IV.

EXECUTIVE DEPARTMENT

A. PRIVELEGES, INHIBITIONS, QUALIFICATIONS AND DISQUALIFICATION

PRESIDENTIAL PRIVILAGE

ESTRADA V DESIERTO

FACTS:

The primary question in this case revolves around the legitimacy of GMA’s presidency as ERAP contends
that he did not resign and was only on LOA thus, is still the president. In 1998, Joseph Estrada was
elected President of the Philippines, while Gloria Macapagal- Arroyo was elected VicePresident. The
president was accused with corruption, culminating in Ilocos Sur Governor Chavit Singson’s accusations
that the president received millions of pesos from jueteng lords.

The Senate and the House of Representatives began early investigations regarding the accusation, while
key sociopolitical figures like Cardinal Sin, former Presidents Aquino and Ramos, the vice president,
senior advisers and cabinet members called on the president to resign, and resigned from their cabinet
posts themselves. Eventually, even Gen. Angelo Reyes and other members of the AFP expressed
withdrawal of support for ERAP. The impeachment trial began on 7 December 2000, with 21 senator-
judges presided over by Chief Justice Hilario Davide.

At a point when 11 senator-judges ruled against opening a second envelope of evidence showing the
president’s P3.3 billion bank account under the name “Jose Velarde”, the public prosecutors resigned
and a mass demonstration at EDSA began. CJ Davide granted Senator Raul Roco’s motion to postpone
the impeachment trial until the House of Representatives resolved the lack of public prosecutors. With
the defection of more officials and of the army and police from the Estrada administration, the president
attempted to appease public sentiment by announcing a snap election and by allowing the second
envelope to be opened. The measures failed, and the calls for resignation strengthened.

On 20 January 2001, the president negotiated with representatives of the vice-president. News broke
out that Chief Justice Hilario Davide would administer the oath of presidency to the vice president at
EDSA Shrine. Estrada issued two statements - one stating reservations on the constitutionality of
Arroyo’s presidency, and another stating that he is incapable of dispensing his responsibilities as
president, thus allowing Arroyo to be the acting president. The Arroyo administration was met with
acceptance by the different branches of government, by majority of the public, and by the international
community. The impeachment trial was closed, despite sentiments such as those of Senator Defensor-
Santiago that the impeachment court had failed to resolve the case, leaving open questions regarding
Estrada’s qualifications to run for other elected posts.

The Office of the Ombudsman proceeded to file a series of cases regarding the corruption of Estrada.
Estrada filed a motion compelling the Ombudsman to refrain from further proceedings until his term as
president was over. He also filed a petition to be confirmed as the lawful and incumbent president,
temporarily unable to fulfill his duties, thus making Arroyo an acting president only. The Supreme Court
ruled a) to inform the parties that they did not declare the Office of the President vacant on 20 January
2001, b) to prohibit either party from discussing in public the merits of the case while in its pendency, c)
to enjoin the Ombudsman from resolving pending criminal cases against Estrada for 30 days.

ISSUES IN THE ORIGINAL DECISION:

I. Whether the petitions present a justiciable controversy.-No

II. II. (TOPICAL) Assuming that the petitions present a justiciable controversy, whether petitioner
Estrada is a President on leave while respondent Arroyo is an Acting President. – YES
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.-NO

IV. Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial
publicity-NO

RATIO: According to Section 8, Article VII of the Constitution: “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 acts as President until President or Vice
President shall have been elected and qualified.”

To be considered as a resignation, there must be an intent to resign and the intent must be coupled by
acts of relinquishment. The validity of a resignation is not governed by any formal requirement as to
form. As long as the resignation is clear, it must be given legal effect. Here, Erap, did not write any
formal letter of resignation before he evacuated Malacaang Palace in the Afternoon of January 20, 2001
after the oath-taking of GMA. Consequently, WON Erap resigned has to be determined from his acts 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 test, he
did resign)

The court looked at “Final Days of Joseph Ejercito Estrada,” the diary of Exec. Sec. Angara serialized in
the Philippine Daily Inquirer was used as an authoritative window on the state of mind of the petitioner.

1. The diary detailed that on January 20, the Erap decided to call for a snap presidential election
and stressed he would not be a candidate.-> shows his intent to give up the presidency

2. . The diary also stated that Estrada expressed no objections to the plans for a graceful and
dignified exit.-> To the SC, this was proof that petitioner had reconciled himself to the reality
that he had to resign.
 3. The diary talked about negotiations for a for a peaceful and orderly transfer of power was
limited to 3 points, ( 1) the transition period of five days after the petitioners resignation; (2) the
guarantee of the safety of the petitioner and his family, and (3) the agreement to open the
second envelope to vindicate the name of the petitioner ->which did not include the resignation
of petitioner because at this time, this was not a disputed point.

4. Angara’s diary quotes Estrada saying, “Pagod na pagod na ako. Ayoko na masyado nang masakit.
Pagod na ako sa red tape, bureaucracy, intriga.”-> To the SC, this is high grade evidence that the
petitioner has resigned. The intent to resign is clear when he said “x x x Ayoko na masyado nang
masakit.” “ Ayoko na” are words of resignation.

5. 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.

6. It was clear in the negotiations that he was to sign a statement attesting to his resignation after
which, GMA will then take her oath.

7. But then all of the negotiations were thwarted when Erap learned that GMA was going to take
her oath already despite not signing the document yet. (ANO BA MARE ANG LABO MO. All you
had to do was wait)

8. So, ERAP just decided to release the following statement as per Ronie Puno’s advice:

“At twelve oclock 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 Malacaang 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 shrik from any future challenges that
may come ahead in the same service of our country.xxx”

The resignation of the petitioner 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 the
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 of 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 past tense. It is, however, urged that the petitioner did not
resign but only took a temporary leave of absence due to his inability to govern and cites the letter
transmitted to the Senate President and House Speaker as support. However, the mysterious letter
cannot negate the resignation of the petitioner. 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
repudiation by the people.

Petitioner 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 states that no public officer shall be
allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution
against him, for any offense under this Act or under the provisions of the RPC on bribery. The intent of
the law ought to be obvious. It is to prevent the act of resignation or retirement from being used by a
public official as a protective shield to stop the investigation of a pending criminal or administrative case
against him and to prevent his prosecution under the Anti-Graft Law or prosecution for bribery under
the Revised Penal Code. To be sure, no person can be compelled to render service for that would be a
violation of his constitutional right. A public official has the right not to serve if he really wants to retire
or resign. Nevertheless, if at the time he resigns or retires, a public official is facing administrative or
criminal investigation or prosecution, such resignation or retirement will not cause the dismissal of the
criminal or administrative proceedings against him. Also, when petitioner resigned on January 20, 2001,
there were cases filed against him before the Ombudsman but they were not technically pending as the
Ombudsman lacked jurisdiction to act on them. The Ombudsman refrained from conducting the
preliminary investigation for the reason that as the sitting President then, petitioner was immune from
suit. Section 12 of RA No. 3019 cannot therefore be invoked. Petitioner contends that the impeachment
proceeding is an administrative investigation that, under section 12 of RA 3019, bars him from resigning.
However, the exact nature of an impeachment proceeding is debatable. Even assuming that it is an
administrative proceeding, it can not be considered pending at the time petitioner resigned because the
process already broke down when a majority of the senator-judges voted against the opening of the
second envelope, the public and private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There
was, in effect, no impeachment case pending against petitioner when he resigned.

HEARSAY ISSUES/ HOLDING IN THE APRIL RESOLUTION: In G.R. No. 146738, petitioner raises and argues
the following issues:

1. Whether the angara diary is inadmissible for being violative of the following rules on evidence:
hearsay, best evidence, authentication, admissions and res inter alios acta

2. Whether reliance on newspaper acounts is violative of the hearsay rule-NO RATIO:

1. SC: We used the Angara Diary to decipher the intent to resign on the part of the petitioner. Let it be
emphasized that it is not unusual for courts to distill a persons subjective intent from the evidence
before them. Everyday, courts ascertain intent in criminal cases, in civil law cases involving last wills and
testaments, in commercial cases involving contracts and in other similar cases. As will be discussed
below, the use of the Angara Diary is not prohibited by the hearsay rule. Petitioner may disagree with
some of the inferences arrived at by the Court from the facts narrated in the Diary but that does not
make the Diary inadmissible as evidence. The Angara diary is not an out of court statement. The Angara
Diary is part of the pleadings in the cases at bar .Petitioner cannot complain he was not furnished a copy
of the Angara Diary. Nor can he feign surprise on its use. To be sure, the said Diary was frequently
referred to by the parties in their pleadings. The three parts of the Diary published in the PDI from
February 4-6, 2001 were attached as Annexes A-C, respectively, of the Memorandum of private
respondents Romeo T. Capulong, et al., dated February 20, 2001. The second and third parts of the Diary
were earlier also attached as Annexes 12 and 13 of the Comment of private respondents Capulong, et
al., dated February 12, 2001. In fact, petitioner even cited in his Second Supplemental Reply
Memorandum both the second part of the diary, published on February 5, 2001, and the third part,
published on February 6, 2001. It was also extensively used by Secretary of Justice Hernando Perez in his
oral arguments. Thus, petitioner had all the opportunity to contest the use of the Diary but
unfortunately failed to do so. Even assuming arguendo that the Angara Diary was an out of court
statement, still its use is not covered by the hearsay rule. Evidence is called hearsay when its probative
force depends, in whole or in part, on the competency and credibility of some persons other than the
witness by whom it is sought to produce it. There are three reasons for excluding hearsay evidence: (1)
absence of cross examination; (2) absence of demeanor evidence, and (3) absence of the oath. Not at all
hearsay evidence, however, is inadmissible as evidence.

Over the years, a huge body of hearsay evidence has been admitted by courts due to their relevance,
trustworthiness and necessity. The emergence of these exceptions and their wide spread acceptance is
well-explained by Weinstein, Mansfield, Abrams and Berger as follows: Indeed, the decided historical
trend has been to exclude categories of highly probative statements from the definition of hearsay
(sections 2 and 3, infra), and to develop more class exceptions to the hearsay rule (sections 4-11, infra).
Furthermore, many states have added to their rules the residual, or catch-all, exceptions first pioneered
by the Federal Rules which authorize the admission of hearsay that does not satisfy a class exception,
provided it is adequately trustworthy and probative. A more circumspect examination of our rules of
exclusion will show that they do not cover admissions of a party and the Angara Diary belongs to this
class. Section 26 of Rule 130 provides that the act, declaration or omission of a party as to a relevant fact
may be given in evidence against him. It has long been settled that these admissions are admissible even
if they are hearsay. The rules of exclusion don’t cover admissions of a party such as the Angara Diary.
These admissions were admissible even if assuming arguendo, they are hearsay because:

The diary contained direct statements of Erap which could be categorized as admissions of a party

It class under the doctrine of adoptive admission, where a party’s reaction to a statement or action by
another person when it is reasonable to treat the party’s reaction as an admission of something stated
or implied by the other person

It didn’t violate RIAA since it admitted the exception of admissions by a co-partner or agent (Angara was
the Exec Sec)
Ban on hearsay evidence didn’t cover independently relevant statement which are relevant independent
of WON they are true or not. This has 2 classes: 1) statements which are the very facts in issue, 2)
statements which are circumstantial evidence of the facts in issue

2. Petitioner insists he is the victim of prejudicial publicity. Among others, he assails the Decision for
adverting to newspaper accounts of the events and occurrences to reach the conclusion that he has
resigned. In our Decision, we used the totality test to arrive at the conclusion that petitioner has
resigned.

We referred to and analyzed events that were prior, contemporaneous and posterior to the oath-taking
of respondent Arroyo as president. (Aka what Chavit said, all the public officials resigning, impeachment
tiral, etc.) All these events are facts which are well established and cannot be refuted All these prior
events are facts which are within judicial notice by this Court. There was no need to cite their news
accounts. The reference by the Court to certain newspapers reporting them as they happened does not
make them inadmissible evidence for being hearsay. The news account only buttressed these facts as
facts. For all his loud protestations, petitioner has not singled out any of these facts as false.

CIVIL LIBERTIES UNION v. EXECUTIVE SECRETARY, GR No. 83896, 1991-02-22

Facts:

Declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino
on

July 25, 1987.

"SECTION 1. Even if allowed by law or by the ordinary functions of his position, a member of the
Cabinet, undersecretary or assistant secretary or other appointive officials of the Executive Department
may, in addition to his primary position, hold not more... than two positions in the government and
government corporations and receive the corresponding compensation therefor; Provided, that this
limitation shall not apply to ad hoc bodies or committees, or to boards, councils or bodies of which the
President is the Chairman.

"SECTION 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.

"SECTION 3. In order to fully protect the interest of the government in government-owned or con trolled
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
"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.

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.

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 IX-B on the
Civil Service Commission applies to officers and employees of the Civil Service in general and that said
exceptions do not apply and cannot be extended to Section 13,... Article VII which applies specifically to
the President, Vice-President, Members of the Cabinet and their deputies or assistants.

Issues:

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 IX-B 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 the
Government or any subdivision, agency or instrumentality... thereof, including government-owned or
controlled corporation or their subsidiaries."

Ruling:

We rule in the negative.

But what is indeed significant is the fact that although Section 7, Article IX-B 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.

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 class by itself and to
imposed 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
checks and restraints on them are called for because there is more possibility of abuse in their case."

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 IX-B 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 IX-B of the
1987 Constitution.

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 IX-B would render meaningless the specific
provisions of the Constitution authorizing the Vice-President to become a member of the Cabinet

Such absurd consequence can be avoided only by interpreting the two provisions under consideration as
one,... i.e., Section 7, par. (1) of Article IX-B 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
IX-B 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

In other words, the court must harmonize them, if practicable, and must lean in favor of construction
which will render every word operative, rather than one which may make the words idle and nugatory.

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.

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.

"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.

In order to be designated they must already be holding positions in... the offices mentioned in the law.

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.

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 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.

The ex oficio 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.

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's 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.

Finding Executive Order No. 284 to be constitutionally infirm, the Court hereby orders respondents
Secretary of Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local
Government[45] 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.

Brillantes vs. COMELEC/Concepcion, GR 163193, June 15, 2004

FACTS:

Congress enacted RA 8436 authorizing COMELEC to use an automated election system for the process of
voting, counting of votes and canvassing/consolidation the results of national and local elections.
COMELEC subsequently approved Resolution 6712 adopting the policy that the precinct election results
of each city and municipality shall be immediately transmitted electronically in advance to the COMELEC
in Manila. Petitioners in this case questioned, among others, the Constitutionality of the quickcount as
being pre-emptive of the authority vested in Congress to canvass the votes for the President and Vice-
President under Article VII, Section 4 of the 1987 Constitution.

ISSUE:
Can the COMELEC conduct “unofficial” tabulation of presidential election results based on a copy of the
election returns?
RULING:
No. The assailed resolution usurps, under the guise of an “unofficial” tabulation of election results based
on a copy of the election returns, the sole and exclusive authority of Congress to canvass the votes for
the election of 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.

B. POWERS

Planas v Gil G.R. No. L-46440, January 18, 1939

Facts:

The petitioner, then and now a member of the municipal board of the City of Manila, criticized the acts
of certain government officials in connection with the general election for Assemblymen held on
November 8, 1938. He published the statement in one of the daily newspapers. The executive secretary,
Vargas, sent him a message the next day telling him to appear for an investigation. At the appointed
time, the petitioner, accompanied by her counsel, appeared at the office of the respondent and
delivered to him a letter which opposed the investigation.

The respondent Commissioner did not desist from proceeding with the investigation, but announced
before adjourning the hearing of November 22nd that he would decide the question raised as to his
jurisdiction on November 26, 1938. The petitioner went to the SC and prayed for the issuance of a writ
of preliminary injunction enjoining the respondent commissioner from continuing with the investigation.

The latter was denied. He then requested the respondent to refrain from making a ruling and abstain
from making any further step in connection with said investigation until the jurisdictional issue could be
finally passed upon by this court. On the same day, the request of the petitioner was denied and the
respondent ruled that he had jurisdiction to proceed with the investigation.

The respondent also notified the petitioner to appear before him on Saturday, December 3, 1938, and to
testify in her behalf and produce such other evidence as she might desire to present in support of the
charges.

Issue:

WON the President has the power to order the investigation.

Held: Yes. Petition dismissed Ratio: OSG- under the separation of powers marked by the Constitution,
the court has no jurisdiction to review the orders of the Chief Executive, which are of purely
administrative character. The rule is non-interference. But from this legal premise, it does not
necessarily follow that we are precluded from making an inquiry into the validity or constitutionality of
his acts when these are properly challenged in an appropriate legal proceeding. In this sense and to this
extent, the judiciary restrains the other departments of the government and this result is one of the
necessary corollaries of the "system of checks and balance" of the government established.

In the present case, the President is not a party to the proceeding. He is neither compelled nor
restrained to act in a particular way. The Commissioner of Civil Service is the party respondent and the
theory is advanced by the Government that because an investigation undertaken by him is directed by
authority of the President of the Philippines, this court has no jurisdiction over the present proceedings
instituted by the petitioner. The theory is farfetched. A mere plea that a subordinate officer of the
government is acting under orders from the Chief Executive may be an important averment, but is
neither decisive nor conclusive upon this court. Like the dignity of his high office, the relative immunity
of the Chief Executive from judicial interference is not in the nature of a sovereign passport for all the
subordinate officials and employees of the Executive Department to the extent that at the mere
invocation of the authority that it purports the jurisdiction of this court to inquire into the validity or
legality of an executive order is necessarily abated or suspended.

The Constitution provides that the President "shall have control of all the executive departments,
bureaus, and offices" (Art. VII, sec. 11 [1], first clause) and shall "exercise general supervision over all
location governments as may be provided by law" (Ibid, second clause). This power of control and
supervision is an important constitutional grant. The President in the exercise of the executive power
under the Constitution may act through the heads of the executive departments. The heads of the
executive departments are his authorized assistants and agents in the performance of his executive
duties, and their official acts, promulgated in the regular course of business, are presumptively his acts.
Independently of any statutory provision authorizing the President to conduct an investigation of the
nature involved in this proceeding, and in view of the nature and character of the executive authority
with which the President of the Philippines is invested, the constitutional grant to him of power to
exercise general supervision over all local governments and to take care that the laws be faithfully
executed must be construed to authorized him to order an investigation of the act or conduct of the
petitioner herein.

Supervision is not a meaningless thing. It is an active power. It is certainly not without limitation, but it
at least implies authority to inquire into facts and conditions in order to render the power real and
effective. It is not denied that the President did authorize the issuance of the order, but it is contended
"that the said investigation with a view to petitioner's suspension or removal is against Article VII, sec.
11 (1) of the Constitution of the Philippines and is not warranted by any statutory provision. Viewed
from the totality of powers conferred upon the Chief Executive by our Constitution, we should be
reluctant to yield to the proposition that the President of the Philippines who is endowed with broad
and extraordinary powers by our Constitution, and who is expected to govern with a firm and steady
hand without vexatious or embarrassing interference and much less dictation from any source, is yet
devoid of the power to order the investigation of the petitioner in this case. We should avoid that result.

Apart from the constitutional aspect, we find that section 64 of the Administrative Code of 1917
provides for the power to investigate conducts of officials in the government service. The enforcement
of the law and the maintenance of peace and order are primarily an executive obligation. The
declaration that the President should "take care that the laws be faithfully executed" is more an
imposition of an obligation than a conferment of power. His oath requires him to "faithfully and
conscientiously fulfill" his duties as President, "preserve and defend" the Constitution and "execute" the
law. This duty of the Executive to see that the laws be faithfully executed is not limited to the
enforcement of legislative acts or the express terms of the Constitution but also includes the due
enforcement of rights, duties, obligations, prerogatives and immunities growing out of the Constitution
itself and of the protection implied by the nature of the government under the Constitution.

On freedom of the press Petitioner contends that she has not abused the right of free speech, and in this
connection directs our attention to the provision of section 1 (pars. 1 and 8) of the bill of Rights. She also
urges that " in the supposition that the statement in question is libelous, the corresponding criminal or
civil action should be brought in the courts of justice at the initiative, not of the government, but of the
individuals claiming to have been defamed by the statement." We are vigilantly alive to the necessity of
maintaining and protecting the constitutional guaranty of freedom of speech and of the press, no less
than the right of assembly and petition which, according to Stimson, is its origin rather than its
derivation.

We do not forget that when repression of political and religious discussion became intense — when
censorship of the press was resorted to most vigorously by the Long Parliament in England — John
Milton, that great historiographer of Cromwell, in his Areopagitica, denounced the suppression of truth
and appealed for "the liberty to know, to utter, and to argue freely according to conscience, above all
liberties"

And this court has had occasion to vindicate this right, and it is now a settled doctrine that the official
conduct and the policies of public officials can be criticized), and that criticism of the constitution and
legislation, of government measures or policies cannot be suppressed or prevented, unless the intention
be to incite rebellion and civil war. In the present case, however, the petitioner is not denied the right,
nor is she being investigated because she had exercised that right.

She has a perfect right to criticize the Government, its administration, its policies and officials, but she
may not, on the plea of freedom of speech and of the press, impute violations of law and the
commission of frauds and thereafter fold her arms and decline to face an investigation conducted to
elicit the truth or falsity of the charges formulated by her. Otherwise, the guarantee which, in the
language of Wendell Phillips, is "at once the instrument, and the guarantee, and the bright consummate
flower of all liberty" would degenerate into an unbridled license, and render the Government powerless
to act.

MYERS V UNISTED STATES, 1926

Facts:
A postmaster who was removed from office petitioned the President and the Senate committee on Post
Offices for a hearing on any charges filed; protested to the Post Office Department; and, three months
before his four-year term expired, having pursued no other occupation and derived no compensation for
other service in the interval, began suit in the Court of Claims for salary since removal. No notice of the
removal, nor any nomination of a successor, had been sent in the meantime to the Senate whereby his
case could have been brought before that body, and the commencement of suit was within a month
after the ending of its last session preceding the expiration of the four years. Held that the plaintiff was
not guilty of laches.

Section 6 of the Act of July 12, 1876, providing that "Postmasters of the first, second and third classes
shall be appointed and may be removed by the President by and with the advice and consent of the
Senate and shall hold their offices for four years unless sooner removed or suspended according to law,"
is unconstitutional in its attempt to make the President's power of removal dependent upon consent of
the Senate.

The President is empowered by the Constitution to remove any executive officer appointed by him by
and with the advice and consent of the Senate, and this power is not subject in its exercise to the assent
of the Senate, nor can it be made so by an act of Congress.

The provision of Art. II, § 1, of the Constitution that "the Executive power shall be vested in a President"
is a grant of the power, and not merely a naming of a department of the government.

The provisions of Art. II, § 2, which blend action by the legislative branch, or by part of it, in the work of
the Executive, are limitations upon this general grant of the Executive power which are to be strictly
construed, and not to be extended by implication.

It is a canon of interpretation that real effect should be given to all the words of the Constitution.

Removal of executive officials from office is an executive function; the power to remove, like the power
to appoint, is part of "the Executive power," -- a conclusion which is confirmed by the obligation "to take
care that the laws be faithfully executed."

The power of removal is an incident of the power to appoint; but such incident does not extend the
Senate's power of checking appointments, to removals.

The excepting clause in § 2 of Art. II, providing "but Congress may by law vest the appointment of such
inferior officers as they may think proper in the President alone, in the courts of law or in the heads of
departments," does not enable Congress to regulate the removal of inferior officers appointed by the
President by and with the advice and consent of the Senate.

A contemporaneous legislative exposition of the Constitution when the founders of our Government
and framers of the Constitution were actively participating in public affairs, acquiesced in for many
years, fixes the meaning of the provisions so construed.
Upon an historical examination of the subject, the Court finds that the action of the First Congress, in
1789, touching the Bill to establish a Department of Foreign Affairs, was a clean-cut and deliberate
construction of the Constitution as vesting in the President alone the power to remove officers, inferior
as well as superior, appointed by him with the consent of the Senate; that this construction was
acquiesced in by all branches of the Government for 73 years, and that subsequent attempts of
Congress, through the Tenure of Office Act of March 2, 1867, and other acts of that period, to reverse
the construction of 1789 by subjecting the President's power to remove executive officers appointed by
him and confirmed by the Senate to the control of the Senate or lodge such power elsewhere in the
Government were not acquiesced in, but their validity was denied by the Executive whenever any real
issue over it arose.

The weight of congressional legislation as supporting a particular construction of the Constitution by

acquiescence depends not only upon the nature of the question, but also upon the attitude of the
executive and judicial branches of the government and the number of instances in the execution of the
law in which opportunity for objection in the courts or elsewhere has been afforded.

The provisions of the Act of May 15, 1820, for removal of the officers therein named "at pleasure," were
not based on the assumption that, without them, the President would not have that power, but were
inserted in acquiescence to the legislative decision of 1789.

Approval by the President of acts of Congress containing provisions purporting to restrict the President's
constitutional power of removing officers held not proof of Executive acquiescence in such curtailment
where the approval was explicable by the value of the legislation in other respects -- as where the
restriction was in a rider imposed on an appropriation act.

Marbury v. Madison, 1 Cranch 137, considered, in connection with Parsons v. United States, 167 U. S.
324, and held not authoritative on the question of removal power here involved.
-----

Issue:

(1) Whether a judge appointed by the President with the consent of the Senate under an act of
Congress, not under authority of Art. III of the Constitution, can be removed by the President alone
without the consent of the Senate;

(2), whether the legislative decision of 1789 covers such a case, and

(3), whether Congress may provide for his removal in some other way, present considerations different
from those which apply in the removal of executive officers, and are not herein decided.

Ruling:

This Court has recognized (United States v. Perkins, 116 U. S. 483) that Congress may prescribe
incidental regulations controlling and restricting the heads of departments in the exercise of the power
of removal; but it has never held, and could not reasonably hold, that the excepting clause enables
Congress to draw to itself, or to either branch of it, the power to remove or the right to participate in
the exercise of that power. To do this would be to go beyond the words and implications of that clause
and to infringe the constitutional principle of the separation of govern mental powers.

Assuming the power of Congress to regulate removals as incidental to the exercise of its constitutional
power to vest appointments of inferior officers in the heads of departments, certainly so long as
Congress does not exercise that power, the power of removal must remain where the Constitution
places it -- with the President, as part of the executive power, in accordance with the legislative decision
of 1789.

Whether the action of Congress in removing the necessity for the advice and consent of the Senate, and
putting the power of appointment in the President alone, would make his power of removal in such case
any more subject to Congressional legislation than before is a question not heretofore decided by this
Court and not presented or decided in this case.

Congress is only given power to provide for appointments and removals of inferior officers after it has
vested, and on condition that it does vest, their appointment in other authority than the President with
the Senate's consent.

APPEAL from a judgment of the Court of Claims rejecting a claim for salary. Appellant's intestate, Frank
S. Myers, was reappointed by the President, by and with the advice and consent of the Senate, as a
postmaster of the first class. The Act of July, 1876, § 6, c. 179, 19 Stat. 80, provides that such
postmasters shall hold office for four years, unless sooner removed or suspended according to law, and
provides that they may be removed by the President "by and with the advice and consent of the
Senate." Myers was removed, before the expiration of his term, by an order of the Postmaster General,
sanctioned by the President. The removal was not referred to the Senate, either directly or through
nomination of a successor, during the four-year period. Judgment of the Court below that Myers could
not claim salary for the part of that period following the removal was based on the view that there had
been laches in asserting the claim. The appeal was argued and submitted by counsel for the appellant on
December 5, 1924. On January 5, 1925, the Court restored the case for reargument. It invited the
Honorable George Wharton Pepper, United States Senator from Pennsylvania, to participate as amicus
curiae. The reargument occurred on April 13, 14, 1925. In view of the great importance of the matter,
the Reporter has deemed it advisable to print, in part, the oral arguments, in addition to summaries of
the briefs.

Appointmnet V Designation

RAMON P. BINAMIRA v. PETER D. GARRUCHO, GR No. 92008, 1990-07-30

Facts:
Ramon P. Binamira seeks reinstatement to the office of General Manager of the Philippine Tourism
Authority from which he claims to have been removed without just cause in violation of his security of...
tenure.

On April 10, 1986, Minister Gonzales sought approval from President Aquino of the composition of the
Board of Directors of the PTA, which included Binamira as Vice-Chairman in his capacity as General
Manager.

Binamira claims that since assuming office, he had discharged the duties of PTA General Manager and
Vice-Chairman of its Board of Directors and had been acknowledged as such by various government
offices, including the Office of the President. On January 2, 1990, his resignation was demanded by
respondent Garrucho as the new Secretary of Tourism.

On January 4, 1990, President Aquino sent respondent Garrucho... memorandum... copy furnished
Binamira. It appearing from the records you have submitted to this Office that the present General
Manager of the Philippine Tourism Authority was designated not by the President, as required by P.D.
No. 564, as amended, but only by the Secretary of Tourism, such designation... is invalid. Accordingly,
you are hereby designated concurrently as General Manager, effective immediately, until I can appoint a
person to serve in the said office in a permanent capacity.

Garrucho having taken over as General Manager of the PTA in accordance with this memorandum, the
petitioner filed this action against him to question his title.

Subsequently, while his original petition was pending, Binamira filed... a supplemental petition alleging
that on April 6, 1990, the President of the Philippines appointed Jose A. Capistrano as General Manager
of the Philippine Tourism Authority. Capistrano was impleaded as additional respondent.

Section 23-A of P.D. 564, which created the Philippine Tourism Authority, provides as follows:

SECTION 23-A. General Manager - Appointment and Tenure. - The General Manager shall be appointed
by the President of the Philippines and shall serve for a term of six (6) years unless sooner removed for...
cause; Provided, That upon the expiration of his term, he shall serve as such until his successor shall
have been appointed and qualified. (As amended by P.D. 1400)

Issues:

The issue presented in this case is starkly simple.

It is not disputed that the petitioner was not appointed by the President of the Philippines but only
designated by the Minister of Tourism. There is a clear distinction between appointment and
designation that the petitioner has failed to... consider.

Ruling:
An officer to whom a discretion is entrusted cannot delegate it to another, the presumption being that
he was chosen because he was deemed fit and competent to exercise that judgment and discretion, and
unless the power to substitute another in his place has been... given to him, he cannot delegate his
duties to another.

In those cases in which the proper execution of the office requires, on the part of the officer, the
exercise of judgment or discretion, the presumption is that he was chosen because he was deemed fit...
and competent to exercise that judgment and discretion, and, unless power to substitute another in his
place has been given to him, he cannot delegate his duties to another.

Indeed, even on the assumption that the power conferred on the President could be validly exercised by
the Secretary, we still cannot accept that the act of the latter, as an extension or "projection" of the
personality of the President, made... irreversible the petitioner's title to the position in question. The
petitioner's conclusion that Minister Gonzales's act was in effect the act of President Aquino is based
only on half the doctrine he vigorously... invokes. Justice Laurel stated that doctrine clearly in the
landmark case of Villena v. Secretary of the Interior,[8] where he described the relationship of the

President of the Philippines and the members of the Cabinet as follows:... x x x all executive and
administrative organizations are adjuncts of the Executive Department, the heads of the various
executive departments are assistants and agents of the Chief Executive, and, except in cases... where
the Chief Executive is required by the Constitution or the law to act in person or the exigencies of the
situation demand that he act personally, the multifarious executive and administrative functions of the
Chief Executive are... performed by and through the executive departments, and the acts of the
secretaries of such departments, performed and promulgated in the regular course of business, are,
unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief

Executive.

The doctrine presumes the acts of the Department Head to be the acts of the President of the
Philippines when "performed and promulgated in the regular course of business," which was true of the
designation made by Minister Gonzales in favor of the... petitioner. But it also adds that such acts shall
be considered valid only if not "disapproved or reprobated by the Chief Executive," as also happened in
the case at bar.

The argument that the designation made by Minister Gonzales was approved by President Aquino
through her approval of the composition of the Board of Directors of the PTA is not persuasive. It must
be remembered that Binamira was... included therein as Vice-Chairman only because of his designation
as PTA General Manager by Minister Gonzales. Such designation being merely provisional, it could be
recalled at will, as in fact it was recalled by the President herself, through... the memorandum she
addressed to Secretary Garrucho on January 4, 1990.

With these rulings, the petitioner's claim of security of tenure must perforce fall to the ground. His
designation being an unlawful encroachment on a presidential prerogative, he did not acquire valid title
thereunder to the position in... question. Even if it be assumed that it could be and was authorized, the
designation signified merely a temporary or acting appointment that could be legally withdrawn at
pleasure, as in fact it was (albeit for a different... reason). In either case, the petitioner's claim of
security of tenure must be rejected.

The Court sympathizes with the petitioner, who apparently believed in good faith that he was being
extended a permanent appointment by the Minister of Tourism. After all, Minister Gonzales had the
ostensible authority to do so at the time the designation... was made. This belief seemed strengthened
when President Aquino later approved the composition of the PTA Board of Directors where the
petitioner was designated Vice-Chairman because of his position as General Manager of the

PTA. However, such circumstances fall short of the categorical appointment required to be made by the
President herself, and not the Minister of Tourism, under Sec. 23 of P.D No. 564. We must rule therefore
that the petitioner never acquired valid title to the... disputed position and so has no right to be
reinstated as General Manager of the Philippine Tourism Authority.

WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.

Principles:

Appointment may be defined as the selection, by the authority vested with the power, of an individual
who is to exercise the functions of a given office.[3] When completed, usually with its confirmation,
the... appointment results in security of tenure for the person chosen unless he is replaceable at
pleasure because of the nature of his office. Designation, on the other hand, connotes merely the
imposition by law of additional duties on an incumbent... official,[4] as where, in the case before us, the
Secretary of Tourism is designated Chairman of the Board of Directors of the Philippine Tourism
Authority, or where, under the Constitution, three Justices of the Supreme Court... are designated by
the Chief Justice to sit in the Electoral Tribunal of the Senate or the House of Representatives. [5] It is
said that appointment is essentially executive while designation is legislative in... nature.

Designation may also be loosely defined as an appointment because it likewise involves the naming of a
particular person to a specified public office. That is the common understanding of the term. However,
where... the person is merely designated and not appointed, the implication is that he shall hold the
office only in a temporary capacity and may be replaced at will by the appointing authority. In this
sense, the designation is considered only an acting or temporary... appointment, which does not confer
security of tenure on the person named.

Even if so understood, that is, as an appointment, the designation of the petitioner cannot sustain his
claim that he has been illegally removed. The reason is that the decree clearly provides that the
appointment of the General Manager of the Philippine

Tourism Authority shall be made by the President of the Philippines, not by any other officer.
Appointment involves the exercise of discretion, which because of its nature cannot be delegated.
Legally speaking, it was not possible for
Minister Gonzales to assume the exercise of that discretion as an alter ego of the President. The
appointment (or designation) of the petitioner was not a merely mechanical or ministerial act that could
be validly performed by a... subordinate even if he happened as in this case to be a member of the
Cabinet.

Ad Interim is Permanent

Matibag vs Benipayo

Facts:

President Gloria Macapagal Arroyo appointed Respondent Alfredo Benipayo as ad interim COMELEC
Chairman, and Respondents Resurreccion Borra and Florentino Tuason as COMELEC Commissioners.
Benipayo, Borra, and Tuason took their oath of office and assumed their respective positions in
COMELEC.

The Office of the President submitted to the Commission on Appointments (COA) the ad interim
appointments of Benipayo, Borra and Tuason for confirmation. However, the COA did not act on said
appointments. President Arroyo then renewed the ad interim appointments of Benipayo, Borra and
Tuason to the same positions and for the same term. They took their oaths of office for a second time.
The Office of the President transmitted their appointments to the Commission on Appointments for
confirmation. However, Congress adjourned before COA could act on their appointments.

Thus, President Arroyo renewed their ad interim appointments for a second time to the same positions.
The Office of the President submitted their appointments for confirmation. In his capacity as COMELEC
Chairman, Benipayo issued a Memorandum dated April 11, 2001 addressed to petitioner Angelina
Matibag as Director IV of the Education and Information Department (EID) and to respondent Velma
Cinco as Director III also of the EID, designating Cinco Officer-in-Charge of the EID and reassigning
petitioner to the Law Department.

Background: In 1999, the COMELEC en banc appointed petitioner Matibag as "Acting Director IV" of the
EID. In 2000, then Chairperson Harriet Demetriou renewed the appointment of petitioner as Director IV
of EID in a "Temporary" capacity. o In 2001, Commissioner Rufino Javier renewed again the appointment
of petitioner to the same position in a "Temporary" capacity. COMELEC EID Commissioner-in-Charge
Mehol Sadain objected to petitioner’s reassignment in a Memorandum 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. Petitioner then requested Benipayo to reconsider
her relief as Director IV of the EID and her reassignment to the Law Department. Petitioner cited CSC
Memorandum Circular, 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. Petitioner then appealed the denial of her request for reconsideration to
the COMELEC en banc.

Petitioner also filed an administrative and criminal complaint with the Law Department against
Benipayo, alleging that her reassignment violated Section 261 (h) of the Omnibus Election Code,
COMELEC Resolution, Civil Service Memorandum Circular, 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 the following:
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. That her removal as Director IV of the EID and her
reassignment to the Law Department is illegal. Simultaneously, petitioner challenges the designation of
Cinco as Officer-in-Charge of the EID. That there is illegality in the disbursements made by COMELEC
Finance Services Department Officer-inCharge Gideon De Guzman to Benipayo, Borra and Tuason by
way of salaries and other emoluments. In the meantime, President Arroyo renewed once again the ad
interim appointments of Benipayo, Borra and Tuason for a term of seven years expiring on February 2,
2008. They all took their oaths of office anew.

Issues:

Is the ad interim appointment by Benipayo, Borra and Tuason amounts to a temporary appointment
prohibited by Section 1 (2), Article IX-C of the Constitution? NO.

Ruling:

FIRST ISSUE The ad interim appointment by Benipayo, Borra and Tuason does not amount to a
temporary appointment prohibited by Section 1 (2), Article IX-C of the Constitution. 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. In no case shall any Member be
appointed or designated in a temporary or acting capacity."

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 Constitution. 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.
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 COA does not alter its permanent character.

The Constitution itself makes an ad interim appointment permanent in character by making it effective
until disapproved by COA 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." 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 without basis. More than half a century ago, in Summers vs Ozaeta, the Court had
already ruled that an ad interim appointment is permanent in character:  An ad interim appointment 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.  Said appointment is of course
distinguishable from an “acting” appointment which is merely temporary, good until another permanent
appointment is issued. 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 COA, the Court elaborated on the nature of an ad interim appointment as
follows: o 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.
o 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, where the Court explained that: Such is not the
meaning nor the use intended in the context of Philippine law.

The term, although not found in the text of the Constitution, has acquired a definite legal meaning
under Philippine jurisprudence. The term is not descriptive of the nature of the appointments given to
him, that is, it is not indicative of whether the appointment is temporary or in an acting capacity. 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.

Thus, the term "ad interim appointment," 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. 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. "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. 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 COA. The
second cause is the adjournment of Congress without the COA 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. 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, the Court struck down as unconstitutional the designation by then President
Corazon Aquino of Associate Commissioner Haydee Yorac as Acting Chairperson of the COMELEC.

The 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. The
Constitution provides for many safeguards to the independence of the COMELEC, 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. 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. 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," 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 COA 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 reinstatement of the provisions of the 1935 Constitution in the present Constitution regarding 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,
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." The power to 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 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. 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. In the instant
case, the COA had long confirmed four of the incumbent COMELEC members, comprising a majority,
who could now be removed from office only by impeachment. Thus, the special constitutional
safeguards that insure the independence of the COMELEC remain in place.

SECOND ISSUE

The renewals of ad interim appointments are valid and constitutional. Petitioner also argues that
assuming the first ad interim appointments and the first assumption of office by Benipayo, Borra and
Tuason are constitutional, the renewal of the their ad interim appointments and their subsequent
assumption of office to the same positions violate the prohibition on reappointment under Section 1 (2),
Article IX-C of the Constitution. An ad interim appointee disapproved by COA can no longer be extended
a new appointment. The disapproval is a final decision of COA in the exercise of its checking power on
the appointing authority of the President. A disapproved ad interim appointment cannot be revived by
another ad interim appointment because the disapproval is final under Section 16, Article VII of the
Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of the
Constitution.

The disapproval is a decision on the merits, being a refusal by COA to give its consent after deliberating
on the qualifications of the appointee. Since the Constitution does not provide for any appeal from such
decision, the disapproval is final and binding on the appointee as well as on the appointing power. In
this instance, the President can no longer renew the appointment not because of the constitutional
prohibition on reappointment, but because of a final decision by the Commission on Appointments to
withhold its consent to the appointment. An ad interim appointment that is by-passed because of lack of
time or failure of the Commission on Appointments to organize is another matter.

The President can renew the appointments of by-passed ad interim appointees. A by-passed
appointment is one that has not been finally acted upon on the merits by the COA at the close of the
session of Congress. A by-passed ad interim appointment can be revived by a new ad interim
appointment because there is no final disapproval by COA under Section 16, Article VII of the
Constitution, and such new appointment will not result in the appointee serving beyond the fixed term
of seven years. Absent such decision, the President is free to renew the ad interim appointment of a by-
passed appointee. This is recognized in Section 17 of the Rules of the Commission on Appointments
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.

Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be
considered again if the President renews the appointment.

The phrase "without reappointment" applies only to one who has been appointed by the President and
confirmed by COA, whether or not such person completes his term of office.  An ad interim
appointment that has lapsed by inaction of COA 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 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. There must be a confirmation by COA 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.

THIRD ISSUE:

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: Make temporary
assignments, rotate and transfer personnel in accordance with the provisions of the Civil Service Law. 
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 indisputably show that she held her Director IV
position in the EID only in an acting or temporary capacity. 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. Obviously, petitioner does not enjoy security of
tenure as Director IV.

Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary
qualifications to hold the position of Director IV, her appointment can be withdrawn or revoked at the
pleasure of the appointing power.

Extra Background: 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 the Court in Gaminde vs Commission on Appointments, 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.

Then COMELEC Chairperson Harriet Demetriou was appointed only on January 11, 2000 to serve,
pursuant to her appointment papers, until February 15, 2002, the original expiry date of the term of her
predecessor, Justice Bernardo 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. 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 Manifestation 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 intervention 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. 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 election cases
shall be heard and decided in division," 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.

Subject to confirmation by commission on appointments

Sarmiento v. Mison G.R. No. 79974 December 17, 1987

Facts:

Petitioners Ulpiano P. Sarmiento III and Juanito G. Arcilla contend that the respondent Salvador Mison
appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of its not having
been confirmed by the Commission on Appointments. The respondent, on the other hand, maintain the
constitutionality of Mison's appointment without the confirmation of the Commission on Appointments.
Under the provisions of the 1987 Constitution, there are 4 groups of officers whom the President shall
appoint:

First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers
of the armed forces from the rank of colonel or naval captain, and other officers whose appointments
are vested in him in this Constitution;

Second, all other officers of the Government whose appointments are not otherwise provided for by
law;

Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone.
The first group of officers is clearly appointed with the consent of the Commission on Appointments.
Appointments of such officers are initiated by nomination and, if the nomination is confirmed by the
Commission on Appointments, the President appoints.

Issue:

Whether or not the second, third, and fourth groups of officers be appointed by the President with the
consent (confirmation) of the Commission on Appointments?

Ruling:

No, in the 1987 Constitution, the clear and expressed intent of its framers was to exclude presidential
appointments from confirmation by the Commission on Appointments, except appointments to offices
expressly mentioned in the first sentence of Sec. 16, Article VII. Consequently, there was no reason to
use in the third sentence of Sec. 16, Article VII the word "alone" after the word "President" in providing
that Congress may by law vest the appointment of lower-ranked officers in the President alone, or in the
courts, or in the heads of departments, because the power to appoint officers whom he (the President)
may be authorized by law to appoint is already vested in the President, without need of confirmation by
the Commission on Appointments, in the second sentence of the same Sec. 16, Article VII.

It is evident that the position of Commissioner of the Bureau of Customs (a bureau head) is not one of
those within the first group of appointments where the consent of the Commission on Appointments is
required. The appointment of the Commissioner of the Bureau of Customs is one that devolves on the
President, as an appointment he is authorized by law to make, such appointment, however, no longer
needs the confirmation of the Commission on Appointments.

JESULITO A. MANALO v. PEDRO G. SISTOZA, GR No. 107369, Aug 11, 1999

Facts:
In 1990, Republic Act No. 6975 was passed. This law created the Department of Interior and Local
Government. Said law, under Sections 26 and 31 thereof, also provided on the manner as to how
officers of the Philippine National Police are to be appointed. It was provided that the PNP Chief as well
as certain police officers including Directors and Chief Superintendents, after being appointed by the
President, must be confirmed by the Commission on Appointments before said officers can take their
office.

In 1992, then president Corazon Aquino appointed Pedro Sistoza et al as Directors and Chief
Superintendents within the PNP. Said appointments were not confirmed by the Commission on
Appointments hence, Jesulito Manalo questioned the validity of the appointments made. He insists that
without the confirmation by the Commission, Sistoza et al are acting without jurisdiction, their
appointment being contrary to the provisions of R.A. 6975.

He then went to the Supreme Court asking the court to carry out the provisions of the said law. Manalo
also insists that the law is a valid law, as it enjoys the presumption of constitutionality, and hence, it
must be carried out by the courts.

ISSUE: Whether or not Sections 26 and 31 of R.A. No. 6975 are valid.

HELD: No. Said provisions are unconstitutional. It is true that prior to this case, as with all other laws,
R.A. 6975 enjoys the presumption of constitutionality. As such, laws enacted by Congress must be
respected by courts and as much as possible, courts must avoid delving into the constitutionality of a
law.

However, it is also the duty of the courts, as guardians of the Constitution, to see to it that every law
passed by Congress is not repugnant to the Constitution.

Under Section 16, Article VII of the Constitution, there are four groups of officers of the government to
be appointed by the President:

First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers
of the armed forces from the rank of colonel or naval captain, and other officers whose appointments
are vested in him in this Constitution;

Second, all other officers of the Government whose appointments are not otherwise provided for by
law;

Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone.

The first group are the only ones whose appointments are required by the Constitution to be affirmed
by the Commission on Appointments. All others need not be confirmed. Officers of the PNP are not
included therein. There is also no merit to the contention that PNP officers are akin to officers of the
armed forces.

Sections 26 and 31 of R.A. 6975 are void for amending the provisions set forth in the Constitution.

Courts have the inherent authority to determine whether a statute enacted by the legislature
transcends the limit alienated by the fundamental law. When it does the courts will not hesitate to
strike down such unconstitutionality.

LIMITATIONS

Aytona vs Castillo, January 19, 1962

Ad interim appointments are intended to prevent a hiatus in the discharge The purpose of Sec 15 is to
prevent abuse of the appointing power, and is directed against two types of appointments: (1) those
made for buying votes; (2) those made for partisan considerations (e.g. “midnight” appointments of an
outgoing President)
FACTS:
On Dec 29, 1961, incumbent Pres. Garcia issued mass ad interim “midnight” or “last minute”
appointments amounting to about 350 all in all. Among the appointees was petitioner Aytona as ad
interim Governor of Central Bank. Aytona qualified for the appointment in the same day. The next day,
at noon, President-elect Macapagal assumed office. He issued AO 2 which withdrew and cancelled all
the said midnight ad interim appointments by his predecessor. On Jan 1, 1962, respondent Castillo was
appointed by Pres. Macapagal in place of Aytona. Insisting he validly holds the position of Governor,
Aytona instituted this original action.

ISSUE:
Does the new President have the power to issue the order of cancellation of the ad interim
appointments made by the past President, even after the appointees have already qualified?

RULING:
Yes. Such mass midnight ad interim appointments may be regarded as an abuse of presidential
prerogatives for apparently mere partisan considerations. When the President makes ad interim
appointments, he exercises a special prerogative and is bound to be prudent to insure approval of his
selection either by previous consultation with the members of the Commission on Appointments (CA) or
by thereafter explaining to them the reason for such selection.* Where, however, as in this case, the CA
that will consider the appointees is different from that existing at the time of the appointment (for the
4th Congress expired at midnight Dec 29, 1961) and where the names are to be submitted by his
successor, who may not wholly approve of the selections, the President should be doubly careful. Now,
it is hard to believe that in signing 350 appointments in one night, Pres. Garcia exercised such “double
care”; and therefore, it seems to be tenable that these appointments fall beyond the intent and spirit of
the constitutional provision granting to the Executive authority to issue ad interim appointments.
Moreover, the underlying reason for denying the power to revoke after the appointee has qualified is
the latter’s equitable rights. Yet it is doubtful if such equity might be set up as in the present case,
considering the hurried maneuvers detracting from that degree of good faith, morality and propriety
which form the basic foundation of claims to equitable relief. Action dismissed.

* Normally, the President has the benefit of the advice of CA when he makes appointments with their
consent (Aytona v. Castillo, et al., 4 SCRA 1, 10).

UNEXPIRED PORTION

FUNA V VILLAR, APRIL 24, 2012

FACTS:

Pres Arroyo appointed Carague as Chairman of the COA for a term of 7 years. Carague’s term of office
started on February 2, 2001 to end on February 2, 2008. On February 7, 2004, Villar was appointed as
the third member of the COA for a term of 7 years starting February 2, 2004 until February 2, 2011.
Following the retirement of Carague on February 2, 2008 and during the fourth year of Villar as COA
Commissioner, Villar was designated as Acting Chairman of COA from February 4, 2008 to April 14, 2008.
Subsequently, on April 18, 2008, Villar was nominated and appointed as Chairman of the COA. Shortly
thereafter, the Commission on Appointments confirmed his appointment. He was to serve as Chairman
of COA, as expressly indicated in the appointment papers, until the expiration of the original term of his
office as COA Commissioner or on February 2, 2011.

Issue:

1. W/N a promotional appointment from the position of Commissioner to Chairman is

constitutionally permissible and does NOT constitute reappointment as barred by the Article IX
(D), Sec 1 (2) of the Constitution

RULING:

Yes. A commissioner who resigns after serving in the Commission for less than seven years is eligible for
an appointment to the position of Chairman for the unexpired portion of the term of the departing
chairman. Such appointment is not covered by the ban on reappointment, provided that the aggregate
period of the length of service as commissioner and the unexpired period of the term of the predecessor
will not exceed 7 years and provided further that the vacancy in the position of Chairman resulted from
death, resignation, disability or removal by impeachment.

Reappointment found in Sec. 1(2), Art. IX (D) means a movement to one and the same office
(Commissioner to Commissioner or Chairman to Chairman). On the other hand, an appointment
involving a movement to a different position or office (Commissioner to Chairman) would constitute a
new appointment and, hence, not, in the strict legal sense, a reappointment barred under the
Constitution.

Issue 2:
W/N the appointment of Villar to the position of COA Chairman which is made vacant by the expiration
of term of the predecessor is valid

RULING:

No. The Constitution clearly provides that if the vacancy results from the expiration of the term of the
predecessor, the appointment of a COA member shall be for a fixed 7-year term. Here, the vacancy in
the position of COA chairman left by Carague in February 2, 2008 resulted from the expiration of his 7-
year term. Under that circumstance, there can be no unexpired portion of the term of the predecessor
to speak of. Hence, in light of the 7-year aggregate rule, Villar’s appointment to a full term is not valid as
he will be allowed to serve more than seven 7 years under the constitutional ban. Villar had already
served 4 years of his 7-year term as COA Commissioner. A shorter term, however, to comply with the 7-
year aggregate rule would also be invalid as the corresponding appointment would effectively breach
the clear purpose of the Constitution of giving to every appointee so appointed subsequent to the first
set of commissioners, a fixed term of office of 7 years.

POWER OF REMOVAL
KILUSANG BAYAN SA PAGLILINGKOD NG MGA MAGTITINDA NG BAGONG PAMILIHANG BAYAN NG
MUNTINLUPA v. CARLOS G. DOMINGUEZ, GR No. 85439, 1992-01-13

Facts:

The Kilusang Bayan case), questions the validity of the Order of 28 October 1988 of then Secretary of
Agriculture Hon. Carlos G. Dominguez which ordered: (1) the take-over by the Department of Agriculture
of the... management of the petitioner Kilusang Bayan sa Paglilingkod Ng Mga Magtitinda Ng Bagong
Pamilihang Bayan ng Muntinlupa, Inc. (KBMBPM) pursuant to the Department's regulatory and
supervisory powers under Section 8 of P.D. No. 175, as amended, and Section 4 of Executive Order No.
13,... (2) the creation of a Management Committee which shall assume the management of KBMBPM
upon receipt of the order, (3) the disbandment of the Board of Directors, and (4) the turn over of all
assets, properties and records of the KBMBPM to the Management Committee.

Bunye case, seeks the nullification of the Resolution of 4 January 1990 of the Sandiganbayan admitting
the Amended Information against petitioners in Criminal Case No. 13966 and denying their motion to
order or... direct preliminary investigation, and its Resolution of 1 February 1990 denying the motion to
reconsider the former.

Muntinlupa (hereinafter, Municipality), Metro Manila, thru its then Mayor Santiago Carlos, Jr., entered
into a contract with the KILUSANG BAYAN SA PAGLILINGKOD NG MGA MAGTITINDA SA BAGONG
PAMILIHANG BAYAN NG MUNTINLUPA, INC.

(KBMBPM)... operation of the new Muntinlupa public market... twenty-five (25) year term commencing
on 2 September 1985, renewable for a like period, unless sooner terminated... and/or rescinded by
mutual agreement of the parties, at a monthly consideration of Thirty-Five Thousand Pesos (P35,000) to
be paid by the KBMBPM within the first five (5) days of each month which shall, however, be increased
by ten percent (10%) each year during the first five (5) years only.

KBMBPM is a service cooperative organized by and composed of vendors occupying the New
Muntinlupa Public Market in Alabang, Muntinlupa, Metro Manila pursuant to Presidential Decree No.
175 and Letter of Implementation No. 23. Following his assumption into office as the new mayor
succeeding Santiago Carlos, Jr., petitioner Ignacio Bunye, claiming to be particularly scandalized by the
"virtual 50-year term of the agreement, contrary to the provision of Section 143, paragraph 3 of Batas
Pambansa Blg. 337," and the "patently inequitable rental," directed a review of the aforesaid contract.

The letter of Hon. Elfren Cruz of the MMC even granted the Municipality authority "to take the
necessary legal steps for the cancellation/rescission of the above cited contract and make
representations with

KBMBPM for the immediate transfer/takeover of the possession, management and operation of the
New Muntinlupa Market to the Municipal Government of Muntinlupa."... upon representations made by
Bunye with the Municipal Council, the latter approved on 1 August 1988 Resolution No. 45 abrogating
the contract.

Bunye, together with his co-petitioners and elements of the Capital Command of the

Philippine Constabulary, proceeded, on 19 August 1986, to the public market and announced to the
general public and the stallholders thereat that the Municipality was taking over the management and
operation of the facility, and that the stallholders should thenceforth pay their... market fees to the
Municipality, thru the Market Commission, and no longer to the KBMBPM.

KBMBPM filed with Branch 13 of the Regional Trial Court of Makati a complaint for breach of contract,
specific performance and damages with prayer for a writ of preliminary injunction against the
Municipality and its officers, which was docketed as Civil Case No. 88-1702.[

The writ applied for having been denied,[7] the KBMBPM officers resisted the attempts of Bunye and
company to complete the take-over; they continued holding office in the KBS building, under their
respective official capacities Amado Perez filed with the Office of the Ombudsman a letter-complaint
charging Bunye and his co-petitioners with oppression, harassment, abuse of authority and violation of
the Anti-Graft and Corrupt Practices Act[10] for taking over... the management and operation of the
public market from KBMBPM.

Ombudsman issued a first indorsement on 4 April 1989 referring to "Judge Gualberto J. de la Llana,
Acting Director, IEO/RSSO, this Office, the within records of OSP Case No. 88-02110 … for further
preliminary investigation…. de la Llana recommended the filing of an information for violation of section
3 (e) of the Anti-Graft and Corrupt Practices Act. Bunye, et al. were served arrest warrants issued by the
Sandiganbayan. Detained at the NBI. Sandiganbayan issued an order on 18 October 1989 deferring
arraignment and directing the parties to submit their respective memoranda. Sandiganbayan handed
down a Resolution[58] denying for lack of merit the Omnibus Motion to Remand the Case To The Office
of the Ombudsman, to Defer Arraignment and to Suspend Proceedings. Sandiganbayan handed down a
Resolution[62] admitting the Amended Information and denying the motion to direct preliminary
investigation.

Petitioners claim that respondent Sandiganbayan acted without or in excess of jurisdiction or with
manifest grave abuse of discretion amounting to lack of jurisdiction in denying petitioners their right to
preliminary investigation and in admitting the Amended Information Respondents challenge the
personality of the petitioners to bring this action, set up the defense of non-exhaustion of administrative
remedies, and assert that the Order was lawfully and validly issued under the above decree and
Executive Order.

Issues:

The present dispute revolves around the validity of the antecedent proceedings which led to the filing of
the original information on 18 January 1989 and the amended information afterwards.

Ruling:

We find merit in the petition and the defenses interposed do not persuade Us.

Petitioners have the personality to file the instant petition and ask, in effect, for their reinstatement as
Section 3, Rule 65 of the Rules of Court, defining an action for mandamus, permits a person who has
been excluded from the use and enjoyment of a right or office to... which he is entitled, to file suit.

As to failure to exhaust administrative remedies, the rule is well-settled that this requirement does not
apply where the respondent is a department secretary whose acts, as an alter ego of the President, bear
the implied approval of the latter, unless actually disapproved by... him

This doctrine of qualified political agency ensures speedy access to the courts when most needed. There
was no need then to appeal the decision to the office of the President; recourse to the courts could be
had immediately.

the doctrine... of exhaustion of administrative remedies also yields to other exceptions, such as when
the question involved is purely legal, as in the instant case,[70] or where the questioned act is patently
illegal, arbitrary or oppressive... there is an established procedure for the removal of directors and
officers of cooperatives. It is likewise manifest that the right to due process is respected by the express
provision on the opportunity to be heard. But even without said provision,... petitioners cannot be
deprived of that right.

The procedure was not followed in this case. Respondent Secretary of Agriculture arrogated unto
himself the power of the members of the KBMBPM who are authorized to vote to remove the
petitioning directors and officers. He cannot take refuge under Section 8 of P.D. No. 175... which grants
him authority to supervise and regulate all cooperatives. This section does not give him that right
An administrative officer has only such powers as are expressly granted to him and those necessarily
implied in the exercise thereof.[72] These powers should not be extended by implication beyond what
may be necessary for their just and reasonable... execution.

Supervision and control include only the authority to: (a) act directly whenever a specific function is
entrusted by law or regulation to a subordinate; (b) direct the performance of duty; restrain the
commission of acts; (c) review, approve, reverse or modify acts and... decisions of subordinate officials
or units; (d) determine priorities in the execution of plans and programs; and (e) prescribe standards,
guidelines, plans and programs

(3) take such action as may be necessary for the proper performance of official functions, including
rectification of violations, abuses and other forms of... mal-administration; (4) review and pass upon
budget proposals of such agencies but may not increase or add to them.

The power to summarily disband the board of directors may not be inferred from any of the foregoing
as both P.D. No. 175 and the by-laws of the KBMBPM explicitly mandate the manner by which directors
and officers are to be removed. The Secretary should have known better than... to disregard these
procedures and rely on a mere petition by the general membership of the KBMBPM and an on-going
audit by Department of Agriculture auditors in exercising a power which he does not have, expressly or
impliedly... neither suspension nor cancellation includes the take-over and ouster of incumbent
directors and officers, otherwise the law itself would have expressly so stated. Secondly, even granting
that the law intended such as postulated, there is the requirement of a... hearing. None was conducted.

Even if We grant, for the sake of argument, that said power includes the power to disband the board of
directors and remove the officers of the KBMBPM, and that a hearing was not expressly required in the
law, still the Order can be validly issued only after giving... due process to the affected parties, herein
petitioners. Due process is guaranteed by the Constitution[75] and extends to administrative
proceedings.

Nevertheless, a plea of a denial of procedural due process does not lie where a defect consisting in an
absence of notice of hearing was thereafter cured by the aggrieved party himself as... when he had the
opportunity to be heard on a subsequent motion for reconsideration. This is consistent with the
principle that what the law prohibits is not the absence of previous notice but the absolute absence
thereof and lack of an opportunity to be heard

In the instant case, there was no notice of a hearing on the alleged petition of the general membership
of the KBMBPM; there was, as well, not even a semblance of a hearing. The Order was based solely on
an alleged petition by the general membership of the KBMBPM. There was... then a clear denial of due
process.

If there were genuine grievances against petitioners, the affected members should have timely raised
these issues in the annual general assembly or in a special general assembly. Or, if such a remedy would
be futile for some reason or another, judicial recourse was... available.
The right of an accused to a preliminary investigation is not among the rights guaranteed him in the Bill
of Rights... the preliminary investigation in criminal cases is not a creation of the Constitution; its... origin
is statutory and it exists and the right thereto can be invoked when so established and granted by law."
It is so specifically granted by procedural law.

Independently of the foregoing, the absence of such investigation [preliminary] did not impair the
validity of the information or otherwise render it defective

In the instant case, even if it is to be conceded for argument's sake that there was in fact no preliminary
investigation, the Sandiganbayan, per Doromal vs. Sandiganbayan,[85] "should merely suspend or hold
in abeyance proceedings upon the questioned

Amended Information and remand the case to the Office of the Ombudsman for him to conduct a
preliminary investigation."

It is Our view, however, that petitioners were not denied the right to preliminary investigation

Petitioners were provided a reasonable period within which to submit their counter-affidavits; they did
not avail of the original period; they moved for an extension of at least fifteen (15) days from 22 October
1988. Despite the urgency of its nature, the motion was sent by... mail.

It may not then be successfully asserted that the counter-affidavits were not considered by the
Ombudsman in approving the information.

It is indisputable that the respondents were not remiss in their duty to afford the petitioners the
opportunity to contest the charges thrown their way. Due process does not require that the accused
actually file his counter-affidavits before the preliminary investigation is... deemed completed. All that is
required is that he be given the opportunity to submit such if he is so minded

Respondent Sandiganbayan did not then commit any grave abuse of discretion

WHEREFORE, judgment is hereby rendered:

GRANTING the petition in G.R. No. 85439; declaring null and void the challenged Order of 28 October
1988 of the respondent Secretary of Agriculture; but denying, for having become moot and academic,
the prayer of petitioners that they be restored to their positions in the
KBMBPM.

DISMISSING, for lack of merit, the petition in G.R. No. 91927.

POWER OF CONTROL AND SUPERVASION

FRANKLIN M. DRILON v. MAYOR ALFREDO S. LIM, GR No. 112497, 1994-08-04

Facts:

Procedure For Approval And Effectivity Of Tax Ordinances And Revenue Measures; Mandatory Public
Hearings. - The procedure for approval of local tax ordinances and revenue measures shall be in
accordance with the provisions of this Code: Provided, That public... hearings shall be conducted for the
purpose prior to the enactment thereof; Provided, further, That any question on the constitutionality or
legality of tax ordinances or revenue measures may be raised on appeal within thirty (30) days from the
effectivity thereof to the

Secretary of Justice who shall render a decision within sixty (60) days from the date of receipt of the
appeal: Provided, however, That such appeal shall not have the effect of suspending the effectivity of
the ordinance and the accrual and payment of the tax, fee, or charge... levied therein: Provided, finally,
That within thirty (30) days after receipt of the decision or the lapse of the sixty-day period without the
Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings with a
court of competent... jurisdiction.

Pursuant thereto, the Secretary of Justice had, on appeal to him of four oil companies and a taxpayer,
declared Ordinance No. 7794, otherwise known as the Manila Revenue Code, null and void for non-
compliance with the prescribed procedure in the enactment of tax ordinances... and for containing
certain provisions contrary to law and public policy.[1]

In a petition for certiorari filed by the City of Manila, the Regional Trial Court of Manila revoked the
Secretary's resolution and sustained the ordinance, holding inter alia that the procedural requirements
had been observed. More importantly, it declared

Section 187 of the Local Government Code as unconstitutional because of its vesture in the Secretary of
Justice of the power of control over local governments in violation of the policy of local autonomy
mandated in the Constitution and of the specific provision therein... conferring on the President of the
Philippines only the power of supervision over local governments.[2]

In the case before us, Judge Rodolfo C. Palattao declared Section 187 of the Local Government Code
unconstitutional insofar as it empowered the Secretary of Justice to review tax ordinances and,
inferentially, to annul them. He cited the familiar distinction between control... and supervision, the first
being "the power of an officer to alter or modify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for the latter," while the second
is "the power of a superior officer to... see to it that lower officers perform their functions in accordance
with law."[6] His conclusion was that the challenged section gave to the Secretary the power of control
and not of supervision only as vested by the Constitution... in the President of the Philippines. This was,
in his view, a violation not only of Article X, specifically Section 4 thereof,[7] and of Section 5 on the
taxing powers of local governments,[8] and the policy of local autonomy in general.

Issues:

Is the constitutionality of Section 187 of the Local Government Code reading as follows:
Ruling:

the judgment is hereby rendered REVERSING the challenged decision of the Regional Trial Court insofar
as it declared Section 187 of the Local Government Code unconstitutional but AFFIRMING its finding that
the procedural requirements in the enactment of the

Manila Revenue Code have been observed. No pronouncement as to costs.

Principles:

Section 187 authorizes the Secretary of Justice to review only the constitutionality or legality of the tax
ordinance and, if warranted, to revoke it on either or both of these grounds. When he alters or modifies
or sets aside a tax ordinance, he is not also permitted to... substitute his own judgment for the judgment
of the local government that enacted the measure. Secretary Drilon did set aside the Manila Revenue
Code, but he did not replace it with his own version of what the Code should be. He did not pronounce
the ordinance unwise or... unreasonable as a basis for its annulment. He did not say that in his judgment
it was a bad law. What he found only was that it was illegal. All he did in reviewing the said measure was
determine if the petitioners were performing their functions in accordance with law, that is,... with the
prescribed procedure for the enactment of tax ordinances and the grant of powers to the city
government under the Local Government Code. As we see it, that was an act not of control but of mere
supervision.

An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his
discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself.
Supervision does not cover such authority. The supervisor or... superintendent merely sees to it that the
rules are followed, but he himself does not lay down such rules, nor does he have the discretion to
modify or replace them. If the rules are not observed, he may order the work done or re-done but only
to conform to the prescribed rules.

He may not prescribe his own manner for the doing of the act. He has no judgment on this matter
except to see to it that the rules are followed. In the opinion of the Court, Secretary Drilon did precisely
this, and no more nor less than this, and so performed an act not of... control but of mere supervision.

The case of Taule v. Santos[9] cited in the decision has no application here because the jurisdiction
claimed by the Secretary of Local Governments over election contests in the Katipunan ng Mga Barangay
was held to belong to... the Commission on Elections by constitutional provision. The conflict was over
jurisdiction, not supervision or control.

Significantly, a rule similar to Section 187 appeared in the Local Autonomy Act, which provided in its
Section 2 as follows:

A tax ordinance shall go into effect on the fifteenth day after its passage, unless the ordinance shall
provide otherwise: Provided, however, That the Secretary of Finance shall have authority to suspend the
effectivity of any ordinance within one hundred and twenty... days after receipt by him of a copy
thereof, if, in his opinion, the tax or fee therein levied or imposed is unjust, excessive, oppressive, or
confiscatory, or when it is contrary to declared national economy policy, and when the said Secretary
exercises this authority the... effectivity of such ordinance shall be suspended, either in part or as a
whole, for a period of thirty days within which period the local legislative body may either modify the
tax ordinance to meet the objections thereto, or file an appeal with a court of competent... jurisdiction;
otherwise, the tax ordinance or the part or parts thereof declared suspended, shall be considered as
revoked. Thereafter, the local legislative body may not reimpose the same tax or fee until such time as
the grounds for the suspension thereof shall have ceased to... exist.

That section allowed the Secretary of Finance to suspend the effectivity of a tax ordinance if, in his
opinion, the tax or fee levied was unjust, excessive, oppressive or confiscatory. Determination of these
flaws would involve the exercise of judgment or... discretion and not merely an examination of whether
or not the requirements or limitations of the law had been observed; hence, it would smack of control
rather than mere supervision. That power was never questioned before this Court but, at any rate, the
Secretary of

Justice is not given the same latitude under Section 187. All he is permitted to do is ascertain the
constitutionality or legality of the tax measure, without the right to declare that, in his opinion, it is
unjust, excessive, oppressive or confiscatory. He has no discretion on... this matter. In fact, Secretary
Drilon set aside the Manila Revenue Code only on two grounds, to wit, the inclusion therein of certain
ultra vires provisions and non-compliance with the prescribed procedure in its enactment. These
grounds affected the legality, not... the wisdom or reasonableness, of the tax measure.

The issue of non-compliance with the prescribed procedure in the enactment of the Manila Revenue
Code is another matter.

In his resolution, Secretary Drilon declared that there were no written notices of public hearings on the
proposed Manila Revenue Code that were sent to interested parties as required by Art. 276(b) of the
Implementing Rules of the Local Government Code nor were copies of the... proposed ordinance
published in three successive issues of a newspaper of general circulation pursuant to Art. 276(a). No
minutes were submitted to show that the obligatory public hearings had been held. Neither were copies
of the measure as approved posted in prominent places... in the city in accordance with Sec. 511(a) of
the Local Government Code. Finally, the Manila Revenue Code was not translated into Pilipino or
Tagalog and disseminated among the people for their information and guidance, conformably to Sec.
59(b) of the Code.

Judge Palattao found otherwise. He declared that all the procedural requirements had been observed in
the enactment of the Manila Revenue Code and that the City of Manila had not been able to prove such
compliance before the Secretary only because he had given it only five... days within which to gather
and present to him all the evidence (consisting of 25 exhibits) later submitted to the trial court.

To get to the bottom of this question, the Court acceded to the motion of the respondents and called for
the elevation to it of the said exhibits. We have carefully examined every one of these exhibits and agree
with the trial court that the procedural requirements have... indeed been observed. Notices of the
public hearings were sent to interested parties as evidenced by Exhibits G-1 to 17. The minutes of the
hearings are found in Exhibits M, M-1, M-2, and M-3. Exhibits B and C show that the proposed
ordinances were published in the

Balita and the Manila Standard on April 21 and 25, 1993, respectively, and the approved ordinance was
published in the July 3, 4, 5, 1993 issues of the Manila Standard and in the July 6, 1993 issue of Balita, as
shown by Exhibits Q, Q-1,... Q-2, and Q-3.

The only exceptions are the posting of the ordinance as approved but this omission does not affect its
validity, considering that its publication in three successive issues of a newspaper of general circulation
will satisfy due process. It has also not been shown that the... text of the ordinance has been translated
and disseminated, but this requirement applies to the approval of local development plans and public
investment programs of the local government unit and not to tax ordinances.

We make no ruling on the substantive provisions of the Manila Revenue Code as their validity has not
been raised in issue in the present petition.

DOCTRINE OF QUALIFIED POLITICAL AGENCY

CITIZEN J. ANTONIO M. CARPIO v. EXECUTIVE SECRETARY, GR No. 96409, 1992-02-14

Facts:

Republic Act No. 6975 entitled "AN ACT ESTABLISHING THE PHILIPPINE NATIONAL POLICE UNDER A
REORGANIZED DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, AND FOR OTHER PURPOSES"
as the consolidated version of House Bill

No. 23614 and Senate Bill No. 463.

Act's approval by President Corazon C. Aquino on December 13, 1990, it was published on December 17,
1990.[... he "one police force, national in scope, and civilian in character" provision that is now Article
XVI, Section 6 of the 1987 Constitution.

Issues:

December 20, 1990, seeking this Court's declaration of unconstitutionality of RA 6975 with prayer for
temporary restraining... order.

Ruling:

In the main, petitioner herein respectfully advances the view that RA 6975 emasculated the National
Police Commission by limiting its power "to administrative control" over the Philippine National Police
(PNP), thus, "control" remained with the Department
Secretary under whom both the National Police Commission and the PNP were placed.

the President has control of all executive departments, bureaus, and offices[16] to lay at rest petitioner's
contention on the... matter.

This presidential power of control over the executive branch of government extends over all executive
officers from Cabinet Secretary to the lowliest clerk... to mean "the power of [the President] to alter or
modify or nullify or set aside what a subordinate officer had done in the performance of his duties and
to substitute the judgment of the former with that of the... latter." It is said to be at the very "heart of
the meaning of Chief Executive."

Sec. 26. The Command and direction of the PNP shall be vested in the Chief of the PNP. xxx Such
command and direction of the Chief of the PNP may be delegated to subordinate officials with respect
to the units under their respective commands, in accordance with the... rules and regulations prescribed
by the Commission.

Sec. 35. x x x To enhance police operational efficiency and effectiveness, the Chief of the PNP may
constitute such other support units as may be necessary subject to the approval of the Commission

Sec. 37. xxx There shall be established a performance evaluation system which shall be administered in
accordance with the rules, regulations and standards, and a code of conduct promulgated by the
Commission for members of the PNP.

Petitioner further asserts that in manifest derogation of the power of control of the NAPOLCOM over
the PNP, RA 6975 vested the power to choose the PNP Provincial Director and the Chiefs of Police in the
Governors and Mayors, respectively; the power of "operational... supervision and control" over police
units in city and municipal mayors; in the Civil Service Commission, participation in appointments to the
positions of Senior Superintendent to Deputy Director-General as well as the administration of
qualifying entrance examinations;... disciplinary powers over PNP members in the "People's Law
Enforcement Boards" and in city and municipal mayors.

Sec. 51. Powers of Local Government Officials over the PNP Units or Forces.

Governors and mayors shall be deputized as representatives of the Commission in their respective
territorial jurisdictions.

MILITARY POWERS

Sanlakas v. Execuitive Sec.,Angelo Reyes (G.R. No. 159085)

February 3, 2004 | G.R. No. 159085

FACTS:
On July 27, 2003, some 300 junior officers and enlisted men of the Armed Forces of the Philippines
stormed into the Oakwood Premiere apartments in Makati City. Bewailing the corruption in the AFP, the
soldiers demanded, among other things, the resignation of President Gloria Arroyo, Secretary of
Defense Angelo Reyes, and PNP Chief Hermogenes Ebdane.

In the wake of the Oakwood occupation, the President issued later in the day Proclamation No. 427
("Declaring a State of Rebellion") and General Order No. 4 ("Directing the AFP and the PNP to Suppress
the Rebellion"), both declaring “a state of rebellion” and calling out the Armed Forces to suppress the
rebellion.

By the evening of July 27, 2003, the Oakwood occupation had ended. After hours-long negotiations, the
soldiers agreed to return to barracks. The President, however, did not immediately lift the declaration of
a state of rebellion and did so only on August 1, 2003, through Proclamation No. 435 ("Declaring that
the State of Rebellion Has Ceased to Exist").

Subsequently, several petitions have been filed challenging the constitutionality of the President
Arroyo's declaration of state of rebellion. These were:

• G.R. No. 159085 (Sanlakas and PM v. Executive Secretary, et al.) - Party-list organizations Sanlakas and
Partido ng Manggagawa (PM), contend that Section 18, Article VII of the Constitution does not require
the declaration of a state of rebellion to call out the armed forces. They further submit that, because of
the cessation of the Oakwood occupation, thereexists no sufficient factual basis for the proclamation by
the President of a state of rebellion for an indefinite period.

• G.R. No. 159103 (SJS Officers/Members v. Hon. Executive Secretary, et al.) - Officers/members of the
Social Justice Society (SJS), “Filipino citizens, taxpayers, law professors and bar reviewers" claim that
Section 18, Article VII of the Constitution does not authorize the declaration of a state of rebellion. They
contend that the declaration is a “constitutional anomaly” that “confuses, confounds and misleads”
because “[o]verzealous public officers, acting pursuant to such proclamation or general order, are liable
to violate the constitutional right of private citizens.” Petitioners also submit that the proclamation is a
circumvention of the report requirement under the same Section 18, Article VII, commanding the
President to submit a report to Congress within 48 hours from the proclamation of martial law. Finally,
they contend that the presidential issuances cannot be construed as an exercise of emergency powers
as Congress has not delegated any such power to the President.

• G.R. No. 159185 (Rep. Suplico et al. v. President Macapagal-Arroyo and Executive Secretary Romulo) -
petitioners brought suit as citizens and as Members of the House of Representatives whose rights,
powers and functions were allegedly affected by the declaration of a state of rebellion. Petitioners do
not challenge the power of the President to call out the Armed Forces. They argue, however, that the
declaration of a state of rebellion is a “superfluity,” and is actually an exercise of emergency
powers.Such exercise, it is contended, amounts to a usurpation of the power of Congress granted by
Section 23 (2), Article VI of the Constitution.
• G.R. No. 159196 (Pimentel v. Romulo, et al.) - Senator Pimentel assails the subject presidential
issuances as “an unwarranted, illegal and abusive exercise of a martial law power that has no basis
under the Constitution.” In the main, petitioner fears that the declaration of a state of rebellion “opens
the door to the unconstitutional implementation of warrantless arrests” for the crime of rebellion.

ISSUES:

1. Whether or not the case is moot and academic, given that the President has already declared the
cessation of the state of rebellion.
2. Whether or not petitioners have legal standing to file the instant petitions.
3. Whether or not Section 18, Art. VII of the 1987 Constitution grants the President the power to declare
a state of rebellion.
4. Whether or not the declaration of a state of rebellion is a mere superfluity.
5. Whether or not the declaration of a state of rebellion has an effect on the rights of the citizens.

HELD:

1. Yes, the Court held that the case is moot and academic, judicial power being limited to the
determination of "actual controversies." However, the Court treated the immediate case as one that is
"capable of repetition yet evading review." Hence, the discussion of the merits and demerits of the
issues presented.

2. Only petitioners Rep. Suplico et al. and Sen. Pimentel, as Members of Congress, have standing to
challenge the subject issuances. To the extent the powers of Congress are impaired, so is the power of
each member thereof, since his office confers a right to participate in the exercise of the powers of that
institution. An act of the Executive which injures the institution of Congress causes a derivative but
nonetheless substantial injury, which can be questioned by a member of Congress. In such a case, any
member of Congress can have a resort to the courts.

3. Yes, the Court held that it is within her prerogative as Chief Executive for the President to declare a
state of rebellion. For the fact is, the Constitution vests the President not only with Commander-in-Chief
powers but, first and foremost, with Executive powers.

Section 18, Art. VII reads 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." This provision grants the President, as Commander-in-
Chief, a “sequence” of “graduated power[s].” From the most to the least benign, these are: the calling
out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare
martial law. 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.’”

It is equally true that Section 18, Article VII does not expressly prohibit the President from declaring a
state of rebellion. The President’s authority to declare a state of rebellion springs in the main from her
powers as chief executive and, at the same time, draws strength from her Commander-in-Chief powers.
The Solicitor General points out the statutory authority for such a declaration may be found in Section 4,
Chapter 2 (Ordinance Power), Book III (Office of the President) of the Revised Administrative Code of
1987, which states:

SEC. 4. Proclamations. – Acts of the President fixing a date or declaring a status or condition of public
moment or interest, upon the existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force of an executive order.

4. Yes, the declaration of a state of rebellion is a mere superfluity. At most, it only gives notice to the
nation that such a state exists and that the armed forces may be called to prevent or suppress it. For all
legal intents, the declaration is deemed not written.

5. No. Apprehensions that the military and police authorities may resort to warrantless arrests are
unfounded. In quelling or suppressing the rebellion, the authorities may only resort to warrantless
arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if
the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on the
declaration of a state of rebellion. In other words, a person may be subjected to a warrantless arrest for
the crime of rebellion whether or not the President has declared a state of rebellion, so long as the
requisites for a valid warrantless arrest are present.

The argument that the declaration of a state of rebellion amounts to a declaration of martial law and,
therefore, is a circumvention of the report requirement, is a leap of logic. There is no indication that
military tribunals have replaced civil courts in the “theater of war” or that military authorities have
taken over the functions of civil government. There is no allegation of curtailment of civil or political
rights. There is no indication that the President has exercised judicial and legislative powers. In short,
there is no illustration that the President has attempted to exercise or has exercised martial law powers.

COMMANDER IN CHIEF

Ex parte Milligan, 71 U.S. 4 Wall. 2 2 (1866)

Facts:
1. Circuit Courts, as well as the judges thereof, are authorized, by the fourteenth section of the Judiciary
Act, to issue the writ of habeas corpus for the purpose of inquiring into the cause of commitment, and
they have jurisdiction, except in cases where the privilege of the writ is suspended, to hear and
determine the question whether the party is entitled to be discharged.

2. The usual course of proceeding is for the court, on the application of the prisoner for a writ of habeas
corpus, to issue the writ, and, on its return, to hear and dispose of the case; but where the cause of
imprisonment is fully shown by the petition, the court may, without issuing the writ, consider and
determine whether, upon the facts presented in the petition, the prisoner, if brought before the court,
would be discharged.
3. When the Circuit Court renders a final judgment refusing to discharge the prisoner, he may bring the
case here by writ of error, and, if the judges of the Circuit Court, being opposed in opinion, can render
no judgment, he may have the point upon which the disagreement happens certified to this tribunal.

4. A petition for a writ of habeas corpus, duly presented, is the institution of a cause on behalf of the
petitioner, and the allowance or refusal of the process, as well as the subsequent disposition of the
prisoner is matter of law, and not of discretion.

5. A person arrested after the passage of the act of March 3d, 1863, "relating to habeas corpus and
regulating judicial proceedings in certain cases," and under the authority of said act, was entitled to his
discharge if not indicted or presented by the grand jury convened at the first subsequent term of the
Circuit or District Court of the United States for the District.

6. The omission to furnish a list of the persons arrested to the judges of the Circuit or District Court as
provided in the said act did not impair the right of said person, if not indicted or presented, to his
discharge.

7. Military commissions organized during the late civil war, in a State not invaded and not engaged in
rebellion, in which the Federal courts were open, and in the proper and unobstructed exercise of their
judicial functions, had no jurisdiction to try, convict, or sentence for any criminal offence, a citizen who
was neither a resident of a rebellious State nor a prisoner of war, nor a person in the military or naval
service. And Congress could not invest them with any such power.

8. The guaranty of trial by jury contained in the Constitution was intended for a state of war, as well as a
state of peace, and is equally binding upon rulers and people at all times and under all circumstances.

9. The Federal authority having been unopposed in the State of Indiana, and the Federal courts open for
the trial of offences and the redress of grievances, the usages of war could not, under the Constitution,
afford any sanction for the trial there of a citizen in civil life not connected with the military or naval
service, by a military tribunal, for any offence whatever.

10. Cases arising in the land or naval forces, or in the militia in time of war or public danger, are
excepted from the necessity of presentment or indictment by a grand jury, and the right of trial by jury
in such cases is subject to the same exception.

11. Neither the President nor Congress nor the Judiciary can disturb any one of the safeguards of civil
liberty incorporated into the Constitution except so far as the right is given to suspend in certain cases
the privilege of the writ of habeas corpus.

12. A citizen not connected with the military service and a resident in a State where the courts are open
and in the proper exercise or their jurisdiction cannot, even when the privilege of the writ of habeas
corpus is suspended, be tried, convicted, or sentenced otherwise than by the ordinary courts of law.
13. Suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ
issues as a matter of course, and, on its return, the court decides whether the applicant is denied the
right of proceeding any further.

14. A person who is a resident of a loyal State, where he was arrested, who was never resident in any
State engaged in rebellion, nor connected with the military or naval service, cannot be regarded as a
prisoner of war.

This case came before the court upon a certificate of division from the judges of the Circuit Court for
Indiana, on a petition for discharge from unlawful imprisonment.

The case was thus:

An act of Congress -- the Judiciary Act of 1789, [Footnote 1] section 14 -- enacts that the Circuit Courts of
the United States

"Shall have power to issue writs of habeas corpus. And that either of the justices of the Supreme Court,
as well as judges of the District Court, shall have power to grant writs of habeas corpus for the purpose
of an inquiry into the cause of commitment. Provided,"

&c.

Another act -- that of March 3d, 1863, [Footnote 2] "relating to habeas corpus, and regulating judicial
proceedings in certain cases" -- an act passed in the midst of the Rebellion -- makes various provisions in
regard to the subject of it.

The first section authorizes the suspension, during the Rebellion, of the writ of habeas corpus,
throughout the United States, by the President.

Two following sections limited the authority in certain respects.

The second section required that lists of all persons, being citizens of States in which the administration
of the laws had continued unimpaired in the Federal courts, who were then held, or might thereafter be
held, as prisoners of the United States, under the authority of the President, otherwise than as prisoners
of war, should be furnished by the Secretary of State and Secretary of War to the judges of the Circuit
and District Courts. These lists were to contain the names of all persons, residing within their respective
jurisdictions, charged with violation of national law. And it was required, in cases where the grand jury in
attendance upon any of these courts should terminate its session without proceeding by indictment or
otherwise against any prisoner named in the list, that the judge of the court should forthwith make an
order that such prisoner, desiring a discharge, should be brought before him or the court to be
discharged, on entering into recognizance, if required, to keep the peace and for good behavior, or to
appear, as the court might direct, to be further dealt with according to law. Every officer of the United
States having custody of such prisoners was required to obey and execute the judge's order, under
penalty, for refusal or delay, of fine and imprisonment.
The third section enacts, in case lists of persons other than prisoners of war then held in confinement or
thereafter arrested, should not be furnished within twenty days after the passage of the act, or, in cases
of subsequent arrest, within twenty days after the time of arrest, that any citizen, after the termination
of a session of the grand jury without indictment or presentment, might, by petition alleging the facts
and verified by oath, obtain the judge's order of discharge in favor of any person so imprisoned, on the
terms and conditions prescribed in the second section.

This act made it the duty of the District Attorney of the United States to attend examinations on
petitions for discharge.

By proclamation, [Footnote 3] dated the 15th September following, the President, reciting this statute,
suspended the privilege of the writ in the cases where, by his authority, military, naval, and civil officers
of the United States

"hold persons in their custody either as prisoners of war, spies, or aiders and abettors of the enemy, . . .
or belonging to the land or naval force of the United States, or otherwise amenable to military law, or
the rules and articles of war, or the rules or regulations prescribed for the military or naval services, by
authority of the President, or for resisting a draft, or for any other offence against the military or naval
service."

With both these statutes and this proclamation in force, Lamdin P. Milligan, a citizen of the United
States, and a resident and citizen of the State of Indiana, was arrested on the 5th day of October, 1864,
at his home in the said State, by the order of Brevet Major-General Hovey, military commandant of the
District of Indiana, and by the same authority confined in a military prison at or near Indianapolis, the
capital of the State. On the 21st day of the same month, he was placed on trial before a "military
commission," convened at Indianapolis, by order of the said General, upon the following charges,
preferred by Major Burnett, Judge Advocate of the Northwestern Military Department, namely:

1. "Conspiracy against the Government of the United States;"

2. "Affording aid and comfort to rebels against the authority of the United States;"

3. "Inciting insurrection;"

4. "Disloyal practices;" and

5. "Violation of the laws of war."

Under each of these charges, there were various specifications. The substance of them was joining and
aiding, at different times between October, 1863, and August, 1864, a secret society known as the Order
of American Knights or Sons of Liberty, for the purpose of overthrowing the Government and duly
constituted authorities of the United States; holding communication with the enemy; conspiring to seize
munitions of war stored in the arsenals; to liberate prisoners of war, &c.; resisting the draft, &c.; . . .
"at a period of war and armed rebellion against the authority of the United States, at or near
Indianapolis [and various other places specified] in Indiana, a State within the military lines of the army
of the United States and the theatre of military operations, and which had been and was constantly
threatened to be invaded by the enemy."

These were amplified and stated with various circumstances.

An objection by him to the authority of the commission to try him being overruled, Milligan was found
guilty on all the charges, and sentenced to suffer death by hanging, and this sentence, having been
approved, he was ordered to be executed on Friday, the 19th of May, 1865.

On the 10th of that same May, 1865, Milligan filed his petition in the Circuit Court of the United States
for the District of Indiana, by which, or by the documents appended to which as exhibits, the above facts
appeared. These exhibits consisted of the order for the commission; the charges and specifications; the
findings and sentence of the court, with a statement of the fact that the sentence was approved by the
President of the United States, who directed that it should "be carried into execution without delay;" all
"by order of the Secretary of War."

The petition set forth the additional fact that, while the petitioner was held and detained, as already
mentioned, in military custody (and more than twenty days after his arrest), a grand jury of the Circuit
Court of the United States for the District of Indiana was convened at Indianapolis, his said place of
confinement, and duly empaneled, charged, and sworn for said district, held its sittings, and finally
adjourned without having found any bill of indictment, or made any presentment whatever against him.
That at no time had he been in the military service of the United States, or in any way connected with
the land or naval force, or the militia in actual service; nor within the limits of any State whose citizens
were engaged in rebellion against the United States, at any time during the war, but, during all the time
aforesaid, and for twenty years last past, he had been an inhabitant, resident, and citizen of Indiana.
And so that it had been

"wholly out of his power to have acquired belligerent rights or to have placed himself in such relation to
the government as to have enabled him to violate the laws of war."

The record, in stating who appeared in the Circuit Court, ran thus:

"Be it remembered, that on the 10th day of May, A.D. 1865, in the court aforesaid, before the judges
aforesaid, comes Jonathan W. Gorden, Esq., of counsel for said Milligan, and files here, in open court,
the petition of said Milligan, to be discharged.. . . . At the same time comes John Hanna, Esquire, the
attorney prosecuting the pleas of the United States in this behalf. And thereupon, by agreement, this
application is submitted to the court, and day is given, &c."

The prayer of the petition was that, under the already mentioned act of Congress of March 3d, 1863, the
petitioner might be brought before the court and either turned over to the proper civil tribunal to be
proceeded with according to the law of the land or discharged from custody altogether.
At the hearing of the petition in the Circuit Court, the opinions of the judges were opposed upon the
following questions:

I. On the facts stated in the petition and exhibits, ought a writ of habeas corpus to be issued according to
the prayer of said petitioner?

II. On the facts stated in the petition and exhibits, ought the said Milligan to be discharged from custody
as in said petition prayed?

III. Whether, upon the facts stated in the petition and exhibits, the military commission had jurisdiction
legally to try and sentence said Milligan in manner and form, as in said petition and exhibit is stated?

And these questions were certified to this court under the provisions of the act of Congress of April
29th, 1802, [Footnote 4] an act which provides

"that whenever any question shall occur before a Circuit Court upon which the opinions of the judges
shall be opposed, the point upon which the disagreement shall happen shall, during the same term,
upon the request of either party or their counsel, be stated under the direction of the judges and
certified under the seal of the court to the Supreme Court, at their next session to be held thereafter,
and shall by the said court be finally decided, and the decision of the Supreme Court and their order in
the premises shall be remitted to the Circuit Court and be there entered of record, and shall have effect
according to the nature of the said judgment and order; Provided, That nothing herein contained shall
prevent the cause from proceeding if, in the opinion of the court, further proceedings can be had
without prejudice to the merits."

The three several questions above mentioned were argued at the last term. And along with them, an
additional question raised in this court, namely:

IV. A question of jurisdiction, as -- 1. Whether the Circuit Court had jurisdiction to hear the case there
presented? -- 2. Whether the case sent up here by certificate of division was so sent up in conformity
with the intention of the act of 1802? in other words, whether this court had jurisdiction of the
questions raised by the certificate?

Randolf David et al vs Gloria Arroyo

Proclamation 1017 – Take Care Clause – Take Over Power – Calling Out Power & Niňez Cacho-Olivares
vs Exec Sec Ermita

-Freedom of Speech – Overbreadth In February 2006, due to the escape of some Magdalo members and
the discovery of a plan (Oplan Hackle I) to assassinate GMA she declared PP 1017 and is to be
implemented by GO 5. The said law was aimed to suppress lawlessness and the connivance of
extremists to bring down the government. Pursuant to such PP, GMA cancelled all plans to celebrate
EDSA I and at the same time revoked all permits issued for rallies and other public organization/meeting.

Notwithstanding the cancellation of their rally permit, KMU head Randolf David proceeded to rally
which led to his arrest. Later that day, the Daily Tribune, which Cacho-Olivares is the editor, was raided
by the CIDG and they seized and confiscated anti-GMA articles and write ups. Later still, another known
anti-GMA news agency (Malaya) was raided and seized. On the same day, Beltran of Anakpawis, was
also arrested. His arrest was however grounded on a warrant of arrest issued way back in 1985 for his
actions against Marcos. His supporters cannot visit him in jail because of the current imposition of PP
1017 and GO 5.

In March, GMA issued PP 1021 w/c declared that the state of national emergency ceased to exist. David
and some opposition Congressmen averred that PP1017 is unconstitutional for it has no factual basis
and it cannot be validly declared by the president for such power is reposed in Congress. Also such
declaration is actually a declaration of martial law. Olivares-Cacho also averred that the emergency
contemplated in the Constitution are those of natural calamities and that such is an overbreadth.
Petitioners claim that PP 1017 is an overbreadth because it encroaches upon protected and unprotected
rights. The Sol-Gen argued that the issue has become moot and academic by reason of the lifting of PP
1017 by virtue of the declaration of PP 1021. The Sol-Gen averred that PP 1017 is within the president‟s
calling out power, take care power and take over power.

ISSUE:

Whether or not PP 1017 and GO 5 is constitutional.

HELD:

The issue cannot be considered as moot and academic by reason of the lifting of the questioned PP. It is
still in fact operative because there are parties still affected due to the alleged violation of the said PP.
Hence, the SC can take cognition of the case at bar. The SC ruled that PP 1017 is constitutional in part
and at the same time some provisions of which are unconstitutional. The SC ruled in the following way;
Resolution by the SC on the Factual Basis of its declaration The petitioners were not able to prove that
GMA has factual basis in issuing PP 1017 and GO 5. A reading of the Solicitor General‟s Consolidated
Comment and Memorandum shows a detailed narration of the events leading to the issuance of PP
1017, with supporting reports forming part of the records. Mentioned are the escape of the Magdalo
Group, their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the
Philippine Marines, and the reproving statements from the communist leaders. There was also the
Minutes of the Intelligence Report and Security Group of the Philippine Army showing the growing
alliance between the NPA and the military.

Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the Court is
convinced that the President was justified in issuing PP 1017 calling for military aid. Indeed, judging the
seriousness of the incidents, GMA was not expected to simply fold her arms and do nothing to prevent
or suppress what she believed was lawless violence, invasion or rebellion. However, the exercise of such
power or duty must not stifle liberty. Resolution by the SC on the Overbreadth Theory First and
foremost, the overbreadth doctrine is an analytical tool developed for testing „on their faces‟ statutes in
free speech cases. The 7 consolidated cases at bar are not primarily „freedom of speech‟ cases. Also, a
plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related
conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless violence.

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that „reflects
legitimate state interest in maintaining comprehensive control over harmful, constitutionally
unprotected conduct.‟ Undoubtedly, lawless violence, insurrection and rebellion are considered
„harmful‟ and „constitutionally unprotected conduct.‟ Thus, claims of facial overbreadth are
entertained in cases involving statutes which, by their terms, seek to regulate only „spoken words‟ and
again, that „overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected conduct.‟ Here, the incontrovertible fact
remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to
state regulation. Resolution by the SC on the Calling Out Power Doctrine On the basis of Sec 17, Art 7 of
the Constitution,

GMA declared PP 1017. The SC considered the President‟s „calling-out‟ power as a discretionary power
solely vested in his wisdom, it stressed that „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. The SC ruled that GMA has validly declared PP 1017 for the
Constitution grants the President, as Commander-in-Chief, a „sequence‟ of graduated powers. From the
most to the least benign, these are: the calling-out power, the power to suspend the privilege of the writ
of habeas corpus, and the power to declare Martial Law. The only criterion for the exercise of the
calling-out power is that „whenever it becomes necessary,‟ the President may call the armed forces „to
prevent or suppress lawless violence, invasion or rebellion.‟ And such criterion has been met. Resolution
by the SC on the Take Care Doctrine Pursuant to the 2nd sentence of Sec 17, Art 7 of the Constitution
(He shall ensure that the laws be faithfully executed.) the president declared PP 1017. David et al
averred that PP 1017 however violated Sec 1, Art 6 of the Constitution for it arrogated legislative power
to the President. Such power is vested in Congress. They assail the clause „to enforce obedience to all
the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction.‟
The SC noted that such provision is similar to the power that granted former President Marcos
legislative powers (as provided in PP 1081). The SC ruled that the assailed PP 1017 is unconstitutional
insofar as it grants GMA the authority to promulgate „decrees.‟ Legislative power is peculiarly within the
province of the Legislature. Sec 1, Article 6 categorically states that „[t]he legislative power shall be
vested in the Congress of the Philippines which shall consist of a Senate and a House of
Representatives.‟ To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can
justify GMA‟[s exercise of legislative power by issuing decrees.

The president can only “take care” of the carrying out of laws but cannot create or enact laws.
Resolution by the SC on the Take Over Power Doctrine The president cannot validly order the taking
over of private corporations or institutions such as the Daily Tribune without any authority from
Congress. On the other hand, the word emergency contemplated in the constitution is not limited to
natural calamities but rather it also includes rebellion. The SC made a distinction; the president can
declare the state of national emergency but her exercise of emergency powers does not come
automatically after it for such exercise needs authority from Congress. The authority from Congress
must be based on the following: 1 There must be a war or other emergency. (2) The delegation must be
for a limited period only. (3) The delegation must be subject to such restrictions as the Congress may
prescribe. (4) The emergency powers must be exercised to carry out a national policy declared by
Congress. Resolution by the SC on the Issue that PP 1017 is a Martial Law Declaration The SC ruled that
PP 1017 is not a Martial Law declaration and is not tantamount to it. It is a valid exercise of the calling
out power of the president by the president.

Lacson Vs. Perez Case Digest Lacson Vs. Perez 357 SCRA 756 G.R. No. 147780 May 10, 2001

Facts:

President Macapagal-Arroyo declared a State of Rebellion (Proclamation No. 38) on May 1, 2001 as well
as General Order No. 1 ordering the AFP and the PNP to suppress the rebellion in the NCR. Warrantless
arrests of several alleged leaders and promoters of the “rebellion” were thereafter effected. Petitioner
filed for prohibition, injunction, mandamus and habeas corpus with an application for the issuance of
temporary restraining order and/or writ of preliminary injunction. Petitioners assail the declaration of
Proc. No. 38 and the warrantless arrests allegedly effected by virtue thereof. Petitioners furthermore
pray that the appropriate court, wherein the information against them were filed, would desist
arraignment and trial until this instant petition is resolved. They also contend that they are allegedly
faced with impending warrantless arrests and unlawful restraint being that hold departure orders were
issued against them.

Issue: Whether or Not Proclamation No. 38 is valid, along with the warrantless arrests and hold
departure orders allegedly effected by the same.

Held: President Macapagal-Arroyo ordered the lifting of Proc. No. 38 on May 6, 2006, accordingly the
instant petition has been rendered moot and academic. Respondents have declared that the Justice
Department and the police authorities intend to obtain regular warrants of arrests from the courts for
all acts committed prior to and until May 1, 2001. Under Section 5, Rule 113 of the Rules of Court,
authorities may only resort to warrantless arrests of persons suspected of rebellion in suppressing the
rebellion if the circumstances so warrant, thus the warrantless arrests are not based on Proc. No. 38.
Petitioner’s prayer for mandamus and prohibition is improper at this time because an individual
warrantlessly arrested has adequate remedies in law: Rule 112 of the Rules of Court, providing for
preliminary investigation, Article 125 of the Revised Penal Code, providing for the period in which a
warrantlessly arrested person must be delivered to the proper judicial authorities, otherwise the officer
responsible for such may be penalized for the delay of the same. If the detention should have no legal
ground, the arresting officer can be charged with arbitrary detention, not prejudicial to claim of
damages under Article 32 of the Civil Code. Petitioners were neither assailing the validity of the subject
hold departure orders, nor were they expressing any intention to leave the country in the near future.
To declare the hold departure orders null and void ab initio must be made in the proper proceedings
initiated for that purpose. Petitioners’ prayer for relief regarding their alleged impending warrantless
arrests is premature being that no complaints have been filed against them for any crime, furthermore,
the writ of habeas corpus is uncalled for since its purpose is to relieve unlawful restraint which
Petitioners are not subjected to. Petition is dismissed. Respondents, consistent and congruent with their
undertaking earlier adverted to, together with their agents, representatives, and all persons acting in
their behalf, are hereby enjoined from arresting Petitioners without the required judicial warrants for all
acts committed in relation to or in connection with the May 1, 2001 siege of Malacañang.