EXECUTIVE
government official exercising judicial, quasi-judicial or
EN BANC
G.R. No. 157013            July 10, 2003
ATTY. ROMULO B. MACALINTAL, petitioner,
vs.
COMMISSION ON ELECTIONS, HON. ALBERTO
ROMULO, in his official capacity as Executive
Secretary, and HON. EMILIA T. BONCODIN, Secretary
of the Department of Budget and
Management, respondents.
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari and prohibition
filed by Romulo B. Macalintal, a member of the Philippine
Bar, seeking a declaration that certain provisions of
Republic Act No. 9189 (The Overseas Absentee Voting Act
of 2003)1 suffer from constitutional infirmity. Claiming that
he has actual and material legal interest in the subject
matter of this case in seeing to it that public funds are
properly and lawfully used and appropriated, petitioner filed
the instant petition as a taxpayer and as a lawyer.
The Court upholds the right of petitioner to file the present
petition.
R.A. No. 9189, entitled, "An Act Providing for A System of
Overseas Absentee Voting by Qualified Citizens of the
Philippines Abroad, Appropriating Funds Therefor, and for
Other Purposes," appropriates funds under Section 29
thereof which provides that a supplemental budget on the
General Appropriations Act of the year of its enactment into
law shall provide for the necessary amount to carry out its
provisions. Taxpayers, such as herein petitioner, have the
right to restrain officials from wasting public funds through
the enforcement of an unconstitutional statute. 2 The Court
has held that they may assail the validity of a law
appropriating public funds3 because expenditure of public
funds by an officer of the State for the purpose of executing
an unconstitutional act constitutes a misapplication of such
funds.4
The challenged provision of law involves a public right that
affects a great number of citizens. The Court has adopted
the policy of taking jurisdiction over cases whenever the
petitioner has seriously and convincingly presented an issue
of transcendental significance to the Filipino people. This
has been explicitly pronounced in Kapatiran ng mga
Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs.
Tan,5 where the Court held:
Objections to taxpayers’ suit for lack of sufficient
personality standing, or interest are, however, in
the main procedural matters. Considering the
importance to the public of the cases at bar, and in
keeping with the Court’s duty, under the 1987
Constitution, to determine whether or not the
other branches of government have kept
themselves within the limits of the Constitution
and the laws and that they have not abused the
discretion given to them, the Court has brushed
aside technicalities of procedure and has taken
cognizance of these petitions.6
Indeed, in this case, the Court may set aside procedural
rules as the constitutional right of suffrage of a considerable
number of Filipinos is involved.
The question of propriety of the instant petition which may
appear to be visited by the vice of prematurity as there are
1 | Executive
no ongoing proceedings in any tribunal, board or before a
ministerial functions as required by Rule 65 of the Rules of
Court, dims in light of the importance of the constitutional
issues raised by the petitioner. In Tañada vs. Angara,7 the
Court held:
In seeking to nullify an act of the Philippine Senate
on the ground that it contravenes the Constitution,
the petition no doubt raises a justiciable
controversy. 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. The duty (to adjudicate) remains to
assure that the supremacy of the Constitution is
upheld." Once a "controversy as to the application
or interpretation of constitutional provision is
raised before this Court (as in the instant case), it
becomes a legal issue which the Court is bound by
constitutional mandate to decide."
In another case of paramount impact to the Filipino people,
it has been expressed that it is illogical to await the adverse
consequences of the law in order to consider the
controversy actual and ripe for judicial resolution.8 In yet
another case, the Court said that:
. . . despite the inhibitions pressing upon the Court
when confronted with constitutional issues, it will
not hesitate to declare a law or act invalid when it
is convinced that this must be done. In arriving at
this conclusion, its only criterion will be the
Constitution and God as its conscience gives it in
the light to probe its meaning and discover its
purpose. Personal motives and political
considerations are irrelevancies that cannot
influence its decisions. Blandishment is as
ineffectual as intimidation, for all the awesome
power of the Congress and Executive, the Court
will not hesitate "to make the hammer fall
heavily," where the acts of these departments, or
of any official, betray the people’s will as
expressed in the Constitution . . .9
The need to consider the constitutional issues raised before
the Court is further buttressed by the fact that it is now
more than fifteen years since the ratification of the 1987
Constitution requiring Congress to provide a system for
absentee voting by qualified Filipinos abroad. Thus, strong
reasons of public policy demand that the Court resolves the
instant petition10 and determine whether Congress has
acted within the limits of the Constitution or if it had
gravely abused the discretion entrusted to it.11
The petitioner raises three principal questions:
A. Does Section 5(d) of Rep. Act No. 9189 allowing
the registration of voters who are immigrants or
permanent residents in other countries by their
mere act of executing an affidavit expressing their
intention to return to the Philippines, violate the
residency requirement in Section 1 of Article V of
the Constitution?
B. Does Section 18.5 of the same law empowering
the COMELEC to proclaim the winning candidates
for national offices and party list representatives
including the President and the Vice-President
violate the constitutional mandate under Section 4,
Article VII of the Constitution that the winning
candidates for President and the Vice-President
shall be proclaimed as winners by Congress?
 C. May Congress, through the Joint Congressional
Oversight Committee created in Section 25 of Rep.
Act No. 9189, exercise the power to review, revise,
amend, and approve the Implementing Rules and
Regulations that the Commission on Elections shall
promulgate without violating the independence of
the COMELEC under Section 1, Article IX-A of the
Constitution?
The Court will resolve the questions in seriatim.
A. Does Section 5(d) of Rep. Act No. 9189 violate
Section 1, Article V of the 1987 Constitution of the
Republic of the Philippines?
Section 5(d) provides:
Sec. 5. Disqualifications. – The following shall be
disqualified from voting under this Act:
.........
d) An immigrant or a permanent resident who is
recognized as such in the host country, unless
he/she executes, upon registration, an affidavit
prepared for the purpose by the Commission
declaring that he/she shall resume actual physical
permanent residence in the Philippines not later
than three (3) years from approval of his/her
registration under this Act. Such affidavit shall also
state that he/she has not applied for citizenship in
another country. Failure to return shall be cause
for the removal of the name of the immigrant or
permanent resident from the National Registry of
Absentee Voters and his/her permanent
disqualification to vote in absentia.
Petitioner posits that Section 5(d) is unconstitutional
because it violates Section 1, Article V of the 1987
Constitution which requires that the voter must be a
resident in the Philippines for at least one year and in the
place where he proposes to vote for at least six months
immediately preceding an election. Petitioner cites the
ruling of the Court in Caasi vs. Court of Appeals12 to support
his claim. In that case, the Court held that a "green card"
holder immigrant to the United States is deemed to have
abandoned his domicile and residence in the Philippines.
Petitioner further argues that Section 1, Article V of the
Constitution does not allow provisional registration or a
promise by a voter to perform a condition to be qualified to
vote in a political exercise;13 that the legislature should not
be allowed to circumvent the requirement of the
Constitution on the right of suffrage by providing a
condition thereon which in effect amends or alters the
aforesaid residence requirement to qualify a Filipino abroad
to vote.14 He claims that the right of suffrage should not be
granted to anyone who, on the date of the election, does
not possess the qualifications provided for by Section 1,
Article V of the Constitution.
Respondent COMELEC refrained from commenting on this
issue.15
In compliance with the Resolution of the Court, the Solicitor
General filed his comment for all public respondents. He
contraposes that the constitutional challenge to Section
5(d) must fail because of the absence of clear and
unmistakable showing that said provision of law is
repugnant to the Constitution. He stresses: All laws are
presumed to be constitutional; by the doctrine of separation
of powers, a department of government owes a becoming
respect for the acts of the other two departments; all laws
2 | Executive
are presumed to have adhered to constitutional limitations;
the legislature intended to enact a valid, sensible, and just
law.
In addition, the Solicitor General points out that Section 1,
Article V of the Constitution is a verbatim reproduction of
those provided for in the 1935 and the 1973 Constitutions.
Thus, he cites Co vs. Electoral Tribunal of the House of
Representatives16 wherein the Court held that the term
"residence" has been understood to be synonymous with
"domicile" under both Constitutions. He further argues that
a person can have only one "domicile" but he can have two
residences, one permanent (the domicile) and the other
temporary;17 and that the definition and meaning given to
the term residence likewise applies to absentee voters.
Invoking Romualdez-Marcos vs. COMELEC18 which reiterates
the Court’s ruling in Faypon vs. Quirino,19 the Solicitor
General maintains that Filipinos who are immigrants or
permanent residents abroad may have in fact never
abandoned their Philippine domicile.20
Taking issue with the petitioner’s contention that "green
card" holders are considered to have abandoned their
Philippine domicile, the Solicitor General suggests that the
Court may have to discard its ruling in Caasi vs. Court of
Appeals21 in so far as it relates to immigrants and
permanent residents in foreign countries who have
executed and submitted their affidavits conformably with
Section 5(d) of R.A. No. 9189. He maintains that through
the execution of the requisite affidavits, the Congress of the
Philippines with the concurrence of the President of the
Republic had in fact given these immigrants and permanent
residents the opportunity, pursuant to Section 2, Article V
of the Constitution, to manifest that they had in fact never
abandoned their Philippine domicile; that indubitably, they
would have formally and categorically expressed the
requisite intentions, i.e., "animus manendi" and "animus
revertendi;" that Filipino immigrants and permanent
residents abroad possess the unquestionable right to
exercise the right of suffrage under Section 1, Article V of
the Constitution upon approval of their registration,
conformably with R.A. No. 9189.22
The seed of the present controversy is the interpretation
that is given to the phrase, "qualified citizens of the
Philippines abroad" as it appears in R.A. No. 9189, to wit:
SEC. 2. Declaration of Policy. – It is the prime duty of the
State to provide a system of honest and orderly overseas
absentee voting that upholds the secrecy and sanctity of
the ballot. Towards this end, the State ensures equal
opportunity to all qualified citizens of the Philippines
abroad in the exercise of this fundamental right.
SEC. 3. Definition of Terms. – For purposes of this
Act:
a) "Absentee Voting" refers to the process
by which qualified citizens of the
Philippines abroad, exercise their right
to vote;
. . . (Emphasis supplied)
f) "Overseas Absentee Voter" refers to a
citizen of the Philippines who is
qualified to register and vote under
this Act, not otherwise disqualified by law,
who is abroad on the day of elections.
(Emphasis supplied)
SEC. 4. Coverage. – All citizens of the
Philippines abroad, who are not otherwise
 disqualified by law, at least eighteen (18) years
of age on the day of elections, may vote for
president, vice-president, senators and party-list
representatives. (Emphasis supplied)
in relation to Sections 1 and 2, Article V of the Constitution
which read:
SEC. 1. Suffrage may be exercised by all citizens
of the Philippines not otherwise disqualified by law,
who are at least eighteen years of age, and who
shall have resided in the Philippines for at least
one year and in the place wherein they propose to
vote for at least six months immediately preceding
the election. No literacy, property, or other
substantive requirement shall be imposed on the
exercise of suffrage.
SEC. 2. The Congress shall provide a system for
securing the secrecy and sanctity of the ballot as
well as a system for absentee voting by
qualified Filipinos abroad.
. . . . . . . . . (Emphasis supplied)
Section 1, Article V of the Constitution specifically provides
that suffrage may be exercised by (1) all citizens of the
Philippines, (2) not otherwise disqualified by law, (3) at
least eighteen years of age, (4) who are residents in the
Philippines for at least one year and in the place where they
propose to vote for at least six months immediately
preceding the election. Under Section 5(d) of R.A. No.
9189, one of those disqualified from voting is an immigrant
or permanent resident who is recognized as such in the host
country unless he/she executes an affidavit declaring that
he/she shall resume actual physical permanent residence in
the Philippines not later than three years from approval of
his/her registration under said Act.
Petitioner questions the rightness of the mere act of
execution of an affidavit to qualify the Filipinos abroad who
are immigrants or permanent residents, to vote. He focuses
solely on Section 1, Article V of the Constitution in ascribing
constitutional infirmity to Section 5(d) of R.A. No. 9189,
totally ignoring the provisions of Section 2 empowering
Congress to provide a system for absentee voting by
qualified Filipinos abroad.
A simple, cursory reading of Section 5(d) of R.A. No. 9189
may indeed give the impression that it contravenes Section
1, Article V of the Constitution. Filipino immigrants and
permanent residents overseas are perceived as having left
and abandoned the Philippines to live permanently in their
host countries and therefore, a provision in the law
enfranchising those who do not possess the residency
requirement of the Constitution by the mere act of
executing an affidavit expressing their intent to return to
the Philippines within a given period, risks a declaration of
unconstitutionality. However, the risk is more apparent than
real.
The Constitution is the fundamental and paramount law of
the nation to which all other laws must conform and in
accordance with which all private rights must be determined
and all public authority administered. 23 Laws that do not
conform to the Constitution shall be stricken down for being
unconstitutional.
Generally, however, all laws are presumed to be
constitutional. In Peralta vs. COMELEC, the Court said:
. . . An act of the legislature, approved by the
executive, is presumed to be within constitutional
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limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on
the legislature as well. The question of the validity
of every statute is first determined by the
legislative department of the government itself. 24
Thus, presumption of constitutionality of a law must be
overcome convincingly:
. . . To declare a law unconstitutional, the
repugnancy of that law to the Constitution must be
clear and unequivocal, for even if a law is aimed at
the attainment of some public good, no
infringement of constitutional rights is allowed. To
strike down a law there must be a clear showing
that what the fundamental law condemns or
prohibits, the statute allows it to be done.25
As the essence of R.A. No. 9189 is to enfranchise overseas
qualified Filipinos, it behooves the Court to take a holistic
view of the pertinent provisions of both the Constitution and
R.A. No. 9189. It is a basic rule in constitutional
construction that the Constitution should be construed as a
whole. In Chiongbian vs. De Leon,26 the Court held that a
constitutional provision should function to the full extent of
its substance and its terms, not by itself alone, but in
conjunction with all other provisions of that great
document. Constitutional provisions are mandatory in
character unless, either by express statement or by
necessary implication, a different intention is
manifest.27 The intent of the Constitution may be drawn
primarily from the language of the document itself. Should
it be ambiguous, the Court may consider the intent of its
framers through their debates in the constitutional
convention.28
R.A. No. 9189 was enacted in obeisance to the mandate of
the first paragraph of Section 2, Article V of the Constitution
that Congress shall provide a system for voting by qualified
Filipinos abroad. It must be stressed that Section 2 does
not provide for the parameters of the exercise of legislative
authority in enacting said law. Hence, in the absence of
restrictions, Congress is presumed to have duly exercised
its function as defined in Article VI (The Legislative
Department) of the Constitution.
To put matters in their right perspective, it is necessary to
dwell first on the significance of absentee voting. The
concept of absentee voting is relatively new. It is viewed
thus:
The method of absentee voting has been said to be
completely separable and distinct from the regular
system of voting, and to be a new and different
manner of voting from that previously known, and
an exception to the customary and usual manner
of voting. The right of absentee and disabled
voters to cast their ballots at an election is purely
statutory; absentee voting was unknown to, and
not recognized at, the common law.
Absentee voting is an outgrowth of modern social
and economic conditions devised to accommodate
those engaged in military or civil life whose duties
make it impracticable for them to attend their
polling places on the day of election, and the
privilege of absentee voting may flow from
constitutional provisions or be conferred by
statutes, existing in some jurisdictions, which
provide in varying terms for the casting and
reception of ballots by soldiers and sailors or other
qualified voters absent on election day from the
district or precinct of their residence.
 Such statutes are regarded as conferring a which, when absent, one has the intention
privilege and not a right, or an absolute of returning. A man may have a residence
right. When the legislature chooses to grant in one place and a domicile in
the right by statute, it must operate with another. Residence is not domicile, but
equality among all the class to which it is domicile is residence coupled with the
granted; but statutes of this nature may be intention to remain for an unlimited time.
limited in their application to particular types A man can have but one domicile for the
of elections. The statutes should be same purpose at any time, but he may
construed in the light of any constitutional have numerous places of residence. His
provisions affecting registration and place of residence is generally his place of
elections, and with due regard to their texts prior domicile, but it is not by any means
to amendment and to predecessor statutes and the necessarily so since no length of residence
decisions thereunder; they should also be without intention of remaining will
construed in the light of the circumstances constitute domicile."
under which they were enacted; and so as to
carry out the objects thereof, if this can be done
For political purposes the concepts of residence
without doing violence to their provisions and
and domicile are dictated by the peculiar criteria of
mandates. Further, in passing on statutes
political laws. As these concepts have evolved in
regulating absentee voting, the court should
our election law, what has clearly and
look to the whole and every part of the
unequivocally emerged is the fact that
election laws, the intent of the entire plan,
residence for election purposes is used
and reasons and spirit of their adoption, and
synonymously with domicile.32 (Emphasis
try to give effect to every portion
supplied)
thereof.29 (Emphasis supplied)

Aware of the domiciliary legal tie that links an overseas

Ordinarily, an absentee is not a resident and vice versa; a
Filipino to his residence in this country, the framers of the
person cannot be at the same time, both a resident and an
Constitution considered the circumstances that impelled
absentee.30 However, under our election laws and the
them to require Congress to establish a system for overseas
countless pronouncements of the Court pertaining to
absentee voting, thus:
elections, an absentee remains attached to his residence in
the Philippines as residence is considered synonymous
with domicile. MR. OPLE. With respect to Section 1, it is not clear
whether the right of suffrage, which here has a
residential restriction, is not denied to citizens
In Romualdez-Marcos,31 the Court enunciated:
temporarily residing or working abroad. Based on
the statistics of several government agencies,
Article 50 of the Civil Code decrees that "[f]or the there ought to be about two million such Filipinos
exercise of civil rights and the fulfillment of civil at this time. Commissioner Bernas had earlier
obligations, the domicile of natural persons is their pointed out that these provisions are really lifted
place of habitual residence." In Ong vs. Republic, from the two previous Constitutions of 1935 and
this court took the concept of domicile to mean an 1973, with the exception of the last paragraph.
individual’s "permanent home," "a place to which, They could not therefore have foreseen at that
whenever absent for business or for pleasure, one time the phenomenon now described as the
intends to return, and depends on facts and Filipino labor force explosion overseas.
circumstances in the sense that they disclose
intent." Based on the foregoing, domicile includes
According to government data, there are now
the twin elements of "the fact of residing or
about 600,000 contract workers and employees,
physical presence in a fixed place" and animus
and although the major portions of these
manendi, or the intention of returning there
expatriate communities of workers are to be found
permanently.
in the Middle East, they are scattered in 177
countries in the world.
Residence, in its ordinary conception, implies the
factual relationship of an individual to a certain
In a previous hearing of the Committee on
place. It is the physical presence of a person in a
Constitutional Commissions and Agencies, the
given area, community or country. The essential
Chairman of the Commission on Elections, Ramon
distinction between residence and domicile in law
Felipe, said that there was no insuperable obstacle
is that residence involves the intent to leave when
to making effective the right of suffrage for
the purpose for which the resident has taken up
Filipinos overseas. Those who have adhered to
his abode ends. One may seek a place for
their Filipino citizenship notwithstanding strong
purposes such as pleasure, business, or health. If
temptations are exposed to embrace a more
a person’s intent be to remain, it becomes his
convenient foreign citizenship. And those who on
domicile; if his intent is to leave as soon as his
their own or under pressure of economic necessity
purpose is established it is residence. It is thus,
here, find that they have to detach themselves
quite perfectly normal for an individual to have
from their families to work in other countries with
different residences in various places. However, a
definite tenures of employment. Many of them are
person can only have a single domicile, unless, for
on contract employment for one, two, or three
various reasons, he successfully abandons his
years. They have no intention of changing their
domicile in favor of another domicile of choice.
residence on a permanent basis, but are
In Uytengsu vs. Republic, we laid this distinction
technically disqualified from exercising the right of
quite clearly:
suffrage in their countries of destination by the
residential requirement in Section 1 which says:
"There is a difference between domicile
and residence. ‘Residence’ is used to
Suffrage shall be exercised by all citizens
indicate a place of abode, whether
of the Philippines not otherwise
permanent or temporary; ‘domicile’
disqualified by law, who are eighteen
denotes a fixed permanent residence to
years of age or over, and who shall have
4 | Executive
 resided in the Philippines for at least one
year and in the place wherein they
propose to vote for at least six months
preceding the election.
I, therefore, ask the Committee whether at the
proper time they might entertain an amendment
that will make this exercise of the right to vote
abroad for Filipino citizens an effective, rather than
merely a nominal right under this proposed
Constitution.
FR. BERNAS. Certainly, the Committee will
consider that. But more than just saying that, I
would like to make a comment on the meaning of
"residence" in the Constitution because I think it is
a concept that has been discussed in various
decisions of the Supreme Court, particularly in the
case of Faypon vs. Quirino, a 1954 case which
dealt precisely with the meaning of "residence" in
the Election Law. Allow me to quote:
A citizen may leave the place of his birth
to look for greener pastures, as the
saying goes, to improve his lot and that,
of course, includes study in other places,
practice of his avocation, reengaging in
business. When an election is to be held,
the citizen who left his birthplace to
improve his lot may decide to return to
his native town, to cast his ballot, but for
professional or business reasons, or for
any other reason, he may not absent
himself from the place of his professional
or business activities.
So, they are here registered as voters as
he has the qualifications to be one, and is
not willing to give up or lose the
opportunity to choose the officials who are
to run the government especially in
national elections. Despite such
registration, the animus revertendi to his
home, to his domicile or residence of
origin has not forsaken him.
This may be the explanation why the registration of a voter
in a place other than his residence of origin has not been
deemed sufficient to consider abandonment or loss of such
residence of origin.
In other words, "residence" in this provision refers
to two residence qualifications: "residence" in the
Philippines and "residence" in the place where he
will vote. As far as residence in the Philippines is
concerned, the word "residence" means domicile,
but as far as residence in the place where he will
actually cast his ballot is concerned, the meaning
seems to be different. He could have a domicile
somewhere else and yet he is a resident of a place
for six months and he is allowed to vote there. So
that there may be serious constitutional obstacles
to absentee voting, unless the vote of the
person who is absent is a vote which will be
considered as cast in the place of his
domicile.
MR. OPLE. Thank you for citing the jurisprudence.
It gives me scant comfort thinking of about two
million Filipinos who should enjoy the right of
suffrage, at least a substantial segment of these
overseas Filipino communities. The Committee, of
course, is aware that when this Article of the
5 | Executive
Constitution explicitly and unequivocally extends
the right of effective suffrage to Filipinos abroad,
this will call for a logistical exercise of global
proportions. In effect, this will require budgetary
and administrative commitments on the part of the
Philippine government, mainly through the
COMELEC and the Ministry of Foreign Affairs, and
perhaps, a more extensive elaboration of this
mechanism that will be put in place to make
effective the right to vote. Therefore, seeking
shelter in some wise jurisprudence of the
past may not be sufficient to meet the
demands of the right of suffrage for Filipinos
abroad that I have mentioned. But I want to
thank the Committee for saying that an
amendment to this effect may be entertained at
the proper time. . . . . . . . . . 33 (Emphasis
supplied)
Thus, the Constitutional Commission recognized the fact
that while millions of Filipinos reside abroad principally for
economic reasons and hence they contribute in no small
measure to the economic uplift of this country, their voices
are marginal insofar as the choice of this country’s leaders
is concerned.
The Constitutional Commission realized that under the laws
then existing and considering the novelty of the system of
absentee voting in this jurisdiction, vesting overseas
Filipinos with the right to vote would spawn constitutional
problems especially because the Constitution itself provides
for the residency requirement of voters:
MR. REGALADO. Before I act on that, may I inquire
from Commissioner Monsod if the term "absentee
voting" also includes transient voting; meaning,
those who are, let us say, studying in Manila need
not go back to their places of registration, for
instance, in Mindanao, to cast their votes.
MR. MONSOD. I think our provision is for absentee
voting by Filipinos abroad.
MR. REGALADO. How about those people who
cannot go back to the places where they are
registered?
MR. MONSOD. Under the present Election Code,
there are provisions for allowing students and
military people who are temporarily in another
place to register and vote. I believe that those
situations can be covered by the Omnibus Election
Code. The reason we want absentee voting to
be in the Constitution as a mandate to the
legislature is that there could be
inconsistency on the residence rule if it is
just a question of legislation by Congress. So,
by allowing it and saying that this is possible,
then legislation can take care of the
rest.34 (Emphasis supplied)
Thus, Section 2, Article V of the Constitution came into
being to remove any doubt as to the inapplicability of the
residency requirement in Section 1. It is precisely to avoid
any problems that could impede the implementation of its
pursuit to enfranchise the largest number of qualified
Filipinos who are not in the Philippines that the
Constitutional Commission explicitly mandated Congress to
provide a system for overseas absentee voting.
The discussion of the Constitutional Commission on the
effect of the residency requirement prescribed by Section 1,
Article V of the Constitution on the proposed system of
absentee voting for qualified Filipinos abroad is
enlightening:
MR. SUAREZ. May I just be recognized for a
clarification. There are certain qualifications for the
exercise of the right of suffrage like having resided
in the Philippines for at least one year and in the
place where they propose to vote for at least six
months preceding the elections. What is the effect
of these mandatory requirements on the matter of
the exercise of the right of suffrage by the
absentee voters like Filipinos abroad?
THE PRESIDENT. Would Commissioner Monsod
care to answer?
MR. MONSOD. I believe the answer was already
given by Commissioner Bernas, that the domicile
requirements as well as the qualifications and
disqualifications would be the same.
THE PRESIDENT. Are we leaving it to the
legislature to devise the system?
FR. BERNAS. I think there is a very legitimate
problem raised there.
THE PRESIDENT. Yes.
MR. BENGZON. I believe Commissioner Suarez is
clarified.
FR. BERNAS. But I think it should be further
clarified with regard to the residence requirement
or the place where they vote in practice; the
understanding is that it is flexible. For instance,
one might be a resident of Naga or domiciled
therein, but he satisfies the requirement of
residence in Manila, so he is able to vote in Manila.
MR. TINGSON. Madam President, may I then
suggest to the Committee to change the word
"Filipinos" to QUALIFIED FILIPINO VOTERS.
Instead of "VOTING BY FILIPINOS ABROAD," it
should be QUALIFIED FILIPINO VOTERS. If the
Committee wants QUALIFIED VOTERS LIVING
ABROAD, would that not satisfy the requirement?
THE PRESIDENT. What does Commissioner Monsod
say?
MR. MONSOD. Madam President, I think I would
accept the phrase "QUALIFIED FILIPINOS
ABROAD" because "QUALIFIED" would assume that
he has the qualifications and none of the
disqualifications to vote.
MR. TINGSON. That is right. So does the
Committee accept?
FR. BERNAS. "QUALIFIED FILIPINOS ABROAD"?
THE PRESIDENT. Does the Committee accept the
amendment?
MR. REGALADO. Madam President.
THE PRESIDENT. Commissioner Regalado is
recognized.
6 | Executive
MR. REGALADO. When Commissioner Bengzon
asked me to read my proposed amendment, I
specifically stated that the National Assembly shall
prescribe a system which will enable qualified
citizens, temporarily absent from the Philippines,
to vote. According to Commissioner Monsod, the
use of the phrase "absentee voting" already took
that into account as its meaning. That is referring
to qualified Filipino citizens temporarily abroad.
MR. MONSOD. Yes, we accepted that. I would like
to say that with respect to registration we will
leave it up to the legislative assembly, for
example, to require where the registration is.
If it is, say, members of the diplomatic corps
who may be continuously abroad for a long
time, perhaps, there can be a system of
registration in the embassies. However, we do
not like to preempt the legislative assembly.
THE PRESIDENT. Just to clarify, Commissioner
Monsod’s amendment is only to provide a system.
MR. MONSOD. Yes.
THE PRESIDENT. The Commissioner is not stating
here that he wants new qualifications for these
absentee voters.
MR. MONSOD. That is right. They must have the
qualifications and none of the disqualifications.
THE PRESIDENT. It is just to devise a system by
which they can vote.
MR. MONSOD. That is right, Madam
President.35 (Emphasis supplied)
Clearly therefrom, the intent of the Constitutional
Commission is to entrust to Congress the responsibility of
devising a system of absentee voting. The qualifications of
voters as stated in Section 1 shall remain except for the
residency requirement. This is in fact the reason why the
Constitutional Commission opted for the term qualified
Filipinos abroad with respect to the system of absentee
voting that Congress should draw up. As stressed by
Commissioner Monsod, by the use of the
adjective qualified with respect to Filipinos abroad, the
assumption is that they have the "qualifications and none of
the disqualifications to vote." In fine-tuning the provision on
absentee voting, the Constitutional Commission discussed
how the system should work:
MR. SUAREZ. For clarification purposes, we just
want to state for the record that in the case of
qualified Filipino citizens residing abroad and
exercising their right of suffrage, they can cast
their votes for the candidates in the place where
they were registered to vote in the Philippines. So
as to avoid any complications, for example, if they
are registered in Angeles City, they could not vote
for a mayor in Naga City.
In other words, if that qualified voter is registered
in Angeles City, then he can vote only for the local
and national candidates in Angeles City. I just want
to make that clear for the record.
MR. REGALADO. Madam President.
THE PRESIDENT. What does Commissioner
Regalado say?
 MR. REGALADO. I just want to make a note on the Commission even intended to extend to young Filipinos who
statement of Commissioner Suarez that this reach voting age abroad whose parents’ domicile of origin is
envisions Filipinos residing abroad. The in the Philippines, and consider them qualified as voters for
understanding in the amendment is that the the first time.
Filipino is temporarily abroad. He may not be
actually residing abroad; he may just be there on
It is in pursuance of that intention that the Commission
a business trip. It just so happens that the day
provided for Section 2 immediately after the residency
before the elections he has to fly to the United
requirement of Section 1. By the doctrine of necessary
States, so he could not cast his vote. He is
implication in statutory construction, which may be applied
temporarily abroad, but not residing there. He
in construing constitutional provisions,37 the strategic
stays in a hotel for two days and comes back. This
location of Section 2 indicates that the Constitutional
is not limited only to Filipinos temporarily
Commission provided for an exception to the actual
residing abroad. But as long as he is
residency requirement of Section 1 with respect to qualified
temporarily abroad on the date of the
Filipinos abroad. The same Commission has in effect
elections, then he can fall within the
declared that qualified Filipinos who are not in the
prescription of Congress in that situation.
Philippines may be allowed to vote even though they do not
satisfy the residency requirement in Section 1, Article V of
MR. SUAREZ. I thank the Commissioner for his the Constitution.
further clarification. Precisely, we need this
clarification on record.
That Section 2 of Article V of the Constitution is an
exception to the residency requirement found in Section 1
MR. MONSOD. Madam President, to clarify what of the same Article was in fact the subject of debate when
we mean by "temporarily abroad," it need not Senate Bill No. 2104, which became R.A. No. 9189, was
be on very short trips. One can be abroad on a deliberated upon on the Senate floor, thus:
treaty traders visa. Therefore, when we talk about
registration, it is possible that his residence is in
Senator Arroyo. Mr. President, this bill should be
Angeles and he would be able to vote for the
looked into in relation to the constitutional
candidates in Angeles, but Congress or the
provisions. I think the sponsor and I would agree
Assembly may provide the procedure for
that the Constitution is supreme in any statute that
registration, like listing one’s name, in a
we may enact.
registry list in the embassy abroad. That is still
possible under the system.
Let me read Section 1, Article V, of the
Constitution entitled, "Suffrage." It says:
FR. BERNAS. Madam President, just one
clarification if Commissioner Monsod agrees with
this. Section 1. Suffrage may be exercised by
all citizens of the Philippines not otherwise
disqualified by law, who are at least
Suppose we have a situation of a child of a
eighteen years of age, and who shall have
diplomatic officer who reaches the voting age while
resided in the Philippines for at least one
living abroad and he has never registered here.
year and in the place wherein they
Where will he register? Will he be a registered
propose to vote for at least six months
voter of a certain locality in the Philippines?
immediately preceding the election.

MR. MONSOD. Yes, it is possible that the system

will enable that child to comply with the
registration requirements in an embassy in the
United States and his name is then entered in the
official registration book in Angeles City, for
instance.
FR. BERNAS. In other words, he is not a registered
voter of Los Angeles, but a registered voter of a
locality here.
MR. MONSOD. That is right. He does not have to
come home to the Philippines to comply with the
registration procedure here.
Now, Mr. President, the Constitution says, "who
shall have resided in the Philippines." They are
permanent immigrants. They have changed
residence so they are barred under the
Constitution. This is why I asked whether this
committee amendment which in fact does not alter
the original text of the bill will have any effect on
this?
Senator Angara. Good question, Mr. President.
And this has been asked in various fora. This is in
compliance with the Constitution. One, the
interpretation here of "residence" is synonymous
with "domicile."

FR. BERNAS. So, he does not have to come home. As the gentleman and I know, Mr. President,
"domicile" is the intent to return to one’s
home. And the fact that a Filipino may have
MR. BENGZON. Madam President, the Floor Leader
been physically absent from the Philippines
wishes to inquire if there are more clarifications
and may be physically a resident of the
needed from the body.
United States, for example, but has a clear
intent to return to the Philippines, will make
Also, the Floor Leader is happy to announce that him qualified as a resident of the Philippines
there are no more registered Commissioners to under this law.
propose amendments. So I move that we close the
period of amendments.36 (Emphasis supplied)
This is consistent, Mr. President, with the
constitutional mandate that we – that Congress –
It is clear from these discussions of the members of the must provide a franchise to overseas Filipinos.
Constitutional Commission that they intended to
enfranchise as much as possible all Filipino citizens abroad
who have not abandoned their domicile of origin. The
7 | Executive
 If we read the Constitution and the suffrage
principle literally as demanding physical
presence, then there is no way we can
provide for offshore voting to our
offshore kababayan, Mr. President.
physically live in the country, which is quite
ridiculous because that is exactly the whole
point of this exercise – to enfranchise them
and empower them to vote.38 (Emphasis
supplied)

Senator Arroyo. Mr. President, when the
Constitution says, in Section 2 of Article V, it
reads: "The Congress shall provide a system for
securing the secrecy and sanctity of the ballot as
well as a system for absentee voting by qualified
Filipinos abroad."
The key to this whole exercise, Mr. President,
is "qualified." In other words, anything that
we may do or say in granting our compatriots
abroad must be anchored on the proposition
that they are qualified. Absent the
qualification, they cannot vote. And
"residents" (sic) is a qualification.
I will lose votes here from permanent residents so-
called "green-card holders", but the Constitution is
the Constitution. We cannot compromise on this.
The Senate cannot be a party to something that
would affect or impair the Constitution.
Look at what the Constitution says – "In the place
wherein they propose to vote for at least six
months immediately preceding the election."
Mr. President, all of us here have run (sic) for
office.
I live in Makati. My neighbor is Pateros where
Senator Cayetano lives. We are separated only by
a creek. But one who votes in Makati cannot vote
in Pateros unless he resides in Pateros for six
months. That is how restrictive our Constitution is.
I am not talking even about the Election Code. I
am talking about the Constitution.
As I have said, if a voter in Makati would want to
vote in Pateros, yes, he may do so. But he must do
so, make the transfer six months before the
election, otherwise, he is not qualified to vote.
Accordingly, Section 4 of R.A. No. 9189 provides for the
coverage of the absentee voting process, to wit:
SEC. 4. Coverage. – All citizens of the Philippines
abroad, who are not otherwise disqualified by law,
at least eighteen (18) years of age on the day of
elections, may vote for president, vice-president,
senators and party-list representatives.
which does not require physical residency in the Philippines;
and Section 5 of the assailed law which enumerates those
who are disqualified, to wit:
SEC. 5. Disqualifications. – The following shall be
disqualified from voting under this Act:
a) Those who have lost their Filipino citizenship in
accordance with Philippine laws;
b) Those who have expressly renounced their
Philippine citizenship and who have pledged
allegiance to a foreign country;
c) Those who have committed and are convicted in
a final judgment by a court or tribunal of an
offense punishable by imprisonment of not less
than one (1) year, including those who have
committed and been found guilty of Disloyalty as
defined under Article 137 of the Revised Penal
Code, such disability not having been removed by
plenary pardon or amnesty: Provided, however,
That any person disqualified to vote under this
subsection shall automatically acquire the right to
vote upon expiration of five (5) years after service
of sentence; Provided, further, That the
Commission may take cognizance of final
judgments issued by foreign courts or tribunals
only on the basis of reciprocity and subject to the
formalities and processes prescribed by the Rules
of Court on execution of judgments;

That is why I am raising this point because I think d) An immigrant or a permanent resident who is
we have a fundamental difference here. recognized as such in the host country, unless
he/she executes, upon registration, an affidavit
prepared for the purpose by the Commission
Senator Angara. It is a good point to raise, Mr.
declaring that he/she shall resume actual physical
President. But it is a point already well-debated
permanent residence in the Philippines not later
even in the constitutional commission of
than three (3) years from approval of his/her
1986. And the reason Section 2 of Article V
registration under this Act. Such affidavit shall also
was placed immediately after the six-
state that he/she has not applied for citizenship in
month/one-year residency requirement is to
another country. Failure to return shall be cause
demonstrate unmistakably that Section 2
for the removal of the name of the immigrant or
which authorizes absentee voting is an
permanent resident from the National Registry of
exception to the six-month/one-year
Absentee Voters and his/her permanent
residency requirement. That is the first
disqualification to vote in absentia.
principle, Mr. President, that one must remember.

e) Any citizen of the Philippines abroad previously

The second reason, Mr. President, is that under our
declared insane or incompetent by competent
jurisprudence – and I think this is so well-
authority in the Philippines or abroad, as verified
entrenched that one need not argue about it –
by the Philippine embassies, consulates or foreign
"residency" has been interpreted as synonymous
service establishments concerned, unless such
with "domicile."
competent authority subsequently certifies that
such person is no longer insane or incompetent.
But the third more practical reason, Mr.
President, is, if we follow the interpretation
As finally approved into law, Section 5(d) of R.A. No. 9189
of the gentleman, then it is legally and
specifically disqualifies an immigrant or permanent
constitutionally impossible to give a franchise
resident who is "recognized as such in the host country"
to vote to overseas Filipinos who do not
8 | Executive
because immigration or permanent residence in another
country implies renunciation of one’s residence in his
country of origin. However, same Section allows an
immigrant and permanent resident abroad to register as
voter for as long as he/she executes an affidavit to show
that he/she has not abandoned his domicile in pursuance of
the constitutional intent expressed in Sections 1 and 2 of
Article V that "all citizens of the Philippines not otherwise
disqualified by law" must be entitled to exercise the right of
suffrage and, that Congress must establish a system for
absentee voting; for otherwise, if actual, physical residence
in the Philippines is required, there is no sense for the
framers of the Constitution to mandate Congress to
establish a system for absentee voting.
Contrary to the claim of petitioner, the execution of the
affidavit itself is not the enabling or enfranchising act. The
affidavit required in Section 5(d) is not only proof of the
intention of the immigrant or permanent resident to go
back and resume residency in the Philippines, but more
significantly, it serves as an explicit expression that he had
not in fact abandoned his domicile of origin. Thus, it is not
correct to say that the execution of the affidavit under
Section 5(d) violates the Constitution that proscribes
"provisional registration or a promise by a voter to perform
a condition to be qualified to vote in a political exercise."
To repeat, the affidavit is required of immigrants and
permanent residents abroad because by their status in their
host countries, they are presumed to have relinquished
their intent to return to this country; thus, without the
affidavit, the presumption of abandonment of Philippine
domicile shall remain.
Further perusal of the transcripts of the Senate proceedings
discloses another reason why the Senate required the
execution of said affidavit. It wanted the affiant to exercise
the option to return or to express his intention to return to
his domicile of origin and not to preempt that choice by
legislation. Thus:
Senator Villar. Yes, we are going back.
It states that: "For Filipino immigrants and those
who have acquired permanent resident status
abroad," a requirement for the registration is the
submission of "a Sworn Declaration of Intent to
Return duly sworn before any Philippine embassy
or consulate official authorized to administer
oath…"
Mr. President, may we know the rationale of this
provision? Is the purpose of this Sworn Declaration
to include only those who have the intention of
returning to be qualified to exercise the right of
suffrage? What if the Filipino immigrant has no
purpose of returning? Is he automatically disbarred
from exercising this right to suffrage?
Senator Angara. The rationale for this, Mr.
President, is that we want to be expansive
and all-inclusive in this law. That as long as
he is a Filipino, no matter whether he is a
green-card holder in the U.S. or not, he will
be authorized to vote. But if he is already a
green-card holder, that means he has
acquired permanent residency in the United
States, then he must indicate an intention to
return. This is what makes for the definition
of "domicile." And to acquire the vote, we
thought that we would require the immigrants and
the green-card holders . . . Mr. President, the
three administration senators are leaving, maybe
we may ask for a vote [Laughter].
9 | Executive
Senator Villar. For a merienda, Mr. President.
Senator Angara. Mr. President, going back to the
business at hand. The rationale for the
requirement that an immigrant or a green-card
holder should file an affidavit that he will go back
to the Philippines is that, if he is already an
immigrant or a green-card holder, that means he
may not return to the country any more and that
contradicts the definition of "domicile" under the
law.
But what we are trying to do here, Mr.
President, is really provide the choice to the
voter. The voter, after consulting his lawyer or
after deliberation within the family, may decide
"No, I think we are risking our permanent status in
the United States if we file an affidavit that we
want to go back." But we want to give him the
opportunity to make that decision. We do not
want to make that decision for
him. 39 (Emphasis supplied)
The jurisprudential declaration in Caasi vs. Court of
Appeals that green card holders are disqualified to run for
any elective office finds no application to the present case
because the Caasi case did not, for obvious reasons,
consider the absentee voting rights of Filipinos who are
immigrants and permanent residents in their host countries.
In the advent of The Overseas Absentee Voting Act of 2003
or R.A. 9189, they may still be considered as a "qualified
citizen of the Philippines abroad" upon fulfillment of the
requirements of registration under the new law for the
purpose of exercising their right of suffrage.
It must be emphasized that Section 5(d) does not only
require an affidavit or a promise to "resume actual physical
permanent residence in the Philippines not later than three
years from approval of his/her registration," the Filipinos
abroad must also declare that they have not applied for
citizenship in another country. Thus, they must return to
the Philippines; otherwise, their failure to return "shall be
cause for the removal" of their names "from the National
Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia."
Thus, Congress crafted a process of registration by which a
Filipino voter permanently residing abroad who is at least
eighteen years old, not otherwise disqualified by law, who
has not relinquished Philippine citizenship and who has not
actually abandoned his/her intentions to return to his/her
domicile of origin, the Philippines, is allowed to register and
vote in the Philippine embassy, consulate or other foreign
service establishments of the place which has jurisdiction
over the country where he/she has indicated his/her
address for purposes of the elections, while providing for
safeguards to a clean election.
Thus, Section 11 of R.A. No. 9189 provides:
SEC. 11. Procedure for Application to Vote in
Absentia. –
11.1. Every qualified citizen of the Philippines
abroad whose application for registration has been
approved, including those previously registered
under Republic Act No. 8189, shall, in every
national election, file with the officer of the
embassy, consulate or other foreign service
establishment authorized by the Commission, a
sworn written application to vote in a form
prescribed by the Commission. The authorized
 officer of such embassy, consulate or other foreign
service establishment shall transmit to the
Commission the said application to vote within five
(5) days from receipt thereof. The application form
shall be accomplished in triplicate and submitted
together with the photocopy of his/her overseas
absentee voter certificate of registration.
11.2. Every application to vote in absentia may be
done personally at, or by mail to, the embassy,
consulate or foreign service establishment, which
has jurisdiction over the country where he/she has
indicated his/her address for purposes of the
elections.
11.3. Consular and diplomatic services rendered in
connection with the overseas absentee voting
processes shall be made available at no cost to the
overseas absentee voter.
Contrary to petitioner’s claim that Section 5(d) circumvents
the Constitution, Congress enacted the law prescribing a
system of overseas absentee voting in compliance with the
constitutional mandate. Such mandate expressly requires
that Congress provide a system of absentee voting that
necessarily presupposes that the "qualified citizen of the
Philippines abroad" is not physically present in the country.
The provisions of Sections 5(d) and 11 are components of
the system of overseas absentee voting established by R.A.
No. 9189. The qualified Filipino abroad who executed the
affidavit is deemed to have retained his domicile in the
Philippines. He is presumed not to have lost his domicile by
his physical absence from this country. His having become
an immigrant or permanent resident of his host country
does not necessarily imply an abandonment of his intention
to return to his domicile of origin, the Philippines.
Therefore, under the law, he must be given the opportunity
to express that he has not actually abandoned his domicile
in the Philippines by executing the affidavit required by
Sections 5(d) and 8(c) of the law.
Petitioner’s speculative apprehension that the
implementation of Section 5(d) would affect the credibility
of the elections is insignificant as what is important is to
ensure that all those who possess the qualifications to vote
on the date of the election are given the opportunity and
permitted to freely do so. The COMELEC and the
Department of Foreign Affairs have enough resources and
talents to ensure the integrity and credibility of any election
conducted pursuant to R.A. No. 9189.
As to the eventuality that the Filipino abroad would renege
on his undertaking to return to the Philippines, the penalty
of perpetual disenfranchisement provided for by Section
5(d) would suffice to serve as deterrence to non-compliance
with his/her undertaking under the affidavit.
Petitioner argues that should a sizable number of
"immigrants" renege on their promise to return, the result
of the elections would be affected and could even be a
ground to contest the proclamation of the winning
candidates and cause further confusion and doubt on the
integrity of the results of the election. Indeed, the
probability that after an immigrant has exercised the right
to vote, he shall opt to remain in his host country beyond
the third year from the execution of the affidavit, is not
farfetched. However, it is not for this Court to determine
the wisdom of a legislative exercise. As expressed
in Tañada vs. Tuvera,40 the Court is not called upon to rule
on the wisdom of the law or to repeal it or modify it if we
find it impractical.
Congress itself was conscious of said probability and in fact,
it has addressed the expected problem. Section 5(d) itself
10 | Executive
provides for a deterrence which is that the Filipino who fails
to return as promised stands to lose his right of suffrage.
Under Section 9, should a registered overseas absentee
voter fail to vote for two consecutive national elections, his
name may be ordered removed from the National Registry
of Overseas Absentee Voters.
Other serious legal questions that may be raised would be:
what happens to the votes cast by the qualified voters
abroad who were not able to return within three years as
promised? What is the effect on the votes cast by the non-
returnees in favor of the winning candidates? The votes cast
by qualified Filipinos abroad who failed to return within
three years shall not be invalidated because they were
qualified to vote on the date of the elections, but their
failure to return shall be cause for the removal of the
names of the immigrants or permanent residents from the
National Registry of Absentee Voters and their permanent
disqualification to vote in absentia.
In fine, considering the underlying intent of the
Constitution, the Court does not find Section 5(d) of R.A.
No. 9189 as constitutionally defective.
B. Is Section 18.5 of R.A. No. 9189 in relation to
Section 4 of the same Act in contravention of Section
4, Article VII of the Constitution?
Section 4 of R.A. No. 9189 provides that the overseas
absentee voter may vote for president, vice-president,
senators and party-list representatives.
Section 18.5 of the same Act provides:
SEC. 18. On-Site Counting and Canvassing. –
.........
18. 5 The canvass of votes shall not cause the
delay of the proclamation of a winning candidate if
the outcome of the election will not be affected by
the results thereof. Notwithstanding the
foregoing, the Commission is empowered to
order the proclamation of winning
candidates despite the fact that the scheduled
election has not taken place in a particular country
or countries, if the holding of elections therein has
been rendered impossible by events, factors and
circumstances peculiar to such country or
countries, in which events, factors and
circumstances are beyond the control or influence
of the Commission. (Emphasis supplied)
Petitioner claims that the provision of Section 18.5 of R.A.
No. 9189 empowering the COMELEC to order the
proclamation of winning candidates insofar as it affects the
canvass of votes and proclamation of winning candidates for
president and vice-president, is unconstitutional because it
violates the following provisions of paragraph 4, Section 4
of Article VII of the Constitution:
SEC. 4 . . .
The returns of every election for President and
Vice-President, duly certified by the board of
canvassers of each province or city, shall be
transmitted to the Congress, directed to the
President of the Senate. Upon receipt of the
certificates of canvass, the President of the Senate
shall, not later than thirty days after the day of the
election, open all the certificates in the presence of
the Senate and the House of Representatives in
joint public session, and the Congress, upon
 determination of the authenticity and due
execution thereof in the manner provided by law,
canvass the votes.
The person having the highest number of votes
shall be proclaimed elected, but in case two or
more shall have an equal and highest number of
votes, one of them shall forthwith be chosen by
the vote of a majority of all the Members of both
Houses of the Congress, voting separately.
The Congress shall promulgate its rules for the
canvassing of the certificates.
...
which gives to Congress the duty to canvass the votes and
proclaim the winning candidates for president and vice-
president.
The Solicitor General asserts that this provision must be
harmonized with paragraph 4, Section 4, Article VII of the
Constitution and should be taken to mean that COMELEC
can only proclaim the winning Senators and party-list
representatives but not the President and Vice-President. 41
Respondent COMELEC has no comment on the matter.
Indeed, the phrase, proclamation of winning candidates, in
Section 18.5 of R.A. No. 9189 is far too sweeping that it
necessarily includes the proclamation of the winning
candidates for the presidency and the vice-presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant to
Section 4, Article VII of the Constitution only insofar as said
Section totally disregarded the authority given to Congress
by the Constitution to proclaim the winning candidates for
the positions of president and vice-president.
In addition, the Court notes that Section 18.4 of the law, to
wit:
18.4. . . . Immediately upon the completion of the
canvass, the chairman of the Special Board of
Canvassers shall transmit via facsimile, electronic
mail, or any other means of transmission equally
safe and reliable the Certificates of Canvass and
the Statements of Votes to the Commission, . . .
[Emphasis supplied]
clashes with paragraph 4, Section 4, Article VII of the
Constitution which provides that the returns of every
election for President and Vice-President shall be certified
by the board of canvassers to Congress.
Congress could not have allowed the COMELEC to usurp a
power that constitutionally belongs to it or, as aptly stated
by petitioner, to encroach "on the power of Congress to
canvass the votes for president and vice-president and the
power to proclaim the winners for the said positions." The
provisions of the Constitution as the fundamental law of the
land should be read as part of The Overseas Absentee
Voting Act of 2003 and hence, the canvassing of the votes
and the proclamation of the winning candidates for
president and vice-president for the entire nation must
remain in the hands of Congress.
C. Are Sections 19 and 25 of R.A. No. 9189 in
violation of Section 1, Article IX-A of the
Constitution?
11 | Executive
Petitioner avers that Sections 19 and 25 of R.A. No. 9189
violate Article IX-A (Common Provisions) of the
Constitution, to wit:
Section 1. The Constitutional Commissions, which
shall be independent, are the Civil Service
Commission, the Commission on Elections, and the
Commission on Audit. (Emphasis supplied)
He submits that the creation of the Joint Congressional
Oversight Committee with the power to review, revise,
amend and approve the Implementing Rules and
Regulations promulgated by the COMELEC, R.A. No. 9189
intrudes into the independence of the COMELEC which, as a
constitutional body, is not under the control of either the
executive or legislative departments of government; that
only the COMELEC itself can promulgate rules and
regulations which may be changed or revised only by the
majority of its members; and that should the rules
promulgated by the COMELEC violate any law, it is the
Court that has the power to review the same via the
petition of any interested party, including the legislators.
It is only on this question that respondent COMELEC
submitted its Comment. It agrees with the petitioner that
Sections 19 and 25 of R.A. No. 9189 are unconstitutional.
Like the petitioner, respondent COMELEC anchors its claim
of unconstitutionality of said Sections upon Section 1,
Article IX-A of the Constitution providing for the
independence of the constitutional commissions such as the
COMELEC. It asserts that its power to formulate rules and
regulations has been upheld in Gallardo vs. Tabamo,
Jr.42 where this Court held that the power of the COMELEC
to formulate rules and regulations is implicit in its power to
implement regulations under Section 2(1) of Article IX-
C43 of the Constitution. COMELEC joins the petitioner in
asserting that as an independent constitutional body, it may
not be subject to interference by any government
instrumentality and that only this Court may review
COMELEC rules and only in cases of grave abuse of
discretion.
The COMELEC adds, however, that another provision, vis-à-
vis its rule-making power, to wit:
SEC. 17. Voting by Mail. –
17.1. For the May, 2004 elections, the Commission
shall authorize voting by mail in not more than
three (3) countries, subject to the approval of
the Congressional Oversight
Committee. Voting by mail may be allowed in
countries that satisfy the following conditions:
a) Where the mailing system is fairly well-
developed and secure to prevent occasion for
fraud;
b) Where there exists a technically established
identification system that would preclude multiple
or proxy voting; and
c) Where the system of reception and custody of
mailed ballots in the embassies, consulates and
other foreign service establishments concerned are
adequate and well-secured.
Thereafter, voting by mail in any country
shall be allowed only upon review and
approval of the Joint Congressional Oversight
Committee . . . . . . . . . (Emphasis supplied)
is likewise unconstitutional as it violates Section 1, Article
IX-A mandating the independence of constitutional
commissions.
The Solicitor General takes exception to his prefatory
statement that the constitutional challenge must fail and
agrees with the petitioner that Sections 19 and 25 are
invalid and unconstitutional on the ground that there is
nothing in Article VI of the Constitution on Legislative
Department that would as much as imply that Congress has
concurrent power to enforce and administer election laws
with the COMELEC; and by the principles of exclusio unius
est exclusio alterius and expressum facit cessare tacitum,
the constitutionally enumerated powers of Congress
circumscribe its authority to the exclusion of all others.
The parties are unanimous in claiming that Sections 19, 25
and portions of Section 17.1 are unconstitutional. Thus,
there is no actual issue forged on this question raised by
petitioner.
However, the Court finds it expedient to expound on the
role of Congress through the Joint Congressional Oversight
Committee (JCOC) vis-à-vis the independence of the
COMELEC, as a constitutional body.
R.A. No. 9189 created the JCOC, as follows:
SEC. 25. Joint Congressional Oversight Committee.
– A Joint Congressional Oversight Committee is
hereby created, composed of the Chairman of the
Senate Committee on Constitutional Amendments,
Revision of Codes and Laws, and seven (7) other
Senators designated by the Senate President, and
the Chairman of the House Committee on Suffrage
and Electoral Reforms, and seven (7) other
Members of the House of Representatives
designated by the Speaker of the House of
Representatives: Provided, That, of the seven (7)
members to be designated by each House of
Congress, four (4) should come from the majority
and the remaining three (3) from the minority.
The Joint Congressional Oversight Committee
shall have the power to monitor and evaluate
the implementation of this Act. It shall
review, revise, amend and approve the
Implementing Rules and Regulations
promulgated by the Commission. (Emphasis
supplied)
SEC. 19. Authority of the Commission to
Promulgate Rules. – The Commission shall issue
the necessary rules and regulations to effectively
implement the provisions of this Act within sixty
(60) days from the effectivity of this Act. The
Implementing Rules and Regulations shall be
submitted to the Joint Congressional
Oversight Committee created by virtue of this
Act for prior approval.
. . . . . . . . . (Emphasis supplied)
Composed of Senators and Members of the House of
Representatives, the Joint Congressional Oversight
Committee (JCOC) is a purely legislative body. There is no
question that the authority of Congress to "monitor and
evaluate the implementation" of R.A. No. 9189 is geared
towards possible amendments or revision of the law itself
and thus, may be performed in aid of its legislation.
However, aside from its monitoring and evaluation
functions, R.A. No. 9189 gives to the JCOC the following
12 | Executive
functions: (a) to "review, revise, amend and approve the
Implementing Rules and Regulations" (IRR) promulgated by
the COMELEC [Sections 25 and 19]; and (b) subject to the
approval of the JCOC [Section 17.1], the voting by mail in
not more than three countries for the May 2004 elections
and in any country determined by COMELEC.
The ambit of legislative power under Article VI of the
Constitution is circumscribed by other constitutional
provisions. One such provision is Section 1 of Article IX-A of
the 1987 Constitution ordaining that constitutional
commissions such as the COMELEC shall be "independent."
Interpreting Section 1, Article X of the 1935 Constitution
providing that there shall be an independent COMELEC, the
Court has held that "[w]hatever may be the nature of the
functions of the Commission on Elections, the fact is that
the framers of the Constitution wanted it to be independent
from the other departments of the Government."44 In an
earlier case, the Court elucidated:
The Commission on Elections is a constitutional
body. It is intended to play a distinct and
important part in our scheme of government. In
the discharge of its functions, it should not be
hampered with restrictions that would be fully
warranted in the case of a less responsible
organization. The Commission may err, so may
this court also. It should be allowed considerable
latitude in devising means and methods that will
insure the accomplishment of the great objective
for which it was created – free, orderly and honest
elections. We may not agree fully with its choice of
means, but unless these are clearly illegal or
constitute gross abuse of discretion, this court
should not interfere. Politics is a practical matter,
and political questions must be dealt with
realistically – not from the standpoint of pure
theory. The Commission on Elections, because of
its fact-finding facilities, its contacts with political
strategists, and its knowledge derived from actual
experience in dealing with political controversies, is
in a peculiarly advantageous position to decide
complex political questions.45 (Emphasis supplied)
The Court has no general powers of supervision over
COMELEC which is an independent body "except those
specifically granted by the Constitution," that is, to review
its decisions, orders and rulings.46 In the same vein, it is not
correct to hold that because of its recognized extensive
legislative power to enact election laws, Congress may
intrude into the independence of the COMELEC by
exercising supervisory powers over its rule-making
authority.
By virtue of Section 19 of R.A. No. 9189, Congress has
empowered the COMELEC to "issue the necessary rules and
regulations to effectively implement the provisions of this
Act within sixty days from the effectivity of this Act." This
provision of law follows the usual procedure in drafting rules
and regulations to implement a law – the legislature grants
an administrative agency the authority to craft the rules
and regulations implementing the law it has enacted, in
recognition of the administrative expertise of that agency in
its particular field of operation.47 Once a law is enacted and
approved, the legislative function is deemed accomplished
and complete. The legislative function may spring back to
Congress relative to the same law only if that body deems it
proper to review, amend and revise the law, but certainly
not to approve, review, revise and amend the IRR of the
COMELEC.
By vesting itself with the powers to approve, review,
amend, and revise the IRR for The Overseas Absentee
Voting Act of 2003, Congress went beyond the scope of its
constitutional authority. Congress trampled upon the
constitutional mandate of independence of the COMELEC.
Under such a situation, the Court is left with no option but
to withdraw from its usual reticence in declaring a provision
of law unconstitutional.
The second sentence of the first paragraph of Section 19
stating that "[t]he Implementing Rules and Regulations
shall be submitted to the Joint Congressional Oversight
Committee created by virtue of this Act for prior approval,"
and the second sentence of the second paragraph of
Section 25 stating that "[i]t shall review, revise, amend and
approve the Implementing Rules and Regulations
promulgated by the Commission," whereby Congress, in
both provisions, arrogates unto itself a function not
specifically vested by the Constitution, should be stricken
out of the subject statute for constitutional infirmity. Both
provisions brazenly violate the mandate on the
independence of the COMELEC.
for being repugnant to Section 1, Article IX-A of the
Constitution mandating the independence of constitutional
commission, such as COMELEC.
The constitutionality of Section 18.5 of R.A. No. 9189
is UPHELD with respect only to the authority given to the
COMELEC to proclaim the winning candidates for the
Senators and party-list representatives but not as to the
power to canvass the votes and proclaim the winning
candidates for President and Vice-President which is lodged
with Congress under Section 4, Article VII of the
Constitution.
The constitutionality of Section 5(d) is UPHELD.
Pursuant to Section 30 of R.A. No. 9189, the rest of the
provisions of said law continues to be in full force and
effect.

Similarly, the phrase, "subject to the approval of the SO ORDERED.

Congressional Oversight Committee" in the first sentence of
Section 17.1 which empowers the Commission to authorize
voting by mail in not more than three countries for the May,
2004 elections; and the phrase, "only upon review and
approval of the Joint Congressional Oversight Committee"
found in the second paragraph of the same section are
unconstitutional as they require review and approval of
voting by mail in any country after the 2004 elections.
Congress may not confer upon itself the authority to
approve or disapprove the countries wherein voting by mail
shall be allowed, as determined by the COMELEC pursuant
to the conditions provided for in Section 17.1 of R.A. No.
9189.48 Otherwise, Congress would overstep the bounds of
its constitutional mandate and intrude into the
independence of the COMELEC.

During the deliberations, all the members of the Court

agreed to adopt the separate opinion of Justice Reynato S.
Puno as part of the ponencia on the unconstitutionality of
Sections 17.1, 19 and 25 of R.A. No. 9189 insofar as they
relate to the creation of and the powers given to the Joint
Congressional Oversight Committee.

WHEREFORE, the petition is partly GRANTED.

The following portions of R.A. No. 9189 are
declared VOID for being UNCONSTITUTIONAL:

a) The phrase in the first sentence of the first

paragraph of Section 17.1, to wit: "subject to the
approval of the Joint Congressional Oversight
Committee;"

b) The portion of the last paragraph of Section

17.1, to wit: "only upon review and approval of
the Joint Congressional Oversight
Committee;"

c) The second sentence of the first paragraph of

Section 19, to wit: "The Implementing Rules
and Regulations shall be submitted to the
Joint Congressional Oversight Committee
created by virtue of this Act for prior
approval;" and

d) The second sentence in the second paragraph of

Section 25, to wit: "It shall review, revise,
amend and approve the Implementing Rules
and Regulations promulgated by the
Commission" of the same law;

13 | Executive

EN BANC
G.R. No. 163193             June 15, 2004
SIXTO S. BRILLANTES, JR., petitioner,
JOSE CONCEPCION, JR., JOSE DE VENECIA, EDGARDO
J. ANGARA, DR. JAIME Z. GALVEZ-TAN, FRANKLIN M.
DRILON, FRISCO SAN JUAN, NORBERTO M.
GONZALES, HONESTO M. GUTIERREZ, ISLETA, AND
JOSE A. BERNAS, Petitioners-in-Intervention,
vs.
COMMISSION ON ELECTIONS, respondent.
DECISION
CALLEJO, SR., J.:
Before us is the petition for certiorari and prohibition under
Rule 65 of the Rules of Court filed by Atty. Sixto S.
Brillantes, Jr., a voter and taxpayer, seeking to nullify, for
having been issued with grave abuse of discretion
amounting to lack or excess of jurisdiction, Resolution No.
6712 dated April 28, 2004 approved by the Commission on
Elections
(COMELEC) En Banc captioned GENERAL INSTRUCTIONS
FOR THE ELECTRONIC TRANSMISSION AND
CONSOLIDATION OF ADVANCED RESULTS IN THE MAY 10,
2004 ELECTIONS.1 The petitioner, likewise, prays for the
issuance of a temporary restraining order and, after due
proceedings, a writ of prohibition to permanently enjoin the
respondent COMELEC from enforcing and implementing the
questioned resolution.
After due deliberation, the Court resolved to require the
respondent to comment on the petition and to require the
parties to observe the status quo prevailing before the
issuance by the COMELEC of the assailed resolution. The
parties were heard on oral arguments on May 8, 2004. The
respondent COMELEC was allowed during the hearing to
make a presentation of the Electronic Transmission,
Consolidation and Dissemination (PHASE III) program of
the COMELEC, through Mr. Renato V. Lim of the Philippine
Multi-Media System, Inc. (PMSI).
The Court, thereafter, resolved to maintain the status quo
order issued on May 6, 2004 and expanded it to cover any
and all other issuances related to the implementation of the
so-called election quick count project. In compliance with
the resolution of the Court, the respondent, the petitioner
and the petitioners-in-intervention submitted the
documents required of them.
The Antecedents
On December 22, 1997, Congress enacted Republic Act No.
84362 authorizing the COMELEC to use an automated
election system (AES) for the process of voting, counting of
votes and canvassing/consolidating the results of the
national and local elections. It also mandated the COMELEC
to acquire automated counting machines (ACMs), computer
equipment, devices and materials; and to adopt new
electoral forms and printing materials.
The COMELEC initially intended to implement the
automation during the May 11, 1998 presidential elections,
particularly in the Autonomous Region in Muslim Mindanao
14 | Executive
(ARMM). The failure of the machines to read correctly some
automated ballots, however, deferred its implementation. 3
In the May 2001 elections, the counting and canvassing of
votes for both national and local positions were also done
manually, as no additional ACMs had been acquired for that
electoral exercise because of time constraints.
On October 29, 2002, the COMELEC adopted, in its
Resolution No. 02-0170, a modernization program for the
2004 elections consisting of three (3) phases, to wit:
(1) PHASE I – Computerized system of registration
and voters validation or the so-called "biometrics"
system of registration;
(2) PHASE II – Computerized voting and counting
of votes; and
(3) PHASE III – Electronic transmission of results.
It resolved to conduct biddings for the three phases.
On January 24, 2003, President Gloria Macapagal-Arroyo
issued Executive Order No. 172,4 which allocated the sum of
₱2,500,000,000 to exclusively fund the AES in time for the
May 10, 2004 elections.
On January 28, 2003, the COMELEC issued an Invitation to
Bid5 for the procurement of supplies, equipment, materials
and services needed for the complete implementation of all
three phases of the AES with an approved budget of
₱2,500,000,000.
On February 10, 2003, upon the request of the COMELEC,
President Gloria Macapagal-Arroyo issued Executive Order
No. 175,6 authorizing the release of a supplemental ₱500
million budget for the AES project of the COMELEC. The
said issuance, likewise, instructed the Department of
Budget and Management (DBM) to ensure that the
aforementioned additional amount be used exclusively for
the AES prescribed under Rep. Act No. 8436, particularly
"the process of voting, counting of votes and
canvassing/consolidation of results of the national and local
elections."7
On April 15, 2003, the COMELEC promulgated Resolution
No. 6074 awarding the contract for Phase II of the AES to
Mega Pacific Consortium and correspondingly entered into a
contract with the latter to implement the project. On the
same day, the COMELEC entered into a separate contract
with Philippine Multi-Media System, Inc. (PMSI)
denominated "ELECTRONIC TRANSMISSION,
CONSOLIDATION & DISSEMINATION OF ELECTION
RESULTS PROJECT CONTRACT.8 The contract, by its very
terms, pertains to Phase III of the respondent COMELEC’s
AES modernization program. It was predicated on a
previous bid award of the contract, for the lease of 1,900
units of satellite-based Very Small Aperture Terminals
(VSAT) each unit consisting of an indoor and outdoor
equipment, to PMSI for possessing the legal, financial and
technical expertise necessary to meet the project’s
objectives. The COMELEC bound and obliged itself to pay
PMSI the sum of ₱298,375,808.90 as rentals for the leased
equipment and for its services.
In the meantime, the Information Technology Foundation of
the Philippines (ITFP), filed a petition for certiorari and
prohibition in this Court for the nullification of Resolution
No. 6074 approving the contract for Phase II of AES to
Mega Pacific Consortium, entitled and docketed
as Information Technology Foundation of the Philippines, et
al. vs. COMELEC, et al., G.R. No. 159139. While the case
was pending in this Court, the COMELEC paid the contract
fee to the PMSI in trenches.
On January 13, 2004, this Court promulgated its Decision
nullifying COMELEC Resolution No. 6074 awarding the
contract for Phase II of the AES to Mega Pacific Consortium.
Also voided was the subsequent contract entered into by
the respondent COMELEC with Mega Pacific Consortium for
the purchase of computerized voting/counting machines for
the purpose of implementing the second phase of the
modernization program. Phase II of the AES was, therefore,
scrapped based on the said Decision of the Court and the
COMELEC had to maintain the old manual voting and
counting system for the May 10, 2004 elections.
On the other hand, the validation scheme under Phase I of
the AES apparently encountered problems in its
implementation, as evinced by the COMELEC’s
pronouncements prior to the elections that it was reverting
to the old listing of voters. Despite the scrapping of Phase II
of the AES, the COMELEC nevertheless ventured to
implement Phase III of the AES through an electronic
transmission of advanced "unofficial" results of the 2004
elections for national, provincial and municipal positions,
also dubbed as an "unofficial quick count."
Senate President Franklin Drilon had misgivings and
misapprehensions about the constitutionality of the
proposed electronic transmission of results for the positions
of President and Vice-President, and apprised COMELEC
Chairman Benjamin Abalos of his position during their
meeting on January 28, 2004. He also wrote Chairman
Abalos on February 2, 2004. The letter reads:
Dear Chairman Abalos,
This is to confirm my opinion which I relayed to
you during our meeting on January 28th that the
Commission on Elections cannot and should not
conduct a "quick count" on the results of the
elections for the positions of President and Vice-
President.
Under Section 4 of Article VII of the Constitution, it
is the Congress that has the sole and exclusive
authority to canvass the votes for President and
Vice-President. Thus, any quick count to be
conducted by the Commission on said positions
would in effect constitute a canvass of the votes of
the President and Vice-President, which not only
would be pre-emptive of the authority of the
Congress, but also would be lacking of any
Constitutional authority. You conceded the validity
of the position we have taken on this point.
In view of the foregoing, we asked the COMELEC
during that meeting to reconsider its plan to
include the votes for President and Vice-President
in the "quick count", to which you graciously
consented. Thank you very much.9
The COMELEC approved a Resolution on February 10, 2004
referring the letter of the Senate President to the members
of the COMELEC and its Law Department for study and
recommendation. Aside from the concerns of the Senate
President, the COMELEC had to contend with the primal
problem of sourcing the money for the implementation of
the project since the money allocated by the Office of the
President for the AES had already been spent for the
acquisition of the equipment. All these developments
notwithstanding, and despite the explicit specification in the
project contract for Phase III that the same was functionally
intended to be an interface of Phases I and II of the AES
modernization program, the COMELEC was determined to
15 | Executive
carry out Phase III of the AES. On April 6, 2004, the
COMELEC, in coordination with the project contractor PMSI,
conducted a field test of the electronic transmission of
election results.
On April 27, 2004, the COMELEC met en banc to update
itself on and resolve whether to proceed with its
implementation of Phase III of the AES.10 During the said
meeting, COMELEC Commissioner Florentino Tuason, Jr.
requested his fellow Commissioners that "whatever is said
here should be confined within the four walls of this room
and the minutes so that walang masyadong
problema.11 Commissioner Tuason, Jr. stated that he had no
objection as to the Phase III of the modernization project
itself, but had concerns about the budget. He opined that
other funds of the COMELEC may not be proper for
realignment. Commissioners
Resurreccion Z. Borra and Virgilio Garcillano also expressed
their concerns on the budget for the project. Commissioner
Manuel Barcelona, Jr. shared the sentiments of
Commissioners Garcillano and Tuason, Jr. regarding
personnel and budgetary problems. Commissioner Sadain
then manifested that the consideration for the contract for
Phase III had already been almost fully paid even before
the Court’s nullification of the contract for Phase II of the
AES, but he was open to the possibility of the realignment
of funds of the COMELEC for the funding of the project. He
added that if the implementation of Phase III would not be
allowed to continue just because Phase II was nullified,
then it would be ₱300,000,000 down the drain, in addition
to the already allocated disbursement on Phase II of the
AES.12 Other concerns of the Commissioners were on the
legality of the project considering the scrapping of Phase II
of the AES, as well as the operational constraints related to
its implementation.
Despite the dire and serious reservations of most of its
members, the COMELEC, the next day, April 28, 2004,
barely two weeks before the national and local elections,
approved the assailed resolution declaring that it "adopts
the policy that the precinct election results of each city and
municipality shall be immediately transmitted electronically
in advance to the COMELEC, Manila."13 For the purpose,
respondent COMELEC established a National Consolidation
Center (NCC), Electronic Transmission Centers (ETCs) for
every city and municipality, and a special ETC at the
COMELEC, Manila, for the Overseas Absentee Voting.14
Briefly, the procedure for this electronic transmission of
precinct results is outlined as follows:
I. The NCC shall receive and consolidate all
precinct results based on the data transmitted to it
by each ETC;15
II. Each city and municipality shall have an ETC
"where votes obtained by each candidate for all
positions shall be encoded, and shall consequently
be transmitted electronically to the NCC, through
Very Small Aperture Terminal (VSAT)
facilities."16 For this purpose, personal computers
shall be allocated for all cities and municipalities at
the rate of one set for every one hundred seventy-
five (175) precincts;17
III. A Department of Education (DepEd) Supervisor shall be
designated in the area who will be assigned in each polling
center for the purpose of gathering from all Board of
Election Inspectors (BEI) therein the envelopes containing
the Copy 3 of the Election Returns (ER) for national
positions and Copy 2 of the ER for local positions, both
intended for the COMELEC, which shall be used as basis for
the encoding and transmission of advanced precinct
results.18
The assailed resolution further provides that written notices
of the date, time and place of the electronic transmission of
advanced precinct results shall be given not later than May
5, 2004 to candidates running for local positions, and not
later than May 7, 2004 to candidates running for national
positions, as well as to political parties fielding candidates,
and parties, organizations/coalitions participating under the
party-list system.19
In relation to this, Section 13 of the assailed resolution
provides that the encoding proceedings were ministerial and
the tabulations were "advanced unofficial results." The
entirety of Section 13, reads:
Sec. 13. Right to observe the ETC proceedings. –
Every registered political party or coalition of
parties, accredited political party, sectoral
party/organization or coalition thereof under the
party-list, through its representative, and every
candidate for national positions has the right to
observe/witness the encoding and electronic
transmission of the ERs within the authorized
perimeter.
Provided, That candidates for the sangguniang
panlalawigan, sangguniang panglungsod or sangguniang
bayan belonging to the same slate or ticket shall collectively
be entitled to only one common observer at the ETC.
The citizens’ arm of the Commission, and civic, religious,
professional, business, service, youth and other similar
organizations collectively, with prior authority of the
Commission, shall each be entitled to one (1) observer.
Such fact shall be recorded in the Minutes.
The observer shall have the right to observe, take note of
and make observations on the proceedings of the team.
Observations shall be in writing and, when submitted, shall
be attached to the Minutes.
The encoding proceedings being ministerial in nature, and
the tabulations being advanced unofficial results, no
objections or protests shall be allowed or entertained by the
ETC.
In keeping with the "unofficial" character of the
electronically transmitted precinct results, the assailed
resolution expressly provides that "no print-outs shall be
released at the ETC and at the NCC."20 Instead,
consolidated and per-precinct results shall be made
available via the Internet, text messaging, and electronic
billboards in designated locations. Interested parties may
print the result published in the COMELEC web site.21
When apprised of the said resolution, the National Citizens
Movement for Free Elections (NAMFREL), and the heads of
the major political parties, namely, Senator Edgardo J.
Angara of the Laban ng Demokratikong Pilipino (LDP) and
Chairman of the Koalisyon ng mga Nagkakaisang
Pilipino (KNP) Executive Committee, Dr. Jaime Z. Galvez
Tan of the Aksyon Demokratiko, Frisco San Juan of the
Nationalist People’s Coalition (NPC), Gen. Honesto M. Isleta
of Bangon Pilipinas, Senate President Franklin Drilon of the
Liberal Party, and Speaker Jose de Venecia of the Lakas-
Christian Muslim Democrats (CMD) and Norberto M.
Gonzales of the Partido Demokratiko Sosyalista ng Pilipinas,
wrote the COMELEC, on May 3, 2004 detailing their
concerns about the assailed resolution:
This refers to COMELEC Resolution 6712 promulgated on 28
April 2004.
16 | Executive
NAMFREL and political parties have the following concerns
about Resolution 6712 which arose during consultation over
the past week[:]
a) The Resolution disregards RA 8173, 8436, and
7166 which authorize only the citizen’s arm to use
an election return for an unofficial count; other
unofficial counts may not be based on an election
return; Indeed, it may be fairly inferred from the
law that except for the copy of the citizen’s arm,
election returns may only be used for canvassing
or for receiving dispute resolutions.
b) The Commission’s copy, the second or third
copy of the election return, as the case may be,
has always been intended to be an archived copy
and its integrity preserved until required by the
Commission to resolve election disputes. Only the
Board of Election Inspectors is authorized to have
been in contact with the return before the
Commission unseals it.
c) The instruction contained in Resolution 6712, to
break the seal of the envelope containing copies
Nos. 2 and 3 will introduce a break in the chain of
custody prior to its opening by the Commission on
Election[s]. In the process of prematurely breaking
the seal of the Board of Election Inspectors, the
integrity of the Commission’s copy is breached,
thereby rendering it void of any probative value.
To us, it does appear that the use of election returns as
prescribed in Resolution 6712 departs from the letters and
spirit of the law, as well as previous practice. More
importantly, questions of legalities aside, the conduct of an
advanced count by the COMELEC may affect the credibility
of the elections because it will differ from the results
obtained from canvassing. Needless to say, it does not help
either that Resolution 6712 was promulgated only recently,
and perceivably, on the eve of the elections.
In view of the foregoing, we respectfully request the
Commission to reconsider Resolution 6712 which authorizes
the use of election returns for the consolidation of the
election results for the May 10, 2004 elections.22
The Present Petition
On May 4, 2004, the petition at bar was filed in this Court.
Jose Concepcion, Jr., Jose De Venecia, Edgardo J. Angara,
Dr. Jaime Z. Galvez-Tan, Franklin M. Drilon, Frisco San
Juan, Norberto M. Gonzales, Honesto M. Isleta and Jose A.
Bernas, filed with this Court their Motion to Admit Attached
Petition-in-Intervention. In their petition-in-intervention,
movants-petitioners urge the Court to declare as null and
void the assailed resolution and permanently enjoin the
respondent COMELEC from implementing the same. The
Court granted the motion of the petitioners-in-intervention
and admitted their petition.
In assailing the validity of the questioned resolution, the
petitioner avers in his petition that there is no provision
under Rep. Act No. 8436 which authorizes the COMELEC to
engage in the biometrics/computerized system of validation
of voters (Phase I) and a system of electronic transmission
of election results (Phase III). Even assuming for the nonce
that all the three (3) phases are duly authorized, they must
complement each other as they are not distinct and
separate programs but mere stages of one whole scheme.
Consequently, considering the failed implementation of
Phases I and II, there is no basis at all for the respondent
COMELEC to still push through and pursue with Phase III.
The petitioner essentially posits that the counting and
consolidation of votes contemplated under Section 6 of Rep.
Act No. 8436 refers to the official COMELEC count under the
fully automated system and not any kind of "unofficial"
count via electronic transmission of advanced results as
now provided under the assailed resolution.
The petitioners-in-intervention point to several
constitutional infractions occasioned by the assailed
resolution. They advance the view that the assailed
resolution effectively preempts the sole and exclusive
authority of Congress under Article VII, Section 4 of the
Constitution to canvass the votes for President and Vice-
President. Further, as there has been no appropriation by
Congress for the respondent COMELEC to conduct an
"unofficial" electronic transmission of results of the May 10,
2004 elections, any expenditure for the said purpose
contravenes Article VI, Section 29 (par. 1) of the
Constitution.
On statutory grounds, the petitioner and petitioners-in-
intervention contend that the assailed resolution encroaches
upon the authority of NAMFREL, as the citizens’ accredited
arm, to conduct the "unofficial" quick count as provided
under pertinent election laws. It is, likewise, impugned for
violating Section 52(i) of the Omnibus Election Code,
relating to the requirement of notice to the political parties
and candidates of the adoption of technological and
electronic devices during the elections.
For its part, the COMELEC preliminarily assails the
jurisdiction of this Court to pass upon the assailed
resolution’s validity claiming that it was promulgated in the
exercise of the respondent COMELEC’s executive or
administrative power. It asserts that the present
controversy involves a "political question;" hence, beyond
the ambit of judicial review. It, likewise, impugns the
standing of the petitioner to file the present petition, as he
has not alleged any injury which he would or may suffer as
a result of the implementation of the assailed resolution.
On the merits, the respondent COMELEC denies that the
assailed resolution was promulgated pursuant to Rep. Act
No. 8436, and that it is the implementation of Phase III of
its modernization program. Rather, as its bases, the
respondent COMELEC invokes the general grant to it of the
power to enforce and administer all laws relative to the
conduct of elections and to promulgate rules and
regulations to ensure free, orderly and honest elections by
the Constitution, the Omnibus Election Code, and Rep. Acts
Nos. 6646 and 7166. The COMELEC avers that
granting arguendo that the assailed resolution is related to
or connected with Phase III of the modernization program,
no specific law is violated by its implementation. It posits
that Phases I, II and III are mutually exclusive schemes
such that, even if the first two phases have been scrapped,
the latter phase may still proceed independently of and
separately from the others. It further argues that there is
statutory basis for it to conduct an "unofficial" quick count.
Among others, it invokes the general grant to it of the
power "to ensure free, orderly, honest, peaceful and
credible elections." Finally, it claims that it had complied
with Section 52(i) of the Omnibus Election Code, as the
political parties and all the candidates of the 2004 elections
were sufficiently notified of the electronic transmission of
advanced election results.
The COMELEC trivializes as "purely speculative" these
constitutional concerns raised by the petitioners-in-
intervention and the Senate President. It maintains that
what is contemplated in the assailed resolution is not a
canvass of the votes but merely consolidation and
transmittal thereof. As such, it cannot be made the basis for
the proclamation of any winning candidate. Emphasizing
that the project is "unofficial" in nature, the COMELEC
17 | Executive
opines that it cannot, therefore, be considered as
preempting or usurping the exclusive power of Congress to
canvass the votes for President and Vice-President.
The Issues
At the said hearing on May 8, 2004, the Court set forth the
issues for resolution as follows:
1. Whether the petitioner and the petitioners-
intervenors have standing to sue;
2. Assuming that they have standing, whether the
issues they raise are political in nature over which
the Court has no jurisdiction;
3. Assuming the issues are not political, whether
Resolution No. 6712 is void:
(a) for preempting the sole and exclusive
authority of Congress under Art. VII, Sec.
4 of the 1987 Constitution to canvass the
votes for the election of President and
Vice-President;
(b) for violating Art. VI, Sec. 29 (par. 1)
of the 1987 Constitution that "no money
shall be paid out of the treasury except in
pursuance of an appropriation made by
law;"
(c) for disregarding Rep. Acts Nos. 8173,
8436 and 7166 which authorize only the
citizens’ arm to use an election return for
an "unofficial" count;
(d) for violation of Sec. 52(i) of the
Omnibus Election Code, requiring not less
than thirty (30) days notice of the use of
new technological and electronic devices;
and,
(e) for lack of constitutional or statutory
basis; and,
4. Whether the implementation of Resolution No.
6712 would cause trending, confusion and chaos.
The Ruling of the Court
The issues, as earlier defined, shall now be resolved in
seriatim:
The Petitioners And Petitioners-In-Intervention
Possess The Locus Standi To Maintain The Present
Action
The gist of the question of standing is whether a party has
"alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional
questions.23 Since the implementation of the assailed
resolution obviously involves the expenditure of funds, the
petitioner and the petitioners-in-intervention, as taxpayers,
possess the requisite standing to question its validity as
they have sufficient interest in preventing the illegal
expenditure of money raised by taxation.24 In essence,
taxpayers are allowed to sue where there is a claim of
illegal disbursement of public funds, or that public
money is being deflected to any improper purpose, or
where the petitioners seek to restrain the respondent from
wasting public funds through the enforcement of an invalid
or unconstitutional law.25
Most of the petitioners-in-intervention are also
representatives of major political parties that have
participated in the May 10, 2004 elections. On the other
hand, petitioners-in-intervention Concepcion and Bernas
represent the National Citizens Movement for Free Elections
(NAMFREL), which is the citizens’ arm authorized to conduct
an "unofficial" quick count during the said elections. They
have sufficient, direct and personal interest in the manner
by which the respondent COMELEC would conduct the
elections, including the counting and canvassing of the
votes cast therein.
Although not raised during the oral arguments, another
procedural issue that has to be addressed is whether the
substantive issues had been rendered moot and academic.
Indeed, the May 10, 2004 elections have come and gone.
Except for the President and Vice-President, the newly-
elected national and local officials have been proclaimed.
Nonetheless, the Court finds it necessary to resolve the
merits of the substantive issues for future guidance of both
the bench and bar.29 Further, it is settled rule that courts
will decide a question otherwise moot and academic if it is
"capable of repetition, yet evading review." 30
The Respondent COMELEC Committed Grave Abuse Of
Discretion Amounting To Lack Or Excess Of
Jurisdiction In Issuing Resolution No. 6712

Moreover, the petitioners-in-intervention Drilon and De
Venecia are, respectively, President of the Senate and
Speaker of the House of Representatives, the heads of
Congress which is exclusively authorized by the Constitution
to canvass the votes for President and Vice-President. They
have the requisite standing to prevent the usurpation of the
constitutional prerogative of Congress.
The preliminary issues having been thus resolved, the Court
shall proceed to determine whether the respondent
COMELEC committed grave abuse of discretion amounting
to lack or excess of jurisdiction in promulgating the assailed
resolution.
The Court rules in the affirmative.

The Issue Raised By The Petition Is Justiciable

Article VIII, Section 1 of the 1987 Constitution expands the
concept of judicial review by providing that:
SEC. 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be
established by law.
An administrative body or tribunal acts without jurisdiction
if it does not have the legal power to determine the matter
before it; there is excess of jurisdiction where the
respondent, being clothed with the power to determine the
matter, oversteps its authority as determined by
law.31 There is grave abuse of discretion justifying the
issuance of the writ of certiorari when there is a capricious
and whimsical exercise of his judgment as is equivalent to
lack of jurisdiction.32

Judicial power includes the duty of the courts of

First. The assailed resolution usurps, under the guise of an
justice to settle actual controversies involving
"unofficial" tabulation of election results based on a copy of
rights which are legally demandable and
the election returns, the sole and exclusive authority of
enforceable, and to determine whether or not
Congress to canvass the votes for the election of President
there has been grave abuse of discretion
and Vice-President. Article VII, Section 4 of the Constitution
amounting to lack or excess of jurisdiction on the
provides in part:
part of any branch or instrumentality of the
Government.
The returns of every election for President and
Vice-President duly certified by the board of
The Court does not agree with the posture of the
canvassers of each province or city, shall be
respondent COMELEC that the issue involved in the
transmitted to the Congress, directed to the
present petition is a political question beyond the
President of the Senate. Upon receipt of the
jurisdiction of this Court to review. As the leading
certificates of canvass, the President of the Senate
case of Tañada vs. Cuenco26 put it, political
shall, not later than thirty days after the day of the
questions are concerned with "issues dependent
election, open all the certificates in the presence of
upon the wisdom, not legality of a particular
the Senate and the House of Representatives in
measure."
joint public session, and the Congress, upon
determination of the authenticity and due
The issue raised in the present petition does not merely execution thereof in the manner provided by law,
concern the wisdom of the assailed resolution but focuses canvass the votes.
on its alleged disregard for applicable statutory and
constitutional provisions. In other words, that the petitioner
As early as January 28, 2004, Senate President Franklin M.
and the petitioners-in-intervention are questioning the
Drilon already conveyed to Chairman Benjamin S. Abalos,
legality of the respondent COMELEC’s administrative
Sr. his deep-seated concern that the respondent COMELEC
issuance will not preclude this Court from exercising its
could not and should not conduct any "quick count" of the
power of judicial review to determine whether or not there
votes cast for the positions of President and Vice-President.
was grave abuse of discretion amounting to lack or excess
In his Letter dated February 2, 200433 addressed to
of jurisdiction on the part of the respondent COMELEC in
Chairman Abalos, Senate President Drilon reiterated his
issuing Resolution No. 6712. Indeed, administrative
position emphasizing that "any quick count to be conducted
issuances must not override, supplant or modify the law,
by the Commission on said positions would in effect
but must remain consistent with the law they intend to
constitute a canvass of the votes of the President and Vice-
carry out.27 When the grant of power is qualified,
President, which not only would be pre-emptive of the
conditional or subject to limitations, the issue of whether
authority of Congress, but would also be lacking of any
the prescribed qualifications or conditions have been met or
constitutional authority."34
the limitations respected, is justiciable – the problem being
one of legality or validity, not its wisdom.28 In the present
petition, the Court must pass upon the petitioner’s Nonetheless, in disregard of the valid objection of the
contention that Resolution No. 6712 does not have Senate President, the COMELEC proceeded to promulgate
adequate statutory or constitutional basis. the assailed resolution. Such resolution directly infringes
the authority of Congress, considering that Section 4
thereof allows the use of the third copy of the Election
18 | Executive
Returns (ERs) for the positions of President, Vice-President,
Senators and Members of the House of Representatives,
intended for the COMELEC, as basis for the encoding and
transmission of advanced precinct results, and in the
process, canvass the votes for the President and Vice-
President, ahead of the canvassing of the same votes by
Congress.
Parenthetically, even the provision of Rep. Act No. 8436
confirms the constitutional undertaking of Congress as the
sole body tasked to canvass the votes for the President and
Vice-President. Section 24 thereof provides:
SEC. 24. Congress as the National Board of
Canvassers for President and Vice-President. --
The Senate and the House of Representatives, in
joint public session, shall compose the national
board of canvassers for president and vice-
president. The returns of every election for
president and vice-president duly certified by the
board of canvassers of each province or city, shall
be transmitted to the Congress, directed to the
president of the Senate. Upon receipt of the
certificates of canvass, the president of the Senate
shall, not later than thirty (30) days after the day
of the election, open all the certificates in the
presence of the Senate and the House of
Representatives in joint public session, and the
Congress upon determination of the authenticity
and the due execution thereof in the manner
provided by law, canvass all the results for
president and vice-president by consolidating the
results contained in the data storage devices
submitted by the district, provincial and city boards
of canvassers and thereafter, proclaim the winning
candidates for president and vice-president.
The contention of the COMELEC that its tabulation of votes
is not prohibited by the Constitution and Rep. Act No. 8436
as such tabulation is "unofficial," is puerile and totally
unacceptable. If the COMELEC is proscribed from
conducting an official canvass of the votes cast for the
President and Vice-President, the COMELEC is, with more
reason, prohibited from making an "unofficial" canvass of
said votes.
The COMELEC realized its folly and the merits of the
objection of the Senate President on the constitutionality of
the resolution that it decided not to conduct an "unofficial"
quick count of the results of the elections for President and
Vice-President. Commissioner Sadain so declared during the
hearing:
JUSTICE PUNO:
The word you are saying that within 36 hours after
election, more or less, you will be able to tell the
people on the basis of your quick count, who won
the election, is that it?
COMM. SADAIN:
Well, it’s not exactly like that, Your Honor. Because
the fact of winning the election would really
depend on the canvassed results, but probably, it
would already give a certain degree of comfort to
certain politicians to people rather, as to who are
leading in the elections, as far as Senator down are
concerned, but not to President and Vice-
President.
JUSTICE PUNO:
19 | Executive
So as far as the Senatorial candidates involved are
concerned, but you don’t give this assurance with
respect to the Presidential and Vice-Presidential
elections which are more important?
COMM. SADAIN:
In deference to the request of the Senate President
and the House Speaker, Your Honor. According to
them, they will be the ones canvassing and
proclaiming the winner, so it is their view that we
will be pre-empting their canvassing work and the
proclamation of the winners and we gave in to
their request.35
…
JUSTICE CALLEJO, [SR.]:
Perhaps what you are saying is that the system
will minimize "dagdag-bawas" but not totally
eradicate "dagdag-bawas"?
COMM. SADAIN:
Yes, Your Honor.
JUSTICE CALLEJO, [SR.]:
Now, I heard either Atty. Bernas or Atty. Brillantes
say (sic) that there was a conference between the
Speaker and the Senate President and the
Chairman during which the Senate President and
the Speaker voice[d] their objections to the
electronic transmission results system, can you
share with us the objections of the two gentlemen?
COMM. SADAIN:
These was relayed to us Your Honor and their
objection or request rather was for us to refrain
from consolidating and publishing the results for
presidential and vice-presidential candidates which
we have already granted Your Honors. So, there is
going to be no consolidation and no publication of
the …
COMM. SADAIN:
Reason behind being that it is actually Congress
that canvass that the official canvass for this and
proclaims the winner.36
Second. The assailed COMELEC resolution contravenes the
constitutional provision that "no money shall be paid out of
the treasury except in pursuance of an appropriation made
by law."37
By its very terms, the electronic transmission and
tabulation of the election results projected under Resolution
No. 6712 is "unofficial" in character, meaning "not
emanating from or sanctioned or acknowledged by the
government or government body.38 Any disbursement of
public funds to implement this project is contrary to the
provisions of the Constitution and Rep. Act No. 9206, which
is the 2003 General Appropriations Act. The use of the
COMELEC of its funds appropriated for the AES for the
"unofficial" quick count project may even be considered as
a felony under Article 217 of the Revised Penal Code, as
amended.39
Irrefragably, the implementation of the assailed resolution
would entail, in due course, the hiring of additional
manpower, technical services and acquisition of equipment,
including computers and software, among others. According
to the COMELEC, it needed ₱55,000,000 to operationalize
the project, including the encoding process.40 Hence, it
would necessarily involve the disbursement of public funds
for which there must be the corresponding appropriation.
The COMELEC posited during the hearing that the 2003
General Appropriations Act has appropriated the amount
needed for its "unofficial" tabulation. We quote the
transcript of stenographic notes taken during the hearing:
JUSTICE VITUG:
And you mentioned earlier something about 55
million not being paid as yet?
COMM. SADAIN:
This is an extra amount that we will be needing to
operationalize.
JUSTICE VITUG:
And this has not yet been done?
COMM. SADAIN:
It has not yet been done, Your Honor.
JUSTICE VITUG:
Would you consider the funds that were authorized
by you under the General Appropriations Act as
capable of being used for this purpose?
COMM. SADAIN:
Yes, that’s our position, Your Honor.41
But then the COMELEC, through Commissioner Sadain,
admitted during the said hearing that although it had
already approved the assailed resolution, it was still looking
for the ₱55,000,000 needed to operationalize the project:
JUSTICE CARPIO:
Just a clarification. You stated that you signed
already the main contract for 300 million but you
have not signed the 55 million supplemental
contract for the encoding?
COMM. SADAIN:
Yes, Your Honor.
JUSTICE CARPIO:
Because you still don’t have the money for that?
COMM. SADAIN:
Well, yes, we are trying to determine where we
can secure the money.
20 | Executive
JUSTICE CARPIO:
Now, the encoding is crucial; without the encoding,
the entire project collapses?
COMM. SADAIN:
Yes.42
Inexplicably, Commissioner Sadain contradicted himself
when he said that its Financial Department had already
found the money, but that proper documentation was
forthcoming:
JUSTICE CARPIO:
Just a clarification. You stated that you signed
already the main contract for 300 million but you
have not signed the 55 million supplemental
contract for the encoding?
COMM. SADAIN:
Yes, Your Honor.
JUSTICE CARPIO:
Because you still don’t have the money for that?
COMM. SADAIN:
Well, yes, we are trying to determine where we
can secure the money.
JUSTICE CARPIO:
Now, the encoding is crucial; without the encoding,
the entire project collapses?
COMM. SADAIN:
Yes.
JUSTICE CARPIO:
So, you have two (2) days to look for the 55
million, you have signed the contract on the main
contract and if you don’t get that 55 million, that
300 million main contract goes to waste, because
you cannot encode?
COMM. SADAIN:
It’s just a matter of proper documentation, Your
Honor, because I was informed by our Finance
Department that the money is there.
JUSTICE CARPIO:
So, you have found the money already?
COMM. SADAIN:
Yes, Your Honor.43
Earlier, during the April 27, 2004 meeting of the
COMELEC En Banc, the Commissioners expressed their
serious concerns about the lack of funds for the project, the
propriety of using the funds for Phase III of its
modernization, and the possibility of realigning funds to
finance the project:
Comm. Tuason:
May I just request all the parties who are in here
na whatever is said here should be confined within
the four walls of this room and the minutes so
that walang masyadong problema.
Comm. Borra:
Sa akin lang, we respect each other’s opinion. I
will not make any observations. I will just submit
my own memo to be incorporated in the minutes.
Comm. Tuason:
Commissioner Borra will submit a comment to be
attached to the minutes but not on the
resolution. Ako naman, I will just make it on
record my previous reservation. I do not have any
objection as to the Phase III modernization project
itself. My main concern is the budget. I would like
to make it on record that the budget for Phase III
should be taken from the modernization program
fund because Phase III is definitely part of the
modernization project. Other funds, for instance
other funds to be used for national elections may
not be proper for realignment. That is why I am
saying that the funds to be used for Phase III
should properly come from the modernization. The
other reservation is that the Election Officers are
now plagued with so much work such as the
preparation of the list of voters and their concern
in their respective areas. They were saying to me,
specially so in my own region, that to burden them
with another training at this point in time will make
them loose (sic) focus on what they are really
doing for the national elections and what they are
saying is that they should not be subjected to any
training anymore. And they also said that come
canvassing time, their priority would be to canvass
first before they prepare the certificate of votes to
be fed to the encoders [to be fed to the encoders]
for electronic transmission. I share the sentiments
of our people in the field. That is also one of my
reservations. Thank you.
Comm. Garcillano:
I also have my observations regarding the financial
restraint that we are facing if the money that is
going to be used for this is taken from the Phase
II, I don’t think there is money left.
Comm. Borra:
There is no more money in Phase II because the
budget for Phase II is 1.3 Billion. The award on the
contract for Phase II project is 1.248 billion. So the
remaining has been allocated for additional
expenses for the technical working group and staff
for Phase II.
Comm. Garcillano:
I also have one problem. We have to have
additional people to man this which I think is
already being taken cared of. Third is, I know that
21 | Executive
this will disrupt the canvassing that is going to be
handled by our EO and Election Assistant. I do not
know if it is given to somebody (inaudible)
Comm. Tuason:
Those are your reservations.
Comm. Barcelona:
As far as I am concerned, I also have my
reservations because I have the same experience
as Commissioner Tuason when I went to Region IX
and Caraga. Our EOs and PES’ expressed
apprehension over the additional training period
that they may have to undergo although, they say,
that if that is an order they will comply but it will
be additional burden on them. I also share the
concern of Commissioner Tuason with regard to
the budget that should be taken from the
modernization budget.
Comm. Borra:
For the minutes, my memo is already prepared. I
will submit it in detail. On three counts naman yan
eh – legal, second is technical/operational and
third is financial.
Comm. Sadain:
Ako naman, for my part as the CIC for Phase III,
we were left with no choice but to implement
Phase III inasmuch as expenses has already been
incurred in Phase III to the tune of almost 100% at
the time when the Phase II contract was nullified.
So if we stop the implementation of Phase III just
because Phase II was nullified, which means that
there would be no consolidation and accounting –
consolidation for the machines, then it would be
again 300 million pesos down the drain.
Necessarily there would be additional expense but
we see this as a consequence of the loss of Phase
II. I share the view of Comm. Tuason that as much
as possible this should be taken from the
modernization fund as much as this is properly
modernization concern. However, I would like to
open myself to the possibility na in case wala
talaga, we might explore the possibility of
realigning funds although that might not …
(inaudible). Now with regards the legality, I think
what Commissioner Borra has derived his opinion
but I would like to think the legality issue must
have been settled already as early as when we
approved the modernization program involving all
three phases although we also grant the benefit of
the argument for Commissioner Borra if he thinks
that there is going to be a legal gap for the loss of
Phase II. With regards the concern with the
Election Officers, I also share the same concern. In
fact, on this matter alone, we try to make the GI
as simple as possible so that whatever burden we
will be giving to the EOs and EAs will be
minimized. As in fact, we will be recommending
that the EOs will no longer be bothered to attend
the training. They can probably just sit in for the
first hour and then they can go on with their
normal routine and then leave the encoders as well
as the reception officers to attend the training
because there (sic) are the people who will really
be doing the ministerial, almost mechanical, work
of encoding and transmitting the election results.
Yun lang.44
We have reviewed Rep. Act No. 9206, the General
Appropriations Act, which took effect on April 23, 2003 and
find no appropriation for the project of the COMELEC for
electronic transmission of "unofficial" election results. What
is appropriated therein is the amount of ₱225,000,000 of
the capital outlay for the modernization of the electoral
system.
B. PROJECTS
I Locally-Funded Projects
. May 11, 2004. Pasay City, Philippines.
a. For the Modernization of Electoral
System
b. FY 2003 Preparatory Activities for
National Elections
c. Upgrading of Voters’ Database
d. Conduct of Special Election to fill the
vacancy in the Third District of Cavite
e. Implementation of Absentee Voting
Act of 2003 (RA 9189)
Sub-Total, Locally-Funded Projects
Under paragraph 3 of the special provisions of Rep. Act No.
9206, the amount of ₱225,000,000 shall be used primarily
for the establishment of the AES prescribed under Rep. Act
No. 8436, viz:
3. Modernization of Electoral System. The
appropriations herein authorized for the
Modernization of the Electoral System in the
amount of Two Hundred Twenty-Five Million Pesos
(₱225,000,000.00) shall be used primarily for the
establishment of the automated election system,
prescribed under Republic Act No. 8436,
particularly for the process of voting, counting of
votes and canvassing/consolidation of results of
the national and local elections.46
Section 52 of Rep. Act No. 9206 proscribes any change or
modification in the expenditure items authorized
thereunder. Thus:
Sec. 52. Modification of Expenditure Components.
Unless specifically authorized in this Act, no
change or modification shall be made in the
expenditure items in this Act and other
appropriations laws unless in cases of
augmentation from savings in appropriations as
authorized under Section 25(5), Article VI of the
1987 Philippine Constitution.
Neither can the money needed for the project be taken
from the COMELEC’s savings, if any, because it would be
violative of Article VI, Section 25 (5)47 of the 1987
Constitution.
The power to augment from savings lies dormant until
authorized by law.48 In this case, no law has, thus, far been
enacted authorizing the respondent COMELEC to transfer
savings from another item in its appropriation, if there are
any, to fund the assailed resolution. No less than the
22 | Executive
Secretary of the Senate certified that there is no law
appropriating any amount for an "unofficial" count and
tabulation of the votes cast during the May 10, 2004
elections:
CERTIFICATION
I hereby certify that per records of the Senate,
Congress has not legislated any appropriation
Maintenance & Otherintended to defray the cost of an unofficial count,
Operating Expenses tabulation or consolidation of the votes cast during
the May 10, 2004 elections.
What is worrisome is that despite the concerns of the
Commissioners during its En Banc meeting on April 27,
2004, the COMELEC nevertheless approved the assailed
resolution the very next day. The COMELEC had not
executed any supplemental contract for the implementation
of the project with PMSI. Worse, even in the absence of a
certification of availability of funds for the project, it
approved the assailed resolution.
Third. The assailed resolution disregards existing laws
which authorize solely the duly-accredited citizens’ arm to
conduct the "unofficial" counting of votes. Under Section 27
of Rep. Act No. 7166, as amended by Rep. Act No.
8173,49 and reiterated in Section 18 of Rep. Act No.
8436,50 the accredited citizen’s arm - in this case, NAMFREL
- is exclusively authorized to use a copy of the election
returns in the conduct of an "unofficial" counting of the
votes, whether for the national or the local elections. No
other entity, including the respondent COMELEC itself, is
authorized to use a copy of the election returns for
purposes of conducting an "unofficial" count. In addition,
the second or third copy of the election returns, while
required to be delivered to the COMELEC under the
aforementioned laws, are not intended for undertaking an
"unofficial" count. The aforesaid COMELEC copies are
archived and unsealed only when needed by the respondent
COMELEC to verify election results in connection with
resolving election disputes that may be imminent. However,
in contravention of the law, the assailed Resolution
authorizes the so-called Reception Officers (RO), to open
the second or third copy intended for the respondent
COMELEC as basis for the encoding and transmission of
advanced "unofficial" precinct results. This not only violates
the exclusive prerogative of NAMFREL to conduct an
"unofficial" count, but also taints the integrity of the
envelopes containing the election returns, as well as the
returns themselves, by creating a gap in its chain of
custody from the Board of Election Inspectors to the
COMELEC.
Fourth. Section 52(i) of the Omnibus Election Code, which is
cited by the COMELEC as the statutory basis for the assailed
resolution, does not cover the use of the latest
technological and election devices for "unofficial"
tabulations of votes. Moreover, the COMELEC failed to
notify the authorized representatives of accredited political
parties and all candidates in areas affected by the use or
adoption of technological and electronic devices not less
than thirty days prior to the effectivity of the use of such
devices. Section 52(i) reads:
SEC. 52. Powers and functions of the Commission
on Elections. – In addition to the powers and
functions conferred upon it by the Constitution, the
Commission shall have exclusive charge of the
enforcement and administration of all laws relative
to the conduct of elections for the purpose of
ensuring free, orderly and honest elections, and
shall :
 … Now, how many candidates are there nationwide
now?
(i) Prescribe the use or adoption of the
latest technological and electronic COMM. SADAIN:
devices, taking into account the situation
prevailing in the area and the funds
I must admit you Honor we were not able to notify
available for the purpose: Provided, That
the candidates but we notified the politicians.
the Commission shall notify the
authorized representatives of accredited
political parties and candidates in areas JUSTICE CARPIO:
affected by the use or adoption of
technological and electronic devices not Yes, but what does the law state? Read the law
less than thirty days prior to the please.
effectivity of the use of such devices.

COMM. SADAIN:
From the clear terms of the above provision, before the
COMELEC may resort to and adopt the latest technological
and electronic devices for electoral purposes, it must act in Yes, Your Honor. I understand that it includes
accordance with the following conditions: candidates.

(a) Take into account the situation prevailing in the JUSTICE CARPIO:
area and the funds available for the purpose; and,
And there are how many candidates nationwide
(b) Notify the authorized representatives of running in this election?
accredited political parties and candidates in areas
affected by the use or adoption of technological COMM. SADAIN:
and electronic devices not less than thirty days
prior to the effectivity of the use of such devices.
Hundreds of thousands, Your Honor.

It is quite obvious that the purpose of this provision is to

accord to all political parties and all candidates the JUSTICE CARPIO:
opportunity to object to the effectiveness of the proposed
technology and devices, and, if they are so minded not to Hundreds of thousands, so you mean you just
object, to allow them ample time to field their own trusted notified the political parties not the candidates?
personnel especially in far flung areas and to take other
necessary measures to ensure the reliability of the
COMM. SADAIN:
proposed electoral technology or device.

Yes, Your Honor.

As earlier pointed out, the assailed resolution was issued by
the COMELEC despite most of the Commissioners’
apprehensions regarding the legal, operational and financial JUSTICE CARPIO:
impediments thereto. More significantly, since Resolution
No. 6712 was made effective immediately a day after its And you think that is substantial compliance, you
issuance on April 28, 2004, the respondent COMELEC could would notify how many political parties as against
not have possibly complied with the thirty-day notice hundreds of thousands of candidates?
requirement provided under Section 52(i) of the Omnibus
Election Code. This indubitably violates the constitutional
right to due process of the political parties and candidates. COMM. SADAIN:
The Office of the Solicitor General (OSG) concedes this
point, as it opines that "the authorized representatives of Yes, Your Honor, we notified the major political
accredited political parties and candidates should have been parties, Your Honor.
notified of the adoption of the electronic transmission of
election returns nationwide at the latest on April 7, 2004,
April 8 and 9 being Holy Thursday and Good Friday, JUSTICE CARPIO:
pursuant to Section 52(i) of the Omnibus Election
Code."51 Furthermore, during the hearing on May 18, 2004, Only the major political parties?
Commissioner Sadain, who appeared for the COMELEC,
unabashedly admitted that it failed to notify all the
COMM. SADAIN:
candidates for the 2004 elections, as mandated by law:

Including party list?

JUSTICE CARPIO:

JUSTICE CARPIO:
You stated that you have notified in writing all the
political parties and candidates as required in
Section 52 (i)? But not the candidates, individual candidates?

COMM. SADAIN: COMM. SADAIN:

Yes, Your Honor. We were not able to do that, Your Honor, I must
admit.
JUSTICE CARPIO:
JUSTICE CARPIO:

23 | Executive
 So, you did not notify hundreds of thousands of
candidates?
COMM. SADAIN:
No, Your Honors.52
The respondent COMELEC has, likewise, failed to submit
any resolution or document to prove that it had notified all
political parties of the intended adoption of Resolution No.
6712, in compliance with Section 52(i) of the Omnibus
Election Code. This notwithstanding the fact that even long
before the issuance of the assailed resolution, it had
admittedly entered into a contract on April 15, 200353 and
acquired facilities pertaining to the implementation of the
electronic transmission and official tabulation of election
results. As correctly pointed out by the petitioners-in-
intervention, the invitations dated January 15, 2004
regarding the January 20, 2004 COMELEC Conference with
the political parties on election security measures did not
mention electronic transmission of advanced results, much
less the formal adoption of the purpose of the conference.
Such "notices" merely invited the addressee thereof or
its/his authorized representative to a conference where the
COMELEC would show a sample of the official ballot to be
used in the elections, discuss various security measures
that COMELEC had put in place, and solicit suggestions to
improve the administration of the polls.54 Further, the
invitations purportedly sent out to the political
parties regarding the April 6, 2004 Field Test of the
Electronic Transmission, Consolidation and Dissemination
System to be conducted by the COMELEC appear to have
been sent out in the late afternoon of April 5, 2004, after
office hours. There is no showing that all the political parties
attended the Field Test, or received the invitations. More
importantly, the said invitations did not contain a formal
notice of the adoption of a technology, as required by
Section 52(i) of the Omnibus Election Code.55
Fifth. The assailed resolution has no constitutional and
statutory basis. That respondent COMELEC is the sole body
tasked to "enforce and administer all laws and regulations
relative to the conduct of an election, plebiscite, initiative,
referendum and recall"56 and to ensure "free, orderly,
honest, peaceful and credible elections"57 is beyond cavil.
That it possesses the power to promulgate rules and
regulations in the performance of its constitutional duties is,
likewise, undisputed. However, the duties of the COMELEC
under the Constitution, Rep. Act No. 7166, and other
election laws are carried out, at all times, in its official
capacity. There is no constitutional and statutory basis for
the respondent COMELEC to undertake a separate and an
"unofficial" tabulation of results, whether manually or
electronically. Indeed, by conducting such "unofficial"
tabulation of the results of the election, the COMELEC
descends to the level of a private organization, spending
public funds for the purpose. Besides, it is absurd for the
COMELEC to conduct two kinds of electoral counts – a slow
but "official" count, and an alleged quicker but "unofficial"
count, the results of each may substantially differ.
Clearly, the assailed resolution is an implementation of
Phase III of the modernization program of the COMELEC
under Rep. Act No. 8436. Section 2 of the assailed
resolution expressly refers to the Phase III-Modernization
Project of the COMELEC. Since this Court has already
scrapped the contract for Phase II of the AES, the COMELEC
cannot as yet implement the Phase III of the program. This
is so provided in Section 6 of Rep. Act No. 8436.
SEC. 6. Authority to Use an Automated Election System. --
To carry out the above-stated policy, the Commission on
Elections, herein referred to as the Commission, is hereby
authorized to use an automated election system, herein
referred to as the System, for the process of voting,
24 | Executive
counting of votes and canvassing/consolidation of results of
the national and local elections: Provided, however, That for
the May 11, 1998 elections, the System shall be applicable
in all areas within the country only for the positions of
president, vice-president, senators and parties,
organizations or coalitions participating under the party-list
system.
To achieve the purpose of this Act, the Commission is
authorized to procure by purchase, lease or otherwise, any
supplies, equipment, materials and services needed for the
holding of the elections by an expedited process of public
bidding of vendors, suppliers or lessors: Provided, That the
accredited political parties are duly notified of and allowed
to observe but not to participate in the bidding. If in spite of
its diligent efforts to implement this mandate in the
exercise of this authority, it becomes evident by February 9,
1998 that the Commission cannot fully implement the
automated election system for national positions in the May
11, 1998 elections, the elections for both national and local
positions shall be done manually except in the Autonomous
Region in Muslim Mindanao (ARMM) where the automated
election system shall be used for all positions.
The AES provided in Rep. Act No. 8436 constitutes the
entire "process of voting, counting of votes and
canvassing/consolidation of results of the national and local
elections" corresponding to the Phase I, Phase II and Phase
III of the AES of the COMELEC. The three phases cannot be
effected independently of each other. The implementation
of Phase II of the AES is a condition sine qua non to the
implementation of Phase III. The nullification by this Court
of the contract for Phase II of the System effectively put on
hold, at least for the May 10, 2004 elections, the
implementation of Phase III of the AES.
Sixth. As correctly observed by the petitioner, there is a
great possibility that the "unofficial" results reflected in the
electronic transmission under the supervision and control of
the COMELEC would significantly vary from the results
reflected in the COMELEC official count. The latter follows
the procedure prescribed by the Omnibus Election Code,
which is markedly different from the procedure envisioned
in the assailed resolution.
Under the Omnibus Election Code, after the votes are cast
and the polls closed, the Board of Election Inspectors (BEI)
for each precinct is enjoined to publicly count the votes and
record the same simultaneously on the tally boards and on
two sets of ERs. Each set of the ER is prepared in eight (8)
copies. After the ERs are accomplished, they are forwarded
to the Municipal Board of Canvassers (MBC), which would
canvass all the ERs and proclaim the elected municipal
officials. All the results in the ERs are transposed to the
statements of votes (SOVs) by precinct. These SOVs are
then transferred to the certificates of canvass (COCs) which
are, in turn, brought to the Provincial Board of Canvassers
(PBC). Subsequently, the PBC would canvass all the COCs
from various municipalities and proclaim the elected
provincial officials, including those to the House of
Representatives. The PBC would then prepare two sets of
Provincial Certificates of Canvass (PCOCs). One set is
forwarded to Congress for its canvassing of the results for
the President and Vice-President. The other set is forwarded
to the COMELEC for its canvassing of the results for
Senators.
As the results are transposed from one document to
another, and as each document undergoes the procedure of
canvassing by various Boards of Canvassers, election
returns and certificates of canvass are objected to and at
times excluded and/or deferred and not tallied, long after
the pre-proclamation controversies are resolved by the
canvass boards and the COMELEC.
On the other hand, under the assailed resolution, the Doubtless, these are laudable intentions. But the rule of law
precinct results of each city and municipality received by requires that even the best intentions must be carried out
the ETCs would be immediately electronically transmitted to within the parameters of the Constitution and the law.
the NCC. Such data, which have not undergone the process Verily, laudable purposes must be carried out by legal
of canvassing, would expectedly be dissimilar to the data on methods.59
which the official count would be based.
WHEREFORE, the petition is GRANTED. The assailed
Resultantly, the official and unofficial canvass, both to be Resolution No. 6712 dated April 28, 2004 issued by the
administered by the respondent COMELEC, would most Commission on Elections (COMELEC) En Banc is hereby
likely not tally. In the past elections, the "unofficial" quick declared NULL AND VOID.
count conducted by the NAMFREL had never tallied with
that of the official count of the COMELEC, giving rise to
SO ORDERED.
allegations of "trending" and confusion. With a second
"unofficial" count to be conducted by the official election
body, the respondent COMELEC, in addition to its official
count, allegations of "trending," would most certainly be
aggravated. As a consequence, the electoral process would
be undermined.

The only intimated utility claimed by the COMELEC for the

"unofficial" electronic transmission count is to avert the so-
called "dagdag-bawas." The purpose, however, as the
petitioner properly characterizes it, is a total sham. The
Court cannot accept as tenable the COMELEC’s profession
that from the results of the "unofficial" count, it would be
able to validate the credibility of the official tabulation. To
sanction this process would in effect allow the COMELEC to
preempt or prejudge an election question or dispute which
has not been formally brought before it for quasi-judicial
cognizance and resolutions.

Moreover, the Court doubts that the problem of "dagdag-

bawas" could be addressed by the implementation of the
assailed resolution. It is observed that such problem arises
because of the element of human intervention. In the
prevailing set up, there is human intervention because the
results are manually tallied, appreciated, and canvassed.
On the other hand, the electronic transmission of results is
not entirely devoid of human intervention. The crucial stage
of encoding the precinct results in the computers prior to
the transmission requires human intervention. Under the
assailed resolution, encoding is accomplished by employees
of the PMSI. Thus, the problem of "dagdag-bawas" could
still occur at this particular stage of the process.

As it stands, the COMELEC "unofficial" quick count would be

but a needless duplication of the NAMFREL "quick" count,
an illegal and unnecessary waste of government funds and
effort.

Conclusion

The Court is mindful of the salutary goals that the

respondent COMELEC had envisioned in promulgating the
assailed resolution, to wit: [t]o renew the public’s
confidence in the Philippine Electoral System by:

1. Facilitating transparency in the process;

2. Ensuring the integrity of the results;

3. Reducing election results manipulation;

4. Providing timely, fast and accurate information

to provide the public re election results;

5. Enabling the validation of its own official count

and other counts;

6. Having an audit trail in its own account.58

25 | Executive

EN BANC
G.R. No. 146710-15      March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
ANIANO DESIERTO, in his capacity as Ombudsman,
RAMON GONZALES, VOLUNTEERS AGAINST CRIME
AND CORRUPTION, GRAFT FREE PHILIPPINES
FOUNDATION, INC., LEONARD DE VERA, DENNIS
FUNA, ROMEO CAPULONG and ERNESTO B.
FRANCISCO, JR., respondent.
----------------------------------------
G.R. No. 146738      March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, respondent.
PUNO, J.:
On the line in the cases at bar is the office of the President.
Petitioner Joseph Ejercito Estrada alleges that he is the
President on leave while respondent Gloria Macapagal-
Arroyo claims she is the President. The warring
personalities are important enough but more transcendental
are the constitutional issues embedded on the parties'
dispute. While the significant issues are many, the jugular
issue involves the relationship between the ruler and the
ruled in a democracy, Philippine style.
First, we take a view of the panorama of events that
precipitated the crisis in the office of the President.
In the May 11, 1998 elections, petitioner Joseph Ejercito
Estrada was elected President while respondent Gloria
Macapagal-Arroyo was elected Vice-President. Some ten
(10) million Filipinos voted for the petitioner believing he
would rescue them from life's adversity. Both petitioner and
the respondent were to serve a six-year term commencing
on June 30, 1998.
From the beginning of his term, however, petitioner was
plagued by a plethora of problems that slowly but surely
eroded his popularity. His sharp descent from power started
on October 4, 2000. Ilocos Sur Governor, Luis "Chavit"
Singson, a longtime friend of the petitioner, went on air and
accused the petitioner, his family and friends of receiving
millions of pesos from jueteng lords.1
The exposẻ immediately ignited reactions of rage. The next
day, October 5, 2000, Senator Teofisto Guingona, Jr., then
the Senate Minority Leader, took the floor and delivered a
fiery privilege speech entitled "I Accuse." He accused the
26 | Executive
petitioner of receiving some P220 million in jueteng money
from Governor Singson from November 1998 to August
2000. He also charged that the petitioner took from
Governor Singson P70 million on excise tax on cigarettes
intended for Ilocos Sur. The privilege speech was referred
by then Senate President Franklin Drilon, to the Blue Ribbon
Committee (then headed by Senator Aquilino Pimentel) and
the Committee on Justice (then headed by Senator Renato
Cayetano) for joint investigation.2
The House of Representatives did no less. The House
Committee on Public Order and Security, then headed by
Representative Roilo Golez, decided to investigate the
exposẻ of Governor Singson. On the other hand,
Representatives Heherson Alvarez, Ernesto Herrera and
Michael Defensor spearheaded the move to impeach the
petitioner.
Calls for the resignation of the petitioner filled the air. On
October 11, Archbishop Jaime Cardinal Sin issued a pastoral
statement in behalf of the Presbyteral Council of the
Archdiocese of Manila, asking petitioner to step down from
the presidency as he had lost the moral authority to
govern.3 Two days later or on October 13, the Catholic
Bishops Conference of the Philippines joined the cry for the
resignation of the petitioner.4 Four days later, or on October
17, former President Corazon C. Aquino also demanded that
the petitioner take the "supreme self-sacrifice" of
resignation.5 Former President Fidel Ramos also joined the
chorus. Early on, or on October 12, respondent Arroyo
resigned as Secretary of the Department of Social Welfare
and Services6 and later asked for petitioner's
resignation.7 However, petitioner strenuously held on to his
office and refused to resign.
The heat was on. On November 1, four (4) senior economic
advisers, members of the Council of Senior Economic
Advisers, resigned. They were Jaime Augusto Zobel de
Ayala, former Prime Minister Cesar Virata, former Senator
Vicente Paterno and Washington Sycip.8 On November 2,
Secretary Mar Roxas II also resigned from the Department
of Trade and Industry.9 On November 3, Senate President
Franklin Drilon, and House Speaker Manuel Villar, together
with some 47 representatives defected from the ruling
coalition, Lapian ng Masang Pilipino.10
The month of November ended with a big bang. In a
tumultuous session on November 13, House Speaker Villar
transmitted the Articles of Impeachment11 signed by 115
representatives, or more than 1/3 of all the members of the
House of Representatives to the Senate. This caused
political convulsions in both houses of Congress. Senator
Drilon was replaced by Senator Pimentel as Senate
President. Speaker Villar was unseated by Representative
Fuentebella.12 On November 20, the Senate formally opened
the impeachment trial of the petitioner. Twenty-one (21)
senators took their oath as judges with Supreme Court
Chief Justice Hilario G. Davide, Jr., presiding.13
The political temperature rose despite the cold December.
On December 7, the impeachment trial started.14 The battle
royale was fought by some of the marquee names in the
legal profession. Standing as prosecutors were then House
Minority Floor Leader Feliciano Belmonte and
Representatives Joker Arroyo, Wigberto Tañada, Sergio
Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina,
Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio
Nachura. They were assisted by a battery of private
prosecutors led by now Secretary of Justice Hernando Perez
and now Solicitor General Simeon Marcelo. Serving as
defense counsel were former Chief Justice Andres Narvasa,
former Solicitor General and Secretary of Justice Estelito P.
Mendoza, former City Fiscal of Manila Jose Flaminiano,
former Deputy Speaker of the House Raul Daza, Atty.
Siegfried Fortun and his brother, Atty. Raymund Fortun.
The day to day trial was covered by live TV and during its
course enjoyed the highest viewing rating. Its high and low
points were the constant conversational piece of the
chattering classes. The dramatic point of the December
hearings was the testimony of Clarissa Ocampo, senior vice
president of Equitable-PCI Bank. She testified that she was
one foot away from petitioner Estrada when he affixed the
signature "Jose Velarde" on documents involving a P500
million investment agreement with their bank on February
4, 2000.15
After the testimony of Ocampo, the impeachment trial was
adjourned in the spirit of Christmas. When it resumed on
January 2, 2001, more bombshells were exploded by the
prosecution. On January 11, Atty. Edgardo Espiritu who
served as petitioner's Secretary of Finance took the witness
stand. He alleged that the petitioner jointly owned BW
Resources Corporation with Mr. Dante Tan who was facing
charges of insider trading.16 Then came the fateful day of
January 16, when by a vote of 11-1017 the senator-judges
ruled against the opening of the second envelope which
allegedly contained evidence showing that petitioner held
P3.3 billion in a secret bank account under the name "Jose
Velarde." The public and private prosecutors walked out in
protest of the ruling. In disgust, Senator Pimentel resigned
as Senate President.18 The ruling made at 10:00 p.m. was
met by a spontaneous outburst of anger that hit the streets
of the metropolis. By midnight, thousands had assembled at
the EDSA Shrine and speeches full of sulphur were
delivered against the petitioner and the eleven (11)
senators.
On January 17, the public prosecutors submitted a letter to
Speaker Fuentebella tendering their collective resignation.
They also filed their Manifestation of Withdrawal of
Appearance with the impeachment tribunal.19 Senator Raul
Roco quickly moved for the indefinite postponement of the
impeachment proceedings until the House of
Representatives shall have resolved the issue of resignation
of the public prosecutors. Chief Justice Davide granted the
motion.20
January 18 saw the high velocity intensification of the call
for petitioner's resignation. A 10-kilometer line of people
holding lighted candles formed a human chain from the
Ninoy Aquino Monument on Ayala Avenue in Makati City to
the EDSA Shrine to symbolize the people's solidarity in
demanding petitioner's resignation. Students and teachers
walked out of their classes in Metro Manila to show their
concordance. Speakers in the continuing rallies at the EDSA
Shrine, all masters of the physics of persuasion, attracted
more and more people.21
On January 19, the fall from power of the petitioner
appeared inevitable. At 1:20 p.m., the petitioner informed
Executive Secretary Edgardo Angara that General Angelo
Reyes, Chief of Staff of the Armed Forces of the Philippines,
had defected. At 2:30 p.m., petitioner agreed to the holding
of a snap election for President where he would not be a
candidate. It did not diffuse the growing crisis. At 3:00
p.m., Secretary of National Defense Orlando Mercado and
General Reyes, together with the chiefs of all the armed
services went to the EDSA Shrine.22 In the presence of
former Presidents Aquino and Ramos and hundreds of
thousands of cheering demonstrators, General Reyes
declared that "on behalf of Your Armed Forces, the 130,000
strong members of the Armed Forces, we wish to announce
that we are withdrawing our support to this
government."23 A little later, PNP Chief, Director General
Panfilo Lacson and the major service commanders gave a
similar stunning announcement.24 Some Cabinet
secretaries, undersecretaries, assistant secretaries, and
bureau chiefs quickly resigned from their posts.25 Rallies for
the resignation of the petitioner exploded in various parts of
the country. To stem the tide of rage, petitioner announced
he was ordering his lawyers to agree to the opening of the
27 | Executive
highly controversial second envelope.26 There was no
turning back the tide. The tide had become a tsunami.
January 20 turned to be the day of surrender. At 12:20
a.m., the first round of negotiations for the peaceful and
orderly transfer of power started at Malacañang'' Mabini
Hall, Office of the Executive Secretary. Secretary Edgardo
Angara, Senior Deputy Executive Secretary Ramon
Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary
Boying Remulla, and Atty. Macel Fernandez, head of the
Presidential Management Staff, negotiated for the
petitioner. Respondent Arroyo was represented by now
Executive Secretary Renato de Villa, now Secretary of
Finance Alberto Romulo and now Secretary of Justice
Hernando Perez.27 Outside the palace, there was a brief
encounter at Mendiola between pro and anti-Estrada
protesters which resulted in stone-throwing and caused
minor injuries. The negotiations consumed all morning until
the news broke out that Chief Justice Davide would
administer the oath to respondent Arroyo at high noon at
the EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the
oath to respondent Arroyo as President of the
Philippines.28 At 2:30 p.m., petitioner and his family
hurriedly left Malacañang Palace.29 He issued the following
press statement:30
"20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve o'clock noon today, Vice President Gloria
Macapagal-Arroyo took her oath as President of
the Republic of the Philippines. While along with
many other legal minds of our country, I have
strong and serious doubts about the legality and
constitutionality of her proclamation as President, I
do not wish to be a factor that will prevent the
restoration of unity and order in our civil society.
It is for this reason that I now leave Malacañang
Palace, the seat of the presidency of this country,
for the sake of peace and in order to begin the
healing process of our nation. I leave the Palace of
our people with gratitude for the opportunities
given to me for service to our people. I will not
shirk from any future challenges that may come
ahead in the same service of our country.
I call on all my supporters and followers to join me
in to promotion of a constructive national spirit of
reconciliation and solidarity.
May the Almighty bless our country and beloved
people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA"
It also appears that on the same day, January 20, 2001, he
signed the following letter:31
"Sir:
By virtue of the provisions of Section 11, Article
VII of the Constitution, I am hereby transmitting
this declaration that I am unable to exercise the
 powers and duties of my office. By operation of law
and the Constitution, the Vice-President shall be
the Acting President.
(Sgd.) JOSEPH EJERCITO ESTRADA"
A copy of the letter was sent to former Speaker Fuentebella
at 8:30 a.m. on January 20.23 Another copy was transmitted
to Senate President Pimentel on the same day although it
was received only at 9:00 p.m.33
On January 22, the Monday after taking her oath,
respondent Arroyo immediately discharged the powers the
duties of the Presidency. On the same day, this Court
issued the following Resolution in Administrative Matter No.
01-1-05-SC, to wit:
"A.M. No. 01-1-05-SC — In re: Request of Vice
President Gloria Macapagal-Arroyo to Take her
Oath of Office as President of the Republic of the
Philippines before the Chief Justice — Acting on the
urgent request of Vice President Gloria Macapagal-
Arroyo to be sworn in as President of the Republic
of the Philippines, addressed to the Chief Justice
and confirmed by a letter to the Court, dated
January 20, 2001, which request was treated as an
administrative matter, the court Resolve
unanimously to confirm the authority given by the
twelve (12) members of the Court then present to
the Chief Justice on January 20, 2001 to
administer the oath of office of Vice President
Gloria Macapagal-Arroyo as President of the
Philippines, at noon of January 20,
2001.1âwphi1.nêt
This resolution is without prejudice to the
disposition of any justiciable case that may be filed
by a proper party."
Respondent Arroyo appointed members of her Cabinet as
well as ambassadors and special envoys.34 Recognition of
respondent Arroyo's government by foreign governments
swiftly followed. On January 23, in a reception or vin d'
honneur at Malacañang, led by the Dean of the Diplomatic
Corps, Papal Nuncio Antonio Franco, more than a hundred
foreign diplomats recognized the government of respondent
Arroyo.35 US President George W. Bush gave the respondent
a telephone call from the White House conveying US
recognition of her government.36
On January 24, Representative Feliciano Belmonte was
elected new Speaker of the House of Representatives.37 The
House then passed Resolution No. 175 "expressing the full
support of the House of Representatives to the
administration of Her Excellency, Gloria Macapagal-Arroyo,
President of the Philippines."38 It also approved Resolution
No. 176 "expressing the support of the House of
Representatives to the assumption into office by Vice
President Gloria Macapagal-Arroyo as President of the
Republic of the Philippines, extending its congratulations
and expressing its support for her administration as a
partner in the attainment of the nation's goals under the
Constitution."39
On January 26, the respondent signed into law the Solid
Waste Management Act.40 A few days later, she also signed
into law the Political Advertising ban and Fair Election
Practices Act.41
On February 6, respondent Arroyo nominated Senator
Teofisto Guingona, Jr., as her Vice President.42 The next
day, February 7, the Senate adopted Resolution No. 82
confirming the nomination of Senator Guingona,
28 | Executive
Jr.43 Senators Miriam Defensor-Santiago, Juan Ponce Enrile,
and John Osmena voted "yes" with reservations, citing as
reason therefor the pending challenge on the legitimacy of
respondent Arroyo's presidency before the Supreme Court.
Senators Teresa Aquino-Oreta and Robert Barbers were
absent.44 The House of Representatives also approved
Senator Guingona's nomination in Resolution No.
178.45 Senator Guingona, Jr. took his oath as Vice President
two (2) days later.46
On February 7, the Senate passed Resolution No. 83
declaring that the impeachment court is functus officio and
has been terminated.47 Senator Miriam Defensor-Santiago
stated "for the record" that she voted against the closure of
the impeachment court on the grounds that the Senate had
failed to decide on the impeachment case and that the
resolution left open the question of whether Estrada was
still qualified to run for another elective post.48
Meanwhile, in a survey conducted by Pulse Asia, President
Arroyo's public acceptance rating jacked up from 16% on
January 20, 2001 to 38% on January 26, 2001.49 In another
survey conducted by the ABS-CBN/SWS from February 2-7,
2001, results showed that 61% of the Filipinos nationwide
accepted President Arroyo as replacement of petitioner
Estrada. The survey also revealed that President Arroyo is
accepted by 60% in Metro Manila, by also 60% in the
balance of Luzon, by 71% in the Visayas, and 55% in
Mindanao. Her trust rating increased to 52%. Her
presidency is accepted by majorities in all social classes:
58% in the ABC or middle-to-upper classes, 64% in the D
or mass class, and 54% among the E's or very poor class.50
After his fall from the pedestal of power, the petitioner's
legal problems appeared in clusters. Several cases
previously filed against him in the Office of the Ombudsman
were set in motion. These are: (1) OMB Case No. 0-00-
1629, filed by Ramon A. Gonzales on October 23, 2000 for
bribery and graft and corruption; (2) OMB Case No. 0-00-
1754 filed by the Volunteers Against Crime and Corruption
on November 17, 2000 for plunder, forfeiture, graft and
corruption, bribery, perjury, serious misconduct, violation of
the Code of Conduct for Government Employees, etc; (3)
OMB Case No. 0-00-1755 filed by the Graft Free Philippines
Foundation, Inc. on November 24, 2000 for plunder,
forfeiture, graft and corruption, bribery, perjury, serious
misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo
Capulong, et al., on November 28, 2000 for malversation of
public funds, illegal use of public funds and property,
plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard
de Vera, et al., on November 28, 2000 for bribery, plunder,
indirect bribery, violation of PD 1602, PD 1829, PD 46, and
RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto
B. Francisco, Jr. on December 4, 2000 for plunder, graft
and corruption.
A special panel of investigators was forthwith created by the
respondent Ombudsman to investigate the charges against
the petitioner. It is chaired by Overall Deputy Ombudsman
Margarito P. Gervasio with the following as members, viz:
Director Andrew Amuyutan, Prosecutor Pelayo Apostol,
Atty. Jose de Jesus and Atty. Emmanuel Laureso. On
January 22, the panel issued an Order directing the
petitioner to file his counter-affidavit and the affidavits of
his witnesses as well as other supporting documents in
answer to the aforementioned complaints against him.
Thus, the stage for the cases at bar was set. On February 5,
petitioner filed with this Court GR No. 146710-15, a petition
for prohibition with a prayer for a writ of preliminary
injunction. It sought to enjoin the respondent Ombudsman
from "conducting any further proceedings in Case Nos. OMB
0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any
other criminal complaint that may be filed in his office, until
after the term of petitioner as President is over and only if
legally warranted." Thru another counsel, petitioner, on
February 6, filed GR No. 146738 for Quo Warranto. He
prayed for judgment "confirming petitioner to be the lawful
and incumbent President of the Republic of the Philippines
temporarily unable to discharge the duties of his office, and
declaring respondent to have taken her oath as and to be
holding the Office of the President, only in an acting
capacity pursuant to the provisions of the Constitution."
Acting on GR Nos. 146710-15, the Court, on the same day,
February 6, required the respondents "to comment thereon
within a non-extendible period expiring on 12 February
2001." On February 13, the Court ordered the consolidation
of GR Nos. 146710-15 and GR No. 146738 and the filing of
the respondents' comments "on or before 8:00 a.m. of
February 15."
On February 15, the consolidated cases were orally argued
in a four-hour hearing. Before the hearing, Chief Justice
Davide, Jr.51 and Associate Justice Artemio
Panganiban52 recused themselves on motion of petitioner's
counsel, former Senator Rene A. Saguisag. They debunked
the charge of counsel Saguisag that they have
"compromised themselves by indicating that they have
thrown their weight on one side" but nonetheless inhibited
themselves. Thereafter, the parties were given the short
period of five (5) days to file their memoranda and two (2)
days to submit their simultaneous replies.
In a resolution dated February 20, acting on the urgent
motion for copies of resolution and press statement for
"Gag Order" on respondent Ombudsman filed by counsel for
petitioner in G.R. No. 146738, the Court resolved:
"(1) to inform the parties that the Court did not
issue a resolution on January 20, 2001 declaring
the office of the President vacant and that neither
did the Chief Justice issue a press statement
justifying the alleged resolution;
(2) to order the parties and especially their counsel
who are officers of the Court under pain of being
cited for contempt to refrain from making any
comment or discussing in public the merits of the
cases at bar while they are still pending decision
by the Court, and
(3) to issue a 30-day status quo order effective
immediately enjoining the respondent Ombudsman
from resolving or deciding the criminal cases
pending investigation in his office against
petitioner, Joseph E. Estrada and subject of the
cases at bar, it appearing from news reports that
the respondent Ombudsman may immediately
resolve the cases against petitioner Joseph E.
Estrada seven (7) days after the hearing held on
February 15, 2001, which action will make the
cases at bar moot and academic."53
The parties filed their replies on February 24. On this date,
the cases at bar were deemed submitted for decision.
The bedrock issues for resolution of this Court are:
I unusual need for unquestioning adherence to a
Whether the petitions present a justiciable
controversy.
II
Assuming that the petitions present a justiciable
controversy, whether petitioner Estrada is a
29 | Executive
President on leave while respondent Arroyo is an
Acting President.
III
Whether conviction in the impeachment
proceedings is a condition precedent for the
criminal prosecution of petitioner Estrada. In the
negative and on the assumption that petitioner is
still President, whether he is immune from criminal
prosecution.
IV
Whether the prosecution of petitioner Estrada
should be enjoined on the ground of prejudicial
publicity.
We shall discuss the issues in seriatim.
I
Whether or not the cases
At bar involve a political question
Private respondents54 raise the threshold issue that the
cases at bar pose a political question, and hence, are
beyond the jurisdiction of this Court to decide. They
contend that shorn of its embroideries, the cases at bar
assail the "legitimacy of the Arroyo administration." They
stress that respondent Arroyo ascended the presidency
through people power; that she has already taken her oath
as the 14th President of the Republic; that she has exercised
the powers of the presidency and that she has been
recognized by foreign governments. They submit that these
realities on ground constitute the political thicket, which the
Court cannot enter.
We reject private respondents' submission. To be sure,
courts here and abroad, have tried to lift the shroud on
political question but its exact latitude still splits the best of
legal minds. Developed by the courts in the 20th century,
the political question doctrine which rests on the principle of
separation of powers and on prudential considerations,
continue to be refined in the mills of constitutional law.55 In
the United States, the most authoritative guidelines to
determine whether a question is political were spelled out
by Mr. Justice Brennan in the 1962 case or Baker v.
Carr,56 viz:
"x x x Prominent on the surface of any case held to
involve a political question is found a textually
demonstrable constitutional commitment of the
issue to a coordinate political department or a lack
of judicially discoverable and manageable
standards for resolving it, or the impossibility of
deciding without an initial policy determination of a
kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking independent
resolution without expressing lack of the respect
due coordinate branches of government; or an
political decision already made; or the potentiality
of embarrassment from multifarious
pronouncements by various departments on
question. Unless one of these formulations is
inextricable from the case at bar, there should be
no dismissal for non justiciability on the ground of
a political question's presence. The doctrine of
which we treat is one of 'political questions', not of
'political cases'."
In the Philippine setting, this Court has been continuously
confronted with cases calling for a firmer delineation of the
inner and outer perimeters of a political question. 57 Our
leading case is Tanada v. Cuenco,58 where this Court,
through former Chief Justice Roberto Concepcion, held that
political questions refer "to those questions which, under
the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full
discretionary authority has been delegated to the
legislative or executive branch of the government. It is
concerned with issues dependent upon the wisdom,
not legality of a particular measure." To a great degree,
the 1987 Constitution has narrowed the reach of the
political question doctrine when it expanded the power of
judicial review of this court not only to settle actual
controversies involving rights which are legally demandable
and enforceable but also to determine whether or not
there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any
branch or instrumentality of government. 59 Heretofore,
the judiciary has focused on the "thou shalt not's" of the
Constitution directed against the exercise of its
jurisdiction.60 With the new provision, however, courts are
given a greater prerogative to determine what it can do to
prevent grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of government. Clearly, the new
provision did not just grant the Court power of doing
nothing. In sync and symmetry with this intent are other
provisions of the 1987 Constitution trimming the so called
political thicket. Prominent of these provisions is section 18
of Article VII which empowers this Court in limpid language
to "x x x review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the
privilege of the writ (of habeas corpus) or the extension
thereof x x x."
Respondents rely on the case of Lawyers League for a
Better Philippines and/or Oliver A. Lozano v.
President Corazon C. Aquino, et al. 61 and related
cases62 to support their thesis that since the cases at bar
involve the legitimacy of the government of
respondent Arroyo, ergo, they present a political
question. A more cerebral reading of the cited cases will
show that they are inapplicable. In the cited cases, we held
that the government of former President Aquino was the
result of a successful revolution by the sovereign people,
albeit a peaceful one. No less than the Freedom
Constitution63 declared that the Aquino government was
installed through a direct exercise of the power of the
Filipino people "in defiance of the provisions of the
1973 Constitution, as amended." In is familiar learning
that the legitimacy of a government sired by a successful
revolution by people power is beyond judicial scrutiny for
that government automatically orbits out of the
constitutional loop. In checkered contrast, the
government of respondent Arroyo is not revolutionary
in character. The oath that she took at the EDSA Shrine is
the oath under the 1987 Constitution.64 In her oath, she
categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is
discharging the powers of the presidency under the
authority of the 1987 Constitution.
In fine, the legal distinction between EDSA People Power I
EDSA People Power II is clear. EDSA I involves the exercise
of the people power of revolution which overthrew the
whole government. EDSA II is an exercise of people
power of freedom of speech and freedom of assembly
to petition the government for redress of
grievances which only affected the office of the
President. EDSA I is extra constitutional and the
legitimacy of the new government that resulted from it
cannot be the subject of judicial review, but EDSA II is
intra constitutional and the resignation of the sitting
President that it caused and the succession of the Vice
30 | Executive
President as President are subject to judicial review. EDSA
I presented a political question; EDSA II involves
legal questions. A brief discourse on freedom of speech
and of the freedom of assembly to petition the government
for redress of grievance which are the cutting edge of
EDSA People Power II is not inappropriate.
Freedom of speech and the right of assembly are treasured
by Filipinos. Denial of these rights was one of the reasons of
our 1898 revolution against Spain. Our national hero, Jose
P. Rizal, raised the clarion call for the recognition of
freedom of the press of the Filipinos and included it as
among "the reforms sine quibus non."65 The Malolos
Constitution, which is the work of the revolutionary
Congress in 1898, provided in its Bill of Rights that Filipinos
shall not be deprived (1) of the right to freely express his
ideas or opinions, orally or in writing, through the use of the
press or other similar means; (2) of the right of association
for purposes of human life and which are not contrary to
public means; and (3) of the right to send petitions to the
authorities, individually or collectively." These
fundamental rights were preserved when the United
States acquired jurisdiction over the Philippines. In
the Instruction to the Second Philippine Commission of April
7, 1900 issued by President McKinley, it is specifically
provided "that no law shall be passed abridging the freedom
of speech or of the press or of the rights of the people to
peaceably assemble and petition the Government for
redress of grievances." The guaranty was carried over in
the Philippine Bill, the Act of Congress of July 1, 1902 and
the Jones Law, the Act of Congress of August 29, 1966.66
Thence on, the guaranty was set in stone in our 1935
Constitution,67 and the 197368 Constitution. These rights
are now safely ensconced in section 4, Article III of the
1987 Constitution, viz:
"Sec. 4. No law shall be passed abridging the
freedom of speech, of expression, or of the press,
or the right of the people peaceably to assemble
and petition the government for redress of
grievances."
The indispensability of the people's freedom of speech and
of assembly to democracy is now self-evident. The reasons
are well put by Emerson: first, freedom of expression is
essential as a means of assuring individual fulfillment;
second, it is an essential process for advancing knowledge
and discovering truth; third, it is essential to provide for
participation in decision-making by all members of society;
and fourth, it is a method of achieving a more adaptable
and hence, a more stable community of maintaining the
precarious balance between healthy cleavage and necessary
consensus."69 In this sense, freedom of speech and of
assembly provides a framework in which the "conflict
necessary to the progress of a society can take place
without destroying the society."70 In Hague v.
Committee for Industrial Organization, 71 this function
of free speech and assembly was echoed in the amicus
curiae filed by the Bill of Rights Committee of the American
Bar Association which emphasized that "the basis of the
right of assembly is the substitution of the expression of
opinion and belief by talk rather than force; and this
means talk for all and by all."72 In the relatively recent
case of Subayco v. Sandiganbayan,73 this Court similar
stressed that "… it should be clear even to those with
intellectual deficits that when the sovereign people
assemble to petition for redress of grievances, all should
listen. For in a democracy, it is the people who count;
those who are deaf to their grievances are ciphers."
Needless to state, the cases at bar pose legal and not
political questions. The principal issues for resolution
require the proper interpretation of certain provisions in the
1987 Constitution, notably section 1 of Article II,74 and
section 875 of Article VII, and the allocation of governmental
powers under section 1176 of Article VII. The issues likewise
call for a ruling on the scope of presidential immunity from
suit. They also involve the correct calibration of the right of
petitioner against prejudicial publicity. As early as the 1803
case of Marbury v. Madison,77 the doctrine has been laid
down that "it is emphatically the province and duty of
the judicial department to say what the law is . . ."
Thus, respondent's in vocation of the doctrine of political
question is but a foray in the dark.
II
Whether or not the petitioner
Resigned as President
We now slide to the second issue. None of the parties
considered this issue as posing a political question. Indeed,
it involves a legal question whose factual ingredient is
determinable from the records of the case and by resort to
judicial notice. Petitioner denies he resigned as President or
that he suffers from a permanent disability. Hence, he
submits that the office of the President was not vacant
when respondent Arroyo took her oath as President.
The issue brings under the microscope the meaning of
section 8, Article VII of the Constitution which provides:
"Sec. 8. In case of death, permanent disability,
removal from office or resignation of the President,
the Vice President shall become the President to
serve the unexpired term. In case of death,
permanent disability, removal from office, or
resignation of both the President and Vice
President, the President of the Senate or, in case
of his inability, the Speaker of the House of
Representatives, shall then act as President until
the President or Vice President shall have been
elected and qualified.
x x x."
The issue then is whether the petitioner resigned as
President or should be considered resigned as of January
20, 2001 when respondent took her oath as the
14th President of the Public. Resignation is not a high level
legal abstraction. It is a factual question and
its elements are beyond quibble: there must be an
intent to resign and the intent must be coupled by
acts of relinquishment. 78 The validity of a resignation is
not government by any formal requirement as to form. It
can be oral. It can be written. It can be express. It can be
implied. As long as the resignation is clear, it must be given
legal effect.
In the cases at bar, the facts show that petitioner did not
write any formal letter of resignation before he evacuated
Malacañang Palace in the afternoon of January 20, 2001
after the oath-taking of respondent Arroyo. Consequently,
whether or not petitioner resigned has to be determined
from his act and omissions before, during and after January
20, 2001 or by the totality of prior, contemporaneous
and posterior facts and circumstantial evidence
bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned
as President.
To appreciate the public pressure that led to the resignation
of the petitioner, it is important to follow the succession of
events after the exposẻ of Governor Singson. The Senate
Blue Ribbon Committee investigated. The more detailed
revelations of petitioner's alleged misgovernance in the Blue
31 | Executive
Ribbon investigation spiked the hate against him. The
Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher
chance of succeeding snowballed. In express speed, it
gained the signatures of 115 representatives or more than
1/3 of the House of Representatives. Soon, petitioner's
powerful political allies began deserting him. Respondent
Arroyo quit as Secretary of Social Welfare. Senate President
Drilon and former Speaker Villar defected with 47
representatives in tow. Then, his respected senior economic
advisers resigned together with his Secretary of Trade and
Industry.
As the political isolation of the petitioner worsened, the
people's call for his resignation intensified. The call reached
a new crescendo when the eleven (11) members of the
impeachment tribunal refused to open the second envelope.
It sent the people to paroxysms of outrage. Before the
night of January 16 was over, the EDSA Shrine was
swarming with people crying for redress of their grievance.
Their number grew exponentially. Rallies and demonstration
quickly spread to the countryside like a brush fire.
As events approached January 20, we can have an
authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of
Joseph Ejercito Estrada," the diary of Executive Secretary
Angara serialized in the Philippine Daily Inquirer.79 The
Angara Diary reveals that in the morning of January 19,
petitioner's loyal advisers were worried about the swelling
of the crowd at EDSA, hence, they decided to create an ad
hoc committee to handle it. Their worry would worsen. At
1:20 p.m., petitioner pulled Secretary Angara into his small
office at the presidential residence and exclaimed: "Ed,
seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is
serious. Angelo has defected.)" 80 An hour later or at 2:30
p.m., the petitioner decided to call for a snap presidential
election and stressed he would not be a candidate. The
proposal for a snap election for president in May
where he would not be a candidate is an indicium
that petitioner had intended to give up the presidency
even at that time. At 3:00 p.m., General Reyes joined the
sea of EDSA demonstrators demanding the resignation of
the petitioner and dramatically announced the AFP's
withdrawal of support from the petitioner and their pledge
of support to respondent Arroyo. The seismic shift of
support left petitioner weak as a president. According to
Secretary Angara, he asked Senator Pimentel to advise
petitioner to consider the option of "dignified exit or
resignation."81 Petitioner did not disagree but
listened intently. 82 The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the
petitioner the urgency of making a graceful and dignified
exit. He gave the proposal a sweetener by saying that
petitioner would be allowed to go abroad with enough funds
to support him and his family.83 Significantly, the
petitioner expressed no objection to the suggestion
for a graceful and dignified exit but said he would
never leave the country.84 At 10:00 p.m., petitioner
revealed to Secretary Angara, "Ed, Angie (Reyes)
guaranteed that I would have five days to a week in the
palace."85 This is proof that petitioner had reconciled
himself to the reality that he had to resign. His mind
was already concerned with the five-day grace period
he could stay in the palace. It was a matter of time.
The pressure continued piling up. By 11:00 p.m., former
President Ramos called up Secretary Angara and requested,
"Ed, magtulungan tayo para magkaroon tayo ng (let's
cooperate to ensure a) peaceful and orderly transfer of
power."86 There was no defiance to the request. Secretary
Angara readily agreed. Again, we note that at this
stage, the problem was already about a peaceful and
orderly transfer of power. The resignation of the
petitioner was implied.
The first negotiation for a peaceful and orderly transfer of 4. The Armed Forced of the Philippines, through its
power immediately started at 12:20 a.m. of January 20, Chief of Staff, shall guarantee the security of the
that fateful Saturday. The negotiation was limited to President and his family as approved by the
three (3) points: (1) the transition period of five days after national military and police authority (Vice
the petitioner's resignation; (2) the guarantee of the safety President).
of the petitioner and his family, and (3) the agreement to
open the second envelope to vindicate the name of the
5. It is to be noted that the Senate will open the
petitioner.87 Again, we note that the resignation of
second envelope in connection with the alleged
petitioner was not a disputed point. The petitioner
savings account of the President in the Equitable
cannot feign ignorance of this fact. According to
PCI Bank in accordance with the rules of the
Secretary Angara, at 2:30 a.m., he briefed the petitioner on
Senate, pursuant to the request to the Senate
the three points and the following entry in the Angara
President.
Diary shows the reaction of the petitioner, viz:

Our deal
"x x x

We bring out, too, our discussion draft which

I explain what happened during the first round of
reads:
negotiations. The President immediately stresses
that he just wants the five-day period promised
by Reyes, as well as to open the second envelope The undersigned parties, for and in behalf of their
to clear his name. respective principals, agree and undertake as
follows:
If the envelope is opened, on Monday, he
says, he will leave by Monday. '1. A transition will occur and take place on
Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over the
The President says. "Pagod na pagod na ako.
presidency to Vice President Gloria Macapagal-
Ayoko na masyado nang masakit. Pagod na
Arroyo.
ako sa red tape, bureaucracy, intriga. (I am
very tired. I don't want any more of this – it's
too painful. I'm tired of the red tape, the '2. In return, President Estrada and his families are
bureaucracy, the intrigue.) guaranteed security and safety of their person and
property throughout their natural lifetimes.
Likewise, President Estrada and his families are
I just want to clear my name, then I will
guarantee freedom from persecution or retaliation
go."88
from government and the private sector
throughout their natural lifetimes.
Again, this is high grade evidence that the petitioner
has resigned. The intent to resign is clear when he said "x
This commitment shall be guaranteed by the
x x Ayoko na masyado nang masakit." "Ayoko na"
Armed Forces of the Philippines (AFP) through the
are words of resignation.
Chief of Staff, as approved by the national military
and police authorities – Vice President
The second round of negotiation resumed at 7:30 a.m. (Macapagal).
According to the Angara Diary, the following happened:
'3. Both parties shall endeavor to ensure that the
"Opposition's deal Senate sitting as an impeachment court will
authorize the opening of the second envelope in
the impeachment trial as proof that the subject
7:30 a.m. – Rene arrives with Bert Romulo and
savings account does not belong to President
(Ms. Macapagal's spokesperson) Rene Corona. For
Estrada.
this round, I am accompanied by Dondon
Bagatsing and Macel.
'4. During the five-day transition period between
20 January 2001 and 24 January 2001 (the
Rene pulls out a document titled "Negotiating
'Transition Period"), the incoming Cabinet
Points." It reads:
members shall receive an appropriate briefing from
the outgoing Cabinet officials as part of the
'1. The President shall sign a resignation document orientation program.
within the day, 20 January 2001, that will be
effective on Wednesday, 24 January 2001, on
During the Transition Period, the AFP and the
which day the Vice President will assume the
Philippine National Police (PNP) shall function Vice
Presidency of the Republic of the Philippines.
President (Macapagal) as national military and
police authorities.
2. Beginning to day, 20 January 2001, the
transition process for the assumption of the new
Both parties hereto agree that the AFP chief of
administration shall commence, and persons
staff and PNP director general shall obtain all the
designated by the Vice President to various
necessary signatures as affixed to this agreement
positions and offices of the government shall start
and insure faithful implementation and observance
their orientation activities in coordination with the
thereof.
incumbent officials concerned.

Vice President Gloria Macapagal-Arroyo shall issue

3. The Armed Forces of the Philippines and the
a public statement in the form and tenor provided
Philippine National Police shall function under the
for in "Annex A" heretofore attached to this
Vice President as national military and police
agreement."89
authority effective immediately.

32 | Executive
The second round of negotiation cements the reading that
the petitioner has resigned. It will be noted that during this
second round of negotiation, the resignation of the
petitioner was again treated as a given fact. The only
unsettled points at that time were the measures to be
undertaken by the parties during and after the transition
period.
According to Secretary Angara, the draft agreement, which
was premised on the resignation of the petitioner was
further refined. It was then, signed by their side and he was
ready to fax it to General Reyes and Senator Pimentel to
await the signature of the United Opposition. However, the
signing by the party of the respondent Arroyo was aborted
by her oath-taking. The Angara diary narrates the fateful
events, viz;90
"xxx
11:00 a.m. – Between General Reyes and myself,
there is a firm agreement on the five points to
effect a peaceful transition. I can hear the general
clearing all these points with a group he is with. I
hear voices in the background.
Agreement.
The agreement starts: 1. The President shall resign
today, 20 January 2001, which resignation shall be
effective on 24 January 2001, on which day the
Vice President will assume the presidency of the
Republic of the Philippines.
xxx
The rest of the agreement follows:
2. The transition process for the assumption of the
new administration shall commence on 20 January
2001, wherein persons designated by the Vice
President to various government positions shall
start orientation activities with incumbent officials.
'3. The Armed Forces of the Philippines through its
Chief of Staff, shall guarantee the safety and
security of the President and his families
throughout their natural lifetimes as approved by
the national military and police authority – Vice
President.
'4. The AFP and the Philippine National Police (PNP)
shall function under the Vice President as national
military and police authorities.
'5. Both parties request the impeachment court to
open the second envelope in the impeachment
trial, the contents of which shall be offered as
proof that the subject savings account does not
belong to the President.
The Vice President shall issue a public statement in
the form and tenor provided for in Annex "B"
heretofore attached to this agreement.
11:20 a.m. – I am all set to fax General Reyes and
Nene Pimentel our agreement, signed by our side
and awaiting the signature of the United
opposition.
And then it happens. General Reyes calls me to
say that the Supreme Court has decided that
33 | Executive
Gloria Macapagal-Arroyo is President and will be
sworn in at 12 noon.
'Bakit hindi naman kayo nakahintay? Paano na ang
agreement (why couldn't you wait? What about
the agreement)?' I asked.
Reyes answered: 'Wala na, sir (it's over, sir).'
I ask him: Di yung transition period, moot and
academic na?'
And General Reyes answers: ' Oo nga, I delete na
natin, sir (yes, we're deleting the part).'
Contrary to subsequent reports, I do not react and
say that there was a double cross.
But I immediately instruct Macel to delete the first
provision on resignation since this matter is
already moot and academic. Within moments,
Macel erases the first provision and faxes the
documents, which have been signed by myself,
Dondon and Macel, to Nene Pimentel and General
Reyes.
I direct Demaree Ravel to rush the original
document to General Reyes for the signatures of
the other side, as it is important that the
provisions on security, at least, should be
respected.
I then advise the President that the Supreme Court
has ruled that Chief Justice Davide will administer
the oath to Gloria at 12 noon.
The President is too stunned for words:
Final meal
12 noon – Gloria takes her oath as president of the
Republic of the Philippines.
12:20 p.m. – The PSG distributes firearms to some
people inside the compound.
The president is having his final meal at the
presidential Residence with the few friends and
Cabinet members who have gathered.
By this time, demonstrators have already broken
down the first line of defense at Mendiola. Only the
PSG is there to protect the Palace, since the police
and military have already withdrawn their support
for the President.
1 p.m. – The President's personal staff is rushing
to pack as many of the Estrada family's personal
possessions as they can.
During lunch, Ronnie Puno mentions that the
president needs to release a final statement before
leaving Malacañang.
The statement reads: At twelve o'clock noon
today, Vice President Gloria Macapagal-Arroyo took
her oath as President of the Republic of the
Philippines. While along with many other legal
minds of our country, I have strong and serious
doubts about the legality and constitutionality of
 her proclamation as President, I do not wish to be
a factor that will prevent the restoration of unity
and order in our civil society.
It is for this reason that I now leave Malacañang
Palace, the seat of the presidency of this country,
for the sake of peace and in order to begin the
healing process of our nation. I leave the Palace of
our people with gratitude for the opportunities
given to me for service to our people. I will not
shirk from any future challenges that may come
ahead in the same service of our country.
I call on all my supporters and followers to join me
in the promotion of a constructive national spirit of
reconciliation and solidarity.
May the Almighty bless our country and our
beloved people.
MABUHAY!"'
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner
cannot be doubted. It was confirmed by his leaving
Malacañang. In the press release containing his final
statement, (1) he acknowledged the oath-taking of the
respondent as President of the Republic albeit with
reservation about its legality; (2) he emphasized he was
leaving the Palace, the seat of the presidency, for the sake
of peace and in order to begin the healing process of our
nation. He did not say he was leaving the Palace due to any
kind inability and that he was going to re-assume the
presidency as soon as the disability disappears: (3) he
expressed his gratitude to the people for the opportunity to
serve them. Without doubt, he was referring to the past
opportunity given him to serve the people as President (4)
he assured that he will not shirk from any future challenge
that may come ahead in the same service of our country.
Petitioner's reference is to a future challenge after
occupying the office of the president which he has given up;
and (5) he called on his supporters to join him in the
promotion of a constructive national spirit of reconciliation
and solidarity. Certainly, the national spirit of reconciliation
and solidarity could not be attained if he did not give up the
presidency. The press release was petitioner's valedictory,
his final act of farewell. His presidency is now in the part
tense.
It is, however, urged that the petitioner did not resign but
only took a temporary leave dated January 20, 2001 of the
petitioner sent to Senate President Pimentel and Speaker
Fuentebella is cited. Again, we refer to the said letter, viz:
"Sir.
By virtue of the provisions of Section II, Article VII
of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the
powers and duties of my office. By operation of law
and the Constitution, the Vice President shall be
the Acting president.
(Sgd.) Joseph Ejercito Estrada"
To say the least, the above letter is wrapped in
mystery.91 The pleadings filed by the petitioner in the cases
at bar did not discuss, may even intimate, the
circumstances that led to its preparation. Neither did the
counsel of the petitioner reveal to the Court these
circumstances during the oral argument. It strikes the Court
as strange that the letter, despite its legal value, was never
34 | Executive
referred to by the petitioner during the week-long crisis. To
be sure, there was not the slightest hint of its existence
when he issued his final press release. It was all too easy
for him to tell the Filipino people in his press release that he
was temporarily unable to govern and that he was leaving
the reins of government to respondent Arroyo for the time
bearing. Under any circumstance, however, the mysterious
letter cannot negate the resignation of the petitioner. If it
was prepared before the press release of the petitioner
clearly as a later act. If, however, it was prepared after the
press released, still, it commands scant legal significance.
Petitioner's resignation from the presidency cannot be the
subject of a changing caprice nor of a whimsical will
especially if the resignation is the result of his reputation by
the people. There is another reason why this Court cannot
given any legal significance to petitioner's letter and this
shall be discussed in issue number III of this Decision.
After petitioner contended that as a matter of fact he did
not resign, he also argues that he could not resign as a
matter of law. He relies on section 12 of RA No. 3019,
otherwise known as the Anti-graft and Corrupt Practices
Act, which allegedly prohibits his resignation, viz:
"Sec. 12. No public officer shall be allowed to
resign or retire pending an investigation, criminals
or administrative, or pending a prosecution against
him, for any offense under this Act or under the
provisions of the Revised Penal Code on bribery."
A reading of the legislative history of RA No. 3019 will
hardly provide any comfort to the petitioner. RA No. 3019
originated form Senate Bill No. 293. The original draft of the
bill, when it was submitted to the Senate, did not contain a
provision similar to section 12 of the law as it now stands.
However, in his sponsorship speech, Senator Arturo
Tolentino, the author of the bill, "reserved to propose
during the period of amendments the inclusion of a
provision to the effect that no public official who is under
prosecution for any act of graft or corruption, or is under
administrative investigation, shall be allowed to voluntarily
resign or retire."92 During the period of amendments, the
following provision was inserted as section 15:
"Sec. 15. Termination of office – No public official
shall be allowed to resign or retire pending an
investigation, criminal or administrative, or
pending a prosecution against him, for any offense
under the Act or under the provisions of the
Revised Penal Code on bribery.
The separation or cessation of a public official form
office shall not be a bar to his prosecution under
this Act for an offense committed during his
incumbency."93
The bill was vetoed by then President Carlos P. Garcia who
questioned the legality of the second paragraph of the
provision and insisted that the President's immunity should
extend after his tenure.
Senate Bill No. 571, which was substantially similar Senate
Bill No. 293, was thereafter passed. Section 15 above
became section 13 under the new bill, but the deliberations
on this particular provision mainly focused on the immunity
of the President, which was one of the reasons for the veto
of the original bill. There was hardly any debate on the
prohibition against the resignation or retirement of a public
official with pending criminal and administrative cases
against him. Be that as it may, the intent of the law ought
to be obvious. It is to prevent the act of resignation or
retirement from being used by a public official as a
protective shield to stop the investigation of a pending
criminal or administrative case against him and to prevent
his prosecution under the Anti-Graft Law or prosecution for duties of his office, and until he transmits to them
bribery under the Revised Penal Code. To be sure, no a written declaration to the contrary, such powers
person can be compelled to render service for that would be and duties shall be discharged by the Vice-
a violation of his constitutional right.94 A public official has President as Acting President.
the right not to serve if he really wants to retire or resign.
Nevertheless, if at the time he resigns or retires, a public
Whenever a majority of all the Members of the
official is facing administrative or criminal investigation or
Cabinet transmit to the President of the Senate
prosecution, such resignation or retirement will not cause
and to the Speaker of the House of
the dismissal of the criminal or administrative proceedings
Representatives their written declaration that the
against him. He cannot use his resignation or retirement to
President is unable to discharge the powers and
avoid prosecution.
duties of his office, the Vice-President shall
immediately assume the powers and duties of the
There is another reason why petitioner's contention should office as Acting President.
be rejected. In the cases at bar, the records show that
when petitioner resigned on January 20, 2001, the cases
Thereafter, when the President transmits to the
filed against him before the Ombudsman were OMB Case
President of the Senate and to the Speaker of the
Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-
House of Representatives his written declaration
00-1758. While these cases have been filed, the respondent
that no inability exists, he shall reassume the
Ombudsman refrained from conducting the preliminary
powers and duties of his office. Meanwhile, should
investigation of the petitioner for the reason that as the
a majority of all the Members of the Cabinet
sitting President then, petitioner was immune from suit.
transmit within five days to the President of the
Technically, the said cases cannot be considered as pending
Senate and to the Speaker of the House of
for the Ombudsman lacked jurisdiction to act on them.
Representatives their written declaration that the
Section 12 of RA No. 3019 cannot therefore be invoked by
President is unable to discharge the powers and
the petitioner for it contemplates of cases whose
duties of his office, the Congress shall decide the
investigation or prosecution do not suffer from any
issue. For that purpose, the Congress shall
insuperable legal obstacle like the immunity from suit of a
convene, if it is not in session, within forty-eight
sitting President.
hours, in accordance with its rules and without
need of call.
Petitioner contends that the impeachment proceeding is an
administrative investigation that, under section 12 of RA
If the Congress, within ten days after receipt of the
3019, bars him from resigning. We hold otherwise. The
last written declaration, or, if not in session, within
exact nature of an impeachment proceeding is debatable.
twelve days after it is required to assemble,
But even assuming arguendo that it is an administrative
determines by a two-thirds vote of both Houses,
proceeding, it can not be considered pending at the time
voting separately, that the President is unable to
petitioner resigned because the process already broke down
discharge the powers and duties of his office, the
when a majority of the senator-judges voted against the
Vice-President shall act as President; otherwise,
opening of the second envelope, the public and private
the President shall continue exercising the powers
prosecutors walked out, the public prosecutors filed their
and duties of his office."
Manifestation of Withdrawal of Appearance, and the
proceedings were postponed indefinitely. There was, in
effect, no impeachment case pending against petitioner That is the law. Now, the operative facts:
when he resigned.
1. Petitioner, on January 20, 2001, sent the
III above letter claiming inability to the
Senate President and Speaker of the
House;
Whether or not the petitioner Is only temporarily
2. Unaware of the letter, respondent Arroyo
unable to Act as President.
took her oath of office as President on
January 20, 2001 at about 12:30 p.m.;
We shall now tackle the contention of the petitioner that he 3. Despite receipt of the letter, the House of
is merely temporarily unable to perform the powers and Representatives passed on January 24,
duties of the presidency, and hence is a President on leave. 2001 House Resolution No. 175;96
As aforestated, the inability claim is contained in the
January 20, 2001 letter of petitioner sent on the same day
On the same date, the House of the Representatives
to Senate President Pimentel and Speaker Fuentebella.
passed House Resolution No. 17697 which states:

Petitioner postulates that respondent Arroyo as Vice

"RESOLUTION EXPRESSING THE SUPPORT OF THE
President has no power to adjudge the inability of the
HOUSE OF REPRESENTATIVES TO THE
petitioner to discharge the powers and duties of the
ASSUMPTION INTO OFFICE BY VICE PRESIDENT
presidency. His significant submittal is that "Congress has
GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF
the ultimate authority under the Constitution to determine
THE REPUBLIC OF THE PHILIPPINES, EXTENDING
whether the President is incapable of performing his
ITS CONGRATULATIONS AND EXPRESSING ITS
functions in the manner provided for in section 11 of article
SUPPORT FOR HER ADMINISTRATION AS A
VII."95 This contention is the centerpiece of petitioner's
PARTNER IN THE ATTAINMENT OF THE NATION'S
stance that he is a President on leave and respondent
GOALS UNDER THE CONSTITUTION
Arroyo is only an Acting President.

WHEREAS, as a consequence of the people's loss

An examination of section 11, Article VII is in order. It
of confidence on the ability of former President
provides:
Joseph Ejercito Estrada to effectively govern, the
Armed Forces of the Philippines, the Philippine
"SEC. 11. Whenever the President transmits to the National Police and majority of his cabinet had
President of the Senate and the Speaker of the withdrawn support from him;
House of Representatives his written declaration
that he is unable to discharge the powers and
35 | Executive
 WHEREAS, upon authority of an en banc resolution
of the Supreme Court, Vice President Gloria
Macapagal-Arroyo was sworn in as President of the
Philippines on 20 January 2001 before Chief Justice
Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of
the international community had extended their
recognition to Her Excellency, Gloria Macapagal-
Arroyo as President of the Republic of the
Philippines;
WHEREAS, Her Excellency, President Gloria
Macapagal-Arroyo has espoused a policy of
national healing and reconciliation with justice for
the purpose of national unity and development;
WHEREAS, it is axiomatic that the obligations of
the government cannot be achieved if it is divided,
thus by reason of the constitutional duty of the
House of Representatives as an institution and that
of the individual members thereof of fealty to the
supreme will of the people, the House of
Representatives must ensure to the people a
stable, continuing government and therefore must
remove all obstacles to the attainment thereof;
WHEREAS, it is a concomitant duty of the House of
Representatives to exert all efforts to unify the
nation, to eliminate fractious tension, to heal social
and political wounds, and to be an instrument of
national reconciliation and solidarity as it is a direct
representative of the various segments of the
whole nation;
WHEREAS, without surrending its independence, it
is vital for the attainment of all the foregoing, for
the House of Representatives to extend its support
and collaboration to the administration of Her
Excellency, President Gloria Macapagal-Arroyo, and
to be a constructive partner in nation-building, the
national interest demanding no less: Now,
therefore, be it
Resolved by the House of Representatives, To
express its support to the assumption into office by
Vice President Gloria Macapagal-Arroyo as
President of the Republic of the Philippines, to
extend its congratulations and to express its
support for her administration as a partner in the
attainment of the Nation's goals under the
Constitution.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of
Representatives on January 24, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
On February 7, 2001, the House of the Representatives
passed House Resolution No. 17898 which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA
MACAPAGAL-ARROYO'S NOMINATION OF SENATOR
TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT
OF THE REPUBLIC OF THE PHILIPPINES
36 | Executive
WHEREAS, there is a vacancy in the Office of the
Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-
Arroyo;
WHEREAS, pursuant to Section 9, Article VII of the
Constitution, the President in the event of such
vacancy shall nominate a Vice President from
among the members of the Senate and the House
of Representatives who shall assume office upon
confirmation by a majority vote of all members of
both Houses voting separately;
WHEREAS, Her Excellency, President Gloria
Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona Jr., to the position of
Vice President of the Republic of the Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a
public servant endowed with integrity, competence
and courage; who has served the Filipino people
with dedicated responsibility and patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr.
possesses sterling qualities of true statesmanship,
having served the government in various
capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the
Commission on Audit, Executive Secretary,
Secretary of Justice, Senator of the Philippines –
qualities which merit his nomination to the position
of Vice President of the Republic: Now, therefore,
be it
Resolved as it is hereby resolved by the House of
Representatives, That the House of
Representatives confirms the nomination of
Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of
Representatives on February 7, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
(4) Also, despite receipt of petitioner's letter
claiming inability, some twelve (12) members of
the Senate signed the following:
"RESOLUTION
WHEREAS, the recent transition in government
offers the nation an opportunity for meaningful
change and challenge;
WHEREAS, to attain desired changes and
overcome awesome challenges the nation needs
unity of purpose and resolve cohesive resolute
(sic) will;
WHEREAS, the Senate of the Philippines has been
the forum for vital legislative measures in unity
despite diversities in perspectives;
 WHEREFORE, we recognize and express support to
the new government of President Gloria
Macapagal-Arroyo and resolve to discharge and
overcome the nation's challenges." 99
On February 7, the Senate also passed Senate
Resolution No. 82100 which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA
MACAPAGAL ARROYO'S NOMINATION OF SEM.
TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT
OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is vacancy in the Office of the
Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-
Arroyo;
WHEREAS, pursuant to Section 9 Article VII of the
Constitution, the President in the event of such
vacancy shall nominate a Vice President from
among the members of the Senate and the House
of Representatives who shall assume office upon
confirmation by a majority vote of all members of
both Houses voting separately;
WHEREAS, Her Excellency, President Gloria
Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona, Jr. to the position of
Vice President of the Republic of the Philippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a
public servant endowed with integrity, competence
and courage; who has served the Filipino people
with dedicated responsibility and patriotism;
WHEREAS, Sen. Teofisto T. Guingona, Jr.
possesses sterling qualities of true statemanship,
having served the government in various
capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the
Commission on Audit, Executive Secretary,
Secretary of Justice, Senator of the land - which
qualities merit his nomination to the position of
Vice President of the Republic: Now, therefore, be
it
Resolved, as it is hereby resolved, That the Senate
confirm the nomination of Sen. Teofisto T.
Guingona, Jr. as Vice President of the Republic of
the Philippines.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate
This Resolution was adopted by the Senate on
February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
On the same date, February 7,
the Senate likewise passed Senate Resolution
No. 83101 which states:
"RESOLUTION RECOGNIZING THAT THE
IMPEACHMENT COURT IS FUNCTUS OFFICIO
37 | Executive
Resolved, as it is hereby resolved. That the Senate
recognize that the Impeachment Court is functus
officio and has been terminated.
Resolved, further, That the Journals of the
Impeachment Court on Monday, January 15,
Tuesday, January 16 and Wednesday, January 17,
2001 be considered approved.
Resolved, further, That the records of the
Impeachment Court including the "second
envelope" be transferred to the Archives of the
Senate for proper safekeeping and preservation in
accordance with the Rules of the Senate.
Disposition and retrieval thereof shall be made
only upon written approval of the Senate
president.
Resolved, finally. That all parties concerned be
furnished copies of this Resolution.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL, JR.
President of the Senate
This Resolution was adopted by the Senate on
February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
(5) On February 8, the Senate also passed Resolution No.
84 "certifying to the existence of vacancy in the Senate and
calling on the COMELEC to fill up such vacancy through
election to be held simultaneously with the regular election
on May 14, 2001 and the Senatorial candidate garnering
the thirteenth (13th) highest number of votes shall serve
only for the unexpired term of Senator Teofisto T.
Guingona, Jr.'
(6) Both houses of Congress started sending bills to be
signed into law by respondent Arroyo as President.
(7) Despite the lapse of time and still without any
functioning Cabinet, without any recognition from any
sector of government, and without any support from the
Armed Forces of the Philippines and the Philippine National
Police, the petitioner continues to claim that his inability to
govern is only momentary.
What leaps to the eye from these irrefutable facts is
that both houses of Congress have recognized
respondent Arroyo as the President. Implicitly clear
in that recognition is the premise that the inability of
petitioner Estrada. Is no longer temporary. Congress
has clearly rejected petitioner's claim of inability.
The question is whether this Court has jurisdiction to
review the claim of temporary inability of petitioner
Estrada and thereafter revise the decision of both
Houses of Congress recognizing respondent Arroyo as
president of the Philippines. Following Tañada v.
Cuenco,102 we hold that this Court cannot exercise its
judicial power or this is an issue "in regard to which full
discretionary authority has been delegated to the
Legislative xxx branch of the government." Or to use the
language in Baker vs. Carr,103 there is a "textually
demonstrable or a lack of judicially discoverable and
manageable standards for resolving it." Clearly, the Court
cannot pass upon petitioner's claim of inability to discharge
the power and duties of the presidency. The question is
political in nature and addressed solely to Congress
by constitutional fiat. It is a political issue, which cannot
be decided by this Court without transgressing the principle
of separation of powers.
In fine, even if the petitioner can prove that he did
not resign, still, he cannot successfully claim that he
is a President on leave on the ground that he is
merely unable to govern temporarily. That claim has
been laid to rest by Congress and the decision that
respondent Arroyo is the de jure, president made by a
co-equal branch of government cannot be reviewed
by this Court.
IV
Whether or not the petitioner enjoys immunity from
suit.
Assuming he enjoys immunity, the extent of the
immunity
Petitioner Estrada makes two submissions: first, the cases
filed against him before the respondent Ombudsman should
be prohibited because he has not been convicted in the
impeachment proceedings against him; and second, he
enjoys immunity from all kinds of suit, whether criminal or
civil.
Before resolving petitioner's contentions, a revisit of our
legal history executive immunity will be most enlightening.
The doctrine of executive immunity in this jurisdiction
emerged as a case law. In the 1910 case of Forbes, etc.
vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco,
a Chinese citizen, sued petitioner W. Cameron Forbes,
Governor-General of the Philippine Islands. J.E. Harding and
C.R. Trowbridge, Chief of Police and Chief of the Secret
Service of the City of Manila, respectively, for damages for
allegedly conspiring to deport him to China. In granting a
writ of prohibition, this Court, speaking thru Mr. Justice
Johnson, held:
" The principle of nonliability, as herein enunciated,
does not mean that the judiciary has no authority
to touch the acts of the Governor-General; that he
may, under cover of his office, do what he will,
unimpeded and unrestrained. Such a construction
would mean that tyranny, under the guise of the
execution of the law, could walk defiantly abroad,
destroying rights of person and of property, wholly
free from interference of courts or legislatures.
This does not mean, either that a person injured
by the executive authority by an act unjustifiable
under the law has n remedy, but must submit in
silence. On the contrary, it means, simply, that the
governors-general, like the judges if the courts and
the members of the Legislature, may not be
personally mulcted in civil damages for the
consequences of an act executed in the
performance of his official duties. The judiciary has
full power to, and will, when the mater is properly
presented to it and the occasion justly warrants it,
declare an act of the Governor-General illegal and
void and place as nearly as possible in status quo
any person who has been deprived his liberty or
his property by such act. This remedy is assured to
every person, however humble or of whatever
country, when his personal or property rights have
been invaded, even by the highest authority of the
state. The thing which the judiciary can not do is
mulct the Governor-General personally in damages
which result from the performance of his official
duty, any more than it can a member of the
38 | Executive
Philippine Commission of the Philippine Assembly.
Public policy forbids it.
Neither does this principle of nonliability mean that
the chief executive may not be personally sued at
all in relation to acts which he claims to perform as
such official. On the contrary, it clearly appears
from the discussion heretofore had, particularly
that portion which touched the liability of judges
and drew an analogy between such liability and
that of the Governor-General, that the latter is
liable when he acts in a case so plainly outside of
his power and authority that he can not be said to
have exercised discretion in determining whether
or not he had the right to act. What is held here is
that he will be protected from personal liability for
damages not only when he acts within his
authority, but also when he is without authority,
provided he actually used discretion and
judgement, that is, the judicial faculty, in
determining whether he had authority to act or
not. In other words, in determining the question of
his authority. If he decide wrongly, he is still
protected provided the question of his authority
was one over which two men, reasonably qualified
for that position, might honestly differ; but he s
not protected if the lack of authority to act is so
plain that two such men could not honestly differ
over its determination. In such case, be acts, not
as Governor-General but as a private individual,
and as such must answer for the consequences of
his act."
Mr. Justice Johnson underscored the consequences if the
Chief Executive was not granted immunity from
suit, viz "xxx. Action upon important matters of state
delayed; the time and substance of the chief executive
spent in wrangling litigation; disrespect engendered for the
person of one of the highest officials of the state and for the
office he occupies; a tendency to unrest and disorder
resulting in a way, in distrust as to the integrity of
government itself."105
Our 1935 Constitution took effect but it did not contain any
specific provision on executive immunity. Then came the
tumult of the martial law years under the late President
Ferdinand E. Marcos and the 1973 Constitution was born. In
1981, it was amended and one of the amendments involved
executive immunity. Section 17, Article VII stated:
"The President shall be immune from suit during
his tenure. Thereafter, no suit whatsoever shall lie
for official acts done by him or by others pursuant
to his specific orders during his tenure.
The immunities herein provided shall apply to the
incumbent President referred to in Article XVII of
this Constitution.
In his second Vicente G. Sinco professional Chair lecture
entitled, "Presidential Immunity and All The King's Men: The
Law of Privilege As a Defense To Actions For
Damages,"106 petitioner's learned counsel, former Dean of
the UP College of Law, Atty. Pacificao Agabin, brightened
the modifications effected by this constitutional amendment
on the existing law on executive privilege. To quote his
disquisition:
"In the Philippines, though, we sought to do the
Americans one better by enlarging and fortifying
the absolute immunity concept. First, we extended
it to shield the President not only form civil claims
but also from criminal cases and other claims.
Second, we enlarged its scope so that it would
 cover even acts of the President outside the scope
of official duties. And third, we broadened its
coverage so as to include not only the President
but also other persons, be they government
officials or private individuals, who acted upon
orders of the President. It can be said that at that
point most of us were suffering from AIDS (or
absolute immunity defense syndrome)."
The Opposition in the then Batasan Pambansa sought the
repeal of this Marcosian concept of executive immunity in
the 1973 Constitution. The move was led by them Member
of Parliament, now Secretary of Finance, Alberto Romulo,
who argued that the after incumbency immunity granted to
President Marcos violated the principle that a public office is
a public trust. He denounced the immunity as a return to
the anachronism "the king can do no wrong."107 The effort
failed.
The 1973 Constitution ceased to exist when President
Marcos was ousted from office by the People Power
revolution in 1986. When the 1987 Constitution was
crafted, its framers did not reenact the executive immunity
provision of the 1973 Constitution. The following
explanation was given by delegate J. Bernas vis:108
"Mr. Suarez. Thank you.
The last question is with reference to the
Committee's omitting in the draft proposal the
immunity provision for the President. I agree with
Commissioner Nolledo that the Committee did very
well in striking out second sentence, at the very
least, of the original provision on immunity from
suit under the 1973 Constitution. But would the
Committee members not agree to a restoration of
at least the first sentence that the President shall
be immune from suit during his tenure, considering
that if we do not provide him that kind of an
immunity, he might be spending all his time facing
litigation's, as the President-in-exile in Hawaii is
now facing litigation's almost daily?
Fr. Bernas. The reason for the omission is that we
consider it understood in present jurisprudence
that during his tenure he is immune from suit.
Mr. Suarez. So there is no need to express it here.
Fr. Bernas. There is no need. It was that way
before. The only innovation made by the 1973
Constitution was to make that explicit and to add
other things.
Mr. Suarez. On that understanding, I will not press
for any more query, Madam President.
I think the Commissioner for the clarifications."
We shall now rule on the contentions of petitioner in the
light of this history. We reject his argument that he cannot
be prosecuted for the reason that he must first be convicted
in the impeachment proceedings. The impeachment trial of
petitioner Estrada was aborted by the walkout of the
prosecutors and by the events that led to his loss of the
presidency. Indeed, on February 7, 2001, the Senate
passed Senate Resolution No. 83 "Recognizing that the
Impeachment Court is Functus Officio."109 Since, the
Impeachment Court is now functus officio, it is untenable
for petitioner to demand that he should first be impeached
and then convicted before he can be prosecuted. The plea if
granted, would put a perpetual bar against his prosecution.
Such a submission has nothing to commend itself for it will
39 | Executive
place him in a better situation than a non-sitting President
who has not been subjected to impeachment proceedings
and yet can be the object of a criminal prosecution. To be
sure, the debates in the Constitutional Commission make it
clear that when impeachment proceedings have become
moot due to the resignation of the President, the proper
criminal and civil cases may already be filed against him,
viz:110
"xxx
Mr. Aquino. On another point, if an impeachment
proceeding has been filed against the President,
for example, and the President resigns before
judgement of conviction has been rendered by the
impeachment court or by the body, how does it
affect the impeachment proceeding? Will it be
necessarily dropped?
Mr. Romulo. If we decide the purpose of
impeachment to remove one from office, then his
resignation would render the case moot and
academic. However, as the provision says, the
criminal and civil aspects of it may continue in the
ordinary courts."
This is in accord with our ruling In Re: Saturnino
Bermudez111 that 'incumbent Presidents are immune from
suit or from being brought to court during the period of
their incumbency and tenure" but not beyond. Considering
the peculiar circumstance that the impeachment process
against the petitioner has been aborted and thereafter he
lost the presidency, petitioner Estrada cannot demand as a
condition sine qua non to his criminal prosecution before
the Ombudsman that he be convicted in the impeachment
proceedings. His reliance on the case of Lecaroz vs.
Sandiganbayan112 and related cases113 are inapropos for
they have a different factual milieu.
We now come to the scope of immunity that can be claimed
by petitioner as a non-sitting President. The cases filed
against petitioner Estrada are criminal in character. They
involve plunder, bribery and graft and corruption. By no
stretch of the imagination can these crimes, especially
plunder which carries the death penalty, be covered by the
alleged mantle of immunity of a non-sitting president.
Petitioner cannot cite any decision of this Court licensing
the President to commit criminal acts and wrapping him
with post-tenure immunity from liability. It will be
anomalous to hold that immunity is an inoculation from
liability for unlawful acts and conditions. The rule is that
unlawful acts of public officials are not acts of the State and
the officer who acts illegally is not acting as such but stands
in the same footing as any trespasser.114
Indeed, critical reading of current literature on executive
immunity will reveal a judicial disinclination to expand the
privilege especially when it impedes the search for truth or
impairs the vindication of a right. In the 1974 case of US v.
Nixon,115 US President Richard Nixon, a sitting President,
was subpoenaed to produce certain recordings and
documents relating to his conversations with aids and
advisers. Seven advisers of President Nixon's associates
were facing charges of conspiracy to obstruct Justice and
other offenses, which were committed in a burglary of the
Democratic National Headquarters in Washington's
Watergate Hotel during the 972 presidential campaign.
President Nixon himself was named an unindicted co-
conspirator. President Nixon moved to quash the subpoena
on the ground, among others, that the President was not
subject to judicial process and that he should first be
impeached and removed from office before he could be
made amenable to judicial proceedings. The claim was
rejected by the US Supreme Court. It concluded that "when
the ground for asserting privilege as to subpoenaed
materials sought for use in a criminal trial is based only on
the generalized interest in confidentiality, it cannot prevail
over the fundamental demands of due process of law in the
fair administration of criminal justice." In the 1982 case of
Nixon v. Fitzgerald,116 the US Supreme Court further held
that the immunity of the president from civil damages
covers only "official acts." Recently, the US Supreme Court
had the occasion to reiterate this doctrine in the case of
Clinton v. Jones117 where it held that the US President's
immunity from suits for money damages arising out of their
official acts is inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to appeals to
stretch the scope of executive immunity in our jurisdiction.
One of the great themes of the 1987 Constitution is that a
public office is a public trust.118 It declared as a state policy
that "the State shall maintain honesty and integrity in the
public service and take positive and effective measures
against graft and corruptio."119 it ordained that "public
officers and employees must at all times be accountable to
the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency act with patriotism and justice, and
lead modest lives."120 It set the rule that 'the right of the
State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or
transferees, shall not be barred by prescription, latches or
estoppel."121 It maintained the Sandiganbayan as an anti-
graft court.122 It created the office of the Ombudsman and
endowed it with enormous powers, among which is to
"investigate on its own, or on complaint by any person, any
act or omission of any public official, employee, office or
agency, when such act or omission appears to be illegal,
unjust improper or inefficient."123 The Office of the
Ombudsman was also given fiscal autonomy.124 These
constitutional policies will be devalued if we sustain
petitioner's claim that a non-sitting president enjoys
immunity from suit for criminal acts committed during his
incumbency.
V
Whether or not the prosecution of petitioner
Estrada should be enjoined due to prejudicial
publicity
Petitioner also contends that the respondent Ombudsman
should be stopped from conducting the investigation of the
cases filed against him due to the barrage of prejudicial
publicity on his guilt. He submits that the respondent
Ombudsman has developed bias and is all set file the
criminal cases violation of his right to due process.
There are two (2) principal legal and philosophical schools
of thought on how to deal with the rain of unrestrained
publicity during the investigation and trial of high profile
cases.125 The British approach the problem with the
presumption that publicity will prejudice a jury. Thus,
English courts readily stay and stop criminal trials when the
right of an accused to fair trial suffers a threat. 126 The
American approach is different. US courts assume a
skeptical approach about the potential effect of pervasive
publicity on the right of an accused to a fair trial. They have
developed different strains of tests to resolve this issue,
i.e., substantial; probability of irreparable harm, strong
likelihood, clear and present danger, etc.
This is not the first time the issue of trial by publicity has
been raised in this Court to stop the trials or annul
convictions in high profile criminal cases.127 In People vs.
Teehankee, Jr.,128 later reiterated in the case of Larranaga
vs. court of Appeals, et al.,129 we laid down the doctrine
that:
40 | Executive
"We cannot sustain appellant's claim that he was
denied the right to impartial trial due to prejudicial
publicity. It is true that the print and broadcast
media gave the case at bar pervasive publicity,
just like all high profile and high stake criminal
trials. Then and now, we rule that the right of an
accused to a fair trial is not incompatible to a free
press. To be sure, responsible reporting enhances
accused's right to a fair trial for, as well pointed
out, a responsible press has always been regarded
as the criminal field xxx. The press does not simply
publish information about trials but guards against
the miscarriage of justice by subjecting the police,
prosecutors, and judicial processes to extensive
public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the
right of an accused to fair trial. The mere fact that
the trial of appellant was given a day-to-day,
gavel-to-gavel coverage does not by itself prove
that the publicity so permeated the mind of the
trial judge and impaired his impartiality. For one, it
is impossible to seal the minds of members of the
bench from pre-trial and other off-court publicity of
sensational criminal cases. The state of the art of
our communication system brings news as they
happen straight to our breakfast tables and right to
our bedrooms. These news form part of our
everyday menu of the facts and fictions of life. For
another, our idea of a fair and impartial judge is
not that of a hermit who is out of touch with the
world. We have not installed the jury system
whose members are overly protected from
publicity lest they lose there impartially. xxx xxx
xxx. Our judges are learned in the law and trained
to disregard off-court evidence and on-camera
performances of parties to litigation. Their mere
exposure to publications and publicity stunts does
not per se fatally infect their impartiality.
At best, appellant can only conjure possibility of
prejudice on the part of the trial judge due to the
barrage of publicity that characterized the
investigation and trial of the case. In Martelino, et
al. v. Alejandro, et al., we rejected this standard of
possibility of prejudice and adopted the test of
actual prejudice as we ruled that to warrant a
finding of prejudicial publicity, there must be
allegation and proof that the judges have been
unduly influenced, not simply that they might be,
by the barrage of publicity. In the case at a bar,
the records do not show that the trial judge
developed actual bias against appellants as a
consequence of the extensive media coverage of
the pre-trial and trial of his case. The totality of
circumstances of the case does not prove that the
trial judge acquired a fixed opinion as a result of
prejudicial publicity, which is incapable of change
even by evidence presented during the trial.
Appellant has the burden to prove this actual bias
and he has not discharged the burden.'
We expounded further on this doctrine in the subsequent
case of Webb vs. Hon. Raul de Leon, etc.130 and its
companion cases, viz:
"Again petitioners raise the effect of prejudicial
publicity on their right to due process while
undergoing preliminary investigation. We find no
procedural impediment to its early invocation
considering the substantial risk to their liberty
while undergoing a preliminary investigation.
xxx
 The democratic settings, media coverage of trials
of sensational cases cannot be avoided and
oftentimes, its excessiveness has been aggravated
by kinetic developments in the telecommunications
industry. For sure, few cases can match the high
volume and high velocity of publicity that attended
the preliminary investigation of the case at bar.
Our daily diet of facts and fiction about the case
continues unabated even today. Commentators
still bombard the public with views not too many of
which are sober and sublime. Indeed, even the
principal actors in the case – the NBI, the
respondents, their lawyers and their sympathizers
have participated in this media blitz. The possibility
of media abuses and their threat to a fair trial
notwithstanding, criminal trials cannot be
completely closed to the press and public. In the
seminal case of Richmond Newspapers, Inc. v.
Virginia, it was
xxx
a. The historical evidence of the evolution of
the criminal trial in Anglo-American
justice demonstrates conclusively that at
the time this Nation's organic laws were
adopted, criminal trials both here and in
England had long been presumptively
open, thus giving assurance that the
proceedings were conducted fairly to all
concerned and discouraging perjury, the
misconduct of participants, or decisions
based on secret bias or partiality. In
addition, the significant community
therapeutic value of public trials was
recognized when a shocking crime occurs
a community reaction of outrage and
public protest often follows, and
thereafter the open processes of justice
serve an important prophylactic purpose,
providing an outlet for community
concern, hostility and emotion. To work
effectively, it is important that society's
criminal process satisfy the appearance of
justice,' Offutt v. United States, 348 US
11, 14, 99 L ED 11, 75 S Ct 11, which can
best be provided by allowing people to
observe such process. From this
unbroken, uncontradicted history,
supported by reasons as valid today as in
centuries past, it must be concluded that
a presumption of openness inheres in the
very nature of a criminal trial under this
Nation's system of justice, Cf., e,g.,
Levine v. United States, 362 US 610, 4 L
Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and
assembly, expressly guaranteed by the
First Amendment, share a common core
purpose of assuring freedom of
communication on matters relating to the
functioning of government. In
guaranteeing freedom such as those of
speech and press, the First Amendment
can be read as protecting the right of
everyone to attend trials so as give
meaning to those explicit guarantees; the
First Amendment right to receive
information and ideas means, in the
context of trials, that the guarantees of
speech and press, standing alone, prohibit
government from summarily closing
courtroom doors which had long been
open to the public at the time the First
Amendment was adopted. Moreover, the
right of assembly is also relevant, having
been regarded not only as an independent
41 | Executive
right but also as a catalyst to augment
the free exercise of the other First
Amendment rights with which the
draftsmen deliberately linked it. A trial
courtroom is a public place where the
people generally and representatives of
the media have a right to be present, and
where their presence historically has been
thought to enhance the integrity and
quality of what takes place.
c. Even though the Constitution contains no
provision which be its terms guarantees
to the public the right to attend criminal
trials, various fundamental rights, not
expressly guaranteed, have been
recognized as indispensable to the
enjoyment of enumerated rights. The
right to attend criminal trial is implicit in
the guarantees of the First Amendment:
without the freedom to attend such trials,
which people have exercised for centuries,
important aspects of freedom of speech
and of the press be eviscerated.
Be that as it may, we recognize that pervasive and
prejudicial publicity under certain circumstances
can deprive an accused of his due process right to
fair trial. Thus, in Martelino, et al. vs. Alejandro, et
al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that
the judges have been unduly influenced, not
simply that they might be, by the barrage of
publicity. In the case at bar, we find nothing in the
records that will prove that the tone and content of
the publicity that attended the investigation of
petitioners fatally infected the fairness and
impartiality of the DOJ Panel. Petitioners cannot
just rely on the subliminal effects of publicity on
the sense of fairness of the DOJ Panel, for these
are basically unbeknown and beyond knowing. To
be sure, the DOJ Panel is composed of an Assistant
Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal
investigation is a factor to consider in determining
whether they can easily be blinded by the klieg
lights of publicity. Indeed, their 26-page Resolution
carries no indubitable indicia of bias for it does not
appear that they considered any extra-record
evidence except evidence properly adduced by the
parties. The length of time the investigation was
conducted despite its summary nature and the
generosity with which they accommodated the
discovery motions of petitioners speak well of their
fairness. At no instance, we note, did petitioners
seek the disqualification of any member of the DOJ
Panel on the ground of bias resulting from their
bombardment of prejudicial publicity." (emphasis
supplied)
Applying the above ruling, we hold that there is not
enough evidence to warrant this Court to enjoin the
preliminary investigation of the petitioner by the
respondent Ombudsman. Petitioner needs to offer more
than hostile headlines to discharge his burden of
proof.131 He needs to show more weighty social science
evidence to successfully prove the impaired capacity of a
judge to render a bias-free decision. Well to note, the cases
against the petitioner are still undergoing preliminary
investigation by a special panel of prosecutors in the office
of the respondent Ombudsman. No allegation whatsoever
has been made by the petitioner that the minds of the
members of this special panel have already been infected
by bias because of the pervasive prejudicial publicity
against him. Indeed, the special panel has yet to come out
with its findings and the Court cannot second guess
whether its recommendation will be unfavorable to the
petitioner.1âwphi1.nêt
The records show that petitioner has instead charged
respondent Ombudsman himself with bias. To quote
petitioner's submission, the respondent Ombudsman "has
been influenced by the barrage of slanted news reports, and
he has buckled to the threats and pressures directed at him
by the mobs."132 News reports have also been quoted to
establish that the respondent Ombudsman has already
prejudged the cases of the petitioner133 and it is postulated
that the prosecutors investigating the petitioner will be
influenced by this bias of their superior.

Again, we hold that the evidence proffered by the

petitioner is insubstantial. The accuracy of the news
reports referred to by the petitioner cannot be the subject
of judicial notice by this Court especially in light of the
denials of the respondent Ombudsman as to his alleged
prejudice and the presumption of good faith and regularity
in the performance of official duty to which he is
entitled. Nor can we adopt the theory of derivative
prejudice of petitioner, i.e., that the prejudice of
respondent Ombudsman flows to his subordinates. In
truth, our Revised Rules of Criminal Procedure, give
investigation prosecutors the independence to make their
own findings and recommendations albeit they are
reviewable by their superiors.134 They can be reversed but
they can not be compelled cases which they believe deserve
dismissal. In other words, investigating prosecutors should
not be treated like unthinking slot machines. Moreover, if
the respondent Ombudsman resolves to file the cases
against the petitioner and the latter believes that the
findings of probable cause against him is the result of bias,
he still has the remedy of assailing it before the proper
court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases

against the petitioner will now acquire a different dimension
and then move to a new stage - - - the Office of the
Ombudsman. Predictably, the call from the majority for
instant justice will hit a higher decibel while the gnashing of
teeth of the minority will be more threatening. It is the
sacred duty of the respondent Ombudsman to balance the
right of the State to prosecute the guilty and the right of an
accused to a fair investigation and trial which has been
categorized as the "most fundamental of all freedoms." 135 To
be sure, the duty of a prosecutor is more to do justice and
less to prosecute. His is the obligation to insure that the
preliminary investigation of the petitioner shall have a
circus-free atmosphere. He has to provide the restraint
against what Lord Bryce calls "the impatient vehemence of
the majority." Rights in a democracy are not decided by the
mob whose judgment is dictated by rage and not by reason.
Nor are rights necessarily resolved by the power of number
for in a democracy, the dogmatism of the majority is not
and should never be the definition of the rule of law. If
democracy has proved to be the best form of government,
it is because it has respected the right of the minority to
convince the majority that it is wrong. Tolerance of
multiformity of thoughts, however offensive they may be, is
the key to man's progress from the cave to civilization. Let
us not throw away that key just to pander to some people's
prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito

Estrada challenging the respondent Gloria Macapagal-
Arroyo as the de jure 14th President of the Republic
are DISMISSED.

SO ORDERED.

42 | Executive

EN BANC
G.R. No. 83896             February 22, 1991
CIVIL LIBERTIES UNION, petitioner,
vs.
THE EXECUTIVE SECRETARY, respondent.
G.R. No. 83815             February 22, 1991
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and
CRISPIN T. REYES, petitioners,
vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian
Reform; CARLOS DOMINGUEZ, as Secretary of
Agriculture; LOURDES QUISUMBING, as Secretary of
Education, Culture and Sports; FULGENCIO
FACTORAN, JR., as Secretary of Environment and
Natural Resources; VICENTE V. JAYME, as Secretary
of Finance; SEDFREY ORDOÑEZ, as Secretary of
Justice; FRANKLIN N. DRILON, as Secretary of Labor
and Employment; LUIS SANTOS, as Secretary of Local
Government; FIDEL V. RAMOS, as Secretary of
National Defense; TEODORO F. BENIGNO, as Press
Secretary; JUANITO FERRER, as Secretary of Public
Works and Highways; ANTONIO ARRIZABAL, as
Secretary of Science and Technology; JOSE
CONCEPCION, as Secretary of Trade and Industry;
JOSE ANTONIO GONZALEZ, as Secretary of Tourism;
ALFREDO R.A. BENGZON, as Secretary of Health;
REINERIO D. REYES, as Secretary of Transportation
and Communication; GUILLERMO CARAGUE, as
Commissioner of the Budget; and SOLITA MONSOD,
as Head of the National Economic Development
Authority, respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and
Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.
FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution
dated August 9, 19881 and are being resolved jointly as
both seek a declaration of the unconstitutionality of
Executive Order No. 284 issued by President Corazon C.
Aquino on July 25, 1987. The pertinent provisions of the
assailed Executive Order are:
Sec. 1. Even if allowed by law or by the ordinary
functions of his position, a member of the Cabinet,
undersecretary or assistant secretary or other
appointive officials of the Executive Department
may, in addition to his primary position, hold not
more than two positions in the government and
43 | Executive
government corporations and receive the
corresponding compensation therefor; Provided,
that this limitation shall not apply to ad hoc bodies
or committees, or to boards, councils or bodies of
which the President is the Chairman.
Sec. 2. If a member of the cabinet, undersecretary
or assistant secretary or other appointive official of
the Executive Department holds more positions
than what is allowed in Section 1 hereof, they (sic)
must relinquish the excess position in favor of the
subordinate official who is next in rank, but in no
case shall any official hold more than two positions
other than his primary position.
Sec. 3. In order to fully protect the interest of the
government in government-owned or controlled
corporations, at least one-third (1/3) of the
members of the boards of such corporation should
either be a secretary, or undersecretary, or
assistant secretary.
Petitioners maintain that this Executive Order which, in
effect, allows members of the Cabinet, their
undersecretaries and assistant secretaries to hold other
government offices or positions in addition to their primary
positions, albeit subject to the limitation therein imposed,
runs counter to Section 13, Article VII of the 1987
Constitution,2 which provides as follows:
Sec. 13. The President, Vice-President, the
Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in
this Constitution, hold any other office or
employment during their tenure. They shall not,
during said tenure, directly or indirectly practice
any other profession, participate in any business,
or be financially interested in any contract with, or
in any franchise, or special privilege granted by the
Government or any subdivision, agency, or
instrumentality thereof, including government-
owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.
It is alleged that the above-quoted Section 13, Article VII
prohibits public respondents, as members of the Cabinet,
along with the other public officials enumerated in the list
attached to the petitions as Annex "C" in G.R. No.
838153 and as Annex "B" in G.R. No. 838964 from holding
any other office or employment during their tenure. In
addition to seeking a declaration of the unconstitutionality
of Executive Order No. 284, petitioner Anti-Graft League of
the Philippines further seeks in G.R. No. 83815 the issuance
of the extraordinary writs of prohibition and mandamus, as
well as a temporary restraining order directing public
respondents therein to cease and desist from holding, in
addition to their primary positions, dual or multiple
positions other than those authorized by the 1987
Constitution and from receiving any salaries, allowances,
per diems and other forms of privileges and the like
appurtenant to their questioned positions, and compelling
public respondents to return, reimburse or refund any and
all amounts or benefits that they may have received from
such positions.
Specifically, petitioner Anti-Graft League of the Philippines
charges that notwithstanding the aforequoted "absolute and
self-executing" provision of the 1987 Constitution, then
Secretary of Justice Sedfrey Ordoñez, construing Section
13, Article VII in relation to Section 7, par. (2), Article IX-B,
rendered on July 23, 1987 Opinion No. 73, series of
1987,5 declaring that Cabinet members, their deputies
(undersecretaries) and assistant secretaries may hold other
public office, including membership in the boards of
government corporations: (a) when directly provided for in
the Constitution as in the case of the Secretary of Justice
who is made an ex-officio member of the Judicial and Bar
Council under Section 8, paragraph 1, Article VIII; or (b) if
allowed by law; or (c) if allowed by the primary functions of
their respective positions; and that on the basis of this
Opinion, the President of the Philippines, on July 25, 1987
or two (2) days before Congress convened on July 27,
1987: promulgated Executive Order No. 284.6
Petitioner Anti-Graft League of the Philippines objects to
both DOJ Opinion No. 73 and Executive Order No. 284 as
they allegedly "lumped together" Section 13, Article VII and
the general provision in another article, Section 7, par. (2),
Article I-XB. This "strained linkage" between the two
provisions, each addressed to a distinct and separate group
of public officers –– one, the President and her official
family, and the other, public servants in general ––
allegedly "abolished the clearly separate, higher, exclusive,
and mandatory constitutional rank assigned to the
prohibition against multiple jobs for the President, the Vice-
President, the members of the Cabinet, and their deputies
and subalterns, who are the leaders of government
expected to lead by example."7 Article IX-B, Section 7, par.
(2)8 provides:
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall
hold any other office or employment in the
government or any subdivision, agency or
instrumentality thereof, including government-
owned or controlled corporations or their
subsidiaries.
The Solicitor General counters that Department of Justice
DOJ Opinion No. 73, series of 1987, as further elucidated
and clarified by DOJ Opinion No. 129, series of 19879 and
DOJ Opinion No. 155, series of 1988,10 being the first official
construction and interpretation by the Secretary of Justice
of Section 13, Article VII and par. (2) of Section 7, Article I-
XB of the Constitution, involving the same subject of
appointments or designations of an appointive executive
official to positions other than his primary position, is
"reasonably valid and constitutionally firm," and that
Executive Order No. 284, promulgated pursuant to DOJ
Opinion No. 73, series of 1987 is consequently
constitutional. It is worth noting that DOJ Opinion No. 129,
series of 1987 and DOJ Opinion No. 155, series of 1988
construed the limitation imposed by E.O. No. 284 as not
applying to ex-officio positions or to positions which,
although not so designated as ex-officio are allowed by the
primary functions of the public official, but only to the
holding of multiple positions which are not related to or
necessarily included in the position of the public official
concerned (disparate positions).
In sum, the constitutionality of Executive Order No. 284 is
being challenged by petitioners on the principal submission
that it adds exceptions to Section 13, Article VII other than
those provided in the Constitution. According to petitioners,
by virtue of the phrase "unless otherwise provided in this
Constitution," the only exceptions against holding any other
office or employment in Government are those provided in
the Constitution, namely: (1) The Vice-President may be
appointed as a Member of the Cabinet under Section 3, par.
(2), Article VII thereof; and (2) the Secretary of Justice is
an ex-officio member of the Judicial and Bar Council by
virtue of Section 8 (1), Article VIII.
Petitioners further argue that the exception to the
prohibition in Section 7, par. (2), Article I-XB on the Civil
Service Commission applies to officers and employees of
the Civil Service in general and that said exceptions do not
44 | Executive
apply and cannot be extended to Section 13, Article VII
which applies specifically to the President, Vice-President,
Members of the Cabinet and their deputies or assistants.
There is no dispute that the prohibition against the
President, Vice-President, the members of the Cabinet and
their deputies or assistants from holding dual or multiple
positions in the Government admits of certain exceptions.
The disagreement between petitioners and public
respondents lies on the constitutional basis of the
exception. Petitioners insist that because of the phrase
"unless otherwise provided in this Constitution" used in
Section 13 of Article VII, the exception must be expressly
provided in the Constitution, as in the case of the Vice-
President being allowed to become a Member of the Cabinet
under the second paragraph of Section 3, Article VII or the
Secretary of Justice being designated an ex-officio member
of the Judicial and Bar Council under Article VIII, Sec. 8 (1).
Public respondents, on the other hand, maintain that the
phrase "unless otherwise provided in the Constitution" in
Section 13, Article VII makes reference to Section 7, par.
(2), Article I-XB insofar as the appointive officials
mentioned therein are concerned.
The threshold question therefore is: does the prohibition in
Section 13, Article VII of the 1987 Constitution insofar as
Cabinet members, their deputies or assistants are
concerned admit of the broad exceptions made for
appointive officials in general under Section 7, par. (2),
Article I-XB which, for easy reference is quoted anew, thus:
"Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold any
other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporation or their
subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the
intention underlying the provision under consideration.
Thus, it has been held that the Court in construing a
Constitution should bear in mind the object sought to be
accomplished by its adoption, and the evils, if any, sought
to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the
condition and circumstances under which the Constitution
was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the
particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole as to
make the words consonant to that reason and calculated to
effect that purpose.11
The practice of designating members of the Cabinet, their
deputies and assistants as members of the governing
bodies or boards of various government agencies and
instrumentalities, including government-owned and
controlled corporations, became prevalent during the time
legislative powers in this country were exercised by former
President Ferdinand E. Marcos pursuant to his martial law
authority. There was a proliferation of newly-created
agencies, instrumentalities and government-owned and
controlled corporations created by presidential decrees and
other modes of presidential issuances where Cabinet
members, their deputies or assistants were designated to
head or sit as members of the board with the corresponding
salaries, emoluments, per diems, allowances and other
perquisites of office. Most of these instrumentalities have
remained up to the present time.
This practice of holding multiple offices or positions in the
government soon led to abuses by unscrupulous public
officials who took advantage of this scheme for purposes of
self-enrichment. In fact, the holding of multiple offices in
government was strongly denounced on the floor of the
Batasang Pambansa.12 This condemnation came in reaction
to the published report of the Commission on Audit, entitled
"1983 Summary Annual Audit Report on: Government-
Owned and Controlled Corporations, Self-Governing Boards
and Commissions" which carried as its Figure No. 4 a
"Roaster of Membership in Governing Boards of
Government-Owned and Controlled Corporations as of
December 31, 1983."
Particularly odious and revolting to the people's sense of
propriety and morality in government service were the data
contained therein that Roberto V. Ongpin was a member of
the governing boards of twenty-nine (29) governmental
agencies, instrumentalities and corporations; Imelda R.
Marcos of twenty-three (23); Cesar E.A. Virata of twenty-
two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S.
Hipolito and Geronimo Z. Velasco, of fourteen each (14);
Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and
Jose A. Roño of twelve (12) each; Manuel P. Alba, Gilberto
O. Teodoro, and Edgardo Tordesillas of eleven (11) each;
and Lilia Bautista and Teodoro Q. Peña of ten (10) each.13
The blatant betrayal of public trust evolved into one of the
serious causes of discontent with the Marcos regime. It was
therefore quite inevitable and in consonance with the
overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the
people successfully unseated former President Marcos,
should draft into its proposed Constitution the provisions
under consideration which are envisioned to remedy, if not
correct, the evils that flow from the holding of multiple
governmental offices and employment. In fact, as keenly
observed by Mr. Justice Isagani A. Cruz during the
deliberations in these cases, one of the strongest selling
points of the 1987 Constitution during the campaign for its
ratification was the assurance given by its proponents that
the scandalous practice of Cabinet members holding
multiple positions in the government and collecting
unconscionably excessive compensation therefrom would be
discontinued.
But what is indeed significant is the fact that although
Section 7, Article I-XB already contains a blanket
prohibition against the holding of multiple offices or
employment in the government subsuming both elective
and appointive public officials, the Constitutional
Commission should see it fit to formulate another provision,
Sec. 13, Article VII, specifically prohibiting the President,
Vice-President, members of the Cabinet, their deputies and
assistants from holding any other office or employment
during their tenure, unless otherwise provided in the
Constitution itself.
Evidently, from this move as well as in the different
phraseologies of the constitutional provisions in question,
the intent of the framers of the Constitution was to impose
a stricter prohibition on the President and his official family
in so far as holding other offices or employment in the
government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of
Section 13, Article VII with other provisions of the
Constitution on the disqualifications of certain public
officials or employees from holding other offices or
employment. Under Section 13, Article VI, "(N)o Senator or
Member of the House of Representatives may hold any
other office or employment in the Government . . .". Under
Section 5(4), Article XVI, "(N)o member of the armed forces
in the active service shall, at any time, be appointed in any
capacity to a civilian position in the Government, including
government-owned or controlled corporations or any of
their subsidiaries." Even Section 7 (2), Article IX-B, relied
upon by respondents provides "(U)nless otherwise allowed
by law or by the primary functions of his position, no
45 | Executive
appointive official shall hold any other office or
employment in the Government."
It is quite notable that in all these provisions on
disqualifications to hold other office or employment, the
prohibition pertains to an office or employment in the
government and government-owned or controlled
corporations or their subsidiaries. In striking contrast is the
wording of Section 13, Article VII which states that "(T)he
President, Vice-President, the Members of the Cabinet, and
their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or
employment during their tenure." In the latter provision,
the disqualification is absolute, not being qualified by the
phrase "in the Government." The prohibition imposed on
the President and his official family is therefore all-
embracing and covers both public and private office or
employment.
Going further into Section 13, Article VII, the second
sentence provides: "They shall not, during said tenure,
directly or indirectly, practice any other profession,
participate in any business, or be financially interested in
any contract with, or in any franchise, or special privilege
granted by the Government or any subdivision, agency or
instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries." These
sweeping, all-embracing prohibitions imposed on the
President and his official family, which prohibitions are not
similarly imposed on other public officials or employees
such as the Members of Congress, members of the civil
service in general and members of the armed forces, are
proof of the intent of the 1987 Constitution to treat the
President and his official family as a class by itself and to
impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be
stricter with the President and his official family was also
succinctly articulated by Commissioner Vicente Foz after
Commissioner Regalado Maambong noted during the floor
deliberations and debate that there was no symmetry
between the Civil Service prohibitions, originally found in
the General Provisions and the anticipated report on the
Executive Department. Commissioner Foz Commented, "We
actually have to be stricter with the President and the
members of the Cabinet because they exercise more
powers and, therefore, more cheeks and restraints on them
are called for because there is more possibility of abuse in
their case."14
Thus, while all other appointive officials in the civil service
are allowed to hold other office or employment in the
government during their tenure when such is allowed by
law or by the primary functions of their positions, members
of the Cabinet, their deputies and assistants may do so only
when expressly authorized by the Constitution itself. In
other words, Section 7, Article I-XB is meant to lay down
the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII
is meant to be the exception applicable only to the
President, the Vice- President, Members of the Cabinet,
their deputies and assistants.
This being the case, the qualifying phrase "unless otherwise
provided in this Constitution" in Section 13, Article VII
cannot possibly refer to the broad exceptions provided
under Section 7, Article I-XB of the 1987 Constitution. To
construe said qualifying phrase as respondents would have
us do, would render nugatory and meaningless the manifest
intent and purpose of the framers of the Constitution to
impose a stricter prohibition on the President, Vice-
President, Members of the Cabinet, their deputies and
assistants with respect to holding other offices or
employment in the government during their tenure.
Respondents' interpretation that Section 13 of Article VII
admits of the exceptions found in Section 7, par. (2) of
Article IX-B would obliterate the distinction so carefully set
by the framers of the Constitution as to when the high-
ranking officials of the Executive Branch from the President
to Assistant Secretary, on the one hand, and the generality
of civil servants from the rank immediately below Assistant
Secretary downwards, on the other, may hold any other
office or position in the government during their tenure.
Moreover, respondents' reading of the provisions in
question would render certain parts of the Constitution
inoperative. This observation applies particularly to the
Vice-President who, under Section 13 of Article VII is
allowed to hold other office or employment when so
authorized by the Constitution, but who as an elective
public official under Sec. 7, par. (1) of Article I-XB is
absolutely ineligible "for appointment or designation in any
capacity to any public office or position during his tenure."
Surely, to say that the phrase "unless otherwise provided in
this Constitution" found in Section 13, Article VII has
reference to Section 7, par. (1) of Article I-XB would render
meaningless the specific provisions of the Constitution
authorizing the Vice-President to become a member of the
Cabinet,15 and to act as President without relinquishing the
Vice-Presidency where the President shall not nave been
chosen or fails to qualify.16 Such absurd consequence can
be avoided only by interpreting the two provisions under
consideration as one, i.e., Section 7, par. (1) of Article I-XB
providing the general rule and the other, i.e., Section 13,
Article VII as constituting the exception thereto. In the
same manner must Section 7, par. (2) of Article I-XB be
construed vis-a-vis Section 13, Article VII.
It is a well-established rule in Constitutional construction
that no one provision of the Constitution is to be separated
from all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be
brought into view and to be so interpreted as to effectuate
the great purposes of the instrument.17 Sections bearing on
a particular subject should be considered and interpreted
together as to effectuate the whole purpose of the
Constitution18 and one section is not to be allowed to defeat
another, if by any reasonable construction, the two can be
made to stand together.19
In other words, the court must harmonize them, if
practicable, and must lean in favor of a construction which
will render every word operative, rather than one which
may make the words idle and nugatory.20
Since the evident purpose of the framers of the 1987
Constitution is to impose a stricter prohibition on the
President, Vice-President, members of the Cabinet, their
deputies and assistants with respect to holding multiple
offices or employment in the government during their
tenure, the exception to this prohibition must be read with
equal severity. On its face, the language of Section 13,
Article VII is prohibitory so that it must be understood as
intended to be a positive and unequivocal negation of the
privilege of holding multiple government offices or
employment. Verily, wherever the language used in the
constitution is prohibitory, it is to be understood as
intended to be a positive and unequivocal negation.21 The
phrase "unless otherwise provided in this Constitution"
must be given a literal interpretation to refer only to those
particular instances cited in the Constitution itself, to wit:
the Vice-President being appointed as a member of the
Cabinet under Section 3, par. (2), Article VII; or acting as
President in those instances provided under Section 7, pars.
(2) and (3), Article VII; and, the Secretary of Justice
being ex-officio member of the Judicial and Bar Council by
virtue of Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or
employment under Section 13, Article VII of the
46 | Executive
Constitution must not, however, be construed as applying
to posts occupied by the Executive officials specified therein
without additional compensation in an ex-officio capacity as
provided by law and as required22 by the primary functions
of said officials' office. The reason is that these posts do no
comprise "any other office" within the contemplation of the
constitutional prohibition but are properly an imposition of
additional duties and functions on said officials.23 To
characterize these posts otherwise would lead to absurd
consequences, among which are: The President of the
Philippines cannot chair the National Security Council
reorganized under Executive Order No. 115 (December 24,
1986). Neither can the Vice-President, the Executive
Secretary, and the Secretaries of National Defense, Justice,
Labor and Employment and Local Government sit in this
Council, which would then have no reason to exist for lack
of a chairperson and members. The respective
undersecretaries and assistant secretaries, would also be
prohibited.
The Secretary of Labor and Employment cannot chair the
Board of Trustees of the National Manpower and Youth
Council (NMYC) or the Philippine Overseas Employment
Administration (POEA), both of which are attached to his
department for policy coordination and guidance. Neither
can his Undersecretaries and Assistant Secretaries chair
these agencies.
The Secretaries of Finance and Budget cannot sit in the
Monetary Board.24 Neither can their respective
undersecretaries and assistant secretaries. The Central
Bank Governor would then be assisted by lower ranking
employees in providing policy direction in the areas of
money, banking and credit.25
Indeed, the framers of our Constitution could not have
intended such absurd consequences. A Constitution, viewed
as a continuously operative charter of government, is not to
be interpreted as demanding the impossible or the
impracticable; and unreasonable or absurd consequences, if
possible, should be avoided.26
To reiterate, the prohibition under Section 13, Article VII is
not to be interpreted as covering positions held without
additional compensation in ex-officio capacities as provided
by law and as required by the primary functions of the
concerned official's office. The term ex-officio means "from
office; by virtue of office." It refers to an "authority derived
from official character merely, not expressly conferred upon
the individual character, but rather annexed to the official
position." Ex-officio likewise denotes an "act done in an
official character, or as a consequence of office, and without
any other appointment or authority than that conferred by
the office."27 An ex-officio member of a board is one who is
a member by virtue of his title to a certain office, and
without further warrant or appointment.28 To illustrate, by
express provision of law, the Secretary of Transportation
and Communications is the ex-officio Chairman of the Board
of the Philippine Ports Authority,29 and the Light Rail Transit
Authority.30
The Court had occasion to explain the meaning of an ex-
officio position in Rafael vs. Embroidery and Apparel Control
and Inspection Board,31 thus: "An examination of section 2
of the questioned statute (R.A. 3137) reveals that for the
chairman and members of the Board to qualify they need
only be designated by the respective department heads.
With the exception of the representative from the private
sector, they sit ex-officio. In order to be designated they
must already be holding positions in the offices mentioned
in the law. Thus, for instance, one who does not hold a
previous appointment in the Bureau of Customs, cannot,
under the act, be designated a representative from that
office. The same is true with respect to the representatives
from the other offices. No new appointments are necessary.
This is as it should be, because the representatives so
designated merely perform duties in the Board in addition
to those already performed under their original
appointments."32
The term "primary" used to describe "functions" refers to
the order of importance and thus means chief or principal
function. The term is not restricted to the singular but may
refer to the plural.33 The additional duties must not only be
closely related to, but must be required by the official's
primary functions. Examples of designations to positions by
virtue of one's primary functions are the Secretaries of
Finance and Budget sitting as members of the Monetary
Board, and the Secretary of Transportation and
Communications acting as Chairman of the Maritime
Industry Authority34 and the Civil Aeronautics Board.
If the functions required to be performed are merely
incidental, remotely related, inconsistent, incompatible, or
otherwise alien to the primary function of a cabinet official,
such additional functions would fall under the purview of
"any other office" prohibited by the Constitution. An
example would be the Press Undersecretary sitting as a
member of the Board of the Philippine Amusement and
Gaming Corporation. The same rule applies to such
positions which confer on the cabinet official management
functions and/or monetary compensation, such as but not
limited to chairmanships or directorships in government-
owned or controlled corporations and their subsidiaries.
Mandating additional duties and functions to the President,
Vice-President, Cabinet Members, their deputies or
assistants which are not inconsistent with those already
prescribed by their offices or appointments by virtue of their
special knowledge, expertise and skill in their respective
executive offices is a practice long-recognized in many
jurisdictions. It is a practice justified by the demands of
efficiency, policy direction, continuity and coordination
among the different offices in the Executive Branch in the
discharge of its multifarious tasks of executing and
implementing laws affecting national interest and general
welfare and delivering basic services to the people. It is
consistent with the power vested on the President and his
alter egos, the Cabinet members, to have control of all the
executive departments, bureaus and offices and to ensure
that the laws are faithfully executed.35 Without these
additional duties and functions being assigned to the
President and his official family to sit in the governing
bodies or boards of governmental agencies or
instrumentalities in an ex-officio capacity as provided by
law and as required by their primary functions, they would
be supervision, thereby deprived of the means for control
and resulting in an unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional
duties or functions may not transgress the prohibition
embodied in Section 13, Article VII of the 1987
Constitution, such additional duties or functions must
be required by the primary functions of the official
concerned, who is to perform the same in an ex-officio
capacity as provided by law, without receiving any
additional compensation therefor.
The ex-officio position being actually and in legal
contemplation part of the principal office, it follows that the
official concerned has no right to receive additional
compensation for his services in the said position. The
reason is that these services are already paid for and
covered by the compensation attached to his principal
office. It should be obvious that if, say, the Secretary of
Finance attends a meeting of the Monetary Board as an ex-
officio member thereof, he is actually and in legal
contemplation performing the primary function of his
principal office in defining policy in monetary and banking
matters, which come under the jurisdiction of his
47 | Executive
department. For such attendance, therefore, he is not
entitled to collect any extra compensation, whether it be in
the form of a per them or an honorarium or an allowance,
or some other such euphemism. By whatever name it is
designated, such additional compensation is prohibited by
the Constitution.
It is interesting to note that during the floor deliberations
on the proposal of Commissioner Christian Monsod to add
to Section 7, par. (2), Article IX-B, originally found as
Section 3 of the General Provisions, the exception "unless
required by the functions of his position,"36 express
reference to certain high-ranking appointive public officials
like members of the Cabinet were made.37 Responding to a
query of Commissioner Blas Ople, Commissioner Monsod
pointed out that there are instances when although not
required by current law, membership of certain high-
ranking executive officials in other offices and
corporations is necessary by reason of said officials' primary
functions. The example given by Commissioner Monsod was
the Minister of Trade and Industry.38
While this exchange between Commissioners Monsod and
Ople may be used as authority for saying that additional
functions and duties flowing from the primary functions of
the official may be imposed upon him without offending the
constitutional prohibition under consideration, it cannot,
however, be taken as authority for saying that this
exception is by virtue of Section 7, par. (2) of Article I-XB.
This colloquy between the two Commissioners took place in
the plenary session of September 27, 1986. Under
consideration then was Section 3 of Committee Resolution
No. 531 which was the proposed article on General
Provisions.39 At that time, the article on the Civil Service
Commission had been approved on third reading on July 22,
1986,40 while the article on the Executive Department,
containing the more specific prohibition in Section 13, had
also been earlier approved on third reading on August 26,
1986.41 It was only after the draft Constitution had
undergone reformatting and "styling" by the Committee on
Style that said Section 3 of the General Provisions became
Section 7, par. (2) of Article IX-B and reworded "Unless
otherwise allowed by law or by the primary functions of his
position. . . ."
What was clearly being discussed then were general
principles which would serve as constitutional guidelines in
the absence of specific constitutional provisions on the
matter. What was primarily at issue and approved on that
occasion was the adoption of the qualified and delimited
phrase "primary functions" as the basis of an exception to
the general rule covering all appointive public officials. Had
the Constitutional Commission intended to dilute the
specific prohibition in said Section 13 of Article VII, it could
have re-worded said Section 13 to conform to the wider
exceptions provided in then Section 3 of the proposed
general Provisions, later placed as Section 7, par. (2) of
Article IX-B on the Civil Service Commission.
That this exception would in the final analysis apply also to
the President and his official family is by reason of the legal
principles governing additional functions and duties of
public officials rather than by virtue of Section 7, par. 2,
Article IX-B At any rate, we have made it clear that only the
additional functions and duties "required," as opposed to
"allowed," by the primary functions may be considered as
not constituting "any other office."
While it is permissible in this jurisdiction to consult the
debates and proceedings of the constitutional convention in
order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other
guides fail42 as said proceedings are powerless to vary the
terms of the Constitution when the meaning is
clear.1âwphi1 Debates in the constitutional convention "are
of value as showing the views of the individual members,
and as indicating the reasons for their votes, but they give
us no light as to the views of the large majority who did not
talk, much less of the mass of our fellow citizens whose
votes at the polls gave that instrument the force of
fundamental law. We think it safer to construe the
constitution from what appears upon its face."43 The proper
interpretation therefore depends more on how it was
understood by the people adopting it than in the framers's
understanding thereof.44
It being clear, as it was in fact one of its best selling points,
that the 1987 Constitution seeks to prohibit the President,
Vice-President, members of the Cabinet, their deputies or
assistants from holding during their tenure multiple offices
or employment in the government, except in those cases
specified in the Constitution itself and as above clarified
with respect to posts held without additional compensation
in an ex-officio capacity as provided by law and as required
by the primary functions of their office, the citation of
Cabinet members (then called Ministers) as examples
during the debate and deliberation on the general rule laid
down for all appointive officials should be considered as
mere personal opinions which cannot override the
constitution's manifest intent and the people' understanding
thereof.
In the light of the construction given to Section 13, Article
VII in relation to Section 7, par. (2), Article IX-B of the
1987 Constitution, Executive Order No. 284 dated July 23,
1987 is unconstitutional. Ostensibly restricting the number
of positions that Cabinet members, undersecretaries or
assistant secretaries may hold in addition to their primary
position to not more than two (2) positions in the
government and government corporations, Executive Order
No. 284 actually allows them to hold multiple offices or
employment in direct contravention of the express mandate
of Section 13, Article VII of the 1987 Constitution
prohibiting them from doing so, unless otherwise provided
in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical
consequences that will result from a strict application of the
prohibition mandated under Section 13, Article VII on the
operations of the Government, considering that Cabinet
members would be stripped of their offices held in an ex-
officio capacity, by reason of their primary positions or by
virtue of legislation. As earlier clarified in this decision, ex-
officio posts held by the executive official concerned without
additional compensation as provided by law and as required
by the primary functions of his office do not fall under the
definition of "any other office" within the contemplation of
the constitutional prohibition. With respect to other offices
or employment held by virtue of legislation, including
chairmanships or directorships in government-owned or
controlled corporations and their subsidiaries, suffice it to
say that the feared impractical consequences are more
apparent than real. Being head of an executive department
is no mean job. It is more than a full-time job, requiring full
attention, specialized knowledge, skills and expertise. If
maximum benefits are to be derived from a department
head's ability and expertise, he should be allowed to attend
to his duties and responsibilities without the distraction of
other governmental offices or employment. He should be
precluded from dissipating his efforts, attention and energy
among too many positions of responsibility, which may
result in haphazardness and inefficiency. Surely the
advantages to be derived from this concentration of
attention, knowledge and expertise, particularly at this
stage of our national and economic development, far
outweigh the benefits, if any, that may be gained from a
department head spreading himself too thin and taking in
more than what he can handle.
Finding Executive Order No. 284 to be constitutionally
infirm, the court hereby orders respondents Secretary of
48 | Executive
Environment and Natural Resources Fulgencio Factoran, Jr.,
Secretary of Local Government45 Luis Santos, Secretary of
National Defense Fidel V. Ramos, Secretary of Health
Alfredo R.A. Bengzon and Secretary of the Budget Guillermo
Carague to immediately relinquish their other offices or
employment, as herein defined, in the government,
including government-owned or controlled corporations and
their subsidiaries. With respect to the other named
respondents, the petitions have become moot and academic
as they are no longer occupying the positions complained
of.
During their tenure in the questioned positions, respondents
may be considered de facto officers and as such entitled to
emoluments for actual services rendered.46 It has been held
that "in cases where there is no de jure, officer, a de
facto officer, who, in good faith has had possession of the
office and has discharged the duties pertaining thereto, is
legally entitled to the emoluments of the office, and may in
an appropriate action recover the salary, fees and other
compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems
unjust that the public should benefit by the services of an
officer de facto and then be freed from all liability to pay
any one for such services.47 Any per diem, allowances or
other emoluments received by the respondents by virtue of
actual services rendered in the questioned positions may
therefore be retained by them.
WHEREFORE, subject to the qualification above-stated, the
petitions are GRANTED. Executive Order No. 284 is hereby
declared null and void and is accordingly set aside.
SO ORDERED.
EN BANC
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS,
FERDINAND R. MARCOS. JR., IRENE M. ARANETA,
IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO
ARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ
and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President,
CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO
MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR
SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their
capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration
Commissioner, Secretary of National Defense and
Chief of Staff, respectively, respondents.
RESOLUTION
 
EN BANC:
In its decision dated September 15,1989, the Court, by a
vote of eight (8) to seven (7), dismissed the petition, after
finding that the President did not act arbitrarily or with
grave abuse of discretion in determining that the return of
former President Marcos and his family at the present time
and under present circumstances pose a threat to national
interest and welfare and in prohibiting their return to the
Philippines. On September 28, 1989, former President
Marcos died in Honolulu, Hawaii. In a statement, President
Aquino said:
In the interest of the safety of those who
will take the death of Mr. Marcos in widely
and passionately conflicting ways, and for
the tranquility of the state and order of
society, the remains of Ferdinand E.
Marcos will not be allowed to be brought
to our country until such time as the
government, be it under this
administration or the succeeding one,
shall otherwise decide. [Motion for
Reconsideration, p. 1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed
by petitioners, raising the following major arguments:
1. to bar former President Marcos and his family from
returning to the Philippines is to deny them not only the
inherent right of citizens to return to their country of birth
but also the protection of the Constitution and all of the
rights guaranteed to Filipinos under the Constitution;
2. the President has no power to bar a Filipino from his own
country; if she has, she had exercised it arbitrarily; and
3. there is no basis for barring the return of the family of
former President Marcos. Thus, petitioners prayed that the
Court reconsider its decision, order respondents to issue the
necessary travel documents to enable Mrs. Imelda R.
Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee
M. Manotoc, Tommy Manotoc and Gregorio Araneta to
return to the Philippines, and enjoin respondents from
implementing President Aquino's decision to bar the return
of the remains of Mr. Marcos, and the other petitioners, to
the Philippines.
Commenting on the motion for reconsideration, the Solicitor
General argued that the motion for reconsideration is moot
and academic as to the deceased Mr. Marcos. Moreover, he
asserts that "the 'formal' rights being invoked by the
Marcoses under the label 'right to return', including the
label 'return of Marcos' remains, is in reality or substance a
'right' to destabilize the country, a 'right' to hide the
Marcoses' incessant shadowy orchestrated efforts at
destabilization." [Comment, p. 29.] Thus, he prays that the
Motion for Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for
reconsideration, the burden is upon the movants, petitioner
herein, to show that there are compelling reasons to
reconsider the decision of the Court.
2. After a thorough consideration of the matters raised in
the motion for reconsideration, the Court is of the view that
no compelling reasons have been established by petitioners
to warrant a reconsideration of the Court's decision.
The death of Mr. Marcos, although it may be viewed as a
supervening event, has not changed the factual scenario
under which the Court's decision was rendered. The threats
to the government, to which the return of the Marcoses has
been viewed to provide a catalytic effect, have not been
shown to have ceased. On the contrary, instead of erasing
fears as to the destabilization that will be caused by the
return of the Marcoses, Mrs. Marcos reinforced the basis for
the decision to bar their return when she called President
Aquino "illegal," claiming that it is Mr. Marcos, not Mrs.
Aquino, who is the "legal" President of the Philippines, and
declared that the matter "should be brought to all the
49 | Executive
courts of the world." [Comment, p. 1; Philippine Star,
October 4, 1989.]
3. Contrary to petitioners' view, it cannot be denied that the
President, upon whom executive power is vested, has
unstated residual powers which are implied from the grant
of executive power and which are necessary for her to
comply with her duties under the Constitution. The powers
of the President are not limited to what are expressly
enumerated in the article on the Executive Department and
in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of
the President as a reaction to the abuses under the regime
of Mr. Marcos, for the result was a limitation of specific
power of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the
general grant of executive power.
That the President has powers other than those expressly
stated in the Constitution is nothing new. This is recognized
under the U.S. Constitution from which we have patterned
the distribution of governmental powers among three (3)
separate branches.
Article II, [section] 1, provides that "The
Executive Power shall be vested in a
President of the United States of
America." In Alexander Hamilton's widely
accepted view, this statement cannot be
read as mere shorthand for the specific
executive authorizations that follow it in
[sections] 2 and 3. Hamilton stressed the
difference between the sweeping
language of article II, section 1, and the
conditional language of article I, [section]
1: "All legislative Powers herein
granted shall be vested in a Congress of
the United States . . ." Hamilton
submitted that "[t]he [article III
enumeration [in sections 2 and 31 ought
therefore to be considered, as intended
merely to specify the principal articles
implied in the definition of execution
power; leaving the rest to flow from the
general grant of that power, interpreted in
confomity with other parts of the
Constitution...
In Myers v. United States, the Supreme
Court — accepted Hamilton's proposition,
concluding that the federal executive,
unlike the Congress, could exercise power
from sources not enumerated, so long as
not forbidden by the constitutional text:
the executive power was given in general
terms, strengthened by specific terms
where emphasis was regarded as
appropriate, and was limited by direct
expressions where limitation was
needed. . ." The language of Chief Justice
Taft in Myers makes clear that the
constitutional concept of inherent power is
not a synonym for power without limit;
rather, the concept suggests only that not
all powers granted in the Constitution are
themselves exhausted by internal
enumeration, so that, within a sphere
properly regarded as one of "executive'
power, authority is implied unless there or
elsewhere expressly limited. [TRIBE,
AMERICAN CONSTITUTIONAL LAW 158-
159 (1978).]
And neither can we subscribe to the view that a recognition
of the President's implied or residual powers is tantamount
to setting the stage for another dictatorship. Despite
petitioners' strained analogy, the residual powers of the
President under the Constitution should not be confused
with the power of the President under the 1973 Constitution
to legislate pursuant to Amendment No. 6 which provides:
Whenever in the judgment of the
President (Prime Minister), there exists a
grave emergency or a threat or
imminence thereof, or whenever
the interim Batasang Pambansa or the
regular National Assembly fails or is
unable to act adequately on any matter
for any reason that in his judgment
requires immediate action, he may, in
order to meet the exigency, issue the
necessary decrees, orders, or letters of
instruction, which shall form part of the
law of the land,
There is no similarity between the residual powers of the
President under the 1987 Constitution and the power of the
President under the 1973 Constitution pursuant to
Amendment No. 6. First of all, Amendment No. 6 refers to
an express grant of power. It is not implied. Then,
Amendment No. 6 refers to a grant to the President of
the specific power of legislation.
4. Among the duties of the President under the
Constitution, in compliance with his (or her) oath of office,
is to protect and promote the interest and welfare of the
people. Her decision to bar the return of the Marcoses and
subsequently, the remains of Mr. Marcos at the present
time and under present circumstances is in compliance with
this bounden duty. In the absence of a clear showing that
she had acted with arbitrariness or with grave abuse of
discretion in arriving at this decision, the Court will not
enjoin the implementation of this decision.
ACCORDINGLY, the Court resolved to DENY the Motion for
Reconsideration for lack of merit."
EN BANC
G.R. No. 149036            April 2, 2002
MA. J. ANGELINA G. MATIBAG, petitioner,
vs.
ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR., VELMA J. CINCO, and
GIDEON C. DE GUZMAN in his capacity as Officer-In-
Charge, Finance Services Department of the
Commission on Elections, respondents.
CARPIO, J.:
The Case
Before us is an original Petition for Prohibition with prayer
for the issuance of a writ of preliminary injunction and a
temporary restraining order under Rule 65 of the 1997
Rules of Civil Procedure. Petitioner Ma. J. Angelina G.
Matibag ("Petitioner" for brevity) questions the
constitutionality of the appointment and the right to hold
office of the following: (1) Alfredo L. Benipayo ("Benipayo"
for brevity) as Chairman of the Commission on Elections
("COMELEC" for brevity); and (2) Resurreccion Z. Borra
("Borra" for brevity) and Florentino A. Tuason, Jr. ("Tuason"
50 | Executive
for brevity) as COMELEC Commissioners. Petitioner also
questions the legality of the appointment of Velma J.
Cinco1 ("Cinco" for brevity) as Director IV of the COMELEC’s
Education and Information Department ("EID" for brevity).
The Facts
On February 2, 1999, the COMELEC en banc appointed
petitioner as "Acting Director IV" of the EID. On February
15, 2000, then Chairperson Harriet O. Demetriou renewed
the appointment of petitioner as Director IV of EID in a
"Temporary" capacity. On February 15, 2001,
Commissioner Rufino S.B. Javier renewed again the
appointment of petitioner to the same position in a
"Temporary" capacity.2
On March 22, 2001, President Gloria Macapagal Arroyo
appointed, ad interim, Benipayo as COMELEC
Chairman,3 and Borra4 and Tuason5 as COMELEC
Commissioners, each for a term of seven years and all
expiring on February 2, 2008. Benipayo took his oath of
office and assumed the position of COMELEC Chairman.
Borra and Tuason likewise took their oaths of office and
assumed their positions as COMELEC Commissioners. The
Office of the President submitted to the Commission on
Appointments on May 22, 2001 the ad
interim appointments of Benipayo, Borra and Tuason for
confirmation.6 However, the Commission on Appointments
did not act on said appointments.
On June 1, 2001, President Arroyo renewed the ad
interim appointments of Benipayo, Borra and Tuason to the
same positions and for the same term of seven years,
expiring on February 2, 2008.7 They took their oaths of
office for a second time. The Office of the President
transmitted on June 5, 2001 their appointments to the
Commission on Appointments for confirmation.8
Congress adjourned before the Commission on
Appointments could act on their appointments. Thus, on
June 8, 2001, President Macapagal Arroyo renewed again
the ad interim appointments of Benipayo, Borra and Tuason
to the same positions.9 The Office of the President
submitted their appointments for confirmation to the
Commission on Appointments.10 They took their oaths of
office anew.
In his capacity as COMELEC Chairman, Benipayo issued a
Memorandum dated April 11, 200111 addressed to petitioner
as Director IV of the EID and to Cinco as Director III also of
the EID, designating Cinco Officer-in-Charge of the EID and
reassigning petitioner to the Law Department. COMELEC
EID Commissioner-in-Charge Mehol K. Sadain objected to
petitioner’s reassignment in a Memorandum dated April 14,
200112 addressed to the COMELEC en banc. Specifically,
Commissioner Sadain questioned Benipayo’s failure to
consult the Commissioner-in-Charge of the EID in the
reassignment of petitioner.
On April 16, 2001, petitioner requested Benipayo to
reconsider her relief as Director IV of the EID and her
reassignment to the Law Department.13 Petitioner cited Civil
Service Commission Memorandum Circular No. 7 dated April
10, 2001, reminding heads of government offices that
"transfer and detail of employees are prohibited during the
election period beginning January 2 until June 13, 2001."
Benipayo denied her request for reconsideration on April
18, 2001,14 citing COMELEC Resolution No. 3300 dated
November 6, 2000, which states in part:
"NOW, THEREFORE, the Commission on Elections
by virtue of the powers conferred upon it by the
Constitution, the Omnibus Election Code and other
election laws, as an exception to the foregoing
 prohibitions, has RESOLVED, as it is hereby
RESOLVED, to appoint, hire new employees or fill
new positions and transfer or reassign its
personnel, when necessary in the effective
performance of its mandated functions during the
prohibited period, provided that the changes in the
assignment of its field personnel within the thirty-
day period before election day shall be effected
after due notice and hearing."
Petitioner appealed the denial of her request for
reconsideration to the COMELEC en banc in a Memorandum
dated April 23, 2001.15 Petitioner also filed an administrative
and criminal complaint16 with the Law Department17 against
Benipayo, alleging that her reassignment violated Section
261 (h) of the Omnibus Election Code, COMELEC Resolution
No. 3258, Civil Service Memorandum Circular No. 07, s.
001, and other pertinent administrative and civil service
laws, rules and regulations.
During the pendency of her complaint before the Law
Department, petitioner 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, Borra
and Tuason violate the constitutional provisions on the
independence of the COMELEC, as well as on the
prohibitions on temporary appointments and
reappointments of its Chairman and members. Petitioner
also assails as illegal her removal as Director IV of the EID
and her reassignment to the Law Department.
Simultaneously, petitioner challenges the designation of
Cinco as Officer-in-Charge of the EID. Petitioner, moreover,
questions the legality of the disbursements made by
COMELEC Finance Services Department Officer-in-Charge
Gideon C. De Guzman to Benipayo, Borra and Tuason by
way of salaries and other emoluments.
In the meantime, on September 6, 2001, President
Macapagal Arroyo renewed once again the ad
interim appointments of Benipayo as COMELEC Chairman
and Borra and Tuason as Commissioners, respectively, for a
term of seven years expiring on February 2, 2008.18 They all
took their oaths of office anew.
The Issues
The issues for resolution of this Court are as follows:
1. Whether or not the instant petition satisfies all the
requirements before this Court may exercise its power of
judicial review in constitutional cases;
2. Whether or not the assumption of office by Benipayo,
Borra and Tuason on the basis of the ad
interim appointments issued by the President amounts to a
temporary appointment prohibited by Section 1 (2), Article
IX-C of the Constitution;
3. Assuming that the first ad interim appointments and the
first assumption of office by Benipayo, Borra and Tuason
are legal, whether or not the renewal of their ad
interim appointments and subsequent assumption of office
to the same positions violate the prohibition on
reappointment under Section 1 (2), Article IX-C of the
Constitution;
4. Whether or not Benipayo’s removal of petitioner from her
position as Director IV of the EID and her reassignment to
the Law Department is illegal and without authority, having
been done without the approval of the COMELEC as a
collegial body;
51 | Executive
5. Whether or not the Officer-in-Charge of the COMELEC’s
Finance Services Department, in continuing to make
disbursements in favor of Benipayo, Borra, Tuason and
Cinco, is acting in excess of jurisdiction.
First Issue: Propriety of Judicial Review
Respondents assert that the petition fails to satisfy all the
four requisites before this Court may exercise its power of
judicial review in constitutional cases. Out of respect for the
acts of the Executive department, which is co-equal with
this Court, respondents urge this Court to refrain from
reviewing the constitutionality of the ad
interim appointments issued by the President to Benipayo,
Borra and Tuason unless all the four requisites are present.
These are: (1) the existence of an actual and appropriate
controversy; (2) a personal and substantial interest of the
party raising the constitutional issue; (3) the exercise of the
judicial review is pleaded at the earliest opportunity; and
(4) the constitutional issue is the lis mota of the
case.19 Respondents argue that the second, third and fourth
requisites are absent in this case. Respondents maintain
that petitioner does not have a personal and substantial
interest in the case because she has not sustained a direct
injury as a result of the ad interim appointments of
Benipayo, Borra and Tuason and their assumption of office.
Respondents point out that petitioner does not claim to be
lawfully entitled to any of the positions assumed by
Benipayo, Borra or Tuason. Neither does petitioner claim to
be directly injured by the appointments of these three
respondents.
Respondents also contend that petitioner failed to question
the constitutionality of the ad interim appointments at the
earliest opportunity. Petitioner filed the petition only on
August 3, 2001 despite the fact that the ad
interim appointments of Benipayo, Borra and Tuason were
issued as early as March 22, 2001. Moreover, the petition
was filed after the third time that these three respondents
were issued ad interim appointments.
Respondents insist that the real issue in this case is the
legality of petitioner’s reassignment from the EID to the
Law Department. Consequently, the constitutionality of
the ad interim appointments is not the lis mota of this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she
was Acting Director, to the Law Department, where she was
placed on detail service.20 Respondents claim that the
reassignment was "pursuant to x x x Benipayo’s authority
as Chairman of the Commission on Elections, and as the
Commission’s Chief Executive Officer."21 Evidently,
respondents anchor the legality of petitioner’s reassignment
on Benipayo’s authority as Chairman of the COMELEC. The
real issue then turns on whether or not Benipayo is the
lawful Chairman of the COMELEC. Even if petitioner is only
an Acting Director of the EID, her reassignment is without
legal basis if Benipayo is not the lawful COMELEC Chairman,
an office created by the Constitution.
On the other hand, if Benipayo is the lawful COMELEC
Chairman because he assumed office in accordance with the
Constitution, then petitioner’s reassignment is legal and she
has no cause to complain provided the reassignment is in
accordance with the Civil Service Law. Clearly, petitioner
has a personal and material stake in the resolution of the
constitutionality of Benipayo’s assumption of office.
Petitioner’s personal and substantial injury, if Benipayo is
not the lawful COMELEC Chairman, clothes her with the
requisite locus standi to raise the constitutional issue in this
petition.
Respondents harp on petitioner’s belated act of questioning
the constitutionality of the ad interim appointments of
Benipayo, Borra and Tuason. Petitioner filed the instant
petition only on August 3, 2001, when the first ad
interim appointments were issued as early as March 22,
2001. However, it is not the date of filing of the petition
that determines whether the constitutional issue was raised
at the earliest opportunity. The earliest opportunity to raise
a constitutional issue is to raise it in the pleadings before a
competent court that can resolve the same, such that, "if it
is not raised in the pleadings, it cannot be considered at the
trial, and, if not considered at the trial, it cannot be
considered on appeal."22 Petitioner questioned the
constitutionality of the ad interim appointments of
Benipayo, Borra and Tuason when she filed her petition
before this Court, which is the earliest opportunity for
pleading the constitutional issue before a competent body.
Furthermore, this Court may determine, in the exercise of
sound discretion, the time when a constitutional issue may
be passed upon.23 There is no doubt petitioner raised the
constitutional issue on time.
Moreover, the legality of petitioner’s reassignment hinges
on the constitutionality of Benipayo’s ad
interim appointment and assumption of office. Unless the
constitutionality of Benipayo’s ad interim appointment and
assumption of office is resolved, the legality of petitioner’s
reassignment from the EID to the Law Department cannot
be determined. Clearly, the lis mota of this case is the very
constitutional issue raised by petitioner.
In any event, the issue raised by petitioner is of paramount
importance to the public. The legality of the directives and
decisions made by the COMELEC in the conduct of the May
14, 2001 national elections may be put in doubt if the
constitutional issue raised by petitioner is left unresolved.
In keeping with this Court’s duty to determine whether
other agencies of government have remained within the
limits of the Constitution and have not abused the
discretion given them, this Court may even brush aside
technicalities of procedure and resolve any constitutional
issue raised.24 Here the petitioner has complied with all the
requisite technicalities. Moreover, public interest requires
the resolution of the constitutional issue raised by
petitioner.
Second Issue: The Nature of an Ad Interim Appointment
Petitioner argues that an ad interim appointment to the
COMELEC is a temporary appointment that is prohibited by
Section 1 (2), Article IX-C of the Constitution, which
provides as follows:
"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." (Emphasis supplied)
Petitioner posits the view that an ad interim appointment
can be withdrawn or revoked by the President at her
pleasure, and can even be disapproved or simply by-passed
by the Commission on Appointments. For this reason,
petitioner claims that an ad interim appointment is
temporary in character and consequently prohibited by the
last sentence of Section 1 (2), Article IX-C of the
Constitution.
52 | Executive
Based on petitioner’s theory, there can be no ad
interim appointment to the COMELEC or to the other two
constitutional commissions, namely the Civil Service
Commission and the Commission on Audit. The last
sentence of Section 1 (2), Article IX-C of the Constitution is
also found in Article IX-B and Article IX-D providing for the
creation of the Civil Service Commission and the
Commission on Audit, respectively. Petitioner interprets the
last sentence of Section 1 (2) of Article IX-C to mean that
the ad interim appointee cannot assume office until his
appointment is confirmed by the Commission on
Appointments for only then does his appointment become
permanent and no longer temporary in character.
The rationale behind petitioner’s theory is that only an
appointee who is confirmed by the Commission on
Appointments can guarantee the independence of the
COMELEC. A confirmed appointee is beyond the influence of
the President or members of the Commission on
Appointments since his appointment can no longer be
recalled or disapproved. Prior to his confirmation, the
appointee is at the mercy of both the appointing and
confirming powers since his appointment can be terminated
at any time for any cause. In the words of petitioner, a
Sword of Damocles hangs over the head of every appointee
whose confirmation is pending with the Commission on
Appointments.
We find petitioner’s argument without merit.
An ad interim appointment is a permanent appointment
because it takes effect immediately and can no longer be
withdrawn by the President once the appointee has qualified
into office. The fact that it is subject to confirmation by the
Commission on Appointments does not alter its permanent
character. The Constitution itself makes an ad
interim appointment permanent in character by making it
effective until disapproved by the Commission on
Appointments or until the next adjournment of Congress.
The second paragraph of Section 16, Article VII of the
Constitution provides as follows:
"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)
Thus, the ad interim appointment remains effective
until such disapproval or next adjournment, signifying that
it can no longer be withdrawn or revoked by the President.
The fear that the President can withdraw or revoke at any
time and for any reason an ad interim appointment is
utterly without basis.
More than half a century ago, this Court had already ruled
that an ad interim appointment is permanent in character.
In Summers vs. Ozaeta,25 decided on October 25, 1948, we
held that:
"x x x an ad interim appointment is one made in
pursuance of paragraph (4), Section 10, Article VII
of the Constitution, which provides that the
‘President shall have the power to make
appointments during the recess of the Congress,
but such appointments shall be effective only until
disapproval by the Commission on Appointments
or until the next adjournment of the Congress.’ It
is an appointment permanent in nature, and the
circumstance that it is subject to confirmation by
the Commission on Appointments does not alter its
permanent character. An ad interim appointment is
 disapproved certainly for a reason other than that
its provisional period has expired. Said
appointment is of course distinguishable from an
‘acting’ appointment which is merely temporary,
good until another permanent appointment is
issued." (Emphasis supplied)
The Constitution imposes no condition on the effectivity of
an ad interim appointment, and thus an ad
interim appointment takes effect immediately. The
appointee can at once assume office and exercise, as a de
jure officer, all the powers pertaining to the office. In
Pacete vs. Secretary of the Commission on
Appointments,26 this Court elaborated on the nature of
an ad interim appointment as follows:
"A distinction is thus made between the exercise of
such presidential prerogative requiring
confirmation by the Commission on Appointments
when Congress is in session and when it is in
recess. In the former, the President nominates,
and only upon the consent of the Commission on
Appointments may the person thus named assume
office. It is not so with reference to ad interim
appointments. It takes effect at once. The
individual chosen may thus qualify and perform his
function without loss of time. His title to such
office is complete. In the language of the
Constitution, the appointment is effective ‘until
disapproval by the Commission on Appointments
or until the next adjournment of the Congress.’"
Petitioner cites Black’s Law Dictionary which defines the
term "ad interim" to mean "in the meantime" or "for the
time being." Hence, petitioner argues that an ad
interim appointment is undoubtedly temporary in character.
This argument is not new and was answered by this Court
in Pamantasan ng Lungsod ng Maynila vs. Intermediate
Appellate Court,27 where we explained that:
"x x x From the arguments, it is easy to see why the
petitioner should experience difficulty in understanding the
situation. Private respondent had been extended several ‘ad
interim’ appointments which petitioner mistakenly
understands as appointments temporary in nature. Perhaps,
it is the literal translation of the word ‘ad interim’ which
creates such belief. The term is defined by Black to mean
"in the meantime" or "for the time being". Thus, an
officer ad interim is one appointed to fill a vacancy, or to
discharge the duties of the office during the absence or
temporary incapacity of its regular incumbent (Black’s Law
Dictionary, Revised Fourth Edition, 1978). But such is not
the meaning nor the use intended in the context of
Philippine law. In referring to Dr. Esteban’s appointments,
the term is not descriptive of the nature of the
appointments given to him. Rather, it is used to denote the
manner in which said appointments were made, that is,
done by the President of the Pamantasan in the meantime,
while the Board of Regents, which is originally vested by
the University Charter with the power of appointment, is
unable to act. x x x." (Emphasis supplied)
Thus, the term "ad interim appointment", as used in letters
of appointment signed by the President, means a
permanent appointment made by the President in the
meantime that Congress is in recess. It does not mean a
temporary appointment that can be withdrawn or revoked
at any time. The term, although not found in the text of the
Constitution, has acquired a definite legal meaning under
Philippine jurisprudence. The Court had again occasion to
explain the nature of an ad interim appointment in the more
recent case of Marohombsar vs. Court of Appeals,28 where
the Court stated:
53 | Executive
"We have already mentioned that an ad interim
appointment is not descriptive of the nature of the
appointment, that is, it is not indicative of whether
the appointment is temporary or in an acting
capacity, rather it denotes the manner in which the
appointment was made. In the instant case, the
appointment extended to private respondent by
then MSU President Alonto, Jr. was issued without
condition nor limitation as to tenure. The
permanent status of private respondent’s
appointment as Executive Assistant II was
recognized and attested to by the Civil Service
Commission Regional Office No. 12. Petitioner’s
submission that private respondent’s ad interim
appointment is synonymous with a temporary
appointment which could be validly terminated at
any time is clearly untenable. Ad interim
appointments are permanent but their terms are
only until the Board disapproves them." (Emphasis
supplied)
An ad interim appointee who has qualified and assumed
office becomes at that moment a government employee
and therefore part of the civil service. He enjoys the
constitutional protection that "[n]o officer or employee in
the civil service shall be removed or suspended except for
cause provided by law." 29 Thus, an ad interim appointment
becomes complete and irrevocable once the appointee has
qualified into office. The withdrawal or revocation of an ad
interim appointment is possible only if it is communicated to
the appointee before the moment he qualifies, and any
withdrawal or revocation thereafter is tantamount to
removal from office.30 Once an appointee has qualified, he
acquires a legal right to the office which is protected not
only by statute but also by the Constitution. He can only be
removed for cause, after notice and hearing, consistent with
the requirements of due process.
An ad interim appointment can be terminated for two
causes specified in the Constitution. The first cause is the
disapproval of his ad interim appointment by the
Commission on Appointments. The second cause is the
adjournment of Congress without the Commission on
Appointments acting on his appointment. These two causes
are resolutory conditions expressly imposed by the
Constitution on all ad interim appointments. These
resolutory conditions constitute, in effect, a Sword of
Damocles over the heads of ad interim appointees. No one,
however, can complain because it is the Constitution itself
that places the Sword of Damocles over the heads of the ad
interim appointees.
While an ad interim appointment is permanent and
irrevocable except as provided by law, an appointment or
designation in a temporary or acting capacity can be
withdrawn or revoked at the pleasure of the appointing
power.31 A temporary or acting appointee does not enjoy
any security of tenure, no matter how briefly. This is the
kind of appointment that the Constitution prohibits the
President from making to the three independent
constitutional commissions, including the COMELEC.
Thus, in Brillantes vs. Yorac,32 this Court struck down as
unconstitutional the designation by then President Corazon
Aquino of Associate Commissioner Haydee Yorac as Acting
Chairperson of the COMELEC. This Court ruled that:
"A designation as Acting Chairman is by its very
terms essentially temporary and therefore
revocable at will. No cause need be established to
justify its revocation. Assuming its validity, the
designation of the respondent as Acting Chairman
of the Commission on Elections may be withdrawn
by the President of the Philippines at any time and
for whatever reason she sees fit. It is doubtful if
the respondent, having accepted such designation,
 will not be estopped from challenging its
withdrawal.
xxx
The Constitution provides for many safeguards to
the independence of the Commission on Elections,
foremost among which is the security of tenure of
its members. That guarantee is not available to the
respondent as Acting Chairman of the Commission
on Elections by designation of the President of the
Philippines."
Earlier, in Nacionalista Party vs. Bautista,33 a case decided
under the 1935 Constitution, which did not have a provision
prohibiting temporary or acting appointments to the
COMELEC, this Court nevertheless declared unconstitutional
the designation of the Solicitor General as acting member of
the COMELEC. This Court ruled that the designation of an
acting Commissioner would undermine the independence of
the COMELEC and hence violate the Constitution. We
declared then: "It would be more in keeping with the intent,
purpose and aim of the framers of the Constitution to
appoint a permanent Commissioner than to designate one
to act temporarily." (Emphasis supplied)
In the instant case, the President did in fact appoint
permanent Commissioners to fill the vacancies in the
COMELEC, subject only to confirmation by the Commission
on Appointments. Benipayo, Borra and Tuason were
extended permanent appointments during the recess of
Congress. They were not appointed or designated in a
temporary or acting capacity, unlike Commissioner Haydee
Yorac in Brillantes vs. Yorac34 and Solicitor General Felix
Bautista in Nacionalista Party vs. Bautista.35 The ad
interim appointments of Benipayo, Borra and Tuason are
expressly allowed by the Constitution which authorizes the
President, during the recess of Congress, to make
appointments that take effect immediately.
While the Constitution mandates that the COMELEC "shall
be independent"36 , this provision should be harmonized
with the President’s power to extend ad
interim appointments. To hold that the independence of the
COMELEC requires the Commission on Appointments to first
confirm ad interim appointees before the appointees can
assume office will negate the President’s power to make ad
interim appointments. This is contrary to the rule on
statutory construction to give meaning and effect to every
provision of the law. It will also run counter to the clear
intent of the framers of the Constitution.
The original draft of Section 16, Article VII of the
Constitution - on the nomination of officers subject to
confirmation by the Commission on Appointments - did not
provide for ad interim appointments. The original intention
of the framers of the Constitution was to do away with ad
interim appointments because the plan was for Congress to
remain in session throughout the year except for a brief 30-
day compulsory recess. However, because of the need to
avoid disruptions in essential government services, the
framers of the Constitution thought it wise to reinstate the
provisions of the 1935 Constitution on ad
interim appointments. The following discussion during the
deliberations of the Constitutional Commission elucidates
this:
"FR. BERNAS: X x x our compulsory recess now is
only 30 days. So under such circumstances, is it
necessary to provide for ad interim appointments?
Perhaps there should be a little discussion on that.
xxx
54 | Executive
MS. AQUINO: My concern is that unless this
problem is addressed, this might present problems
in terms of anticipating interruption of government
business, considering that we are not certain of the
length of involuntary recess or adjournment of the
Congress. We are certain, however, of the
involuntary adjournment of the Congress which is
30 days, but we cannot leave to conjecture the
matter of involuntary recess.
FR. BERNAS: That is correct, but we are trying to
look for a formula. I wonder if the Commissioner
has a formula x x x.
xxx
MR. BENGZON: Madam President, apropos of the
matter raised by Commissioner Aquino and after
conferring with the Committee, Commissioner
Aquino and I propose the following amendment as
the last paragraph of Section 16, the wordings of
which are in the 1935 Constitution: THE
PRESIDENT SHALL HAVE THE POWER TO MAKE
APPOINTMENTS DURING THE RECESS OF
CONGRESS WHETHER IT BE VOLUNTARY OR
COMPULSORY BUT SUCH APPOINTMENTS SHALL
BE EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE
COMMISSION ON APPOINTMENTS OR UNTIL THE
NEXT ADJOURNMENT OF THE CONGRESS.
This is otherwise called the ad
interim appointments.
xxx
THE PRESIDENT: Is there any objection to the
proposed amendment of Commissioners Aquino
and Bengzon, adding a paragraph to the last
paragraph of Section 16? (Silence) The Chair hears
none; the amendment is approved."37 (Emphasis
supplied)
Clearly, the reinstatement in the present Constitution of
the ad interim appointing power of the President was for
the purpose of avoiding interruptions in vital government
services that otherwise would result from prolonged
vacancies in government offices, including the three
constitutional commissions. In his concurring opinion
in Guevara vs. Inocentes,38 decided under the 1935
Constitution, Justice Roberto Concepcion, Jr. explained the
rationale behind ad interim appointments in this manner:
"Now, why is the lifetime of ad
interim appointments so limited? Because, if they
expired before the session of Congress, the evil
sought to be avoided – interruption in the
discharge of essential functions – may take place.
Because the same evil would result if the
appointments ceased to be effective during the
session of Congress and before its adjournment.
Upon the other hand, once Congress has
adjourned, the evil aforementioned may easily be
conjured by the issuance of other ad
interim appointments or reappointments."
(Emphasis supplied)
Indeed, the timely application of the last sentence of
Section 16, Article VII of the Constitution barely avoided
the interruption of essential government services in the May
2001 national elections. Following the decision of this Court
in Gaminde vs. Commission on
Appointments,39 promulgated on December 13, 2000, the
terms of office of constitutional officers first appointed
under the Constitution would have to be counted starting
February 2, 1987, the date of ratification of the
Constitution, regardless of the date of their actual
appointment. By this reckoning, the terms of office of three
Commissioners of the COMELEC, including the Chairman,
would end on February 2, 2001.40
Then COMELEC Chairperson Harriet O. Demetriou was
appointed only on January 11, 2000 to serve, pursuant to
her appointment papers, until February 15, 2002,41 the
original expiry date of the term of her predecessor, Justice
Bernardo P. Pardo, who was elevated to this Court. The
original expiry date of the term of Commissioner Teresita
Dy-Liacco Flores was also February 15, 2002, while that of
Commissioner Julio F. Desamito was November 3,
2001.42 The original expiry dates of the terms of office of
Chairperson Demetriou and Commissioners Flores and
Desamito were therefore supposed to fall after the May
2001 elections. Suddenly and unexpectedly, because of
the Gaminde ruling, there were three vacancies in the
seven-person COMELEC, with national elections looming
less than three and one-half months away. To their credit,
Chairperson Demetriou and Commissioner Flores vacated
their offices on February 2, 2001 and did not question any
more before this Court the applicability of
the Gaminde ruling to their own situation.
In a Manifestation43 dated December 28, 2000 filed with this
Court in the Gaminde case, Chairperson Demetriou stated
that she was vacating her office on February 2, 2001, as
she believed any delay in choosing her successor might
create a "constitutional crisis" in view of the proximity of
the May 2001 national elections. Commissioner Desamito
chose to file a petition for intervention44 in
the Gaminde case but this Court denied the intervention.
Thus, Commissioner Desamito also vacated his office on
February 2, 2001.
During an election year, Congress normally goes on
voluntary recess between February and June considering
that many of the members of the House of Representatives
and the Senate run for re-election. In 2001, the Eleventh
Congress adjourned from January 9, 2001 to June 3,
2001.45 Concededly, there was no more time for Benipayo,
Borra and Tuason, who were originally extended ad
interim appointments only on March 22, 2001, to be
confirmed by the Commission on Appointments before the
May 14, 2001 elections.
If Benipayo, Borra and Tuason were not extended ad
interim appointments to fill up the three vacancies in the
COMELEC, there would only have been one division
functioning in the COMELEC instead of two during the May
2001 elections. Considering that the Constitution requires
that "all x x x election cases shall be heard and decided in
division",46 the remaining one division would have been
swamped with election cases. Moreover, since under the
Constitution motions for reconsideration "shall be decided
by the Commission en banc", the mere absence of one of
the four remaining members would have prevented a
quorum, a less than ideal situation considering that the
Commissioners are expected to travel around the country
before, during and after the elections. There was a great
probability that disruptions in the conduct of the May 2001
elections could occur because of the three vacancies in the
COMELEC. The successful conduct of the May 2001 national
elections, right after the tumultuous EDSA II and EDSA III
events, was certainly essential in safeguarding and
strengthening our democracy.
Evidently, the exercise by the President in the instant case
of her constitutional power to make ad
interim appointments prevented the occurrence of the very
evil sought to be avoided by the second paragraph of
Section 16, Article VII of the Constitution. This power to
55 | Executive
make ad interim appointments is lodged in the President to
be exercised by her in her sound judgment. Under the
second paragraph of Section 16, Article VII of the
Constitution, the President can choose either of two modes
in appointing officials who are subject to confirmation by
the Commission on Appointments. First, while Congress is
in session, the President may nominate the prospective
appointee, and pending consent of the Commission on
Appointments, the nominee cannot qualify and assume
office. Second, during the recess of Congress, the President
may extend an ad interim appointment which allows the
appointee to immediately qualify and assume office.
Whether the President chooses to nominate the prospective
appointee or extend an ad interim appointment is a matter
within the prerogative of the President because the
Constitution grants her that power. This Court cannot
inquire into the propriety of the choice made by the
President in the exercise of her constitutional power, absent
grave abuse of discretion amounting to lack or excess of
jurisdiction on her part, which has not been shown in the
instant case.
The issuance by Presidents of ad interim appointments to
the COMELEC is a long-standing practice. Former President
Corazon Aquino issued an ad interim appointment to
Commissioner Alfredo E. Abueg.47 Former President Fidel V.
Ramos extended ad interim appointments to Commissioners
Julio F. Desamito, Japal M. Guiani, Graduacion A. Reyes-
Claravall and Manolo F. Gorospe.48 Former President Joseph
Estrada also extended ad interim appointments to
Commissioners Abdul Gani M. Marohombsar, Luzviminda
Tancangco, Mehol K. Sadain and Ralph C. Lantion.49
The President’s power to extend ad interim appointments
may indeed briefly put the appointee at the mercy of both
the appointing and confirming powers. This situation,
however, is only for a short period - from the time of
issuance of the ad interim appointment until the
Commission on Appointments gives or withholds its
consent. The Constitution itself sanctions this situation, as a
trade-off against the evil of disruptions in vital government
services. This is also part of the check-and-balance under
the separation of powers, as a trade-off against the evil of
granting the President absolute and sole power to appoint.
The Constitution has wisely subjected the President’s
appointing power to the checking power of the legislature.
This situation, however, does not compromise the
independence of the COMELEC as a constitutional body. The
vacancies in the COMELEC are precisely staggered to insure
that the majority of its members hold confirmed
appointments, and not one President will appoint all the
COMELEC members.50 In the instant case, the Commission
on Appointments had long confirmed four51 of the incumbent
COMELEC members, comprising a majority, who could now
be removed from office only by impeachment. The special
constitutional safeguards that insure the independence of
the COMELEC remain in place.52 The COMELEC enjoys fiscal
autonomy, appoints its own officials and employees, and
promulgates its own rules on pleadings and practice.
Moreover, the salaries of COMELEC members cannot be
decreased during their tenure.
In fine, we rule that the ad interim appointments extended
by the President to Benipayo, Borra and Tuason, as
COMELEC Chairman and Commissioners, respectively, do
not constitute temporary or acting appointments prohibited
by Section 1 (2), Article IX-C of the Constitution.
Third Issue: The Constitutionality of Renewals of
Appointments
Petitioner also agues that assuming the first ad interim explained in his concurring opinion in Guevara vs.
appointments and the first assumption of office by Inocentes53 why by-passed ad interim appointees could be
Benipayo, Borra and Tuason are constitutional, the renewal extended new appointments, thus:
of the their ad interim appointments and their subsequent
assumption of office to the same positions violate the
"In short, an ad interim appointment ceases to be
prohibition on reappointment under Section 1 (2), Article
effective upon disapproval by the Commission,
IX-C of the Constitution, which provides as follows:
because the incumbent can not continue holding
office over the positive objection of the
"The Chairman and the Commissioners shall be Commission. It ceases, also, upon "the next
appointed by the President with the consent of the adjournment of the Congress", simply because the
Commission on Appointments for a term of seven President may then issue new appointments - not
years without reappointment. Of those first because of implied disapproval of the Commission
appointed, three Members shall hold office for deduced from its inaction during the session of
seven years, two Members for five years, and the Congress, for, under the Constitution, the
last members for three years, without Commission may affect adversely the interim
reappointment. X x x." (Emphasis supplied) appointments only by action, never by omission. If
the adjournment of Congress were an implied
disapproval of ad interim appointments made prior
Petitioner theorizes that once an ad interim appointee is by-
thereto, then the President could no longer appoint
passed by the Commission on Appointments, his ad interim
those so by-passed by the Commission. But, the
appointment can no longer be renewed because this will
fact is that the President may reappoint them, thus
violate Section 1 (2), Article IX-C of the Constitution which
clearly indicating that the reason for said
prohibits reappointments. Petitioner asserts that this is
termination of the ad interim appointments is not
particularly true to permanent appointees who have
the disapproval thereof allegedly inferred from said
assumed office, which is the situation of Benipayo, Borra
omission of the Commission, but the circumstance
and Tuason if their ad interim appointments are deemed
that upon said adjournment of the Congress, the
permanent in character.
President is free to make ad interim appointments
or reappointments." (Emphasis supplied)
There is no dispute that an ad interim appointee
disapproved by the Commission on Appointments can no
Guevara was decided under the 1935 Constitution from
longer be extended a new appointment. The disapproval is
where the second paragraph of Section 16, Article VII of the
a final decision of the Commission on Appointments in the
present Constitution on ad interim appointments was
exercise of its checking power on the appointing authority
lifted verbatim.54 The jurisprudence under the 1935
of the President. The disapproval is a decision on the
Constitution governing ad interim appointments by the
merits, being a refusal by the Commission on Appointments
President is doubtless applicable to the present
to give its consent after deliberating on the qualifications of
Constitution. The established practice under the present
the appointee. Since the Constitution does not provide for
Constitution is that the President can renew the
any appeal from such decision, the disapproval is final and
appointments of by-passed ad interim appointees. This is a
binding on the appointee as well as on the appointing
continuation of the well-recognized practice under the 1935
power. In this instance, the President can no longer renew
Constitution, interrupted only by the 1973 Constitution
the appointment not because of the constitutional
which did not provide for a Commission on Appointments
prohibition on reappointment, but because of a final
but vested sole appointing power in the President.
decision by the Commission on Appointments to withhold its
consent to the appointment.
The prohibition on reappointment in Section 1 (2), Article
IX-C of the Constitution applies neither to disapproved nor
An ad interim appointment that is by-passed because of
by-passed ad interim appointments. A disapproved ad
lack of time or failure of the Commission on Appointments
interim appointment cannot be revived by another ad
to organize is another matter. A by-passed appointment is
interim appointment because the disapproval is final under
one that has not been finally acted upon on the merits by
Section 16, Article VII of the Constitution, and not because
the Commission on Appointments at the close of the session
a reappointment is prohibited under Section 1 (2), Article
of Congress. There is no final decision by the Commission
IX-C of the Constitution. A by-passed ad
on Appointments to give or withhold its consent to the
interim appointment can be revived by a new ad
appointment as required by the Constitution. Absent such
interim appointment because there is no final disapproval
decision, the President is free to renew the ad interim
under Section 16, Article VII of the Constitution, and such
appointment of a by-passed appointee. This is recognized in
new appointment will not result in the appointee serving
Section 17 of the Rules of the Commission on
beyond the fixed term of seven years.
Appointments, which provides as follows:

Section 1 (2), Article IX-C of the Constitution provides that

"Section 17. Unacted Nominations or
Appointments Returned to the President.
Nominations or appointments submitted by the
President of the Philippines which are not finally
acted upon at the close of the session of Congress
shall be returned to the President and, unless new
nominations or appointments are made, shall not
again be considered by the Commission."
(Emphasis supplied)
Hence, under the Rules of the Commission on
Appointments, a by-passed appointment can be considered
again if the President renews the appointment.
It is well settled in this jurisdiction that the President can
renew the ad interim appointments of by-passed
appointees. Justice Roberto Concepcion, Jr. lucidly
56 | Executive
"[t]he Chairman and the Commissioners shall be appointed
x x x for a term of seven years without reappointment."
(Emphasis supplied) There are four situations where this
provision will apply. The first situation is where an ad
interim appointee to the COMELEC, after confirmation by
the Commission on Appointments, serves his full seven-
year term. Such person cannot be reappointed to the
COMELEC, whether as a member or as a chairman, because
he will then be actually serving more than seven years. The
second situation is where the appointee, after confirmation,
serves a 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 a chair, to a
vacancy arising from retirement because a reappointment
will result in the appointee also serving more than seven
years. The third situation is where the appointee is
confirmed to serve the unexpired term of someone who
died or resigned, and the appointee completes the
unexpired term. Such person cannot be reappointed,
whether as a member or chair, to a vacancy arising from
retirement because a reappointment will result in the
appointee also serving more than seven years.
The fourth situation is where the appointee has previously
served a term of less than seven 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 Section 1 (2), Article IX-C of
the Constitution. This provision refers to the first appointees
under the Constitution whose terms of office are less than
seven years, but are barred from ever being reappointed
under any situation. Not one of these four situations applies
to the case of Benipayo, Borra or Tuason.
The framers of the Constitution made it quite clear that any
person who has served any term of office as COMELEC
member – whether for a full term of seven years, a
truncated term of five or three years, or even for an
unexpired term of any length of time – can no longer be
reappointed to the COMELEC. Commissioner Foz succinctly
explained this intent in this manner:
"MR. FOZ. But there is the argument made in the
concurring opinion of Justice Angelo Bautista in the
case of Visarra vs. Miraflor, to the effect that the
prohibition on reappointment applies only when
the term or tenure is for seven years. But in cases
where the appointee serves only for less than
seven years, he would be entitled to
reappointment. Unless we put the qualifying words
"without reappointment" in the case of those
appointed, then it is possible that an interpretation
could be made later on their case, they can still be
reappointed to serve for a total of seven years.
Precisely, we are foreclosing that possibility by
making it clear that even in the case of those first
appointed under the Constitution, no
reappointment can be made."55 (Emphasis
supplied)
In Visarra vs. Miraflor,56 Justice Angelo Bautista, in
his concurring opinion, quoted Nacionalista vs. De
Vera57 that a "[r]eappointment is not prohibited
when a Commissioner has held office only for, say,
three or six years, provided his term will not
exceed nine years in all." This was the
interpretation despite the express provision in the
1935 Constitution that a COMELEC member "shall
hold office for a term of nine years and may not be
reappointed."
To foreclose this interpretation, the phrase "without
reappointment" appears twice in Section 1 (2), Article IX-C
of the present Constitution. The first phrase prohibits
reappointment of any person previously appointed for a
term of seven years. The second phrase prohibits
reappointment of any person previously appointed for a
term of five or three years pursuant to the first set of
appointees under the Constitution. In either case, it does
not matter if the person previously appointed completes his
term of office for the intention is to prohibit any
reappointment of any kind.
However, an ad interim appointment that has lapsed by
inaction of the Commission on Appointments does not
constitute a term of office. The period from the time the ad
interim appointment is made to the time it lapses is neither
a fixed term nor an unexpired term. To hold otherwise
would mean that the President by his unilateral action could
57 | Executive
start and complete the running of a term of office in the
COMELEC without the consent of the Commission on
Appointments. This interpretation renders inutile the
confirming power of the Commission on Appointments.
The phrase "without reappointment" applies only to one
who has been appointed by the President and confirmed by
the Commission on Appointments, whether or not such
person completes his term of office. There must be a
confirmation by the Commission on Appointments of the
previous appointment before the prohibition on
reappointment can apply. To hold otherwise will lead to
absurdities and negate the President’s power to make ad
interim appointments.
In the great majority of cases, the Commission on
Appointments usually fails to act, for lack of time, on the ad
interim appointments first issued to appointees. If such ad
interim appointments can no longer be renewed, the
President will certainly hesitate to make ad
interim appointments because most of her appointees will
effectively be disapproved by mere inaction of the
Commission on Appointments. This will nullify the
constitutional power of the President to make ad
interim appointments, a power intended to avoid
disruptions in vital government services. This Court cannot
subscribe to a proposition that will wreak havoc on vital
government services.
The prohibition on reappointment is common to the three
constitutional commissions. The framers of the present
Constitution prohibited reappointments for two reasons. The
first is to prevent a second appointment for those who have
been previously appointed and confirmed even if they
served for less than seven years. The second is to insure
that the members of the three constitutional commissions
do not serve beyond the fixed term of seven years. As
reported in the Journal of the Constitutional Commission,
Commissioner Vicente B. Foz, who sponsored58 the proposed
articles on the three constitutional commissions, outlined
the four important features of the proposed articles, to wit:
"Mr. Foz stated that the Committee had introduced
basic changes in the common provision affecting
the three Constitutional Commissions, and which
are: 1) fiscal autonomy which provides (that)
appropriations shall be automatically and regularly
released to the Commission in the same manner
(as) provided for the Judiciary; 2) fixed term of
office without reappointment on a staggered basis
to ensure continuity of functions and to minimize
the opportunity of the President to appoint all the
members during his incumbency; 3) prohibition to
decrease salaries of the members of the
Commissions during their term of office; and 4)
appointments of members would not require
confirmation."59 (Emphasis supplied)
There were two important amendments subsequently made
by the Constitutional Commission to these four features.
First, as discussed earlier, the framers of the Constitution
decided to require confirmation by the Commission on
Appointments of all appointments to the constitutional
commissions. Second, the framers decided
to strengthen further the prohibition on serving beyond the
fixed seven-year term, in the light of a former chair of the
Commission on Audit remaining in office for 12 years
despite his fixed term of seven years. The following
exchange in the deliberations of the Constitutional
Commission is instructive:
"MR. SUAREZ: These are only clarificatory
questions, Madam President. May I call the
sponsor’s attention, first of all, to Section 2 (2) on
the Civil Service Commission wherein it is stated:
 "In no case shall any Member be appointed in a
temporary or acting capacity." I detect in the
Committee’s proposed resolutions a constitutional
hangover, if I may use the term, from the past
administration. Am I correct in concluding that the
reason the Committee introduced this particular
provision is to avoid an incident similar to the case
of the Honorable Francisco Tantuico who was
appointed in an acting capacity as Chairman of the
Commission on Audit for about 5 years from 1975
until 1980, and then in 1980, was appointed as
Chairman with a tenure of another 7 years. So, if
we follow that appointment to (its) logical
conclusion, he occupied that position for about 12
years in violation of the Constitution?
MR. FOZ: It is only one of the
considerations. Another is really to make sure that
any member who is appointed to any of the
commissions does not serve beyond 7
years."60 (Emphasis supplied)
Commissioner Christian Monsod further clarified the
prohibition on reappointment in this manner:
"MR. MONSOD. If the (Commissioner) 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 that 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."61 (Emphasis
supplied)
Plainly, the prohibition on reappointment is intended to
insure that there will be no reappointment of any kind. On
the other hand, the prohibition on temporary or acting
appointments is intended to prevent any circumvention of
the prohibition on reappointment that may result in an
appointee’s total term of office exceeding seven years. The
evils sought to be avoided by the twin prohibitions are very
specific - reappointment of any kind and exceeding one’s
term in office beyond the maximum period of seven years.
Not contented with these ironclad twin prohibitions, the
framers of the Constitution tightened even further the
screws on those who might wish to extend their terms of
office. Thus, the word "designated" was inserted to plug any
loophole that might be exploited by violators of the
Constitution, as shown in the following discussion in the
Constitutional Commission:
"MR. DE LOS REYES: On line 32, between the
words "appointed" and "in", I propose to insert the
words OR DESIGNATED so that the whole sentence
will read: "In no case shall any Member be
appointed OR DESIGNATED in a temporary or
acting capacity."
THE PRESIDING OFFICER (Mr. Trenas): What does
the Committee say?
MR. FOZ: But it changes the meaning of this
sentence. The sentence reads: "In no case shall
any Member be appointed in a temporary or acting
capacity."
MR. DE LOS REYES: Mr. Presiding Officer, the
reason for this amendment is that some lawyers
make a distinction between an appointment and a
designation. The Gentleman will recall that in the
case of Commissioner on Audit Tantuico, I think his
58 | Executive
term exceeded the constitutional limit but the
Minister of Justice opined that it did not because
he was only designated during the time that he
acted as Commissioner on Audit. So, in order to
erase that distinction between appointment and
designation, we should specifically place the word
so that there will be no more ambiguity. "In no
case shall any Member be appointed OR
DESIGNATED in a temporary or acting capacity."
MR. FOZ: The amendment is accepted, Mr.
Presiding Officer.
MR. DE LOS REYES: Thank you.
THE PRESIDING OFFICER (Mr. Trenas): Is there
any objection? (Silence) The Chair hears none; the
amendment is approved."62
The ad interim appointments and subsequent renewals of
appointments of Benipayo, Borra and Tuason do not violate
the prohibition on reappointments because there were no
previous appointments that were confirmed by the
Commission on Appointments. A reappointment
presupposes a previous confirmed appointment. The
same ad interim appointments and renewals of
appointments will also not breach the seven-year term limit
because all the appointments and renewals of appointments
of Benipayo, Borra and Tuason are for a fixed term expiring
on February 2, 2008.63 Any delay in their confirmation will
not extend the expiry date of their terms of office.
Consequently, there is no danger whatsoever that the
renewal of the ad interim appointments of these three
respondents will result in any of the evils intended to be
exorcised by the twin prohibitions in the Constitution. The
continuing renewal of the ad interim appointment of these
three respondents, for so long as their terms of office expire
on February 2, 2008, does not violate the prohibition on
reappointments in Section 1 (2), Article IX-C of the
Constitution.
Fourth Issue: Respondent Benipayo’s Authority to Reassign
Petitioner
Petitioner claims that Benipayo has no authority to remove
her as Director IV of the EID and reassign her to the Law
Department. Petitioner further argues that only the
COMELEC, acting as a collegial body, can authorize such
reassignment. Moreover, petitioner maintains that a
reassignment without her consent amounts to removal from
office without due process and therefore illegal.
Petitioner’s posturing will hold water if Benipayo does not
possess any color of title to the office of Chairman of the
COMELEC. We have ruled, however, that Benipayo is the de
jure COMELEC Chairman, and consequently he has full
authority to exercise all the powers of that office for so long
as his ad interim appointment remains effective. Under
Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised
Administrative Code, the Chairman of the COMELEC is
vested with the following power:
"Section 7. Chairman as Executive Officer; Powers
and Duties. The Chairman, who shall be the Chief
Executive Officer of the Commission, shall:
xxx
(4) Make temporary assignments, rotate and
transfer personnel in accordance with the
provisions of the Civil Service Law." (Emphasis
supplied)
The Chairman, as the Chief Executive of the COMELEC, is
expressly empowered on his own authority to transfer or
reassign COMELEC personnel in accordance with the Civil
Service Law. In the exercise of this power, the Chairman is
not required by law to secure the approval of the
COMELEC en banc.
Petitioner’s appointment papers dated February 2, 1999,
February 15, 2000 and February 15, 2001, attached as
Annexes "X", "Y" and "Z" to her Petition, indisputably show
that she held her Director IV position in the EID only in
an acting or temporary capacity.64 Petitioner is not a Career
Executive Service (CES) officer, and neither does she hold
Career Executive Service Eligibility, which are necessary
qualifications for holding the position of Director IV as
prescribed in the Qualifications Standards (Revised 1987)
issued by the Civil Service Commission.65 Obviously,
petitioner does not enjoy security of tenure as Director IV.
In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G.
Bacal,66 this Court held that:
"As respondent does not have the rank appropriate
for the position of Chief Public Attorney, her
appointment to that position cannot be considered
permanent, and she can claim no security of
tenure in respect of that position. As held
in Achacoso v. Macaraig:
‘It is settled that a permanent
appointment can be issued only ‘to a
person who meets all the requirements
for the position to which he is being
appointed, including the appropriate
eligibility prescribed.’ Achacoso did not. At
best, therefore, his appointment could be
regarded only as temporary. And being
so, it could be withdrawn at will by the
appointing authority and ‘at a moment’s
notice’, conformably to established
jurisprudence x x x.
The mere fact that a position belongs to
the Career Service does not automatically
confer security of tenure on its occupant
even if he does not possess the required
qualifications. Such right will have to
depend on the nature of his appointment,
which in turn depends on his eligibility or
lack of it. A person who does not have the
requisite qualifications for the position
cannot be appointed to it in the first
place, or as an exception to the rule, may
be appointed to it merely in an acting
capacity in the absence of appropriate
eligibles. The appointment extended to
him cannot be regarded as permanent
even if it may be so designated x x x.’"
Having been appointed merely in a temporary or acting
capacity, and not possessed of the necessary qualifications
to hold the position of Director IV, petitioner has no legal
basis in claiming that her reassignment was contrary to the
Civil Service Law. This time, the vigorous argument of
petitioner that a temporary or acting appointment can be
withdrawn or revoked at the pleasure of the appointing
power happens to apply squarely to her situation.
Still, petitioner assails her reassignment, carried out during
the election period, as a prohibited act under Section 261
(h) of the Omnibus Election Code, which provides as
follows:
"Section 261. Prohibited Acts. The following shall
be guilty of an election offense:
59 | Executive
xxx
(h) Transfer of officers and employees in the civil
service - Any public official who makes or causes
any transfer or detail whatever of any officer or
employee in the civil service including public school
teachers, within the election period except upon
prior approval of the Commission."
Petitioner claims that Benipayo failed to secure the approval
of the COMELEC en banc to effect transfers or
reassignments of COMELEC personnel during the election
period.67 Moreover, petitioner insists that the COMELEC en
banc must concur to every transfer or reassignment of
COMELEC personnel during the election period.
Contrary to petitioner’s allegation, the COMELEC did in fact
issue COMELEC Resolution No. 3300 dated November 6,
2000,68 exempting the COMELEC from Section 261 (h) of
the Omnibus Election Code. The resolution states in part:
"WHEREAS, Sec. 56 and Sec. 261, paragraphs (g)
and (h), of the Omnibus Election Code provides as
follows:
xxx
Sec. 261. Prohibited Acts. The following
shall be guilty of an election offense:
xxx
(h) Transfer of officers and employees in
the civil service – Any public official who
makes or causes any transfer or detail
whatever of any officer or employee in the
civil service including public school
teachers, within the election period except
upon approval of the Commission.
WHEREAS, the aforequoted provisions are
applicable to the national and local elections on
May 14, 2001;
WHEREAS, there is an urgent need to appoint,
transfer or reassign personnel of the Commission
on Elections during the prohibited period in order
that it can carry out its constitutional duty to
conduct free, orderly, honest, peaceful and
credible elections;
"NOW, THEREFORE, the Commission on Elections
by virtue of the powers conferred upon it by the
Constitution, the Omnibus Election Code and other
election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby
RESOLVED, to appoint, hire new employees or fill
new positions and transfer or reassign its
personnel, when necessary in the effective
performance of its mandated functions during the
prohibited period, provided that the changes in the
assignment of its field personnel within the thirty-
day period before election day shall be effected
after due notice and hearing." (Emphasis supplied)
The proviso in COMELEC Resolution No. 3300, requiring due
notice and hearing before any transfer or reassignment can
be made within thirty days prior to election day, refers only
to COMELEC field personnel and not to head office
personnel like the petitioner. Under the Revised
Administrative Code,69 the COMELEC Chairman is the sole
officer specifically vested with the power to transfer or
reassign COMELEC personnel. The COMELEC Chairman will
logically exercise the authority to transfer or reassign
COMELEC personnel pursuant to COMELEC Resolution No.
3300. The COMELEC en banc cannot arrogate unto itself
this power because that will mean amending the Revised
Administrative Code, an act the COMELEC en banc cannot
legally do.
COMELEC Resolution No. 3300 does not require that every
transfer or reassignment of COMELEC personnel should
carry the concurrence of the COMELEC as a collegial body.
Interpreting Resolution No. 3300 to require such
concurrence will render the resolution meaningless since
the COMELEC en banc will have to approve every personnel
transfer or reassignment, making the resolution utterly
useless. Resolution No. 3300 should be interpreted for what
it is, an approval to effect transfers and reassignments of
personnel, without need of securing a second approval from
the COMELEC en banc to actually implement such transfer
or reassignment.
The COMELEC Chairman is the official expressly authorized
by law to transfer or reassign COMELEC personnel. The
person holding that office, in a de jure capacity, is
Benipayo. The COMELEC en banc, in COMELEC Resolution Appointee
No. 3300, approved the transfer or reassignment of Arthur C. Yap
COMELEC personnel during the election period. Thus,Alberto G. Romulo
Benipayo’s order reassigning petitioner from the EID Raul
to the
M. Gonzalez
Law Department does not violate Section 261 (h) of the
Florencio B. Abad
Omnibus Election Code. For the same reason, Benipayo’s
order designating Cinco Officer-in-Charge of the EIDAvelino
is J. Cruz, Jr.
legally unassailable. Rene C. Villa
Joseph H. Durano
Fifth Issue: Legality of Disbursements to Respondents Michael T. Defensor
Based on the foregoing discussion, respondent Gideon C.
De Guzman, Officer-in-Charge of the Finance Services
Department of the Commission on Elections, did not act in
excess of jurisdiction in paying the salaries and other
emoluments of Benipayo, Borra, Tuason and Cinco.
WHEREFORE, the petition is dismissed for lack of merit.
Costs against petitioner.
SO ORDERED.
EN BANC
G.R. No. 164978 October 13, 2005
AQUILINO Q. PIMENTEL, JR., EDGARDO J. ANGARA,
JUAN PONCE ENRILE, LUISA P. EJERCITO-ESTRADA,
JINGGOY E. ESTRADA, PANFILO M. LACSON, ALFREDO
S. LIM, JAMBY A.S. MADRIGAL, and SERGIO R.
OSMEÑA III, Petitioners
vs.
EXEC. SECRETARY EDUARDO R. ERMITA, FLORENCIO
B. ABAD, AVELINO J. CRUZ, JR., MICHAEL T.
DEFENSOR, JOSEPH H. DURANO, RAUL M. GONZALEZ,
ALBERTO G. ROMULO, RENE C. VILLA, and ARTHUR C.
YAP, Respondents.
DECISION
CARPIO, J.:
The Case
60 | Executive
This is a petition for certiorari and prohibition1 with a prayer
for the issuance of a writ of preliminary injunction to
declare unconstitutional the appointments issued by
President Gloria Macapagal-Arroyo ("President Arroyo")
through Executive Secretary Eduardo R. Ermita ("Secretary
Ermita") to Florencio B. Abad, Avelino J. Cruz, Jr., Michael
T. Defensor, Joseph H. Durano, Raul M. Gonzalez, Alberto
G. Romulo, Rene C. Villa, and Arthur C. Yap ("respondents")
as acting secretaries of their respective departments. The
petition also seeks to prohibit respondents from performing
the duties of department secretaries.
Antecedent Facts
The Senate and the House of Representatives ("Congress")
commenced their regular session on 26 July 2004. The
Commission on Appointments, composed of Senators and
Representatives, was constituted on 25 August 2004.
Meanwhile, President Arroyo issued appointments 2 to
respondents as acting secretaries of their respective
departments.
Department Date of App
Agriculture 15 Augus
Foreign Affairs 23 Augus
Justice 23 Augus
Education 23 Augus
National Defense 23 Augus
Agrarian Reform 23 Augus
Tourism 23 Augus
Environment and Natural Resources 23 Augus
The appointment papers are uniformly worded as follows:
Sir:
Pursuant to the provisions of existing laws, you are hereby
appointed ACTING SECRETARY, DEPARTMENT OF
(appropriate department) vice (name of person replaced).
By virtue hereof, you may qualify and enter upon the
performance of the duties and functions of the office,
furnishing this Office and the Civil Service Commission with
copies of your Oath of Office.
(signed)
Gloria Arroyo
Respondents took their oath of office and assumed duties
as acting secretaries.
On 8 September 2004, Aquilino Q. Pimentel, Jr. ("Senator
Pimentel"), Edgardo J. Angara ("Senator Angara"), Juan
Ponce Enrile ("Senator Enrile"), Luisa P. Ejercito-Estrada
("Senator Ejercito-Estrada"), Jinggoy E. Estrada ("Senator
Estrada"), Panfilo M. Lacson ("Senator Lacson"), Alfredo S.
Lim ("Senator Lim"), Jamby A.S. Madrigal ("Senator
Madrigal"), and Sergio R. Osmeña, III ("Senator Osmeña")
("petitioners") filed the present petition as Senators of the
Republic of the Philippines.
Congress adjourned on 22 September 2004. On 23
September 2004, President Arroyo issued ad
interim appointments3 to respondents as secretaries of the
departments to which they were previously appointed in an
acting capacity. The appointment papers are uniformly
worded as follows:
Sir:
Pursuant to the provisions of existing laws, you are hereby
appointed SECRETARY [AD INTERIM], DEPARTMENT OF
(appropriate department).
By virtue hereof, you may qualify and enter upon the
performance of the duties and functions of the office,
furnishing this Office and the Civil Service Commission with
copies of your oath of office.
(signed)
Gloria Arroyo
Issue
The petition questions the constitutionality of President
Arroyo’s appointment of respondents as acting secretaries
without the consent of the Commission on Appointments
while Congress is in session.
The Court’s Ruling
The petition has no merit.
Preliminary Matters
On the Mootness of the Petition
The Solicitor General argues that the petition is moot
because President Arroyo had extended to respondents ad
interim appointments on 23 September 2004 immediately
after the recess of Congress.
As a rule, the writ of prohibition will not lie to enjoin acts
already done.4 However, as an exception to the rule on
mootness, courts will decide a question otherwise moot if it
is capable of repetition yet evading review.5
In the present case, the mootness of the petition does not
bar its resolution. The question of the constitutionality of
the President’s appointment of department secretaries in an
acting capacity while Congress is in session will arise in
every such appointment.
On the Nature of the Power to Appoint
The power to appoint is essentially executive in nature, and
the legislature may not interfere with the exercise of this
executive power except in those instances when the
Constitution expressly allows it to interfere.6 Limitations on
the executive power to appoint are construed strictly
against the legislature.7 The scope of the legislature’s
interference in the executive’s power to appoint is limited to
the power to prescribe the qualifications to an appointive
office. Congress cannot appoint a person to an office in the
guise of prescribing qualifications to that office. Neither may
Congress impose on the President the duty to appoint any
particular person to an office.8
However, even if the Commission on Appointments is
composed of members of Congress, the exercise of its
powers is executive and not legislative. The Commission on
Appointments does not legislate when it exercises its power
to give or withhold consent to presidential appointments.
Thus:
xxx The Commission on Appointments is a creature of the
Constitution. Although its membership is confined to
61 | Executive
members of Congress, said Commission is independent of
Congress. The powers of the Commission do not come from
Congress, but emanate directly from the Constitution.
Hence, it is not an agent of Congress. In fact, the functions
of the Commissioner are purely executive in nature. xxx 9
On Petitioners’ Standing
The Solicitor General states that the present petition is
a quo warranto proceeding because, with the exception of
Secretary Ermita, petitioners effectively seek to oust
respondents for unlawfully exercising the powers of
department secretaries. The Solicitor General further states
that petitioners may not claim standing as Senators
because no power of the Commission on Appointments has
been "infringed upon or violated by the President. xxx If at
all, the Commission on Appointments as a body (rather
than individual members of the Congress) may possess
standing in this case."10
Petitioners, on the other hand, state that the Court can
exercise its certiorari jurisdiction over unconstitutional acts
of the President.11 Petitioners further contend that they
possess standing because President Arroyo’s appointment
of department secretaries in an acting capacity while
Congress is in session impairs the powers of Congress.
Petitioners cite Sanlakas v. Executive Secretary12  as
basis, thus:
To the extent that the powers of Congress are impaired, so
is the power of each member thereof, since his office
confers a right to participate in the exercise of the powers
of that institution.
An act of the Executive which injures the institution of
Congress causes a derivative but nonetheless substantial
injury, which can be questioned by a member of Congress.
In such a case, any member of Congress can have a resort
to the courts.
Considering the independence of the Commission on
Appointments from Congress, it is error for petitioners to
claim standing in the present case as members of Congress.
President Arroyo’s issuance of acting appointments while
Congress is in session impairs no power of Congress.
Among the petitioners, only the following are members of
the Commission on Appointments of the 13th Congress:
Senator Enrile as Minority Floor Leader, Senator Lacson as
Assistant Minority Floor Leader, and Senator Angara,
Senator Ejercito-Estrada, and Senator Osmeña as
members.
Thus, on the impairment of the prerogatives of members of
the Commission on Appointments, only Senators Enrile,
Lacson, Angara, Ejercito-Estrada, and Osmeña have
standing in the present petition. This is in contrast to
Senators Pimentel, Estrada, Lim, and Madrigal, who, though
vigilant in protecting their perceived prerogatives as
members of Congress, possess no standing in the present
petition.
The Constitutionality of President Arroyo’s Issuance
of Appointments to Respondents as Acting
Secretaries
Petitioners contend that President Arroyo should not have
appointed respondents as acting secretaries because "in
case of a vacancy in the Office of a Secretary, it is only an
Undersecretary who can be designated as Acting
Secretary."13 Petitioners base their argument on Section 10,
Chapter 2, Book IV of Executive Order No. 292 ("EO
292"),14 which enumerates the powers and duties of the
undersecretary. Paragraph 5 of Section 10 reads:
SEC. 10. Powers and Duties of the Undersecretary. - The
Undersecretary shall:
xxx
(5) Temporarily discharge the duties of the Secretary in the
latter’s absence or inability to discharge his duties for any
cause or in case of vacancy of the said office, unless
otherwise provided by law. Where there are more than one
Undersecretary, the Secretary shall allocate the foregoing
powers and duties among them. The President shall likewise
make the temporary designation of Acting Secretary from
among them; and
xxx
Petitioners further assert that "while Congress is in session,
there can be no appointments, whether regular or acting, to
a vacant position of an office needing confirmation by the
Commission on Appointments, without first having obtained
its consent."15
In sharp contrast, respondents maintain that the President
can issue appointments in an acting capacity to department
secretaries without the consent of the Commission on
Appointments even while Congress is in session.
Respondents point to Section 16, Article VII of the 1987
Constitution. Section 16 reads:
SEC. 16. The President shall nominate and, with the
consent of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain, and other officers
whose appointments are vested in him in this Constitution.
He shall also appoint all other officers of the Government
whose appointments are not otherwise provided for by law,
and those whom he may be authorized by law to appoint.
The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts,
or in the heads of departments, agencies, commissions, or
boards.
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only
until disapproval by the Commission on Appointments or
until the next adjournment of the Congress.
Respondents also rely on EO 292, which devotes a chapter
to the President’s power of appointment. Sections 16 and
17, Chapter 5, Title I, Book III of EO 292 read:
SEC. 16. Power of Appointment. — The President shall
exercise the power to appoint such officials as
provided for in the Constitution and laws.
SEC. 17. Power to Issue Temporary Designation. — (1) The
President may temporarily designate an officer
already in the government service or any other
competent person to perform the functions of an
office in the executive branch, appointment to which
is vested in him by law, when: (a) the officer
regularly appointed to the office is unable to perform
his duties by reason of illness, absence or any other
cause; or (b) there exists a vacancy[.]
(2) The person designated shall receive the compensation
attached to the position, unless he is already in the
62 | Executive
government service in which case he shall receive only such
additional compensation as, with his existing salary, shall
not exceed the salary authorized by law for the position
filled. The compensation hereby authorized shall be paid out
of the funds appropriated for the office or agency
concerned.
(3) In no case shall a temporary designation exceed
one (1) year. (Emphasis supplied)
Petitioners and respondents maintain two diametrically
opposed lines of thought. Petitioners assert that the
President cannot issue appointments in an acting capacity
to department secretaries while Congress is in session
because the law does not give the President such power. In
contrast, respondents insist that the President can issue
such appointments because no law prohibits such
appointments.
The essence of an appointment in an acting capacity is its
temporary nature. It is a stop-gap measure intended to fill
an office for a limited time until the appointment of a
permanent occupant to the office.16 In case of vacancy in an
office occupied by an alter ego of the President, such as the
office of a department secretary, the President must
necessarily appoint an alter ego of her choice as acting
secretary before the permanent appointee of her choice
could assume office.
Congress, through a law, cannot impose on the President
the obligation to appoint automatically the undersecretary
as her temporary alter ego. An alter ego, whether
temporary or permanent, holds a position of great trust and
confidence. Congress, in the guise of prescribing
qualifications to an office, cannot impose on the President
who her alter ego should be.
The office of a department secretary may become vacant
while Congress is in session. Since a department secretary
is the alter ego of the President, the acting appointee to the
office must necessarily have the President’s confidence.
Thus, by the very nature of the office of a department
secretary, the President must appoint in an acting capacity
a person of her choice even while Congress is in session.
That person may or may not be the permanent appointee,
but practical reasons may make it expedient that the acting
appointee will also be the permanent appointee.
The law expressly allows the President to make such acting
appointment. Section 17, Chapter 5, Title I, Book III of EO
292 states that "[t]he President may temporarily designate
an officer already in the government service or any other
competent person to perform the functions of an office in
the executive branch." Thus, the President may even
appoint in an acting capacity a person not yet in the
government service, as long as the President deems that
person competent.
Petitioners assert that Section 17 does not apply to
appointments vested in the President by the Constitution,
because it only applies to appointments vested in the
President by law. Petitioners forget that Congress is not
the only source of law. "Law" refers to the Constitution,
statutes or acts of Congress, municipal ordinances,
implementing rules issued pursuant to law, and judicial
decisions.17
Finally, petitioners claim that the issuance of appointments
in an acting capacity is susceptible to abuse. Petitioners fail
to consider that acting appointments cannot exceed one
year as expressly provided in Section 17(3), Chapter 5,
Title I, Book III of EO 292. The law has incorporated this
safeguard to prevent abuses, like the use of acting
appointments as a way to circumvent confirmation by the
Commission on Appointments.
In distinguishing ad interim appointments from
appointments in an acting capacity, a noted textbook writer
on constitutional law has observed:
Ad-interim appointments must be distinguished from
appointments in an acting capacity. Both of them are
effective upon acceptance. But ad-interim appointments are
extended only during a recess of Congress, whereas acting
appointments may be extended any time there is a
vacancy. Moreover ad-interim appointments are submitted
to the Commission on Appointments for confirmation or
rejection; acting appointments are not submitted to the
Commission on Appointments. Acting appointments are a
way of temporarily filling important offices but, if abused,
they can also be a way of circumventing the need for
confirmation by the Commission on Appointments.18
However, we find no abuse in the present case. The
absence of abuse is readily apparent from President
Arroyo’s issuance of ad interim appointments to
respondents immediately upon the recess of Congress, way
before the lapse of one year.
WHEREFORE, we DISMISS the present petition
for certiorari and prohibition.
SO ORDERED.
EN BANC
G.R. No. 141284               August 15, 2000
INTEGRATED BAR OF THE PHILIPPINES, petitioner,
vs.
HON. RONALDO B. ZAMORA, GEN. PANFILO M.
LACSON, GEN. EDGAR B. AGLIPAY, and GEN. ANGELO
REYES, respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition
with prayer for issuance of a temporary restraining order
seeking to nullify on constitutional grounds the order of
President Joseph Ejercito Estrada commanding the
deployment of the Philippine Marines (the "Marines") to join
the Philippine National Police (the "PNP") in visibility patrols
around the metropolis.
In view of the alarming increase in violent crimes in Metro
Manila, like robberies, kidnappings and carnappings, the
President, in a verbal directive, ordered the PNP and the
Marines to conduct joint visibility patrols for the purpose of
crime prevention and suppression. The Secretary of
National Defense, the Chief of Staff of the Armed Forces of
the Philippines (the "AFP"), the Chief of the PNP and the
Secretary of the Interior and Local Government were tasked
to execute and implement the said order. In compliance
with the presidential mandate, the PNP Chief, through
Police Chief Superintendent Edgar B. Aglipay, formulated
Letter of Instruction 02/20001 (the "LOI") which detailed the
manner by which the joint visibility patrols, called Task
Force Tulungan, would be conducted.2 Task
Force Tulungan was placed under the leadership of the
Police Chief of Metro Manila.
63 | Executive
Subsequently, the President confirmed his previous
directive on the deployment of the Marines in a
Memorandum, dated 24 January 2000, addressed to the
Chief of Staff of the AFP and the PNP Chief.3 In the
Memorandum, the President expressed his desire to
improve the peace and order situation in Metro Manila
through a more effective crime prevention program
including increased police patrols.4 The President further
stated that to heighten police visibility in the metropolis,
augmentation from the AFP is necessary.5 Invoking his
powers as Commander-in-Chief under Section 18, Article
VII of the Constitution, the President directed the AFP Chief
of Staff and PNP Chief to coordinate with each other for the
proper deployment and utilization of the Marines to assist
the PNP in preventing or suppressing criminal or lawless
violence.6 Finally, the President declared that the services of
the Marines in the anti-crime campaign are merely
temporary in nature and for a reasonable period only, until
such time when the situation shall have improved.7
The LOI explains the concept of the PNP-Philippine Marines
joint visibility patrols as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the
PNP NCRPO and the Philippine Marines partnership in the
conduct of visibility patrols in Metro Manila for the
suppression of crime prevention and other serious threats
to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated
not only by ordinary criminals but also by organized
syndicates whose members include active and former
police/military personnel whose training, skill, discipline and
firepower prove well-above the present capability of the
local police alone to handle. The deployment of a joint PNP
NCRPO-Philippine Marines in the conduct of police visibility
patrol in urban areas will reduce the incidence of crimes
specially those perpetrated by active or former
police/military personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to
conduct joint NCRPO-PM visibility patrols to keep Metro
Manila streets crime-free, through a sustained street
patrolling to minimize or eradicate all forms of high-profile
crimes especially those perpetrated by organized crime
syndicates whose members include those that are well-
trained, disciplined and well-armed active or former
PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly
by the NCRPO [National Capital Regional Police
Office] and the Philippine Marines to curb
criminality in Metro Manila and to preserve the
internal security of the state against insurgents
and other serious threat to national security,
although the primary responsibility over Internal
Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be
applied to eradicate all forms of high-profile crimes
perpetrated by organized crime syndicates
operating in Metro Manila. This concept requires
the military and police to work cohesively and
 unify efforts to ensure a focused, effective and
holistic approach in addressing crime prevention.
Along this line, the role of the military and police
aside from neutralizing crime syndicates is to bring
a wholesome atmosphere wherein delivery of basic
services to the people and development is
achieved. Hand-in-hand with this joint NCRPO-
Philippine Marines visibility patrols, local Police
Units are responsible for the maintenance of peace
and order in their locality.
c. To ensure the effective implementation of this
project, a provisional Task Force "TULUNGAN" shall
be organized to provide the mechanism, structure,
and procedures for the integrated planning,
coordinating, monitoring and assessing the
security situation.
xxx.8
The selected areas of deployment under the LOI are:
Monumento Circle, North Edsa (SM City), Araneta Shopping
Center, Greenhills, SM Megamall, Makati Commercial
Center, LRT/MRT Stations and the NAIA and Domestic
Airport.9
On 17 January 2000, the Integrated Bar of the Philippines
(the "IBP") filed the instant petition to annul LOI 02/2000
and to declare the deployment of the Philippine Marines,
null and void and unconstitutional, arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO
MANILA IS VIOLATIVE OF THE CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN
METRO MANILA AS WOULD JUSTIFY, EVEN ONLY
REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR
LAW ENFORCEMENT WORK; HENCE, SAID
DEPLOYMENT IS IN DEROGATION OF ARTICLE II,
SECTION 3 OF THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN
INSIDIOUS INCURSION BY THE MILITARY IN A
CIVILIAN FUNCTION OF GOVERNMENT (LAW
ENFORCEMENT) IN DEROGATION OF ARTICLE XVI,
SECTION 5 (4), OF THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS
TENDENCY TO RELY ON THE MILITARY TO
PERFORM THE CIVILIAN FUNCTIONS OF THE
GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA,
THE ADMINISTRATION IS UNWITTINGLY MAKING THE
MILITARY MORE POWERFUL THAN WHAT IT SHOULD
REALLY BE UNDER THE CONSTITUTION.10
Asserting itself as the official organization of Filipino lawyers
tasked with the bounden duty to uphold the rule of law and
the Constitution, the IBP questions the validity of the
deployment and utilization of the Marines to assist the PNP
in law enforcement.
Without granting due course to the petition, the Court in a
Resolution,11 dated 25 January 2000, required the Solicitor
General to file his Comment on the petition. On 8 February
2000, the Solicitor General submitted his Comment.
64 | Executive
The Solicitor General vigorously defends the
constitutionality of the act of the President in deploying the
Marines, contending, among others, that petitioner has no
legal standing; that the question of deployment of the
Marines is not proper for judicial scrutiny since the same
involves a political question; that the organization and
conduct of police visibility patrols, which feature the team-
up of one police officer and one Philippine Marine soldier,
does not violate the civilian supremacy clause in the
Constitution.
The issues raised in the present petition are: (1) Whether
or not petitioner has legal standing; (2) Whether or not the
President’s factual determination of the necessity of calling
the armed forces is subject to judicial review; and, (3)
Whether or not the calling of the armed forces to assist the
PNP in joint visibility patrols violates the constitutional
provisions on civilian supremacy over the military and the
civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in
possession of the requisites of standing to raise the issues
in the petition. Second, the President did not commit grave
abuse of discretion amounting to lack or excess of
jurisdiction nor did he commit a violation of the civilian
supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article
VIII of the Constitution, to wit:
Section 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or
not there has been grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
When questions of constitutional significance are raised, the
Court can exercise its power of judicial review only if the
following requisites are complied with, namely: (1) the
existence of an actual and appropriate case; (2) a personal
and substantial interest of the party raising the
constitutional question; (3) the exercise of judicial review is
pleaded at the earliest opportunity; and (4) the
constitutional question is the lis mota of the case.12
The IBP has not sufficiently complied with the requisites of
standing in this case.
"Legal standing" or locus standi has been defined as a
personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result
of the governmental act that is being challenged.13 The term
"interest" means a material interest, an interest in issue
affected by the decree, as distinguished from mere interest
in the question involved, or a mere incidental interest.14 The
gist of the question of standing is whether a party alleges
"such personal stake in the outcome of the controversy as
to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for
illumination of difficult constitutional questions." 15
In the case at bar, the IBP primarily anchors its standing on
its alleged responsibility to uphold the rule of law and the
Constitution. Apart from this declaration, however, the IBP
asserts no other basis in support of its locus standi. The
mere invocation by the IBP of its duty to preserve the rule
of law and nothing more, while undoubtedly true, is not
sufficient to clothe it with standing in this case. This is too
general an interest which is shared by other groups and the
whole citizenry. Based on the standards above-stated, the
IBP has failed to present a specific and substantial interest
in the resolution of the case. Its fundamental purpose
which, under Section 2, Rule 139-A of the Rules of Court, is
to elevate the standards of the law profession and to
improve the administration of justice is alien to, and cannot
be affected by the deployment of the Marines. It should also
be noted that the interest of the National President of the
IBP who signed the petition, is his alone, absent a formal
board resolution authorizing him to file the present action.
To be sure, members of the BAR, those in the judiciary
included, have varying opinions on the issue. Moreover, the
IBP, assuming that it has duly authorized the National
President to file the petition, has not shown any specific
injury which it has suffered or may suffer by virtue of the
questioned governmental act. Indeed, none of its members,
whom the IBP purportedly represents, has sustained any
form of injury as a result of the operation of the joint
visibility patrols. Neither is it alleged that any of its
members has been arrested or that their civil liberties have
been violated by the deployment of the Marines. What the
IBP projects as injurious is the supposed "militarization" of
law enforcement which might threaten Philippine
democratic institutions and may cause more harm than
good in the long run. Not only is the presumed "injury" not
personal in character, it is likewise too vague, highly
speculative and uncertain to satisfy the requirement of
standing. Since petitioner has not successfully established a
direct and personal injury as a consequence of the
questioned act, it does not possess the personality to assail
the validity of the deployment of the Marines. This Court,
however, does not categorically rule that the IBP has
absolutely no standing to raise constitutional issues now or
in the future. The IBP must, by way of allegations and
proof, satisfy this Court that it has sufficient stake to obtain
judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that
this Court has the discretion to take cognizance of a suit
which does not satisfy the requirement of legal standing
when paramount interest is involved. 16 In not a few cases,
the Court has adopted a liberal attitude on the locus
standi of a petitioner where the petitioner is able to craft an
issue of transcendental significance to the people.17 Thus,
when the issues raised are of paramount importance to the
public, the Court may brush aside technicalities of
procedure.18 In this case, a reading of the petition shows
that the IBP has advanced constitutional issues which
deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. Moreover,
because peace and order are under constant threat and
lawless violence occurs in increasing tempo, undoubtedly
aggravated by the Mindanao insurgency problem, the legal
controversy raised in the petition almost certainly will not
go away. It will stare us in the face again. It, therefore,
behooves the Court to relax the rules on standing and to
resolve the issue now, rather than later.
The President did not commit grave abuse of discretion in
calling out the Marines.
In the case at bar, the bone of contention concerns the
factual determination of the President of the necessity of
calling the armed forces, particularly the Marines, to aid the
PNP in visibility patrols. In this regard, the IBP admits that
the deployment of the military personnel falls under the
Commander-in-Chief powers of the President as stated in
Section 18, Article VII of the Constitution, specifically, the
power to call out the armed forces to prevent or suppress
lawless violence, invasion or rebellion. What the IBP
questions, however, is the basis for the calling of the
Marines under the aforestated provision. According to the
IBP, no emergency exists that would justify the need for the
65 | Executive
calling of the military to assist the police force. It contends
that no lawless violence, invasion or rebellion exist to
warrant the calling of the Marines. Thus, the IBP prays that
this Court "review the sufficiency of the factual basis for
said troop [Marine] deployment."19
The Solicitor General, on the other hand, contends that the
issue pertaining to the necessity of calling the armed forces
is not proper for judicial scrutiny since it involves a political
question and the resolution of factual issues which are
beyond the review powers of this Court.
As framed by the parties, the underlying issues are the
scope of presidential powers and limits, and the extent of
judicial review. But, while this Court gives considerable
weight to the parties’ formulation of the issues, the
resolution of the controversy may warrant a creative
approach that goes beyond the narrow confines of the
issues raised. Thus, while the parties are in agreement that
the power exercised by the President is the power to call
out the armed forces, the Court is of the view that the
power involved may be no more than the maintenance of
peace and order and promotion of the general welfare.20 For
one, the realities on the ground do not show that there
exist a state of warfare, widespread civil unrest or anarchy.
Secondly, the full brunt of the military is not brought upon
the citizenry, a point discussed in the latter part of this
decision. In the words of the late Justice Irene Cortes
in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the
President’s powers as protector of the peace. [Rossiter, The
American Presidency]. The power of the President to keep
the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to
leading the State against external and internal threats to its
existence. The President is not only clothed with
extraordinary powers in times of emergency, but is also
tasked with attending to the day-to-day problems of
maintaining peace and order and ensuring domestic
tranquility in times when no foreign foe appears on the
horizon. Wide discretion, within the bounds of law, in
fulfilling presidential duties in times of peace is not in any
way diminished by the relative want of an emergency
specified in the commander-in-chief provision. For in
making the President commander-in-chief the enumeration
of powers that follow cannot be said to exclude the
President’s exercising as Commander-in-Chief powers short
of the calling of the armed forces, or suspending the
privilege of the writ of habeas corpus or declaring martial
law, in order to keep the peace, and maintain public order
and security.
xxx21
Nonetheless, even if it is conceded that the power involved
is the President’s power to call out the armed forces to
prevent or suppress lawless violence, invasion or rebellion,
the resolution of the controversy will reach a similar result.
We now address the Solicitor General’s argument that the
issue involved is not susceptible to review by the judiciary
because it involves a political question, and thus, not
justiciable.
As a general proposition, a controversy is justiciable if it
refers to a matter which is appropriate for court review.22 It
pertains to issues which are inherently susceptible of being
decided on grounds recognized by law. Nevertheless, the
Court does not automatically assume jurisdiction over
actual constitutional cases brought before it even in
instances that are ripe for resolution. One class of cases
wherein the Court hesitates to rule on are "political
questions." The reason is that political questions are
concerned with issues dependent upon the wisdom, not the
legality, of a particular act or measure being assailed.
Moreover, the political question being a function of the
separation of powers, the courts will not normally interfere
with the workings of another co-equal branch unless the
case shows a clear need for the courts to step in to uphold
the law and the Constitution.
As Tañada v. Cuenco23 puts it, political questions refer "to
those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been
delegated to the legislative or executive branch of
government." Thus, if an issue is clearly identified by the
text of the Constitution as matters for discretionary action
by a particular branch of government or to the people
themselves then it is held to be a political question. In the
classic formulation of Justice Brennan in Baker v.
Carr,24 "[p]rominent on the surface of any case held to
involve a political question is found a textually
demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or
the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion; or
the impossibility of a court’s undertaking independent
resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already
made; or the potentiality of embarassment from
multifarious pronouncements by various departments on
the one question."
The 1987 Constitution expands the concept of judicial
review by providing that "(T)he Judicial power shall be
vested in one Supreme Court and in such lower courts as
may be established by law. Judicial power includes the duty
of the courts of justice to settle actual controversies
involving rights which are legally demandable and
enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of the Government."25 Under this definition,
the Court cannot agree with the Solicitor General that the
issue involved is a political question beyond the jurisdiction
of this Court to review. When the grant of power is
qualified, conditional or subject to limitations, the issue of
whether the prescribed qualifications or conditions have
been met or the limitations respected, is justiciable - the
problem being one of legality or validity, not its
wisdom.26 Moreover, the jurisdiction to delimit constitutional
boundaries has been given to this Court.27 When political
questions are involved, the Constitution limits the
determination as to whether or not there has been a grave
abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being
questioned.28
By grave abuse of discretion is meant simply capricious or
whimsical exercise of judgment that is patent and gross as
to amount to an evasion of positive duty or a virtual refusal
to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion or
hostility.29 Under this definition, a court is without power to
directly decide matters over which full discretionary
authority has been delegated. But while this Court has no
power to substitute its judgment for that of Congress or of
the President, it may look into the question of whether such
exercise has been made in grave abuse of discretion.30 A
showing that plenary power is granted either department of
government, may not be an obstacle to judicial inquiry, for
the improvident exercise or abuse thereof may give rise to
justiciable controversy.31
66 | Executive
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. The present petition fails to discharge such heavy
burden as there is no evidence to support the assertion that
there exist no justification for calling out the armed forces.
There is, likewise, no evidence to support the proposition
that grave abuse was committed because the power to call
was exercised in such a manner as to violate the
constitutional provision on civilian supremacy over the
military. In the performance of this Court’s duty of
"purposeful hesitation"32 before declaring an act of another
branch as unconstitutional, only where such grave abuse of
discretion is clearly shown shall the Court interfere with the
President’s judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution
to bestow on the President full discretionary power to call
out the armed forces and to determine the necessity for the
exercise of such power. Section 18, Article VII of the
Constitution, which embodies the powers of the President
as Commander-in-Chief, provides in part:
The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he
may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus, or place the
Philippines or any part thereof under martial law.
xxx
The full discretionary power of the President to determine
the factual basis for the exercise of the calling out power is
also implied and further reinforced in the rest of Section 18,
Article VII which reads, thus:
xxx
Within forty-eight hours from the proclamation of martial
law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a
vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress,
if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall within twenty-four
hours following such proclamation or suspension, convene
in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the factual
basis of the proclamation of martial law or the suspension
of the privilege of the writ or the extension thereof, and
must promulgate its decision thereon within thirty days
from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts
or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians
where civil courts are able to function, nor automatically
suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only
to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any
person thus arrested or detained shall be judicially charged
within three days, otherwise he shall be released.
Under the foregoing provisions, Congress may revoke such
proclamation or suspension and the Court may review the
sufficiency of the factual basis thereof. However, there is no
such equivalent provision dealing with the revocation or
review of the 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. Expressio unius est exclusio alterius. Where
the terms are expressly limited to certain matters, it may
not, by interpretation or construction, be extended to other
matters.33 That the intent of the Constitution is exactly what
its letter says, i.e., that the power to call is fully
discretionary to the President, is extant in the deliberation
of the Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that
there is a graduated power of the President as Commander-
in-Chief. First, he can call out such Armed Forces as may be
necessary to suppress lawless violence; then he can
suspend the privilege of the writ of habeas corpus, then he
can impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law
or suspend the privilege of the writ of habeas corpus, his
judgment is subject to review. We are making it subject to
review by the Supreme Court and subject to concurrence by
the National Assembly. But when he exercises this lesser
power of calling on the Armed Forces, when he says it is
necessary, it is my opinion that his judgment cannot be
reviewed by anybody.
xxx
FR. BERNAS. Let me just add that when we only have
imminent danger, the matter can be handled by the first
sentence: "The President may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion."
So we feel that that is sufficient for handling imminent
danger.
MR. DE LOS REYES. So actually, if a President feels that
there is imminent danger, the matter can be handled by the
First Sentence: "The President....may call out such Armed
Forces to prevent or suppress lawless violence, invasion or
rebellion." So we feel that that is sufficient for handling
imminent danger, of invasion or rebellion, instead of
imposing martial law or suspending the writ of habeas
corpus, he must necessarily have to call the Armed Forces
of the Philippines as their Commander-in-Chief. Is that the
idea?
67 | Executive
MR. REGALADO. That does not require any concurrence by
the legislature nor is it subject to judicial review. 34
The reason for the difference in the treatment of the
aforementioned powers highlights the intent to grant the
President the widest leeway and broadest discretion in
using the power to call out because it is considered as the
lesser and more benign power compared to the power to
suspend the privilege of the writ of habeas corpus and the
power to impose martial law, both of which involve the
curtailment and suppression of certain basic civil rights and
individual freedoms, and thus necessitating safeguards by
Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution,
in the exercise of the power to suspend the privilege of the
writ of habeas corpus or to impose martial law, two
conditions must concur: (1) there must be an actual
invasion or rebellion and, (2) public safety must require it.
These conditions are not required in the case of the power
to call out the armed forces. The only criterion is that
"whenever it becomes necessary," the President may call
the armed forces "to prevent or suppress lawless violence,
invasion or rebellion." The implication is that the President
is given full discretion and wide latitude in the exercise of
the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the
assertion that the President acted without factual basis,
then this Court cannot undertake an independent
investigation beyond the pleadings. The factual necessity of
calling out the armed forces is not easily quantifiable and
cannot be objectively established since matters considered
for satisfying the same is a combination of several factors
which are not always accessible to the courts. Besides the
absence of textual standards that the court may use to
judge necessity, information necessary to arrive at such
judgment might also prove unmanageable for the courts.
Certain pertinent information might be difficult to verify, or
wholly unavailable to the courts. In many instances, the
evidence upon which the President might decide that there
is a need to call out the armed forces may be of a nature
not constituting technical proof.
On the other hand, the President as Commander-in-Chief
has a vast intelligence network to gather information, some
of which may be classified as highly confidential or affecting
the security of the state. In the exercise of the power to
call, on-the-spot decisions may be imperatively necessary
in emergency situations to avert great loss of human lives
and mass destruction of property. Indeed, the decision to
call out the military to prevent or suppress lawless violence
must be done swiftly and decisively if it were to have any
effect at all. Such a scenario is not farfetched when we
consider the present situation in Mindanao, where the
insurgency problem could spill over the other parts of the
country. The determination of the necessity for the calling
out power if subjected to unfettered judicial scrutiny could
be a veritable prescription for disaster, as such power may
be unduly straitjacketed by an injunction or a temporary
restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest
upon the President, as Commander-in-Chief of the Armed
Forces, full discretion to call forth the military when in his
judgment it is necessary to do so in order to prevent or
suppress lawless violence, invasion or rebellion. Unless the
petitioner can show that the exercise of such discretion was
gravely abused, the President’s exercise of judgment
deserves to be accorded respect from this Court.
The President has already determined the necessity and
factual basis for calling the armed forces. In his
Memorandum, he categorically asserted that, "[V]iolent
crimes like bank/store robberies, holdups, kidnappings and
carnappings continue to occur in Metro Manila..."35 We do
not doubt the veracity of the President’s assessment of the
situation, especially in the light of present developments.
The Court takes judicial notice of the recent bombings
perpetrated by lawless elements in the shopping malls,
public utilities, and other public places. These are among
the areas of deployment described in the LOI 2000.
Considering all these facts, we hold that the President has
sufficient factual basis to call for military aid in law
enforcement and in the exercise of this constitutional
power.
functions. As correctly pointed out by the Solicitor General,
some of the multifarious activities wherein military aid has
been rendered, exemplifying the activities that bring both
the civilian and the military together in a relationship of
cooperation, are:
1. Elections;42
2. Administration of the Philippine National Red
Cross;43

The deployment of the Marines does not violate the civilian 3. Relief and rescue operations during calamities
supremacy clause nor does it infringe the civilian character and disasters;44
of the police force.
4. Amateur sports promotion and development; 45
Prescinding from its argument that no emergency situation
exists to justify the calling of the Marines, the IBP asserts 5. Development of the culture and the arts;46
that by the deployment of the Marines, the civilian task of
law enforcement is "militarized" in violation of Section 3,
Article II36 of the Constitution. 6. Conservation of natural resources;47

We disagree. The deployment of the Marines does not 7. Implementation of the agrarian reform
constitute a breach of the civilian supremacy clause. The program;48
calling of the Marines in this case constitutes permissible
use of military assets for civilian law enforcement. The 8. Enforcement of customs laws;49
participation of the Marines in the conduct of joint visibility
patrols is appropriately circumscribed. The limited
participation of the Marines is evident in the provisions of 9. Composite civilian-military law enforcement
the LOI itself, which sufficiently provides the metes and activities;50
bounds of the Marines’ authority. It is noteworthy that the
local police forces are the ones in charge of the visibility 10. Conduct of licensure examinations;51
patrols at all times, the real authority belonging to the PNP.
In fact, the Metro Manila Police Chief is the overall leader of
11. Conduct of nationwide tests for elementary and
the PNP-Philippine Marines joint visibility patrols. 37 Under
high school students;52
the LOI, the police forces are tasked to brief or orient the
soldiers on police patrol procedures.38 It is their
responsibility to direct and manage the deployment of the 12. Anti-drug enforcement activities;53
Marines.39 It is, likewise, their duty to provide the necessary
equipment to the Marines and render logistical support to 13. Sanitary inspections;54
these soldiers.40 In view of the foregoing, it cannot be
properly argued that military authority is supreme over
civilian authority. Moreover, the deployment of the Marines 14. Conduct of census work;55
to assist the PNP does not unmake the civilian character of
the police force. Neither does it amount to an "insidious 15. Administration of the Civil Aeronautics Board;56
incursion" of the military in the task of law enforcement in
violation of Section 5(4), Article XVI of the Constitution.41
16. Assistance in installation of weather forecasting
devices;57
In this regard, it is not correct to say that General Angelo
Reyes, Chief of Staff of the AFP, by his alleged involvement
in civilian law enforcement, has been virtually appointed to 17. Peace and order policy formulation in local
a civilian post in derogation of the aforecited provision. The government units.58
real authority in these operations, as stated in the LOI, is
lodged with the head of a civilian institution, the PNP, and This unquestionably constitutes a gloss on executive power
not with the military. Such being the case, it does not resulting from a systematic, unbroken, executive practice,
matter whether the AFP Chief actually participates in the long pursued to the knowledge of Congress and, yet, never
Task Force Tulungan since he does not exercise any before questioned.59 What we have here is mutual support
authority or control over the same. Since none of the and cooperation between the military and civilian
Marines was incorporated or enlisted as members of the authorities, not derogation of civilian supremacy.
PNP, there can be no appointment to civilian position to
speak of. Hence, the deployment of the Marines in the joint
In the United States, where a long tradition of suspicion and
visibility patrols does not destroy the civilian character of
hostility towards the use of military force for domestic
the PNP.
purposes has persisted,60 and whose Constitution, unlike
ours, does not expressly provide for the power to call, the
Considering the above circumstances, the Marines render use of military personnel by civilian law enforcement
nothing more than assistance required in conducting the officers is allowed under circumstances similar to those
patrols. As such, there can be no "insidious incursion" of the surrounding the present deployment of the Philippine
military in civilian affairs nor can there be a violation of the Marines. Under the Posse Comitatus Act61 of the US, the use
civilian supremacy clause in the Constitution. of the military in civilian law enforcement is generally
prohibited, except in certain allowable circumstances. A
It is worth mentioning that military assistance to civilian provision of the Act states:
authorities in various forms persists in Philippine
jurisdiction. The Philippine experience reveals that it is not § 1385. Use of Army and Air Force as posse comitatus
averse to requesting the assistance of the military in the
implementation and execution of certain traditionally "civil"
68 | Executive
Whoever, except in cases and under circumstances
expressly authorized by the Constitution or Act of Congress,
willfully uses any part of the Army or the Air Force as posse
comitatus or otherwise to execute the laws shall be fined
not more than $10,000 or imprisoned not more than two
years, or both.62
To determine whether there is a violation of the Posse
Comitatus Act in the use of military personnel, the US
courts63 apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law
enforcement officers at Wounded Knee in such a manner
that the military personnel subjected the citizens to the
exercise of military power which was regulatory,
proscriptive, or compulsory64 George Washington Law
Review, pp. 404-433 (1986), which discusses the four
divergent standards for assessing acceptable involvement of
military personnel in civil law enforcement. See likewise
HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO
EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law
Journal, pp. 130-152, 1973. 64 in nature, either presently
or prospectively?
xxx
When this concept is transplanted into the present legal
context, we take it to mean that military involvement, even
when not expressly authorized by the Constitution or a
statute, does not violate the Posse Comitatus Act unless it
actually regulates, forbids or compels some conduct on the
part of those claiming relief.1âwphi1 A mere threat of some
future injury would be insufficient. (emphasis supplied)
Even if the Court were to apply the above rigid standards to
the present case to determine whether there is permissible
use of the military in civilian law enforcement, the
conclusion is inevitable that no violation of the civilian
supremacy clause in the Constitution is committed. On this
point, the Court agrees with the observation of the Solicitor
General:
3. The designation of tasks in Annex A65 does not constitute
the exercise of regulatory, proscriptive, or compulsory
military power. First, the soldiers do not control or direct
the operation. This is evident from Nos. 6,66 8(k)67 and
9(a)68 of Annex A. These soldiers, second, also have no
power to prohibit or condemn. In No. 9(d)69 of Annex A, all
arrested persons are brought to the nearest police stations
for proper disposition. And last, these soldiers apply no
coercive force. The materials or equipment issued to them,
as shown in No. 8(c)70 of Annex A, are all low impact and
defensive in character. The conclusion is that there being no
exercise of regulatory, proscriptive or compulsory military
power, the deployment of a handful of Philippine Marines
constitutes no impermissible use of military power for
civilian law enforcement.71
It appears that the present petition is anchored on fear that
once the armed forces are deployed, the military will gain
ascendancy, and thus place in peril our cherished liberties.
Such apprehensions, however, are unfounded. The power to
call the armed forces is just that - calling out the armed
forces. Unless, petitioner IBP can show, which it has not,
that in the deployment of the Marines, the President has
violated the fundamental law, exceeded his authority or
jeopardized the civil liberties of the people, this Court is not
inclined to overrule the President’s determination of the
factual basis for the calling of the Marines to prevent or
suppress lawless violence.
One last point. Since the institution of the joint visibility
patrol in January, 2000, not a single citizen has complained
that his political or civil rights have been violated as a result
69 | Executive
of the deployment of the Marines. It was precisely to
safeguard peace, tranquility and the civil liberties of the
people that the joint visibility patrol was conceived.
Freedom and democracy will be in full bloom only when
people feel secure in their homes and in the streets, not
when the shadows of violence and anarchy constantly lurk
in their midst.
WHEREFORE, premises considered, the petition is hereby
DISMISSED.
SO ORDERED.
G.R. No. 135457               September 29, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JOSE PATRIARCA, JR., alias "KA DJANGO," CARLOS
NARRA, alias "KA JESSIE" and TEN (10) JOHN
DOES, accused-appellant.
DECISION
BUENA, J.:
Accused-appellant Jose Patriarca, Jr., with the aliases of "Ka
Django," "Carlos Narra" and "Ka Jessie," appeals the
decision of the Regional Trial Court at Sorsogon, Sorsogon,
Branch 52, in Criminal Case No. 2773 entitled "People of
the Philippines versus Jose Patriarca, Jr. alias 'Ka Django,'
'Carlos Narra,' 'Ka Jessie,' and 21 John Does" convicting
him of murder and sentencing him to reclusion perpetua.
On August 16, 1990, an information for murder was filed
against Jose Patriarca, Jr., alias "Ka Django," "Carlos
Narra", "Ka Jessie," et al., charging them of murder
committed as follows:
"That on or about the 30th day of June, 1987 at about
10:00 o'clock in the evening in the Municipality of Donsol,
Province of Sorsogon, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused
conspiring, confederating and mutually helping one another,
armed with guns, forcibly took away ALFREDO AREVALO
from his residence and brought him to Sitio Abre, Mabini,
Donsol, Sorsogon, and did then and there willfully,
unlawfully and feloniously with intent to kill, with treachery
and evident premeditation, attack, assault and shoot
ALFREDO AREVALO thereby inflicting upon him mortal
wounds, which directly caused his death to the damage and
prejudice of his legal heirs.
"CONTRARY TO LAW."
Accused-appellant Jose Patriarca, Jr. was also charged with
Murder for the killing of one Rudy de Borja and a certain
Elmer Cadag under Informations docketed as Criminal
Cases Nos. 2665 and 2672, respectively.
Upon arraignment on November 25, 1993, accused-
appellant, assisted by his counsel de parte, pleaded not
guilty to the crimes charged. Joint trial of the three cases
was conducted considering the substantial identity of the
facts and circumstances of the case.
Prosecution witness Nonito Malto testified that on June 30,
1987, the accused, with ten (10) armed companions,
requested permission to rest in his house, which was
granted. They had with them a person who was hogtied.
Accused Patriarca asked that the lights in Malto's house be
extinguished and Malto complied.
Around 2:00 o'clock in the early morning of July 1, 1987,
Malto was awakened by a gunshot. When he looked out, he
saw Patriarca holding a gun and ordering the person who
was hogtied to lie down. After several minutes, Malto heard
two gunshots. He then heard the accused direct his
companions to carry away the dead man.
Nonito Malto, later on, learned that the dead man was
Alfredo Arevalo when Patriarca went back to his place,
together with the military, on March 29, 1990.
The skeletal remains of Alfredo Arevalo were recovered in
the property of a Rubuang Tolosa and were identified by
Elisa Arevalo, the mother of the victim.
The second witness for the prosecution was Elisa Arevalo.
She knew Patriarca, alias "Ka Django", as he told her on
March 10, 1987 not to let her son join the military. She,
however, replied that they were only seeking employment.
Her son Alfredo was her companion in attending to their
farm and he was a member of the Civilian Home Defense
Force (CHDF) in their locality.
After she was informed by her tenant Alegria Moratelio
Alcantara that her son was abducted by the New People's
Army (NPA) led by Patriarca, she reported the matter to the
military and looked for him. She was informed by the
residents of the place where the NPA passed, that they saw
her son hogtied, that her son even asked for drinking
water, and complained that he was being maltreated by the
NPA. After three days of searching, a certain Walter
Ricafort, an NPA member and a relative of hers, notified her
that her son Alfredo was killed by Jose Patriarca, Jr.
In the municipal building, Nonito Malto likewise informed
her of her son's death in the hands of Ka Django.
Consequently, a Death Certificate was issued by the Local
Civil Registrar.
When the skeletal remains of a man were recovered, she
was able to identify them as belonging to her son by reason
of the briefs found in the burial site. Her son, Alfredo
Arevalo, used to print his name on the waistband of his
briefs so that it would not get lost.
The defense presented accused Jose Patriarca, Jr. and
Francisco Derla who admitted that accused is a member of
the NPA operating in Donsol, Sorsogon, but denied ever
abducting the victims in the three criminal cases filed
against him.
On January 20, 1998, a decision was rendered convicting
the accused and imposing the following penalty:
"WHEREFORE, premises considered, the Court finds accused
Jose Patriarca, Jr. alias Ka Django, alias Carlos Narra guilty
beyond reasonable doubt of the crime of Murder for the
death of Alfredo Arevalo and hereby sentences him to suffer
an imprisonment of reclusion perpetua with all the
accessory provided by law and to pay the amount of
P50,000.00 as civil indemnity to the heirs of the victim
Alfredo Arevalo, without subsidiary imprisonment in case of
insolvency and as regards Crim. Case No. 2665 and Crim.
Case No. 2672, for failure of the prosecution to prove the
guilt of the accused beyond reasonable doubt, said Jose
Patriarca alias Carlos Narra, Ka Django, is hereby acquitted.
"In the service of his sentence, the accused shall be given
full credit of his period of detention.
70 | Executive
"With cost de-oficio.
"SO ORDERED."1
Hence, this appeal where accused-appellant assigns the
following lone error allegedly committed by the trial court:
THE TRIAL COURT ERRED IN FINDING ACCUSED-
APPELLANT GUILTY OF THE CRIME OF MURDER, AN
OFFENSE COMMITTED IN PURSUANCE OR IN FURTHERANCE
OF REBELLION.
Accused-appellant applied for amnesty under Proclamation
No. 724 amending Proclamation No. 347, dated March 25,
1994, entitled "Granting Amnesty to Rebels, Insurgents,
and All Other Persons Who Have or May Have Committed
Crimes Against Public Order, Other Crimes Committed in
Furtherance of Political Ends, and Violations of the Article of
War, and Creating a National Amnesty Commission." His
application was favorably granted by the National Amnesty
Board. Attached to appellant's brief is the Notice of
Resolution of the National Amnesty Commission (NAC)
dated November 17, 1999 which states:
"Quoted below is a resolution of the National Amnesty
Commission dated 22 October 1998.2
'RESOLUTION NO. D-99-8683 refers to Application No.
02125 of MR. JOSE NARRA PATRIARCA filed with the Local
Amnesty Board of Legazpi City on 18 February 1997.
'Applicant admitted joining the NPA in 1977. He served
under the Sandatahang Yunit Pampropaganda and
participated in the following armed activities:
'a) Encounter with the Philippine Army forces at
Barangay Hirawon, Donsol, Sorsogon on 14
February 1986;
'b) Encounter with elements of the Philippine
Constabulary at Barangay Godon, Donsol,
Sorsogon on 15 February 1986;
'c) Encounter with the Philippine Army forces at
Barangay Banwang, Gurang, Donsol, Sorsogon in
1987;
'd) Liquidation of ELMER CADAG an alleged military
informer at Barangay Boroan, Donsol, Sorsogon,
on 21 March 1987, in which a case of Murder in
Criminal Case No. 2672 was filed against him
before the Regional Trial Court, Branch 52,
Sorsogon, Sorsogon;
'e) Liquidation of a certain RUDY DEBORJA, a thief
and nuisance of the community, at Donsol,
Sorsogon, on 09 March 1984, in which a case of
Murder in Criminal Case No. 2665 was filed against
him before the Regional Trial Court, Branch 52,
Sorsogon, Sorsogon;
'f) Liquidation of a certain ALEJANDRINO
MILITANTE for his misconducts at San Antonio,
Donsol, Sorsogon, on 12 February 1986, in which a
case of Murder in Criminal Case No. 2664 was filed
against him before the Regional Trial Court, Branch
52, Sorsogon, Sorsogon;
'g) Liquidation of a certain ALFREDO AREVALO, a
former member of the CHDF at Sitio Abe (sic),
Mabini, Donsol, Sorsogon, on 30 June 1987, in
 which a case of Murder in Criminal Case No. 2773
was filed against him before the Regional Trial
Court, Branch 52, Sorsogon, Sorsogon;
'h) Liquidation of one DOMINGO DONQUILLO, a
barangay captain, at Barangay Tinanogan, Donsol,
Sorsogon, on 20 September 1986 in which a (sic)
Criminal Case No. 2663 was filed against him.
'After a careful verification and evaluation on (sic) the
claims of the applicant, the Local Amnesty Board concluded
that his activities were done in the pursuit of his political
beliefs. It thus recommended on 20 May 1998 the grant of
his application for amnesty.
'The Commission, in its deliberation on the application on
22 October 1999, resolved to approve the recommendation
of the Local Amnesty Board.
'WHEREFORE, the application for amnesty of MR. JOSE
NARRA PATRIARCA under Proclamation No. 724 is hereby
GRANTED for rebellion constituted by the acts detailed
above, provided they were committed on or before the date
he was captured on 22 June 1988. Let a Certificate of
Amnesty be issued in his favor as soon as this Resolution
becomes final. It shall become final after the lapse of fifteen
(15) calendar days from receipt of this Notice, unless a
Motion for Reconsideration is filed with the Commission by
any party within said period.'"3
On March 9, 2000, Hon. Alfredo F. Tadiar, Chairman of the
National Amnesty Commission, wrote the following letter to
the Provincial Prosecutor of Sorsogon, Sorsogon:
"Notice of Amnesty Grant to Jose N. Patriarca"
"Pursuant to NAC Action No. 95-358-C, we are transmitting
herewith the attached copy of RESOLUTION NO. D-99-8683
granting amnesty to JOSE N. PATRIARCA. The grantee was
accused of the following cases:
"1. Murder in Criminal Case No. 2672 filed before
the Regional Trial Court, Branch 52, Sorsogon,
Sorsogon.
"2. Murder in Criminal Case No. 2665 filed before
the Regional Trial Court, Branch 52, Sorsogon,
Sorsogon.
"3. Murder in Criminal Case No. 2664 filed before
the Regional Trial Court, Branch 52, Sorsogon,
Sorsogon.
"4. Murder in Criminal Case No. 2773 filed before
the Regional Trial Court, Branch 52, Sorsogon,
Sorsogon.
"5. Murder in Criminal Case No. 2663 filed before
the Regional Trial Court, Branch 52, Sorsogon,
Sorsogon.
"He is currently detained at the Provincial Jail, Sorsogon,
Sorsogon.
"The purpose of this transmittal is to provide you, as the
chief prosecutor of the province, the opportunity to take
whatever action you may deem appropriate from receipt of
this note. This grant of amnesty shall become final after the
lapse of fifteen (15) calendar days from receipt of this
Notice, unless a Motion for Reconsideration is filed with the
Commission by any party within said period.
71 | Executive
"Thank you for your continued support for the Peace
Process."4
The Office of the Solicitor General, in its letter dated June
23, 2000 to the National Amnesty Commission, requested
information as to whether or not a motion for
reconsideration was filed by any party, and the action, if
there was any, taken by the NAC.5
In his reply dated June 28, 2000, NAC Chairman Tadiar
wrote, among other things, that there has been no motion
for reconsideration filed by any party.6
Accused-appellant Jose N. Patriarca, Jr. was granted
amnesty under Proclamation No. 724 dated May 17, 1996.
It amended Proclamation No. 347 dated March 25, 1994.
Section 1 of Proclamation No. 724 reads thus:
"Section 1. Grant of Amnesty. - Amnesty is hereby granted
to all persons who shall apply therefor and who have or
may have committed crimes, on or before June 1, 1995, in
pursuit of their political beliefs, whether punishable under
the Revised Penal Code or special laws, including but not
limited to the following: rebellion or insurrection; coup
d'etat; conspiracy and proposal to commit rebellion,
insurrection, or coup d'etat; disloyalty of public officers or
employees; inciting to rebellion or insurrection; sedition;
conspiracy to commit sedition; inciting to sedition; illegal
assembly; illegal association; direct assault; indirect
assault; resistance and disobedience to a person in
authority or agents of such person; tumults and other
disturbances of public order; unlawful use of means of
publication and unlawful utterances; alarms and scandals;
illegal possession of firearms, ammunitions, and explosives,
committed in furtherance of, incident to, or in connection
with the crimes of rebellion and insurrection; and violations
of Articles 59 (desertion), 62 (absence without leave), 67
(mutiny or sedition), 68 (failure to suppress mutiny or
sedition), 94 (various crimes), 96 (conduct unbecoming an
officer and gentleman), and 97 (general article) of the
Articles of War; Provided, That the amnesty shall not cover
crimes against chastity and other crimes for personal
ends."1âwphi1
Amnesty commonly denotes a general pardon to rebels for
their treason or other high political offenses, or the
forgiveness which one sovereign grants to the subjects of
another, who have offended, by some breach, the law of
nations.7 Amnesty looks backward, and abolishes and puts
into oblivion, the offense itself; it so overlooks and
obliterates the offense with which he is charged, that the
person released by amnesty stands before the law precisely
as though he had committed no offense.8
Paragraph 3 of Article 89 of the Revised Penal Code
provides that criminal liability is totally extinguished by
amnesty, which completely extinguishes the penalty and all
its effects.
In the case of People vs. Casido,9 the difference between
pardon and amnesty is given:
"Pardon is granted by the Chief Executive and as such it is a
private act which must be pleaded and proved by the
person pardoned, because the courts take no notice
thereof; while amnesty by Proclamation of the Chief
Executive with the concurrence of Congress, is a public act
of which the courts should take judicial notice. Pardon is
granted to one after conviction; while amnesty is granted to
classes of persons or communities who may be guilty of
political offenses, generally before or after the institution of
the criminal prosecution and sometimes after
conviction. Pardon looks forward and relieves the offender
from the consequences of an offense of which he has been
convicted, that is, it abolishes or forgives the punishment,
and for that reason it does 'not work the restoration of the
rights to hold public office, or the right of suffrage, unless
such rights be expressly restored by the terms of the
pardon,' and it 'in no case exempts the culprit from the
payment of the civil indemnity imposed upon him by the
sentence' (Article 36, Revised Penal Code). While amnesty
looks backward and abolishes and puts into oblivion the
offense itself, it so overlooks and obliterates the offense
with which he is charged that the person released by
amnesty stands before the law precisely as though he had
committed no offense."
This Court takes judicial notice of the grant of amnesty
upon accused-appellant Jose N. Patriarca, Jr. Once granted,
it is binding and effective. It serves to put an end to the
appeal.10
WHEREFORE, IN VIEW OF THE FOREGOING, the decision
of the Regional Trial Court at Sorsogon, Sorsogon, Branch
52 in Criminal Case No. 2773 is REVERSED and SET ASIDE.
Accused-appellant Jose N. Patriarca, Jr. is hereby
ACQUITTED of the crime of murder.
Pursuant to Resolution No. D-99-8683,11 Criminal Case Nos.
2663 and 2664, which are both filed in the Regional Trial
Court, Branch 53, Sorsogon, Sorsogon,12 are ordered
DISMISSED. The release of Jose N. Patriarca who is
presently detained at the Provincial Jail of Sorsogon is
likewise ORDERED unless he is being detained for some
other legal cause.
The Director of Prisons is ordered to report within ten (10)
days his compliance with this decision.
SO ORDERED.
EN BANC
G.R. No. 180643             March 25, 2008
ROMULO L. NERI, petitioner,
vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC
OFFICERS AND INVESTIGATIONS, SENATE
COMMITTEE ON TRADE AND COMMERCE, AND SENATE
COMMITTEE ON NATIONAL DEFENSE AND
SECURITY, respondents.
DECISION
LEONARDO-DE CASTRO, J.:
At bar is a petition for certiorari under Rule 65 of the Rules
of Court assailing the show cause Letter1 dated November
22, 2007 and contempt Order2 dated January 30, 2008
concurrently issued by respondent
Senate Committees on Accountability of Public Officers and
Investigations,3 Trade and Commerce,4 and National
Defense and Security5 against petitioner Romulo L. Neri,
former Director General of the National Economic and
Development Authority (NEDA).
The facts, as culled from the pleadings, are as follows:
72 | Executive
On April 21, 2007, the Department of Transportation and
Communication (DOTC) entered into a contract with Zhong
Xing Telecommunications Equipment (ZTE) for the supply of
equipment and services for the National Broadband Network
(NBN) Project in the amount of U.S. $ 329,481,290
(approximately P16 Billion Pesos). The Project was to be
financed by the People's Republic of China.
In connection with this NBN Project, various Resolutions
were introduced in the Senate, as follows:
(1) P.S. Res. No. 127, introduced by Senator
Aquilino Q. Pimentel, Jr., entitled RESOLUTION
DIRECTING THE BLUE RIBBON COMMITTEE AND
THE COMMITTEE ON TRADE AND INDUSTRY TO
INVESTIGATE, IN AID OF LEGISLATION, THE
CIRCUMSTANCES LEADING TO THE APPROVAL OF
THE BROADBAND CONTRACT WITH ZTE AND THE
ROLE PLAYED BY THE OFFICIALS CONCERNED IN
GETTING IT CONSUMMATED AND TO MAKE
RECOMMENDATIONS TO HALE TO THE COURTS OF
LAW THE PERSONS RESPONSIBLE FOR ANY
ANOMALY IN CONNECTION THEREWITH AND TO
PLUG THE LOOPHOLES, IF ANY IN THE BOT LAW
AND OTHER PERTINENT LEGISLATIONS.
(2) P.S. Res. No. 144, introduced by Senator Mar
Roxas, entitled Á RESOLUTION URGING
PRESIDENT GLORIA MACAPAGAL ARROYO TO
DIRECT THE CANCELLATION OF THE ZTE
CONTRACT
(3) P.S. Res. No. 129, introduced by Senator
Panfilo M. Lacson, entitled RESOLUTION
DIRECTING THE COMMITTEE ON NATIONAL
DEFENSE AND SECURITY TO CONDUCT AN
INQUIRY IN AID OF LEGISLATION INTO THE
NATIONAL SECURITY IMPLICATIONS OF
AWARDING THE NATIONAL BROADBAND
NETWORK CONTRACT TO THE CHINESE FIRM
ZHONG XING TELECOMMUNICATIONS EQUIPMENT
COMPANY LIMITED (ZTE CORPORATION) WITH
THE END IN VIEW OF PROVIDING REMEDIAL
LEGISLATION THAT WILL PROTECT OUR NATIONAL
SOVEREIGNTY, SECURITY AND TERRITORIAL
INTEGRITY.
(4) P.S. Res. No. 136, introduced by Senator
Miriam Defensor Santiago, entitled RESOLUTION
DIRECTING THE PROPER SENATE COMMITTEE TO
CONDUCT AN INQUIRY, IN AID OF LEGISLATION,
ON THE LEGAL AND ECONOMIC JUSTIFICATION OF
THE NATIONAL BROADBAND NETWORK (NBN)
PROJECT OF THE NATIONAL GOVERNMENT.
At the same time, the investigation was claimed to be
relevant to the consideration of three (3) pending bills in
the Senate, to wit:
1. Senate Bill No. 1793, introduced by Senator
Mar Roxas, entitled AN ACT SUBJECTING
TREATIES, INTERNATIONAL OR EXECUTIVE
AGREEMENTS INVOLVING FUNDING IN THE
PROCUREMENT OF INFRASTRUCTURE PROJECTS,
GOODS, AND CONSULTING SERVICES TO BE
INCLUDED IN THE SCOPE AND APPLICATION OF
PHILIPPINE PROCUREMENT LAWS, AMENDING FOR
THE PURPOSE REPUBLIC ACT NO. 9184,
OTHERWISE KNOWN AS THE GOVERNMENT
PROCUREMENT REFORM ACT, AND FOR OTHER
PURPOSES;
2. Senate Bill No. 1794, introduced by Senator
Mar Roxas, entitled AN ACT IMPOSING
 SAFEGUARDS IN CONTRACTING LOANS
CLASSIFIED AS OFFICIAL DEVELOPMENT
ASSISTANCE, AMENDING FOR THE PURPOSE
REPUBLIC ACT NO. 8182, AS AMENDED BY
REPUBLIC ACT NO. 8555, OTHERWISE KNOWN AS
THE OFFICIAL DEVELOPMENT ASSISTANCE ACT OF
1996, AND FOR OTHER PURPOSES; and
3. Senate Bill No. 1317, introduced by Senator
Miriam Defensor Santiago, entitled AN ACT
MANDATING CONCURRENCE TO INTERNATIONAL
AGREEMENTS AND EXECUTIVE AGREEMENTS.
Respondent Committees initiated the investigation by
sending invitations to certain personalities and cabinet
officials involved in the NBN Project. Petitioner was among
those invited. He was summoned to appear and testify on
September 18, 20, and 26 and October 25, 2007. However,
he attended only the September 26 hearing, claiming he
was "out of town" during the other dates.
In the September 18, 2007 hearing, businessman Jose de
Venecia III testified that several high executive officials and
power brokers were using their influence to push the
approval of the NBN Project by the NEDA. It appeared that
the Project was initially approved as a Build-Operate-
Transfer (BOT) project but, on March 29, 2007, the NEDA
acquiesced to convert it into a government-to-government
project, to be financed through a loan from the Chinese
Government.
On September 26, 2007, petitioner testified before
respondent Committees for eleven (11) hours. He disclosed
that then Commission on Elections (COMELEC) Chairman
Benjamin Abalos offered him P200 Million in exchange for
his approval of the NBN Project. He further narrated that he
informed President Arroyo about the bribery attempt and
that she instructed him not to accept the bribe. However,
when probed further on what they discussed about the NBN
Project, petitioner refused to answer, invoking "executive
privilege". In particular, he refused to answer the questions
on (a) whether or not President Arroyo followed up the NBN
Project,6 (b) whether or not she directed him to prioritize
it,7 and (c) whether or not she directed him to approve.8
Unrelenting, respondent Committees issued a Subpoena Ad
Testificandum to petitioner, requiring him to appear and
testify on November 20, 2007.
However, in the Letter dated November 15, 2007, Executive
Secretary Eduardo R. Ermita requested respondent
Committees to dispense with petitioner's testimony on the
ground of executive privilege. The pertinent portion of the
letter reads:
With reference to the subpoena ad
testificandum issued to Secretary Romulo Neri to
appear and testify again on 20 November 2007
before the Joint Committees you chair, it will be
recalled that Sec. Neri had already testified and
exhaustively discussed the ZTE / NBN project,
including his conversation with the President
thereon last 26 September 2007.
Asked to elaborate further on his conversation with
the President, Sec. Neri asked for time to consult
with his superiors in line with the ruling of the
Supreme Court in Senate v. Ermita, 488 SCRA 1
(2006).
Specifically, Sec. Neri sought guidance on the
possible invocation of executive privilege on the
following questions, to wit:
73 | Executive
a) Whether the President followed up
the (NBN) project?
b) Were you dictated to prioritize the
ZTE?
c) Whether the President said to go
ahead and approve the project after
being told about the alleged bribe?
Following the ruling in Senate v. Ermita, the
foregoing questions fall under conversations and
correspondence between the President and public
officials which are considered executive privilege
(Almonte v. Vasquez, G.R. 95637, 23 May
1995; Chavez v. PEA, G.R. 133250, July 9, 2002).
Maintaining the confidentiality of conversations of
the President is necessary in the exercise of her
executive and policy decision making process. The
expectation of a President to the confidentiality of
her conversations and correspondences, like the
value which we accord deference for the privacy of
all citizens, is the necessity for protection of the
public interest in candid, objective, and even blunt
or harsh opinions in Presidential decision-making.
Disclosure of conversations of the President will
have a chilling effect on the President, and will
hamper her in the effective discharge of her duties
and responsibilities, if she is not protected by the
confidentiality of her conversations.
The context in which executive privilege is being
invoked is that the information sought to be
disclosed might impair our diplomatic as well as
economic relations with the People's Republic of
China. Given the confidential nature in which these
information were conveyed to the President, he
cannot provide the Committee any further details
of these conversations, without disclosing the very
thing the privilege is designed to protect.
In light of the above considerations, this Office is
constrained to invoke the settled doctrine of
executive privilege as refined in Senate v. Ermita,
and has advised Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily
interrogated on the subject in an unprecedented
11-hour hearing, wherein he has answered all
questions propounded to him except the foregoing
questions involving executive privilege, we
therefore request that his testimony on 20
November 2007 on the ZTE / NBN project be
dispensed with.
On November 20, 2007, petitioner did not appear before
respondent Committees. Thus, on November 22, 2007, the
latter issued the show cause Letter requiring him to explain
why he should not be cited in contempt. The Letter reads:
Since you have failed to appear in the said
hearing, the Committees on Accountability of
Public Officers and Investigations (Blue Ribbon),
Trade and Commerce and National Defense and
Security require you to show cause why you should
not be cited in contempt under Section 6, Article 6
of the Rules of the Committee on Accountability of
Public Officers and Investigations (Blue Ribbon).
The Senate expects your explanation on or before
2 December 2007.
On November 29, 2007, petitioner replied to respondent
Committees, manifesting that it was not his intention to
ignore the Senate hearing and that he thought the only
remaining questions were those he claimed to be covered
by executive privilege, thus:
It was not my intention to snub the last Senate
hearing. In fact, I have cooperated with the task of
the Senate in its inquiry in aid of legislation as
shown by my almost 11 hours stay during the
hearing on 26 September 2007. During said
hearing, I answered all the questions that were
asked of me, save for those which I thought was
covered by executive privilege, and which was
confirmed by the Executive Secretary in his Letter
15 November 2007. In good faith, after that
exhaustive testimony, I thought that what
remained were only the three questions, where the
Executive Secretary claimed executive privilege.
Hence, his request that my presence be dispensed
with.
Be that as it may, should there be new matters
that were not yet taken up during the 26
September 2007 hearing, may I be furnished in
advance as to what else I need to clarify, so that
as a resource person, I may adequately prepare
myself.
In addition, petitioner submitted a letter prepared by his
counsel, Atty. Antonio R. Bautista, stating, among others
that: (1) his (petitioner) non-appearance was upon the
order of the President; and (2) his conversation with
President Arroyo dealt with delicate and sensitive national
security and diplomatic matters relating to the impact of the
bribery scandal involving high government officials and the
possible loss of confidence of foreign investors and lenders
in the Philippines. The letter ended with a reiteration of
petitioner's request that he "be furnished in advance" as to
what else he needs to clarify so that he may adequately
prepare for the hearing.
In the interim, on December 7, 2007, petitioner filed with
this Court the present petition for certiorari assailing the
show cause Letter dated November 22, 2007.
Respondent Committees found petitioner's explanations
unsatisfactory. Without responding to his request for
advance notice of the matters that he should still clarify,
they issued the Order dated January 30, 2008, citing him
in contempt of respondent Committees and ordering his
arrest and detention at the Office of the Senate Sergeant-
At-Arms until such time that he would appear and give his
testimony. The said Order states:
ORDER
For failure to appear and testify in the Committee's
hearing on Tuesday, September 18, 2007;
Thursday, September 20, 2007; Thursday, October
25, 2007; and Tuesday, November 20, 2007,
despite personal notice and Subpoenas Ad
Testificandum sent to and received by him, which
thereby delays, impedes and obstructs, as it has in
fact delayed, impeded and obstructed the inquiry
into the subject reported irregularities, AND for
failure to explain satisfactorily why he should not
be cited for contempt (Neri letter of 29 November
2007), herein attached) ROMULO L. NERI is
hereby cited in contempt of this (sic)
Committees and ordered arrested and
detained in the Office of the Senate Sergeant-
At-Arms until such time that he will appear
and give his testimony.
74 | Executive
The Sergeant-At-Arms is hereby directed to carry
out and implement this Order and make a return
hereof within twenty four (24) hours from its
enforcement.
SO ORDERED.
On the same date, petitioner moved for the reconsideration
of the above Order.9 He insisted that he has not shown "any
contemptible conduct worthy of contempt and arrest." He
emphasized his willingness to testify on new matters,
however, respondent Committees did not respond to his
request for advance notice of questions. He also mentioned
the petition for certiorari he filed on December 7, 2007.
According to him, this should restrain respondent
Committees from enforcing the show cause Letter "through
the issuance of declaration of contempt" and arrest.
In view of respondent Committees' issuance of the
contempt Order, petitioner filed on February 1, 2008
a Supplemental Petition for Certiorari (With Urgent
Application for TRO/Preliminary Injunction), seeking to
restrain the implementation of the said contempt Order.
On February 5, 2008, the Court issued a Status Quo Ante
Order (a) enjoining respondent Committees from
implementing their contempt Order, (b) requiring the
parties to observe the status quo prevailing prior to the
issuance of the assailed order, and (c) requiring respondent
Committees to file their comment.
Petitioner contends that respondent Committees' show
cause Letter and contempt Order were issued with grave
abuse of discretion amounting to lack or excess of
jurisdiction. He stresses that his conversations with
President Arroyo are "candid discussions meant to
explore options in making policy decisions." According
to him, these discussions "dwelt on the impact of the
bribery scandal involving high government officials
on the country's diplomatic relations and economic
and military affairs and the possible loss of
confidence of foreign investors and lenders in the
Philippines." He also emphasizes that his claim of
executive privilege is upon the order of the President and
within the parameters laid down in Senate v.
Ermita10 and United States v. Reynolds.11 Lastly, he argues
that he is precluded from disclosing communications made
to him in official confidence under Section 712 of Republic
Act No. 6713, otherwise known as Code of Conduct and
Ethical Standards for Public Officials and Employees, and
Section 2413 (e) of Rule 130 of the Rules of Court.
Respondent Committees assert the contrary. They argue
that (1) petitioner's testimony is material and pertinent in
the investigation conducted in aid of legislation; (2) there is
no valid justification for petitioner to claim executive
privilege; (3) there is no abuse of their authority to order
petitioner's arrest; and (4) petitioner has not come to court
with clean hands.
In the oral argument held last March 4, 2008, the following
issues were ventilated:
1. What communications between the President
and petitioner Neri are covered by the principle of
'executive privilege'?
1.a Did Executive Secretary Ermita
correctly invoke the principle of executive
privilege, by order of the President, to
cover (i) conversations of the President in
the exercise of her executive and policy
 decision-making and (ii) information,
which might impair our diplomatic as well
as economic relations with the People's
Republic of China?
1.b. Did petitioner Neri correctly invoke
executive privilege to avoid testifying on
his conversations with the President on
the NBN contract on his assertions that
the said conversations "dealt with
delicate and sensitive national
security and diplomatic matters
relating to the impact of bribery
scandal involving high government
officials and the possible loss of
confidence of foreign investors and
lenders in the Philippines" x x x within
the principles laid down in Senate v.
Ermita (488 SCRA 1 [2006])?
1.c Will the claim of executive privilege in
this case violate the following provisions
of the Constitution:
Sec. 28, Art. II (Full public
disclosure of all transactions
involving public interest)
Sec. 7, Art. III (The right of the
people to information on matters
of public concern)
Sec. 1, Art. XI (Public office is a
public trust)
Sec. 17, Art. VII (The President
shall ensure that the laws be
faithfully executed)
and the due process clause and the principle of
separation of powers?
2. What is the proper procedure to be followed in
invoking executive privilege?
3. Did the Senate Committees gravely abuse their
discretion in ordering the arrest of petitioner for
non-compliance with the subpoena?
After the oral argument, the parties were directed to
manifest to the Court within twenty-four (24) hours if they
are amenable to the Court's proposal of allowing petitioner
to immediately resume his testimony before the Senate
Committees to answer the other questions of the Senators
without prejudice to the decision on the merits of this
pending petition. It was understood that petitioner may
invoke executive privilege in the course of the Senate
Committees proceedings, and if the respondent Committees
disagree thereto, the unanswered questions will be the
subject of a supplemental pleading to be resolved along
with the three (3) questions subject of the present
petition.14 At the same time, respondent Committees were
directed to submit several pertinent documents.15
The Senate did not agree with the proposal for the reasons
stated in the Manifestation dated March 5, 2008. As to the
required documents, the Senate and respondent
Committees manifested that they would not be able to
submit the latter's "Minutes of all meetings" and the
"Minute Book" because it has never been the "historical and
traditional legislative practice to keep them." 16 They instead
submitted the Transcript of Stenographic Notes of
respondent Committees' joint public hearings.
75 | Executive
On March 17, 2008, the Office of the Solicitor General
(OSG) filed a Motion for Leave to Intervene and to Admit
Attached Memorandum, founded on the following
arguments:
(1) The communications between petitioner and
the President are covered by the principle of
"executive privilege."
(2) Petitioner was not summoned by respondent
Senate Committees in accordance with the law-
making body's power to conduct inquiries in aid of
legislation as laid down in Section 21, Article VI of
the Constitution and Senate v. Ermita.
(3) Respondent Senate Committees gravely
abused its discretion for alleged non-compliance
with the Subpoena dated November 13, 2007.
The Court granted the OSG's motion the next day, March
18, 2008.
As the foregoing facts unfold, related events transpired.
On March 6, 2008, President Arroyo issued Memorandum
Circular No. 151, revoking Executive Order No. 464 and
Memorandum Circular No. 108. She advised executive
officials and employees to follow and abide by the
Constitution, existing laws and jurisprudence, including,
among others, the case of Senate v. Ermita17 when they are
invited to legislative inquiries in aid of legislation.
At the core of this controversy are the two (2) crucial
queries, to wit:
First, are the communications elicited by the
subject three (3) questions covered by executive
privilege?
And second, did respondent Committees commit
grave abuse of discretion in issuing the
contempt Order?
We grant the petition.
At the outset, a glimpse at the landmark case of Senate v.
Ermita18 becomes imperative. Senate draws in bold strokes
the distinction between
the legislative and oversight powers of the Congress, as
embodied under Sections 21 and 22, respectively, of Article
VI of the Constitution, to wit:
SECTION 21. The Senate or the House of
Representatives or any of its respective
committees may conduct inquiries in aid of
legislation in accordance with its duly published
rules of procedure. The rights of persons appearing
in or affected by such inquiries shall be respected.
SECTION 22. The heads of department may upon
their own initiative, with the consent of the
President, or upon the request of either House, or
as the rules of each House shall provide, appear
before and be heard by such House on any matter
pertaining to their departments. Written questions
shall be submitted to the President of the Senate
or the Speaker of the House of Representatives at
least three days before their scheduled
appearance. Interpellations shall not be limited to
written questions, but may cover matters related
thereto. When the security of the state or the
public interest so requires and the President so
 states in writing, the appearance shall be
conducted in executive session.
Senate cautions that while the above provisions are closely
related and complementary to each other, they should not
be considered as pertaining to the same power of Congress.
Section 21 relates to the power to conduct inquiries in aid
of legislation. Its aim is to elicit information that may be
used for legislation. On the other hand, Section 22 pertains
to the power to conduct a question hour, the objective of
which is to obtain information in pursuit of Congress'
oversight function.19 Simply stated, while both powers allow
Congress or any of its committees to conduct inquiry,
their objectives are different.
This distinction gives birth to another distinction with regard
to the use of compulsory process. Unlike in Section 21,
Congress cannot compel the appearance of executive
officials under Section 22. The Court's pronouncement
in Senate v. Ermita20 is clear:
When Congress merely seeks to be informed on
how department heads are implementing the
statutes which it has issued, its right to such
information is not as imperative as that of the
President to whom, as Chief Executive, such
department heads must give a report of their
performance as a matter of duty. In such
instances, Section 22, in keeping with the
separation of powers, states that Congress may
only request their appearance. Nonetheless, when
the inquiry in which Congress requires their
appearance is 'in aid of legislation' under Section
21, the appearance is mandatory for the same
reasons stated in Arnault.
In fine, the oversight function of Congress
may be facilitated by compulsory process
only to the extent that it is performed in
pursuit of legislation. This is consistent with the
intent discerned from the deliberations of the
Constitutional Commission
Ultimately, the power of Congress to compel the
appearance of executive officials under section 21
and the lack of it under Section 22 find their basis
in the principle of separation of powers. While the
executive branch is a co-equal branch of the
legislature, it cannot frustrate the power of
Congress to legislate by refusing to comply with its
demands for information. (Emphasis supplied.)
The availability of the power of judicial review to resolve the
issues raised in this case has also been settled in Senate v.
Ermita, when it held:
As evidenced by the American experience during
the so-called "McCarthy era," however, the right of
Congress to conduct inquiries in aid of legislation
is, in theory, no less susceptible to abuse than
executive or judicial power. It may thus be
subjected to judicial review pursuant to the Court's
certiorari powers under Section 1, Article VIII of
the Constitution.
Hence, this decision.
The Communications Elicited by the Three (3)
Questions are Covered by Executive Privilege
76 | Executive
We start with the basic premises where the parties have
conceded.
The power of Congress to conduct inquiries in aid of
legislation is broad. This is based on the proposition that a
legislative body cannot legislate wisely or effectively in the
absence of information respecting the conditions which the
legislation is intended to affect or change. 21 Inevitably,
adjunct thereto is the compulsory process to enforce it. But,
the power, broad as it is, has limitations. To be valid, it is
imperative that it is done in accordance with the Senate or
House duly published rules of procedure and that the rights
of the persons appearing in or affected by such inquiries be
respected.
The power extends even to executive officials and the only
way for them to be exempted is through a valid claim of
executive privilege.22 This directs us to the consideration of
the question -- is there a recognized claim of executive
privilege despite the revocation of E.O. 464?
A- There is a Recognized Claim
of Executive Privilege Despite the
Revocation of E.O. 464
At this juncture, it must be stressed that the revocation of
E.O. 464 does not in any way diminish our concept of
executive privilege. This is because this concept has
Constitutional underpinnings. Unlike the United States
which has further accorded the concept with statutory
status by enacting the Freedom of Information Act23 and
the Federal Advisory Committee Act,24 the Philippines has
retained its constitutional origination, occasionally
interpreted only by this Court in various cases. The most
recent of these is the case of Senate v. Ermita where this
Court declared unconstitutional substantial portions of E.O.
464. In this regard, it is worthy to note that Executive
Ermita's Letter dated November 15, 2007 limits its bases
for the claim of executive privilege to Senate v.
Ermita, Almonte v. Vasquez,25 and Chavez v. PEA.26 There
was never a mention of E.O. 464.
While these cases, especially Senate v. Ermita,27 have
comprehensively discussed the concept of executive
privilege, we deem it imperative to explore it once more in
view of the clamor for this Court to clearly define the
communications covered by executive privilege.
The Nixon and post-Watergate cases established the broad
contours of the presidential communications
privilege.28 In United States v. Nixon,29 the U.S. Court
recognized a great public interest in preserving "the
confidentiality of conversations that take place in the
President's performance of his official duties." It thus
considered presidential communications as "presumptively
privileged." Apparently, the presumption is founded on the
"President's generalized interest in confidentiality."
The privilege is said to be necessary to guarantee the
candor of presidential advisors and to provide "the
President and those who assist him… with freedom to
explore alternatives in the process of shaping policies
and making decisions and to do so in a way many
would be unwilling to express except privately."
In In Re: Sealed Case,30 the U.S. Court of Appeals delved
deeper. It ruled that there are two (2) kinds of executive
privilege; one is the presidential communications
privilege and, the other is the deliberative process
privilege. The former pertains to "communications,
documents or other materials that reflect presidential
decision-making and deliberations and that the
President believes should remain confidential." The
latter includes 'advisory opinions, recommendations
and deliberations comprising part of a process by
which governmental decisions and policies are
formulated."
Accordingly, they are characterized by marked
distinctions. Presidential communications
privilege applies to decision-making of the
President while, the deliberative process privilege,
to decision-making of executive officials. The first is
rooted in the constitutional principle of separation of power
and the President's unique constitutional role;
the second on common law privilege. Unlike
the deliberative process privilege, the presidential
communications privilege applies to documents in
their entirety, and covers final and post-decisional
materials as well as pre-deliberative ones 31 As a
consequence, congressional or judicial negation of
the presidential communications privilege is always
subject to greater scrutiny than denial of the deliberative
process privilege.
Turning on who are the officials covered by
the presidential communications privilege, In Re:
Sealed Case confines the privilege only to White House Staff
that has "operational proximity" to direct presidential
decision-making. Thus, the privilege is meant to encompass
only those functions that form the core of presidential
authority, involving what the court characterized as
"quintessential and non-delegable Presidential power," such
as commander-in-chief power, appointment and removal
power, the power to grant pardons and reprieves, the sole-
authority to receive ambassadors and other public officers,
the power to negotiate treaties, etc.32
The situation in Judicial Watch, Inc. v. Department of
Justice33 tested the In Re: Sealed Case principles. There,
while the presidential decision involved is the exercise of
the President's pardon power, a non-delegable, core-
presidential function, the Deputy Attorney General and the
Pardon Attorney were deemed to be too remote from the
President and his senior White House advisors to be
protected. The Court conceded that
functionally those officials were performing a task directly
related to the President's pardon power, but concluded that
an organizational test was more appropriate for confining
the potentially broad sweep that would result from the In
Re: Sealed Case's functional test. The majority concluded
that, the lesser protections of the deliberative process
privilege would suffice. That privilege was, however, found
insufficient to justify the confidentiality of the 4,341
withheld documents.
But more specific classifications of communications covered
by executive privilege are made in older cases. Courts ruled
early that the Executive has a right to withhold documents
that might reveal military or state secrets,34 identity of
government informers in some
circumstances,,35 and information related to pending
investigations.36 An area where the privilege is highly
revered is in foreign relations. In United States v.
Curtiss-Wright Export Corp.37 the U.S. Court, citing
President George Washington, pronounced:
The nature of foreign negotiations requires
caution, and their success must often depend on
77 | Executive
secrecy, and even when brought to a conclusion, a
full disclosure of all the measures, demands, or
eventual concessions which may have been
proposed or contemplated would be extremely
impolitic, for this might have a pernicious influence
on future negotiations or produce immediate
inconveniences, perhaps danger and mischief, in
relation to other powers. The necessity of such
caution and secrecy was one cogent reason for
vesting the power of making treaties in the
President, with the advice and consent of the
Senate, the principle on which the body was
formed confining it to a small number of members.
To admit, then, a right in the House of
Representatives to demand and to have as a
matter of course all the papers respecting a
negotiation with a foreign power would be to
establish a dangerous precedent.
Majority of the above jurisprudence have found their way in
our jurisdiction. In Chavez v. PCGG38, this Court held that
there is a "governmental privilege against public disclosure
with respect to state secrets regarding military, diplomatic
and other security matters." In Chavez v. PEA,39 there is
also a recognition of the confidentiality of Presidential
conversations, correspondences, and discussions in closed-
door Cabinet meetings. In Senate v. Ermita, the concept
of presidential communications privilege is fully
discussed.
As may be gleaned from the above discussion, the claim of
executive privilege is highly recognized in cases where the
subject of inquiry relates to a power textually committed by
the Constitution to the President, such as the area of
military and foreign relations. Under our Constitution, the
President is the repository of the commander-in-
chief,40 appointing,41 pardoning,42 and diplomatic43 powers.
Consistent with the doctrine of separation of powers, the
information relating to these powers may enjoy greater
confidentiality than others.
The above cases, especially, Nixon, In Re Sealed
Case and Judicial Watch, somehow provide the elements
of presidential communications privilege, to wit:
1) The protected communication must relate to a
"quintessential and non-delegable presidential
power."
2) The communication must be authored or
"solicited and received" by a close advisor of the
President or the President himself. The judicial test
is that an advisor must be in "operational
proximity" with the President.
3) The presidential communications
privilege remains a qualified privilege that may be
overcome by a showing of adequate need, such
that the information sought "likely contains
important evidence" and by the unavailability of
the information elsewhere by an appropriate
investigating authority.44
In the case at bar, Executive Secretary Ermita premised his
claim of executive privilege on the ground that the
communications elicited by the three (3) questions "fall
under conversation and correspondence between the
President and public officials" necessary in "her executive
and policy decision-making process" and, that "the
information sought to be disclosed might impair our
diplomatic as well as economic relations with the People's
Republic of China." Simply put, the bases are presidential
communications privilege and executive privilege on
matters relating to diplomacy or foreign relations.
Using the above elements, we are convinced that, indeed,
the communications elicited by the three (3) questions are
covered by the presidential communications
privilege. First, the communications relate to a
"quintessential and non-delegable power" of the President,
i.e. the power to enter into an executive agreement with
other countries. This authority of the President to enter
into executive agreements without the concurrence of the
Legislature has traditionally been recognized in Philippine
jurisprudence.45 Second, the communications are
"received" by a close advisor of the President. Under the
"operational proximity" test, petitioner can be considered a
close advisor, being a member of President Arroyo's
cabinet. And third, there is no adequate showing of a
compelling need that would justify the limitation of the
privilege and of the unavailability of the information
elsewhere by an appropriate investigating authority.
The third element deserves a lengthy discussion.
United States v. Nixon held that a claim of executive
privilege is subject to balancing against other interest.
In other words, confidentiality in executive privilege is not
absolutely protected by the Constitution. The U.S. Court
held:
[N]either the doctrine of separation of powers, nor
the need for confidentiality of high-level
communications, without more, can sustain an
absolute, unqualified Presidential privilege of
immunity from judicial process under all
circumstances.
The foregoing is consistent with the earlier case of Nixon v.
Sirica,46 where it was held that presidential
communications are presumptively privileged and that the
presumption can be overcome only by mere showing of
public need by the branch seeking access to conversations.
The courts are enjoined to resolve the competing interests
of the political branches of the government "in the manner
that preserves the essential functions of each
Branch."47 Here, the record is bereft of any categorical
explanation from respondent Committees to show a
compelling or citical need for the answers to the three (3)
questions in the enactment of a law. Instead, the questions
veer more towards the exercise of the legislative oversight
function under Section 22 of Article VI rather than Section
21 of the same Article. Senate v. Ermita ruled that the "the
oversight function of Congress may be facilitated by
compulsory process only to the extent that it is
performed in pursuit of legislation." It is conceded that
it is difficult to draw the line between an inquiry in aid of
legislation and an inquiry in the exercise of oversight
function of Congress. In this regard, much will depend on
the content of the questions and the manner the inquiry is
conducted.
Respondent Committees argue that a claim of executive
privilege does not guard against a possible disclosure of a
crime or wrongdoing. We see no dispute on this. It is
settled in United States v. Nixon48 that "demonstrated,
specific need for evidence in pending criminal trial"
outweighs the President's "generalized interest in
confidentiality." However, the present case's distinction with
the Nixon case is very evident. In Nixon, there is a pending
criminal proceeding where the information is requested and
it is the demands of due process of law and the fair
administration of criminal justice that the information be
disclosed. This is the reason why the U.S. Court was quick
to "limit the scope of its decision." It stressed that it is
"not concerned here with the balance between the
President's generalized interest in confidentiality x x
x and congressional demands for information." Unlike
in Nixon, the information here is elicited, not in a criminal
proceeding, but in a legislative inquiry. In this regard,
78 | Executive
Senate v. Ermita stressed that the validity of the claim of
executive privilege depends not only on the ground invoked
but, also, on the procedural setting or the context in
which the claim is made. Furthermore, in Nixon, the
President did not interpose any claim of need to protect
military, diplomatic or sensitive national security secrets. In
the present case, Executive Secretary Ermita categorically
claims executive privilege on the grounds of presidential
communications privilege in relation to her executive
and policy decision-making process and diplomatic secrets.
The respondent Committees should cautiously tread into
the investigation of matters which may present a conflict of
interest that may provide a ground to inhibit the Senators
participating in the inquiry if later on an impeachment
proceeding is initiated on the same subject matter of the
present Senate inquiry. Pertinently, in Senate Select
Committee on Presidential Campaign Activities v. Nixon,49 it
was held that since an impeachment proceeding had been
initiated by a House Committee, the Senate Select
Committee's immediate oversight need for five presidential
tapes should give way to the House Judiciary Committee
which has the constitutional authority to inquire into
presidential impeachment. The Court expounded on this
issue in this wise:
It is true, of course, that the Executive cannot, any
more than the other branches of government,
invoke a general confidentiality privilege to shield
its officials and employees from investigations by
the proper governmental institutions into possible
criminal wrongdoing. The Congress learned this as
to its own privileges in Gravel v. United States, as
did the judicial branch, in a sense, in Clark v.
United States, and the executive branch itself
in Nixon v. Sirica. But under Nixon v. Sirica, the
showing required to overcome the
presumption favoring confidentiality turned,
not on the nature of the presidential conduct that
the subpoenaed material might reveal, but,
instead, on the nature and appropriateness of
the function in the performance of which the
material was sought, and the degree to which
the material was necessary to its fulfillment.
Here also our task requires and our decision
implies no judgment whatever concerning
possible presidential involvement in culpable
activity. On the contrary, we think the
sufficiency of the Committee's showing must
depend solely on whether the subpoenaed
evidence is demonstrably critical to the
responsible fulfillment of the Committee's
functions.
In its initial briefs here, the Committee argued that
it has shown exactly this. It contended that
resolution, on the basis of the subpoenaed tapes,
of the conflicts in the testimony before it 'would aid
in a determination whether legislative involvement
in political campaigns is necessary' and 'could help
engender the public support needed for basic
reforms in our electoral system.' Moreover,
Congress has, according to the Committee, power
to oversee the operations of the executive branch,
to investigate instances of possible corruption and
malfeasance in office, and to expose the results of
its investigations to public view. The Committee
says that with respect to Watergate-related
matters, this power has been delegated to it by the
Senate, and that to exercise its power responsibly,
it must have access to the subpoenaed tapes.
We turn first to the latter contention. In the
circumstances of this case, we need neither deny
that the Congress may have, quite apart from its
legislative responsibilities, a general oversight
 power, nor explore what the lawful reach of that
power might be under the Committee's constituent
resolution. Since passage of that resolution, the
House Committee on the Judiciary has begun an
inquiry into presidential impeachment. The
investigative authority of the Judiciary Committee
with respect to presidential conduct has an express
constitutional source. x x x We have been shown
no evidence indicating that Congress itself
attaches any particular value to this interest.
In these circumstances, we think the need for
the tapes premised solely on an asserted
power to investigate and inform cannot
justify enforcement of the Committee's
subpoena.
The sufficiency of the Committee's showing of need
has come to depend, therefore, entirely on
whether the subpoenaed materials are critical to
the performance of its legislative functions. There
is a clear difference between Congress' legislative
tasks and the responsibility of a grand jury, or any
institution engaged in like functions. While fact-
finding by a legislative committee is
undeniably a part of its task, legislative
judgments normally depend more on the
predicted consequences of proposed
legislative actions and their political
acceptability, than on precise reconstruction
of past events; Congress frequently legislates on
the basis of conflicting information provided in its
hearings. In contrast, the responsibility of the
grand jury turns entirely on its ability to determine
whether there is probable cause to believe that
certain named individuals did or did not commit
specific crimes. If, for example, as in Nixon v.
Sirica, one of those crimes is perjury concerning
the content of certain conversations, the grand
jury's need for the most precise evidence, the
exact text of oral statements recorded in their
original form, is undeniable. We see no
comparable need in the legislative process, at
least not in the circumstances of this case.
Indeed, whatever force there might once have
been in the Committee's argument that the
subpoenaed materials are necessary to its
legislative judgments has been substantially
undermined by subsequent events. (Emphasis
supplied)
Respondent Committees further contend that the grant of
petitioner's claim of executive privilege violates the
constitutional provisions on the right of the people to
information on matters of public concern.50 We might have
agreed with such contention if petitioner did not appear
before them at all. But petitioner made himself available to
them during the September 26 hearing, where he was
questioned for eleven (11) hours. Not only that, he
expressly manifested his willingness to answer more
questions from the Senators, with the exception only of
those covered by his claim of executive privilege.
The right to public information, like any other right, is
subject to limitation. Section 7 of Article III provides:
The right of the people to information on matters
of public concern shall be recognized. Access to
official records, and to documents, and papers
pertaining to official acts, transactions, or
decisions, as well as to government research data
used as basis for policy development, shall be
afforded the citizen, subject to such limitations
as may be provided by law.
79 | Executive
The provision itself expressly provides the limitation, i.e. as
may be provided by law. Some of these laws are Section
7 of Republic Act (R.A.) No. 6713,51 Article 22952 of the
Revised Penal Code, Section 3 (k)53 of R.A. No. 3019, and
Section 24(e)54 of Rule 130 of the Rules of Court. These are
in addition to what our body of jurisprudence classifies as
confidential55 and what our Constitution considers as
belonging to the larger concept of executive privilege.
Clearly, there is a recognized public interest in the
confidentiality of certain information. We find the
information subject of this case belonging to such kind.
More than anything else, though, the right of Congress or
any of its Committees to obtain information in aid of
legislation cannot be equated with the people's right to
public information. The former cannot claim that every
legislative inquiry is an exercise of the people's right to
information. The distinction between such rights is laid
down in Senate v. Ermita:
There are, it bears noting, clear distinctions
between the right of Congress to information which
underlies the power of inquiry and the right of
people to information on matters of public concern.
For one, the demand of a citizen for the production
of documents pursuant to his right to information
does not have the same obligatory force as
a subpoena duces tecum issued by Congress.
Neither does the right to information grant a
citizen the power to exact testimony from
government officials. These powers belong only to
Congress, not to an individual citizen.
Thus, while Congress is composed of
representatives elected by the people, it does
not follow, except in a highly qualified sense,
that in every exercise of its power of inquiry,
the people are exercising their right to
information.
The members of respondent Committees should not invoke
as justification in their exercise of power a right properly
belonging to the people in general. This is because when
they discharge their power, they do so as public officials
and members of Congress. Be that as it may, the right to
information must be balanced with and should give way, in
appropriate cases, to constitutional precepts particularly
those pertaining to delicate interplay of executive-legislative
powers and privileges which is the subject of careful review
by numerous decided cases.
B- The Claim of Executive Privilege
is Properly Invoked
We now proceed to the issue -- whether the claim is
properly invoked by the President. Jurisprudence
teaches that for the claim to be properly invoked, there
must be a formal claim of privilege, lodged by the head of
the department which has control over the matter."56 A
formal and proper claim of executive privilege requires a
"precise and certain reason" for preserving their
confidentiality.57
The Letter dated November 17, 2007 of Executive Secretary
Ermita satisfies the requirement. It serves as the formal
claim of privilege. There, he expressly states that "this
Office is constrained to invoke the settled doctrine of
executive privilege as refined in Senate v. Ermita, and
has advised Secretary Neri accordingly." Obviously, he
is referring to the Office of the President. That is more than
enough compliance. In Senate v. Ermita, a less categorical
letter was even adjudged to be sufficient.
With regard to the existence of "precise and certain
reason," we find the grounds relied upon by Executive
Secretary Ermita specific enough so as not "to leave
respondent Committees in the dark on how the requested
information could be classified as privileged." The case
of Senate v. Ermita only requires that an allegation be
made "whether the information demanded involves military
or diplomatic secrets, closed-door Cabinet meetings, etc."
The particular ground must only be specified. The
enumeration is not even intended to be
comprehensive."58 The following statement of grounds
satisfies the requirement:
The context in which executive privilege is being
invoked is that the information sought to be
disclosed might impair our diplomatic as well as
economic relations with the People's Republic of
China. Given the confidential nature in which these
information were conveyed to the President, he
cannot provide the Committee any further details
of these conversations, without disclosing the very
thing the privilege is designed to protect.
At any rate, as held further in Senate v. Ermita, 59 the
Congress must not require the executive to state the
reasons for the claim with such particularity as to compel
disclosure of the information which the privilege is meant to
protect. This is a matter of respect to a coordinate and co-
equal department.
II
Respondent Committees Committed Grave Abuse of
Discretion
in Issuing the Contempt Order
Grave abuse of discretion means "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 at all in
contemplation of law."60
It must be reiterated that when respondent Committees
issued the show cause Letter dated November 22, 2007,
petitioner replied immediately, manifesting that it was not
his intention to ignore the Senate hearing and that he
thought the only remaining questions were the three (3)
questions he claimed to be covered by executive privilege.
In addition thereto, he submitted Atty. Bautista's letter,
stating that his non-appearance was upon the order of the
President and specifying the reasons why his conversations
with President Arroyo are covered by executive
privilege. Both correspondences include an expression
of his willingness to testify again, provided he "be
furnished in advance" copies of the questions. Without
responding to his request for advance list of questions,
respondent Committees issued the Order dated January 30,
2008, citing him in contempt of respondent Committees and
ordering his arrest and detention at the Office of the Senate
Sergeant-At-Arms until such time that he would appear and
give his testimony. Thereupon, petitioner filed a motion for
reconsideration, informing respondent Committees that he
had filed the present petition for certiorari.
Respondent Committees committed grave abuse of
discretion in issuing the contempt Order in view of five (5)
reasons.
First, there being a legitimate claim of executive privilege,
the issuance of the contempt Order suffers from
constitutional infirmity.
80 | Executive
Second, respondent Committees did not comply with the
requirement laid down in Senate v. Ermita that the
invitations should contain the "possible needed statute
which prompted the need for the inquiry," along with "the
usual indication of the subject of inquiry and
the questions relative to and in furtherance thereof."
Compliance with this requirement is imperative, both under
Sections 21 and 22 of Article VI of the Constitution. This
must be so to ensure that the rights of both
persons appearing in or affected by such inquiry are
respected as mandated by said Section 21 and by virtue of
the express language of Section 22. Unfortunately, despite
petitioner's repeated demands, respondent Committees did
not send him an advance list of questions.
Third, a reading of the transcript of respondent
Committees' January 30, 2008 proceeding reveals that only
a minority of the members of the Senate Blue Ribbon
Committee was present during the deliberation. 61 Section
18 of the Rules of Procedure Governing Inquiries in Aid of
Legislation provides that:
"The Committee, by a vote of majority of all its
members, may punish for contempt any witness
before it who disobeys any order of the Committee
or refuses to be sworn or to testify or to answer
proper questions by the Committee or any of its
members."
Clearly, the needed vote is a majority of all the members
of the Committee. Apparently, members who did not
actually participate in the deliberation were made to sign
the contempt Order. Thus, there is a cloud of doubt as to
the validity of the contempt Order dated January 30, 2008.
We quote the pertinent portion of the transcript, thus:
THE CHAIRMAN (SEN. CAYETANO, A). For
clarification. x x x The Chair will call either a
caucus or will ask the Committee on Rules if
there is a problem. Meaning, if we do not
have the sufficient numbers. But if we have a
sufficient number, we will just hold a caucus
to be able to implement that right away
because…Again, our Rules provide that any
one held in contempt and ordered arrested,
need the concurrence of a majority of all
members of the said committee and we have
three committees conducting this.
So thank you very much to the members…
SEN. PIMENTEL. Mr. Chairman.
THE CHAIRMAN (SEN. CAYETANO,A). May I
recognize the Minority Leader and give him
the floor, Senator Pimentel.
SEN. PIMENTEL. Mr. Chairman, there is no
problem, I think, with consulting the other
committees. But I am of the opinion that the
Blue Ribbon Committee is the lead
committee, and therefore, it should have
preference in enforcing its own decisions.
Meaning to say, it is not something that is
subject to consultation with other
committees. I am not sure that is the right
interpretation. I think that once we decide
here, we enforce what we decide, because
otherwise, before we know it, our
determination is watered down by delay and,
you know, the so-called "consultation" that
inevitably will have to take place if we follow
the premise that has been explained.
 So my suggestion, Mr. Chairman, is the Blue call witnesses. And if they refure or they disobey
Ribbon Committee should not forget it's the lead not only can we cite them in contempt and have
committee here, and therefore, the will of the lead them arrested. x x x 62
committee prevails over all the other, you, know
reservations that other committees might have
Fourth, we find merit in the argument of the OSG that
who are only secondary or even tertiary
respondent Committees likewise violated Section 21 of
committees, Mr. Chairman.
Article VI of the Constitution, requiring that the inquiry be
in accordance with the "duly published rules of
THE CHAIRMAN (SEN. CAYETANO, A.) Thank procedure." We quote the OSG's explanation:
you very much to the Minority Leader. And I agree
with the wisdom of his statements. I was merely
The phrase 'duly published rules of procedure'
mentioning that under Section 6 of the Rules of the
requires the Senate of every Congress to publish
Committee and under Section 6, "The Committee
its rules of procedure governing inquiries in aid of
by a vote of a majority of all its members may
legislation because every Senate is distinct from
punish for contempt any witness before it who
the one before it or after it. Since Senatorial
disobeys any order of the Committee."
elections are held every three (3) years for one-
half of the Senate's membership, the composition
So the Blue Ribbon Committee is more than willing of the Senate also changes by the end of each
to take that responsibility. But we only have six term. Each Senate may thus enact a different set
members here today, I am the seventh as of rules as it may deem fit. Not having published
chair and so we have not met that number. So its Rules of Procedure, the subject hearings in
I am merely stating that, sir, that when we will aid of legislation conducted by the
prepare the documentation, if a majority of all 14th Senate, are therefore, procedurally
members sign and I am following the Sabio v. infirm.
Gordon rule wherein I do believe, if I am not
mistaken, Chairman Gordon prepared the
And fifth, respondent Committees' issuance of the
documentation and then either in caucus or in
contempt Order is arbitrary and precipitate. It must be
session asked the other members to sign. And
pointed out that respondent Committees did not first pass
once the signatures are obtained, solely for the
upon the claim of executive privilege and inform petitioner
purpose that Secretary Neri or Mr. Lozada will not
of their ruling. Instead, they curtly dismissed his
be able to legally question our subpoena as being
explanation as "unsatisfactory" and simultaneously issued
insufficient in accordance with law.
the Order citing him in contempt and ordering his
immediate arrest and detention.
SEN. PIMENTEL. Mr. Chairman, the caution that
the chair is suggesting is very well-taken. But I'd
A fact worth highlighting is that petitioner is not an
like to advert to the fact that the quorum of the
unwilling witness. He manifested several times his
committee is only two as far as I remember. Any
readiness to testify before respondent Committees. He
two-member senators attending a Senate
refused to answer the three (3) questions because he was
committee hearing provide that quorum, and
ordered by the President to claim executive privilege. It
therefore there is more than a quorum demanded
behooves respondent Committees to first rule on the claim
by our Rules as far as we are concerned now, and
of executive privilege and inform petitioner of their finding
acting as Blue Ribbon Committee, as Senator
thereon, instead of peremptorily dismissing his explanation
Enrile pointed out. In any event, the signatures
as "unsatisfactory." Undoubtedly, respondent Committees'
that will follow by the additional members will only
actions constitute grave abuse of discretion for being
tend to strengthen the determination of this
arbitrary and for denying petitioner due process of law. The
Committee to put its foot forward – put down on
same quality afflicted their conduct when they (a)
what is happening in this country, Mr. Chairman,
disregarded petitioner's motion for reconsideration alleging
because it really looks terrible if the primary
that he had filed the present petition before this Court and
Committee of the Senate, which is the Blue Ribbon
(b) ignored petitioner's repeated request for an advance list
Committee, cannot even sanction people who
of questions, if there be any aside from the three (3)
openly defy, you know, the summons of this
questions as to which he claimed to be covered by
Committee. I know that the Chair is going through
executive privilege.
an agonizing moment here. I know that. But
nonetheless, I think we have to uphold, you know,
the institution that we are representing because Even the courts are repeatedly advised to exercise the
the alternative will be a disaster for all of us, Mr. power of contempt judiciously and sparingly with utmost
Chairman. So having said that, I'd like to reiterate self-restraint with the end in view of utilizing the same for
my point. correction and preservation of the dignity of the court, not
for retaliation or vindication.63 Respondent Committees
should have exercised the same restraint, after all
THE CHAIRMAN (SEN. CAYETANO, A.) First of
petitioner is not even an ordinary witness. He holds a high
all, I agree 100 percent with the intentions of the
position in a co-equal branch of government.
Minority Leader. But let me very respectfully
disagree with the legal requirements.
Because, yes, we can have a hearing if we are In this regard, it is important to mention that many
only two but both under Section 18 of the incidents of judicial review could have been avoided if
Rules of the Senate and under Section 6 of powers are discharged with circumspection and deference.
the Rules of the Blue Ribbon Committee, Concomitant with the doctrine of separation of powers is
there is a need for a majority of all members the mandate to observe respect to a co-equal branch of the
if it is a case of contempt and arrest. So, I am government.
simply trying to avoid the court rebuking the
Committee, which will instead of strengthening will One last word.
weaken us. But I do agree, Mr. Minority Leader,
that we should push for this and show the
executive branch that the well-decided – the issue The Court was accused of attempting to abandon its
has been decided upon the Sabio versus Gordon constitutional duty when it required the parties to consider
case. And it's very clear that we are all allowed to a proposal that would lead to a possible compromise. The
81 | Executive
accusation is far from the truth. The Court did so, only to
test a tool that other jurisdictions find to be effective in
settling similar cases, to avoid a piecemeal consideration of
EN BANC
the questions for review and to avert a constitutional crisis
between the executive and legislative branches of
government. G.R. No. 160261             November 10, 2003

In United States v. American Tel. & Tel Co.,64 the court
refrained from deciding the case because of its desire to
avoid a resolution that might disturb the balance of power
between the two branches and inaccurately reflect their
true needs. Instead, it remanded the record to the District
Court for further proceedings during which the parties are
required to negotiate a settlement. In the subsequent case
of United States v. American Tel. &Tel Co.,65 it was held
that "much of this spirit of compromise is reflected in the
generality of language found in the Constitution." It
proceeded to state:
Under this view, the coordinate branches do not
exist in an exclusively adversary relationship to
one another when a conflict in authority arises.
Rather each branch should take cognizance of an
implicit constitutional mandate to seek optimal
accommodation through a realistic evaluation of
the needs of the conflicting branches in the
particular fact situation.
ERNESTO B. FRANCISCO, JR., petitioner,
NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA
MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND
MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY
SPEAKER JOSE G. DE VENECIA, THE SENATE,
REPRESENTED BY SENATE PRESIDENT FRANKLIN M.
DRILON, REPRESENTATIVE GILBERTO C. TEODORO,
JR. AND REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-
intervention.
x---------------------------------------------------------x
G.R. No. 160262 November 10, 2003

It thereafter concluded that: "The Separation of Powers

often impairs efficiency, in terms of dispatch and the
immediate functioning of government. It is the long-
term staying power of government that is enhanced
by the mutual accommodation required by the
separation of powers."
In rendering this decision, the Court emphasizes once more
that the basic principles of constitutional law cannot be
subordinated to the needs of a particular situation. As
magistrates, our mandate is to rule objectively and
dispassionately, always mindful of Mr. Justice Holmes'
warning on the dangers inherent in cases of this nature,
thus:
"some accident of immediate and overwhelming
interest…appeals to the feelings and distorts the
judgment. These immediate interests exercise a
kind of hydraulic pressure which makes what
previously was clear seem doubtful, and before
which even well settled principles of law will
bend."66
SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR.
AND HENEDINA RAZON-ABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO
QUADRA, petitioners-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE
SPEAKER OR ACTING SPEAKER OR PRESIDING
OFFICER, SPEAKER JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA,
THE SENATE OF THE PHILIPPINES, THROUGH ITS
PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-
intervention.
x---------------------------------------------------------x
G.R. No. 160263 November 10, 2003

In this present crusade to "search for truth," we should turn

ARTURO M. DE CASTRO AND SOLEDAD M.
to the fundamental constitutional principles which underlie
CAGAMPANG, petitioners,
our tripartite system of government, where the Legislature
WORLD WAR II VETERANS LEGIONARIES OF THE
enacts the law, the Judiciary interprets it and the Executive
PHILIPPINES, INC., petitioners-in-intervention,
implements it. They are considered separate, co-equal,
vs.
coordinate and supreme within their respective spheres but,
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE
imbued with a system of checks and balances to prevent
PRESIDENT, AND JOSE G. DE VENECIA, JR., IN HIS
unwarranted exercise of power. The Court's mandate is to
CAPACITY AS SPEAKER OF THE HOUSE OF
preserve these constitutional principles at all times to keep
REPRESENTATIVES, respondents,
the political branches of government within constitutional
JAIME N. SORIANO, respondent-in-intervention,
bounds in the exercise of their respective powers and
SENATOR AQUILINO Q. PIMENTEL, respondent-in-
prerogatives, even if it be in the search for truth. This is the
intervention.
only way we can preserve the stability of our democratic
institutions and uphold the Rule of Law.
x---------------------------------------------------------x
WHEREFORE, the petition is hereby GRANTED. The
subject Order dated January 30, 2008, citing petitioner G.R. No. 160277 November 10, 2003
Romulo L. Neri in contempt of the Senate Committees and
directing his arrest and detention, is hereby nullified. FRANCISCO I. CHAVEZ, petitioner,
WORLD WAR II VETERANS LEGIONARIES OF THE
SO ORDERED. PHILIPPINES, INC., petitioner-in-intervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER

82 | Executive
OF THE HOUSE OF REPRESENTATIVES, FRANKLIN M.
DRILON, IN HIS CAPACITY AS PRESIDENT OF THE
SENATE OF THE REPUBLIC OF THE PHILIPPINES,
GILBERT TEODORO, JR., FELIX WILLIAM
FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT,
KIM BERNARDO-LOKIN, MARCELINO LIBANAN,
EMMYLOU TALIÑO-SANTOS, DOUGLAS CAGAS,
SHERWIN GATCHALIAN, LUIS BERSAMIN, JR.,
NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR
ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO
MARAÑON, JR., CECILIA CARREON-JALOSJOS,
AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU
YUMUL-HERMIDA, JOSE CARLOS LACSON, MANUEL
ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR,
WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL
DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO
BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO,
ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG,
ERIC SINGSON, JACINTO PARAS, JOSE SOLIS,
RENATO MATUBO, HERMINO TEVES, AMADO ESPINO,
JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS
NEPOMUCENO, CONRADO ESTRELLA III, ELIAS
BULUT, JR., JURDIN ROMUALDO, JUAN PABLO
BONDOC, GENEROSO TULAGAN, PERPETUO YLAGAN,
MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS,
CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS
ESCUDERRO, RENE VELARDE, CELSO LOBREGAT,
ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM
MITRA, JOSEPH SANTIAGO, DARLENE ANTONIO-
CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV
BAUTISTA, GREGORIO IPONG, GILBERT REMULLA,
ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI,
BENASING MACARAMBON, JR., JOSEFINA JOSON,
MARK COJUANGCO, MAURICIO DOMOGAN, RONALDO
ZAMORA, ANGELO MONTILLA, ROSELLER BARINAGA,
JESNAR FALCON, REYLINA NICOLAS, RODOLFO
ALBANO, JOAQUIN CHIPECO, JR., AND RUY ELIAS
LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-
intervention.
x---------------------------------------------------------x
G.R. No. 160292 November 10, 2003
HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ
BUTUYAN, MA. CECILIA PAPA, NAPOLEON C. REYES,
ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P.
SERRANO AND GARY S. MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioner-in-intervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND
ROBERTO P. NAZARENO, IN HIS CAPACITY AS
SECRETARY GENERAL OF THE HOUSE OF
REPRESENTATIVES, AND THE HOUSE OF
REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-
intervention.
x---------------------------------------------------------x
G.R. No. 160295 November 10, 2003
SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL
M. GONZALES, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE
SPEAKER OR ACTING SPEAKER OR PRESIDING
OFFICER, SPEAKER JOSE G. DE VENECIA,
83 | Executive
REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA,
THE SENATE OF THE PHILIPPINES, THROUGH ITS
PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-
intervention.
x---------------------------------------------------------x
G.R. No. 160310 November 10, 2003
LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL
DOCTOR, MELVIN MATIBAG, RAMON MIQUIBAS,
RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO
SARMIENTO, EDGARDO NAOE, LEONARDO GARCIA,
EDGARD SMITH, EMETERIO MENDIOLA, MARIO
TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA,
WILFREDO BELLO, JR., RONNIE TOQUILLO, KATE ANN
VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR.,
JAIME BOAQUINA, LITA A. AQUINO, MILA P. GABITO,
JANETTE ARROYO, RIZALDY EMPIG, ERNA LAHUZ,
HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR.,
EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ,
ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY
SENERIS, ANNA CLARISSA LOYOLA, SALVACION
LOYOLA, RAINIER QUIROLGICO, JOSEPH LEANDRO
LOYOLA, ANTONIO LIBREA, FILEMON SIBULO,
MANUEL D. COMIA, JULITO U. SOON, VIRGILIO
LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX
VILLAESTER, AND EDILBERTO GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY
HON. SPEAKER JOSE C. DE VENECIA, JR., THE
SENATE, REPRESENTED BY HON. SENATE PRESIDENT
FRANKLIN DRILON, HON. FELIX FUENTEBELLA, ET
AL., respondents.
x---------------------------------------------------------x
G.R. No. 160318 November 10, 2003
PUBLIC INTEREST CENTER, INC., CRISPIN T.
REYES, petitioners,
vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS,
HOUSE OF REPRESENTATIVES, HON. SENATE
PRESIDENT FRANKLIN M. DRILON, AND ALL
MEMBERS, PHILIPPINE SENATE, respondents.
x---------------------------------------------------------x
G.R. No. 160342 November 10, 2003
ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS
A MEMBER OF THE INTEGRATED BAR OF THE
PHILIPPINES, MANILA III, AND ENGR. MAXIMO N.
MENEZ JR., IN HIS CAPACITY AS A TAXPAYER AND
MEMBER OF THE ENGINEERING
PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY
THE 83 HONORABLE MEMBERS OF THE HOUSE LED BY
HON. REPRESENTATIVE WILLIAM
FUENTEBELLA, respondents.
x---------------------------------------------------------x
G.R. No. 160343 November 10, 2003
INTEGRATED BAR OF THE PHILIPPINES, petitioner,
vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE
SPEAKER OR ACTING SPEAKER OR PRESIDING
OFFICER, SPEAKER JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA,
THE SENATE OF THE PHILIPPINES THROUGH ITS
PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160360 November 10, 2003
CLARO B. FLORES, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE
SPEAKER, AND THE SENATE OF THE PHILIPPINES,
THROUGH THE SENATE PRESIDENT, respondents.
x---------------------------------------------------------x
G.R. No. 160365 November 10, 2003
U.P. LAW ALUMNI CEBU FOUNDATION, INC.,
GOERING G.C. PADERANGA, DANILO V. ORTIZ,
GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V.
DIORES, SR., BENJAMIN S. RALLON, ROLANDO P.
NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA,
KAREN B. CAPARROS-ARQUILLANO, SYLVA G.
AGUIRRE-PADERANGA, FOR THEMSELVES AND IN
BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF
THE PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G.
DE VENECIA, THE SENATE OF THE PHILIPPINES,
SENATE PRESIDENT FRANKLIN DRILON, HOUSE
REPRESENTATIVES FELIX FUENTEBELLA AND
GILBERTO TEODORO, BY THEMSELVES AND AS
REPRESENTATIVES OF THE GROUP OF MORE THAN 80
HOUSE REPRESENTATIVES WHO SIGNED AND FILED
THE IMPEACHMENT COMPLAINT AGAINST SUPREME
COURT CHIEF JUSTICE HILARIO G. DAVIDE,
JR. respondents.
x---------------------------------------------------------x
G.R. No. 160370 November 10, 2003
FR. RANHILIO CALLANGAN AQUINO, petitioner,
vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE
HONORABLE SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents.
x---------------------------------------------------------x
G.R. No. 160376 November 10, 2003
NILO A. MALANYAON, petitioner,
vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT
TEODORO, IN REPRESENTATION OF THE 86
SIGNATORIES OF THE ARTICLES OF IMPEACHMENT
AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR.
AND THE HOUSE OF REPRESENTATIVES, CONGRESS
OF THE PHILIPPINES, REPRESENTED BY ITS
SPEAKER, HON. JOSE G. DE VENECIA, respondents.
x---------------------------------------------------------x
84 | Executive
G.R. No. 160392 November 10, 2003
VENICIO S. FLORES AND HECTOR L.
HOFILEÑA, petitioners,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH
SPEAKER JOSE G. DE VENECIA, AND THE SENATE OF
THE PHILIPPINES, THROUGH SENATE PRESIDENT
FRANKLIN DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160397 November 10, 2003
IN THE MATTER OF THE IMPEACHMENT COMPLAINT
AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR.,
ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.
x---------------------------------------------------------x
G.R. No. 160403 November 10, 2003
PHILIPPINE BAR ASSOCIATION, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE
SPEAKER OR PRESIDING OFFICER, HON. JOSE G. DE
VENECIA, REPRESENTATIVE GILBERTO G. TEODORO,
JR., REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELA, THE SENATE OF THE PHILIPPINES,
THROUGH SENATE PRESIDENT, HON. FRANKLIN
DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160405 November 10, 2003
DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU
CITY CHAPTER, MANUEL M. MONZON, PRESIDING OF
IBP, CEBU PROVINCE, VICTOR A. MAAMBONG,
PROVINCIAL BOARD MEMBER, ADELINO B. SITOY,
DEAN OF THE COLLEG EOF LAW, UNIVERSITY OF
CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC.
[YLAC], REPRSEENTED BY ATTY. MANUEL LEGASPI,
CONFEDERATION OF ACCREDITED MEDIATORS OF
THE PHILIPPINES, INC. [CAMP, INC], REPRESENTED
BY RODERIC R. POCA, MANDAUE LAWYERS
ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE
VELASQUEZ, FEDERACION INTERNACIONAL DE
ABOGADAS [FIDA], REPRESENTED BY THELMA L.
JORDAN, CARLOS G. CO, PRESIENT OF CEBU
CHAMBER OF COMMERCE AND INDUSTRY AND CEBU
LADY LAWYERS ASSOCIATION, INC. [CELLA, INC.],
MARIBELLE NAVARRO AND BERNARDITO FLORIDO,
PAST PRESIDENT CEBU CHAMBER OF COMMERCE AND
INTEGRATED BAR OF THE PHILIPPINES, CEBU
CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY
REP. JOSE G. DE VENECIA, AS HOUSE SPEAKER AND
THE SENATE, REPRESENTED BY SENATOR FRANKLIN
DRILON, AS SENATE PRESIDENT, respondents.
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict,
no matter how passionate and seemingly irreconcilable it
may appear to be, over the determination by the
independent branches of government of the nature, scope
and extent of their respective constitutional powers where
the Constitution itself provides for the means and bases for
its resolution.
Our nation's history is replete with vivid illustrations of the
often frictional, at times turbulent, dynamics of the
relationship among these co-equal branches. This Court is
confronted with one such today involving the legislature and
the judiciary which has drawn legal luminaries to chart
antipodal courses and not a few of our countrymen to vent
cacophonous sentiments thereon.
There may indeed be some legitimacy to the
characterization that the present controversy subject of the
instant petitions – whether the filing of the second
impeachment complaint against Chief Justice Hilario G.
Davide, Jr. with the House of Representatives falls within
the one year bar provided in the Constitution, and whether
the resolution thereof is a political question – has resulted
in a political crisis. Perhaps even more truth to the view
that it was brought upon by a political crisis of conscience.
In any event, it is with the absolute certainty that our
Constitution is sufficient to address all the issues which this
controversy spawns that this Court unequivocally
pronounces, at the first instance, that the feared resort to
extra-constitutional methods of resolving it is neither
necessary nor legally permissible. Both its resolution and
protection of the public interest lie in adherence to, not
departure from, the Constitution.
In passing over the complex issues arising from the
controversy, this Court is ever mindful of the essential truth
that the inviolate doctrine of separation of powers among
the legislative, executive or judicial branches of government
by no means prescribes for absolute autonomy in the
discharge by each of that part of the governmental power
assigned to it by the sovereign people.
At the same time, the corollary doctrine of checks and
balances which has been carefully calibrated by the
Constitution to temper the official acts of each of these
three branches must be given effect without destroying
their indispensable co-equality.
Taken together, these two fundamental doctrines of
republican government, intended as they are to insure that
governmental power is wielded only for the good of the
people, mandate a relationship of interdependence and
coordination among these branches where the delicate
functions of enacting, interpreting and enforcing laws are
harmonized to achieve a unity of governance, guided only
by what is in the greater interest and well-being of the
people. Verily, salus populi est suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public
officers and employees must at all times be
accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act
with patriotism and justice, and lead modest lives.
SECTION 2. The President, the Vice-President, the
Members of the Supreme Court, the Members of
the Constitutional Commissions, and the
Ombudsman may be removed from office, on
impeachment for, and conviction of, culpable
violation of the Constitution, treason, bribery, graft
and corruption, other high crimes, or betrayal of
public trust. All other public officers and employees
may be removed from office as provided by law,
but not by impeachment.
85 | Executive
SECTION 3. (1) The House of Representatives shall
have the exclusive power to initiate all cases of
impeachment.
(2) A verified complaint for impeachment may be
filed by any Member of the House of
Representatives or by any citizen upon a resolution
of endorsement by any Member thereof, which
shall be included in the Order of Business within
ten session days, and referred to the proper
Committee within three session days thereafter.
The Committee, after hearing, and by a majority
vote of all its Members, shall submit its report to
the House within sixty session days from such
referral, together with the corresponding
resolution. The resolution shall be calendared for
consideration by the House within ten session days
from receipt thereof.
(3) A vote of at least one-third of all the Members
of the House shall be necessary either to affirm a
favorable resolution with the Articles of
Impeachment of the Committee, or override its
contrary resolution. The vote of each Member shall
be recorded.
(4) In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the
Members of the House, the same shall constitute
the Articles of Impeachment, and trial by the
Senate shall forthwith proceed.
(5) No impeachment
proceedings shall be initiated against the same
official more than once within a period of one year.
(6) The Senate shall have the sole power to try
and decide all cases of impeachment. When sitting
for that purpose, the Senators shall be on oath or
affirmation. When the President of the Philippines
is on trial, the Chief Justice of the Supreme Court
shall preside, but shall not vote. No person shall be
convicted without the concurrence of two-thirds of
all the Members of the Senate.
(7) Judgment in cases of impeachment shall not
extend further than removal from office and
disqualification to hold any office under the
Republic of the Philippines, but the party convicted
shall nevertheless be liable and subject to
prosecution, trial, and punishment according to
law.
(8) The Congress shall promulgate its rules on
impeachment to effectively carry out the
purpose of this section. (Emphasis and
underscoring supplied)
Following the above-quoted Section 8 of Article XI of the
Constitution, the 12th Congress of the House of
Representatives adopted and approved the Rules of
Procedure in Impeachment Proceedings (House
Impeachment Rules) on November 28, 2001, superseding
the previous House Impeachment Rules1 approved by the
11th Congress. The relevant distinctions between these
two Congresses' House Impeachment Rules are shown in
the following tabulation:
11TH CONGRESS RULES 12TH CON
RULE II

INITIATING IMPEACHMENT
Section 2. Mode of Initiating
Impeachment. – Impeachment shall be
initiated only by a verified complaint for
impeachment filed by any Member of the
House of Representatives or by any
citizen upon a resolution of endorsement
by any Member thereof or by a verified
complaint or resolution of impeachment
filed by at least one-third (1/3) of all the
Members of the House.
RULE V
BAR AGAINST IMPEACHMENT
Section 14. Scope of Bar. – No
impeachment proceedings shall be
initiated against the same official more
than once within the period of one (1)
year.
On July 22, 2002, the House of Representatives adopted a
Resolution,2 sponsored by Representative Felix William D.
Fuentebella, which directed the Committee on Justice "to
conduct an investigation, in aid of legislation, on the
manner of disbursements and expenditures by the Chief
Justice of the Supreme Court of the Judiciary Development
Fund (JDF)."3
On June 2, 2003, former President Joseph E. Estrada filed
an impeachment complaint4 (first impeachment complaint)
against Chief Justice Hilario G. Davide Jr. and seven
Associate Justices5 of this Court for "culpable violation of
the Constitution, betrayal of the public trust and other high
crimes."6 The complaint was endorsed by Representatives
Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang
Dilangalen,7 and was referred to the House Committee on
Justice on August 5, 20038 in accordance with Section 3(2)
of Article XI of the Constitution which reads:
Section 3(2) A verified complaint for impeachment
may be filed by any Member of the House of
Representatives or by any citizen upon a resolution
of endorsement by any Member thereof, which
shall be included in the Order of Business within
86 | Executive
ten session days, and referred to the proper
Committee within three session days thereafter.
BAR AGAINST INITIATION OF after hearing, and by a majority
The Committee,
IMPEACHMENT PROCEEDINGS
vote of all its Members, shall submit its report to
AGAINST THE SAME the OFFICIAL
House within sixty session days from such
referral, together with the corresponding
resolution. The resolution shall be calendared for
Section 16. –
Proceedings Deemedconsideration
Initiated. by the House within ten session days
cases where a Member from
of thereceipt
Housethereof.
files a verified complaint of
impeachment The or a House
citizen Committee
files a verified
on Justice ruled on October 13, 2003
complaint thatthatis endorsed
the first by a Member complaint was "sufficient in
impeachment
of the House through
form,"9 buta resolution
voted to of dismiss the same on October 22, 2003
endorsement against
for being aninsufficient
impeachable in substance.10 To date, the Committee
officer, impeachment
Report to proceedings
this effect has not yet been sent to the House in
against such official
plenary arein deemed
accordance with the said Section 3(2) of Article
initiated on theXIday the Constitution.
of the Committee on
Justice finds that the verified complaint
and/or resolution against such official,
Four months and three weeks since the filing on June 2,
as the case may be, is sufficient in
2003 of the first complaint or on October 23, 2003, a day
substance, or on the date the House
after the House Committee on Justice voted to dismiss it,
votes to overturn or affirm the finding
the second impeachment complaint11 was filed with the
of the said Committee that the verified
Secretary General of the House12 by Representatives
complaint and/or resolution, as the case
Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix
may be, is not sufficient in substance.
William B. Fuentebella (Third District, Camarines Sur)
against Chief Justice Hilario G. Davide, Jr., founded on the
In cases wherealleged
a verified complaint
results or a
of the legislative inquiry initiated by above-
resolution of impeachment
mentioned House is filed or
Resolution. This second impeachment
endorsed, as the case may
complaint wasbe, by at
accompanied by a "Resolution of
least one-thirdEndorsement/Impeachment"
(1/3) of the Members of signed by at least one-third
the House, (1/3) of all the Members of the House of Representatives.13
proceedings are deemed initiated at
the time of the filing of such
Thus arose the instant petitions against the House of
verified complaint or resolution of
Representatives, et. al., most of which petitions contend
impeachment with the Secretary
that the filing of the second impeachment complaint is
General.
unconstitutional as it violates the provision of Section 5 of
Article XI of the Constitution that "[n]o impeachment
  proceedings shall be initiated against the same official more
than once within a period of one year."
Section 17.
Impeachment Proceedings.
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco,
a period of oneJr.,(1)alleging
year from thatthe
he date
has a duty as a member of the
impeachment Integrated
proceedingsBar areofdeemed
the Philippines to use all available legal
initiated as provided
remedies in Section
to stop an 16 unconstitutional impeachment, that the
hereof, no impeachment proceedings,
issues raised in his petition for Certiorari, Prohibition and
as such, can be initiated against the
Mandamus are of transcendental importance, and that he
same official. (Italics
"himselfinwas the aoriginal;
victim of the capricious and arbitrary
emphasis and changes
underscoringin thesupplied)
Rules of Procedure in Impeachment
Proceedings introduced by the 12th Congress,"14 posits that
his right to bring an impeachment complaint against then
Ombudsman Aniano Desierto had been violated due to the
capricious and arbitrary changes in the House Impeachment
Rules adopted and approved on November 28, 2001 by the
House of Representatives and prays that (1) Rule V,
Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9
thereof be declared unconstitutional; (2) this Court issue a
writ of mandamus directing respondents House of
Representatives et. al. to comply with Article IX, Section 3
(2), (3) and (5) of the Constitution, to return the second
impeachment complaint and/or strike it off the records of
the House of Representatives, and to promulgate rules
which are consistent with the Constitution; and (3) this
Court permanently enjoin respondent House of
Representatives from proceeding with the second
impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et.
al., as citizens and taxpayers, alleging that the issues of the
case are of transcendental importance, pray, in their
petition for Certiorari/Prohibition, the issuance of a writ
"perpetually" prohibiting respondent House of
Representatives from filing any Articles of Impeachment
against the Chief Justice with the Senate; and for the
issuance of a writ "perpetually" prohibiting respondents
Senate and Senate President Franklin Drilon from accepting
any Articles of Impeachment against the Chief Justice or, in
the event that the Senate has accepted the same, from
proceeding with the impeachment trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and
Soledad Cagampang, as citizens, taxpayers, lawyers and
members of the Integrated Bar of the Philippines, alleging
that their petition for Prohibition involves public interest as
it involves the use of public funds necessary to conduct the
impeachment trial on the second impeachment complaint,
pray for the issuance of a writ of prohibition enjoining
Congress from conducting further proceedings on said
second impeachment complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez,
alleging that this Court has recognized that he has locus
standi to bring petitions of this nature in the cases
of Chavez v. PCGG15 and Chavez v. PEA-Amari Coastal Bay
Development Corporation,16 prays in his petition for
Injunction that the second impeachment complaint be
declared unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et.
al., as taxpayers and members of the legal profession, pray
in their petition for Prohibition for an order prohibiting
respondent House of Representatives from drafting,
adopting, approving and transmitting to the Senate the
second impeachment complaint, and respondents De
Venecia and Nazareno from transmitting the Articles of
Impeachment to the Senate.
In G.R. No. 160295, petitioners Representatives Salacnib
F. Baterina and Deputy Speaker Raul M. Gonzalez, alleging
that, as members of the House of Representatives, they
have a legal interest in ensuring that only constitutional
impeachment proceedings are initiated, pray in their
petition for Certiorari/Prohibition that the second
impeachment complaint and any act proceeding therefrom
be declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et
al., claiming that they have a right to be protected against
all forms of senseless spending of taxpayers' money and
that they have an obligation to protect the Supreme Court,
the Chief Justice, and the integrity of the Judiciary, allege in
their petition for Certiorari and Prohibition that it is
instituted as "a class suit" and pray that (1) the House
Resolution endorsing the second impeachment complaint as
well as all issuances emanating therefrom be declared null
and void; and (2) this Court enjoin the Senate and the
Senate President from taking cognizance of, hearing, trying
and deciding the second impeachment complaint, and issue
a writ of prohibition commanding the Senate, its
prosecutors and agents to desist from conducting any
proceedings or to act on the impeachment complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc.,
whose members are citizens and taxpayers, and its co-
petitioner Crispin T. Reyes, a citizen, taxpayer and a
member of the Philippine Bar, both allege in their petition,
which does not state what its nature is, that the filing of the
second impeachment complaint involves paramount public
interest and pray that Sections 16 and 17 of the House
Impeachment Rules and the second impeachment
complaint/Articles of Impeachment be declared null and
void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito,
as a citizen and a member of the Philippine Bar Association
and of the Integrated Bar of the Philippines, and petitioner
Engr. Maximo N. Menez, Jr., as a taxpayer, pray in their
petition for the issuance of a Temporary Restraining Order
and Permanent Injunction to enjoin the House of
87 | Executive
Representatives from proceeding with the second
impeachment complaint.
In G.R. No. 160343, petitioner Integrated Bar of the
Philippines, alleging that it is mandated by the Code of
Professional Responsibility to uphold the Constitution, prays
in its petition for Certiorari and Prohibition that Sections 16
and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the
House Impeachment Rules be declared unconstitutional and
that the House of Representatives be permanently enjoined
from proceeding with the second impeachment complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores
prays in his petition for Certiorari and Prohibition that the
House Impeachment Rules be declared unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu
Foundation Inc., et. al., in their petition for Prohibition and
Injunction which they claim is a class suit filed in behalf of
all citizens, citing Oposa v. Factoran17 which was filed in
behalf of succeeding generations of Filipinos, pray for the
issuance of a writ prohibiting respondents House of
Representatives and the Senate from conducting further
proceedings on the second impeachment complaint and that
this Court declare as unconstitutional the second
impeachment complaint and the acts of respondent House
of Representatives in interfering with the fiscal matters of
the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio
Callangan Aquino, alleging that the issues in his petition for
Prohibition are of national and transcendental significance
and that as an official of the Philippine Judicial Academy, he
has a direct and substantial interest in the unhampered
operation of the Supreme Court and its officials in
discharging their duties in accordance with the Constitution,
prays for the issuance of a writ prohibiting the House of
Representatives from transmitting the Articles of
Impeachment to the Senate and the Senate from receiving
the same or giving the impeachment complaint due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a
taxpayer, alleges in his petition for Prohibition that
respondents Fuentebella and Teodoro at the time they filed
the second impeachment complaint, were "absolutely
without any legal power to do so, as they acted without
jurisdiction as far as the Articles of Impeachment assail the
alleged abuse of powers of the Chief Justice to disburse the
(JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S.
Flores and Hector L. Hofileña, alleging that as professors of
law they have an abiding interest in the subject matter of
their petition for Certiorari and Prohibition as it pertains to a
constitutional issue "which they are trying to inculcate in
the minds of their students," pray that the House of
Representatives be enjoined from endorsing and the Senate
from trying the Articles of Impeachment and that the
second impeachment complaint be declared null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr.,
without alleging his locus standi, but alleging that the
second impeachment complaint is founded on the issue of
whether or not the Judicial Development Fund (JDF) was
spent in accordance with law and that the House of
Representatives does not have exclusive jurisdiction in the
examination and audit thereof, prays in his petition "To
Declare Complaint Null and Void for Lack of Cause of Action
and Jurisdiction" that the second impeachment complaint
be declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association,
alleging that the issues raised in the filing of the second
impeachment complaint involve matters of transcendental
importance, prays in its petition for Certiorari/Prohibition
that (1) the second impeachment complaint and all
proceedings arising therefrom be declared null and void; (2)
respondent House of Representatives be prohibited from
transmitting the Articles of Impeachment to the Senate;
and (3) respondent Senate be prohibited from accepting the
Articles of Impeachment and from conducting any
proceedings thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et.
al., as citizens and taxpayers, pray in their petition for
Certiorari/Prohibition that (1) the second impeachment
complaint as well as the resolution of endorsement and
impeachment by the respondent House of Representatives
be declared null and void and (2) respondents Senate and
Senate President Franklin Drilon be prohibited from
accepting any Articles of Impeachment against the Chief
Justice or, in the event that they have accepted the same,
that they be prohibited from proceeding with the
impeachment trial.
Petitions bearing docket numbers G.R. Nos. 160261,
160262 and 160263, the first three of the eighteen which
were filed before this Court,18 prayed for the issuance of a
Temporary Restraining Order and/or preliminary injunction
to prevent the House of Representatives from transmitting
the Articles of Impeachment arising from the second
impeachment complaint to the Senate. Petition bearing
docket number G.R. No. 160261 likewise prayed for the
declaration of the November 28, 2001 House Impeachment
Rules as null and void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277,
160292 and 160295, which were filed on October 28, 2003,
sought similar relief. In addition, petition bearing docket
number G.R. No. 160292 alleged that House Resolution No.
260 (calling for a legislative inquiry into the administration
by the Chief Justice of the JDF) infringes on the
constitutional doctrine of separation of powers and is a
direct violation of the constitutional principle of fiscal
autonomy of the judiciary.
On October 28, 2003, during the plenary session of the
House of Representatives, a motion was put forth that the
second impeachment complaint be formally transmitted to
the Senate, but it was not carried because the House of
Representatives adjourned for lack of quorum,19 and as
reflected above, to date, the Articles of Impeachment have
yet to be forwarded to the Senate.
Before acting on the petitions with prayers for temporary
restraining order and/or writ of preliminary injunction which
were filed on or before October 28, 2003, Justices Puno and
Vitug offered to recuse themselves, but the Court rejected
their offer. Justice Panganiban inhibited himself, but the
Court directed him to participate.
Without necessarily giving the petitions due course, this
Court in its Resolution of October 28, 2003, resolved to (a)
consolidate the petitions; (b) require respondent House of
Representatives and the Senate, as well as the Solicitor
General, to comment on the petitions not later than 4:30
p.m. of November 3, 2003; (c) set the petitions for oral
arguments on November 5, 2003, at 10:00 a.m.; and (d)
appointed distinguished legal experts as amici curiae.20 In
addition, this Court called on petitioners and respondents to
maintain the status quo, enjoining all the parties and others
acting for and in their behalf to refrain from committing acts
that would render the petitions moot.
Also on October 28, 2003, when respondent House of
Representatives through Speaker Jose C. De Venecia, Jr.
and/or its co-respondents, by way of special appearance,
submitted a Manifestation asserting that this Court has no
88 | Executive
jurisdiction to hear, much less prohibit or enjoin the House
of Representatives, which is an independent and co-equal
branch of government under the Constitution, from the
performance of its constitutionally mandated duty to initiate
impeachment cases. On even date, Senator Aquilino Q.
Pimentel, Jr., in his own behalf, filed a Motion to Intervene
(Ex Abudante Cautela)21 and Comment, praying that "the
consolidated petitions be dismissed for lack of jurisdiction of
the Court over the issues affecting the impeachment
proceedings and that the sole power, authority and
jurisdiction of the Senate as the impeachment court to try
and decide impeachment cases, including the one where the
Chief Justice is the respondent, be recognized and upheld
pursuant to the provisions of Article XI of the
Constitution."22
Acting on the other petitions which were subsequently filed,
this Court resolved to (a) consolidate them with the earlier
consolidated petitions; (b) require respondents to file their
comment not later than 4:30 p.m. of November 3, 2003;
and (c) include them for oral arguments on November 5,
2003.
On October 29, 2003, the Senate of the Philippines, through
Senate President Franklin M. Drilon, filed a Manifestation
stating that insofar as it is concerned, the petitions are
plainly premature and have no basis in law or in fact,
adding that as of the time of the filing of the petitions, no
justiciable issue was presented before it since (1) its
constitutional duty to constitute itself as an impeachment
court commences only upon its receipt of the Articles of
Impeachment, which it had not, and (2) the principal issues
raised by the petitions pertain exclusively to the
proceedings in the House of Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition
for Leave to Intervene" in G.R. Nos. 160261, 160262,
160263, 160277, 160292, and 160295, questioning
the status quo Resolution issued by this Court on October
28, 2003 on the ground that it would unnecessarily put
Congress and this Court in a "constitutional deadlock" and
praying for the dismissal of all the petitions as the matter in
question is not yet ripe for judicial determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and
Pete Quirino Quadra filed in G.R. No. 160262 a "Motion for
Leave of Court to Intervene and to Admit the Herein
Incorporated Petition in Intervention."
On November 4, 2003, Nagmamalasakit na mga
Manananggol ng mga Manggagawang Pilipino, Inc. filed a
Motion for Intervention in G.R. No. 160261. On November
5, 2003, World War II Veterans Legionnaires of the
Philippines, Inc. also filed a "Petition-in-Intervention with
Leave to Intervene" in G.R. Nos. 160261, 160262, 160263,
160277, 160292, 160295, and 160310.
The motions for intervention were granted and both
Senator Pimentel's Comment and Attorneys Macalintal and
Quadra's Petition in Intervention were admitted.
On November 5-6, 2003, this Court heard the views of
the amici curiae and the arguments of petitioners,
intervenors Senator Pimentel and Attorney Makalintal, and
Solicitor General Alfredo Benipayo on the principal issues
outlined in an Advisory issued by this Court on November 3,
2003, to wit:
Whether the certiorari jurisdiction of the Supreme
Court may be invoked; who can invoke it; on what
issues and at what time; and whether it should be
exercised by this Court at this time.
 In discussing these issues, the following may be
taken up:
a) locus standi of petitioners;
b) ripeness(prematurity; mootness);
c) political question/justiciability;
d) House's "exclusive" power to initiate all
cases of impeachment;
e) Senate's "sole" power to try and decide
all cases of impeachment;
f) constitutionality of the House Rules on
Impeachment vis-a-vis Section 3(5) of
Article XI of the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and
substantive issues arising from the instant petitions as well
as the myriad arguments and opinions presented for and
against the grant of the reliefs prayed for, this Court has
sifted and determined them to be as follows: (1) the
threshold and novel issue of whether or not the power of
judicial review extends to those arising from impeachment
proceedings; (2) whether or not the essential pre-requisites
for the exercise of the power of judicial review have been
fulfilled; and (3) the substantive issues yet remaining.
These matters shall now be discussed in seriatim.
Judicial Review
As reflected above, petitioners plead for this Court to
exercise the power of judicial review to determine the
validity of the second impeachment complaint.
This Court's power of judicial review is conferred on the
judicial branch of the government in Section 1, Article VIII
of our present 1987 Constitution:
SECTION 1. The judicial power shall be vested in
one Supreme Court and in such lower courts as
may be established by law.
Judicial power includes the duty of the courts
of justice to settle actual controversies involving
rights which are legally demandable and
enforceable, and to determine whether or not
there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of
the government. (Emphasis supplied)
Such power of judicial review was early on exhaustively
expounded upon by Justice Jose P. Laurel in the definitive
1936 case of Angara v. Electoral Commission23 after the
effectivity of the 1935 Constitution whose provisions, unlike
the present Constitution, did not contain the present
provision in Article VIII, Section 1, par. 2 on what judicial
power includes. Thus, Justice Laurel discoursed:
x x x In times of social disquietude or political
excitement, the great landmarks of the
Constitution are apt to be forgotten or marred, if
not entirely obliterated. In cases of conflict, the
judicial department is the only constitutional
organ which can be called upon to determine
the proper allocation of powers between the
89 | Executive
several departments and among the integral
or constituent units thereof.
As any human production, our Constitution is of
course lacking perfection and perfectibility, but as
much as it was within the power of our people,
acting through their delegates to so provide, that
instrument which is the expression of their
sovereignty however limited, has established a
republican government intended to operate and
function as a harmonious whole, under a system of
checks and balances, and subject to specific
limitations and restrictions provided in the said
instrument. The Constitution sets forth in no
uncertain language the restrictions and
limitations upon governmental powers and
agencies. If these restrictions and limitations
are transcended it would be inconceivable if
the Constitution had not provided for a
mechanism by which to direct the course of
government along constitutional channels, for
then the distribution of powers would be mere
verbiage, the bill of rights mere expressions of
sentiment, and the principles of good government
mere political apothegms. Certainly, the limitations
and restrictions embodied in our Constitution are
real as they should be in any living constitution. In
the United States where no express constitutional
grant is found in their constitution, the
possession of this moderating power of the
courts, not to speak of its historical origin and
development there, has been set at rest by popular
acquiescence for a period of more than one and a
half centuries. In our case, this moderating
power is granted, if not expressly, by clear
implication from section 2 of article VIII of
our Constitution.
The Constitution is a definition of the powers of
government. Who is to determine the nature,
scope and extent of such powers? The
Constitution itself has provided for the
instrumentality of the judiciary as the
rational way. And when the judiciary
mediates to allocate constitutional
boundaries, it does not assert any superiority
over the other departments; it does not in reality
nullify or invalidate an act of the legislature,
but only asserts the solemn and sacred
obligation assigned to it by the Constitution
to determine conflicting claims of authority
under the Constitution and to establish for
the parties in an actual controversy the rights
which that instrument secures and
guarantees to them. This is in truth all that is
involved in what is termed "judicial supremacy"
which properly is the power of judicial review
under the Constitution. Even then, this power of
judicial review is limited to actual cases and
controversies to be exercised after full opportunity
of argument by the parties, and limited further to
the constitutional question raised or the very lis
mota presented. Any attempt at abstraction could
only lead to dialectics and barren legal questions
and to sterile conclusions unrelated to actualities.
Narrowed as its function is in this manner, the
judiciary does not pass upon questions of wisdom,
justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality
to legislative enactments, not only because the
legislature is presumed to abide by the
Constitution but also because the judiciary in the
determination of actual cases and controversies
must reflect the wisdom and justice of the people
as expressed through their representatives in the
executive and legislative departments of the
 government.24 (Italics in the original; emphasis
and underscoring supplied)
As pointed out by Justice Laurel, this "moderating power" to
"determine the proper allocation of powers" of the different
branches of government and "to direct the course of
government along constitutional channels" is inherent in all
courts25 as a necessary consequence of the judicial power
itself, which is "the power of the court to settle actual
controversies involving rights which are legally demandable
and enforceable."26
Thus, even in the United States where the power of judicial
review is not explicitly conferred upon the courts by its
Constitution, such power has "been set at rest by popular
acquiescence for a period of more than one and a half
centuries." To be sure, it was in the 1803 leading case
of Marbury v. Madison27 that the power of judicial review
was first articulated by Chief Justice Marshall, to wit:
It is also not entirely unworthy of observation, that
in declaring what shall be the supreme law of the
land, the constitution itself is first mentioned; and
not the laws of the United States generally, but
those only which shall be made in pursuance of the
constitution, have that rank.
Thus, the particular phraseology of the
constitution of the United States confirms and
strengthens the principle, supposed to be
essential to all written constitutions, that a
law repugnant to the constitution is void; and
that courts, as well as other departments, are
bound by that instrument.28 (Italics in the
original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its
express grant in the 1935 Constitution, the power of judicial
review was exercised by our courts to invalidate
constitutionally infirm acts.29 And as pointed out by noted
political law professor and former Supreme Court Justice
Vicente V. Mendoza,30 the executive and legislative
branches of our government in fact effectively
acknowledged this power of judicial review in Article 7 of
the Civil Code, to wit:
Article 7. Laws are repealed only by subsequent
ones, and their violation or non-observance shall
not be excused by disuse, or custom or practice to
the contrary.
When the courts declare a law to be
inconsistent with the Constitution, the former
shall be void and the latter shall govern.
Administrative or executive acts, orders and
regulations shall be valid only when they are
not contrary to the laws or the
Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,31 judicial
review is indeed an integral component of the delicate
system of checks and balances which, together with the
corollary principle of separation of powers, forms the
bedrock of our republican form of government and insures
that its vast powers are utilized only for the benefit of the
people for which it serves.
The separation of powers is a fundamental
principle in our system of government. It
obtains not through express provision but by
actual division in our Constitution. Each
department of the government has exclusive
90 | Executive
cognizance of matters within its jurisdiction, and is
supreme within its own sphere. But it does not
follow from the fact that the three powers are to
be kept separate and distinct that the Constitution
intended them to be absolutely unrestrained and
independent of each other. The Constitution has
provided for an elaborate system of checks
and balances to secure coordination in the
workings of the various departments of the
government. x x x And the judiciary in turn,
with the Supreme Court as the final arbiter,
effectively checks the other departments in
the exercise of its power to determine the
law, and hence to declare executive and
legislative acts void if violative of the
Constitution.32 (Emphasis and underscoring
supplied)
In the scholarly estimation of former Supreme Court Justice
Florentino Feliciano, "x x x judicial review is essential for
the maintenance and enforcement of the separation of
powers and the balancing of powers among the three great
departments of government through the definition and
maintenance of the boundaries of authority and control
between them."33 To him, "[j]udicial review is the chief,
indeed the only, medium of participation – or instrument of
intervention – of the judiciary in that balancing operation." 34
To ensure the potency of the power of judicial review to
curb grave abuse of discretion by "any branch or
instrumentalities of government," the afore-quoted
Section 1, Article VIII of the Constitution engraves, for the
first time into its history, into block letter law the so-called
"expanded certiorari jurisdiction" of this Court, the nature
of and rationale for which are mirrored in the following
excerpt from the sponsorship speech of its proponent,
former Chief Justice Constitutional Commissioner Roberto
Concepcion:
xxx
The first section starts with a sentence copied from former
Constitutions. It says:
The judicial power shall be vested in one Supreme
Court and in such lower courts as may be
established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law.
I will read it first and explain.
Judicial power includes the duty of 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 or instrumentality of the
government.
Fellow Members of this Commission, this is
actually a product of our experience during
martial law. As a matter of fact, it has some
antecedents in the past, but the role of the
judiciary during the deposed regime was
marred considerably by the circumstance that
in a number of cases against the government,
which then had no legal defense at all, the
solicitor general set up the defense of
political questions and got away with it. As a
consequence, certain principles concerning
particularly the writ of habeas corpus, that is, the
 authority of courts to order the release of political
detainees, and other matters related to the
operation and effect of martial law failed because
the government set up the defense of political
question. And the Supreme Court said: "Well, since
it is political, we have no authority to pass upon
it." The Committee on the Judiciary feels that
this was not a proper solution of the
questions involved. It did not merely request
an encroachment upon the rights of the
people, but it, in effect, encouraged further
violations thereof during the martial law
regime. x x x
xxx
Briefly stated, courts of justice determine the
limits of power of the agencies and offices of
the government as well as those of its
officers. In other words, the judiciary is the
final arbiter on the question whether or not a
branch of government or any of its officials
has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to
constitute an abuse of discretion amounting
to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power
but a duty to pass judgment on matters of
this nature.
This is the background of paragraph 2 of Section 1,
which means that the courts cannot hereafter
evade the duty to settle matters of this
nature, by claiming that such matters
constitute a political question.35 (Italics in the
original; emphasis and underscoring supplied)
To determine the merits of the issues raised in the instant
petitions, this Court must necessarily turn to the
Constitution itself which employs the well-settled principles
of constitutional construction.
Second, where there is ambiguity, ratio legis est anima. The
words of the Constitution should be interpreted in
accordance with the intent of its framers. And so did this
Court apply this principle in Civil Liberties Union v.
Executive Secretary38 in this wise:
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.39 (Emphasis and
underscoring supplied)
As it did in Nitafan v. Commissioner on Internal
Revenue40 where, speaking through Madame Justice
Amuerfina A. Melencio-Herrera, it declared:
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.41 (Emphasis and underscoring supplied)

First, verba legis, that is, wherever possible, the words used

Finally, ut magis valeat quam pereat. The Constitution is to
in the Constitution must be given their ordinary
be interpreted as a whole. Thus, in Chiongbian v. De
meaning except where technical terms are employed. Thus,
Leon,42 this Court, through Chief Justice Manuel Moran
in J.M. Tuason & Co., Inc. v. Land Tenure
declared:
Administration,36 this Court, speaking through Chief Justice
Enrique Fernando, declared:
x x x [T]he members of the Constitutional
Convention could not have dedicated a
We look to the language of the document
provision of our Constitution merely for the
itself in our search for its meaning. We do not
benefit of one person without considering
of course stop there, but that is where we
that it could also affect others. When they
begin. It is to be assumed that the words in
adopted subsection 2, they permitted, if not
which constitutional provisions are couched
willed, that said provision should function to
express the objective sought to be attained.
the full extent of its substance and its terms,
They are to be given their ordinary
not by itself alone, but in conjunction with all
meaning except where technical terms are
other provisions of that great
employed in which case the significance thus
document.43 (Emphasis and underscoring
attached to them prevails. As the Constitution
supplied)
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 Likewise, still in Civil Liberties Union v. Executive
language as much as possible should be Secretary,44 this Court affirmed that:
understood in the sense they have in common
use. What it says according to the text of the
It is a well-established rule in constitutional
provision to be construed compels
construction that no one provision of the
acceptance and negates the power of the courts
Constitution is to be separated from all the
to alter it, based on the postulate that the framers
others, to be considered alone, but that all
and the people mean what they say. Thus these
the provisions bearing upon a particular
are the cases where the need for construction is
subject are to be brought into view and to be
reduced to a minimum.37 (Emphasis and
so interpreted as to effectuate the great
underscoring supplied)
purposes of the instrument. Sections bearing
on a particular subject should be considered
and interpreted together as to effectuate the

91 | Executive
 whole purpose of the Constitution and one
section is not to be allowed to defeat another,
if by any reasonable construction, the two
can be made to stand together.
In other words, the court must harmonize them, if
practicable, and must lean in favor of a
construction which will render every word
operative, rather than one which may make the
words idle and nugatory.45 (Emphasis supplied)
If, however, the plain meaning of the word is not found to
be clear, resort to other aids is available. In still the same
case of Civil Liberties Union v. Executive Secretary, this
Court expounded:
While it is permissible in this jurisdiction to consult
the debates and proceedings of the
constitutional convention in order to arrive at the
reason and purpose of the resulting
Constitution, resort thereto may be had only
when other guides fail as said proceedings
are powerless to vary the terms of the
Constitution when the meaning is clear.
Debates in the constitutional convention "are of
value as showing the views of the individual
members, and as indicating the reasons for their
votes, but they give us no light as to the views of
the large majority who did not talk, much less of
the mass of our fellow citizens whose votes at the
polls gave that instrument the force of
fundamental law. We think it safer to construe
the constitution from what appears upon its
face." The proper interpretation therefore
depends more on how it was understood by
the people adopting it than in the framers's
understanding thereof.46 (Emphasis and
underscoring supplied)
It is in the context of the foregoing backdrop of
constitutional refinement and jurisprudential application of
the power of judicial review that respondents Speaker De
Venecia, et. al. and intervenor Senator Pimentel raise the
novel argument that the Constitution has excluded
impeachment proceedings from the coverage of judicial
review.
Briefly stated, it is the position of respondents Speaker De
Venecia et. al. that impeachment is a political action which
cannot assume a judicial character. Hence, any question,
issue or incident arising at any stage of the impeachment
proceeding is beyond the reach of judicial review.47
For his part, intervenor Senator Pimentel contends that the
Senate's "sole power to try" impeachment cases48 (1)
entirely excludes the application of judicial review over it;
and (2) necessarily includes the Senate's power to
determine constitutional questions relative to impeachment
proceedings.49
In furthering their arguments on the proposition that
impeachment proceedings are outside the scope of judicial
review, respondents Speaker De Venecia, et. al. and
intervenor Senator Pimentel rely heavily on American
authorities, principally the majority opinion in the case
of Nixon v. United States.50 Thus, they contend that the
exercise of judicial review over impeachment proceedings is
inappropriate since it runs counter to the framers' decision
to allocate to different fora the powers to try impeachments
and to try crimes; it disturbs the system of checks and
balances, under which impeachment is the only legislative
check on the judiciary; and it would create a lack of finality
and difficulty in fashioning relief.51 Respondents likewise
point to deliberations on the US Constitution to show the
92 | Executive
intent to isolate judicial power of review in cases of
impeachment.
Respondents' and intervenors' reliance upon American
jurisprudence, the American Constitution and American
authorities cannot be credited to support the proposition
that the Senate's "sole power to try and decide
impeachment cases," as provided for under Art. XI, Sec.
3(6) of the Constitution, is a textually demonstrable
constitutional commitment of all issues pertaining to
impeachment to the legislature, to the total exclusion of the
power of judicial review to check and restrain any grave
abuse of the impeachment process. Nor can it reasonably
support the interpretation that it necessarily confers upon
the Senate the inherently judicial power to determine
constitutional questions incident to impeachment
proceedings.
Said American jurisprudence and authorities, much less the
American Constitution, are of dubious application for these
are no longer controlling within our jurisdiction and have
only limited persuasive merit insofar as Philippine
constitutional law is concerned. As held in the case
of Garcia vs. COMELEC,52 "[i]n resolving constitutional
disputes, [this Court] should not be beguiled by foreign
jurisprudence some of which are hardly applicable because
they have been dictated by different constitutional settings
and needs."53 Indeed, although the Philippine Constitution
can trace its origins to that of the United States, their paths
of development have long since diverged. In the colorful
words of Father Bernas, "[w]e have cut the umbilical cord."
The major difference between the judicial power of the
Philippine Supreme Court and that of the U.S. Supreme
Court is that while the power of judicial review is
only impliedly granted to the U.S. Supreme Court and is
discretionary in nature, that granted to the Philippine
Supreme Court and lower courts, as expressly provided for
in the Constitution, is not just a power but also a duty, and
it was given an expanded definition to include the power
to correct any grave abuse of discretion on the part of any
government branch or instrumentality.
There are also glaring distinctions between the U.S.
Constitution and the Philippine Constitution with respect to
the power of the House of Representatives over
impeachment proceedings. While the U.S. Constitution
bestows sole power of impeachment to the House of
Representatives without limitation,54 our Constitution,
though vesting in the House of Representatives the
exclusive power to initiate impeachment cases, 55 provides
for several limitations to the exercise of such power as
embodied in Section 3(2), (3), (4) and (5), Article XI
thereof. These limitations include the manner of filing,
required vote to impeach, and the one year bar on the
impeachment of one and the same official.
Respondents are also of the view that judicial review of
impeachments undermines their finality and may also lead
to conflicts between Congress and the judiciary. Thus, they
call upon this Court to exercise judicial statesmanship on
the principle that "whenever possible, the Court should
defer to the judgment of the people expressed legislatively,
recognizing full well the perils of judicial willfulness and
pride."56
But did not the people also express their will when they
instituted the above-mentioned safeguards in the
Constitution? This shows that the Constitution did not
intend to leave the matter of impeachment to the sole
discretion of Congress. Instead, it provided for certain well-
defined limits, or in the language of Baker v.
Carr,57 "judicially discoverable standards" for determining
the validity of the exercise of such discretion, through the
power of judicial review.
The cases of Romulo v. Yniguez58 and Alejandrino v.
Quezon,59 cited by respondents in support of the argument
that the impeachment power is beyond the scope of judicial
review, are not in point. These cases concern the denial of
petitions for writs of mandamus to compel the legislature to
perform non-ministerial acts, and do not concern the
exercise of the power of judicial review.
There is indeed a plethora of cases in which this Court
exercised the power of judicial review over congressional
action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled
that it is well within the power and jurisdiction of the Court
to inquire whether the Senate or its officials committed a
violation of the Constitution or grave abuse of discretion in
the exercise of their functions and prerogatives. In Tanada
v. Angara,61 in seeking to nullify an act of the Philippine
Senate on the ground that it contravened the Constitution,
it held that the petition raises a justiciable controversy and
that when 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. In Bondoc v. Pineda,62 this Court declared null
and void a resolution of the House of Representatives
withdrawing the nomination, and rescinding the election, of
a congressman as a member of the House Electoral Tribunal
for being violative of Section 17, Article VI of the
Constitution. In Coseteng v. Mitra,63 it held that the
resolution of whether the House representation in the
Commission on Appointments was based on proportional
representation of the political parties as provided in Section
18, Article VI of the Constitution is subject to judicial
review. In Daza v. Singson,64 it held that the act of the
House of Representatives in removing the petitioner from
the Commission on Appointments is subject to judicial
review. In Tanada v. Cuenco,65 it held that although under
the Constitution, the legislative power is vested exclusively
in Congress, this does not detract from the power of the
courts to pass upon the constitutionality of acts of
Congress. In Angara v. Electoral Commission,66 it ruled that
confirmation by the National Assembly of the election of any
member, irrespective of whether his election is contested, is
not essential before such member-elect may discharge the
duties and enjoy the privileges of a member of the National
Assembly.
Finally, there exists no constitutional basis for the
contention that the exercise of judicial review over
impeachment proceedings would upset the system of
checks and balances. Verily, the Constitution is to be
interpreted as a whole and "one section is not to be allowed
to defeat another."67 Both are integral components of the
calibrated system of independence and interdependence
that insures that no branch of government act beyond the
powers assigned to it by the Constitution.
Essential Requisites for Judicial Review
As clearly stated in Angara v. Electoral Commission, the
courts' power of judicial review, like almost all powers
conferred by the Constitution, is subject to several
limitations, namely: (1) an actual case or controversy
calling for the exercise of judicial power; (2) the person
challenging the act must have "standing" to challenge; he
must have a personal and substantial interest in the case
such that he has sustained, or will sustain, direct injury as a
result of its enforcement; (3) the question of
constitutionality must be raised at the earliest possible
opportunity; and (4) the issue of constitutionality must be
the very lis mota of the case.
x x x Even then, this power of judicial review is
limited to actual cases and controversies to be
exercised after full opportunity of argument by the
parties, and limited further to the constitutional
question raised or the very lis mota presented.
93 | Executive
Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile
conclusions unrelated to actualities. Narrowed as
its function is in this manner, the judiciary does
not pass upon questions of wisdom, justice or
expediency of legislation. More than that, courts
accord the presumption of constitutionality to
legislative enactments, not only because the
legislature is presumed to abide by the
Constitution but also because the judiciary in the
determination of actual cases and controversies
must reflect the wisdom and justice of the people
as expressed through their representatives in the
executive and legislative departments of the
government.68 (Italics in the original)
Standing
Locus standi or legal standing or has been defined as a
personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result
of the governmental act that is being challenged. 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.69
Intervenor Soriano, in praying for the dismissal of the
petitions, contends that petitioners do not have standing
since only the Chief Justice has sustained and will sustain
direct personal injury. Amicus curiae former Justice Minister
and Solicitor General Estelito Mendoza similarly contends.
Upon the other hand, the Solicitor General asserts that
petitioners have standing since this Court had, in the past,
accorded standing to taxpayers, voters, concerned citizens,
legislators in cases involving paramount public
interest70 and transcendental importance,71 and that
procedural matters are subordinate to the need to
determine whether or not the other branches of the
government have kept themselves within the limits of the
Constitution and the laws and that they have not abused
the discretion given to them.72 Amicus curiae Dean Raul
Pangalangan of the U.P. College of Law is of the same
opinion, citing transcendental importance and the well-
entrenched rule exception that, when the real party in
interest is unable to vindicate his rights by seeking the
same remedies, as in the case of the Chief Justice who, for
ethical reasons, cannot himself invoke the jurisdiction of
this Court, the courts will grant petitioners standing.
There is, however, a difference between the rule on real-
party-in-interest and the rule on standing, for the former is
a concept of civil procedure73 while the latter has
constitutional underpinnings.74 In view of the arguments set
forth regarding standing, it behooves the Court to reiterate
the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is
meant by locus standi and to distinguish it from real party-
in-interest.
The difference between the rule on standing and
real party in interest has been noted by authorities
thus: "It is important to note . . . that standing
because of its constitutional and public policy
underpinnings, is very different from questions
relating to whether a particular plaintiff is the real
party in interest or has capacity to sue. Although
all three requirements are directed towards
ensuring that only certain parties can maintain an
action, standing restrictions require a partial
consideration of the merits, as well as broader
policy concerns relating to the proper role of the
judiciary in certain areas.
 Standing is a special concern in constitutional law prerogatives as a legislator.82 Indeed, a member of the
because in some cases suits are brought not by House of Representatives has standing to maintain inviolate
parties who have been personally injured by the the prerogatives, powers and privileges vested by the
operation of a law or by official action taken, but Constitution in his office.83
by concerned citizens, taxpayers or voters who
actually sue in the public interest. Hence the
While an association has legal personality to represent its
question in standing is whether such parties have
members,84 especially when it is composed of substantial
"alleged such a personal stake in the outcome of
taxpayers and the outcome will affect their vital
the controversy as to assure that concrete
interests,85 the mere invocation by the Integrated Bar of
adverseness which sharpens the presentation of
the Philippines or any member of the legal profession of the
issues upon which the court so largely depends for
duty to preserve the rule of law and nothing more, although
illumination of difficult constitutional questions."
undoubtedly true, does not suffice to clothe it with
standing. Its interest is too general. It is shared by other
xxx groups and the whole citizenry. However, a reading of the
petitions shows that it has advanced constitutional issues
which deserve the attention of this Court in view of their
On the other hand, the question as to "real party
seriousness, novelty and weight as precedents. 86 It,
in interest" is whether he is "the party who would
therefore, behooves this Court to relax the rules on
be benefited or injured by the judgment, or the
standing and to resolve the issues presented by it.
'party entitled to the avails of the
suit.'"76 (Citations omitted)
In the same vein, when dealing with class suits filed in
behalf of all citizens, persons intervening must be
While rights personal to the Chief Justice may have been
sufficiently numerous to fully protect the interests of all
injured by the alleged unconstitutional acts of the House of
concerned87 to enable the court to deal properly with all
Representatives, none of the petitioners before us asserts a
interests involved in the suit,88 for a judgment in a class
violation of the personal rights of the Chief Justice. On the
suit, whether favorable or unfavorable to the class, is,
contrary, they invariably invoke the vindication of their own
under the res judicata principle, binding on all members of
rights – as taxpayers; members of Congress; citizens,
the class whether or not they were before the
individually or in a class suit; and members of the bar and
court.89 Where it clearly appears that not all interests can
of the legal profession – which were supposedly violated by
be sufficiently represented as shown by the divergent issues
the alleged unconstitutional acts of the House of
raised in the numerous petitions before this Court, G.R. No.
Representatives.
160365 as a class suit ought to fail. Since
petitioners additionally allege standing as citizens and
In a long line of cases, however, concerned citizens, taxpayers, however, their petition will stand.
taxpayers and legislators when specific requirements have
been met have been given standing by this Court.
The Philippine Bar Association, in G.R. No. 160403, invokes
the sole ground of transcendental importance, while Atty.
When suing as a citizen, the interest of the petitioner Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his
assailing the constitutionality of a statute must be direct standing.
and personal. He must be able to show, not only that the
law or any government act is invalid, but also that he
There being no doctrinal definition of transcendental
sustained or is in imminent danger of sustaining some
importance, the following instructive determinants
direct injury as a result of its enforcement, and not merely
formulated by former Supreme Court Justice Florentino P.
that he suffers thereby in some indefinite way. It must
Feliciano are instructive: (1) the character of the funds or
appear that the person complaining has been or is about to
other assets involved in the case; (2) the presence of a
be denied some right or privilege to which he is lawfully
clear case of disregard of a constitutional or statutory
entitled or that he is about to be subjected to some burdens
prohibition by the public respondent agency or
or penalties by reason of the statute or act complained
instrumentality of the government; and (3) the lack of any
of.77 In fine, when the proceeding involves the assertion of
other party with a more direct and specific interest in
a public right,78 the mere fact that he is a citizen satisfies
raising the questions being raised.90 Applying these
the requirement of personal interest.
determinants, this Court is satisfied that the issues raised
herein are indeed of transcendental importance.
In the case of a taxpayer, he is allowed to sue where there
is a claim that public funds are illegally disbursed, or that
In not a few cases, this Court has in fact adopted a liberal
public money is being deflected to any improper purpose, or
attitude on the locus standi of a petitioner where the
that there is a wastage of public funds through the
petitioner is able to craft an issue of transcendental
enforcement of an invalid or unconstitutional law.79 Before
significance to the people, as when the issues raised are of
he can invoke the power of judicial review, however, he
paramount importance to the public.91 Such liberality does
must specifically prove that he has sufficient interest in
not, however, mean that the requirement that a party
preventing the illegal expenditure of money raised by
should have an interest in the matter is totally eliminated. A
taxation and that he would sustain a direct injury as a
party must, at the very least, still plead the existence of
result of the enforcement of the questioned statute or
such interest, it not being one of which courts can take
contract. It is not sufficient that he has merely a general
judicial notice. In petitioner Vallejos' case, he failed to
interest common to all members of the public. 80
allege any interest in the case. He does not thus have
standing.
At all events, courts are vested with discretion as to
whether or not a taxpayer's suit should be
With respect to the motions for intervention, Rule 19,
entertained.81 This Court opts to grant standing to most of
Section 2 of the Rules of Court requires an intervenor to
the petitioners, given their allegation that any impending
possess a legal interest in the matter in litigation, or in the
transmittal to the Senate of the Articles of Impeachment
success of either of the parties, or an interest against both,
and the ensuing trial of the Chief Justice will necessarily
or is so situated as to be adversely affected by a
involve the expenditure of public funds.
distribution or other disposition of property in the custody
of the court or of an officer thereof. While intervention is
As for a legislator, he is allowed to sue to question the not a matter of right, it may be permitted by the courts
validity of any official action which he claims infringes his
94 | Executive
when the applicant shows facts which satisfy the
requirements of the law authorizing intervention.92
In Intervenors Attorneys Romulo Macalintal and Pete
Quirino Quadra's case, they seek to join petitioners
Candelaria, et. al. in G.R. No. 160262. Since, save for one
additional issue, they raise the same issues and the same
standing, and no objection on the part of petitioners
Candelaria, et. al. has been interposed, this Court as earlier
stated, granted the Motion for Leave of Court to Intervene
and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc., et. al. sought to join
petitioner Francisco in G.R. No. 160261. Invoking their right
as citizens to intervene, alleging that "they will suffer if this
insidious scheme of the minority members of the House of
Representatives is successful," this Court found the
requisites for intervention had been complied with.
Alleging that the issues raised in the petitions in G.R. Nos.
160261, 160262, 160263, 160277, 160292, 160295, and
160310 were of transcendental importance, World War II
Veterans Legionnaires of the Philippines, Inc. filed a
"Petition-in-Intervention with Leave to Intervene" to raise
the additional issue of whether or not the second
impeachment complaint against the Chief Justice is valid
and based on any of the grounds prescribed by the
Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc., et al. and World War II
Veterans Legionnaires of the Philippines, Inc. possess a
legal interest in the matter in litigation the respective
motions to intervene were hereby granted.
Senator Aquilino Pimentel, on the other hand, sought to
intervene for the limited purpose of making of record and
arguing a point of view that differs with Senate President
Drilon's. He alleges that submitting to this Court's
jurisdiction as the Senate President does will undermine the
independence of the Senate which will sit as an
impeachment court once the Articles of Impeachment are
transmitted to it from the House of Representatives.
Clearly, Senator Pimentel possesses a legal interest in the
matter in litigation, he being a member of Congress against
which the herein petitions are directed. For this reason, and
to fully ventilate all substantial issues relating to the matter
at hand, his Motion to Intervene was granted and he was,
as earlier stated, allowed to argue.
Lastly, as to Jaime N. Soriano's motion to intervene, the
same must be denied for, while he asserts an interest as a
taxpayer, he failed to meet the standing requirement for
bringing taxpayer's suits as set forth in Dumlao v.
Comelec,93 to wit:
x x x While, concededly, the elections to be held
involve the expenditure of public moneys, nowhere
in their Petition do said petitioners allege that their
tax money is "being extracted and spent in
violation of specific constitutional protection
against abuses of legislative power," or that there
is a misapplication of such funds by respondent
COMELEC, or that public money is being deflected
to any improper purpose. Neither do petitioners
seek to restrain respondent from wasting public
funds through the enforcement of an invalid or
unconstitutional law.94 (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed
even to allege that the act of petitioners will result in illegal
disbursement of public funds or in public money being
deflected to any improper purpose. Additionally, his mere
95 | Executive
interest as a member of the Bar does not suffice to clothe
him with standing.
Ripeness and Prematurity
In Tan v. Macapagal,95 this Court, through Chief Justice
Fernando, held that for a case to be considered ripe for
adjudication, "it is a prerequisite that something had by
then been accomplished or performed by either branch
before a court may come into the picture."96 Only then may
the courts pass on the validity of what was done, if and
when the latter is challenged in an appropriate legal
proceeding.
The instant petitions raise in the main the issue of the
validity of the filing of the second impeachment complaint
against the Chief Justice in accordance with the House
Impeachment Rules adopted by the 12th Congress, the
constitutionality of which is questioned. The questioned acts
having been carried out, i.e., the second impeachment
complaint had been filed with the House of Representatives
and the 2001 Rules have already been already promulgated
and enforced, the prerequisite that the alleged
unconstitutional act should be accomplished and performed
before suit, as Tan v. Macapagal holds, has been complied
with.
Related to the issue of ripeness is the question of whether
the instant petitions are premature. Amicus curiae former
Senate President Jovito R. Salonga opines that there may
be no urgent need for this Court to render a decision at this
time, it being the final arbiter on questions of
constitutionality anyway. He thus recommends that all
remedies in the House and Senate should first be
exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P.
College of Law who suggests to this Court to take judicial
notice of on-going attempts to encourage signatories to the
second impeachment complaint to withdraw their signatures
and opines that the House Impeachment Rules provide for
an opportunity for members to raise constitutional
questions themselves when the Articles of Impeachment
are presented on a motion to transmit to the same to the
Senate. The dean maintains that even assuming that the
Articles are transmitted to the Senate, the Chief Justice can
raise the issue of their constitutional infirmity by way of a
motion to dismiss.
The dean's position does not persuade. First, the withdrawal
by the Representatives of their signatures would not, by
itself, cure the House Impeachment Rules of their
constitutional infirmity. Neither would such a withdrawal, by
itself, obliterate the questioned second impeachment
complaint since it would only place it under the ambit of
Sections 3(2) and (3) of Article XI of the Constitution 97 and,
therefore, petitioners would continue to suffer their injuries.
Second and most importantly, the futility of seeking
remedies from either or both Houses of Congress before
coming to this Court is shown by the fact that, as previously
discussed, neither the House of Representatives nor the
Senate is clothed with the power to rule with definitiveness
on the issue of constitutionality, whether concerning
impeachment proceedings or otherwise, as said power is
exclusively vested in the judiciary by the earlier quoted
Section I, Article VIII of the Constitution. Remedy cannot be
sought from a body which is bereft of power to grant it.
Justiciability
In the leading case of Tanada v. Cuenco,98 Chief Justice
Roberto Concepcion defined the term "political
question," viz:
[T]he term "political question" connotes, in legal
parlance, what it means in ordinary parlance,
namely, a question of policy. In other words, in the
language of Corpus Juris Secundum, it refers to
"those questions which, under the Constitution, are
to be decided by the people in their sovereign
capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or
executive branch of the Government." It is
concerned with issues dependent upon
the wisdom, not legality, of a particular
measure.99 (Italics in the original)
Prior to the 1973 Constitution, without consistency and
seemingly without any rhyme or reason, this Court
vacillated on its stance of taking cognizance of cases which
involved political questions. In some cases, this Court hid
behind the cover of the political question doctrine and
refused to exercise its power of judicial review. 100 In other
cases, however, despite the seeming political nature of the
therein issues involved, this Court assumed jurisdiction
whenever it found constitutionally imposed limits on powers
or functions conferred upon political bodies.101 Even in the
landmark 1988 case of Javellana v. Executive
Secretary102 which raised the issue of whether the 1973
Constitution was ratified, hence, in force, this Court shunted
the political question doctrine and took cognizance thereof.
Ratification by the people of a Constitution is a political
question, it being a question decided by the people in their
sovereign capacity.
The frequency with which this Court invoked the political
question doctrine to refuse to take jurisdiction over certain
cases during the Marcos regime motivated Chief Justice
Concepcion, when he became a Constitutional
Commissioner, to clarify this Court's power of judicial
review and its application on issues involving political
questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding
Officer.
I will speak on the judiciary. Practically, everybody has
made, I suppose, the usual comment that the judiciary is
the weakest among the three major branches of the
service. Since the legislature holds the purse and the
executive the sword, the judiciary has nothing with which to
enforce its decisions or commands except the power of
reason and appeal to conscience which, after all, reflects
the will of God, and is the most powerful of all other powers
without exception. x x x And so, with the body's indulgence,
I will proceed to read the provisions drafted by the
Committee on the Judiciary.
The first section starts with a sentence copied from former
Constitutions. It says:
The judicial power shall be vested in one Supreme
Court and in such lower courts as may be
established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law.
I will read it first and explain.
Judicial power includes the duty of courts of justice
to settle actual controversies involving rights which
are legally demandable and enforceable and to
96 | Executive
determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of
jurisdiction on the part or instrumentality of the
government.
Fellow Members of this Commission, this is actually
a product of our experience during martial law. As
a matter of fact, it has some antecedents in the
past, but the role of the judiciary during the
deposed regime was marred considerably by
the circumstance that in a number of cases
against the government, which then had no
legal defense at all, the solicitor general set
up the defense of political questions and got
away with it. As a consequence, certain
principles concerning particularly the writ
of habeas corpus, that is, the authority of
courts to order the release of political
detainees, and other matters related to the
operation and effect of martial law failed
because the government set up the defense
of political question. And the Supreme Court
said: "Well, since it is political, we have no
authority to pass upon it." The Committee on the
Judiciary feels that this was not a proper
solution of the questions involved. It did not
merely request an encroachment upon the
rights of the people, but it, in effect,
encouraged further violations thereof during
the martial law regime. I am sure the members
of the Bar are familiar with this situation. But for
the benefit of the Members of the Commission who
are not lawyers, allow me to explain. I will start
with a decision of the Supreme Court in 1973 on
the case of Javellana vs. the Secretary of Justice, if
I am not mistaken. Martial law was announced on
September 22, although the proclamation was
dated September 21. The obvious reason for the
delay in its publication was that the administration
had apprehended and detained prominent
newsmen on September 21. So that when martial
law was announced on September 22, the media
hardly published anything about it. In fact, the
media could not publish any story not only because
our main writers were already incarcerated, but
also because those who succeeded them in their
jobs were under mortal threat of being the object
of wrath of the ruling party. The 1971
Constitutional Convention had begun on June 1,
1971 and by September 21 or 22 had not finished
the Constitution; it had barely agreed in the
fundamentals of the Constitution. I forgot to say
that upon the proclamation of martial law, some
delegates to that 1971 Constitutional Convention,
dozens of them, were picked up. One of them was
our very own colleague, Commissioner Calderon.
So, the unfinished draft of the Constitution was
taken over by representatives of Malacañang. In
17 days, they finished what the delegates to the
1971 Constitutional Convention had been unable to
accomplish for about 14 months. The draft of the
1973 Constitution was presented to the President
around December 1, 1972, whereupon the
President issued a decree calling a plebiscite which
suspended the operation of some provisions in the
martial law decree which prohibited discussions,
much less public discussions of certain matters of
public concern. The purpose was presumably to
allow a free discussion on the draft of the
Constitution on which a plebiscite was to be held
sometime in January 1973. If I may use a word
famous by our colleague, Commissioner Ople,
during the interregnum, however, the draft of the
Constitution was analyzed and criticized with such
a telling effect that Malacañang felt the danger of
its approval. So, the President suspended
indefinitely the holding of the plebiscite and
 announced that he would consult the people in a
referendum to be held from January 10 to January
15. But the questions to be submitted in the
referendum were not announced until the eve of its
scheduled beginning, under the supposed
supervision not of the Commission on Elections,
but of what was then designated as "citizens
assemblies or barangays." Thus the barangays
came into existence. The questions to be
propounded were released with proposed answers
thereto, suggesting that it was unnecessary to hold
a plebiscite because the answers given in the
referendum should be regarded as the votes cast
in the plebiscite. Thereupon, a motion was filed
with the Supreme Court praying that the holding of
the referendum be suspended. When the motion
was being heard before the Supreme Court, the
This is why the first part of the second paragraph of Section
Minister of Justice delivered to the Court a
I provides that:
proclamation of the President declaring that the
new Constitution was already in force because the
overwhelming majority of the votes cast in the
referendum favored the Constitution. Immediately
after the departure of the Minister of Justice, I
proceeded to the session room where the case was
being heard. I then informed the Court and the
parties the presidential proclamation declaring that
the 1973 Constitution had been ratified by the
people and is now in force.
A number of other cases were filed to declare the
presidential proclamation null and void. The main
defense put up by the government was that the
issue was a political question and that the court
had no jurisdiction to entertain the case.
xxx
The government said that in a referendum held
from January 10 to January 15, the vast majority
ratified the draft of the Constitution. Note that all
members of the Supreme Court were residents of
Manila, but none of them had been notified of any
referendum in their respective places of residence,
much less did they participate in the alleged
referendum. None of them saw any referendum
proceeding.
In the Philippines, even local gossips spread like
wild fire. So, a majority of the members of the
Court felt that there had been no referendum.
Second, a referendum cannot substitute for a
plebiscite. There is a big difference between a
referendum and a plebiscite. But another
group of justices upheld the defense that the
issue was a political question. Whereupon,
they dismissed the case. This is not the only
major case in which the plea of "political
question" was set up. There have been a
number of other cases in the past.
x x x The defense of the political question was
rejected because the issue was clearly
During the deliberations of the Constitutional Commission,
justiciable.
Chief Justice Concepcion further clarified the concept of
judicial power, thus:
xxx
x x x When your Committee on the Judiciary began
to perform its functions, it faced the following
questions: What is judicial power? What is a
political question?
97 | Executive
The Supreme Court, like all other courts, has one
main function: to settle actual controversies
involving conflicts of rights which are demandable
and enforceable. There are rights which are
guaranteed by law but cannot be enforced by a
judiciary party. In a decided case, a husband
complained that his wife was unwilling to perform
her duties as a wife. The Court said: "We can tell
your wife what her duties as such are and that she
is bound to comply with them, but we cannot force
her physically to discharge her main marital duty
to her husband. There are some rights guaranteed
by law, but they are so personal that to enforce
them by actual compulsion would be highly
derogatory to human dignity."
Judicial power includes the duty of courts to settle
actual controversies involving rights which are
legally demandable or enforceable . . .
The courts, therefore, cannot entertain, much less
decide, hypothetical questions. In a presidential
system of government, the Supreme Court
has, also another important function. The
powers of government are generally
considered divided into three branches: the
Legislative, the Executive and the Judiciary.
Each one is supreme within its own sphere
and independent of the others. Because of
that supremacy power to determine whether
a given law is valid or not is vested in courts
of justice.
Briefly stated, courts of justice determine the
limits of power of the agencies and offices of
the government as well as those of its
officers. In other words, the judiciary is the
final arbiter on the question whether or not a
branch of government or any of its officials
has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to
constitute an abuse of discretion amounting
to excess of jurisdiction or lack of
jurisdiction. This is not only a judicial power
but a duty to pass judgment on matters of
this nature.
This is the background of paragraph 2 of
Section 1, which means that the courts
cannot hereafter evade the duty to settle
matters of this nature, by claiming that such
matters constitute a political question.
I have made these extended remarks to the end
that the Commissioners may have an initial food
for thought on the subject of the
judiciary.103 (Italics in the original; emphasis
supplied)
MR. NOLLEDO. The Gentleman used the term
"judicial power" but judicial power is not
vested in the Supreme Court alone but also in
other lower courts as may be created by law.
MR. CONCEPCION. Yes.
 MR. NOLLEDO. And so, is this only an
example?
MR. CONCEPCION. No, I know this is not. The
Gentleman seems to identify political
questions with jurisdictional questions. But
there is a difference.
MR. NOLLEDO. Because of the expression
"judicial power"?
MR. CONCEPCION. No. Judicial power, as I
said, refers to ordinary cases but where there
is a question as to whether the government
had authority or had abused its authority to
the extent of lacking jurisdiction or excess of
jurisdiction, that is not a political question.
Therefore, the court has the duty to decide.
xxx
FR. BERNAS. Ultimately, therefore, it will always
have to be decided by the Supreme Court
according to the new numerical need for votes.
On another point, is it the intention of Section 1
to do away with the political question
doctrine?
MR. CONCEPCION. No.
FR. BERNAS. It is not.
MR. CONCEPCION. No, because whenever
there is an abuse of discretion, amounting to
a lack of jurisdiction. . .
FR. BERNAS. So, I am satisfied with the
answer that it is not intended to do away
with the political question doctrine.
MR. CONCEPCION. No, certainly not.
When this provision was originally drafted, it
sought to define what is judicial power. But
the Gentleman will notice it says, "judicial
power includes" and the reason being that
the definition that we might make may not
cover all possible areas.
FR. BERNAS. So, this is not an attempt to
solve the problems arising from the political
question doctrine.
MR. CONCEPCION. It definitely does not
eliminate the fact that truly political
questions are beyond the pale of judicial
power.104 (Emphasis supplied)
From the foregoing record of the proceedings of the 1986
Constitutional Commission, it is clear that judicial power is
not only a power; it is also a duty, a duty which cannot be
abdicated by the mere specter of this creature called the
political question doctrine. Chief Justice Concepcion
hastened to clarify, however, that Section 1, Article VIII
was not intended to do away with "truly political questions."
From this clarification it is gathered that there are two
species of political questions: (1) "truly political questions"
and (2) those which "are not truly political questions."
98 | Executive
Truly political questions are thus beyond judicial review, the
reason for respect of the doctrine of separation of powers to
be maintained. On the other hand, by virtue of Section 1,
Article VIII of the Constitution, courts can review questions
which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico
Agabin of the UP College of Law, this Court has in fact in a
number of cases taken jurisdiction over questions which are
not truly political following the effectivity of the present
Constitution.
In Marcos v. Manglapus,105 this Court, speaking through
Madame Justice Irene Cortes, held:
The present Constitution limits resort to the
political question doctrine and broadens the scope
of judicial inquiry into areas which the Court, under
previous constitutions, would have normally left to
the political departments to decide.106 x x x
In Bengzon v. Senate Blue Ribbon Committee,107 through
Justice Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a
task that this Court must perform under the
Constitution. Moreover, as held in a recent
case, "(t)he political question doctrine neither
interposes an obstacle to judicial
determination of the rival claims. The
jurisdiction to delimit constitutional
boundaries has been given to this Court. It
cannot abdicate that obligation mandated by
the 1987 Constitution, although said
provision by no means does away with the
applicability of the principle in appropriate
cases."108 (Emphasis and underscoring supplied)
And in Daza v. Singson,109 speaking through Justice Isagani
Cruz, this Court ruled:
In the case now before us, the jurisdictional
objection becomes even less tenable and decisive.
The reason is that, even if we were to assume that
the issue presented before us was political in
nature, we would still not be precluded from
resolving it under the expanded jurisdiction
conferred upon us that now covers, in proper
cases, even the political question.110 x x x
(Emphasis and underscoring supplied.)
Section 1, Article VIII, of the Court does not define what
are justiciable political questions and non-justiciable
political questions, however. Identification of these two
species of political questions may be problematic. There has
been no clear standard. The American case of Baker v.
Carr111 attempts to provide some:
x x x Prominent on the surface of any case held to
involve a political question is found a textually
demonstrable constitutional commitment of the
issue to a coordinate political department; or
a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of
deciding without an initial policy determination of a
kind clearly for non-judicial discretion; or
the impossibility of a court's undertaking
independent resolution without expressing lack of
the respect due coordinate branches of
government; or an unusual need for questioning
adherence to a political decision already made; or
the potentiality of embarrassment from
multifarious pronouncements by various
 departments on one question.112 (Underscoring
supplied)
Of these standards, the more reliable have been the first
three: (1) a textually demonstrable constitutional
commitment of the issue to a coordinate political
department; (2) the lack of judicially discoverable and
manageable standards for resolving it; and (3) the
impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion.
These standards are not separate and distinct concepts but
are interrelated to each in that the presence of one
strengthens the conclusion that the others are also present.
The problem in applying the foregoing standards is that the
American concept of judicial review is radically different
from our current concept, for Section 1, Article VIII of the
Constitution provides our courts with far less discretion in
determining whether they should pass upon a constitutional
issue.
In our jurisdiction, the determination of a truly political
question from a non-justiciable political question lies in the
answer to the question of whether there are constitutionally
imposed limits on powers or functions conferred upon
political bodies. If there are, then our courts are duty-bound
to examine whether the branch or instrumentality of the
government properly acted within such limits. This Court
shall thus now apply this standard to the present
controversy.
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second
impeachment complaint constitute valid
impeachable offenses under the Constitution.
II. Whether the second impeachment complaint
was filed in accordance with Section 3(4), Article
XI of the Constitution.
III. Whether the legislative inquiry by the House
Committee on Justice into the Judicial
Development Fund is an unconstitutional
infringement of the constitutionally mandated fiscal
autonomy of the judiciary.
IV. Whether Sections 15 and 16 of Rule V of the
Rules on Impeachment adopted by the 12th
Congress are unconstitutional for violating the
provisions of Section 3, Article XI of the
Constitution.
V. Whether the second impeachment complaint is
barred under Section 3(5) of Article XI of the
Constitution.
The first issue goes into the merits of the second
impeachment complaint over which this Court has
no jurisdiction. More importantly, any discussion of
this issue would require this Court to make a
determination of what constitutes an impeachable
offense. Such a determination is a purely political
question which the Constitution has left to the
sound discretion of the legislation. Such an intent
is clear from the deliberations of the Constitutional
Commission.113
Although Section 2 of Article XI of the Constitution
enumerates six grounds for impeachment, two of these,
namely, other high crimes and betrayal of public trust,
elude a precise definition. In fact, an examination of the
records of the 1986 Constitutional Commission shows that
99 | Executive
the framers could find no better way to approximate the
boundaries of betrayal of public trust and other high crimes
than by alluding to both positive and negative examples of
both, without arriving at their clear cut definition or even a
standard therefor.114 Clearly, the issue calls upon this court
to decide a non-justiciable political question which is
beyond the scope of its judicial power under Section 1,
Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue
assailing the constitutionality of a governmental act should
be avoided whenever possible. Thus, in the case of Sotto v.
Commission on Elections,115 this Court held:
x x x It is a well-established rule that a court
should not pass upon a constitutional question and
decide a law to be unconstitutional or invalid,
unless such question is raised by the parties and
that when it is raised, if the record also
presents some other ground upon which the
court may rest its judgment, that course will
be adopted and the constitutional question
will be left for consideration until a case
arises in which a decision upon such question
will be unavoidable.116 [Emphasis and
underscoring supplied]
The same principle was applied in Luz Farms v. Secretary of
Agrarian Reform,117 where this Court invalidated Sections 13
and 32 of Republic Act No. 6657 for being confiscatory and
violative of due process, to wit:
It has been established that this Court will
assume jurisdiction over a constitutional
question only if it is shown that the essential
requisites of a judicial inquiry into such a
question are first satisfied. Thus, there must be
an actual case or controversy involving a conflict of
legal rights susceptible of judicial determination,
the constitutional question must have been
opportunely raised by the proper party, and the
resolution of the question is unavoidably
necessary to the decision of the case
itself.118 [Emphasis supplied]
Succinctly put, courts will not touch the issue of
constitutionality unless it is truly unavoidable and is the
very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all
seeking the invalidity of the second impeachment
complaint, collectively raise several constitutional issues
upon which the outcome of this controversy could possibly
be made to rest. In determining whether one, some or all of
the remaining substantial issues should be passed upon,
this Court is guided by the related cannon of adjudication
that "the court should not form a rule of constitutional law
broader than is required by the precise facts to which it is
applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et
al. argue that, among other reasons, the second
impeachment complaint is invalid since it directly resulted
from a Resolution120 calling for a legislative inquiry into the
JDF, which Resolution and legislative inquiry petitioners
claim to likewise be unconstitutional for being: (a) a
violation of the rules and jurisprudence on investigations in
aid of legislation; (b) an open breach of the doctrine of
separation of powers; (c) a violation of the constitutionally
mandated fiscal autonomy of the judiciary; and (d) an
assault on the independence of the judiciary. 121
Without going into the merits of petitioners Alfonso, et. al.'s
claims, it is the studied opinion of this Court that the issue
of the constitutionality of the said Resolution and resulting
legislative inquiry is too far removed from the issue of the
validity of the second impeachment complaint. Moreover,
the resolution of said issue would, in the Court's opinion,
require it to form a rule of constitutional law touching on
the separate and distinct matter of legislative inquiries in
general, which would thus be broader than is required by
the facts of these consolidated cases. This opinion is further
strengthened by the fact that said petitioners have raised
other grounds in support of their petition which would not
be adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct
of legislative inquiries has already been enunciated by this
Court in Bengzon, Jr. v. Senate Blue Ribbon
Commttee,122 viz:
The 1987 Constitution expressly recognizes the
power of both houses of Congress to conduct
inquiries in aid of legislation. Thus, Section 21,
Article VI thereof provides:
The Senate or the House of Representatives or any
of its respective committees may conduct inquiries
in aid of legislation in accordance with its duly
published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be
respected.
The power of both houses of Congress to conduct
inquiries in aid of legislation is not, therefore
absolute or unlimited. Its exercise is circumscribed
by the afore-quoted provision of the Constitution.
Thus, as provided therein, the investigation must
be "in aid of legislation in accordance with its duly
published rules of procedure" and that "the rights
of persons appearing in or affected by such
inquiries shall be respected." It follows then that
the right rights of persons under the Bill of Rights
must be respected, including the right to due
process and the right not be compelled to testify
against one's self.123
In G.R. No. 160262, intervenors Romulo B. Macalintal and
Pete Quirino Quadra, while joining the original petition of
petitioners Candelaria, et. al., introduce the new argument
that since the second impeachment complaint was verified
and filed only by Representatives Gilberto Teodoro, Jr. and
Felix William Fuentebella, the same does not fall under the
provisions of Section 3 (4), Article XI of the Constitution
which reads:
Section 3(4) In case the verified complaint or
resolution of impeachment is filed by at least one-
third of all the Members of the House, the same
shall constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed.
They assert that while at least 81 members of the House of
Representatives signed a Resolution of
Endorsement/Impeachment, the same did not satisfy the
requisites for the application of the afore-mentioned section
in that the "verified complaint or resolution of
impeachment" was not filed "by at least one-third of all the
Members of the House." With the exception of
Representatives Teodoro and Fuentebella, the signatories to
said Resolution are alleged to have verified the same
merely as a "Resolution of Endorsement." Intervenors point
to the "Verification" of the Resolution of Endorsement which
states that:
100 | Executive
"We are the proponents/sponsors of the Resolution
of Endorsement of the abovementioned Complaint
of Representatives Gilberto Teodoro and Felix
William B. Fuentebella x x x" 124
Intervenors Macalintal and Quadra further claim that what
the Constitution requires in order for said second
impeachment complaint to automatically become the
Articles of Impeachment and for trial in the Senate to begin
"forthwith," is that the verified complaint be "filed," not
merely endorsed, by at least one-third of the Members of
the House of Representatives. Not having complied with this
requirement, they concede that the second impeachment
complaint should have been calendared and referred to the
House Committee on Justice under Section 3(2), Article XI
of the Constitution, viz:
Section 3(2) A verified complaint for impeachment
may be filed by any Member of the House of
Representatives or by any citizen upon a resolution
of endorsement by any Member thereof, which
shall be included in the Order of Business within
ten session days, and referred to the proper
Committee within three session days thereafter.
The Committee, after hearing, and by a majority
vote of all its Members, shall submit its report to
the House within sixty session days from such
referral, together with the corresponding
resolution. The resolution shall be calendared for
consideration by the House within ten session days
from receipt thereof.
Intervenors' foregoing position is echoed by Justice
Maambong who opined that for Section 3 (4), Article XI of
the Constitution to apply, there should be 76 or more
representatives who signed and verified the second
impeachment complaint as complainants, signed and
verified the signatories to a resolution of impeachment.
Justice Maambong likewise asserted that the Resolution of
Endorsement/Impeachment signed by at least one-third of
the members of the House of Representatives
as endorsers is not the resolution of impeachment
contemplated by the Constitution, such resolution of
endorsement being necessary only from at least one
Member whenever a citizen files a verified impeachment
complaint.
While the foregoing issue, as argued by intervenors
Macalintal and Quadra, does indeed limit the scope of the
constitutional issues to the provisions on impeachment,
more compelling considerations militate against its adoption
as the lis mota or crux of the present controversy. Chief
among this is the fact that only Attorneys Macalintal and
Quadra, intervenors in G.R. No. 160262, have raised this
issue as a ground for invalidating the second impeachment
complaint. Thus, to adopt this additional ground as the
basis for deciding the instant consolidated petitions would
not only render for naught the efforts of the original
petitioners in G.R. No. 160262, but the efforts presented by
the other petitioners as well.
Again, the decision to discard the resolution of this issue as
unnecessary for the determination of the instant cases is
made easier by the fact that said intervenors Macalintal and
Quadra have joined in the petition of Candelaria, et.
al., adopting the latter's arguments and issues as their own.
Consequently, they are not unduly prejudiced by this
Court's decision.
In sum, this Court holds that the two remaining issues,
inextricably linked as they are, constitute the very lis mota
of the instant controversy: (1) whether Sections 15 and 16
of Rule V of the House Impeachment Rules adopted by the
12th Congress are unconstitutional for violating the
provisions of Section 3, Article XI of the Constitution; and
(2) whether, as a result thereof, the second impeachment
complaint is barred under Section 3(5) of Article XI of the
Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial
restraint on the ground that the Senate, sitting as an
impeachment court, has the sole power to try and decide all
cases of impeachment. Again, this Court reiterates that the
power of judicial review includes the power of review over
justiciable issues in impeachment proceedings.
On the other hand, respondents Speaker De Venecia et. al.
argue that "[t]here is a moral compulsion for the Court to
not assume jurisdiction over the impeachment because all
the Members thereof are subject to impeachment." 125 But
this argument is very much like saying the Legislature has a
moral compulsion not to pass laws with penalty clauses
because Members of the House of Representatives are
subject to them.
The exercise of judicial restraint over justiciable issues is
not an option before this Court. Adjudication may not be
declined, because this Court is not legally disqualified. Nor
can jurisdiction be renounced as there is no other tribunal
to which the controversy may be referred."126 Otherwise,
this Court would be shirking from its duty vested under Art.
VIII, Sec. 1(2) of the Constitution. More than being clothed
with authority thus, this Court is duty-bound to take
cognizance of the instant petitions.127 In the august words
of amicus curiae Father Bernas, "jurisdiction is not just a
power; it is a solemn duty which may not be renounced. To
renounce it, even if it is vexatious, would be a dereliction of
duty."
Even in cases where it is an interested party, the Court
under our system of government cannot inhibit itself and
must rule upon the challenge because no other office has
the authority to do so.128 On the occasion that this Court
had been an interested party to the controversy before it, it
has acted upon the matter "not with officiousness but in the
discharge of an unavoidable duty and, as always, with
detachment and fairness."129 After all, "by [his] appointment
to the office, the public has laid on [a member of the
judiciary] their confidence that [he] is mentally and morally
fit to pass upon the merits of their varied contentions. For
this reason, they expect [him] to be fearless in [his] pursuit
to render justice, to be unafraid to displease any person,
interest or power and to be equipped with a moral fiber
strong enough to resist the temptations lurking in [his]
office."130
The duty to exercise the power of adjudication regardless of
interest had already been settled in the case of Abbas v.
Senate Electoral Tribunal.131 In that case, the petitioners
filed with the respondent Senate Electoral Tribunal a Motion
for Disqualification or Inhibition of the Senators-Members
thereof from the hearing and resolution of SET Case No.
002-87 on the ground that all of them were interested
parties to said case as respondents therein. This would
have reduced the Tribunal's membership to only its three
Justices-Members whose disqualification was not sought,
leaving them to decide the matter. This Court held:
Where, as here, a situation is created which
precludes the substitution of any Senator sitting in
the Tribunal by any of his other colleagues in the
Senate without inviting the same objections to the
substitute's competence, the proposed mass
disqualification, if sanctioned and ordered, would
leave the Tribunal no alternative but to abandon a
duty that no other court or body can perform, but
101 | Executive
which it cannot lawfully discharge if shorn of the
participation of its entire membership of Senators.
To our mind, this is the overriding consideration —
that the Tribunal be not prevented from
discharging a duty which it alone has the power to
perform, the performance of which is in the
highest public interest as evidenced by its being
expressly imposed by no less than the fundamental
law.
It is aptly noted in the first of the questioned
Resolutions that the framers of the Constitution
could not have been unaware of the possibility of
an election contest that would involve all Senators
—elect, six of whom would inevitably have to sit in
judgment thereon. Indeed, such possibility might
surface again in the wake of the 1992 elections
when once more, but for the last time, all 24 seats
in the Senate will be at stake. Yet the Constitution
provides no scheme or mode for settling such
unusual situations or for the substitution of
Senators designated to the Tribunal whose
disqualification may be sought. Litigants in such
situations must simply place their trust and hopes
of vindication in the fairness and sense of justice of
the Members of the Tribunal. Justices and
Senators, singly and collectively.
Let us not be misunderstood as saying that no
Senator-Member of the Senate Electoral Tribunal
may inhibit or disqualify himself from sitting in
judgment on any case before said Tribunal.
Every Member of the Tribunal may, as his
conscience dictates, refrain from participating in
the resolution of a case where he sincerely feels
that his personal interests or biases would stand in
the way of an objective and impartial judgment.
What we are merely saying is that in the light of
the Constitution, the Senate Electoral Tribunal
cannot legally function as such, absent its entire
membership of Senators and that no amendment
of its Rules can confer on the three Justices-
Members alone the power of valid adjudication of a
senatorial election contest.
More recently in the case of Estrada v. Desierto,132 it was
held that:
Moreover, to disqualify any of the members of the
Court, particularly a majority of them, is nothing
short of pro tanto depriving the Court itself of its
jurisdiction as established by the fundamental law.
Disqualification of a judge is a deprivation of his
judicial power. And if that judge is the one
designated by the Constitution to exercise the
jurisdiction of his court, as is the case with the
Justices of this Court, the deprivation of his or
their judicial power is equivalent to the deprivation
of the judicial power of the court itself. It affects
the very heart of judicial independence. The
proposed mass disqualification, if sanctioned and
ordered, would leave the Court no alternative but
to abandon a duty which it cannot lawfully
discharge if shorn of the participation of its entire
membership of Justices.133 (Italics in the original)
Besides, there are specific safeguards already laid down by
the Court when it exercises its power of judicial review.
In Demetria v. Alba,134 this Court, through Justice Marcelo
Fernan cited the "seven pillars" of limitations of the power
of judicial review, enunciated by US Supreme Court Justice
Brandeis in Ashwander v. TVA135 as follows:
 1. The Court will not pass upon the
constitutionality of legislation in a friendly, non-
adversary proceeding, declining because to decide
such questions 'is legitimate only in the last resort,
and as a necessity in the determination of real,
earnest and vital controversy between individuals.
It never was the thought that, by means of a
friendly suit, a party beaten in the legislature could
transfer to the courts an inquiry as to the
constitutionality of the legislative act.'
2. The Court will not 'anticipate a question of
constitutional law in advance of the necessity of
deciding it.' . . . 'It is not the habit of the Court to
decide questions of a constitutional nature unless
absolutely necessary to a decision of the case.'
3. The Court will not 'formulate a rule of
constitutional law broader than is required by the
precise facts to which it is to be applied.'
4. The Court will not pass upon a constitutional
question although properly presented by the
record, if there is also present some other ground
upon which the case may be disposed of. This rule
has found most varied application. Thus, if a case
can be decided on either of two grounds, one
involving a constitutional question, the other a
question of statutory construction or general law,
the Court will decide only the latter. Appeals from
the highest court of a state challenging its decision
of a question under the Federal Constitution are
frequently dismissed because the judgment can be
sustained on an independent state ground.
5. The Court will not pass upon the validity of a
statute upon complaint of one who fails to show
that he is injured by its operation. Among the
many applications of this rule, none is more
striking than the denial of the right of challenge to
one who lacks a personal or property right. Thus,
the challenge by a public official interested only in
the performance of his official duty will not be
entertained . . . In Fairchild v. Hughes, the Court
affirmed the dismissal of a suit brought by a citizen
who sought to have the Nineteenth Amendment
declared unconstitutional. In Massachusetts v.
Mellon, the challenge of the federal Maternity Act
was not entertained although made by the
Commonwealth on behalf of all its citizens.
6. The Court will not pass upon the
constitutionality of a statute at the instance of one
who has availed himself of its benefits.
7. When the validity of an act of the Congress is
drawn in question, and even if a serious doubt of
constitutionality is raised, it is a cardinal principle
that this Court will first ascertain whether a
construction of the statute is fairly possible by
which the question may be avoided (citations
omitted).
The foregoing "pillars" of limitation of judicial review,
summarized in Ashwander v. TVA from different decisions
of the United States Supreme Court, can be encapsulated
into the following categories:
1. that there be absolute necessity of deciding a
case
102 | Executive
2. that rules of constitutional law shall be
formulated only as required by the facts of the
case
3. that judgment may not be sustained on some
other ground
4. that there be actual injury sustained by the
party by reason of the operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of
constitutionality.
As stated previously, parallel guidelines have been adopted
by this Court in the exercise of judicial review:
1. actual case or controversy calling for the
exercise of judicial power
2. the person challenging the act must have
"standing" to challenge; he must have a personal
and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a
result of its enforcement
3. the question of constitutionality must be raised
at the earliest possible opportunity
4. the issue of constitutionality must be the
very lis mota of the case.136
Respondents Speaker de Venecia, et. al. raise another
argument for judicial restraint the possibility that "judicial
review of impeachments might also lead to embarrassing
conflicts between the Congress and the [J]udiciary." They
stress the need to avoid the appearance of impropriety or
conflicts of interest in judicial hearings, and the scenario
that it would be confusing and humiliating and risk serious
political instability at home and abroad if the judiciary
countermanded the vote of Congress to remove an
impeachable official.137 Intervenor Soriano echoes this
argument by alleging that failure of this Court to enforce its
Resolution against Congress would result in the diminution
of its judicial authority and erode public confidence and
faith in the judiciary.
Such an argument, however, is specious, to say the least.
As correctly stated by the Solicitor General, the possibility
of the occurrence of a constitutional crisis is not a reason
for this Court to refrain from upholding the Constitution in
all impeachment cases. Justices cannot abandon their
constitutional duties just because their action may start, if
not precipitate, a crisis.
Justice Feliciano warned against the dangers when this
Court refuses to act.
x x x Frequently, the fight over a controversial
legislative or executive act is not regarded as
settled until the Supreme Court has passed upon
the constitutionality of the act involved, the
judgment has not only juridical effects but also
political consequences. Those political
consequences may follow even where the Court
fails to grant the petitioner's prayer to nullify an
act for lack of the necessary number of votes.
Frequently, failure to act explicitly, one way or the
other, itself constitutes a decision for the
respondent and validation, or at least quasi-
validation, follows." 138
Thus, in Javellana v. Executive Secretary139 where this Court
was split and "in the end there were not enough votes
either to grant the petitions, or to sustain respondent's
claims,"140 the pre-existing constitutional order was
disrupted which paved the way for the establishment of the
martial law regime.
Such an argument by respondents and intervenor also
presumes that the coordinate branches of the government
would behave in a lawless manner and not do their duty
under the law to uphold the Constitution and obey the laws
of the land. Yet there is no reason to believe that any of the
branches of government will behave in a precipitate manner
and risk social upheaval, violence, chaos and anarchy by
encouraging disrespect for the fundamental law of the land.
Substituting the word public officers for judges, this Court is
well guided by the doctrine in People v. Veneracion,
to wit:141
Obedience to the rule of law forms the bedrock of
our system of justice. If [public officers], under the
guise of religious or political beliefs were allowed
to roam unrestricted beyond boundaries within
which they are required by law to exercise the
duties of their office, then law becomes
meaningless. A government of laws, not of men
excludes the exercise of broad discretionary
powers by those acting under its authority. Under
this system, [public officers] are guided by the
Rule of Law, and ought "to protect and enforce it
without fear or favor," resist encroachments by
governments, political parties, or even the
interference of their own personal beliefs.142
Constitutionality of the Rules of Procedure
for Impeachment Proceedings
adopted by the 12th Congress
Respondent House of Representatives, through Speaker De
Venecia, argues that Sections 16 and 17 of Rule V of the
House Impeachment Rules do not violate Section 3 (5) of
Article XI of our present Constitution, contending that the
term "initiate" does not mean "to file;" that Section 3 (1) is
clear in that it is the House of Representatives, as a
collective body, which has the exclusive power to initiate all
cases of impeachment; that initiate could not possibly mean
"to file" because filing can, as Section 3 (2), Article XI of
the Constitution provides, only be accomplished in 3 ways,
to wit: (1) by a verified complaint for impeachment by any
member of the House of Representatives; or (2) by any
citizen upon a resolution of endorsement by any member;
or (3) by at least 1/3 of all the members of the House.
Respondent House of Representatives concludes that the
one year bar prohibiting the initiation of impeachment
proceedings against the same officials could not have been
violated as the impeachment complaint against Chief Justice
Davide and seven Associate Justices had not been initiated
as the House of Representatives, acting as the collective
body, has yet to act on it.
The resolution of this issue thus hinges on the
interpretation of the term "initiate." Resort to statutory
construction is, therefore, in order.
That the sponsor of the provision of Section 3(5) of the
Constitution, Commissioner Florenz Regalado, who
eventually became an Associate Justice of this Court,
agreed on the meaning of "initiate" as "to file," as proffered
and explained by Constitutional Commissioner Maambong
during the Constitutional Commission proceedings, which he
(Commissioner Regalado) as amicus curiae affirmed during
the oral arguments on the instant petitions held on
November 5, 2003 at which he added that the act of
103 | Executive
"initiating" included the act of taking initial action on the
complaint, dissipates any doubt that indeed the word
"initiate" as it twice appears in Article XI (3) and (5) of the
Constitution means to file the complaint and take initial
action on it.
"Initiate" of course is understood by ordinary men to mean,
as dictionaries do, to begin, to commence, or set going. As
Webster's Third New International Dictionary of the English
Language concisely puts it, it means "to perform
or facilitate the first action," which jibes with Justice
Regalado's position, and that of Father Bernas, who
elucidated during the oral arguments of the instant petitions
on November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is not a
single act. It is a comlexus of acts consisting of a
beginning, a middle and an end. The end is the
transmittal of the articles of impeachment to the
Senate. The middle consists of those deliberative
moments leading to the formulation of the articles
of impeachment. The beginning or the initiation is
the filing of the complaint and its referral to the
Committee on Justice.
Finally, it should be noted that the House Rule
relied upon by Representatives Cojuangco and
Fuentebella says that impeachment is "deemed
initiated" when the Justice Committee votes in
favor of impeachment or when the House reverses
a contrary vote of the Committee. Note that the
Rule does not say "impeachment proceedings" are
initiated but rather are "deemed initiated." The
language is recognition that initiation happened
earlier, but by legal fiction there is an attempt to
postpone it to a time after actual initiation.
(Emphasis and underscoring supplied)
As stated earlier, one of the means of interpreting the
Constitution is looking into the intent of the law.
Fortunately, the intent of the framers of the 1987
Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3,
regarding the procedure and the substantive
provisions on impeachment, I understand there
have been many proposals and, I think, these
would need some time for Committee action.
However, I would just like to indicate that I
submitted to the Committee a resolution on
impeachment proceedings, copies of which have
been furnished the Members of this body. This is
borne out of my experience as a member of the
Committee on Justice, Human Rights and Good
Government which took charge of the last
impeachment resolution filed before the First
Batasang Pambansa. For the information of the
Committee, the resolution covers several
steps in the impeachment
proceedings starting with initiation, action of
the Speaker committee action, calendaring of
report, voting on the report, transmittal
referral to the Senate, trial and judgment by
the Senate.
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not
moving for a reconsideration of the approval of the
amendment submitted by Commissioner Regalado,
but I will just make of record my thinking that we
do not really initiate the filing of the Articles of
Impeachment on the floor. The procedure, as I
 have pointed out earlier, was that the
initiation starts with the filing of the
complaint. And what is actually done on the
floor is that the committee resolution
containing the Articles of Impeachment is the
one approved by the body.
As the phraseology now runs, which may be
corrected by the Committee on Style, it appears
that the initiation starts on the floor. If we only
have time, I could cite examples in the case of the
impeachment proceedings of President Richard
Nixon wherein the Committee on the Judiciary
submitted the recommendation, the resolution,
and the Articles of Impeachment to the body, and
it was the body who approved the resolution. It is
not the body which initiates it. It only
approves or disapproves the resolution. So, on
that score, probably the Committee on Style could
help in rearranging these words because we have
to be very technical about this. I have been
bringing with me The Rules of the House of
Representatives of the U.S. Congress. The Senate
Rules are with me. The proceedings on the case of
Richard Nixon are with me. I have submitted my
proposal, but the Committee has already decided.
Nevertheless, I just want to indicate this on record.
xxx
MR. MAAMBONG. I would just like to move for a
reconsideration of the approval of Section 3 (3).
My reconsideration will not at all affect the
substance, but it is only in keeping with the exact
formulation of the Rules of the House of
Representatives of the United States regarding
impeachment.
I am proposing, Madam President, without doing
damage to any of this provision, that on page 2,
Section 3 (3), from lines 17 to 18, we delete the
words which read: "to initiate impeachment
proceedings" and the comma (,) and insert on
line 19 after the word "resolution" the phrase
WITH THE ARTICLES, and then capitalize the letter
"i" in "impeachment" and replace the word "by"
with OF, so that the whole section will now read:
"A vote of at least one-third of all the Members of
the House shall be necessary either to affirm a
resolution WITH THE ARTICLES of Impeachment
OF the Committee or to override its contrary
resolution. The vote of each Member shall be
recorded."
I already mentioned earlier yesterday that
the initiation, as far as the House of
Representatives of the United States is
concerned, really starts from the filing of the
verified complaint and every resolution to
impeach always carries with it the Articles of
Impeachment. As a matter of fact, the words
"Articles of Impeachment" are mentioned on line
25 in the case of the direct filing of a verified
compliant of one-third of all the Members of the
House. I will mention again, Madam President, that
my amendment will not vary the substance in any
way. It is only in keeping with the uniform
procedure of the House of Representatives of the
United States Congress. Thank you, Madam
President.143 (Italics in the original; emphasis and
udnerscoring supplied)
This amendment proposed by Commissioner Maambong
was clarified and accepted by the Committee on the
Accountability of Public Officers.144
104 | Executive
It is thus clear that the framers intended "initiation" to start
with the filing of the complaint. In his amicus curiae brief,
Commissioner Maambong explained that "the obvious
reason in deleting the phrase "to initiate impeachment
proceedings" as contained in the text of the provision of
Section 3 (3) was to settle and make it understood
once and for all that the initiation of impeachment
proceedings starts with the filing of the
complaint, and the vote of one-third of the House in a
resolution of impeachment does not initiate the
impeachment proceedings which was already initiated
by the filing of a verified complaint under Section 3,
paragraph (2), Article XI of the Constitution."145
Amicus curiae Constitutional Commissioner Regalado is of
the same view as is Father Bernas, who was also a member
of the 1986 Constitutional Commission, that the word
"initiate" as used in Article XI, Section 3(5) means to file,
both adding, however, that the filing must be accompanied
by an action to set the complaint moving.
During the oral arguments before this Court, Father Bernas
clarified that the word "initiate," appearing in the
constitutional provision on impeachment, viz:
Section 3 (1) The House of Representatives shall
have the exclusive power to initiate all cases of
impeachment.
xxx
(5) No impeachment proceedings shall be initiated
against the same official more than once within a
period of one year, (Emphasis supplied)
refers to two objects, "impeachment case" and
"impeachment proceeding."
Father Bernas explains that in these two provisions, the
common verb is "to initiate." The object in the first
sentence is "impeachment case." The object in the second
sentence is "impeachment proceeding." Following the
principle of reddendo singuala sinuilis, the term "cases"
must be distinguished from the term "proceedings." An
impeachment case is the legal controversy that must be
decided by the Senate. Above-quoted first provision
provides that the House, by a vote of one-third of all its
members, can bring a case to the Senate. It is in that sense
that the House has "exclusive power" to initiate all cases of
impeachment. No other body can do it. However, before a
decision is made to initiate a case in the Senate, a
"proceeding" must be followed to arrive at a conclusion. A
proceeding must be "initiated." To initiate, which comes
from the Latin word initium, means to begin. On the other
hand, proceeding is a progressive noun. It has a beginning,
a middle, and an end. It takes place not in the Senate but
in the House and consists of several steps: (1) there is the
filing of a verified complaint either by a Member of the
House of Representatives or by a private citizen endorsed
by a Member of the House of the Representatives; (2) there
is the processing of this complaint by the proper Committee
which may either reject the complaint or uphold it; (3)
whether the resolution of the Committee rejects or upholds
the complaint, the resolution must be forwarded to the
House for further processing; and (4) there is the
processing of the same complaint by the House of
Representatives which either affirms a favorable resolution
of the Committee or overrides a contrary resolution by a
vote of one-third of all the members. If at least one third of
all the Members upholds the complaint, Articles of
Impeachment are prepared and transmitted to the Senate.
It is at this point that the House "initiates an
impeachment case." It is at this point that an impeachable
public official is successfully impeached. That is, he or she is
successfully charged with an impeachment "case" before
the Senate as impeachment court.
Father Bernas further explains: The "impeachment
proceeding" is not initiated when the complaint is
transmitted to the Senate for trial because that is the end
of the House proceeding and the beginning of another
proceeding, namely the trial. Neither is the "impeachment
proceeding" initiated when the House deliberates on the
resolution passed on to it by the Committee, because
something prior to that has already been done. The action
of the House is already a further step in the proceeding, not
its initiation or beginning. Rather, the proceeding is initiated
or begins, when a verified complaint is filed and referred to
the Committee on Justice for action. This is the initiating
step which triggers the series of steps that follow.
The framers of the Constitution also understood initiation in
its ordinary meaning. Thus when a proposal reached the
floor proposing that "A vote of at least one-third of all the
Members of the House shall be necessary… to initiate
impeachment proceedings," this was met by a proposal to
delete the line on the ground that the vote of the House
does not initiate impeachment proceeding but rather the
filing of a complaint does.146 Thus the line was deleted and
is not found in the present Constitution.
Father Bernas concludes that when Section 3 (5) says, "No
impeachment proceeding shall be initiated against the same
official more than once within a period of one year," it
means that no second verified complaint may be accepted
and referred to the Committee on Justice for action. By his
explanation, this interpretation is founded on the common
understanding of the meaning of "to initiate" which means
to begin. He reminds that the Constitution is ratified by the
people, both ordinary and sophisticated, as they understand
it; and that ordinary people read ordinary meaning into
ordinary words and not abstruse meaning, they ratify words
as they understand it and not as sophisticated lawyers
confuse it.
To the argument that only the House of Representatives as
a body can initiate impeachment proceedings because
Section 3 (1) says "The House of Representatives shall have
the exclusive power to initiate all cases of impeachment,"
This is a misreading of said provision and is contrary to the
principle of reddendo singula singulis by equating
"impeachment cases" with "impeachment proceeding."
From the records of the Constitutional Commission, to
the amicus curiae briefs of two former Constitutional
Commissioners, it is without a doubt that the term "to
initiate" refers to the filing of the impeachment complaint
coupled with Congress' taking initial action of said
complaint.
Having concluded that the initiation takes place by the act
of filing and referral or endorsement of the impeachment
complaint to the House Committee on Justice or, by the
filing by at least one-third of the members of the House of
Representatives with the Secretary General of the House,
the meaning of Section 3 (5) of Article XI becomes clear.
Once an impeachment complaint has been initiated, another
impeachment complaint may not be filed against the same
official within a one year period.
Under Sections 16 and 17 of Rule V of the House
Impeachment Rules, impeachment proceedings are deemed
initiated (1) if there is a finding by the House Committee on
Justice that the verified complaint and/or resolution is
sufficient in substance, or (2) once the House itself affirms
or overturns the finding of the Committee on Justice that
the verified complaint and/or resolution is not sufficient in
substance or (3) by the filing or endorsement before the
105 | Executive
Secretary-General of the House of Representatives of a
verified complaint or a resolution of impeachment by at
least 1/3 of the members of the House. These rules clearly
contravene Section 3 (5) of Article XI since the rules give
the term "initiate" a meaning different meaning from filing
and referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that
this Court could not use contemporaneous construction as
an aid in the interpretation of Sec.3 (5) of Article XI,
citing Vera v. Avelino147 wherein this Court stated that
"their personal opinions (referring to Justices who were
delegates to the Constitution Convention) on the matter at
issue expressed during this Court's our deliberations stand
on a different footing from the properly recorded utterances
of debates and proceedings." Further citing said case, he
states that this Court likened the former members of the
Constitutional Convention to actors who are so absorbed in
their emotional roles that intelligent spectators may know
more about the real meaning because of the latter's
balanced perspectives and disinterestedness.148
Justice Gutierrez's statements have no application in the
present petitions. There are at present only two members
of this Court who participated in the 1986 Constitutional
Commission – Chief Justice Davide and Justice Adolf
Azcuna. Chief Justice Davide has not taken part in these
proceedings for obvious reasons. Moreover, this Court has
not simply relied on the personal opinions now given by
members of the Constitutional Commission, but has
examined the records of the deliberations and proceedings
thereof.
Respondent House of Representatives counters that under
Section 3 (8) of Article XI, it is clear and unequivocal that it
and only it has the power to make and interpret its rules
governing impeachment. Its argument is premised on the
assumption that Congress has absolute power to
promulgate its rules. This assumption, however, is
misplaced.
Section 3 (8) of Article XI provides that "The Congress shall
promulgate its rules on impeachment to effectively carry
out the purpose of this section." Clearly, its power to
promulgate its rules on impeachment is limited by the
phrase "to effectively carry out the purpose of this section."
Hence, these rules cannot contravene the very purpose of
the Constitution which said rules were intended to
effectively carry out. Moreover, Section 3 of Article XI
clearly provides for other specific limitations on its power to
make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be
filed by any Member of the House of
Representatives or by any citizen upon a resolution
of endorsement by any Member thereof, which
shall be included in the Order of Business within
ten session days, and referred to the proper
Committee within three session days thereafter.
The Committee, after hearing, and by a majority
vote of all its Members, shall submit its report to
the House within sixty session days from such
referral, together with the corresponding
resolution. The resolution shall be calendared for
consideration by the House within ten session days
from receipt thereof.
(3) A vote of at least one-third of all the Members
of the House shall be necessary to either affirm a
favorable resolution with the Articles of
Impeachment of the Committee, or override its
 contrary resolution. The vote of each Member shall
be recorded.
(4) In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the
Members of the House, the same shall constitute
the Articles of Impeachment, and trial by the
Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated
against the same official more than once within a
period of one year.
It is basic that all rules must not contravene the
Constitution which is the fundamental law. If as alleged
Congress had absolute rule making power, then it would by
necessary implication have the power to alter or amend the
meaning of the Constitution without need of referendum.
In Osmeña v. Pendatun,149 this Court held that it is within
the province of either House of Congress to interpret its
rules and that it was the best judge of what constituted
"disorderly behavior" of its members. However, in Paceta v.
Secretary of the Commission on Appointments,150 Justice
(later Chief Justice) Enrique Fernando, speaking for this
Court and quoting Justice Brandeis in United States v.
Smith,151 declared that where the construction to be given
to a rule affects persons other than members of the
Legislature, the question becomes judicial in nature.
In Arroyo v. De Venecia,152 quoting United States v. Ballin,
Joseph & Co.,153 Justice Vicente Mendoza, speaking for this
Court, held that while the Constitution empowers each
house to determine its rules of proceedings, it may not by
its rules ignore constitutional restraints or violate
fundamental rights, and further that there should be a
reasonable relation between the mode or method of
proceeding established by the rule and the result which is
sought to be attained. It is only within these limitations that
all matters of method are open to the determination of the
Legislature. In the same case of Arroyo v. De Venecia,
Justice Reynato S. Puno, in his Concurring and Dissenting
Opinion, was even more emphatic as he stressed that in the
Philippine setting there is even more reason for courts to
inquire into the validity of the Rules of Congress, viz:
With due respect, I do not agree that the
issues posed by the petitioner are non-
justiciable. Nor do I agree that we will
trivialize the principle of separation of power
if we assume jurisdiction over he case at
bar. Even in the United States, the principle of
separation of power is no longer an impregnable
impediment against the interposition of judicial
power on cases involving breach of rules of
procedure by legislators.
Rightly, the ponencia uses the 1891 case of US v
Ballin (144 US 1) as a window to view the issues
before the Court. It is in Ballin where the US
Supreme Court first defined the boundaries of the
power of the judiciary to review congressional
rules. It held:
"x x x
"The Constitution, in the same section, provides,
that each house may determine the rules of its
proceedings." It appears that in pursuance of this
authority the House had, prior to that day, passed
this as one of its rules:
Rule XV
106 | Executive
3. On the demand of any member, or at the
suggestion of the Speaker, the names of members
sufficient to make a quorum in the hall of the
House who do not vote shall be noted by the clerk
and recorded in the journal, and reported to the
Speaker with the names of the members voting,
and be counted and announced in determining the
presence of a quorum to do business. (House
Journal, 230, Feb. 14, 1890)
The action taken was in direct compliance with this
rule. The question, therefore, is as to
the validity of this rule, and not what methods
the Speaker may of his own motion resort to for
determining the presence of a quorum, nor what
matters the Speaker or clerk may of their own
volition place upon the journal. Neither do the
advantages or disadvantages, the wisdom or folly,
of such a rule present any matters for judicial
consideration. With the courts the question is only
one of power. The Constitution empowers each
house to determine its rules of proceedings.
It may not by its rules ignore constitutional
restraints or violate fundamental rights, and
there should be a reasonable relation
between the mode or method of proceedings
established by the rule and the result which
is sought to be attained. But within these
limitations all matters of method are open to the
determination of the House, and it is no
impeachment of the rule to say that some other
way would be better, more accurate, or even more
just. It is no objection to the validity of a rule that
a different one has been prescribed and in force for
a length of time. The power to make rules is not
one which once exercised is exhausted. It is a
continuous power, always subject to be exercised
by the House, and within the limitations suggested,
absolute and beyond the challenge of any other
body or tribunal."
Ballin, clearly confirmed the jurisdiction of
courts to pass upon the validity of
congressional rules, i.e, whether they are
constitutional. Rule XV was examined by the
Court and it was found to satisfy the test: (1) that
it did not ignore any constitutional restraint; (2) it
did not violate any fundamental right; and (3) its
method had a reasonable relationship with the
result sought to be attained. By examining Rule
XV, the Court did not allow its jurisdiction to be
defeated by the mere invocation of the principle of
separation of powers.154
xxx
In the Philippine setting, there is a more
compelling reason  for courts to categorically
reject the political question defense when its
interposition will cover up abuse of power.
For section 1, Article VIII of our Constitution
was intentionally  cobbled to empower courts
"x x x 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." This power is new and was not
granted to our courts in the 1935 and 1972
Constitutions. It was not also xeroxed from the
US Constitution or any foreign state
constitution. The CONCOM granted this
enormous power to our courts in view of our
experience under martial law where abusive
exercises of state power were shielded from
judicial scrutiny by the misuse of the political
question doctrine. Led by the eminent former
 Chief Justice Roberto Concepcion, the CONCOM
expanded and sharpened the checking powers of
the judiciary vis-à-vis the Executive and the
Legislative departments of government.155
xxx
The Constitution cannot be any clearer. What it
granted to this Court is not a mere power
which it can decline to exercise. Precisely to
deter this disinclination, the Constitution
imposed it as a duty of this Court to strike
down any act of a branch or instrumentality
of government or any of its officials done
with grave abuse of discretion amounting to
lack or excess of jurisdiction. Rightly or
wrongly, the Constitution has elongated the
checking powers of this Court against the other
branches of government despite their more
democratic character, the President and the
legislators being elected by the people.156
xxx
The provision defining judicial power as including
the 'duty of the courts of justice. . . 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' constitutes the
capstone of the efforts of the Constitutional
Commission to upgrade the powers of this court
vis-à-vis the other branches of government. This
provision was dictated by our experience under
martial law which taught us that a stronger and
more independent judiciary is needed to abort
abuses in government. x x x
xxx
foreign jurisprudence. In resolving the case at bar,
the lessons of our own history should provide us
the light and not the experience of
foreigners.157 (Italics in the original emphasis and
underscoring supplied)
Thus, the ruling in Osmena v. Pendatun is not applicable to
the instant petitions. Here, the third parties alleging the
violation of private rights and the Constitution are involved.
Neither may respondent House of Representatives' rely
on Nixon v. US158 as basis for arguing that this Court may
not decide on the constitutionality of Sections 16 and 17 of
the House Impeachment Rules. As already observed, the
U.S. Federal Constitution simply provides that "the House of
Representatives shall have the sole power of
impeachment." It adds nothing more. It gives no clue
whatsoever as to how this "sole power" is to be exercised.
No limitation whatsoever is given. Thus, the US Supreme
Court concluded that there was a textually demonstrable
constitutional commitment of a constitutional power to the
House of Representatives. This reasoning does not hold
with regard to impeachment power of the Philippine House
of Representatives since our Constitution, as earlier
enumerated, furnishes several provisions articulating how
that "exclusive power" is to be exercised.
The provisions of Sections 16 and 17 of Rule V of the House
Impeachment Rules which state that impeachment
proceedings are deemed initiated (1) if there is a finding by
the House Committee on Justice that the verified complaint
and/or resolution is sufficient in substance, or (2) once the
House itself affirms or overturns the finding of the
Committee on Justice that the verified complaint and/or
resolution is not sufficient in substance or (3) by the filing
or endorsement before the Secretary-General of the House
of Representatives of a verified complaint or a resolution of
impeachment by at least 1/3 of the members of the House
thus clearly contravene Section 3 (5) of Article XI as they
give the term "initiate" a meaning different from "filing."

In sum, I submit that in imposing to this Court the Validity of the Second Impeachment Complaint
duty to annul acts of government committed with
grave abuse of discretion, the new Constitution
Having concluded that the initiation takes place by the act
transformed this Court from passivity to activism.
of filing of the impeachment complaint and referral to the
This transformation, dictated by our distinct
House Committee on Justice, the initial action taken
experience as nation, is not merely evolutionary
thereon, the meaning of Section 3 (5) of Article XI becomes
but revolutionary. Under the 1935 and the 1973
clear. Once an impeachment complaint has been initiated in
Constitutions, this Court approached constitutional
the foregoing manner, another may not be filed against the
violations by initially determining what it cannot
same official within a one year period following Article XI,
do; under the 1987 Constitution, there is a
Section 3(5) of the Constitution.
shift in stress – this Court is mandated to
approach constitutional violations not by
finding out what it should not do but what In fine, considering that the first impeachment complaint,
it  must  do. The Court must discharge this solemn was filed by former President Estrada against Chief Justice
duty by not resuscitating a past that petrifies the Hilario G. Davide, Jr., along with seven associate justices of
present. this Court, on June 2, 2003 and referred to the House
Committee on Justice on August 5, 2003, the second
impeachment complaint filed by Representatives Gilberto C.
I urge my brethren in the Court to give due and
Teodoro, Jr. and Felix William Fuentebella against the Chief
serious consideration to this new constitutional
Justice on October 23, 2003 violates the constitutional
provision as the case at bar once more calls us to
prohibition against the initiation of impeachment
define the parameters of our power to review
proceedings against the same impeachable officer within a
violations of the rules of the House. We will not
one-year period.
be true to our trust as the last bulwark
against government abuses if we refuse to
exercise this new power or if we wield it with Conclusion
timidity. To be sure, it is this exceeding
timidity to unsheathe the judicial sword that
If there is anything constant about this country, it is that
has increasingly emboldened other branches
there is always a phenomenon that takes the center stage
of government to denigrate, if not defy,
of our individual and collective consciousness as a people
orders of our courts. In Tolentino, I endorsed
with our characteristic flair for human drama, conflict or
the view of former Senator Salonga that this novel
tragedy. Of course this is not to demean the seriousness of
provision stretching the latitude of judicial power is
the controversy over the Davide impeachment. For many of
distinctly Filipino and its interpretation should not
us, the past two weeks have proven to be an exasperating,
be depreciated by undue reliance on inapplicable
mentally and emotionally exhausting experience. Both sides
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have fought bitterly a dialectical struggle to articulate what
they respectively believe to be the correct position or view
on the issues involved. Passions had ran high as
demonstrators, whether for or against the impeachment of
the Chief Justice, took to the streets armed with their
familiar slogans and chants to air their voice on the matter.
Various sectors of society - from the business, retired
military, to the academe and denominations of faith –
offered suggestions for a return to a state of normalcy in
the official relations of the governmental branches affected
to obviate any perceived resulting instability upon areas of
national life.
Through all these and as early as the time when the Articles
of Impeachment had been constituted, this Court was
specifically asked, told, urged and argued to take no action
of any kind and form with respect to the prosecution by the
House of Representatives of the impeachment complaint
against the subject respondent public official. When the
present petitions were knocking so to speak at the
doorsteps of this Court, the same clamor for non-
interference was made through what are now the
arguments of "lack of jurisdiction," "non-justiciability," and
"judicial self-restraint" aimed at halting the Court from any
move that may have a bearing on the impeachment
proceedings.
This Court did not heed the call to adopt a hands-off stance
as far as the question of the constitutionality of initiating
the impeachment complaint against Chief Justice Davide is
concerned. To reiterate what has been already explained,
the Court found the existence in full of all the requisite
conditions for its exercise of its constitutionally vested
power and duty of judicial review over an issue whose
resolution precisely called for the construction or
interpretation of a provision of the fundamental law of the
land. What lies in here is an issue of a genuine
constitutional material which only this Court can properly
and competently address and adjudicate in accordance with
the clear-cut allocation of powers under our system of
government. Face-to-face thus with a matter or problem
that squarely falls under the Court's jurisdiction, no other
course of action can be had but for it to pass upon that
problem head on.
The claim, therefore, that this Court by judicially entangling
itself with the process of impeachment has effectively set
up a regime of judicial supremacy, is patently without basis
in fact and in law.
This Court in the present petitions subjected to judicial
scrutiny and resolved on the merits only the main issue of
whether the impeachment proceedings initiated against the
Chief Justice transgressed the constitutionally imposed one-
year time bar rule. Beyond this, it did not go about
assuming jurisdiction where it had none, nor
indiscriminately turn justiciable issues out of decidedly
political questions. Because it is not at all the business of
this Court to assert judicial dominance over the other two
great branches of the government. Rather, the raison d'etre
of the judiciary is to complement the discharge by the
executive and legislative of their own powers to bring about
ultimately the beneficent effects of having founded and
ordered our society upon the rule of law.
judicial power to resolve conflicting legal rights regardless
of the personalities involved in the suits or actions. This
Court has dispensed justice over the course of time,
unaffected by whomsoever stood to benefit or suffer
therefrom, unfraid by whatever imputations or speculations
could be made to it, so long as it rendered judgment
according to the law and the facts. Why can it not now be
trusted to wield judicial power in these petitions just
because it is the highest ranking magistrate who is involved
when it is an incontrovertible fact that the fundamental
issue is not him but the validity of a government branch's
official act as tested by the limits set by the Constitution?
Of course, there are rules on the inhibition of any member
of the judiciary from taking part in a case in specified
instances. But to disqualify this entire institution now from
the suit at bar is to regard the Supreme Court as likely
incapable of impartiality when one of its members is a party
to a case, which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic
precept in any legal system which recognizes equality of all
men before the law as essential to the law's moral authority
and that of its agents to secure respect for and obedience
to its commands. Perhaps, there is no other government
branch or instrumentality that is most zealous in protecting
that principle of legal equality other than the Supreme
Court which has discerned its real meaning and
ramifications through its application to numerous cases
especially of the high-profile kind in the annals of
jurisprudence. The Chief Justice is not above the law and
neither is any other member of this Court. But just because
he is the Chief Justice does not imply that he gets to have
less in law than anybody else. The law is solicitous of every
individual's rights irrespective of his station in life.
The Filipino nation and its democratic institutions have no
doubt been put to test once again by this impeachment
case against Chief Justice Hilario Davide. Accordingly, this
Court has resorted to no other than the Constitution in
search for a solution to what many feared would ripen to a
crisis in government. But though it is indeed immensely a
blessing for this Court to have found answers in our
bedrock of legal principles, it is equally important that it
went through this crucible of a democratic process, if only
to discover that it can resolve differences without the use of
force and aggression upon each other.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of
Procedure in Impeachment Proceedings which were
approved by the House of Representatives on November
28, 2001 are unconstitutional. Consequently, the second
impeachment complaint against Chief Justice Hilario G.
Davide, Jr. which was filed by Representatives Gilberto C.
Teodoro, Jr. and Felix William B. Fuentebella with the Office
of the Secretary General of the House of Representatives on
October 23, 2003 is barred under paragraph 5, section 3 of
Article XI of the Constitution.
SO ORDERED.

It is suggested that by our taking cognizance of the issue of

constitutionality of the impeachment proceedings against
the Chief Justice, the members of this Court have actually
closed ranks to protect a brethren. That the members'
interests in ruling on said issue is as much at stake as is
that of the Chief Justice. Nothing could be farther from the
truth.

The institution that is the Supreme Court together with all

other courts has long held and been entrusted with the
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