to the scope and standards of judicial review, petitioners in G.R. No.
236145 assert that the standard for scrutiny for the present petitions is
sufficiency of factual basis, not grave abuse of discretion. The former is, by
constitutional design, a stricter scrutiny as opposed to the latter. Moreover,
the Court is allowed to look into facts presented before it during the
pendency of the litigation. This includes, for example, admissions made by
the Solicitor General and the military during oral arguments, as they
attempted to show compliance with the constitutional requirements.21
In contrast, petitioners in G.R. No. 235935 argue that the standard to be
used in determining the sufficiency of the factual basis for the extension is
limited to the sufficiency of the facts and information contained in the
President's letter dated December 8, 2017 requesting for the extension and
its annexes.22
(e) As to the quantum of proof, petitioners in G.R. No. 236061 insist that
clear and convincing evidence is necessary to establish sufficient factual
basis for the extension of martial law instead of the "probable cause"
standard set in Lagman. In comparison to the initial exercise of the
extraordinary powers of proclamation of martial law and the suspension of
the privilege of the writ of habeas corpus, their extension must have had the
benefit of sufficient time to gather additional information not only on the
factual situation of an actual rebellion, but also the initial exercise of the
Executive during its initial implementation.23 Petitioners further argue that
given its critical role in the system of checks and balance, the Court should
review not only the sufficiency of the factual basis of the re-extension but
also its accuracy.24
(f) As to the onus of showing sufficiency of the factual bases for extending
martial law, petitioners in G.R. Nos. 235935 and 236145 contend that the
President bears the same. Petitioners in G.R. No. 236155, however, argues
that both the President and the Congress bear the burden of proof.
(g) In relation to the Court's power to review the sufficiency of the factual
basis for the proclamation of martial law or any extension thereof, the
military cannot withhold information from the Court on the basis of national
security especially since it is the military itself that classifies what is "secret"
and what is not. The Court's power to review in this case is a specific and
extraordinary mandate of the Constitution that cannot be defeated and
limited by merely invoking that the information sought is "classified."25
(h) The Congress committed grave abuse of discretion for precipitately and
perfunctorily approving the extension of martial law despite the absence of
sufficient factual basis.26 In G.R. No. 235935, petitioners impute grave abuse
of discretion specifically against the "leadership and supermajority" of both
Chambers of Congress, arguing that the extension was approved with
inordinate haste as the Congress' deliberation was unduly constricted to an
indecent 3 hours and 35 minutes. The three-minute period of interpellation
173
(excluding the answer) under the Rules of the Joint Session of Congress was
inordinately short compared to the consideration of ordinary legislation on
second reading. Further, a member of Congress was only allowed a minute
to explain his/her vote, and although a member who did not want to explain
could yield his/her allotted time, the explanation could not exceed three
minutes.27 Petitioners in G.R. No. 236061 highlighted the limited time given
to the legislators to interpellate the AFP Chief, the Defense Secretary and
other resource persons and criticized the Congress' Joint Resolution for not
specifying its findings and justifications for the re-extension.28
(i) The Constitution allows only a one-time extension of martial law and/or
suspension of the privilege of the writ of habeas corpus, not a series of
extensions amounting to perpetuity. As regards the Congress' discretion to
determine the period of the extension, the intent of the Constitution is for
such to be of short duration given that the original declaration of martial law
was limited to only sixty (60) days.29 In addition, the period of extension of
martial law should satisfy the standards of necessity and reasonableness.
Congress must exercise its discretion in a stringent manner considering that
martial law is an extraordinary power of last resort.30
(j) The one-year extension of the proclamation of martial law and
suspension of the privilege of the writ of habeas corpus lacked sufficient
factual basis because there is no actual rebellion in Mindanao. The Marawi
siege and the other grounds under Proclamation No. 216 that were used as
the alleged bases to justify the extension have already been resolved and no
longer persist.31 In his letter of request for further extension, the President
admits that the Maute rebellion has already been quelled and the extension
is to prevent the scattered rebels from gathering and consolidating their
strength.32 Moreover, the President himself had announced the liberation of
Marawi and the cessation of armed combat.33
(k) The President and his advisers' justifications, which were principally
based on "threats of violence and terrorism," "security concerns" and
"imminent danger to public safety," do not amount to actual invasion or
rebellion as to justify the extension of martial law. They merely constitute
"imminent danger." Since the framers of the 1987 Constitution removed the
phrase "imminent danger" as one of the grounds for declaring martial law,
the President can no longer declare or extend martial law on the basis of
mere threats of an impending rebellion.34
(1) The extension should not be allowed on the basis of alleged NPA attacks
because this reason was not cited in the President's original declaration.35
(m) The alleged rebellion in Mindanao does not endanger public safety. The
threat to public safety contemplated under Section 18, Article VII of the
Constitution is one where the government cannot sufficiently or effectively
govern, as when the courts or government offices cannot operate or perform
their functions.36
(n) Martial law should be operative only in a "theater of war" as intended by
the drafters of the Constitution. For a "theater of war" to exist, there must
be an area where actual armed conflict occurs which necessitate military
authorities to take over the functions of government due to the breakdown,
inability or difficulty of the latter to function. The insurrection must have
assumed the status of a public and territorial war, and the conditions must
show that government agencies within the local territory can no longer
function.37 Without any of the four objectives that comprise the second
element of rebellion,38the acts of "regrouping", "consolidation of forces",
"recruitment" and "planning" stages, or the continuing commission of the
crimes of terrorism, robbery, murder, extortion, as cited by the President in
his December 8, 2017 letter, cannot be said to be the "theater of war"
referred to by the framers of the Constitution.39
(o) There is no need to extend martial law to suppress or defeat remnants of
vanquished terrorist groups, as these may be quelled and addressed using
lesser extraordinary powers (i.e., calling out powers) of the President.
Moreover, respondent General Guerrero failed to state during the oral
arguments what additional powers are granted to the military by virtue of
the proclamation and suspension and instead limited himself to the "effects"
of martial law. Respondents simply failed to demonstrate how martial law
powers were used. In short, there is no necessity for martial law.40
In their Memorandum, petitioners in G.R. No. 236145 propounded two tests
(i.e., proportionality and suitability) in determining whether the declaration
or extension of martial law is required or necessitated by public safety.
The Proportionality Test requires that the situation is of such gravity or scale
as to demand resort to the most extreme measures. Petitioners cited AFP's
own admission that there are only 537 out of 8,813 barangays or 6.09%
that are currently being controlled by rebel groups in Mindanao. On the
other hand, the Suitability Test requires that the situation is such that the
declaration of martial law is the correct tool to address the public safety
problem. Considering that the AFP Chief of Staff could not cite what martial
law powers they used in the past, and what martial law powers they intend
to use moving forward, the present circumstances fail both tests.41
(p) Petitioners in G.R. No. 235935 allege that martial law and the
suspension of the writ trigger the commission of human rights violations and
suppression of civil liberties. In fact, the implementation of the same
resulted to intensified human rights violations in Mindanao.42 In support of
the same allegations, petitioners in G.R. No. 236061 attached a letter-report
from Salinlahi on human rights violations committed as a consequence of
martial law in Mindanao. They emphasize that martial law is a scare tactic,
174
one that is not intended for the armed groups mentioned but actually
against the dissenters of the government's policies.43
(q) Finally, in support of their prayer for a TRO or a writ of preliminary
injunction, petitioners in G.R. No. 235935 allege that they are
Representatives to Congress, sworn to defend the Constitution, with the
right to challenge the constitutionality of the subject re-extension. They
claim that petitioner Villarin, who is a resident of Davao City, is personally
affected and gravely prejudiced by there-extension as it would spawn
violations of civil liberties of Mindanaoans like him, a steadfast critic of the
Duterte administration. They also assert that the injunctive relief will
foreclose further commission of human rights violations and the derogation
of the rule of law in Mindanao.44 Petitioners in G.R. No. 236061 likewise
prays for a TRO or writ of preliminary injunction in order to protect their
substantive rights and interests while the case is pending before this Court.45
B. Respondents' case
Respondents, through the Office of the Solicitor General, argue that:
a) Petitioners' failure to submit the written Joint Resolution extending the
martial law and suspension of the privilege of the writ of habeas corpus is
fatal since it is indispensable to the Court's exercise of its review power.46
b) The Cullamat and Rosales Petitions were filed against the President in
violation of the doctrine of presidential immunity from suit.47
c) The Court already ruled in Lagman that there is actual rebellion in
Mindanao. Thus, the principle of conclusiveness of judgment pursuant to
Section 47(c),48 Rule 39 of the Rules of Court bars the petitioners from re-
litigating the same issue.49
d) Given that the Court had already declared in Lagman that there is
rebellion in Mindanao, the onus lies on the petitioners to show that the
rebellion has been completely quelled.50
e) The invocation of this Court's expanded jurisdiction under Section 1,
Article VIII of the Constitution is misplaced. As held in Lagman,51 the
"appropriate proceeding" in Section 18, Article VII does not refer to a
petition for certiorari filed under Section 1 or 5 of Article VIII, as it is not the
proper tool to review the sufficiency of the factual basis of the proclamation
or extension.52
f) Petitioners failed to allege that rebellion in Mindanao no longer exists,
which is a condition precedent for the filing of the instant petition. They only
pointed out the President's announcement regarding the liberation of Marawi
from "terrorist influence." They did not mention the rebellion being waged by
DAESH-inspired Da'awatul Islamahiyah Waliyatul Masriq (DIWM), other like-
minded Local/Foreign Terrorist Groups (L/FTGs) and Armed Lawless Groups
(ALGs), remnants of the groups of Hapilon and Maute, the Turaifie Group,
the Bangsamoro Islamic Freedom Fighters (BIFF), the ASG, and the New
People's Army (NPA), as cited in the President's December 8, 2017 letter to
Congress.53
g) The determination of the sufficiency of the factual basis to justify the
extension of martial law became the duty of Congress after the President's
request was transmitted. The question raised had assumed a political nature
that can only be resolved by Congress.54
h) The manner in which Congress approved the extension is a political
question, outside the Court's judicial authority to review. Congress has full
discretion on how to go about the debates and the voting. The Constitution
itself allows the Congress to determine the rules of its proceedings. The
Court does not concern itself with parliamentary rules, which may be waived
or disregarded by the legislature.55
i) Proclamation No. 216 and the subsequent extensions granted by Congress
enjoy the presumption of constitutionality, which petitioners failed to
overcome by proving that the extension is without basis. The presumption
cannot be ignored, especially since the Court held in Lagman, that it
considers only the information and data available to the President prior to or
at the time of the declaration and will not undertake an independent
investigation beyond the pleadings.56
j) Even if the Court were to entertain the allegation of grave abuse of
discretion on the part of Congress in approving the one-year extension, the
same is without merit. Both houses of Congress gave due consideration to
the facts relayed by the President which showed that rebellion persists in
Mindanao and that public safety requires the extension. The extension was
approved because of the stepped-up terrorist attacks against innocent
civilians and private entities.57
k) The period for deliberation on the President's request for further
extension was not unduly constricted. The extension or revocation of martial
law cannot be equated with the process of ordinary legislation. Given the
time-sensitive nature of martial law or its extension, the time cap was
necessary in the interest of expediency. Furthermore, an explanation of
one's vote in the deliberation process is not a constitutional requirement.58
1) The Constitution does not limit the period for which Congress can extend
the proclamation and the suspension, nor does it prohibit Congress from
granting further extension. The 60-day period imposed on the President's
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initial proclamation of martial law does not similarly apply to the period of
extension. The clause "in the same manner" must be understood as referring
to the manner by which Congress may revoke the proclamation or
suspension, i.e., Congress must also observe the same manner of voting:
"voting jointly, by a vote of at least a majority of all its Members in regular
or special session." Furthermore, in the absence of any express or implied
prohibition in the Constitution, the Court cannot prevent Congress from
granting further extensions.59
m) The burden to show sufficiency of the factual basis for the extension of
martial law is not with the President. Section 18, Article VII of the
Constitution states that the extension of martial law falls within the
prerogative of Congress.60
n) Even assuming that the burden of proof is on the President or Congress,
such burden has been overcome. Although the leadership of the Mautes was
decimated in Marawi, the rebellion in Mindanao persists as the surviving
members of the militant group have not laid down their arms. The remnants
remain a formidable force to be reckoned with, especially since they have
established linkage with other rebel groups. With the persistence of rebellion
in the region, the extension of martial law is, therefore, not just for
preventive reasons. The extension is premised on the existence of an
ongoing rebellion. That the rebellion is ongoing is beyond doubt.61
o) In the context of the Revised Penal Code, even those who are merely
participating or executing the commands of others in a rebellion, as
coddlers, supporters and financiers, are guilty of the crime of rebellion.62
p) As a crime without predetermined boundaries, the rebellion in various
parts of Mindanao justified the extension of martial law, as well as the
suspension of the privilege of the writ of habeas corpus.63
q) Under the Constitution, the extension of martial law and the suspension
of the privilege of the writ of habeas corpus are justified as long as there is
rebellion and public safety requires it. The provision does not require that
the group that started the rebellion should be the same group that should
continue the uprising. Thus, the violence committed by other groups, such
as the BIFF, AKP, ASG, DI Maguid, and DI Toraype (Turaifie) should be
taken into consideration in determining whether the rebellion has been
completely quelled, as they are part of the rebellion.64
r) The President has the sole prerogative to choose which of the
extraordinary commander-in-chief powers to use against the rebellion
plaguing Mindanao. Thus, petitioners cannot insist that the Court impose
upon the President the proper measure to defeat a rebellion. In light of the
wide array of information in the hands of the President, as well as the
extensive coordination between him and the armed forces regarding the
situation in Mindanao, it would be an overreach for the Court to encroach on
the President's discretion.65
s) Among the differences between the calling out power of the President and
the imposition of martial law is that, during the latter, the President may ask
the armed forces to assist in the execution of civilian functions, exercise
police power through the issuance of General or Special Orders, and
facilitate the mobilization of the reserve force, among others.66
t) While the Anti-Terrorism Council (ATC) has powers that can be used to
fight terrorism, the ATC, however, becomes relevant only in cases of
terrorism. Thus, for the purpose of involving itself during a state of martial
law, the ATC must first associate an act of rebellion with terrorism, as
rebellion is only one of the means to commit terrorism.67
u) The phrase "theater of war" in relation to martial law should be
understood in a traditional Groatian sense, which connotes that "war" is "an
idea of multitude" and not limited to the concept between two nations in
armed disagreement.68 Nevertheless, the Constitution does not require the
existence of a "theater of war" for a valid proclamation or extension of
martial law.69
v) There is no need to show the magnitude of rebellion, as placing the
requirement of public safety on a scale will prevent the application of laws
and undermine the Constitution.70
w) The alleged human rights violations are irrelevant in the determination of
whether Congress had sufficient factual basis to further extend martial law
and suspend the privilege of the writ of habeas corpus. As ruled in Lagman,
petitioners' claim of alleged human rights violations should be resolved in a
separate proceeding and should not be taken cognizance of by the
Court.71 Moreover, the alleged human rights violations are unsubstantiated
and contradicted by facts. According to the AFP Human Rights Office, no
formal complaints were filed in their office against any member or personnel
of the AFP for human rights violations during the implementation of martial
law in Mindanao. The online news articles cited in the Cullamat Petition have
no probative value, as settled in Lagman.
x) Martial law does not automatically equate to curtailment and suppression
of civil liberties and individual freedom. A state of martial law does not
suspend the operation of the Constitution, including the Bill of Rights. The
Constitution lays down safeguards to protect human rights during martial
law. Civil courts are not supplanted. The suspension of the writ of habeas
corpus applies only to persons judicially charged for rebellion or offenses
inherent or directly connected with the invasion. Any person arrested or
176
detained shall be judicially charged within three days. Various statutes also
exist to protect human rights during martial law, such as, but not limited to,
Republic Act (R.A.) No. 7483 on persons under custodial investigation, R.A.
No. 9372 on persons detained for the crime of terrorism, and R.A. No. 9745
on the non-employment of physical or mental torture on an arrested
individual.72
y) A temporary restraining order (TRO) or a writ of preliminary injunction to
restrain the implementation or the extension of martial law is not provided in
the Constitution. Although there are remedies anchored on equity, a TRO
and an injunctive relief cannot override, prevent, or diminish an express
power granted to the President by no less than the Constitution. If a TRO or
injunctive writ were to be issued, it would constitute an amendment of the
Charter tantamount to judicial legislation, as it would fashion a shortcut
remedy other than the power of review established in the Constitution.73
z) Petitioners' allegations do not meet the standard proof required for the
issuance of injunctive relief. Neither can the application for injunctive relief
be supported by the claim that an injunction will foreclose further violations
of human rights, as injunction is not designed to protect contingent or future
rights. Petitioners also failed to show that the alleged human rights
violations are directly attributable to the President's imposition of martial law
and suspension of the privilege of the writ of habeas corpus.74
Ruling of the Court
Procedural Issues:
Failure to attach Resolution of Both Houses No. 4 is not fatal to the
petitions.
Section 1,75 Rule 129 of the Rules of Court provides that a court can take
judicial notice of the official acts of the legislative department without the
introduction of evidence.
"Judicial notice is the cognizance of certain facts that judges may properly
take and act on without proof because these facts are already known to
them; it is the duty of the court to assume something as matters of fact
without need of further evidentiary support."76
Resolution of Both Houses No. 4 is an official act of Congress, thus, this
Court can take judicial notice thereof. The Court also notes that respondents
annexed a copy of the Resolution to their Consolidated Comment.77 Hence,
We see no reason to consider petitioners' failure to submit a certified copy of
the Resolution as a fatal defect that forecloses this Court's review of the
petitions.
The President should be dropped as party respondent
Presidential privilege of immunity from suit is a well-settled doctrine in our
jurisprudence. The President may not be sued during his tenure or actual
incumbency, and there is no need to expressly grant such privilege in the
Constitution or law.78 This privilege stems from the recognition of the
President's vast and significant functions which can be disrupted by court
litigations. As the Court explained in Rubrico v. Macapagal-Arroyo, et al.:79
It will degrade the dignity of the high office of the President, the Head of
State, if he can be dragged into court litigations while serving as such.
Furthermore, it is important that he be freed from any form of harassment,
hindrance or distraction to enable him to fully attend to the performance of
his official duties and functions. Unlike the legislative and judicial branch,
only one constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties imposed
upon him by the Constitution necessarily impairs the operation of the
Government.80
Accordingly, in David, the Court ruled that it was improper to implead former
President Gloria Macapagal-Arroyo in the petitions assailing the
constitutionality of Presidential Proclamation No. 1017, where she declared a
state of national emergency, and General Order No. 5, where she called
upon the AFP and the Philippine National Police (PNP) to prevent and
suppress acts of terrorism and lawless violence in the country.
It is, thus, clear that petitioners in G.R. Nos. 236061 and 236145 committed
a procedural misstep in including the President as a respondent in their
petitions.
The Congress is an indispensable party to the consolidated petitions.
Of the four petitions before the Court, only G.R. No. 236145 impleaded the
Congress as party-respondent.
Section 7, Rule 3 of the Rules of Court requires that "parties in interest
without whom no final determination can be had of an action shall be joined
as plaintiffs or defendants." In Marmo, et al. v. Anacay,81 the Court
explained that:
[A] party is indispensable, not only if he has an interest in the subject
matter of the controversy, but also if his interest is such that a final decree
cannot be made without affecting this interest or without placing the
controversy in a situation where the final determination may be wholly
inconsistent with equity and good conscience. He is a person whose absence
disallows the court from making an effective, complete, or equitable
determination of the controversy between or among the contending
parties.82 (Citation omitted)
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In these consolidated petitions, petitioners are questioning the
constitutionality of a congressional act, specifically the approval of the
President's request to extend martial law in Mindanao. Petitioners in G.R.
No. 235935 and 236155 have also put in issue the manner in which the
Congress deliberated upon the President's request for extension. Clearly,
therefore, it is the Congress as a body, and not just its leadership, which has
interest in the subject matter of these cases. Consequently, it was
procedurally incorrect for petitioners in G.R. Nos. 235935, 236061 and
236155 to implead only the Senate President and the House Speaker among
the respondents.
Arguably, Senator Aquilino Pimentel III and House Speaker Pantaleon
Alvarez can be said to have an interest in these cases, as representatives of
the Senate and the House of Representatives, respectively. However,
considering that one of their main contentions is that the "supermajority" of
the Congress gravely abused their discretion when they allegedly railroaded
the adoption of Resolution of Both Houses No. 4, it stands to reason and the
requirements of due process that petitioners in G.R. Nos. 235935 and
236061 should have impleaded the Congress as a whole.83 Needless to say,
the entire body of Congress, and not merely the respective leaders of its two
Houses, will be directly affected should We strike down the extension of
martial law. Thus, We hold that in cases impugning the extension of martial
law for lack of sufficient factual basis, the entire body of the Congress,
composed of the Senate and the House of Representatives, must be
impleaded, being an indispensable party thereto.
It is true that a party's failure to implead an indispensable party is not per
se a ground for the dismissal of the action, as said party may be added, by
order of the court on motion of the party or motu propio, at any stage of the
action or at such times as are just. However, it remains essential - as it is
jurisdictional - that an indispensable party be impleaded before judgment is
rendered by the court, as the absence of such indispensable party renders
all subsequent acts of the court null and void for want of authority to act,
not only as to the absent parties but even as to those present.84 Joining
indispensable parties into an action is mandatory, being a requirement of
due process. In their absence, the judgment cannot attain real finality.85
We are, thus, unprepared to trivialize the necessity to implead the entire
Congress as party-respondent in this proceeding, especially considering that
the factual scenario and the concomitant issues raised herein are novel and
unprecedented.
Nevertheless, inasmuch as the Congress was impleaded as a respondent in
G.R. No. 236145 and the OSG has entered its appearance and argued for all
the respondents named in the four consolidated petitions, the Court finds
that the "essential" and "jurisdictional" requirement of impleading an
indispensable party has been substantially complied with.
The Court is not barred by the doctrine of  conclusiveness of
judgment from examining  the persistence of rebellion in Mindanao
Citing the doctrine of conclusiveness of judgment, respondents contend that
petitioners could no longer raise the issue of the existence of rebellion in
Mindanao, in light of this Court's ruling in Lagman86 and Padilla v.
Congress.87
Reliance on the doctrine of conclusiveness of judgment is misplaced.
Conclusiveness of judgment, a species of the principle of res judicata, bars
the re-litigation of any right, fact or matter in issue directly adjudicated or
necessarily involved in the determination of an action before a competent
court in which judgment is rendered on the merits.88 In order to successfully
apply in a succeeding litigation the doctrine of conclusiveness of judgment,
mere identities of parties and issues is required.
In this case, despite the addition of new petitioners, We find that there is
substantial identity of parties between the present petitions and the
earlier Lagman case given their privity or shared interest in either protesting
or supporting martial law in Mindanao. It is settled that for purposes of res
judicata, only substantial identity of parties is required and not absolute
identity. There is substantial identity of parties when there is community of
interest between a party in the first case and a party in the second case
even if the latter was not impleaded in the first case.89
As to the second requirement, We do not find that there is identity of issues
between the Lagman90 and Padilla91 cases, on one hand, and the case at bar.
In Padilla, petitioners sought to require the Congress to convene in a joint
session to deliberate whether to affirm or revoke Presidential Proclamation
No. 216, and to vote thereon. After consideration of the arguments of the
parties, We ruled that under Section 18, Article VII of the 1987 Constitution,
the Congress is only required to vote jointly to revoke the President's
proclamation of martial law and/or suspension of the privilege of the writ of
habeas corpus. We clarified that there is no constitutional requirement that
Congress must conduct a joint session for the purpose of concurring with the
President's declaration of martial law.
In Lagman, the constitutionality of Proclamation No. 216 was the primary
issue raised before Us. We held that the Proclamation was constitutional as
the President had sufficient factual basis in declaring martial law and
suspending the privilege of the writ of habeas corpus in Mindanao. We found
that based on the facts known to the President and the events that
178
transpired before and at the time he issued the Proclamation, he had
probable cause to believe that a rebellion was or is being committed, and
reasonable basis to conclude that public safety was endangered by the
widespread atrocities perpetrated by the rebel groups.
In contrast, the consolidated petitions at hand essentially assail the
Congress' act of approving the President's December 8, 2017 request and
extending the declaration of martial law in Mindanao from January 1 to
December 31, 2018. In support of their case, petitioners argue that rebellion
no longer persists in Mindanao and that public safety is not endangered by
the existence of mere "remnants" of the Maute group, ASG, DAESH-inspired
DIWM members.
Although there are similarities in the arguments of petitioners in the
earlier Lagman case and the petitions at bar, We do not find that petitioners
are seeking to re-litigate a matter already settled in the Lagman case with
respect to the existence of rebellion. A reading of the consolidated petitions
reveals that petitioners do not contest the existence of violence committed
by various armed groups in Mindanao, to wit:
LAGMAN PETITION (G.R. No. 235935)
43. It is very unfortunate that in their contrived efforts to justify the
extension of martial law in Mindanao, President Duterte and his military and
police advisers with the support of partisans in the Congress have molded
the so-called remnants or residue, miniscule as they are, into apparent
menacing ogres.
xxxx
53. A litany of alleged "skirmishes" does not necessarily constitute armed
public uprising against the government.
54. They may only indicate banditry, lawless violence and terroristic acts of
remnants or residure of vanquished combatants.
CULLAMAT PETITION (G.R. No. 236061)
58. The question now therefore is, the instant case, does the actual rebellion
being perpetrated by the armed groups enumerated in the 08 December
2017 letter of President Duterte to the House of Representatives and the
Senate, compromise public safety that would warrant the imposition of
martial law?
ROSALES PETITION (G.R. No. 236145)
67. In short, the bases (for the extension of martial law in Mindanao) were:
first, the supposed continuous rebuilding of the remaining members of the
Daesh-inspired DIWM, who are "in all probability, ... presently regrouping
and consolidating their forces" or are, at the very least, continuing their
efforts and activities "geared towards the conduct of intensified atrocities
and armed public uprisings"; second, the supposed "plan" by members of
the Turaifie group to conduct bombings; third, the supposed continuing acts
of violence of the Bangsamoro Islamic Freedom Fighters; fourth, the
continuous commission of acts of terrorism by members of the Abu Sayaff
Group; and fifth, the intensification of the "decades-long rebellion" by the
New People's Army (NPA).
68. With all due respect, and without diminishing the threat posed by any of
the foregoing, none of these constitute actual rebellion or actual invasion.
Moreover, it mistakes the distinction between the need for military force
which is effected through the use of the calling out powers of the President,
on one hand, and the need for imposing martial law on the civilian
population, on the other.
69. Since the five (5) identified groups were/are in the "regrouping",
"[consolidation] of forces", "recruitment", "planning" stages, or are
continuing the commission of crimes (terrorism, robbery, murder, extortion)
without any of the four (4) objectives that comprise the second element of
rebellion, there cannot be said to be a "theater of war" already contemplated
by the framers of the Constitution as would cripple the normal operation of
civilian law.
MONSOD PETITION (G.R. No. 236155)
72. There is no indication that "public safety requires" the further imposition
of martial law. The instances cited as justification for the extension
requested do not demonstrate gravity such that ordinary powers and
resources of the government cannot address these. What Marawi needs at
this point is effective and responsive rehabilitation in an atmosphere of
freedom and cooperation. It does not need martial law to rise from the
ashes of war and turmoil.
73. At most, these incidents show several protracted incidents of violence
and lawlessness that is well within the powers and authority of the
government armed forces and police force to suppress without resort to
extraordinary powers, which the government has been continuously doing
for decades as well. Martial law is neither a commensurate measure to
address these incidents, nor preventive measure to thwart the spread of
lawless violence in the country. The mere invocation, therefore, of rebellion
or invasion, will not be the sufficient factual basis for the declaration of
martial law or the suspension of the privilege of the writ of habeas corpus if
it cannot be factually demonstrated that it is actually happening and
necessitated by the requirements of public safety in a theater of war.
From the foregoing, it appears that petitioners merely question the gravity
and extent of these occurrences as to necessitate the continued
implementation of martial law in Mindanao. In other words, the issue put
forth by petitioners in the earlier Lagman case, which this Court already
settled, refers to the existence of a state of rebellion which would trigger the
President's initial declaration of martial law, whereas the factual issue in the
179
case at bar refers to the persistence of the same rebellion in Mindanao which
would justify the extension of martial law.
That petitioners are not barred from questioning the alleged persistence of
the rebellion in these consolidated petitions is also supported by the
transitory nature of the Court's judgment on the sufficiency of the factual
basis for a declaration of martial law. The following exchange during the
deliberations of the 1986 Constitutional Commission is instructive:
MR. BENGZON. I would like to ask for clarification from the Committee, and
I would like to address this to Commissioner Bernas.
Suppose there is a variance of decision between the Supreme Court and
Congress, whose decision shall prevail?
FR. BERNAS. The Supreme Court's decision prevails.
MR. BENGZON. If Congress, decides to recall before the Supreme Court
issues its decision, does the case become moot?
FR. BERNAS. Yes, Madam President.
MR. BENGZON. And if the Supreme Court promulgates its decision ahead of
Congress, Congress is foreclosed because the Supreme Court has 30 days
within which to look into the factual basis. If the Supreme Court comes out
with the decision one way or the other without Congress having acted on the
matter, is Congress foreclosed?
FR. BERNAS. The decision of the Supreme Court will be based on its
assessment of the factual situation. Necessarily, therefore, the
judgment of the Supreme Court on that is a transitory judgment
because the factual situation can change. So, while the decision of the
Supreme Court may be valid at that certain point of time, the situation may
change so that Congress should be authorized to do something about it.
MR. BENGZON. Does the Gentleman mean the decision of the Supreme
Court then would just be something transitory?
FR. BERNAS. Precisely.
MR. BENGZON. It does not mean that if the Supreme Court revokes or
decides against the declaration of martial law, the Congress can no longer
say, "no, we want martial law to continue" because the
circumstances can change.
FR. BERNAS. The Congress can still come in because the factual situation
can change.
Verily, the Court's review in martial law cases is largely dependent on the
existing factual scenario used as basis for its imposition or extension. The
gravity and scope of rebellion or invasion, as the case may be, should
necessarily be re-examined, in order to make a justiciable determination on
whether rebellion persists in Mindanao as to justify an extension of a state of
martial law.
The Court's power to review the extension of martial law is limited
solely to the determination of the sufficiency of the factual basis
thereof.
Section 1, Article VIII of the Constitution pertains to the Court's judicial
power to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has
been grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government. The first part is
to be known as the traditional concept of judicial power while the latter part,
an innovation of the 1987 Constitution, became known as the court's
expanded jurisdiction. Under its expanded jurisdiction, courts can now delve
into acts of any branch or instrumentality of the Government traditionally
considered as political if such act was tainted with grave abuse of discretion.
In seeking the Court's review of the extension of Proclamation No. 216 on
the strength of the third paragraph of Section 18, Article VII of the
Constitution, petitioners in G.R. No. 235935 alternately invoke the Court's
expanded (certiorari) jurisdiction under Section 1, Article VIII.
In Lagman,92 We emphasized that this Court's jurisdiction under the third
paragraph of Section 18, Article VII is special and specific, different from
those enumerated in Sections 193 and 594 of Article VIII. It was further
stressed therein that the standard of review in a petition for certiorari is
whether the respondent has committed any grave abuse of discretion
amounting to lack or excess of jurisdiction in the performance of his or her
functions, whereas under Section 18, Article VII, the Court is tasked to
review the sufficiency of the factual basis of the President's exercise of
emergency powers. Hence, the Court concluded that a petition
for certiorari pursuant to Section 1 or Section 5 of Article VIII is not the
proper tool to review the sufficiency of the factual basis of the proclamation
of martial law or the suspension of the privilege of the writ of habeas corpus.
We held that to apply the standard of review in a petition for certiorari will
emasculate the Court's constitutional task under Section 18, Article VII,
which was precisely meant to provide an additional safeguard against
possible martial law abuse and limit the extent of the powers of the
Commander-in-Chief.
With regard to the extension of the proclamation of martial law or the
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suspension of the privilege of the writ, the same special and specific
jurisdiction is vested in the Court to review, in an appropriate proceeding
filed by any citizen, the sufficiency of the factual basis thereof. Necessarily,
and by parity of reasoning, a certiorari petition invoking the Court's
expanded jurisdiction is not the proper remedy to review the sufficiency of
the factual basis of the Congress' extension of the proclamation of martial
law or suspension of the privilege of the writ.
Furthermore, as in the case of the Court's review of the President's
proclamation of martial law or suspension of the privilege of the writ, the
Court's judicial review of the Congress' extension of such proclamation or
suspension is limited only to a determination of the sufficiency of the factual
basis thereof. By its plain language, the Constitution provides such scope of
review in the exercise of the Court's sui generis authority under Section 18,
Article VII, which is principally aimed at balancing (or curtailing) the power
vested by the Constitution in the Congress to determine whether to extend
such proclamation or suspension.
Substantive Issues
Congressional check on the exercise of martial law and suspension
powers
Under the 193595 and 197396 Constitutions, the Congress had no power to
review or limit the Executive's exercise of the authority to declare martial
law or to suspend the privilege of the writ of habeas corpus. Borne of the
country's martial law experience under the Marcos regime, such power was
subsequently established in the 1987 Constitution as part of a system of
checks and balance designed to forestall any potential abuse of an
extraordinary power lodged in the President as Commander-in-Chief of the
country's armed forces.
The 1987 Constitution grants the Congress the power to shorten or extend
the President's proclamation of martial law or suspension of the privilege of
the writ of habeas corpus. Section 18, Article VII of the 1987 Constitution, in
pertinent part, states:
Section 18. The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may call
out such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety requires it,
he may, for a period not exceeding sixty days, suspend the privilege of the
writ of habeas corpus or place the Philippines or any part thereof under
martial law. Within forty-eight hours from the proclamation of martial law or
the suspension of the privilege of the writ of habeas corpus, the President
shall submit a report in person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President.
Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist
and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without need of a call. (Emphasis ours)
Congressional check on the President's martial law and suspension powers
thus consists of:
First. The power to review the President's proclamation of martial law or
suspension of the privilege of the writ of habeas corpus, and to revoke such
proclamation or suspension. The review is "automatic in the sense that it
may be activated by Congress itself at any time after the proclamation or
suspension is made."97 The Congress' decision to revoke the proclamation or
suspension cannot be set aside by the President.
Second. The power to approve any extension of the proclamation or
suspension, upon the President's initiative, for such period as it may
determine, if the invasion or rebellion persists and public safety requires it.
Joint executive and legislative act
When approved by the Congress, the extension of the proclamation or
suspension, as described during the deliberations on the 1987 Constitution,
becomes a "joint executive and legislative act" or a "collective judgment"
between the President and the Congress:
THE PRESIDENT. Commissioner Azcuna is recognized. 
MR. AZCUNA. Thank you, Madam President.
I would like to offer an amendment to Section 15, line 7 of page 7. After the
word "or," insert a comma (,) and add the phrase: AT THE INSTANCE OF
THE PRESIDENT, so that the amended portion will read: "may revoke such
proclamation or suspension which revocation shall not be set aside by the
President, or AT THE INSTANCE OF THE PRESIDENT extend the same if the
invasion or rebellion shall persist and public safety requires it.
May we know the reaction of the Committee? The reason for this Madam
President, is that the extension should not merely be an act of Congress but
should be requested by the President. Any extension of martial law or
suspension of the privilege of the writ of habeas corpus should have the
concurrence of both the President and Congress. Does the Committee accept
my amendment?
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MR. REGALADO. The Committee accepts that amendment because it will, at
the same time solve the concern of Commissioner Suarez, aside from the
fact that this will now be a joint executive and legislative act.
xxxx
MR. OPLE. May I just pose a question to the Committee in connection with
the Suarez amendment? Earlier Commissioner Regalado said that that [sic]
point was going to be a collective judgment between the President and
the Congress. Are we departing from that now in favor of giving Congress
the plenipotentiary power to determine the period?
FR. BERNAS. Not really, Madam President, because Congress would be doing
this in consultation with the President, and the President would be outvoted
by about 300 Members.
MR. OPLE. Yes, but still the idea is to preserve the principle of collective
judgment of that point upon the expiration of the 60 days when, upon his
own initiative, the President seeks for an extension of the proclamation of
martial law or the suspension of the privilege of the writ.
FR. BERNAS. Yes, the participation of the President is there but by giving the
final decision to Congress, we are also preserving the idea that the President
may not revoke what Congress has decided upon.98 (Emphasis ours)
At the core of the instant petitions is a challenge to the "joint executive and
legislative act," embodied in the President's December 8, 2017 initiative and
in the latter's Resolution of Both Houses No. 4, which further extended the
implementation of martial law and the suspension of the privilege of the writ
of habeas corpus in the entire Mindanao for one year, from January 1 to
December 31, 2018. Petitioners assail not only the sufficiency of the factual
basis of this extension, but also the manner in which it was approved.
The manner in which Congress deliberated on the President's
request for extension is not subject to judicial review
Petitioners question the manner that the Congress approved the extension
of martial law in Mindanao and characterized the same as done with undue
haste. Petitioners premised their argument on the fact that the Joint Rules
adopted by both Houses, in regard to the President's request for further
extension, provided for an inordinately short period for interpellation of
resource persons and for explanation by each Member after the voting is
concluded.
The assailed provisions refer to Section 7 of Rule V and Section 14 of Rule
VIII of the Rules of the Joint Session of Congress on the Call of the President
to Further Extend the Period of Proclamation No. 216, Series of 2017, which
provide:
Rule V (CONSIDERATION OF THE LETTER OF THE PRESIDENT DATED
DECEMBER 9, 2017 CALLING UPON THE CONGRESS OF THE
PHILIPPINES TO FURTHER EXTEND THE PROCLAMATION OF
MARTIAL LAW AND THE SUSPENSION OF THE PRIVILEGE OF THE
WRIT OF HABEAS CORPUS IN THE WHOLE OF MINDANAO FOR A
PERIOD OF ONE YEAR, FROM 01 JANUARY 2018 TO 31 DECEMBER
2018, OR FOR SUCH OTHER PERIOD OF TIME AS THE CONGRESS MAY
DETERMINE, IN ACCORDANCE WITH SECTION 18, ARTICLE VII OF
THE 1987 CONSTITUTION)
Section 7. Any Member of the Congress may interpellate the resource
persons for not more than three minutes excluding the time of the answer of
the resource persons.
xxxx
Rule VIII (VOTING ON THE MOTION TO FURTHER EXTEND THE
PERIOD OF THE PROCLAMATION OF MARTIAL LAW AND THE
SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS)
Section 14. After the conclusion of voting, the Senate President and the
Speaker of the House shall forthwith announce the results of the voting.
Thereafter, any Member of the Congress who wishes to explain his/her vote
may consume a maximum of one (1) minute: Provided, that a Member who
does not want to explain may yield his/her allotted time to another Member
of the same House: Provided, further, that any Member of the Congress
shall be allowed a maximum of three (3) minutes.
No less than the Constitution, under Section 16 of Article VI, grants the
Congress the right to promulgate its own rules to govern its proceedings, to
wit:
Section 16. (3) ) Each House may determine the rules of its
proceedings, punish its Members for disorderly behavior, and, with the
concurrence of two-thirds of all its Members, suspend or expel a Member. A
penalty of suspension, when imposed, shall not exceed sixty days.
(Emphasis ours)
In Pimentel, Jr., et. al. v. Senate Committee of the Whole,99 this
constitutionally-vested authority is recognized as a grant of full discretionary
authority to each House of Congress in the formulation, adoption and
promulgation of its own rules. As such, the exercise of this power is
generally exempt from judicial supervision and interference, except on a
clear showing of such arbitrary and improvident use of the power as will
constitute a denial of due process.
This freedom from judicial interference was explained in the 1997 case
of Arroyo v. De Venecia,100wherein the Court declared that:
But the 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
182
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.101
In other words, the Court cannot review the rules promulgated by Congress
in the absence of any constitutional violation. Petitioners have not shown
that the above-quoted rules of the Joint Session violated any provision or
right under the Constitution.
Construing the full discretionary power granted to the Congress in
promulgating its rules, the Court, in the case of Spouses Dela Paz (Ret.) v.
Senate Committee on Foreign Relations, et al.102 explained that the limitation
of this unrestricted power deals only with the imperatives of quorum, voting
and publication. It should be added that there must be a reasonable relation
between the mode or method of proceeding established by the rule and the
result which is sought to be attained.103
The rules in question do not pertain to quorum, voting or publication.
Furthermore, deliberations on extending martial law certainly cannot be
equated to the consideration of regular or ordinary legislation. The Congress
may consider such matter as urgent as to necessitate swift action, or it may
take its time investigating the factual situation. This Court cannot engage in
undue speculation that members of Congress did not review and study the
President's request based on a bare allegation that the time allotted for
deliberation was too short.104
Legislative rules, unlike statutory laws, do not have the imprints of
permanence and obligatoriness during their effectivity. In fact, they may be
revoked, modified or waived at the pleasure of the body adopting them.
Being merely matters of procedure, their observance are of no concern to
the courts.105 Absent a showing of "violation of a constitutional provision or
the rights of private individuals," the Court will not intrude into this
legislative realm. Constitutional respect and a becoming regard for the
sovereign acts of a coequal branch prevents the Court from prying into the
internal workings of the Congress.106
Furthermore, it has not escaped this Court's attention that the rules that
governed the Joint Session were in fact adopted, without objection, by both
Houses of Congress on December 13, 2017.107 So also, the Transcript of the
Plenary Proceedings of the Joint Session showed that Members of Congress
were, upon request, granted extension of their time to interpellate.
Congress has the power to extend and determine the period of
martial law and the suspension of the privilege of the writ of habeas
corpus
Section 18, Article VII of the 1987 Constitution provides:
SECTION 18. The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may call
out such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety requires it,
he may, for a period not exceeding sixty days, suspend the privilege of the
writ of habeas corpus or place the Philippines or any part thereof under
martial law. Within forty-eight hours from the proclamation of martial law or
the suspension of the privilege of the writ of habeas corpus, the President
shall submit a report in person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of
the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall, within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules
without any need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation of martial law
or the suspension of the privilege of the writ or the extension thereof, and
must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend
the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly connected
with the invasion.
During the suspension of the privilege of the writ, any person thus arrested
or detained shall be judicially charged within three days, otherwise he shall
be released. (Emphasis ours)
The provision is indisputably silent as to how many times the Congress,
upon the initiative of the President, may extend the proclamation of martial
law or the suspension of the privilege of habeas corpus. Such silence,
however, should not be construed as a vacuum, flaw or deficiency in the
provision. While it does not specify the number of times that the Congress is
allowed to approve an extension of martial law or the suspension of the
privilege of the writ of habeas corpus, Section 18, Article VII is clear that
183
the only limitations to the exercise of the congressional authority to extend
such proclamation or suspension are that the extension should be upon the
President's initiative; that it should be grounded on the persistence of the
invasion or rebellion and the demands of public safety; and that it is subject
to the Court's review of the sufficiency of its factual basis upon the petition
of any citizen.
A cardinal rule in statutorv construction is that when the law is clear and
free from any doubt or ambiguity, there is no room for construction or
interpretation, but only for application.108 Thus, whenever there is a
determination that the invasion or rebellion persists and public safety
requires the extension of martial law or of the suspension of the privilege of
the writ, the Congress may exercise its authority to grant such extension as
may be requested by the President, even if it be subsequent to the initial
extension.
Section 18, Article VII did not also fix the period of the extension of the
proclamation and suspension. However, it clearly gave the Congress the
authority to decide on its duration; thus, the provision states that that the
extension shall be "for a period to be determined by the Congress." If it
were the intention of the framers of the Constitution to limit the extension to
sixty (60) days, as petitioners in G.R. No. 235935 theorize, they would not
have expressly vested in the Congress the power to fix its duration.
The Court cannot accept said petitioners' argument that the 60-day limit can
be deduced from the following clause in Section 18, Article VII: "the
Congress may,  in the same manner, extend such proclamation or
suspension." The word "manner" means a way a thing is done109 or a mode
of procedure;110 it does not refer to a period or length of time. Thus, the
clause should be understood to mean that the Congress must observe the
same manner of voting required for the revocation of the initial proclamation
or suspension, as mentioned in the sentence preceding it, i.e. "voting
jointly, by a vote of at least a majority of all its Members in regular or
special session." This is clear from the records of the 1986 Constitutional
Commission:
MR. REGALADO. x x x
So I will repeat from line 26: "The Congress, voting jointly, by a vote of at
least a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set aside by
the President. Upon the initiative of the President, CONGRESS MAY extend
SUCH PROCLAMATION for a period to be determined by Congress..."
MR. AZCUNA. Madam President.
THE PRESIDENT. Commissioner Azcuna is recognized.
MR. AZCUNA. May I suggest the insertion of the words CONGRESS MAY IN
THE SAME MANNER, so as to emphasize that will also be Congress
voting jointly and there would also be a need of at least majority
vote of all its Members for extension.
THE PRESIDENT. Does the Committee accept the amendment?
MR. REGALADO. Yes, the amendment is accepted it makes the provision
clearer.111(Emphasis ours)
United States Supreme Court Justice Antonin Scalia, in his book entitled
"Reading the Law: The Interpretation of Legal Texts,"112 succinctly explained
the dangers of construction that departs from the text of a statute,
particularly as to the allocation of powers among the branches of
government. He stated:
Some judges, however, refuse to yield the ancient judicial prerogative of
making the law, improvising on the text to produce what they deem socially
desirable results-usually at the behest of an advocate for one party to a
dispute. The judges are also prodded by interpretative theorists who avow
that courts are "better able to discern and articulate basic national ideals
than are the people's politically responsible representatives". On this view,
judges are to improvise "basic national ideals of individual liberty and fair
treatment, even when the content of these ideals is not expressed as a
matter of positive law in the written Constitution."
To the extent that people give this view any credence, the notion that
judges may (even should) improvise on constitutional and statutory text
enfeebles the democratic polity. As Justice John Marshall Harlan warned in
the 1960s, an invitation to judicial lawmaking results inevitably in
"a lessening, on the one hand, of judicial independence and, on the
other, of legislative responsibility, thus polluting the bloodstream of
our system of government." Why these alarming outcomes? First, when
judges fashion law rather than fairly derive it from governing texts, they
subject themselves to intensified political pressures - in the appointment
process, in their retention, and in the arguments made to them. Second,
every time a court constitutionalizes a new sliver of law - as by finding a
"new constitutional right" to do this, that, or the other - that sliver becomes
thenceforth untouchable by the political branches. In the American system,
a legislature has no power to abridge a right that has been authoritatively
held to be part of the Constitution - even if that newfound right does not
appear in the text. Over the past 50 years especially, we have seen the
judiciary incrementally take control of larger and larger swaths of territory
that ought to be settled legislatively.
It used to be said that judges do not "make" law - they simply apply it. In
the 20th century, the legal realists convinced everyone that judges do
184
indeed make law. To the extent that this was true, it was knowledge that the
wise already possessed and the foolish could not be trusted with. It was
true, that is, that judges did not really "find" the common law but invented it
over time. Yet this notion has been stretched into a belief that judges
"make" law through judicial interpretation of democratically enacted
statutes. Consider the following statement by John P. Dawson, intended to
apply to statutory law:
It seems to us inescapable that judges should have a part in creating law
creating it as they apply it. In deciding the multifarious disputes that are
brought before them, we believe that judges in any legal system invariably
adapt legal doctrines to new situations and thus give them new content.
Now it is true that in a system such as ours, in which judicial decisions have
a stare decisiseffect, a court's application of a statute to a "new situation"
can be said to establish the law applicable to that situation that is, to
pronounce definitively whether and how the statute applies to that situation.
But establishing this retail application of the statute is probably not what
Dawson meant by "creating law," "adapting legal doctrines," and "giving
them new content." Yet beyond that retail application, good judges dealing
with statutes do not make law. They do not "give new content" to the
statute, but merely apply the content that has been there all along, awaiting
application to myriad factual scenarios. To say that they "make law" without
this necessary qualification is to invite the taffy-like stretching of words - or
the ignoring of words altogether. (Emphasis ours)
Even on the assumption that there is a gap in our Constitution anent the
frequency and period of the Congress' extension, and there is a need for this
Court to exercise its power to interpret the law, We undertake the same in
such a way as to reflect the will of the drafters of the Constitution. "While
We may not read into the law a purpose that is not there, We nevertheless
have the right to read out of it the reason for its enactment."113 We refer
thus to the Constitutional Commission's deliberations on the matter, viz:
MR. SUAREZ. Thank you, Madam President. I concur with the proposal of
Commissioner Azcuna but may I suggest that we fix a period for the
duration of the extension, because it could very well happen that the
initial period may be shorter than the extended period and it could extend
indefinitely. So if Commissioner Azcuna could put a certain limit to the
extended period, I would certainly appreciate that, Madam President.
xxxx
MR. SUAREZ. Thank you Madam President. May we suggest that on line
7, between the words "same" and "if", we insert the phrase FOR A
PERIOD OF NOT MORE THAN SIXTY DAYS, which would equal the
initial period for the first declarationjust so it will keep going.
THE PRESIDENT. What does the Committee say?
MR. REGALADO. May we request a clarification from Commissioner Suarez
on this proposed amendment? This extension is already a joint act upon the
initiative of the President and with the concurrence of the Congress. It is
assumed that they have already agreed not only on the fact of extension but
on the period of extension. If we put It at 60 days only, then
thereafter, they have to meet again to agree jointly on a further
extension.
MR. SUAREZ. That is precisely intended to safeguard the interests and
protect the lives of citizens.
MR. REGALADO. In the first situation where the President declares martial
law, there had to be a prescribed period because there was no initial
concurrence requirement. And if there was no concurrence, the martial law
period ends at 60 days. Thereafter, if they intend to extend the same
suspension of the privilege of the writ or the proclamation of martial law, it
is upon the initiative of the President this time, and with the prior
concurrence of Congress. So, the period of extension has already been
taken into account by both the Executive and the Legislative, unlike
the first situation where the President acted alone without prior
concurrence. The reason for the limitation in the first does not apply
to the extension.
MR. SUAREZ. We are afraid of a situation that may develop where the
extended period would be even longer than the initial period, Madam
President. It is only reasonable to suggest that we have to put a restriction
on the matter of the exercise of this right within a reasonable period.
MR. REGALADO. Madam President, following that is the clause "extend the
same if the invasion or rebellion shall persist and public safety requires it."
That by itself suggests a period within which the suspension shall be
extended, if the invasion is still going on. But there is already the cut-off 60-
day period. Do they have to meet all over again and agree to extend the
same?
MR. SUAREZ. That is correct. I think the two of them must have to agree on
the period; but it is theoretically possible that when the President writes a
note to the Congress, because it would be at the instance of the President
that the extension would have to be granted by Congress, it is possible that
the period for the extension may be there. It is also possible that it may not
be there. That is the reason why we want to make it clear that there must
by a reasonable period for the extension. So, if my suggestion is not
acceptable to the Committee, may I request that a voting be held on it
Madam President.
FR. BERNAS. Madam President, may I just propose something because I see
185
the problem. Suppose we were to say: "or extend the same FOR A
PERIOD TO BE DETERMINED BY CONGRESS" - that gives Congress a
little flexibility on just how long the extension should be.
xxxx
THE PRESIDENT. Is that accepted by Commissioner Suarez?  initiation is something that is participated in by Congress.
MR. SUAREZ. Yes, Madam President.
MR. OPLE. May I just pose a question to the Committee in connection with
the Suarez amendment? Earlier Commissioner Regalado said that that point
was going to be a collective judgment between the President and the
Congress. Are we departing from that now in favor of giving Congress the
plenipotentiary power to determine the period?
FR. BERNAS. Not really, Madam President, because Congress would be doing
this in consultation with the President, and the President would be outvoted
by 300 Members.
MR. OPLE. Yes, but still the idea is to preserve the principle of collective
judgment of that point upon the expiration of the 60 days when, upon his
own initiative, the President seeks for an extension of the proclamation of
martial law or the suspension of the privilege of the writ.
FR. BERNAS. Yes, the participation of the President, is that when we put all
of these encumbrances on the President and Commander-in-Chief during an
actual invasion and rebellion, given an intractable Congress that may be
dominated by opposition parties, we may be actually impelling the President
to use the sword of Alexander to cut the Gordian knot by just declaring a
revolutionary government that sets him free to deal with the invasion or the
insurrection. That is the reason I am in favor of the present formulation.
However, if Commissioner Suarez insists on his amendment, I do not think I
will stand in the way.
Thank you, Madam President.
MR. SUAREZ. We will accept the committee suggestion, subject to style later
on.
xxxx
MR. PADILLA. According to Commissioner Concepcion, our former Chief
Justice, the declaration of martial law or the suspension of the privilege of
the writ of habeas corpus is essentially an executive act. If that be so, and
especially under the following clause: "if the invasion or rebellion shall
persist and public safety requires it," I do not see why the period must be
determined by the Congress. We are turning a purely executive act to a
legislative act.
FR. BERNAS. I would believe what the former Chief Justice said about the
initiation being essentially an executive act, but what follows after the
MR. CONCEPCION. If I may add a word. The one who will do the fighting is
the executive but, of course, it is expected that if the Congress wants to
extend, it will extend for the duration of the fighting. If the fighting goes on,
I do not think it is fair to assume that the Congress will refuse to extend the
period, especially since in this matter the Congress must act at the instance
of the executive. He is the one who is supposed to know how long it will take
him to fight. Congress may reduce it, but that is without prejudice to
his asking for another extension, if necessary. 114 (Emphasis ours)
Commissioner Jose E. Suarez's proposal to limit the extension to 60 days
was not adopted by the majority of the Commission's members. The framers
evidently gave enough flexibility on the part of the Congress to determine
the duration of the extension. Plain textual reading of Section 18, Article VII
and the records of the deliberation of the Constitutional Commission buttress
the view that as regards the frequency and duration of the extension, the
determinative factor is as long as "the invasion or rebellion persists and
public safety requires" such extension.
The President and the Congress had sufficient factual basis to
extend Proclamation No. 216
Section 18, Article VII of the 1987 Constitution requires two factual bases
for the extension of the proclamation of martial law or of the suspension of
the privilege of the writ of habeas corpus: (a) the invasion or rebellion
persists; and (b) public safety requires the extension.
A. Rebellion persists
Rebellion, as applied to the exercise of the President's martial law and
suspension powers, is as defined under Article 134 of the Revised Penal
Code,115viz:
Art. 134. Rebellion or insurrection; How committed. - The crime of rebellion
or insurrection is committed by rising publicly and taking arms against the
Government for the purpose of removing from the allegiance to said
Government or its laws, the territory of the Philippine Islands or any part
thereof, of any body of land, naval or other armed forces, depriving the
Chief Executive or the Legislature, wholly or partially, of any of their powers
or prerogatives.
186
Rebellion thus exists when "(1) there is a (a) public uprising and (b) taking
arms against the Government; and (2) the purpose of the uprising or
movement is either (a) to remove from the allegiance to the Government or
its laws: (i) the territory of the Philippines or any part thereof; or (ii) any
body of land, naval, or other armed forces; or (b) to deprive the Chief
Executive or Congress, wholly or partially, of any of their powers and
prerogatives."116
The President issued Proclamation No. 216 in response to the series of
attacks launched by the Maute Group and other rebel groups in Marawi City.
The President reported to the Congress that these groups had publicly taken
up arms for the purpose of removing Mindanao from its allegiance to the
Government and its laws and establishing a DAESH/ISIS wilayat or province
in Mindanao.
In Lagman,117 the Court sustained the constitutionality of Proclamation No.
216, holding that the President had probable cause to believe that actual
rebellion exists and public safety required the Proclamation. The Court held:
A review of the aforesaid facts similarly leads the Court to conclude that the
President, in issuing Proclamation No. 216, had sufficient factual bases
tending to show that actual rebellion exists. The President's conclusion, that
there was an armed public uprising, the culpable purpose of which was the
removal from the allegiance of the Philippine Government a portion of its
territory and the deprivation of the President from performing his powers
and prerogatives, was reached after a tactical consideration of the facts. In
fine, the President satisfactorily discharged his burden of proof.
After all, what the President needs to satisfy is only the standard of probable
cause for a valid declaration of martial law and suspension of the privilege of
the writ of habeas corpus. x x x
On July 22, 2017, upon the President's initiative, Congress extended
Proclamation No. 216 until December 31, 2017.
The ensuing question, therefore, is whether the rebellion persists as to
satisfy the first condition for the extension of martial law or of the
suspension of the privilege of the writ of habeas corpus.
The word "persist" means "to continue to exist," "to go on resolutely or
stubbornly in spite of opposition, importunity or warning," or to "carry
on."118 It is the opposite of the words "cease," "discontinue," "end," "expire,"
"finish," "quit," "stop" and "terminate."119
The reasons cited by the President in his request for further extension
indicate that the rebellion, which caused him to issue Proclamation No. 216,
continues to exist and its "remnants" have been resolute in establishing a
DAESH/ISIS territory in Mindanao, carrying on through the recruitment and
training of new members, financial and logistical build-up, consolidation of
forces and continued attacks. Thus, in his December 8, 2017 letter to
Congress, the President stated:
First, despite the death of Hapilon and the Maute brothers, the remnants of
their Groups have continued to rebuild their organization through the
recruitment and training of new members and fighters to carry on the
rebellion. You will please note that at least one hundred eighty-five (185)
persons listed in the Martial Law Arrest Orders have remained at-large and,
in all probability, are presently regrouping and consolidating their forces.
More specifically, the remnants of DAESH-inspired DIWM members and their
allies, together with their protectors, supporters and sympathizers, have
been monitored in their continued efforts towards radicalization/recruitment,
financial and logistical build-up, as well as in their
consolidation/reorganization in Central Mindanao, particularly in the
provinces of Maguindanao and North Cotabato and also in Sulu and
Basilan. These activities are geared towards the conduct of
intensified atrocities and armed public uprisings in support of their
objective of establishing the foundation of a global Islamic caliphate
and of a Wilayat not only in the Philippines but also in the whole of
Southeast Asia.
xxxx
Fourth, the remnants of the Abu Sayyaf Group (ASG) in Basilan, Sulu, Tawi-
Tawi and Zamboanga Peninsula remain as a serious security concern.
Reports indicate that this year they have conducted at least forty-three (43)
acts of terrorism, including attacks using Improvised Explosive Devices
(IEDs), harassments, and kidnappings which have resulted in the killing of
eight (8) civilians, three (3) of whom were mercilessly
beheaded.120(Emphasis ours)
In recommending the one-year extension of Proclamation No. 216 to the
President, AFP General Guerrero cited, among others, the continued armed
resistance of the DAESH-inspired DIWM and their allies, thus:
1. The DAESH-Inspired DIWM groups and allies continue to visibly offer
armed resistance in other parts of Central, Western and Eastern Mindanao
in spite of the neutralization of their key leaders and destruction of their
forces in Marawi City;121(Emphasis ours)
The data presented by the AFP during the oral arguments bolstered the
President's cause for extension and clarified what the government remains
up against in the aftermath of the Marawi crisis. According to the AFP:
The Dawlah Islamiyah is the Daesh-affiliate organization in the Philippines
responsible for the Marawi Siege. It is comprised of several local terrorist
groups that pledged allegiance to Daesh leader Abu Bakr AlBaghdadi.
xxxx
187

After the successful Marawi Operation, the Basilan-based ASG is left
with 74 members; the Maute Group with 30 members; the Maguid Group
has 11; and the Turaifie Group has 22members with a total
of 166 firearms.
However, manpower increased by more or less 400, with almost the same
strength that initially stormed Marawi City, through clandestine and
decentralized recruitment of the Daesh-inspired groups at their respective
areas of concentration.
ASG Basilan-based recruited more or less 43 new members in Basilan; more
or less 250by the Maute Group in the Lanao provinces; 37 by the Maguid
Group in Sarangani and Sultan Kudarat, and more or less 70 by the Turaifie
Group in Maguindanao. These newly recruited personalities were motivated
by clannish culture as they are relatives of terrorist personalities; revenge
for their killed relatives/parents during the Marawi operations; financial gain
as new recruits were given an amount ranging
from PhP15,000.00 to 50,000.00; and, as radicalized converts.
These newly recruited members are undergoing trainings in tactics,
marksmanships and bombing operations at the different areas of Mount
Cararao Complex, Butig, and Piagapo all of Lanao Del Sur. Recruits with high
potentials [sic] were given instruction on IED-making and urban operations.
Furthermore, the situation has become complicated with the influx of
Foreign Terrorist Fighters (FTFs), capitalizing on the porous maritime
boundaries in Southern Philippines, in the guise as tourists and business
men. As of this period, 48 FTFs were monitored joining the Daesh-inspired
groups, particularly the Maute Group in Lanao and Turaifie Group in Central
Mindanao. The closeness of these two groups is predominant with @Abu
DAR who has historically established link with Turaifie.
On Dawlah Islamiyah-initiated violent incidents, these have increased
to 100% for the 2nd Semester.122 (Emphasis ours)
The AFP's data also showed that Foreign Terrorist Fighters (FTFs) are now
acting as instructors to the new members of the Dawlah Islamiyah.123
These accounts ineluctably show that the rebellion that spawned the Marawi
crisis persists, and that its remaining members have regrouped,
substantially increased in number, and are no less determined to turn
Mindanao into a DAESH/ISIS territory.
Petitioners in G.R. No. 235935 argue that "remnants" or a residue of a rebel
group cmmot possibly mount a rebellion. The argument, however, fails to
take into account the 185 persons identified in the Martial Law Arrest Orders
who are still at large; the 400 new members whom said remnants were able
to recruit; the influx of 48 FTFs who are training the new recruits in their
ways of terrorism; and the financial and logistical build-up which the group
is cunently undertaking with their sympathizers and protectors. It likewise
fails to consider that the new Dawlah Islamiyah members number nearly the
same as the group that initially stormed Marawi City, and while the
government succeeded in vanquishing 1,010 rebels following the siege,124 it
took several months to accomplish this even under martial law. Thus, it will
be imprudent nay reckless to downplay or dismiss the capacity of said
remnants to relentlessly pursue their objective of establishing a seat of
DAESH/ISIS power in Mindanao.
Petitioners in G.R. Nos. 236061 and 236155 have asserted that the rebellion
no longer persists as the President himself had announced the liberation of
Marawi City, and armed combat has ceased therein. Petitioners in G.R. No.
236061 added that Col. Romeo Brawner, Deputy Commander of the Joint
Task Force Ranao, was also quoted as saying that the Maute-ISIS problem
was about to be over. The statements, however, were admittedly made on
October 17, 2017,125 nearly two months before the President's request for
extension in December 2017. Such declaration does not preclude the
occurrence of supervening events as the AFP discovered through their
monitoring126 efforts. It is not inconceivable that remnants of the Dawlah
Islamiyah would indeed regroup, recruit new members and build up its
arsenal during the intervening period. The termination of a rebellion is a
matter of fact. Rebellion does not cease to exist by estoppel on account of
the President's or the AFP's previous pronouncements. Furthermore, it is
settled that rebellion is in the nature of a continuing crime.127 Thus,
members of the Dawlah Islamiyah who evaded capture did not cease to be
rebels.
So also, it does not necessarily follow that with the liberation of Marawi, the
DAESH/ISIS-inspired rebellion no longer exists. Secretary Lorenzana, during
the Congress' Joint Session on December 13, 2017, explained that while the
situation in Marawi has substantially changed, the rebellion has not ceased
but simply moved to other places in Mindanao, thus:
Senator Drilon. Meaning, the question that we raised, Mr. President, are
the declarations of the President, His Excellency, and the secretary of
national defense changed since the time that the situation was described on
October 23 of this year? Has the situation changed or is it the same situation
today that the Marawi City has been liberated from terrorists [sic] influence
that there has been a termination of combat operations in Marawi City?
Hon. Lorenzana. May I answer that, Mr. President. Mr. President, the
situation in Marawi has substantially changed from the time that our troops
were fighting the ISIS-inspired Maute Group and that's the reason why there
is now this post-conflict need assessment as being conducted in Marawi.
188
However, as situations developed later on, the ISIS-inspired other groups in
Mindanao are also active like the BIFF in Central Mindanao and also in some
other parts of the BaSulTa islands.
Now, the reports now, Mr. President, is that they are actively recruiting
again, recruiting actively, recruiting some of the Muslim youths in the area
and that is what we are saying that the rebellion has not stopped. It just
moved to another place.
xxxx
Representative Tinio. x x x
Mr. Speaker, hindi po ba sinabi ni Presidente sa kanyang sulat that the AFP
has achieved remarkable progress in putting the rebellion under control
at hindi po ba sinabi niExecutive Secretary na substantially neutralized na
raw and Maute-Daesh? Pwede po bang ipaliwanag ito ng mga resource
persons?
The Speaker. The panel may respond.
Hon. Lorenzana. Mr. President, ang sagot po doon sa
G. Congressman ay ganito - ang sinasabi po naming substantially
reduced na iyong strength or clear na iyong Marawi of any terrorists
ay Marawi lang po iyon. It does not include the whole of, the other
parts of Mindanao that are also subject to the influence of these
terroristic groups. Sabi nga ng Supreme Court ay, ang nangyayari sa
Marawi ay nag-spill over na rin sa ibang Iugar doon sa Mindanao kaya nga
sinustain nila iyong declaration ng Martial Law.
x x x x128 (Emphasis ours)
In Lagman, We recognized that "rebellion is not confined within
predetermined bounds," and "for the crime of rebellion to be consummated,
it is not required that all armed participants should congregate in one place
x x x and publicly rise in arms against the government for the attainment of
their culpable purpose." We held that the grounds on which the armed public
uprising actually took place should not be the measure of the extent, scope
or range of the actual rebellion when there are other rebels positioned
elsewhere, whose participation did not necessarily involve the publicity
aspect of rebellion, as they may also be considered as engaged in the crime
of rebellion.
In a similar vein, the termination of armed combat in Marawi does not
conclusively indicate that the rebellion has ceased to exist. It will be a
tenuous proposition to confine rebellion simply to a resounding clash of arms
with government forces. As noted in Aquino, Jr. v. Enrile,129 modern day
rebellion has other facets than just the taking up of arms, including
financing, recruitment and propaganda, that may not necessarily be found or
occurring in the place of the armed conflict, thus:
x x x The argument that while armed hostilities go on in several provinces in
Mindanao there are none in other regions except in isolated pockets in
Luzon, and that therefore there is no need to maintain martial law all over
the country, ignores the sophisticated nature and ramifications of rebellion in
a modem setting. It does not consist simply of armed clashes between
organized and identifiable groups on fields of their own choosing. It includes
subversion of the most subtle kind, necessarily clandestine and operating
precisely where there is no actual fighting. Underground propaganda,
through printed news sheets or rumors disseminated in whispers;
recruitment of armed and ideological adherents, raising of funds,
procurement of arms and material, fifth-column activities including sabotage
and intelligence-all these are part of the rebellion which by their nature are
usually conducted far from the battle fronts. x x x.130
Furthermore, as We explained in Lagman, "(t)he crime of rebellion consists
of many acts. It is a vast movement of men and a complex net of intrigues
and plots." Thus:
Acts committed in furtherance of rebellion[,] though crimes in themselves[,]
are deemed absorbed in one single crime of rebellion.
Rebellion absorbs "other acts committed in its pursuance." Direct assault,
murder, homicide, arson, robbery, kidnapping just to name a few, are
absorbed in the crime of rebellion if committed in furtherance of rebellion;
"[i]t cannot be made a basis of a separate charge." Jurisprudence also
teaches that not only common crimes may be absorbed in rebellion but also
"offenses under special laws [such as Presidential Decree No. 1829] which
are perpetrated in furtherance of the political offense". "All crimes, whether
punishable under a special law or general law, which arc mere components
or ingredients, or committed in furtherance thereof, become absorbed in the
crime of rebellion and cannot be isolated and charged as separate crimes in
themselves." (Citations omitted)
In any case, Secretary Lorenzana has stressed that notwithstanding the
termination of armed combat in Marawi, clashes between the rebels and
government forces continue to take place in other parts of Mindanao. Thus,
during an interpellation at the December 13, 2017 Joint Session in Congress,
he stated:
Senator Pangilinan. x x x
It would have been a very different situation altogether if the fighting was
still ongoing. If there is stiJl that siege, then we can see that the situation is
extreme and therefore, we can proceed with an extension.
xxxx
Hon. Lorenzana. Mr. President, may I reply to the good senator.
189
Sir, maybe your perception here is not as bad as what is happening
on the ground, but the troops report otherwise.
You know, wala na sigurong hakbakan diyan sa Marawi, but there
are still clashes almost everyday in other parts of Mindanao. The
clash with the BJFF in Central Mindanao continues almost everyday. Iyong
mga engkwentro din sa mga ibang lugar saEastern Mindanao with the CPP-
NPA ay nandoon pa rin. Basilan, Jolo ay ongoing pa rin iyan.
x x x x131 (Emphasis ours)
During the oral arguments, AFP General Guerrero also confirmed that there
were actually armed encounters with the remnants of the DAESH/ISIS-
inspired DIWM.132
Accordingly, it would be error to conclude that the rebellion ceased to exist
upon the termination of hostilities in Marawi.
Other rebel groups
The extension has also been challenged on the ground that it did not refer to
the same rebellion under Proclamation No. 216.
It is true that the Bangsamoro Islamic Freedom Fighters (BIFF), the Turaifie
Group and the New People's Army (NPA) were not expressly mentioned
either in Proclamation No. 216 or in the President's Report to Congress after
he issued the Proclamation. However, in Lagman, the government clearly
identified the BIFF, based in the Liguasan Marsh, Maguindanao, as one of
the four ISIS-linked rebel groups that had formed an alliance for the unified
mission of establishing an ISIS territory in Mindanao, led by ASG-Basilan
leader, Isnilon Hapilon, who had been appointed emir of all ISIS forces in
the Philippines. The other three rebel groups were the ASG from Basilan,
Ansarul Khilafah Philippines (AKP), also known as the Maguid Group, from
Saranggani and Sultan Kudarat, and the Maute Group from Lanao del Sur.
Furthermore, while it named only the Maute Group and the ASG, the
President's Report made express reference to "lawless armed groups" as
perpetrators of the Marawi siege resolved to unseat the duly-constituted
government and make Mindanao a DAESH/ISIS province. The Report also
indicated, as additional reasons for the Proclamation, the "extensive
networks or linkages of the Maute Group with foreign and local armed
groups" and the "network and alliance-building activities among terrorist
groups, local criminals, and lawless armed men" in Mindanao.133 Thus,
though not specifically identified in the Proclamation or the President's
Report, the BIFF and the Turaifie Group are deemed to have been similarly
alluded to.
Indeed, absolute precision cannot be expected from the President who would
have to act quickly given the urgency of the situation. Under the
circumstances, the actual rebellion and attack, more than the exact identity
of all its perpetrators, would be his utmost concern. The following
pronouncement in Lagman, thus, finds relevance:
Neither should the Court expect absolute correctness of the facts stated in
the proclamation and in the written Report as the President could not be
expected to verify the accuracy and veracity of all facts reported to him due
to the urgency of the situation. To require precision in the President's
appreciation of facts would unduly burden him and therefore impede the
process of his decision-making. Such a requirement will practically
necessitate the President to be on the ground to confirm the correctness of
the reports submitted to him within a period that only the circumstances
obtaining would be able to dictate. Such a scenario, of course, would not
only place the President in peril but would also defeat the very purpose of
the grant of emergency powers upon him, that is, to borrow the words of
Justice Antonio T. Carpio in Fortun, to "immediately put an end to the root
cause of the emergency". Possibly, by the time the President is satisfied with
the correctness of the facts in his possession, it would be too late in the day
as the invasion or rebellion could have already escalated to a level that is
hard, if not impossible, to curtail.
In the same vein, to require the President to render a meticulous and
comprehensive account in his Proclamation or Report will be most tedious
and will unduly encumber his efforts to immediately quell the rebellion.
The efforts of the Turaifie Group and its allies134 in the ISIS-inspired135 BIFF
to wrest control of Mindanao continued even as the government was able to
put the Marawi crisis under control.
In his December 8, 2017 letter to the Congress, the President stated:
Second, the Turaifie Group has likewise been monitored to be planning to
conduct bombings, notably targeting the Cotabato area. Turaitie is said to be
Hapilon 's potential successor as Amir of DAESH Wilayat in the Philippines
and the Southeast Asia.136
Furthermore, as the AFP reported during the oral arguments, the BIFF
"continues to inflict violence and sow terror in central Mindanao," and as one
of the AFP's primary targets for disbandment, "the group will likely continue
its hostile operations in a bid to retaliate, fight for its relevance and
demonstrate its resiliency."137
The AFP has likewise confirmed that the Turaifie Group is one of several
terrorist groups responsible for the Marawi siege, and that it has so far
successfully recruited 70 new members in its unwavering pursuit of a
DAESH/ISIS wilayat in Mindanao.
190
The Court, thus, finds that the government has sufficiently established the
persistence of the DAESH/ISIS rebellion.
The inclusion of the rebellion of the New People's Army (NPA) as basis for
the further extension of martial law in Mindanao will not render it void.
Undeniably, the NPA aims to establish communist rule in the country while
the DAESH/ISIS-inspired rebels intend to make Mindanao the seat of ISIS
power in Southeast Asia. It is obvious, however, that even as they differ in
ideology, they have the shared purpose of overthrowing the duly constituted
government. The violence the NPA has continued to commit in Mindanao, as
revealed by the Executive, hardly distinguish its rebels from the architects of
the Marawi siege. Both have needlessly and violently caused the death of
military forces and civilians, and the destruction of public and private
property alike. Thus, in his request for the further extension of Proclamation
No 216, the President informed the Congress that:
Last, but certainly not the least, while the government was preoccupied with
addressing the challenges posed by the DAESH-inspired DIWM and other
Local Terrorist Groups (LTGs), the New People's Army (NPA) took advantage
of the situation and intensified their decades-long rebellion against the
government and stepped up terrorist attacks against innocent civilians and
private entities, as well as guerilla warfare against the security sector and
public government infrastructure, purposely to seize political power
through violent means and supplant the country's democratic form
of government with Communist rule.
This year, the NPA has perpetrated a total of at least three hundred eight-
five (385) atrocities (both terrorism and guerilla warfare) in Mindanao, which
resulted in forty-one (41) Killed-in-Action and sixty-two (62) Wounded-in-
Action (WIA) on the part of government forces. On the part of the civilians,
these atrocities resulted in the killing of twenty-three (23) and the wounding
of six (6) persons. The most recent was the ambush in Talakag, Bukidnon on
09 November 2017, resulting in the killing of one (1) PNP personnel and the
wounding of three (3) others, as well as the killing of a four (4)-month-old
infant and the wounding of two (2) civilians.
Apart from these, at least fifty-nine (59) arson incidents have been carried
out by the NPA in Mindanao this year, targeting businesses and private
establishments and destroying an estimated P2.2 billion-worth of properties.
Of these, the most significant were the attack on Lapanday Food Corporation
in Davao City on 09 April 2017 and the burning of facilities and equipment of
Mil-Oro Mining and Frasec Ventures Corporation in Mati City, Davao Oriental
on 06 May 2017, which resulted in the destruction of properties valued at
P1.85 billion and P109 million, respectively.138 (Emphasis ours)
Given the scale of the attacks perpetrated by the communist rebels, it is far
from unreasonable for the President to include their rebellion in his request
for the further extension of martial law in Mindanao. The NPA's "intensified"
insurgence clearly bears a significant impact on the security of Mindanao and
the safety of its people, which were the very reasons for the martial law
proclamation and its initial extension.
It will also be noted that when Proclamation No. 216 was issued, the
Government and the NPA were undergoing peace negotiations. Thus, the
President could not have included the NPA's rebellion in the Proclamation
even granting he had cause to do so. The Office of the Solicitor General
declared during the oral arguments that because of the peace negotiations,
the NPA was "not explicitly included" as a matter of comity.139 The
Executive's data showed that despite the peace talks, the NPA continued its
hostilities and intensified its tactical offensives, prompting the President to
terminate the peace negotiations on November 23, 2017. In his December
8, 2017 letter to Congress, the President wrote:
As a direct result of these atrocities on the part of the NPA, I was
constrained to issue Proclamation No. 360 on 23 November 2017 declaring
the termination of peace negotiations with the National Democratic Front-
Communist Party of the Philippines-New People's Army (NDF-CPP-NPA)
effective immediately. I followed this up with Proclamation No. 374 on 05
December 2017, where I declared the CPP-NPA as a designated/identified
terrorist organization under the Terrorism Financing Prevention and
Suppression Act of 2012, and the issuance of a directive to the Secretary of
Justice to file a petition in the appropriate court praying to proscribe the
NDF-CPP-NPA as a terrorist organization under the Human Security Act of
2007.140
It is readily apparent that the inclusion of the NPA's rebellion in the
President's request for extension was precipitated by these turn of events,
as well as the magnitude of the atrocities attributed to the communist
rebels. It would make no sense to exclude or separate the communist
rebellion from the continued operation of martial law in Mindanao when it
also persists in the same region. Thus, the Court finds that the President's
decision to add the NPA's "intensified" insurgence to the DAESH/ISIS
rebellion, as further basis to request for the extension, was not uncalled for.
In any event, seeking the concurrence of the Congress to use martial law to
quell the NPA's rebellion, instead of issuing a new martial law proclamation
for the same purpose, appears to be more in keeping with the Constitution's
aim of preventing the concentration of the martial law power in the
President. The extension granted by the Congress upon the President's
request has become a joint action or a "collective judgment"141 between the
Executive and the Legislature, thereby satisfying one of the fundamental
safeguards  established under Section 18, Article VII of the 1987
Constitution.
B. Public safety requires the extension
191

In Lagman, the Court defined "public safety" as follows:
Public safety, which is another component element for the declaration of
martial law, "involves the prevention of and protection from events that
could endanger the safety of the general public from significant danger,
injury/harm, or damage, such as crimes or disasters." Public safety is
an abstract term; it does not take any physical form. Plainly, its range,
extent or scope could not be physically measured by metes and bounds.
(Emphasis ours)
The question, therefore, is whether the acts, circumstances and events upon
which the extension was based posed a significant danger, injury or harm to
the general public. The Court answers in the affirmative.
The following events and circumstances, as disclosed by the President, the
Defense Secretary and the AFP, strongly indicate that the continued
implementation of martial law in Mindanao is necessary to protect public
safety:
(a) No less than 185 persons in the Martial Law Arrest Orders have remained
at large. Remnants of the Hapilon and Maute groups have been monitored
by the AFP to be reorganizing and consolidating their forces in Central
Mindanao, particularly in Maguindanao, North Cotabato, Sulu and Basilan,
and strengthening their financial and logistical capability.142
(b) After the military operation in Marawi City, the Basilan-based ASG, the
Maute Group, the Maguid Group and the Turaifie Group, comprising the
DAESH-affiliate Dawlah Islamiyah that was responsible for the Marawi siege,
was left with 137 members and a total of 166 firearms. These rebels,
however, were able to recruit 400 new members, more or less, in Basilan,
the Lanao Provinces, Sarangani, Sultan Kudarat and Maguindanao.143
(c) The new recruits have since been trained in marksmanship, bombing and
tactics in different areas in Lanao del Sur. Recruits with great potential are
trained in producing Improvised Explosive Devices (IEDs) and urban
operations. These new members are motivated by their clannish culture,
being relatives of terrorists, by revenge for relatives who perished in the
Marawi operations, by money as they are paid P15,000.00 to P50,000.00,
and by radical ideology.144
(d) 48 FTFs have joined said rebel groups and are acting as instructors to
the recruits.145 Foreign terrorists from Southeast Asian countries, particularly
from Indonesia and Malaysia, will continue to take advantage of the porous
borders of the Philippines and enter the country illegally to join the remnants
of the DAESH/ISIS-inspired rebel groups.146
(e)In November 2017, 15 Indonesian and Malaysian DAESH-inspired FTFs
entered Southern Philippines to augment the remnants of the Maguid group
in Saragani province. In December 2017, 16 Indonesian DAESH-inspired
FTFs entered the Southern Philippines to augment the ASG-Basilan and
Maute groups in the Lanao province. In January 2018, an unidentified
Egyptian DAESH figure was monitored in the Philippines.147
(f) At least 32 FTFs were killed in the Marawi operations.148 Other. FTFs
attempted to enter the main battle area in Marawi, but failed because of
checkpoints set up by government forces.149
(g) "The DAESH-inspired DIWM groups and their allies continue to visibly
offer armed resistance in other parts of Central, Western and Eastern
Mindanao in spite of the neutralization of their key leaders and destruction of
their forces in Marawi City."150 There were actually armed encounters with
the remnants of said groups.151
(h) "Other DAESH-inspired and like-minded threat groups such as the BIFF,
AKP, DI-Maguid, DI-Toraype, and the ASG remain capable of staging similar
atrocities and violent attacks against vulnerable targets in Mindanao,
including the cities of Davao, Cagayan de Oro, General Santos, Zamboanga
and Cotabato."152
(i) The Turaifie group conducts roadside bombings and attacks against
government forces, civilians and populated areas in Mindanao.153 The group.
plans to set off bombings in Cotabato.154
(j) The Maute Group, along with foreign terrorists, were reported to be
planning to bomb the cities of Zamboanga, Iligan, Cagayan de Oro and
Davao.155
(k) The remaining members of the ASG-Basilan have initiated five violent
attacks that killed two civilians.156
(l) In 2017, the remnants of the ASG in Basilan, Sulu, Tawi-Tawi and
Zamboanga Peninsula, conducted 43 acts of violence, including IED attacks
and kidnapping which resulted in the killing of eight innocent civilians, three
of whom were mercilessly beheaded.157 Nine kidnap victims are still held in
captivity.158
(m) Hapilon's death fast-tracked the unification of the Sulu and Basilan-
based ASG to achieve the common goal of establishing a DAESH-
/ISIS wilayat in Mindanao. This likely merger may spawn retaliatory attacks
such as IED bombings, in urban areas, particularly in the cities of
Zamboanga, Isabela and Lamitan.159
(n) By AFP's assessment, the ISIS' regional leadership may remain in the
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Southern Philippines and with the defeat of ISIS in many parts of Syria and
Iraq, some hardened fighters from the ASEAN may return to this region to
continue their fight. The AFP also identified four potential leaders who may
replace Hapilon as emir or leader of the ISIS forces in the Philippines. It
warned that the Dawlah Islamiyah will attempt to replicate the Marawi siege
in other cities of Mindanao and may conduct terrorist attacks in Metro Manila
and Davao City as the seat of power of the Philippine Government. With the
spotlight on terrorism shifting from the Middle East to Southeast Asia
following the Marawi siege, the AFP likewise indicated that the influx of FTFs
in the Southern Philippines will persist. The AFP further referred to possible
lone-wolf attacks and atrocities from other DAESH-inspired rebel groups in
vulnerable cities like Cagayan de Oro, Cotabato, Davao, General Santos,
Iligan and Zamboanga.160
The rising number of these rebel groups, their training in and predilection to
terrorism, and their resoluteness in wresting control of Mindanao from the
government, pose a serious danger to Mindanao. The country had been
witness to these groups' capacity and resolve to engage in combat with the
government forces, resulting in severe casualties among both soldiers and
civilians, the displacement of thousands of Marawi residents, and
considerable damage to their City. In a short period after the Marawi crisis
was put under control, said rebel groups have managed to increase their
number by 400, almost the same strength as the group that initially stormed
Marawi. Their current number is now more than half the 1,010 rebels in
Marawi which had taken the AFP five months to neutralize. To wait until a
new battleground is chosen by these rebel groups before We consider them
a significant threat to public safety is neither sound nor prudent.
(o) Furthermore, in 2017 alone, the BIFF initiated 116 hostile acts in North
Cotabato, Sultan Kudarat and Maguindanao, consisting of ambuscade, firing,
arson, IED attacks and grenade explosions. 66 of these violent incidents
were committed during the martial law period and by the AFP's assessment,
the group will continue to inflict violence and sow terror in central
Mindanao.161
(p) In 2017, the ASG, which is the predominant local terrorist group in the
Southern Philippines based in Tawi-Tawi, Sulu, Basilan and Zamboanga, with
its 519 members, 503 firearms, 66 controlled barangays and 345 watch-
listed personalities, had perpetrated a total of 13 acts of kidnapping against
37 individuals, 11 of whom (including 7 foreigners) remain in captivity. Their
kidnap-for-ransom activities for last year alone have amassed a total of
P61.2 million.162
(q) Mindanao remains the hotbed of communist rebellion considering that
47% of its manpower, 48% of its firearms, 51% of its controlled barangays
and 45% of its guerrilla fronts are in this region.163 Of the 14 provinces with
active communist insurgency, 10 are in Mindanao. Furthermore, the
communist rebels' Komisyon Mindanao (KOMMID) is now capable of sending
augmentation forces, particularly "Party Cadres," in Northern Luzon.164
(r) The hostilities initiated by the communist rebels have risen by 65% from
2016 to 2017 despite the peace talks.165 In 2017 alone, they perpetrated
422 atrocities in Mindanao, including ambush, raids, attacks, kidnapping,
robbery, bombing, liquidation, landmine/IED attacks, arson and sabotage,
that resulted in the death of 47 government forces and 31 civilians.166 An
ambush in Bukidnon in November 2017 killed one PNP personnel, two
civilians and a four-month old baby. 59 incidents of arson committed by the
Communist rebels against business establishments in Mindanao last year
alone destroyed P2.378 billion worth of properties. Moreover, the amount
they extorted from private individuals and business establishments from
2015 to the first semester of 2017 has been estimated at P2.6 billion.167
(s) Among the most significant attacks by the communist rebels on business
establishments took place in April and May 2017 when they burned the
facilities ofLapanday Food Corporation in Davao City and those of Mil-Oro
Mining and Frasec Ventures Corporation in Mati City, Davao Oriental, which
resulted in losses amounting to P1.85 billion and P109 million, respectively.
According to the AFP, business establishments in the area may be forced to
shut down due to persistent NPA attacks just like in Surigao del Sur.168
(t) By AFP's calculation, the aforesaid rebel groups (excluding the 400 newly
recruited members of the Dawlah Islamiyah) are nearly 2,781-men strong,
equipped with 3,211 firearms and control 537 barangays in Mindanao.
The magnitude of the atrocities already perpetrated by these rebel groups
reveals their capacity to continue inflicting serious harm and injury, both to
life and property. The sinister plans of attack, as uncovered by the AFP,
confirm this real and imminent threat. The manpower and armaments these
groups possess, the continued radicalization and recruitment of new rebels,
the financial and logistical build-up cited by the President, and more.
importantly, the groups' manifest determination to overthrow the
government through force, violence and terrorism, present a significant
danger to public safety.
In Lagman, the Court recognized that the President, as Commander-in-
Chief, has possession of intelligence reports, classified documents and other
vital information which he can rely on to properly assess the actual
conditions on the ground, thus:
It is beyond cavil that the President can rely on intelligence reports and
classified documents. "It is for the President as [C]ommander-in-[C]hief of
the Armed Forces to appraise these [classified evidence or
documents/]reports and be satisfied that the public safety demands the
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suspension of the writ." Significantly, respect to these so-called classified
documents is accorded even "when [the] authors of or witnesses to these
documents may not be revealed."
In fine, not only does the President have a wide array of information before
him, he also has the right, prerogative, and the means to access vital,
relevant, and confidential data, concomitant with his position as
Commander-in-Chief of the Armed Forces.
As his December 8, 2017 letter to the Congress would show, the President's
request for further extension had been based on the security assessment of
the AFP and the PNP. Notably, the President also acknowledged that the
grounds or "essential facts" cited in his letter were of his "personal
knowledge" as Commander-in-Chief of the armed forces. The President's
request to Congress also referred to the monitoring activities that led to the
Executive's findings, which the AFP confirmed during the January 17, 2018
oral argument.
According to Executive Secretary Salvador Medialdea, the President made
his request to the Congress after a careful personal evaluation of the reports
from the Martial Law Administrator, Martial Law Implementor, the PNP, the
National Security Adviser and the National Intelligence Coordinating Agency
(NICA), as well as information gathered from local government officials and
residents of Mindanao.169
On December 12, 2017, the AFP separately gave the Senate and the House
of Representatives a briefing on the Executive Department's basis for
requesting the further extension of Proclamation No. 216.170
At the Joint Session, of the Congress held on December 13, 2017 Executive
Secretary Salvador Medialdea, Defense Secretary Delfin Lorenzana, AFP
General Guerrero, PNP Chief Ronald Dela Rosa, the head of the NICA, the
National Security Adviser, as well as the Secretaries of the Department of
Justice, the Department of Public Works and Highways, Department of Labor
and Employment, Transportation and Communication, and the Chairman of
the Task Force Bangon Marawi, were present and sworn in as resource
persons.171 Secretary Medialdea highlighted to the Congress the reasons
cited by the President in his request, and during the course of the session,
he, Secretary Lorenzana, AFP General Guerrero and Senior Deputy Executive
Secretary Menardo Guevarra responded to interpellations from a number of
Senators and Representatives on the propriety and necessity of further
extending martial law in Mindanao.
The Joint Session also provided an occasion for the Representative from the
Second District of Lanao del Sur to confirm the recruitment activities of the
"remnants" of the Maute and Hapilon groups, thus:
Representative Papandayan. x x x
Kami po sa Lanao del Sur, ako ay umuwi last week, aking kinausap ang
aking mgabarangay at mga barangay chairman sa aming distrito. Pinahanap
ko kung mayroon pang natitirang remnants o mga kasamahan ng Maute at
saka Hapilon. Ang mga barangay chairman po ay nag-report sa akin na
mayroon po at sila po ay nagre-recruit ngayon, na nag-aalok din sila ng
pera sa mga nare-recruit nila.172
Following its deliberation on the request for further extension, the Congress,
in joint session, resolved to further extend Proclamation No. 216 for one
year, with 240 members voting for, and 27 against,173 the President's
initiative. In approving the extension, Congress agreed with the factual
considerations of the Executive, as can be gleamed from the 4th and
6thWhereas clauses of Resolution of Both Houses No. 4.
The information upon which the extension of martial law or of the
suspension of the privilege of the writ of habeas corpus shall be based
principally emanate from and are in the possession of the Executive
Department. Thus, "the Court will have to rely on the fact-finding
capabilities of the [E]xecutive [D]epartment; in turn, the Executive
Department will have to open its findings to the scrutiny of the Court."174
The Executive Department did open its findings to the Court when the AFP
gave its "briefing" or "presentation" during the oral arguments, presenting
data, which had been vetted by the NICA, "based on intelligence reports
gathered on the ground," from personalities they were able to capture and
residents in affected areas, declassified official documents, and intelligence
obtained by the PNP.175According to the AFP, the same presentation, save for
updates, was given to the Congress.176 As it stands, the information thus
presented has not been challenged or questioned as regards its reliability.
The facts as provided by the Executive and considered by Congress amply
establish that rebellion persists in Mindanao and public safety is significantly
endangered by it. The Court, thus, holds that there exists sufficient factual
basis for the further extension sought by the President and approved by the
Congress in its Resolution of Both Houses No. 4.
Necessarily, We do not see the merit to the petitioners' theory in the
Cullamat petition that the extent of threat to public safety as would justify
the declaration or extension of the proclamation of martial law and the
suspension of the privilege of the writ must be of such level that the
government cannot sufficiently govern, nor assure public safety or deliver
government services. Petitioners posit that only in this scenario may martial
law be constitutionally permissible.
Restrained caution must be exercised in adopting petitioners' theory for
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several reasons. To begin with, a hasty adoption of the suggested scale,
level or extent of threat to public safety is to supplant into the plain text of
the Constitution. An interpretation of the Constitution precedes from the
fundamental postulate that 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.177 The consequent duty of the
judiciary then is 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.178This must be
so considering that the Constitution is the mother of all laws, sufficient and
complete in itself. For the Court to categorically pronounce which kind of
threat to public safety justifies the declaration or extension of martial law
and which ones do not, is to improvise on the text of the Constitution ideals
even when these ideals are not expressed as a matter of positive law in the
written Constitution.179 Such judicial improvisation finds no justification.
For another, if the Court were to be successful in disposing of its bounden
duty to allocate constitutional boundaries, the Constitutional doctrines the
Court produces must necessarily remain steadfast no matter what may be
the tides oftime.180 The adoption of the extreme scenario as the measure of
threat to public safety as suggested by petitioners is to invite doubt as to
whether the proclamation of martial law would be at all effective in such
case considering that enemies of the State raise unconventional methods
which change over time. It may happen that by the time government loses
all capability to dispose of its functions, the enemies of the government
might have already been successful in removing allegiance therefrom. Any
declaration then of martial law would be of no useful purpose and such could
not be the intent of the Constitution. Instead, the requirement of public
safety as it presently appears in the Constitution admits of flexibility and
discretion on the part of the Congress.
So too, when the President and the Congress ascertain whether public safety
requires the declaration and extension of martial lavv, respectively, they do
so by calibrating not only the present state of public safety but the further
repercussions of the actual rebellion to public safety in the future as well.
Thus, as persuasively submitted by Fr. Bernas in his Amicus Curiae
Brief181 in Fortun v. Gloria Macapagal-Arroyo:182
From all these it is submitted that the focus on public safety adds a nuance
to the meaning of rebellion in the Constitution which is not found in the
meaning of the same word m Article 134 of the Penal Code. The concern of
the Penal Code, after all, is to punish acts of the past. But the concern of
the Constitution is to counter threat to public safety both in the
present and in the future arising from present and past acts. Such
nuance, it is submitted, gives to the President a degree of flexibility for
determining whether rebellion constitutionally exists as basis for martial law
even if facts cannot obviously satisfy the requirements of the Penal Code
whose concern is about past acts. To require that the President must first
convince herself that there can be proof beyond reasonable douht of the
existence of rebellion as defined in the Penal Code and jurisprudence can
severely restrict the President's capacity to safeguard public safety for the
present and the future and can defeat the purpose of the Constitution.
(Emphasis ours)
The requirement of the Constitution is therefore adequately met when there
is sufficient factual basis to hold that the present and past acts constituting
the actual rebellion are of such character that endanger and will endanger
public safety. This permissive approach is sanctioned not only by an
acknowledgment that the Congress is and should be allowed flexibility but
also because the Court is without the luxury of time to determine accuracy
and precision.
No necessity to impose tests on the choice and manner of the
President's exercise of military powers
We refuse to be tempted by petitioner Rosales' prodding that We set two
tests in reviewing the constitutionality of a declaration or extension of
martial law. In her memorandum,183 she clarifies the two tests, as follows:
1. Proportionality Test requires that a situation is of such gravity or scale as
to demand resort to the most extreme of measures, i.e. a situation where
the ordinary police powers of the State are no longer sufficient to restore,
secure or preserve public safety; and
2. Suitability Test requires that a situation is such that the declaration of
martial law is the correct tool to address safety problem.
It is sufficient to state that this Court already addressed the same argument
in Our decision in Lagman. The determination of which among the
Constitutionally given military powers should be exercised in a given set of
factual circumstances is a prerogative of the President. The Court's power of
review, as provided under Section 18, Article VII do not empower the Court
to advise, nor dictate its own judgment upon the President, as to which and
how these military powers should be exercised.
Safeguards against abuse
Martial law is a law of necessity. "Necessity creates the conditions for martial
law and at the same time limits the scope of martial law."184 Thus, when the
need for which Proclamation No. 216 was further extended no longer exists,
the President can lift the martial law imposition even before the end of the
one-year period. Under the same circumstances, the Congress itself may
pass a resolution pre-terminating the extension. This power emanates from
the Congress' authority, granted under the Constitution, to approve the
extension and to fix its duration. The power to determine the period of the
extension necessarily includes the power to shorten it. Furthermore,
195
considering that this Court's judgment on the constitutionality of an
extension is "transitory," or "valid at that certain point of time," any citizen
may petition the Court to review the sufficiency of the factual basis for its
continued implementation should the President and the Congress fail or
refuse to lift the imposition of martial law. During the deliberations on the
1987 Constitution, it was explained:
FR. BERNAS. The decision of the Supreme Court will be based on its
assessment of the factual situation. Necessarily, therefore, the judgment of
the Supreme Court on that is a transitory judgment because the factual
situation can change. So, while the decision of the Supreme Court may
be valid at that certain point of time, the situation may change so
that Congress should be authorized to do something about
it.185(Emphasis ours)
Petitioners fear that the one-year extension of martial law will only intensify
the human rights violations committed by government forces against
civilians. To place a territory under martial law is undeniably an immense
power, and like all other powers, it may be abused.186 However, the
possibility of abuse and even the country's martial law experience under the
Marcos regime did not prevent the framers of the 1987 Constitution from
including it among the Commander-in-Chief powers of the President. This is
in recognition of the fact that during critical times when the security or
survival of the state is greatly imperiled, an equally vast and extraordinary
measure should be available for the President to protect and defend it.
Nevertheless, cognizant of such possibility of abuse, the framers of the 1987
Constitution endeavored to institute a system of checks and balances to limit
the President's exercise of the martial law and suspension powers, and to
establish safeguards to protect civil liberties. Thus, pursuant to Section 18,
Article VII of the 1987 Constitution:
(a) The President may declare martial law or suspend of the privilege of the
writ of the privilege of habeas corpus only when there is an invasion or
rebellion and public safety requires such declaration or suspension.
(b) The President's proclamation or suspension shall be for a period not
exceeding 60 days.
(c) Within 48 hours from the proclamation or suspension, the President must
submit a Report in person or in writing to Congress.
(d) The Congress, voting jointly and by a vote of at least a majority of all its
Members, can revoke the proclamation or suspension.
(e) The President cannot set aside the Congress' revocation of his
proclamation or suspension.
(f) The President cannot, by himself, extend his proclamation or suspension.
He should ask the Congress' approval.
(g) Upon such initiative or request from the President, the Congress, voting
jointly and by a vote of at least a majority of all its Members, can extend the
proclamation or suspension tor such period as it may determine.
(i) The extension of the proclamation or suspension shall only be approved
when the invasion or rebellion persists and public safety requires it.
(j) The Supreme Court may review the sufficiency of the factual basis of the
proclamation or suspension, or the extension thereof, in an appropriate
proceeding filed by any citizen.
(k) The Supreme Court must promulgate its decision within 30 days from
the filing of the appropriate proceeding.
(l) Martial law does not suspend the operation of the Constitution.
Accordingly, the Bill of Rights187 remains effective under a state of martial
law. Its implementers must adhere to the principle that civilian authority is
supreme over the military and the armed forces is the protector of the
people.188 They must also abide by the State's policy to value the dignity of
every human person and guarantee full respect for human rights.189
(m) Martial law does not supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to
function.
(n) The suspension of the privilege of the writ applies only to persons
judicially charged for rebellion or offenses inherent in or directly connected
with invasion.
(o) Finally, during the suspension of the privilege of the writ, any person
thus arrested or detained should be judicially charged within three days,
otherwise he should be released.
As Commissioner De Los Reyes explained during the deliberations on the
1987 Constitution:
MR. DE LOS REYES. May I explain my vote, Madam President.
My vote is yes. The power of the President to impose martial law is
doubtless of a very high and delicate nature. A free people are naturally
jealous of the exercise of military power, and the power to impose martial
law is certainly felt to be one of no ordinary magnitude. But as presented by
the Committee, there are many safeguards: 1) it is limited to 60 days; 2)
Congress can revoke it; 3) the Supreme Court can still review as to the
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sufficiency of the actual basis; and 4) it does not suspend the operation of
the Constitution. To repeat what I have quoted when I interpellated
Commissioner Monsod, it is said that the power to impose martial law
is dangerous to liberty and may be abused. All powers may be
abused if placed in unworthy hands. But it would be difficult, we
think, to point out any other hands in which this power will be more
safe [sic] and at the same time equally effectual. When citizens of the
State are in arms against each other and the constituted authorities are
unable to execute the laws, the action of the President must be prompt or it
is of little value. I vote yes.190 (Emphasis ours)
Human rights violations and abuses in the implementation of martial law and
suspension powers cannot by any measure be condoned. The Court lauds
petitioners' vigilance to make sure that the abuses of the past are not
repeated and perceived abuses of the present will not go unnoticed.
However, as the Court settled in Lagman, alleged human rights violations
committed during the implementation of martial law or the suspension of the
privilege of the writ of habeas corpus should be resolved in a separate
proceeding. It, thus, bears noting some of the remedies, requirements and
penalties imposed under existing laws, meant to address abuses by arresting
or investigating public officers.
In Lacson v. Perez,191 the Court had occasion to rule:
Moreover, petitioners' contention in G.R. No. 147780 (Lacson Petition),
147781 (Defensor-Santiago Petition), and 147799 (Lumbao Petition) that
they are under imminent danger of being arrested without warrant do not
justify their resort to the extraordinary remedies of mandamus and
prohibition, since an individual subject to warrantless arrest is not without
adequate remedies in the ordinary course of law. Such an individual may ask
for a preliminary investigation under Rule 112 of the Rules of Court, where
he may adduce evidence in his defense, or he may submit himself to inquest
proceedings to determine whether or not he should remain under custody
and correspondingly be charged in court. x x x Should the detention be
without legal ground, the person arrested can charge the arresting officer
with arbitrary detention. All this is without prejudice to his filing an action for
damages against the arresting officer under Article 32 of the Civil Code.
Verily, petitioners have a surfeit of other remedies which they can avail
themselves of, thereby making the prayer for prohibition
and mandamus improper at this time (Sections 2 and 3, Rule 65, Rules of
Court).192
R.A. No. 7438,193 which defines the rights of persons arrested, detained or
under custodiaJ investigation, imposes the following penalties on errant
arresting or investigating officers:
Section 4. Penalty Clause. - (a) Any arresting public officer or employee,
or any investigating officer, who fails to inform any person arrested,
detained or under custodial investigation of his right to remain silent and to
have competent and independent counsel preferably of his own choice, shall
suffer a fine of six thousand pesos (P6,000.00) or a penalty. of
imprisonment of not less than eight (8) years but not more than ten (10)
years, or both. The penalty of perpetual absolute disqualification shall also
be imposed upon the investigating officer who has been previously convicted
of a similar offense.
The same penalties shall be imposed upon a public officer or employee, or
anyone acting upon orders of such investigating officer or in his place, who
fails to provide a competent and independent counsel to a person arrested,
detained or under custodial investigation for the commission of an offense if
the latter cannot afford the services of his own counsel.
(b) Any person who obstructs, prevents or prohibits any lawyer, any
member of the immediate family of a person arrested, detained or under
custodial investigation, or any medical doctor or priest or religious minister
chosen by him or by any member of his immediate family or by his counsel,
from visiting and conferring privately with him, or from examining and
treating him, or from ministering to his spiritual needs, at any hour of the
day or, in urgent cases, of the night shall suffer the penalty of imprisonment
of not less than four (4) years nor more than six (6) years, and a fine of four
thousand pesos (P4,000.00).
Under R.A. No. 9372 or the Human Security Act of 2007, rebellion may be
subsumed in the crime of terrorism; it is one of the means by which
terrorism can be committed.194 R.A. No. 9372 imposes specific penalties for
failure of the law enforcement personnel to deliver the suspect to the proper
judicial authority within the prescribed period, for violating the rights of the
detainee, and for using torture in the interrogation or investigation of a
detainee, viz:
SEC. 20. Penalty for Failure to Deliver Suspect to the Proper Judicial
Authority within Three Days. - The penalty of ten (10) years and one day
to twelve (12) years of imprisonment shall be imposed upon any police or
law enforcement personnel who has apprehended or arrested, detained and
taken custody of a person charged with or suspected of the crime of
terrorism or conspiracy to commit terrorism and fails to deliver such charged
or suspected person to the proper judicial authority within the period of
three days.
xxxx
SEC. 22. Penalty for Violation of the Rights of a Detainee. - Any police
or law enforcement personnel, or any personnel of the police or other law
enforcement custodial unit that violates any of the aforesaid rights of a
person charged with or suspected of the crime of terrorism or the crime of
conspiracy to commit terrorism shall be guilty of an offense and shall suffer
the penalty of ten (10) years and one day to twelve (12) years of
imprisonment.
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Unless the police or law enforcement personnel who violated the rights of a
detainee or detainees as stated above is duly identified, the same penalty
shall be imposed on the police officer or hear or leader of the law
enforcement unit having custody of the detainee at the time the violation
was done.
xxxx
SEC. 25. Penalty for Threat, Intimidation, Coercion, or Torture in the
Investigation and Interrogation of a Detained Person. - Any person or
persons who use threat, intimidation, or coercion, or who inflict physical pain
or torment, or mental, moral, or psychological pressure, which shall vitiate
the free-will of a charged or suspected person under investigation and
interrogation for the crime of terrorism or the crime of conspiracy to commit
terrorism shall be guilty of an offense and shall suffer the penalty of twelve
(12) years and one day to twenty (20) years of imprisonment.
When death or Serious permanent disability of said detained person occurs
as a consequence of the use of such threat, intimidation, or coercion, or as a
consequence of the infliction on him of such physical pain or torment, or as a
consequence of the infliction on him of such mental, moral, or psychological
pressure, the penalty shall be twelve (12) years and one day to twenty (20)
years of imprisonment.
R.A. No. 9372 also gave the Commission on Human Rights the following
authority and duty:
SEC. 55. Role of the Commission on Human Rights. - The Commission
on Human Rights shall give the highest priority to the investigation and
prosecution of violations of civil and political rights of persons in relation to
the implementation of this Act; and for this purpose, the Commission shall
have the concurrent jurisdiction to prosecute public officials, law enforcers,
and other persons who may have violated the civil and political rights of
persons suspected of, or detained for the crime of terrorism or conspiracy to
commit terrorism.
R.A. No. 9745 or the Anti-Torture Act of 2009 provides that: "Torture and
other cruel, inhuman and degrading treatment or punishment as criminal
acts shall apply to all circumstances. A state of war or a threat of war,
internal political instability, or any other public emergency, or a document or
any determination comprising an 'order of battle' shall not and can never be.
invoked as a justification for torture and other cruel, inhuman and degrading
treatment or punishment."195
The same law also expressly prohibits secret detention places, solitary
confinement, incommunicado or other similar forms of detention, where
torture may be carried out with impunity. For this purpose, it requires the
Philippine National Police (PNP), the Armed Forces of the Philippines (AFP)
and other law enforcement agencies concerned to make an updated list of all
detention centers and facilities under their respective jurisdictions with the
corresponding data on the prisoners or detainees incarcerated or detained
therein such as, among others, names, date of arrest and incarceration, and
the crime or offense committed. The list is to be made available to the public
at all times.196
R.A. No. 9745 likewise defined the following rights of a torture victim in the
institution of a criminal complaint for torture:
(a) To have a prompt and an impartial investigation by the CHR and by
agencies of government concerned such as the Department of Justice (DOJ),
the Public Attorney's Office (PAO), the PNP, the National Bureau of
Investigation (NBI) and the AFP. A prompt investigation shall mean a
maximum period of sixty (60) working days from the time a complaint for
torture is filed within which an investigation report and/or resolution shall be
completed and made available. An appeal whenever available shall be
resolved within the same period prescribed herein,
(b) To have sufficient government protection against all forms of
harassment; threat and/or intimidation as a consequence of the filing of said
complaint or the presentation of evidence therefor. In which case, the State
through its appropriate agencies shall afford security in order to ensure
his/her safety and all other persons involved in the investigation and
prosecution such as, but not limited to, his/her lawyer, witnesses and
relatives; and
(c) To be accorded sufficient protection in the manner by which he/she
testifies and presents evidence in any fora in order to avoid further trauma.
It further imposes the following penalties on perpetrators of torture as
defined therein:
Section 14. Penalties. - (a) The penalty of reclusion perpetua shall be
imposed upon the perpetrators of the following acts:
(1) Torture resulting in the death of any person; 
(2) Torture resulting in mutilation;
(3) Torture with rape;
(4) Torture with other forms of sexual abuse and, in consequence of torture,
the victim shall have become insane, imbecile, impotent, blind or maimed
for life; and
(5) Torture committed against children.
(b) The penalty of reclusion temporal shall be imposed on those who commit
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any act of mental/psychological torture resulting in insanity, complete or
partial amnesia, fear of becoming insane or suicidal tendencies of the victim
due to guilt, worthlessness or shame.
(c) The penalty of prision correccional shall be imposed on those who
commit any act of torture resulting in psychological, mental and emotional
harm other than those described In paragraph (b) of this section.
(d) The penalty of prision mayor in its medium and maximum periods shall
be imposed if, in consequence of torture, the victim shall have lost the
power of speech or the power to hear or to smell; or shall have lost an eye,
a hand, a foot, an arm or a leg; or shall have lost the use of any such
member; or shall have become permanently incapacitated for labor.
(e) The penalty of prision mayor in its minimum and medium periods shall
be imposed if, in consequence of torture, the victim shall have become
deformed or shall have lost any part of his/her body other than those
aforecited, or shall have lost the use thereof, or shall have been ill or
incapacitated for labor for a period of more than ninety (90) days.
(f) The penalty of prision correccional in its maximum period to prision
mayor in its minimum period shall be imposed if, in consequence of torture,
the victim shall have been ill or incapacitated for labor for mare than thirty
(30) days but not more than ninety (90) days.
(g) The penalty of prision correccional in its m1mmum and medium period
shall be imposed if, in consequence of torture, the victim shall have been ill
or incapacitated for labor for thirty (30) days or less.
(h) The penalty of arresto mayor shall be imposed for acts constituting cruel,
inhuman or degrading treatment or punishment as defined in Section 5 of
this Act.
(i) The penalty of prision correccional shall be imposed upon those who
establish, operate and maintain secret detention places and/or effect or
cause to effect solitary confinement, incommunicado or other similar fonns
of prohibited detention as provided in Section 7 of this Act where torture
may be carried qut with impunity.
(j) The penalty of arresto mayor shall be imposed upon the responsible
officers or personnel of the AFP, the PNP and other law enforcement
agencies for failure to perform his/her duty to maintain, submit or make
available to the public an updated list of detention centers and facilities with
the corresponding data on the prisoners or detainees incarcerated or
detained therein, pursuant to Section 7 of this Act.
This Court has likewise promulgated rules aimed at enforcing human rights.
In A.M. No. 07-9-12-SC,197this Court made available the remedy of a writ
of amparo to any person whose right to life, liberty and security is violated
or threatened with violation by an unlawful act or omission of a public official
or employee, or of a private individual or entity. Similarly, in A. M. No. 08-1-
16-SC,198 this Court also crafted the rule on the writ of habeas data to
provide a remedy for any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of a public
official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the person,
family, home and correspondence of the aggrieved party.
It also bears to note that the Philippines, is a signatory to the Universal
Declaration of Human Rights (UDHR),199 which is embodied in the
International Bill of Human Rights.200 As such, it recognizes that everyone
has the right to liberty and security of one's person.201 That no one shall be
subjected to arbitrary arrest or detention; or that no one shall be deprived of
his liberty except on such grounds and in accordance with such procedure as
are established by law, are just among the thirty (30) articles, mentioned in
the UDHR setting forth the human rights and fundamental freedoms to
which all men and women, everywhere in the world, are entitled, without
any discrimination.
Significantly, during the Congress' December 13, 2017 Joint Session, the
Executive Department, through Secretary Lorenzana, made an express
commitment to submit a monthly report to the Congress regarding the
extended implementation of martial law in Mindanao.202 Although not
required under Section 18, Article VII of the 1987 Constitution, the
submission of such report' is an ideal complement to the system of checks
and balance instituted therein. It will clearly assist the Congress in
evaluating the need to maintain or shorten the period of extension of
martial. law in Mindanao; it will also serve as an additional measure to check
on possible abuses or human rights violations in the Executive's enforcement
of martial law.
Petitioners failed to comply with the requisites for the issuance of
an injunctive writ
The purpose of a preliminary injunction under Section 3, Rule 58 of the Ruls
of Court,203 is to prevent threatened or continuous irremediable injury to
some of the parties before their claims can be thoroughly studied and
adjudicated.204 Its sole aim is to preserve the status quo until the merits of
the case can be heard fully.205Status quo is the last actual, peaceable and
uncontested situation which precedes a controversy.206 By jurisprudence, to
be entitled to an injunctive writ, petitioners have the burden to establish the
following requisites: (1) a right in esse or a clear and unmistakable right to
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be protected; (2) a violation of that right(3) that there is an urgent and
permanent act and urgent necessity tor the writ to prevent serious
damage;207 and (4) no other ordinary, speedy, and adequate remedy exists
to prevent the infliction of irreparable injury.208
Petitioners anchored their prayer for the issuance of an injunctive writ on
respondents' gross transgressions of the Constitution when they extended
the martial law in Mindanao for one year. The Lagman petition likewise
alleges that petitioner Villarin, a Davao City resident, is personally
prejudiced by the extension or martial law in Mindanao "which would spawn
violations of civil liberties of Mindanaoans like petitioner Villarin who is a
steadfast critic of the Duterte administration and of the brutalities
committed by police and military forces".
These grounds, however, cannot carry the day for the petitioners. Basic is
the rule that mere allegation is not evidence and is not equivalent to
proof.209 These allegations cannot constitute a right in esse, as understood in
jurisprudence. A right in esse is a clear and unmistakable right to be
protected,210 one clearly founded on or granted by law or is enforceable as a
matter of law.211 The existence of a right to be protected, and the acts
against which the writ is to be directed are violative of said right must be
established.212
The alleged violations of the petitioners' civil liberties do not justify the grant
of injunctive relief. The petitioners failed to prove that the alleged violations
are directly attributable to the imposition of martial law. They likewise failed
to establish the nexus between the President's exercise of his martial law
powers and their unfounded apprehension that the imposition "will target
civilians who have no participation at all in any armed uprising or struggle".
Incidentally, petitioners failed to state what the "civil liberties" specifically
refer to, and how the extension of martial law in Mindanao would threaten
these "civil liberties" in derogation of the rule of law. Evidently, petitioners'
right is doubtful or disputed, and can hardly be considered a clear legal
right, sufficient for the grant of an injunctive writ.
In Dynamic Builders & Construction Co. (PHIL.), Inc. v. Hon. Ricardo P.
Presbitero, Jr., et. al.,213 this Court held that no automatic issuance of an
injunctive relief will result by the mere allegation of a constitutionally
protected right. We explained, thus:
Mere allegation or invocation that constitutionally protected rights were
violated will not automatically result in the issuance of injunctive relief. The
plaintiff or the petitioner should discharge the burden to show a clear and
compelling breach of a constitutional provision. Violations of constitutional
provisions are easily alleged, but trial courts should scrutinize diligently and
deliberately the evidence showing the existence of facts that should support
the conclusion that a constitutional provision is clearly and convincingly
breached. In case of doubt, no injunctive relief should issue. In the proper
cases, the aggrieved party may then avail itself of special civil actions and
elevate the matter.214
Indeed, this Court cannot rely on speculations, conjectures or guesswork,
but must depend upon competent proof and on the basis of the best
evidence obtainable under the circumstances.215 We emphasize that the
grant or denial of an injunctive writ cannot be properly resolved by
suppositions, deductions, or even presumptions, with no basis in evidence,
for the truth must have to be determined by the procedural rules of
admissibility and proof. In The Executive Secretary v. Court of
Appeals,216 this Court stressed the indispensability of establishing the
requirements for injunctive writ:
To be entitled to a preliminary injunction to enjoin the enforcement of a law
assailed to be unconstitutional, the party must establish that it will suffer
irreparable harm in the absence of injunctive relief and must demonstrate
that it is likely to succeed on the merits, or that there are sufficiently serious
questions going to the merits and the balance of hardships tips decidedly in
its favor. The higher standard reflects judicial deference toward "legislation
or regulations developed through presumptively reasoned democratic
processes." Moreover, an injunction will alter, rather than maintain,
the status quo, or will provide the movant with substantially all the relief
sought and that relief cannot be undone even if the defendant prevails at a
trial on the merits. Considering that injunction is an exercise of equitable
relief and authority, in assessing whether to issue a preliminary
injunction, the courts must sensitively assess all the equities of the
situation, including the public interest. In litigations between governmental
and private parties, courts go much further both to give and withhold relief
in furtherance of public interest than they are accustomed to go when only
private interests are involved. Before the plaintiff may be entitled to
injunction. against future enforcement, he is burdened to show some
substantial hardship.217 (Citations omitted and italics in the original)
Incidentally, there is nothing in the Constitution, nor in any law which
supports petitioners' theory. Such purported human right violations cannot
be utilized as ground either to enjoin the President from exercising the
power to declare martial law, or the Congress in extending the same. To
sanction petitioners' plea would result into judicial activism, thereby going
against the principle of separation of powers.
As discussed above, petitioners are not left without any recourse. Such
trangressions can be addressed in a separate and independent court
action.218 Recall that the imposition of martial law does not result in
suspending the operation of the Constitution, nor supplant the functioning of
the civil courts nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function. Hence,
petitioners can lodge a complaint-affidavit before the prosecutor's office or
file a direct complaint before the appropriate courts against erring parties.
200
 A Final Word

The imperative necessity of .Martial Law as a tool of the government for

self-preservation is enshrined in the 1935, 1973 and 1987 Constitutions. It
earned a bad reputation during the Marcos era and apprehensions still linger
in the minds of doubtful and suspicious individuals. Mindful of its importance
and necessity, the Constitution has provided for safeguards against its
abuses.

Martial law is a constitutional weapon against enemies of the State. Thus,

Martial law is not designed to oppress or abuse law abiding citizens of this
country.

Unfortunately, the enemies of the State have employed devious, cunning

and calculating means to destabilize the government. They are engaged in
an unconventional, clandestine and protracted war to topple the
government. The enemies of the State are not always quantifiable, not
always identifiable and not visible at all times. They have mingled with
ordinary citizens in the community and have unwittingly utilized them in the
recruitement, surveillance and attack against government forces. Inevitably,
government forces have arrested, injured and even killed these ordinary
citizens complicit with the enemies.

Admittedly, innocent civilians have also been victimized in the cross fire as
unintended casualties of this continuing war.

These incidents, however, should not weaken our resolve to defeat the
enemies of the State. In these exigencies, We cannot afford to emasculate,
dilute or diminish the powers of government if in the end it would lead to the
destruction of the State and place the safety of our citizens in peril and their
interest in harm's way.

WHEREFORE, the Court FINDS sufficient factual bases for the issuance of

Resolution of Both Houses No. 4 and DECLARES it as CONSTITUTIONAL.
Accordingly, the consolidated Petitions are hereby DISMISSED.

SO ORDERED.

201