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De Lima v. Duterte, G.R. No. 227635, October 15, 2019 2.
WHEREFORE, the Court DISMISSES the petition for the writ of habeas data on
the ground that respondent Rodrigo Roa Duterte as the incumbent President of the
Philippines is immune from suit during his incumbency.
Writ of habeas data- The writ of habeas data is a remedy available to any person
whose right to privacy in life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee, or of a private individual or
entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved
party.Then Davao City Mayor Rodrigo Roa Duterte won the 2016 presidential
election. A key agenda of the Duterte Administration was the relentless national
crackdown on illegal drugs. This prompted several human rights advocates to
heavily criticize the strategies and devices forthwith adopted by law enforcement
agencies in pursuing the crackdown. Among the vocal critics of the crackdown was
Sen. De Lima. Meanwhile, during the privileged speech of De Lima on the senate
he told Duterte to stop the alleged extrajudicial killings committed in the course of
the crackdown, and urging her colleagues in the Senate to conduct investigations
of the alleged victims. In return, President Duterte issued a number of public
statements against Sen. De Lima, including denunciations of her corruption and
immorality. The statements prompted her to initiate this petition for the issuance of
a writ of habeas data against President Duterte.
Issue: May the incumbent Chief Executive be haled to court even for the limited
purpose under the Rules on the Writ of Habeas Data?
Ruling of the court:
I. Origin of Presidential Immunity from suit
The concept of executive immunity from suit for the Chief Executive can be traced
as far back as the days of Imperial Rome. Justinian I noted in his Corpus Juris
Civilis that Roman law recognized two principles connected with the development
of what we now know as executive immunity from suits:
1. princeps legibus solutus est (the emperor is not bound by statute);
2. quad principii placuit legis habet (what pleases the prince is law)
These two principles remained dormant until their revival in feudal Europe,
particularly in England.
Professor Guy Seidman in his book explains the development of the maxim "the
king can do no wrong”. The maxim has actually stood for four different
propositions at various points in English legal history.
1. The King is literally above the law and cannot do wrong by definition;
this understanding of the maxim reached its zenith in the 17th century under
the banner of the "divine right of Kings."
Even if the King's actions are not lawful by definition, there is no
remedy for royal wrong doing through ordinary legal channels; one
might term this a "procedural" or "remedial" understanding of the maxim
3. A third meaning, which actually represents the true historical origin of the
maxim, is that the King has no power or capacity to do wrong; this was
literally the case with Henry III, who assumed the Kingship while in his
minority
4. A fourth meaning is precisely the opposite of the first: it means that the King
is eminently capable of doing wrong but cannot do so lawfully.
Although the maxim clothed the King with immunity, equitable remedies remained
available, such as the development of the doctrine of ministerial accountability and
impeachment. Due to increasing demands for the accountability of government
officials and to the eventual removal of the King's participation from political and
state affairs, the immunity once enjoyed by the monarchs started to wane.
II. American Development of the Concept of Presidential Immunity
The American Founding Fathers were well aware of the doctrine of "the king can
do no wrong."
Blackstone's Commentaries summarized and explained the legal doctrines
concerning government accountability.
As per Balckstone’s there are two remedies: private injuries and public oppression.
For private injuries his answer is double:
first, there is a remedy is the petition of right, and while it is only as 'a matter of
grace' that the king provides the compensation requested, he is mostly to permit
this charity;
second, Blackstone cites Locke to the effect that the King is unlikely to inflict much
damage personally, and immunizing him is a fair price to pay for the benefits of
the regime.
For 'public oppression': in most cases the answer is clear — "a king cannot misuse
his power, without advice of evil counsellors, and the assistance of wicked
ministers, these men may be examined and punished."
Thus, American law followed this concept of the king can do no wrong' as well as
other common law doctrines of England until the former began to develop
independently after the revolution of 1776. Common law concepts, including the
principle that 'the king can do no wrong,' carved out a legal path and conception
different from their English roots considering that the USA had an elected President
instead of a hereditary King to control the reigns of governmental power. As such,
the immunity given — be it to the President or to the lowest government official —
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rested no longer on established English political theory based on the Common Law
but rather on public policy considerations. Some of the public policy considerations
in upholding official immunity of public officials are:
(a) the absolute immunity of judges being necessary to ensure judicial
independence(Bradley v. Fisher); and
(b) policy considerations enunciated in Bradley for judges being equally applicable
to executive officials because the civil liability would cripple the proper
administration of public affairs (Spalding v. Vilas).
Moreover, they also have different types of immunity granted to officials like the
President. Immunity can be classified either by
(a) extent, i.e., absolute or qualified; or
(b) duration,i.e., permanent or temporary.
Absolute immunity is granted to a government official who has proven that his
actions fell within the scope of his duties, and that his actions are discretionary
rather than ministerial, that is to say, that the conduct or the action performed must
not involve insignificant or routinely office work but rather the challenged action
must involve personal judgment. Further, in Butz v. Economou, the US Supreme
Court held that absolute immunity can only be invoked if it is demonstrated that
absolute immunity is essential for the conduct of the public business. In other
words, absolute immunity attaches to the function instead of the office.
Qualified immunity was initially given to a government official who was able to
prove that at the time of the commission of the act complained of, he possessed a
good faith belief that his actions were lawful. This was known to be the subjective
element.
In Wood v. Strickland, the US Supreme Court ruled that aside from the
aforementioned subjective test, it is also important to show if the public official
should have known that his act constituted a violation of the rights of the claimant.
If the government official should have known that his acts violated the claimant's
rights, then immunity is not granted to the government official; otherwise, the
government official is entitled to qualified immunity. This is referred to as the
objective test. This two-tiered test to determine the need to grant qualified immunity
was modified in Harlow v. Fitzgerald, where the US Supreme Court removed the
subjective test reasoning that inquiring into the subjective motivation of government
officials would be "disruptive of effective government." Harlow now requires a two-
step analysis in the determination of whether or not a government official is entitled
to qualified immunity; first, as a threshold matter, the court must determine if the
statutory or constitutional right asserted by the plaintiff was clear at the time of the
alleged wrongful action; and, second, the court must determine whether the official
should reasonably have known the action was contrary to law.
The second classification of immunity is based on duration, which may be
permanent or temporary. This classification was brought about by footnote 31 in
Nixon v. Fitzgerald, where the U.S. Supreme Court recognized that executive
immunity could be derived from Article 1, Section 6 of the US Constitution.
Temporary immunity or congressional immunity from arrest provides temporary
immunity to legislators from litigating even private suits while "at Session" of
Congress as public officers, while permanent immunity or the immunity for speech
or debate provides immunity from liability in law suits that arise out of the
performance of public duties of democratic deliberation
III. Philippine Concept of Presidential Immunity
The concept of executive immunity was first tackled in 1910: Forbes v. Chuoco
Tiaco,
But while the case law cited inForbes depended on principles of executive
immunity prevailing in foreign jurisdictions, the Philippine concept of presidential
immunity diverged in 1981. In Section 15, Article VII of the 1973 Constitution states
that:
Section 15. A The President shall be immune from suit during his tenure.
Thereafter, no suit whatsoever shall lie for official acts done by him or by others
pursuant to his specific orders during his tenure.
The Philippine court in facts still followed the concept of presidential immunity from
suit even if it was not explicitly provided in the 1987 Constitution. Proof of this was
the case of Saturnino vs. Bermudez.
IV. Current State of the Concept of Presidential Immunity
The concept of presidential immunity is not explicitly spelled out in the 1987
Constitution. However, the Court has affirmed that there is no need to expressly
provide for it either in the Constitution or in law. Furthermore, the reason for the
omission from the actual text of the 1987 Constitution has been clarified by this
exchange on the floor of the 1986 Constitutional Commission. According to Fr.
Bernas, “ The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit. “
Unlike its American counterpart, the concept of presidential immunity under our
governmental and constitutional system does not distinguish whether or not the
suit pertains to an official act of the President. Neither does immunity hinge on the
nature of the suit. The lack of distinctions prevents us from making any distinctions.
We should still be guided by our precedents.
Accordingly, the concept is clear and allows no qualifications or restrictions that the
President cannot be sued while holding such office.
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V. Applicability of Presidential Immunity to a Proceeding for the issuance of the Writ
of Habeas Data
Sen. De Lima wants us to apply principles established by the US Supreme Court in
the celebrated cases of Nixon and Clinton, supra.
But the decision of the SC was purely based on the aforementioned information
that such decisions, though persuasive, are not binding as case law for us.
As earlier asserted, the Philippine concept of Presidential immunity from suit
diverged from its foreign roots, from the time of the amendment of the 1973
Constitution. Presidential immunity in this jurisdiction attaches during the entire
tenure of the President. The immunity makes no distinction with regard to the
subject matter of the suit; it applies whether or not the acts subject matter of the
suit are part of his duties and functions as President. Furthermore, no balancing of
interest has ever been applied to Presidential immunity under our jurisprudence.
We are not prepared or willing to recognize such a test without constitutional,
statutory, or jurisprudential basis.
Both Sen. De Lima and the OSG disagree on whether or not the statements of the
President regarding her have been part of the discharge of the President's official
duties, but the declaration of SC herein that immunity applies regardless of the
personal or official nature of the acts complained of have rendered their
disagreement moot and academic.
Estrada vs. Arroyo, GR Nos. 146710-15, March 2, 2001
IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the
respondent Gloria Macapagal-Arroyo as the de jure 14th President of the Republic
are DISMISSED. (Pg. 37)
In 1998, petitioner Joseph Ejercito Estrada was elected President while respondent
Gloria Macapagal-Arroyo was elected Vice- President. From the beginning of his
term, however, petitioner was plagued by a plethora of problems that slowly but
surely eroded his popularity.
All of the appointed members and department head resigned. A little later, PNP
Chief, Director General Panfilo Lacson and the major service commanders gave a
similar stunning announcement. Some Cabinet secretaries, undersecretaries,
assistant secretaries, and bureau chiefs quickly resigned from their posts. Rallies
for the resignation of the petitioner exploded in various parts of the country. To
stem the tide of rage, petitioner announced he was ordering his lawyers to agree to
the opening of the highly controversial second envelope.There was no turning back
the tide. The tide had become a tsunami.
January 20 turned to be the day of surrender. At about 12:00 noon Chief Justice
Davide administered the oath to respondent Arroyo as President of the Philippines.
At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace.
Estrada and his counsel filed a petition stating that "confirming petitioner to be the
lawful and incumbent President of the Republic of the Philippines temporarily
unable to discharge the duties of his office, and declaring respondent to have taken
her oath as and to be holding the Office of the President, only in an acting capacity
pursuant to the provisions of the Constitution."
Issue:
1. Whether or not the cases at bar involve a political question.
2. Whether or not the petitioner resigned as President
3. Whether or not the petitioner is only temporarily unable to act as President.
4. Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys
immunity, the extent of the immunity.
5. Whether or not the prosecution of petitioner Estrada should be enjoined due
to prejudicial publicity
Ruling:
1. Whether or not the cases at bar involve a political question.
Private respondents raise the threshold issue that the cases at bar pose a political
question, and hence, are beyond the jurisdiction of this Court to decide. They
contend that shorn of its embroideries, the cases at bar assail the "legitimacy of the
Arroyo administration."
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The court reject the private respondents submission. Developed by the courts in
the 20th century, the political question doctrine which rests on the principle of
separation of powers and on prudential considerations, continue to be refined in
the mills of constitutional law. The court cited the US case of Baker v. Carr, in which
it says that, “Prominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional commitment of the issue
to a coordinate political department or a lack of judicially discoverable and
manageable standards for resolving it, or the impossibility of deciding without an
initial policy determination of a kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking independent resolution without expressing
lack of the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on
question. Unless one of these formulations is inextricable from the case at bar,
there should be no dismissal for non justiciability on the ground of a political
question's presence. The doctrine of which we treat is one of political questions',
not of 'political cases'."
In the Philippine setting, this Court has been continuously confronted with cases
calling for a rmer delineation of the inner and outer perimeters of a political
question. Our leading case is Tañada v. Cuenco, where this Court, through former
Chief Justice Roberto Concepcion, held that political questions refer "to those
questions which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to whichfull discretionary authority has been
delegated to the legislative or executive branch of the government. It is concerned
with issues dependent upon the wisdom, not legality of a particular measure."
Furthermore, the 1987 Constitution has narrowed the reach of the political
question doctrine when it expanded the power of judicial review of this court not
only to settle actual controversies involving rights which are legally demandable
and enforceable but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of government. With the new provision, however, courts
are given a greater prerogative to determine what it can do to prevent grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of government. Clearly, the new provision did not just grant the
Court power of doing nothing.
Distinguish between legal questions from political questions:
The Political question doctrine:
ff
fi
ffi
A political question refers to "those questions which, under the Constitution, are
to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive branch
of the Government. It is concerned with issues dependent upon the wisdom, not
legality, of a particular measure.”
The intrinsic constitutionality of pork barrel is not an issue dependent upon the
wisdom of the political branches of the government but rather a legal one which
the constitution itself has commanded the court to act upon. Scrutinizing the
contours of the system along constitutional lines is a task that the political
branches of government are incapable of rendering precisely because it is an
exercise of judicial power.
The court further addressed that, there are legal istinction between EDSA People
Power I and EDSA People Power II is clear.
EDSA I
1. involves the exercise of the people power of revolution which overthrew the
whole government.
2. is extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review.
3. EDSA I presented a political question.
EDSA II
1. is an exercise of people power of freedom of speech and freedom of
assembly to petition the government for redress of grievances which only
a ected the o ce of the President.
2. is intra constitutional and the resignation of the sitting President that it
caused and the succession of the Vice President as President are subject
to judicial review.
3. EDSA II involves legal questions. A brief discourse on freedom of speech
and
4. of the freedom of assembly to petition the government for redress of
grievance which is the cutting edge of EDSA People Power II is not
inappropriate.
Needless to state, the cases at bar pose legal and not political questions. The
principal issues for resolution require the proper interpretation of certain provisions
in the 1987 Constitution, notably section 1 of Article II, and section 8 of Article VII,
and the allocation of governmental powers under section 11 of Article VII. The
issues likewise call for a ruling on the scope of presidential immunity from suit.
They also involve the correct calibration of the right of petitioner against prejudicial
publicity. As early as the 1803 case of Marbury v. Madison, the doctrine has been
5 SAMMIE
laid down that "it is emphatically the province and duty of the judicial department to
say what the law is . . ." Thus, respondent's invocation of the doctrine of political
question is but a foray in the dark.
2. Whether or not the petitioner resigned as President
Petitioner denies he resigned as President or that he suffers from a permanent
disability. Hence, he submits that the office of the President was not vacant when
respondent Arroyo took her oath as President.
In Section 8, Article VII of the 1987 Constitution:
"SECTION 8. A In case of death, permanent disability, removal from office or
resignation of the President, the Vice President shall become the President to
serve the unexpired term. In case of death, permanent disability, removal from
office, or resignation of both the President and Vice President, the President of the
Senate or, in case of his inability, the Speaker of the House of Representatives,
shall then act as President until the President or Vice President shall have been
elected and qualified.
The main issue in this case is whether the president did resign from his office. The
court ruled that Resignation is not a high level legal abstraction. It is a factual
question and its elements are beyond quibble: there must be an intent to resign
and the intent must be coupled by acts of relinquishment. The validity of a
resignation is not governed by any formal requirement as to form. It can be oral. It
can be written. It can be express. It can be implied. As long as the resignation is
clear, it must be given legal effect.
In the cases at bar, the facts show that petitioner did not write any formal letter of
resignation before he evacuated Malacañang Palace after the oath taking of the
respondent Arroyo. Consequently, whether or not petitioner 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. And using the totality test, the
court ruled that the petitioner indeed resigned as the president.
Aside from totality test, the diary of Secretary Angara became an important
evidence to testify that Estrada resigned from his post. In one of his entries named:
"Final Days of Joseph Ejercito Estrada," which was published to the Philippine
daily inquirer shows that Angara Diary reveals that in the morning of January 19,
petitioner's loyal advisers were worried about the swelling of the crowd at EDSA,
hence, they decided to create an ad hoc committee to handle it. Their worry would
worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the
presidential residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo
(Reyes) (Ed, this is serious. Angelo has defected.)" An hour later or at 2:30 p.m.,
the petitioner decided to call for a snap presidential election and stressed he would
not be a candidate. The proposal for a snap election for president in May where he
would not be a candidate is an indicium that petitioner had intended to give up the
presidency even at that time. At 3:00 p.m., General Reyes joined the sea of EDSA
demonstrators demanding the resignation of the petitioner and dramatically
announced the AFP's withdrawal of support from the petitioner and their pledge of
support to respondent Arroyo. The seismic shift of support left petitioner weak as a
president. According to Secretary Angara, he asked Senator Pimentel to advise
petitioner to consider the option of "dignified exit or resignation." Petitioner did not
disagree but listened intently. The sky was falling fast on the petitioner. Senator
Pimentel repeated to the petitioner the urgency of making a graceful and dignified
exit. He gave the proposal a sweetener by saying that petitioner would be allowed
to go abroad with enough funds to support him and his family. Significantly, the
petitioner expressed no objection to the suggestion for a graceful and dignified exit
but said he would never leave the country. At 10:00 p.m., petitioner revealed to
Secretary Angara, "Ed, Angie (Reyes) guaranteed that I would have five days to a
week in the palace." This is proof that petitioner had reconciled himself to the
reality that he had to resign. His mind was already concerned with the five-day
grace period he could stay in the palace. It was a matter of time.
The pressure continued pilling up until former President Ramos called up Secretary
Angara and requested, for a peaceful and orderly transfer of power. There was no
defiance to the request. Secretary Angara readily agreed. Again, we note that at
this stage, the problem was already about a peaceful and orderly transfer of power.
The resignation of the petitioner was implied.
The first negotiation for a peaceful and orderly transfer of power immediately
started at 12:20 a.m. of January 20, that fateful Saturday. The negotiation was
limited to three (3) points:
(1) the transition period of five days after the petitioner's resignation;
(2) the guarantee of the safety of the petitioner and his family, and
(3) the agreement to open the second envelope to vindicate the name of the
petitioner. Again, we note that the resignation of petitioner was not a disputed point.
The petitioner cannot feign ignorance of this fact.
According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three
points and the following entry in the Angara Diary shows the reaction of the
petitioner, he explained that if the enveloped is opened, on Monday, he will leave
the palace adding that he is tired, he does not want any more of this and it was too
painful for him. (The court says this shows an intent to resign.)
According to the diary of Angara, there second round of negotiation. This second
round of negotiation cements the reading that the petitioner has resigned. It will be
noted that during this second round of negotiation, the resignation of the petitioner
was again treated as a given fact. The only unsettled points at that time were the
measures to be undertaken by the parties during and after the transition period.
6 SAMMIE
According to Secretary Angara, the draft agreement which was premised on the
resignation of the petitioner was further refined. It was then signed by their side
and he was ready to fax it to General Reyes and Senator Pimentel to await the
signature of the United Opposition. However, the signing by the party of the
respondent Arroyo was aborted by her oath- taking.
In summation, the court hold that, the resignation of the petitioner cannot be
doubted. It was confirmed by his leaving Malacañang. In the press release
containing his final statement, (1) he acknowledged the oath-taking of the
respondent as President of the Republic albeit with reservation about its legality;
(2) he emphasized he was leaving the Palace, the seat of the presidency, for the
sake of peace and in order to begin the healing process of our nation. He did not
say he was leaving the Palace due to any kind 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
this 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.
3. Whether or not the petitioner is only temporarily unable to act as
President.
In the question whether the president is temporarily unable to discharge his powers
and duties of the presidency, "Congress has the ultimate authority under the
Constitution to determine whether the President is incapable of performing his
functions in the manner provided for in section 11 of Article VII." This contention is
the centerpiece of petitioner's stance that he is a President on leave and
respondent Arroyo is only an Acting President.
What leaps to the eye from these irrefutable facts is that both houses of Congress
have recognized respondent Arroyo as the President. Implicitly clear in that
recognition is the premise that the inability of petitioner Estrada is no longer
temporary. Congress has clearly rejected petitioner's claim of inability.
The question is whether this Court has jurisdiction to review the claim of temporary
inability of petitioner Estrada and thereafter revise the decision of both Houses of
Congress recognizing respondent Arroyo as President of the Philippines.
Following Tañada v. Cuenco , we hold that this Court cannot "exercise its judicial
power for this is an issue "in regard to which full discretionary authority has been
delegated to the Legislative . . . branch of the government."
Following Tañada v. Cuenco , we hold that this Court cannot "exercise its judicial
power for this is an issue "in regard to which full discretionary authority has been
delegated to the Legislative . . . branch of the government."
The question is political in nature and addressed solely to Congress by
constitutional fiat. It is a political issue which cannot be decided by this Court
without transgressing the principle of separation of powers.
In fine, even if the petitioner can prove that he did not resign, still, he cannot
successfully claim that he is a President on leave on the ground that he is merely
unable to govern temporarily. That claim has been laid to rest by Congress and the
decision that respondent Arroyo is thede jure President made by a co-equal branch
of government cannot be reviewed by this Court.
4. Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys
immunity, the extent of the immunity
The court now rule on the contentions of petitioner in the light of this history. We
reject his argument that he cannot be prosecuted for the reason that he must first
be convicted in the impeachment proceedings. The impeachment trial of petitioner
Estrada was aborted by the walkout of the prosecutors and by the events that led
to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed
Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus
Officio." Since the Impeachment Court is now functus officio, it is untenable for
petitioner to demand that he should first be impeached and then convicted before
he can be prosecuted. The plea if granted, would put a perpetual bar against his
prosecution. Such a submission has nothing to commend itself for it will place him
in a better situation than a non-sitting President who has not been subjected to
impeachment proceedings and yet can be the object of a criminal prosecution. To
be sure, the debates in the Constitutional Commission make it clear that when
impeachment proceedings have become moot due to the resignation of the
President, the proper criminal and civil cases may already be filed against him
Functus Officio(having performed by his or her office)- A decision of the municipal
court in an ejectment case becomes functus officio upon rendition of decision by
the Court of First Instance in the same case without the municipal court's decision
being executed.
The court also laid down the scope of immunity that can be claimed by petitioner
as a non-sitting President. The cases filed against petitioner Estrada are criminal in
7 SAMMIE
character. They involve plunder, bribery and graft and corruption. By no stretch of
the imagination can these crimes, especially plunder which carries the death
penalty, be covered by the alleged mantle of immunity of a non-sitting president.
Petitioner cannot cite any decision of this Court licensing the President to commit
criminal acts and wrapping him with post-tenure immunity from liability. It will be
anomalous to hold that immunity is an inoculation from liability for unlawful acts
and omissions. The rule is that unlawful acts of public officials are not acts of the
State and the officer who acts illegally is not acting as such but stands in the same
footing as any other trespasser.
Indeed, a critical reading of current literature on executive immunity will reveal a
judicial disinclination to expand the privilege especially when it impedes the search
for truth or impairs the vindication of a right.
There are more reasons not to be sympathetic to appeals to stretch the scope of
executive immunity in our jurisdiction. One of the great themes of the 1987
Constitution is that a public office is a public trust. It declared as a state policy that
"(t)he State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and
corruption." It ordained that "(p)ublic officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty,
and efficiency, act with patriotism and justice, and lead modest lives." It set the rule
that "(t)he right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees, shall not
be barred by prescription, laches or estoppel."
It maintained the Sandiganbayan as an anti-graft court. It created the office of the
Ombudsman and endowed it with enormous powers, among which is to
"(i)nvestigate on its own, or on complaint by any person, any act or omission of any
public official, employee, office or agency, when such act or omission appears to
be illegal, unjust, improper, or inefficient." The Office of the Ombudsman was also
given fiscal autonomy.These constitutional policies will be devalued if we sustain
petitioner's claim that a non-sitting president enjoys immunity from suit for criminal
acts committed during his incumbency.
5. Whether or not the prosecution of petitioner Estrada should be enjoined due
to prejudicial publicity
Petitioner contends that the respondent Ombudsman has developed bias and is all
set to file the criminal cases in violation of his right to due process.
There are two (2) principal legal and philosophical schools of thought on how to
deal with the rain of unrestrained publicity during the investigation and trial of high
profile cases.
The British approach the problem with the presumption that publicity will
prejudice a jury. Thus, English courts readily stay and stop criminal trials when the
right of an accused to fair trial suffers a threat.
The American approach is different. US courts assume a skeptical approach
about the potential effect of pervasive publicity on the right of an accused to a fair
trial. They have developed different strains of tests to resolve this issue, i.e.,
substantial probability of irreparable harm, strong likelihood, clear and present
danger, etc.
This is not the first time the issue of trial by publicity has been raised in this Court
to stop the trials or annul convictions in high profile criminal cases. In People vs.
Teehankee, Jr. just in the Teehankee, this court ruled that the evidence proffered by
the petitioner is insubstantial. The accuracy of the news reports referred to by the
petitioner cannot be the subject of judicial notice by this Court especially in light of
the denials of the respondent Ombudsman as to his alleged prejudice and the
presumption of good faith and regularity in the performance of official duty to which
he is entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e.,
that the prejudice of respondent Ombudsman flows to his subordinates.
Hooting throng- assemble of crowds, that” “rights in a democracy” should not be
hostage to the impatient vehemence of the majority."
David, et al. vs. Ermita, et al., April 20, 2006
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is
CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-
Arroyo on the AFP to prevent or suppress lawless violence. However, the
provisions of PP 1017 commanding the AFP to enforce laws not related to lawless
violence, as well as decrees promulgated by the President, are declared
UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring national
emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL,
but such declaration does not authorize the President to take over privately-owned
public utility or business affected with public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP
and the PNP should implement PP 1017, i.e. whatever is "necessary and
appropriate actions and measures to suppress and prevent acts of lawless
violence." Considering that "acts of terrorism" have not yet been defined and
made punishable by the Legislature, such portion of G.O. No. 5 is declared
UNCONSTITUTIONAL.
As the nation celebrated the 20th Anniversary of the Edsa People Power I,
President Arroyo issued PP 1017 declaring a state of national emergency, due to
the political opposition have conspired with authoritarians of the extreme
8 SAMMIE
Left represented by the NDF-CPP-NPA and the extreme Right, represented by
military adventurists — the historical enemies of the democratic Philippine
State — who are now in a tactical alliance and engaged in a concerted and
systematic conspiracy, over a broad front, to bring down the duly constituted
Government elected.
With the state of emergency, the Office of the President announced the
cancellation of all programs and activities related to the 20th anniversary
celebration of Edsa People Power I; and revoked the permits to hold rallies issued
earlier by the local governments. Justice Secretary Raul Gonzales stated that
political rallies, which to the President's mind were organized for purposes of
destabilization, are cancelled. Presidential Chief of Staff Michael Defensor
announced that "warrantless arrests and take-over of facilities, including media,
can already be implemented."
There was also a seize and seizure at theDaily Tribune offices, the police
surrounded the premises of another pro-opposition paper, Malaya, and its sister
publication, the tabloid Abante. The raid, according to Presidential Chief of Staff
Michael Defensor, is "meant to show a 'strong presence,' to tell media outlets not to
connive or do anything that would help the rebels in bringing down this
government." The PNP warned that it would take over any media organization that
would not follow "standards set by the government during the state of national
emergency." Director General Lomibao stated that "if they do not follow the
standards — and the standards are — if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order No. 5 and Proc.
No. 1017 — we will recommend a'takeover.'"
Following this are numerous petitions from various individuals as well as groups
saying that Proc. No. 1017 "usurpation of legislative powers" and violation of
freedom of expression"
Issues:
A. Procedural
1. Whether the issuance of PP 1021 renders the petitions moot and academic.
2. Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI),
171483 (KMU et al. ) , 171489 (Cadiz et al.), and 171424 (Legarda) have
legal standing.
B. Substantive
1. Whether the Supreme Court can review the factual bases of PP 1017.
2. Whether PP 1017 and G.O. No. 5 are unconstitutional.
A. Facial Challenge
B. Constitutional Basis
C. As Applied Challenge
Ruling:
A. Procedural
1. Whether the issuance of PP 1021 renders the petitions moot and academic.
The power of judicial review does not repose upon the courts a "self-starting
capacity." Courts may exercise such power only when the following requisites are
present: first, there must be an actual case or controversy; second, petitioners
have to raise a question of constitutionality; third, the constitutional question must
be raised at the earliest opportunity; and fourth, the decision of the constitutional
question must be necessary to the determination of the case itself.
An actual case or controversy involves a conflict of legal right, an opposite legal
claims susceptible of judicial resolution. It is "definite and concrete, touching the
legal relations of parties having adverse legal interest;" a real and substantial
controversy admitting of specific relief. The Solicitor General refutes the existence
of such actual case or controversy, contending that the present petitions were
rendered "moot and academic" by President Arroyo's issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy
by virtue of supervening events, so that a declaration thereon would be of no
practical use or value. Generally, courts decline jurisdiction over such case or
dismiss it on ground of mootness.
The Court holds that President Arroyo's issuance of PP 1021 did not render the
present petitions moot and academic. During the eight (8) days that PP 1017 was
operative, the police officers, according to petitioners, committed illegal acts in
implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they
justify these alleged illegal acts? These are the vital issues that must be
resolved in the present petitions. It must be stressed that "an unconstitutional act
is not a law, it confers no rights, it imposes no duties, it affords no
protection; it is in legal contemplation, inoperative."
The "moot and academic" principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot
and academic, if: first, there is a grave violation of the Constitution; second, the
exceptional character of the situation and the paramount public interest is involved;
third, when constitutional issue raised requires formulation of controlling principles
to guide the bench, the bar, and the public; and fourth, the case is capable of
repetition yet evading review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief
Justice Artemio V. Panganiban's Separate Opinion in Sanlakas v. Executive
Secretary. However, they failed to take into account the Chief Justice's very
statement that an otherwise "moot" case may still be decided "provided the party
9 SAMMIE
raising it in a proper case has been and/or continues to be prejudiced or damaged
as a direct result of its issuance." The present case falls right within this exception
to the mootness rule pointed out by the Chief Justice.
2. Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI),
171483 (KMU et al. ) , 171489 (Cadiz et al.), and 171424 (Legarda) have
legal standing.
Locus standi is defined as "a right of appearance in a court of justice on a given
question." In private suits, standing is governed by the "real- parties-in interest" rule
as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as
amended. It provides that "every action must be prosecuted or defended in the
name of the real party in interest." Accordingly, the "real-party-in interest" is "the
party who stands to be benefited or injured by the judgment in the suit or the
party entitled to the avails of the suit. " Succinctly put, the plaintiff's standing is
based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff
who asserts a "public right" in assailing an allegedly illegal official action, does so
as a representative of the general public. He may be a person who is affected no
differently from any other person. He could be suing as a "stranger," or in the
category of a "citizen," or 'taxpayer." In either case, he has to adequately show that
he is entitled to seek judicial protection. In other words, he has to make out a
sufficient interest in the vindication of the public order and the securing of relief as
a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in
public actions. The distinction was first laid down in Beauchamp v. Silk, in which In
the former, the plaintiff is affected by the expenditure of public funds, while
in the latter, he is but the mere instrument of the public concern.
Legal standing is also based on "direct injury" test in which in the case of Tileston
v. Ullman. Direct injury test means that he must show that he has sustained a
direct injury as a result of that action, and it is not sufficient that he has a
general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it
held that the person who impugns the validity of a statute must have "a personal
and substantial interest in the case such that he has sustained, or will
sustain direct injury as a result."
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to
sue, provided that the following requirements
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of
public funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the
election law in question;
(4) forconcerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of
infringes upon their prerogatives as legislators.
It must always be borne in mind that the question oflocus standi is but corollary to
the bigger question of proper exercise of judicial power. This is the underlying legal
tenet of the "liberality doctrine" on legal standing. It cannot be doubted that the
validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount
importance to the Filipino people. To paraphrase Justice Laurel, the whole of
Philippine society now waits with bated breath the ruling of this Court on this very
critical matter. The petitions thus call for the application of the "transcendental
importance" doctrine, a relaxation of the standing requirements for the petitioners
in the "PP 1017 cases."
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is
the doctrine that the President, during his tenure of office or actual incumbency,
may not be sued in any civil or criminal case, and there is no need to provide for it
in the Constitution or law. It will degrade the dignity of the high office of the
President, the Head of State, if he can be dragged into court litigations while
serving as such. Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to the
performance of his official duties and functions. Unlike the legislative and judicial
branch, only one constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties imposed upon
him by the Constitution necessarily impairs the operation of the Government.
However, this does not mean that the President is not accountable to anyone. Like
any other official, he remains accountable to the people but he may be removed
from office only in the mode provided by law and that is by impeachment.
B. Substantive
I. Review of Factual Bases
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." This ruling
is mainly a result of the Court's reliance on Section 1, Article VIII of 1987
Constitution which fortifies the authority of the courts to determine in an appropriate
action the validity of the acts of the political departments. Under the new definition
10
of judicial power, the courts are authorized not only "to settle actual controversies
involving rights which are legally demandable and enforceable," but also "to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government."
As to how the Court may inquire into the President's exercise of power, Lansang
adopted the test that "judicial inquiry cango no further than to satisfy the Court not
that the President's decision is correct," but that "the President did not act
arbitrarily." Thus, the standard laid down is not correctness, but arbitrariness. In
Integrated Bar of the Philippines, this
Court further ruled that "it is incumbent upon the petitioner to show that the
President's decision is totally bereft of factual basis" and that if he fails, by way
of proof, to support his assertion, then "this Court cannot undertake an
independent investigation beyond the pleadings."
Petitioners failed to show that President Arroyo's exercise of the calling-out power,
by issuing PP 1017, is totally bereft of factual basis. 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, President Arroyo 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.
2. Whether PP 1017 and G.O. No. 5 are unconstitutional.
A. Facial Challenge
Petitioners contend that PP 1017 is void on its face because of its "overbreadth."
They claim that its enforcement encroached on both unprotected and protected
rights under Section 4, Article III of the Constitution and sent a "chilling effect" to
the citizens.
First and foremost, the overbreadth doctrine is an analytical tool developed for
testing "on their faces" statutes in free speech cases, also known under the
American Law as First Amendment cases.
SAMMIE
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. In United States v. Salerno,
the US Supreme Court held that "we have not recognized an 'overbreadth'
doctrine outside the limited context of the First Amendment" (freedom of
speech).
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. "
Second, facial invalidation of laws is considered as "manifestly strong medicine,"
to be used "sparingly and only as a last resort," and is "generally disfavored;"
The reason for this is obvious. Embedded in the traditional rules governing
constitutional adjudication is the principle that a person to whom a law may be
applied will not be heard to challenge a law on the ground that it may conceivably
be applied unconstitutionally to others, i.e., in other situations not before the
Court.
In other words, a facial challenge using the overbreadth doctrine will require the
Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its
actual operation to petitioners, but on the assumption or prediction that its very
existence may cause others not before the Court to refrain from constitutionally
protected speech or expression.
And third, a facial challenge on the ground of overbreadth is the most difficult
challenge to mount successfully, since the challenger must establish that there can
be no instance when the assailed law may be valid. Here, petitioners did not
even attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness.
This, too, is unwarranted.
11
Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which
holds that "a law is facially invalid if men of common intelligence must
necessarily guess at its meaning and differ as to its application. " 110 It is
subject to the same principles governing overbreadth doctrine. For one, it is also
an analytical tool for testing "on their faces" statutes in free speech cases. And
like overbreadth, it is said that a litigant may challenge a statute on its face only if it
is vague in all its possible applications. Again, petitioners did not even
attempt to show that PP 1017 is vague in all its application. They also failed to
establish that men of common intelligence cannot understand the meaning and
application of PP 1017.
Prof. Erwin Chemerinsky, a distinguished American textbook writer on
Constitutional Law, explains clearly the exception of overbreadth to the rule
prohibiting third-party standing in this manner:
The third exception to the prohibition against third-party standing is termed the
"overbreadth doctrine." A person generally can argue that a statute is
unconstitutional as it is applied to him or her; the individual cannot argue that a
statute is unconstitutional as it is applied to third parties not before the court. For
example, a defendant in a criminal trial can challenge the constitutionality of the
law that is the basis for the prosecution solely on the claim that the statute
unconstitutionally abridges his or her constitutional rights. The overbreadth doctrine
is an exception to the prohibition against third-party standing. It permits a person to
challenge a statute on the ground that it violates the First Amendment (free
speech) rights of third parties not before the court, even though the law is
constitutional as applied to that defendant. In other words, the overbreadth doctrine
provides that: "Given a case or controversy, a litigant whose own activities are
unprotected may nevertheless challenge a statute by showing that it substantially
abridges the First Amendment rights of other parties not before the court.
While, the doctrine of void for vagueness is a ground for invalidating a statute or a
governmental regulation for being vague. The doctrine requires that a statute be
sufficiently explicit as to inform those who are subject to it what conduct on their
part will render them liable to its penalties. (Lagman v Medialdea.)
B. Constitutional Basis
The operative portion of PP 1017 may be divided into three important provisions,
thus:
First Provision: Calling-out Power
Section 18, Article VII of the Constitution states that whenever it becomes
necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion.
SAMMIE
This provision 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. Citing Integrated Bar of the Philippines v. Zamora,
the Court ruled that 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." Are these
conditions present in the instant cases? As stated earlier, considering the
circumstances then prevailing, President Arroyo found it necessary to issue PP
1017. Owing to her Office's vast intelligence network, she is in the best position to
determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to aid
him in suppressing lawless violence, invasion and rebellion. This involves
ordinary police action. But every act that goes beyond the President's calling-out
power is considered illegal or ultra vires. For this reason, a President must be
careful in the exercise of his powers. He cannot invoke a greater power when he
wishes to act under a lesser power. There lies the wisdom of our Constitution, the
greater the power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the President's
authority to declare a "state of rebellion" (in Sanlakas) and the authority to proclaim
a state of national emergency. While President Arroyo's authority to declare a
"state of rebellion" emanates from her powers as Chief Executive, the statutory
authority cited in Sanlakas was Section 4, Chapter 2, Book II of the Revised
Administrative Code of 1987, which provides:
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.
President Arroyo's declaration of a "state of rebellion" was merely an act declaring
a status or condition of public moment or interest, a declaration allowed under
Section 4 cited above. Such declaration, in the words of Sanlakas, is harmless,
without legal significance, and deemed not written. In these cases, PP 1017 is
more than that. In declaring a state of national emergency, President Arroyo did not
only rely on Section 18, Article VII of the Constitution, a provision calling on the
AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied
on Section 17, Article XII, a provision on the State's extraordinary power to take
over privately- owned public utility and business affected with public interest.
Indeed, PP 1017 calls for the exercise of an awesome power. Obviously, such
Proclamation cannot be deemed harmless, without legal significance, or not
written, as in the case of Sanlakas. DHIETc
12
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration
of Martial Law. It is no so. What defines the character of PP 1017 are its wordings.
It is plain therein that what the President invoked was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military power has
been called upon by the executive to assist in the maintenance of law and order,
and that, while the emergency lasts, they must, upon pain of arrest and
punishment, not commit any acts which will in any way render more difficult the
restoration of order and the enforcement of law."
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is
no more than a call by the President to the armed forces to prevent or suppress
lawless violence. As such, it cannot be used to justify acts that only under a valid
declaration of Martial Law can be done. Its use for any other purpose is a
perversion of its nature and scope, and any act done contrary to its command is
ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without
judicial warrants; (b) ban on public assemblies; (c) take-over of news media and
agencies and press censorship; and (d) issuance of Presidential Decrees, are
powers which can be exercised by the President as Commander-in-Chief only
where there is a valid declaration of Martial Law or suspension of the writ of
habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration of
Martial Law. It is merely an exercise of President Arroyo's calling-out power
for the armed forces to assist her in preventing or suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to ensure that the laws
be faithfully executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested, the primary function of
the President is to enforce the laws as well as to formulate policies to be embodied
in existing laws. He sees to it that all laws are enforced by the officials and
employees of his department. Before assuming office, he is required to take an
oath or affirmation to the effect that as President of the Philippines, he will, among
others, "execute its laws." In the exercise of such function, the President, if
needed, may employ the powers attached to his office as the Commander-in-Chief
of all the armed forces of the country, including the Philippine National Police under
the Department of the Interior and Local Government.
SAMMIE
Is it within the domain of President Arroyo to promulgate"decrees"?
PP 1017 states in part: "to enforce obedience to all the laws and decrees . . .
promulgated by me personally or upon my direction."
President Arroyo's ordinance power is limited to the foregoing issuances. She
cannot issue decrees similar to those issued by Former President Marcos under
PP 1081. Presidential Decrees are laws which are of the same category and
binding force as statutes because they were issued by the President in the
exercise of his legislative power during the period of Martial Law under the 1973
Constitution.
This Court rules that the assailed PP 1017 is unconstitutional insofar as it
grants President Arroyo the authority to promulgate "decrees." Legislative
power is peculiarly within the province of the Legislature. Section 1, Article VI
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 President Arroyo's exercise of legislative power by
issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the
military?
As this Court stated earlier, President Arroyo has no authority to enact decrees. It
follows that these decrees are void and, therefore, cannot be enforced. With
respect to "laws," she cannot call the military to enforce or implement certain laws,
such as customs laws, laws governing family and property relations, laws on
obligations and contracts and the like. She can only order the military, under PP
1017, to enforce laws pertinent to its duty to suppress lawless violence.
Third Provision: Power to Take Over
The import of this provision is that President Arroyo, during the state of national
emergency under PP 1017, can call the military not only to enforce obedience "to
all the laws and to all decrees . . ." but also to act pursuant to the provision of
Section 17, Article XII
What could be the reason of President Arroyo in invoking the above provision when
she issued PP 1017?
The answer is simple. During the existence of the state of national emergency, PP
1017 purports to grant the President, without any authority or delegation from
Congress, to take over or direct the operation of any privately-owned public utility
or business affected with public interest.
13
A distinction must be drawn between the President's authority to declare "a state
of national emergency" and to exercise emergency powers. To the first, as
elucidated by the Court, Section 18, Article VII grants the President such power,
hence, no legitimate constitutional objection can be raised. But to the second,
manifold constitutional issues arise.
Section 23, Article VI of the Constitution, It may be pointed out that the second
paragraph of the provision refers not only to war but also to "other national
emergency." If the intention of the Framers of our Constitution was to withhold
from the President the authority to declare a "state of national emergency"
pursuant to Section 18, Article VII (calling-out power) and grant it to Congress (like
the declaration of the existence of a state of war), then the Framers could have
provided so. Clearly, they did not intend that Congress should first authorize the
President before he can declare a "state of national emergency." The logical
conclusion then is that President Arroyo could validly declare the existence of a
state of national emergency even in the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately owned
public utility or business affected with public interest, is a different matter. This
requires a delegation from Congress.
Courts have often said that constitutional provisions inpari materia are to be
construed together. Otherwise stated, different clauses, sections, and provisions of
a constitution which relate to the same subject matter will be construed together
and considered in the light of each other. Considering that Section 17 of Article XII
and Section 23 of Article VI, previously quoted, relate to national emergencies, they
must be read together to determine the limitation of the exercise of emergency
powers.
Generally, Congress is the repository of emergency powers. This is evident in
the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the
President.Certainly, a body cannot delegate a power not reposed upon it.
However, knowing that during
grave emergencies, it may not be possible or practicable for Congress to meet and
exercise its powers, the Framers of our Constitution deemed it wise to allow
Congress to grant emergency powers to the President, subject to certain
conditions, thus:
(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.
SAMMIE
Section 17, Article XII must be understood as an aspect of the emergency powers
clause. The taking over of private business affected with public interest is just
another facet of the emergency powers generally reposed upon Congress. Thus,
when Section 17 states that the "the State may, during the emergency and
under reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately owned public utility or business affected with
public interest," it refers to Congress, not the President. Now, whether or not the
President may exercise such power is dependent on whether Congress may
delegate it to him pursuant to a law prescribing the reasonable terms thereof.
Emergency, as a generic term, connotes the existence of conditions suddenly
intensifying the degree of existing danger to life or well-being beyond that which is
accepted as normal. Implicit in this definitions are the elements of intensity, variety,
and perception. Emergencies, as perceived by legislature or executive in the
United States since 1933, have been occasioned by a wide range of situations,
classifiable under three (3) principal heads: a) economic, 128 b) natural disaster,
and c) national security.
"Emergency," as contemplated in our Constitution, is of the same breadth. It may
include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other
similar catastrophe of nationwide proportions or effect.
C. As Applied Challenge
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of
these illegal acts? In general, does the illegal implementation of a law render it
unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although
they may be abused and misabused and may afford an opportunity for abuse
in the manner of application. The validity of a statute or ordinance is to be
determined from its general purpose and its efficiency to accomplish the end
desired, not from its effects in a particular case. PP 1017 is merely an
invocation of the President's calling-out power. Its general purpose is to command
the AFP to suppress all forms of lawless violence, invasion or rebellion. It had
accomplished the end desired which prompted President Arroyo to issue PP 1021.
But there is nothing in PP 1017 allowing the police, expressly or impliedly, to
conduct illegal arrest, search or violate the citizens' constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground
that its implementor committed illegal acts? The answer is no. The criterion by
which the validity of the statute or ordinance is to be measured is the essential
basis for the exercise of power, and not a mere incidental result arising from its
exertion. This is logical. Just imagine the absurdity of situations when laws maybe
14 SAMMIE

declared unconstitutional just because the officers implementing them have acted warrant of arrest. Thus, the fundamental protection given by this provision is that
arbitrarily. If this were so, judging from the blunders committed by policemen in the between person and police must stand the protective authority of a magistrate
cases passed upon by the Court, majority of the provisions of the Revised Penal clothed with power to issue or refuse to issue search warrants or warrants of
Code would have been declared unconstitutional a long time ago. arrest.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017.
General orders are "acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines." They are internal
rules issued by the executive officer to his subordinates precisely for the proper
and efficient administration of law . Such rules and regulations create no relation
except between the official who issues them and the official who receives them.
They are based on and are the product of, a relationship in which power is their
source, and obedience, their object. For these reasons, one requirement for these
rules to be valid is that they must be reasonable, not arbitrary or capricious.
Unlike the term "lawless violence" which is unarguably extant in our statutes and
the Constitution, and which is invariably associated with "invasion, insurrection or
rebellion," the phrase "acts of terrorism" is still an amorphous and vague concept.
Congress has yet to enact a law defining and punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed definition of
terrorism" confronts not only our country, but the international community as well.
While admittedly, the Daily Tribune was not padlocked and sealed like the
"Metropolitan Mail" and "We Forum" newspapers in the above case, yet it cannot
be denied that the CIDG operatives exceeded their enforcement duties. The search
and seizure of materials for publication, the stationing of policemen in the vicinity of
the The Daily Tribune offices, and the arrogant warning of government officials to
media, are plain censorship. It is that officious functionary of the repressive
government who tells the citizen that he may speak only if allowed to do so, and no
more and no less than what he is permitted to say on pain of punishment should he
be so rash as to disobey. Undoubtedly, the “The Daily Tribune” was subjected to
these arbitrary intrusions because of its anti-government sentiments. This Court
cannot tolerate the blatant disregard of a constitutional right even if it involves the
most defiant of our citizens. Freedom to comment on public affairs is essential to
the vitality of a representative democracy. It is the duty of the courts to be watchful
for the constitutional rights of the citizen, and against any stealthy encroachments
thereon. The motto should always be obsta principiis.

The absence of a law defining "acts of terrorism" may result in abuse and
oppression on the part of the police or military. An illustration is when a group of
persons are merely engaged in a drinking spree. Yet the military or the police may
consider the act as an act of terrorism and immediately arrest them pursuant to
G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be
remembered that an act can only be considered a crime if there is a law defining
the same as such and imposing the corresponding penalty thereon.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police to

commit acts beyond what are necessary and appropriate to suppress and
prevent lawless violence, the limitation of their authority in pursuing the Order.
Otherwise, such acts are considered illegal.

The Constitution provides that "the right of the people to be secured in their
persons, houses, papers and effects against unreasonable search and seizure of
whatever nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized." The plain import of
the language of the Constitution is that searches, seizures and arrests are
normally unreasonable unless authorized by a validly issued search warrant or
15
Rufino v. Endriga, GR No. 139554, July 21, 2006
WHEREFORE, we GRANT the petition in G.R. No. 139554. We declare
UNCONSTITUTIONAL Section 6(b) and (c) of Presidential Decree No. 15, as
amended, insofar as it authorizes the remaining trustees to fill by election
vacancies in the Board of Trustees of the Cultural Center of the Philippines. In view
of this ruling in G.R. No. 139554, we find it unnecessary to rule on G.R. No.
139565.
Then President Ferdinand E. Marcos issued Executive Order No. 30 (EO 30)
creating the Cultural Center of the Philippines as a trust governed by a Board of
Trustees of seven members to preserve and promote Philippine culture. The
original founding trustees, who were all appointed by President Marcos, were
Imelda Romualdez-Marcos, Juan Ponce- Enrile, Andres Soriano, Jr., Antonio
Madrigal, Father Horacio Dela Costa, S.J., I.P. Soliongco, and Ernesto Rufino.
Soon after the declaration of Martial Law, President Marcos issued PD 15, the
CCP's charter, which converted the CCP under EO 30 into a non-municipal public
corporation free from the "pressure or influence of politics." PD 15 increased the
members of CCP's Board from seven to nine trustees. Later, Executive Order No.
1058, issued on 10 October 1985, increased further the trustees to 11. After the
People Power Revolution in 1986, then President Corazon C. Aquino asked for the
courtesy resignations of the then incumbent CCP trustees and appointed new
trustees to the Board. Eventually, during the term of President Fidel V. Ramos, the
CCP Board included Endriga, Lagdameo, Sison, Potenciano, Fernandez, Lenora A.
Cabili ("Cabili"), and Manuel T. Mañosa ("Mañosa").
Then President Joseph E. Estrada appointed seven new trustees to the CCP
Board for a term of four years to replace the Endriga group as well as two other
incumbent trustees. Except for Tantoco, the Rufino group took their respective
oaths of office and assumed the performance of their duties
The Endriga group filed a petition forquo warranto before this Court questioning
President Estrada's appointment of seven new members to the CCP Board. The
Endriga group alleged that under Section 6(b) of PD 15, vacancies in the CCP
Board "shall be filled by election by a vote of a majority of the trustees held at the
next regular meeting . . . ." In case "only one trustee survive[s], the vacancies shall
be filled by the surviving trustee acting in consultation with the ranking officers of
the [CCP]." The Endriga group claimed that it is only when the CCP Board is
entirely vacant may the President of the Philippines fill such vacancies, acting in
consultation with the ranking officers of the CCP.
Issues:
1. Whether or not Sec. 6 (b) of PD 15 is constitutional and CCP trustees have the
authority to appoint and elect their fellow trustees when there is vacancy.
SAMMIE
The petition in G.R. No. 139554 has merit.
The Power of Appointment
The source of the President's power to appoint, as well as the Legislature's
authority to delegate the power to appoint, is found in Section 16, Article VII of the
1987 Constitution
The power to appoint is the prerogative of the President, except in those instances
when the Constitution provides otherwise. Usurpation of this fundamentally
Executive power by the Legislative and Judicial branches violates the system of
separation of powers that inheres in our democratic republican government.
Under Section 16, Article VII of the 1987 Constitution, the President appoints three
groups of officers. The first group refers to the heads of the Executive departments,
ambassadors, other public ministers and consuls, officers of the armed forces from
the rank of colonel or naval captain, and other officers whose appointments are
vested in the President by the Constitution. The second group refers to those
whom the President may be authorized by law to appoint. The third group refers to
all other officers of the Government whose appointments are not otherwise
provided by law.
Under the same Section 16, there is a fourth group of lower-ranked officers whose
appointments Congress may by law vest in the heads of departments, agencies,
commissions, or boards. The present case involves the interpretation of Section
16, Article VII of the 1987 Constitution with respect to the appointment of this fourth
group of officers.
The President appoints the first group of officers with the consent of the
Commission on Appointments. The President appoints the second and third groups
of officers without the consent of the Commission on Appointments. The President
appoints the third group of officers if the law is silent on who is the appointing
power, or if the law authorizing the head of a department, agency, commission, or
board to appoint is declared unconstitutional. Thus, if Section 6(b) and (c) of PD 15
is found unconstitutional, the President shall appoint the trustees of the CCP Board
because the trustees fall under the third group of officers.
The Scope of the Appointment Power of the Heads of Departments,
Agencies, Commissions, or Boards
The framers of the 1987 Constitution clearly intended that Congress could by law
vest the appointment of lower-ranked officers in the heads of departments,
agencies, commissions, or boards. The deliberations of the 1986 Constitutional
Commission explain this intent beyond any doubt.
16
The framers of the 1987 Constitution changed the qualifying word "inferior" to the
less disparaging phrase "lower in rank" purely for style. However, the clear intent
remained that these inferior or lower in rank officers are the subordinates of
the heads of departments, agencies, commissions, or boards who are vested
by law with the power to appoint. The express language of the Constitution and
the clear intent of its framers point to only one conclusion — the officers whom the
heads of departments, agencies, commissions, or boards may appoint must be of
lower rank than those vested by law with the power to appoint.
Congress May Vest the Authority to Appoint Only in the Heads of the Named
Offices
Further, Section 16, Article VII of the 1987 Constitution authorizes Congress to vest
"in the heads of departments, agencies, commissions, or boards" the power to
appoint lower-ranked officers.
In a department in the Executive branch, the head is the Secretary. The law may
not authorize the Undersecretary, acting as such Undersecretary, to appoint lower-
ranked officers in the Executive department. In an agency, the power is vested in
the head of the agency for it would be preposterous to vest it in the agency itself.
In a commission, the head is the chairperson of the commission. In a board, the
head is also the chairperson of the board. In the last three situations, the law may
not also authorize officers other than the heads of the agency, commission, or
board to appoint lower-ranked officers.
The grant of the power to appoint to the heads of agencies, commissions, or
boards is a matter of legislative grace. Congress has the discretion to grant to, or
withhold from, the heads of agencies, commissions, or boards the power to appoint
lower-ranked officers. If it so grants, Congress may impose certain conditions for
the exercise of such legislative delegation, like requiring the recommendation of
subordinate officers or the concurrence of the other members of the commission or
board.
This is in contrast to the President's power to appoint which is a self- executing
power vested by the Constitution itself and thus not subject to legislative limitations
or conditions. The power to appoint conferred directly by the Constitution on the
Supreme Court en banc and on the Constitutional Commissions is also self-
executing and not subject to legislative limitations or conditions.
The Constitution authorizes Congress to vest the power to appoint lower-ranked
officers specifically in the "heads" of the specified offices, and in no other person.
The word "heads" refers to the chairpersons of the commissions or boards and not
to their members, for several reasons.
As an enumeration of offices, what applies to the first office in the enumeration
also applies to the succeeding offices mentioned in the enumeration. Since the
SAMMIE
words "in the heads of" refer to "departments," the same words "in the heads of"
also refer to the other offices listed in the enumeration, namely, "agencies,
commissions, or boards."
The head of the CCP is the Chairperson of its Board. PD 15 and its various
amendments constitute the Chairperson of the Board as the head of CCP. Thus,
Section 8 of PD 15. Thus, the Chairman of the CCP Board is the "head" of the CCP
who may be vested by law, under Section 16, Article VII of the 1987 Constitution,
with the power to appoint lower-ranked officers of the CCP. The CCP, being
governed by a board, is not an agency but a board for purposes of Section 16,
Article VII of the 1987 Constitution.
Section 6(b) and (c) of PD 15 Repugnant to Section 16, Article VII of the 1987
Constitution
Section 6(b) and (c) of PD 15 is thus irreconcilably inconsistent with Section 16,
Article VII of the 1987 Constitution. Section 6(b) and (c) of PD 15 empowers the
remaining trustees of the CCP Board to fill vacancies in the CCP Board, allowing
them to elect their fellow trustees. On the other hand, Section 16, Article VII of the
1987 Constitution allows heads of departments, agencies, commissions, or boards
to appoint only "officers lower in rank" than such "heads of departments,
agencies, commissions, or boards." This excludes a situation where the appointing
officer appoints an officer equal in rank as him. Thus, insofar as it authorizes the
trustees of the CCP Board to elect their co-trustees, Section 6(b) and (c) of PD 15
is unconstitutional because it violates Section 16, Article VII of the 1987
Constitution.
It does not matter that Section 6(b) of PD 15 empowers the remaining trustees to
"elect" and not "appoint" their fellow trustees for the effect is the same, which is to
fill vacancies in the CCP Board. A statute cannot circumvent the constitutional
limitations on the power to appoint by filling vacancies in a public office through
election by the co-workers in that office. Such manner of filling vacancies in a
public office has no constitutional basis.
Further, Section 6(b) and (c) of PD 15 makes the CCP trustees the independent
appointing power of their fellow trustees. The creation of an independent
appointing power inherently conflicts with the President's power to appoint. This
inherent conflict has spawned recurring controversies in the appointment of CCP
trustees every time a new President assumes office.
In the present case, the incumbent President appointed the Endriga group as
trustees, while the remaining CCP trustees elected the same Endriga group to the
same positions. This has been the modus vivendi in filling vacancies in the CCP
Board, allowing the President to appoint and the CCP Board to elect the trustees.
In effect, there are two appointing powers over the same set of officers in the
17
Executive branch. Each appointing power insists on exercising its own power,
even if the two powers are irreconcilable. The Court must put an end to this
recurring anomaly.
The President's Power of Control
There is another constitutional impediment to the implementation of Section 6(b)
and (c) of PD 15. Under our system of government, all Executive departments,
bureaus, and offices are under the control of the President of the Philippines.
Section 17, Article VII of the 1987 Constitution
The presidential power of control over the Executive branch of government extends
to all executive employees from the Department Secretary to the lowliest clerk.
This constitutional power of the President is self-executing and does not require
any implementing law. Congress cannot limit or curtail the President's power of
control over the Executive branch.
The 1987 Constitution has established three branches of government — the
Executive, Legislative and Judicial. In addition, there are the independent
constitutional bodies — like the Commission on Elections, Commission on Audit,
Civil Service Commission, and the Ombudsman. Then there are the hybrid or
quasi-judicial agencies, exercising jurisdiction in specialized areas, that are under
the Executive branch for administrative supervision purposes, but whose decisions
are reviewable by the courts.
The CCP does not fall under the Legislative or Judicial branches of government.
The CCP is also not one of the independent constitutional bodies. Neither is the
CCP a quasi-judicial body nor a local government unit. Thus, the CCP must fall
under the Executive branch. Under the Revised Administrative Code of 1987, any
agency "not placed by law or order creating them under any specific department"
falls "under the Office of the President."
Since the President exercises control over "all the executive departments, bureaus,
and offices," the President necessarily exercises control over the CCP which is an
office in the Executive branch. In mandating that the President "shall have control
of all executive . . . offices," Section 17, Article VII of the 1987 Constitution does
not exempt any executive office — one performing executive functions outside of
the independent constitutional bodies — from the President's power of control.
There is no dispute that the CCP performs executive, and not legislative, judicial, or
quasi-judicial functions.
The President's power of control applies to the acts or decisions of all officers in
the Executive branch. This is true whether such officers are appointed by the
President or by heads of departments, agencies, commissions, or boards. The
SAMMIE
power of control means the power to revise or reverse the acts or decisions of a
subordinate officer involving the exercise of discretion.
In short, the President sits at the apex of the Executive branch, and exercises
"control of all the executive departments, bureaus, and offices." There can be no
instance under the Constitution where an officer of the Executive branch is outside
the control of the President. The Executive branch is unitary since there is only one
President vested with executive power exercising control over the entire Executive
branch. Any office in the Executive branch that is not under the control of the
President is a lost command whose existence is without any legal or constitutional
basis.
The Legislature cannot validly enact a law that puts a government office in the
Executive branch outside the control of the President in the guise of insulating that
office from politics or making it independent. If the office is part of the Executive
branch, it must remain subject to the control of the President. Otherwise, the
Legislature can deprive the President of his constitutional power of control over "all
the executive . . . offices." If the Legislature can do this with the Executive branch,
then the Legislature can also deal a similar blow to the Judicial branch by enacting
a law putting decisions of certain lower courts beyond the review power of the
Supreme Court. This will destroy the system of checks and balances finely
structured in the 1987 Constitution among the Executive, Legislative, and Judicial
branches.
Of course, the President's power of control does not extend to quasi- judicial
bodies whose proceedings and decisions are judicial in nature and subject to
judicial review, even as such quasi-judicial bodies may be under the administrative
supervision of the President. It also does not extend to local government units,
which are merely under the general supervision of the President.
Section 6(b) and (c) of PD 15, which authorizes the trustees of the CCP Board to
fill vacancies in the Board, runs afoul with the President's power of control under
Section 17, Article VII of the 1987 Constitution. The intent of Section 6(b) and (c) of
PD 15 is to insulate the CCP from political influence and pressure, specifically from
the President. Section 6(b) and (c) of PD 15 makes the CCP a self-perpetuating
entity, virtually outside the control of the President. Such a public office or board
cannot legally exist under the 1987 Constitution.
18 SAMMIE

Resident Marine Mammals v. Reyes GR No. 180771, April 21, 2015 Eisma-Osorio, having shown in their petition that there may be possible violations
of laws concerning the habitat of the Resident Marine Mammals, are therefore
declared to possess the legal standing to file this petition.
WHEREFORE, the Petitions in G.R. Nos. 180771 and 181527 are GRANTED,
Service Contract No. 46 is hereby declared NULL AND VOID for violating the 1987
2. Impleading Former President Gloria Macapagal-Arroyo as an Unwilling Co-
Constitution, Republic Act No. 7586, and Presidential Decree No. 1586.
Petitioner
The DOE entered into SC-46 with Japan Petroleum Corporation Co., Ltd. (JAPEX),
Under the foregoing rule, when the consent of a party who should be joined as a
a company organized and existing under the laws of Japan with a Philippine
plaintiff cannot be obtained, he or she may be made a party defendant to the case.
branch office. This contract involved geological and geophysical studied of the
This will put the unwilling party under the jurisdiction of the Court, which can
tañon Strait. The studies included surface geology, sample analysis, and
properly implead him or her through its processes. The unwilling party's name
reprocessing of seismic and magnetic data. JAPEX, assisted by DOE, also
cannot be simply included in a petition, without his or her knowledge and consent,
conducted geophysical; and satellite surveys, as well as oil and gas samplings in
as such would be a denial of due process.
Tañon strait.
Moreover, the reason cited by the petitioners Stewards for including former
The petitioners argued that there has been fish kill and reduction of catch as a
President Macapagal-Arroyo in their petition, is not sufficient to implead her as an
result of the activities. They also alleged the destruction of fish aggregating
unwilling co-petitioner. Impleading the former President as an unwilling co-
devices. Filipino fishers were also barred from entering and fishing within the
petitioner, for an act she made in the performance of the functions of her office, is
radius of the oil rig activities.
contrary to the public policy against embroiling the President in suits, "to assure the
exercise of Presidential duties and functions free from any hindrance or distraction,
Issues:
considering that being the Chief Executive of the Government is a job that, aside
Procedural Issues
from requiring all of the office holder's time, also demands undivided attention."
1. Locus Standi of Petitioners Resident Marine Mammals and Stewards
2. Impleading Former President Gloria Macapagal-Arroyo as an Unwilling Co-
Therefore, former President Macapagal-Arroyo cannot be impleaded as one of the
Petitioner
petitioners in this suit. Thus, her name is stricken off the title of this case.
Main Issue:
3. Legality of Service Contract No. 46 Service Contract No. 46 vis-Ã -vis Section 2,
3. Legality of Service Contract No. 46 Service Contract No. 46 vis-Ã -vis Section 2,
Article XII of the 1987 Constitution
Article XII of the 1987 Constitution
Ruling:
Under Section 4 of the NIPAS Act, a protected area refers to portions of land and
1. Locus Standi of Petitioners Resident Marine Mammals and Stewards
water, set aside due to their unique physical and biological significance, managed
The Resident Marine Mammals, through the Stewards, "claim" that they have the
to enhance biological diversity and protected against human exploitation.
legal standing to file this action since they stand to be benefited or injured by the
judgment in this suit
The Tañon Strait, pursuant to Proclamation No. 1234, was set aside and declared a
protected area under the category of Protected Seascape. The NIPAS Act defines
The Court passed the landmark Rules of Procedure for Environmental Cases,
a Protected Seascape to be an area of national significance characterized by the
which allow for a "citizen suit," and permit any Filipino citizen to file an action
harmonious interaction of man and land while providing opportunities for public
before our courts for violations of our environmental laws. (Citizen suits filed under
enjoyment through recreation and tourism within the normal lifestyle and economic
R.A. No. 8749 and R.A. No. 9003)
activity of this areas; thus a management plan for each area must be designed to
protect and enhance the permanent preservation of its natural conditions.
In light of the foregoing, the need to give the Resident Marine Mammals legal
Consistent with this endeavor is the requirement that an Environmental Impact
standing has been eliminated by our Rules, which allow any Filipino citizen, as a
Assessment (EIA) be made prior to undertaking any activity outside the scope of
steward of nature, to bring a suit to enforce our environmental laws. It is worth
the management plan. Unless an ECC under the EIA system is obtained, no
noting here that the Stewards are joined as real parties in the Petition and not just
activity inconsistent with the goals of the NIPAS Act shall be implemented.
in representation of the named cetacean species. The Stewards, Ramos and
19 SAMMIE

The Environmental Impact Statement System (EISS) was established in 1978
under Presidential Decree No. 1586. It prohibits any person, partnership or
corporation from undertaking or operating any declared environmentally critical
project or areas without first securing an ECC issued by the President or his duly
authorized representative. Pursuant to the EISS, which called for the proper
management of environmentally critical areas, Proclamation No. 2146 was
enacted, identifying the areas and types of projects to be considered as
environmentally critical and within the scope of the EISS, while DENR
Administrative Order No. 2003-30 provided for its Implementing Rules and
Regulations (IRR).
should oil in commercial quantities be found to exist in the area. While
Presidential Decree No. 87 may serve as the general law upon which a
service contract for petroleum exploration and extraction may be authorized,
the exploitation and utilization of this energy resource in the present case
may be allowed only through a law passed by Congress, since the Tañon
Strait is a NIPAS area. 106 Since there is no such law specifically allowing oil
exploration and/or extraction in the Tañon Strait, no energy resource
exploitation and utilization may be done in said protected seascape.

DENR Administrative Order No. 2003-30 defines an environmentally critical area

as "an area delineated as environmentally sensitive such that significant
environmental impacts are expected if certain types of proposed projects or
programs are located, developed, or implemented in it"; thus, before a project,
which is "any activity, regardless of scale or magnitude, which may have significant
impact on the environment," is undertaken in it, such project must undergo an EIA
to evaluate and predict the likely impacts of all its stages on the environment.

Under ProclamationNo. 2146, the Tañon Strait is an environmentally critical area,

having been declared as a protected area in 1998; therefore, any activity outside
the scope of its management plan may only be implemented pursuant to an ECC
secured after undergoing an EIA to determine the effects of such activity on its
ecological system. It is true that the restrictions found under the NIPAS Act are not
without exceptions. However, while an exploration done for the purpose of
surveying for energy resources is allowed under Section 14 of the NIPAS Act,
this does not mean that it is exempt from the requirement to undergo an EIA
under Section 12.

Surveying for energy resources under Section 14 is not an exemption from

complying with the EIA requirement in Section 12; instead, Section 14
provides for additional requisites before any exploration for energy
resources may be done in protected areas.

The public respondents themselves admitted that JAPEX only started to secure an
ECC prior to the second sub-phase of SC-46, which required the drilling of an oil
exploration well. This means that when the seismic surveys were done in the
Tañon Strait, no such environmental impact evaluation was done. Unless seismic
surveys are part of the management plan of the Tañon Strait, such surveys were
done in violation of Section 12 of the NIPAS Act and Section 4 of Presidential
Decree No. 1586.

Moreover, SC-46 was not executed for the mere purpose of gathering information
on the possible energy resources in the Tañon Strait as it also provides for the
parties' rights and obligations relating to extraction and petroleum production
20
Pimentel, Jr. v. Office of the Executive Secretary, GR No. 191002, July 6, 2005
IN VIEW WHEREOF, the petition is DISMISSED.
Petitioners filed the instant petition to compel the respondents — the Office of the
Executive Secretary and the Department of Foreign Affairs — to transmit the
signed text of the treaty to the Senate of the Philippines for ratification.
The Rome Statute established the International Criminal Court which "shall have
the power to exercise its jurisdiction over persons for the most
serious crimes of international concern . . . and shall be complementary to the
national criminal jurisdictions." Its jurisdiction covers the crime of genocide, crimes
against humanity, war crimes and the crime of aggression as defined in
the Statute. The Statute was opened for signature by all states in Rome on July 17,
1998 and had remained open for signature until December 31, 2000 at the United
Nations Headquarters in New York. The Philippines signed the Statute on
December 28, 2000 through Charge d' Affairs Enrique A. Manalo of the Philippine
Mission to the United Nations. Its provisions, however, require that it be subject to
ratification, acceptance or approval of the signatory states.
It is the theory of the petitioners that ratification of a treaty, under both domestic law
and international law, is a function of the Senate. Hence, it is the duty of the
executive department to transmit the signed copy of the Rome Statute to the
Senate to allow it to exercise its discretion with respect to ratification of treaties.
Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the
Rome Statute under treaty law and customary international law. Petitioners invoke
the Vienna Convention on the Law of Treaties enjoining the states to refrain from
acts which would defeat the object and purpose of a treaty when they have signed
the treaty prior to ratification unless they have made their intention clear not to
become parties to the treaty.
Issue:
Procedural:
1. Petitioners legal standing to file the suit.
Substantive:
2. whether the Executive Secretary and the Department of Foreign Affairs
have a ministerial duty to transmit to the Senate the copy of the Rome
Statute signed by a member of the Philippine Mission to the United Nations
even without the signature of the President.
Ruling:
1. Petitioners legal standing to file the suit.
A petition for mandamus may be filed when any tribunal, corporation, board, officer
or person unlawfully neglects the performance of an act which the law specifically
SAMMIE
enjoins as a duty resulting from an office, trust, or station. We have held that to be
given due course, a petition for mandamus must have been instituted by a party
aggrieved by the alleged inaction of any tribunal, corporation, board or person
which unlawfully excludes said party from the enjoyment of a legal right. The
petitioner in every case must therefore be an aggrieved party in the sense that he
possesses a clear legal right to be enforced and a direct interest in the duty or act
to be performed. The Court will exercise its power of judicial review only if the case
is brought before it by a party who has the legal standing to raise the constitutional
or legal question. "Legal standing" means a personal and substantial interest in the
case such that the party has sustained or will sustain direct injury as a result of the
government act that is being challenged. The term "interest" is material interest, an
interest in issue and to be affected by the decree, as distinguished from mere
interest in the question involved, or a mere incidental interest.
The question in standing is whether a party has alleged such a personal stake in
the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.
We find that among the petitioners, only Senator Pimentel has the legal standing to
file the instant suit. The other petitioners maintain their standing as advocates and
defenders of human rights, and as citizens of the country. They have not shown,
however, that they have sustained or will sustain a direct injury from the non-
transmittal of the signed text of the Rome Statute to the Senate. Their contention
that they will be deprived of their remedies for the protection and enforcement of
their rights does not persuade. The Rome Statute is intended to complement
national criminal laws and courts. Sufficient remedies are available under our
national laws to protect our citizens against human rights violations and petitioners
can always seek redress for any abuse in our domestic courts.
As regards Senator Pimentel, it has been held that "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." Thus,
legislators have the standing to maintain inviolate the prerogatives, powers and
privileges vested by the Constitution in their office and are allowed to sue to
question the validity of any official action which they claim infringes their
prerogatives as legislators. The petition at bar invokes the power of the Senate to
grant or withhold its concurrence to a treaty entered into by the executive branch,
in this case, the Rome Statute. The petition seeks to order the executive branch to
transmit the copy of the treaty to the Senate to allow it to exercise such authority.
Senator Pimentel, as member of the institution, certainly has the legal standing to
assert such authority of the Senate.
2. whether the Executive Secretary and the Department of Foreign Affairs
have a ministerial duty to transmit to the Senate the copy of the Rome
21
Statute signed by a member of the Philippine Mission to the United Nations
even without the signature of the President.
Negative
In our system of government, the President, being the head of state, is regarded as
the sole organ and authority in external relations and is the country's sole
representative with foreign nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with respect to international affairs.
Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter
into treaties, and otherwise transact the business of foreign relations. In the realm
of treaty-making, the President has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into
treaties, the Constitution provides a limitation to his power by requiring the
concurrence of 2/3 of all the members of the Senate for the validity of the treaty
entered into by him. Section 21, Article VII of the 1987 Constitution provides that
"no treaty or international agreement shall be valid and effective unless concurred
in by at least two-thirds of all the Members of the Senate." The 1935 and the 1973
Constitution also required the concurrence by the legislature to the treaties entered
into by the executive. Section 10 (7), Article VII of the 1935 Constitution
The participation of the legislative branch in the treaty-making process was
deemed essential to provide a check on the executive in the field of foreign
relations. By requiring the concurrence of the legislature in the treaties entered into
by the President, the Constitution ensures a healthy system of checks and balance
necessary in the nation's pursuit of political maturity and growth.
Justice Isagani Cruz, in his book on International Law, describes the treaty-making
process in this wise:
The usual steps in the treaty-making process are: negotiation, signature,
ratification, and exchange of the instruments of ratification.
Negotiation may be undertaken directly by the head of state but he now usually
assigns this task to his authorized representatives. These representatives are
provided with credentials known as full powers, which they exhibit to the other
negotiators at the start of the formal discussions. It is standard practice for one of
the parties to submit a draft of the proposed treaty which, together with the
counter- proposals, becomes the basis of the subsequent negotiations. The
negotiations may be brief or protracted, depending on the issues involved, and
may even "collapse" in case the parties are unable to come to an agreement on
the points under consideration.
SAMMIE
If and when the negotiators finally decide on the terms of the treaty, the same is
opened for signature. This step is primarily intended as a means of authenticating
the instrument and for the purpose of symbolizing the good faith of the parties; but,
significantly, it does not indicate the final consent of the state in cases where
ratification of the treaty is required. The document is ordinarily signed in
accordance with the alternate, that is, each of the several negotiators is allowed to
sign first on the copy which he will bring home to his own state.
Ratification, which is the next step, is the formal act by which a state confirms and
accepts the provisions of a treaty concluded by its representatives. The purpose of
ratification is to enable the contracting states to examine the treaty more closely
and to give them an opportunity to refuse to be bound by it should they find it
inimical to their interests. It is for this reason that most treaties are made subject to
the scrutiny and consent of a department of the government other than that which
negotiated them.
The last step in the treaty-making process is the exchange of the instruments of
ratification, which usually also signifies the effectivity of the treaty unless a different
date has been agreed upon by the parties. Where ratification is dispensed with and
no effectivity clause is embodied in the treaty, the instrument is deemed effective
upon its signature.
It should be underscored that the signing of the treaty and the ratification are two
separate and distinct steps in the treaty- making process. As earlier discussed, the
signature is primarily intended as a means of authenticating the instrument and as
a symbol of the good faith of the parties. It is usually performed by the state's
authorized representative in the diplomatic mission. Ratification, on the other hand,
is the formal act by which a state confirms and accepts the provisions of a treaty
concluded by its representative. It is generally held to be an executive act,
undertaken by the head of the state or of the government. Thus, Executive Order
No. 459 issued by President Fidel V. Ramos on November 25, 1997 provides the
guidelines in the negotiation of international agreements and its ratification. It
mandates that after the treaty has been signed by the Philippine representative,
the same shall be transmitted to the Department of Foreign Affairs. The
Department of Foreign Affairs shall then prepare the ratification papers and forward
the signed copy of the treaty to the President for ratification. After the President has
ratified the treaty, the Department of Foreign Affairs shall submit the same to the
Senate for concurrence. Upon receipt of the concurrence of the Senate, the
Department of Foreign Affairs shall comply with the provisions of the treaty to
render it effective.
Petitioners' submission that the Philippines is bound under treaty law and
international law to ratify the treaty which it has signed is without basis. The
signature does not signify the final consent of the state to the treaty. It is the
ratification that binds the state to the provisions thereof. In fact, the Rome Statute
22
itself requires that the signature of the representatives of the states be subject to
ratification, acceptance or approval of the signatory states. Ratification is the act by
which the provisions of a treaty are formally confirmed and approved by a State. By
ratifying a treaty signed in its behalf, a state expresses its willingness to be bound
by the provisions of such treaty. After the treaty is signed by the state's
representative, the President, being accountable to the people, is burdened with
the responsibility and the duty to carefully study the contents of the treaty and
ensure that they are not inimical to the interest of the state and its people. Thus,
the President has the discretion even after the signing of the treaty by the
Philippine representative whether or not to ratify the same. The Vienna Convention
on the Law of Treaties does not contemplate to defeat or even restrain this power
of the head of states. If that were so, the requirement of ratification of treaties
would be pointless and futile. It has been held that a state has no legal or even
moral duty to ratify a treaty which has been signed by its plenipotentiaries. There is
no legal obligation to ratify a treaty, but it goes without saying that the refusal must
be based on substantial grounds and not on superficial or whimsical reasons.
Otherwise, the other state would be justified in taking offense.
It should be emphasized that under our Constitution, the power to ratify is vested in
the President, subject to the concurrence of the Senate. The role of the Senate,
however, is limited only to giving or withholding its consent, or concurrence, to the
ratification. Hence, it is within the authority of the President to refuse to submit a
treaty to the Senate or, having secured its consent for its ratification, refuse to ratify
it. Although the refusal of a state to ratify a treaty which has been signed in its
behalf is a serious step that should not be taken lightly, such decision is within the
competence of the President alone, which cannot be encroached by this Court via
a writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin
the President in the performance of his official duties. The Court, therefore, cannot
issue the writ of mandamus prayed for by the petitioners as it is beyond its
jurisdiction to compel the executive branch of the government to transmit the
signed text of Rome Statute to the Senate.
SAMMIE
Biraogo vs the Philippine Truth Commission, G.R. No. 192935, December 7,
2010
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby
declared UNCONSTITUTIONAL insofar as it is violative of the equal protection
clause of the Constitution.
As also prayed for, the respondents are hereby ordered to cease and desist from
carrying out the provisions of Executive Order No. 1.
During the tenure of the then President Benigno Simeon Aquino III, he signed
Executive Order No. 1 establishing the Philippine Truth Commission of 2010 (Truth
Commission).
As can be gleaned from the above-quoted provisions, the Philippine Truth
Commission (PTC) is a mere ad hoc body formed under the Office of the President
with the primary task to investigate reports of graft and corruption committed by
third-level public officers and employees, their co-principals, accomplices and
accessories during the previous administration, and thereafter to submit its finding
and recommendations to the President, Congress and the Ombudsman. Though it
has been described as an "independent collegial body," it is essentially an entity
within the Office of the President Proper and subject to his control. Doubtless, it
constitutes a public office, as an ad hoc body is one.
To accomplish its task, the PTC shall have all the powers of an investigative body
under Section 37, Chapter 9, Book I of the Administrative Code of 1987. It is not,
however, a quasi-judicial body as it cannot adjudicate, arbitrate, resolve, settle, or
render awards in disputes between contending parties. All it can do is gather,
collect and assess evidence of graft and corruption and make recommendations. It
may have subpoena powers but it has no power to cite people in contempt, much
less order their arrest. Although it is a fact- finding body, it cannot determine from
such facts if probable cause exists as to warrant the filing of an information in our
courts of law. Needless to state, it cannot impose criminal, civil or administrative
penalties or sanctions
The PTC is different from the truth commissions in other countries which have
been created as official, transitory and non-judicial fact-finding bodies "to establish
the facts and context of serious violations of human rights or of international
humanitarian law in a country's past." They are usually established by states
emerging from periods of internal unrest, civil strife or authoritarianism to serve as
mechanisms for transitional justice.
Truth commissions have been described as bodies that share the following
characteristics: (1) they examine only past events; (2) they investigate patterns of
abuse committed over a period of time, as opposed to a particular event; (3) they
23
are temporary bodies that finish their work with the submission of a report
containing conclusions and recommendations; and (4) they are officially
sanctioned, authorized or empowered by the State. "Commission's members are
usually empowered to conduct research, support victims, and propose policy
recommendations to prevent recurrence of crimes. Through their investigations, the
commissions may aim to discover and learn more about past abuses, or formally
acknowledge them. They may aim to prepare the way for prosecutions and
recommend institutional reforms." Thus, their main goals range from retribution to
reconciliation.
Barely a month after the issuance of Executive Order No. 1, the petitioners asked
the Court to declare it unconstitutional and to enjoin the PTC from performing its
functions. A perusal of the arguments of the petitioners in both cases shows that
they are essentially the same. Some of the alleged violation involves the
separation of powers by the Congress and the Executive branch and the alleged
violation of the said Executive Order to the equal protection clause as it selectively
targets for investigation and prosecution officials and personnel of the previous
administration as if corruption is their peculiar species even as it excludes those of
the other administrations, past and present, who may be indictable.
Issues:
1. Whether or not the petitioners have the legal standing to file their respective
petitions and question Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates the principle of separation of
powers by usurping the powers of Congress to create and to appropriate
funds for public offices, agencies and commissions;
3. Whether or not Executive Order No. 1 supplants the powers of the
Ombudsman and the DOJ;
4. Whether or not Executive Order No. 1 violates the equal protection clause;
and
5. Whether or not petitioners are entitled to injunctive relief.
Ruling:
1. Whether or not the petitioners have the legal standing to file their respective
petitions and question Executive Order No. 1;
With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to
question the creation of the PTC and the budget for its operations. It emphasizes
that the funds to be used for the creation and operation of the commission are to
be taken from those funds already appropriated by Congress. Thus, the allocation
and disbursement of funds for the commission will not entail congressional action
but will simply be an exercise of the President's power over contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or
is in danger of sustaining, any personal and direct injury attributable to the
SAMMIE
implementation of Executive Order No. 1. Nowhere in his petition is an assertion of
a clear right that may justify his clamor for the Court to exercise judicial power and
to wield the axe over presidential issuances in defense of the Constitution. The
case of David v. Arroyo explained the deep-seated rules on locus standi.
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a
matter of procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary
citizens, taxpayers, and legislators when the public interest so requires, such as
when the matter is of transcendental importance, of overreaching significance to
society, or of paramount public interest."
The Court, however, finds reason in Biraogo's assertion that the petition covers
matters of transcendental importance to justify the exercise of jurisdiction by the
Court. There are constitutional issues in the petition which deserve the attention of
this Court in view of their seriousness, novelty and weight as precedents. Where
the issues are of transcendental and paramount importance not only to the public
but also to the Bench and the Bar, they should be resolved for the guidance of all.
30 Undoubtedly, the Filipino people are more than interested to know the status of
the President's first effort to bring about a promised change to the country. The
Court takes cognizance of the petition not due to overwhelming political undertones
that clothe the issue in the eyes of the public, but because the Court stands firm in
its oath to perform its constitutional duty to settle legal controversies with
overreaching significance to society.
2. Whether or not Executive Order No. 1 violates the principle of separation of
powers by usurping the powers of Congress to create and to appropriate
funds for public offices, agencies and commissions;
Section 31 of the Administrative Code of 1987, granting the President the
continuing authority to reorganize his office, cannot serve as basis for the creation
of a truth commission considering the aforesaid provision merely uses verbs such
as "reorganize," "transfer," "consolidate," "merge," and "abolish." Insofar as it vests
in the President the plenary power to reorganize the Office of the President to the
extent of creating a public office, Section 31 is inconsistent with the principle of
separation of powers enshrined in the Constitution and must be deemed repealed
upon the effectivity thereof.
In the same vein, the creation of the PTC is not justified by the President's power of
control. Control is essentially the power to alter or modify or nullify or set aside
what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former with that of the latter. Clearly, the power of
control is entirely different from the power to create public offices. The former is
inherent in the Executive, while the latter finds basis from either a valid delegation
from Congress, or his inherent duty to faithfully execute the laws.
24
The question is this, is there a valid delegation of power from Congress,
empowering the President to create a public office?
According to the OSG, the power to create a truth commission pursuant to the
above provision finds statutory basis under P.D. 1416, as amended by P.D. No.
1772. The said law granted the President the continuing authority to reorganize the
national government, including the power to group, consolidate bureaus and
agencies, to abolish offices, to transfer functions, to create and classify functions,
services and activities, transfer appropriations, and to standardize salaries and
materials. This decree, in relation to Section 20, Title I, Book III of E.O. 292.
It should be stressed that the purpose of allowingad hoc investigating bodies to
exist is to allow an inquiry into matters which the President is entitled to know so
that he can be properly advised and guided in the performance of his duties
relative to the execution and enforcement of the laws of the land. And if history is to
be revisited, this was also the objective of the investigative bodies created in the
past like the PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo
Commission and the Zenarosa Commission. There being no changes in the
government structure, the Court is not inclined to declare such executive power as
non-existent just because the direction of the political winds have changed.
On the charge that Executive Order No. 1 transgresses the power of Congress to
appropriate funds for the operation of a public office, suffice it to say that there will
be no appropriation but only an allotment or allocations of existing funds already
appropriated. Accordingly, there is no usurpation on the part of the Executive of the
power of Congress to appropriate funds. Further, there is no need to specify the
amount to be earmarked for the operation of the commission because, in the words
of the Solicitor General, "whatever funds the Congress has provided for the Office
of the President will be the very source of the funds for the commission." Moreover,
since the amount that would be allocated to the PTC shall be subject to existing
auditing rules and regulations, there is no impropriety in the funding.
3. Whether or not Executive Order No. 1 supplants the powers of the
Ombudsman and the DOJ;
The President's power to conduct investigations to ensure that laws are faithfully
executed is well recognized. It flows from the faithful-execution clause of the
Constitution under Article VII, Section 17 thereof. As the Chief Executive, the
president represents the government as a whole and sees to it that all laws are
enforced by the officials and employees of his department. He has the authority to
directly assume the functions of the executive department.
Invoking this authority, the President constituted the PTC to primarily investigate
reports of graft and corruption and to recommend the appropriate action. As
previously stated, no quasi-judicial powers have been vested in the said body as it
cannot adjudicate rights of persons who come before it. It has been said that
SAMMIE
"Quasi-judicial powers involve the power to hear and determine questions of fact to
which the legislative policy is to apply and to decide in accordance with the
standards laid down by law itself in enforcing and administering the same law." In
simpler terms, judicial discretion is involved in the exercise of these quasi-judicial
power, such that it is exclusively vested in the judiciary and must be clearly
authorized by the legislature in the case of administrative agencies.
Fact-finding is not adjudication and it cannot be likened to the judicial function of a
court of justice, or even a quasi-judicial agency or office. The function of receiving
evidence and ascertaining therefrom the facts of a controversy is not a judicial
function. To be considered as such, the act of receiving evidence and arriving at
factual conclusions in a controversy must be accompanied by the authority of
applying the law to the factual conclusions to the end that the controversy may be
decided or resolved authoritatively, finally and definitively, subject to appeals or
modes of review as may be provided by law. Even respondents themselves admit
that the commission is bereft of any quasi-judicial power.
Contrary to petitioners' apprehension, the PTC will not supplant the Ombudsman or
the DOJ or erode their respective powers. If at all, the investigative function of the
commission will complement those of the two offices. As pointed out by the
Solicitor General, the recommendation to prosecute is but a consequence of the
overall task of the commission to conduct a fact-finding investigation." The actual
prosecution of suspected offenders, much less adjudication on the merits of the
charges against them, is certainly not a function given to the commission. The
phrase, "when in the course of its investigation," under Section 2 (g), highlights this
fact and gives credence to a contrary interpretation from that of the petitioners. The
function of determining probable cause for the filing of the appropriate complaints
before the courts remains to be with the DOJ and the Ombudsman.
At any rate, the Ombudsman's power to investigate under R.A. No. 6770 is not
exclusive but is shared with other similarly authorized government agencies.
The act of investigation by the Ombudsman as enunciated above contemplates the
conduct of a preliminary investigation or the determination of the existence of
probable cause. This is categorically out of the PTC's sphere of functions. Its
power to investigate is limited to obtaining facts so that it can advise and guide the
President in the performance of his duties relative to the execution and
enforcement of the laws of the land. In this regard, the PTC commits no act of
usurpation of the Ombudsman's primordial duties.
The same holds true with respect to the DOJ. Its authority under Section 3 (2),
Chapter 1, Title III, Book IV in the Revised Administrative Code is by no means
exclusive and, thus, can be shared with a body likewise tasked to investigate the
commission of crimes.
25 SAMMIE

Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the
PTC are to be accorded conclusiveness. Much like its predecessors, the Davide
Commission, the Feliciano Commission and the Zenarosa Commission, its findings
would, at best, be recommendatory in nature. And being so, the Ombudsman and
the DOJ have a wider degree of latitude to decide whether or not to reject the
recommendation. These offices, therefore, are not deprived of their mandated
duties but will instead be aided by the reports of the PTC for possible indictments
for violations of graft laws.
of reasonableness. The test has four requisites: (1) The classification rests on
substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not
limited to existing conditions only; and (4) It applies equally to all members of the
same class. "Superficial differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it must include or
embrace all persons who naturally belong to the class.

4. Whether or not Executive Order No. 1 violates the equal protection clause;
and
Although the purpose of the Truth Commission falls within the investigative power
of the President, the Court finds difficulty in upholding the constitutionality of
Executive Order No. 1 in view of its apparent transgression of the equal protection
clause enshrined in Section 1, Article III (Bill of Rights) of the 1987 Constitution.

Petitioners assail the classification formulated by the respondents as it does not fall
under the recognized exceptions because first, "there is no substantial distinction
between the group of officials targeted for investigation by Executive Order No. 1
and other groups or persons who abused their public office for personal gain; and
second, the selective classification is not germane to the purpose of Executive
Order No. 1 to end corruption." In order to attain constitutional permission, the
petitioners advocate that the commission should deal with "graft and grafters prior
and subsequent to the Arroyo administration with the strong arm of the law with
equal force."
The concept of Equal Protection Clause
"According to a long line of decisions, equal protection simply requires that all
persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed." It "requires public bodies and institutions
to treat similarly situated individuals in a similar manner." "The purpose of the equal
protection clause is to secure every person within a state's jurisdiction against
intentional and arbitrary discrimination, whether occasioned by the express terms
of a statue or by its improper execution through the state's duly constituted
authorities." "In other words, the concept of equal justice under the law requires
the state to govern impartially, and it may not draw distinctions between individuals
solely on differences that are irrelevant to a legitimate governmental objective."

The equal protection clause is aimed at all official state actions, not just those of
the legislature. Its inhibitions cover all the departments of the government including
the political and executive departments, and extend to all actions of a state denying
equal protection of the laws, through whatever agency or whatever guise is taken.
It, however, does not require the universal application of the laws to all persons or
things without distinction. What it simply requires is equality among equals as
determined according to a valid classification. Indeed, the equal protection clause
permits classification. Such classification, however, to be valid must pass the test
26
Arturo de Castro v. JBC, GR No. 191002,17 March 2010
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and
G.R. No. 191149, and the petition for mandamus in G.R. No. 191057 for being
premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342
for lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial
and Bar Council:
(a) To resume its proceedings for the nomination of candidates to fill the vacancy to
be created by the compulsory retirement of Chief Justice Reynato S. Puno by May
17, 2010;
(b) To prepare the short list of nominees for the position of Chief Justice;
To submit to the incumbent President the short list of nominees for the position of
Chief Justice on or before May 17, 2010; and
(c) To continue its proceedings for the nomination of candidates to fill other
vacancies in the Judiciary and submit to the President the short list of nominees
corresponding thereto in accordance with this decision.
This case is based on multiple cases field with dealt with the controversy that has
arisen from the forthcoming compulsory requirement of Chief Justice Puno on May
17, 2010 or seven days after the presidential election. On December 22, 2009,
Congressman Matias V. Defensor, an ex officio member of the JBC, addressed a
letter to the JBC, requesting that the process for nominations to the office of the
Chief Justice be commenced immediately.
In its January 18, 2010 meeting en banc, the JBC passed a resolution which stated
that they have unanimously agreed to start the process of filling up the position of
Chief Justice to be vacated on May 17, 2010 upon the retirement of the incumbent
Chief Justice.
As a result, the JBC opened the position of Chief Justice for application or
recommendation, and published for that purpose its announcement in the
Philippine Daily Inquirer and the Philippine Star.
In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of
announcing the names of the following candidates to invite to the public to file their
sworn complaint, written report, or opposition, if any, not later than February 22,
2010.
Although it has already begun the process for the filling of the position of Chief
Justice Puno in accordance with its rules, the JBC is not yet decided on when to
submit to the President its list of nominees for the position due to the controversy in
this case being unresolved.
SAMMIE
The compiled cases which led to this case and the petitions of intervenors called
for either the prohibition of the JBC to pass the shortlist, mandamus for the JBC to
pass the shortlist, or that the act of appointing the next Chief Justice by GMA is a
midnight appointment.
A precedent frequently cited by the parties is the In Re Appointments Dated March
30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of
the RTC of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively,
shortly referred to here as the Valenzuela case, by which the Court held that
Section 15, Article VII prohibited the exercise by the President of the power to
appoint to judicial positions during the period therein fixed.
Issues:
Procedural
1. Locus Standi of Petitioners
2. Justiciability
Substantive
1. W/N the incumbent President appoint the next Chief Justice?
2. W/N mandamus and prohibition will lie to compel the submission of the
shortlist of nominees by the JBC?
Ruling:
1. Locus Standi of Petitioners
locus standi as "a right of appearance in a court of justice on a given question."
As indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:
The question on legal standing is whether such parties have "alleged such a
personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the
presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions."
People v. Vera, the Court adopted the direct injury test for determining whether a
petitioner in a public action had locus standi. There, the Court held that the person
who would assail the validity of a statute must have "a personal and substantial
interest in the case such that he has sustained, or will sustain direct injury as a
result."
The Court rules that the petitioners have each demonstrated adequate interest in
the outcome of the controversy as to vest them with the requisite locus standi. The
issues before us are of transcendental importance to the people as a whole, and to
the petitioners in particular. Indeed, the issues affect everyone (including the
petitioners), regardless of one's personal interest in life, because they concern that
great doubt about the authority of the incumbent President to appoint not only the
successor of the retiring incumbent Chief Justice, but also others who may serve in
27
the Judiciary, which already suffers from a far too great number of vacancies in the
ranks of trial judges throughout the country.
2. Justiciability
We hold that the petitions set forth an actual case or controversy that is ripe for
judicial determination. The reality is that the JBC already commenced the
proceedings for the selection of the nominees to be included in a short list to be
submitted to the President for consideration of which of them will succeed Chief
Justice Puno as the next Chief Justice. Although the position is not yet vacant, the
fact that the JBC began the process of nomination pursuant to its rules and
practices, although it has yet to decide whether to submit the list of nominees to
the incumbent outgoing President or to the next President, makes the situation ripe
for judicial determination, because the next steps are the public interview of the
candidates, the preparation of the short list of candidates, and the "interview of
constitutional experts, as may be needed."
The resolution of the controversy will surely settle — with finality — the nagging
questions that are preventing the JBC from moving on with the process that it
already began, or that are reasons persuading the JBC to desist from the rest of
the process.
Substantive
1. W/N the incumbent President appoint the next Chief Justice?
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department), provides:
Section 15. Two months immediately before the next presidential elections and up
to the end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public safety.
The other, Section 4 (1), Article VIII (Judicial Department), states:
Section 4. (1). The Supreme Court shall be composed of a Chief Justice and
fourteen Associate Justices. It may sit en banc or in its discretion, in division of
three, five, or seven Members. Any vacancy shall be filled within ninety days from
the occurrence thereof.
In the consolidated petitions, the petitioners, with the exception of Soriano,
Tolentino and Inting, submit that the incumbent President can appoint the
successor of Chief Justice Puno upon his retirement on May 17, 2010, on the
ground that the prohibition against presidential appointments under Section 15,
Article VII does not extend to appointments in the Judiciary.
The Court agrees with the submission.
SAMMIE
First. The records of the deliberations of the Constitutional Commission reveal that
the framers devoted time to meticulously drafting, styling, and arranging the
Constitution. Such meticulousness indicates that the organization and arrangement
of the provisions of the Constitution were not arbitrarily or whimsically done by the
framers, but purposely made to reflect their intention and manifest their vision of
what the Constitution should contain.
The Constitution consists of 18 Articles, three of which embody the allocation of the
awesome powers of government among the three great departments, the
Legislative (Article VI), the Executive (Article VII), and the Judicial Departments
(Article VIII). The arrangement was a true recognition of the principle of separation
of powers that underlies the political structure.
As can be seen, Article VII is devoted to the Executive Department, and, among
others, it lists the powers vested by the Constitution in the President. The
presidential power of appointment is dealt with in Sections 14, 15 and 16 of the
Article.
Article VIII is dedicated to the Judicial Department and defines the duties and
qualifications of Members of the Supreme Court, among others. Section 4 (1) and
Section 9 of this Article are the provisions specifically providing for the appointment
of Supreme Court Justices. In particular, Section 9 states that the appointment of
Supreme Court Justices can only be made by the President upon the submission
of a list of at least three nominees by the JBC; Section 4 (1) of the Article mandates
the President to fill the vacancy within 90 days from the occurrence of the vacancy.
Had the framers intended to extend the prohibition contained in Section 15, Article
VII to the appointment of Members of the Supreme Court, they could have explicitly
done so. They could not have ignored the meticulous ordering of the provisions.
They would have easily and surely written the prohibition made explicit in Section
15, Article VII as being equally applicable to the appointment of Members of the
Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That
such specification was not done only reveals that the prohibition against the
President or Acting President making appointments within two months before the
next presidential elections and up to the end of the President's or Acting
President's term does not refer to the Members of the Supreme Court.
Consequently, prohibiting the incumbent President from appointing a Chief Justice
on the premise that Section 15, Article VII extends to appointments in the Judiciary
cannot be sustained. A misinterpretation like Valenzuela should not be allowed to
last after its false premises have been exposed. It will not do to merely distinguish
Valenzuela from these cases, for the result to be reached herein is entirely
incompatible with whatValenzuela decreed. Consequently, Valenzuela now
deserves to be quickly sent to the dustbin of the unworthy and forgettable.
28
We reverse Valenzuela.
Second. Section 15, Article VII does not apply as well to all other appointments in
the Judiciary.
There is no question that one of the reasons underlying the adoption of Section 15
as part of Article VII was to eliminate midnight appointments from being made by
an outgoing Chief Executive in the mold of the appointments dealt with in the
leading case of Aytona v. Castillo. In fact, in Valenzuela, the Court so observed,
stating that:
. . . it appears that Section 15, Article VII is directed against two types of
appointments: (1) those made for buying votes and (2) those made for partisan
considerations. The first refers to those appointments made within the two months
preceding a Presidential election and are similar to those which are declared
election offenses in the Omnibus Election Code,
The second type of appointments prohibited by Section 15, Article VII consists of
the so-called "midnight" appointments. In Aytona v. Castillo, it was held that after
the proclamation of Diosdado Macapagal as duly elected President, President
Carlos P. Garcia, who was defeated in his bid for reelection, became no more than
a "caretaker" administrator whose duty was to "prepare for the orderly transfer of
authority to the incoming President."
As indicated, the Court recognized that there may well be appointments to
important positions which have to be made even after the proclamation of the new
President. Such appointments, so long as they are "few and so spaced as to
afford some assurance of deliberate action and careful consideration of the
need for the appointment and the appointee's qualifications," can be made
by the outgoing President. Accordingly, several appointments made by President
Garcia, which were shown to have been well considered, were upheld.
Section 15, Article VII has a broader scope than the Aytona ruling. It may not
unreasonably be deemed to contemplate not only "midnight" appointments
— those made obviously for partisan reasons as shown by their number and
the time of their making — but also appointments presumed made for the
purpose of influencing the outcome of the Presidential election.
Given the background and rationale for the prohibition in Section 15, Article VII, we
have no doubt that the Constitutional Commission confined the prohibition to
appointments made in the Executive Department. The framers did not need to
extend the prohibition to appointments in the Judiciary, because their establishment
of the JBC and their subjecting the nomination and screening of candidates for
judicial positions to the unhurried and deliberate prior process of the JBC ensured
that there would no longer be midnight appointments to the Judiciary. If midnight
SAMMIE
appointments in the mold of Aytona were made in haste and with irregularities, or
made by an outgoing Chief Executive in the last days of his administration out of a
desire to subvert the policies of the incoming President or for partisanship, 77 the
appointments to the Judiciary made after the establishment of the JBC would not
be suffering from such defects because of the JBC's prior processing of
candidates. Indeed, it is axiomatic in statutory construction that the ascertainment
of the purpose of the enactment is a step in the process of ascertaining the intent
or meaning of the enactment, because the reason for the enactment must
necessarily shed considerable light on "the law of the statute," i.e., the intent;
hence, the enactment should be construed with reference to its intended scope
and purpose, and the court should seek to carry out this purpose rather than to
defeat it.
Also, the intervention of the JBC eliminates the danger that appointments to the
Judiciary can be made for the purpose of buying votes in a coming presidential
election, or of satisfying partisan considerations. The experience from the time of
the establishment of the JBC shows that even candidates for judicial positions at
any level backed by people influential with the President could not always be
assured of being recommended for the consideration of the President, because
they first had to undergo the vetting of the JBC and pass muster there. Indeed, the
creation of the JBC was precisely intended to de- politicize the Judiciary by doing
away with the intervention of the Commission on Appointments. This insulating
process was absent from the Aytona midnight appointment.
Third. As earlier stated, the non-applicability of Section 15, Article VII to
appointments in the Judiciary was confirmed by then Senior Associate Justice
Regalado to the JBC itself when it met on March 9, 1998 to discuss the question
raised by some sectors about the "constitutionality of . . . appointments" to the
Court of Appeals in light of the forthcoming presidential elections. He assured that
"on the basis of the (Constitutional) Commission's records, the election ban had no
application to appointments to the Court of Appeals." This confirmation was
accepted by the JBC, which then submitted to the President for consideration the
nominations for the eight vacancies in the Court of Appeals.
The fault of Valenzuela was that it accorded no weight and due consideration to the
confirmation of Justice Regalado. Valenzuela was weak, because it relied on
interpretation to determine the intent of the framers rather than on the deliberations
of the Constitutional Commission. Much of the unfounded doubt about the
President's power to appoint during the period of prohibition in Section 15, Article
VII could have been dispelled since its promulgation on November 9, 1998, had
Valenzuela properly acknowledged and relied on the confirmation of a
distinguished member of the Constitutional Commission like Justice Regalado.
Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section 15, and
Section 16) concern the appointing powers of the President.
29
Section 14 speaks of the power of the succeeding President to revoke
appointments made by an Acting President, and evidently refers only to
appointments in the Executive Department. It has no application to appointments in
the Judiciary, because temporary or acting appointments can only undermine the
independence of the Judiciary due to their being revocable at will. The letter and
spirit of the Constitution safeguard that independence. Also, there is no law in the
books that authorizes the revocation of appointments in the Judiciary. Prior to their
mandatory retirement or resignation, judges of the first and second level courts and
the Justices of the third level courts may only be removed for cause, but the
Members of the Supreme Court may be removed only by impeachment.
Section 16 covers only the presidential appointments that require confirmation by
the Commission on Appointments. Thereby, the Constitutional Commission
restored the requirement of confirmation by the Commission on Appointments after
the requirement was removed from the 1973 Constitution. Yet, because of Section
9 of Article VIII, the restored requirement did not include appointments to the
Judiciary.
Section 14, Section 15, and Section 16 are obviously of the same character, in that
they affect the power of the President to appoint. The fact that Section 14 and
Section 16 refer only to appointments within the Executive Department renders
conclusive that Section 15 also applies only to the Executive Department. This
conclusion is consistent with the rule that every part of the statute must be
interpreted with reference to the context, i.e., that every part must be considered
together with the other parts, and kept subservient to the general intent of the
whole enactment. It is absurd to assume that the framers deliberately situated
Section 15 between Section 14 and Section 16, if they intended Section 15 to
cover all kinds of presidential appointments. If that was their intention in respect of
appointments to the Judiciary, the framers, if only to be clear, would have easily
and surely inserted a similar prohibition in Article VIII, most likely within Section 4
(1) thereof.
Fifth. To hold like the Court did in Valenzuela that Section 15 extends to
appointments to the Judiciary further undermines the intent of the Constitution of
ensuring the independence of the Judicial Department from the Executive and
Legislative Departments. Such a holding will tie the Judiciary and the Supreme
Court to the fortunes or misfortunes of political leaders vying for the Presidency in
a presidential election. Consequently, the wisdom of having the new President,
instead of the current incumbent President, appoint the next Chief Justice is itself
suspect, and cannot ensure judicial independence, because the appointee can
also become beholden to the appointing authority. In contrast, the appointment by
the incumbent President does not run the same risk of compromising judicial
independence, precisely because her term will end by June 30, 2010.
SAMMIE
Sixth. The argument has been raised to the effect that there will be no need for the
incumbent President to appoint during the prohibition period the successor of Chief
Justice Puno within the context of Section 4 (1), Article VIII, because anyway there
will still be about 45 days of the 90 days mandated in Section 4 (1), Article VIII
remaining.
Section 4 (3), Article VII requires the regular elections to be held on the second
Monday of May, letting the elections fall on May 8, at the earliest, or May 14, at the
latest. If the regular presidential elections are held on May 8, the period of the
prohibition is 115 days. If such elections are held on May 14, the period of the
prohibition is 109 days. Either period of the prohibition is longer than the full
mandatory 90-day period to fill the vacancy in the Supreme Court. The result is that
there are at least 19 occasions (i.e., the difference between the shortest possible
period of the ban of 109 days and the 90-day mandatory period for appointments)
in which the outgoing President would be in no position to comply with the
constitutional duty to fill up a vacancy in the Supreme Court. It is safe to assume
that the framers of the Constitution could not have intended such an absurdity. In
fact, in their deliberations on the mandatory period for the appointment of Supreme
Court Justices under Section 4 (1), Article VIII, the framers neither discussed, nor
mentioned, nor referred to the ban against midnight appointments under Section
15, Article VII, or its effects on the 90-day period, or vice versa. They did not need
to, because they never intended Section 15, Article VII to apply to a vacancy in the
Supreme Court, or in any of the lower courts.
Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on
whether a JBC list is necessary at all for the President — any President — to
appoint a Chief Justice if the appointee is to come from the ranks of the sitting
justices of the Supreme Court.
Sec. 9, Article VIII says:
. . . . The Members of the Supreme Court . . . shall be appointed by the President
from a list of at least three nominees prepared by the Judicial and Bar Council for
any vacancy. Such appointments need no confirmation.
The provision clearly refers to an appointee coming into the Supreme Court from
the outside, that is, a non-member of the Court aspiring to become one. It speaks
of candidates for the Supreme Court, not of those who are already members or
sitting justices of the Court, all of whom have previously been vetted by the JBC.
Can the President, therefore, appoint any of the incumbent Justices of the Court as
Chief Justice?
The question is not squarely before us at the moment, but it should lend itself to a
deeper analysis if and when circumstances permit. It should be a good issue for
30 SAMMIE

the proposed Constitutional Convention to consider in the light of Senate President
Juan Ponce Enrile's statement that the President can appoint the Chief Justice
from among the sitting justices of the Court even without a JBC list.
2. W/N mandamus and prohibition will lie to compel the submission of the
shortlist of nominees by the JBC?
Mandamus shall issue when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act that the law specifically enjoins as a
duty resulting from an office, trust, or station. It is proper when the act against
which it is directed is one addressed to the discretion of the tribunal or officer.
Mandamus is not available to direct the exercise of a judgment or discretion in a
particular way.
For mandamus to lie, the following requisites must be complied with:(a) the plaintiff
has a clear legal right to the act demanded; (b) it must be the duty of the defendant
to perform the act, because it is mandated by law; (c) the defendant unlawfully
neglects the performance of the duty enjoined by law; (d) the act to be performed is
ministerial, not discretionary; and (e) there is no appeal or any other plain, speedy
and adequate remedy in the ordinary course of law.
However, Section 4 (1) and Section 9, Article VIII, mandate the President to fill the
vacancy in the Supreme Court within 90 days from the occurrence of the vacancy,
and within 90 days from the submission of the list, in the case of the lower courts.
The 90-day period is directed at the President, not at the JBC. Thus, the JBC
should start the process of selecting the candidates to fill the vacancy in the
Supreme Court before the occurrence of the vacancy.
every vacancy in the Judiciary, because in order to constitute unlawful neglect of
duty, there must be an unjustified delay in performing that duty. For mandamus to
lie against the JBC, therefore, there should be an unexplained delay on its part in
recommending nominees to the Judiciary, that is, in submitting the list to the
President.
The distinction between a ministerial act and a discretionary one has been
delineated in the following manner:
A purely ministerial act or duty is one which an officer or tribunal performs in
a given state of facts, in a prescribed manner, in obedience to the mandate of
a legal authority, without regard to or the exercise of his own judgment upon
the propriety or impropriety of the act done. If the law imposes a duty upon a
public officer and gives him the right to decide how or when the duty shall be
performed, such duty is discretionary and not ministerial.
The duty is ministerial only when the discharge of the same requires neither
the exercise of official discretion or judgment.
Accordingly, we find no sufficient grounds to grant the petitions for mandamus and
to issue a writ of mandamus against the JBC. The actions for that purpose are
premature, because it is clear that the JBC still has until May 17, 2010, at the
latest, within which to submit the list of nominees to the President to fill the vacancy
created by the compulsory retirement of Chief Justice Puno.

Under the Constitution, it is mandatory for the JBC to submit to the President the
list of nominees to fill a vacancy in the Supreme Court in order to

enable the President to appoint one of them within the 90-day period from the
occurrence of the vacancy. The JBC has no discretion to submit the list to the
President after the vacancy occurs, because that shortens the 90-day period
allowed by the Constitution for the President to make the appointment. For the JBC
to do so will be unconscionable on its part, considering that it will thereby
effectively and illegally deprive the President of the ample time granted under the
Constitution to reflect on the qualifications of the nominees named in the list of the
JBC before making the appointment.

The duty of the JBC to submit a list of nominees before the start of the President's
mandatory 90-day period to appoint is ministerial, but its selection of the
candidates whose names will be in the list to be submitted to the President lies
within the discretion of the JBC. The object of the petitions for mandamus herein
should only refer to the duty to submit to the President the list of nominees for
31 SAMMIE

Matibag v. Benipayo, GR No. 149036, April 2, 2002 The legality of petitioner's reassignment hinges on the constitutionality of
Benipayo's ad interim appointment and assumption of office. Unless the
constitutionality of Benipayo's ad interim appointment and assumption of office is
WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner.
resolved, the legality of petitioner's reassignment from the EID to the Law
Department cannot be determined. Clearly, the lis mota of this case is the very
COMELEC en banc appointed petitioner as “Acting Director IV” of the EID. Such
constitutional issue raised by petitioner.
appointment was renewed in “temporary” capacity twice, first by Chairperson
Demetrio and then by Commissioner Javier. Later, PGMA appointed, ad interim,
In any event, the issue raised by petitioner is of paramount importance to the
Benipayo as COMELEC Chairman, and Borra and Tuason as COMELEC
public. The legality of the directives and decisions made by the COMELEC in the
Commissioners, each for a term of 7 yrs. The three took their oaths of office and
conduct of the May 14, 2001 national elections may be put in doubt if the
assumed their positions. However, since the Commission on Appointments did not
constitutional issue raised by petitioner is left unresolved. In keeping with this
act on said appointments, PGMA renewed the ad interim appointments.
Court's duty to determine whether other agencies of government have remained
within the limits of the Constitution and have not abused the discretion given them,
Issues:
this Court may even brush aside technicalities of procedure and resolve any
1. Whether or not the instant petition satisfies all the requirements before this
constitutional issue raised. Here the petitioner has complied with all the requisite
Court may exercise its power of judicial review in constitutional cases;
technicalities. Moreover, public interest requires the resolution of the constitutional
2. Whether or not the assumption of office by Benipayo, Borra and Tuason on
issue raised by petitioner.
the basis of the ad interim appointments issued by the President amounts to
a temporary appointment prohibited by Section 1 (2), Article IX-C of the
2. Whether or not the assumption of office by
Constitution;
Benipayo, Borra and Tuason on the basis of the ad interim appointments issued by
3. Assuming that the first ad interim appointments and the first assumption of
the President amounts to a temporary appointment prohibited by Section 1 (2),
office by Benipayo, Borra and Tuason are legal, whether or not the renewal
Article IX-C of the Constitution;
of their ad interim appointments and subsequent assumption of office to the
same positions violate the prohibition on reappointment under Section 1 (2),
Petitioner posits the view that an ad interim appointment can be withdrawn or
Article IX-C of the Constitution;
revoked by the President at her pleasure, and can even be disapproved or simply
4. Whether or not Benipayo's removal of petitioner from her position as
by-passed by the Commission on Appointments. For this reason, petitioner claims
Director IV of the EID and her reassignment to the Law Department is illegal
that an ad interim appointment is temporary in character and consequently
and without authority, having been done without the approval of the
prohibited by the last sentence of Section 1 (2), Article IX- C of the Constitution.
COMELEC as a collegial body;
5. Whether or not the Officer-in-Charge of the COMELEC's Finance Services
An ad interim appointment is a permanent appointment because it takes effect
Department, in continuing to make disbursements in favor of Benipayo,
immediately and can no longer be withdrawn by the President once the appointee
Borra, Tuason and Cinco, is acting in excess of jurisdiction.
has qualified into office. The fact that it is subject to confirmation by the
Ruling:
Commission on Appointments does not alter its permanent character. The
1. Whether or not the instant petition satisfies all the requirements before this
Constitution itself makes an ad interim appointment permanent in character by
Court may exercise its power of judicial review in constitutional cases;
making it effective until disapproved by the Commission on Appointments or until
the next adjournment of Congress. The second paragraph of Section 16, Article VII
The Power of judicial review has four requisites:
of the Constitution provides as follows:
(1) the existence of an actual and appropriate controversy;
"The President shall have the power to make appointments during the recess of
(2) a personal and substantial interest of the party raising the constitutional issue;
the Congress, whether voluntary or compulsory, but such appointments shall be
(3) the exercise of the judicial review is pleaded at the earliest opportunity; and
effective only until disapproval by the Commission on Appointments or until the
(4) the constitutional issue is the lis mota of the case.
next adjournment of the Congress." (Emphasis supplied)
Respondents argue that the second, third and fourth requisites are absent in this
Thus, the ad interim appointment remains effective until such disapproval or next
case but the court was not persuaded.
adjournment, signifying that it can no longer be withdrawn or revoked by the
32
President. The fear that the President can withdraw or revoke at any time and for
any reason an ad interim appointment is utterly without basis.
The Constitution imposes no condition on the effectivity of anad interim
appointment, and thus anad 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.
Thus, the term "ad interim appointment," as used in letters of appointment signed
by the President, means a permanent appointment made by the President in the
meantime that Congress is in recess. It does not mean a temporary appointment
that can be withdrawn or revoked at any time. The term, although not found in the
text of the Constitution, has acquired a definite legal meaning under Philippine
jurisprudence.
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 hisad interim appointment by the
Commission on Appointments. The second cause is the adjournment of Congress
without the Commission on Appointments acting on his appointment. These two
causes are resolutory conditions expressly imposed by the Constitution on all ad
interim appointments. These resolutory conditions constitute, in effect, a Sword of
Damocles over the heads of ad interim appointees. No one, however, can complain
because it is the Constitution itself that places the Sword of Damocles over the
heads of the ad interim appointees.
While an ad interim appointment is permanent and irrevocable except as provided
by law, an appointment or designation in a temporary or acting capacity can be
withdrawn or revoked at the pleasure of the appointing power. 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, this Court struck down as unconstitutional the
SAMMIE
designation by then President Corazon Aquino of Associate Commissioner Haydee
Yorac as Acting Chairperson of the COMELEC.
In the instant case, the President did in fact appoint permanent Commissioners to
fill the vacancies in the COMELEC, subject only to confirmation by the Commission
on Appointments. Benipayo, Borra and Tuason were extended permanent
appointments during the recess of Congress. They were not appointed or
designated in a temporary or acting capacity, unlike Commissioner Haydee Yorac
in Brillantes vs. Yorac and Solicitor General Felix Bautista in Nacionalista Party vs.
Bautista. 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
Commission on Appointments to first confirm ad interim appointees before the
appointees can assume office will negate the President's power to make ad interim
appointments. This is contrary to the rule on statutory construction to give meaning
and effect to every provision of the law. It will also run counter to the clear intent of
the framers of the Constitution.
Evidently, the exercise by the President in the instant case of her constitutional
power to makead interim appointments prevented the occurrence of the very evil
sought to be avoided by the second paragraph of Section 16, Article VII of the
Constitution. This power to make ad interim appointments is lodged in the
President to be exercised by her in her sound judgment. Under the second
paragraph of Section 16, Article VII of the Constitution, the President can choose
either of two modes in appointing officials who are subject to confirmation by the
Commission on Appointments. First, while Congress is in session, the President
may nominate the prospective appointee, and pending consent of the Commission
on Appointments, the nominee cannot qualify and assume office. Second, during
the recess of Congress, the President may extend an ad interim appointment
which allows the appointee to immediately qualify and assume office.
Whether the President chooses to nominate the prospective appointee or extend,
an ad interim appointment is a matter within the prerogative of the President
because the Constitution grants her that power. This Court cannot inquire into the
propriety of the choice made by the President in the exercise of her constitutional
power, absent grave abuse of discretion amounting to lack or excess of jurisdiction
on her part, which has not been shown in the instant case.
The issuance by Presidents of ad interim appointments to the COMELEC is a long-
standing practice. Former President Corazon Aquino issued an ad interim
appointment to Commissioner Alfredo E. Abueg.
33
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
Commission on Appointments had long confirmed four of the incumbent
COMELEC members, comprising a majority, who could now be removed from
office only by impeachment. The special constitutional safeguards that insure the
independence of the COMELEC remain in place. The COMELEC enjoys fiscal
autonomy, appoints its own officials and employees, and promulgates its own rules
on pleadings and practice. Moreover, the salaries of COMELEC members cannot
be decreased during their tenure.
In fine, we rule that thead interim appointments extended by the President to
Benipayo, Borra and Tuason, as COMELEC Chairman and Commissioners,
respectively, do not constitute temporary or acting appointments prohibited by
Section 1 (2), Article IX-C of the Constitution.
Temporary appointment- those given to persons without such eligibility, revocable
at will without the necessary of just cause or a valid investigation, made on the
understanding that the appointing power has not yet decided on a permanent
appointee and that the temporary appointee may be replaced at any time a
permanent choice is made.
3. Assuming that the first ad interim appointments and the first assumption of
office by Benipayo, Borra and Tuason are legal, whether or not the renewal
of their ad interim appointments and subsequent assumption of office to the
same positions violate the prohibition on reappointment under Section 1 (2),
Article IX-C of the Constitution;
The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution
applies neither to disapproved nor by-passedad interim appointments. 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. A by-passed ad interim appointment can be revived
by a new ad interim appointment because there is no final disapproval 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.
Section 1 (2), Article IX-C of the Constitution provides that "[t]he Chairman and the
Commissioners shall be appointed . . . for a term of seven years without
reappointment." (Emphasis supplied) There are four situations where this provision
will apply. The first situation is where an ad interim appointee to the COMELEC,
after confirmation by the Commission on Appointments, serves his full seven-year
SAMMIE
term. Such person cannot be reappointed to the COMELEC, whether as a member
or as a chairman, because he will then be actually serving more than seven years.
The second situation is where the appointee, after confirmation, serves a part of
his term and then resigns before his seven-year term of office ends. Such person
cannot be reappointed, whether as a member or as a chair, to a vacancy arising
from retirement because a reappointment will result in the appointee also serving
more than seven years. The third situation is where the appointee is confirmed to
serve the unexpired term of someone who died or resigned, and the appointee
completes the unexpired term. Such person cannot be reappointed, whether as a
member or chair, to a vacancy arising from retirement because a reappointment
will result in the appointee also serving more than seven years.
The fourth situation is where the appointee has previously served a term of less
than seven years, and a vacancy arises from death or resignation. Even if it will not
result in his serving more than seven years, a reappointment of such person to
serve an unexpired term is also prohibited because his situation will be similar to
those appointed under the second sentence of Section 1 (2), Article IX-C of the
Constitution. This provision refers to the first appointees under the Constitution
whose terms of office are less than seven years, but are barred from ever being
reappointed under any situation. Not one of these four situations applies to the
case of Benipayo, Borra or Tuason.
The framers of the Constitution made it quite clear that any person who has served
any term of office as COMELEC member — whether for a full term of seven years,
a truncated term of five or three years, or even for an unexpired term of any length
of time — can no longer be reappointed to the COMELEC.
To foreclose this interpretation, the phrase "without reappointment" appears twice
in Section 1 (2), Article IX-C of the present Constitution. The first phrase prohibits
reappointment of any person previously appointed for a term of seven years. The
second phrase prohibits reappointment of any person previously appointed for a
term of five or three years pursuant to the first set of appointees under the
Constitution. In either case, it does not matter if the person previously appointed
completes his term of office for the intention is to prohibit any reappointment of any
kind.
However, an ad interim appointment that has lapsed by inaction of the Commission
on Appointments does not constitute a term of office. The period from the time the
ad interim appointment is made to the time it lapses is neither a fixed term nor an
unexpired term. To hold otherwise would mean that the President by his unilateral
action could 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.
34
The phrase "without reappointment" applies only to one who has been appointed
by the President and confirmed by the Commission on Appointments, whether or
not such person completes his term of office. There must be a confirmation by the
Commission on Appointments of the previous appointment before the prohibition
on reappointment can apply. To hold otherwise will lead to absurdities and negate
the President's power to make ad interim appointments.
In the great majority of cases, the Commission on Appointments usually fails to act,
for lack of time, on the ad interim appointments first issued to appointees. If such
ad interim appointments can no longer be renewed, the President will certainly
hesitate to make ad interim appointments because most of her appointees will
effectively be disapproved by mere inaction of the Commission on Appointments.
This will nullify the constitutional power of the President to make ad interim
appointments, a power intended to avoid disruptions in vital government services.
This Court cannot subscribe to a proposition that will wreak havoc on vital
government services.
The prohibition on reappointment is common to the three constitutional
commissions. The framers of the present Constitution prohibited reappointments
for two reasons. The first is to prevent a second appointment for those who have
been previously appointed and confirmed even if they served for less than seven
years. The second is to insure that the members of the three constitutional
commissions do not serve beyond the fixed term of seven years. As reported in the
Journal of the Constitutional Commission, Commissioner Vicente B. Foz, who
sponsored the proposed articles on the three constitutional commissions, outlined
the four important features of the proposed articles,
There were two important amendments subsequently made by the Constitutional
Commission to these four features. First, as discussed earlier, the framers of the
Constitution decided to require confirmation by the Commission on Appointments
of all appointments to the constitutional commissions. Second, the framers decided
to strengthen further the prohibition on serving beyond the fixed seven-year term,
in the light of a former chair of the Commission on Audit remaining in office for 12
years despite his fixed term of seven years.
Plainly, the prohibition on reappointment is intended to insure that there will be no
reappointment of any kind. On the other hand, the prohibition on temporary or
acting appointments is intended to prevent any circumvention of the prohibition on
reappointment that may result in an appointee's total term of office exceeding
seven years. The evils sought to be avoided by the twin prohibitions are very
specific — reappointment of any kind and exceeding one's term in office beyond
the maximum period of seven years.
Not contented with these ironclad twin prohibitions, the framers of the Constitution
tightened even further the screws on those who might wish to extend their terms of
SAMMIE
office. Thus, the word "designated" was inserted to plug any loophole that might be
exploited by violators of the Constitution,
The ad interim appointments and subsequent renewals of appointments of
Benipayo, Borra and Tuason do not violate the prohibition on reappointments
because there were no previous appointments that were confirmed by the
Commission on Appointments. A reappointment presupposes a previous confirmed
appointment. The same ad interim appointments and renewals of appointments will
also not breach the seven-year term limit because all the appointments and
renewals of appointments of Benipayo, Borra and Tuason are for a fixed term
expiring on February 2, 2008. Any delay in their confirmation will not extend the
expiry date of their terms of office. Consequently, there is no danger whatsoever
that the renewal of the ad interim appointments of these three respondents will
result in any of the evils intended to be exorcised by the twin prohibitions in the
Constitution. The continuing renewal of the ad interim appointment of these three
respondents, for so long as their terms of office expire on February 2, 2008, does
not violate the prohibition on reappointments in Section 1 (2), Article IX-C of the
Constitution.
4. Whether or not Benipayo's removal of petitioner from her position as
Director IV of the EID and her reassignment to the Law Department is illegal
and without authority, having been done without the approval of the
COMELEC as a collegial body;
COMELEC Resolution No. 3300, requiring due notice and hearing before any
transfer or reassignment can be made within thirty days prior to election day, refers
only to COMELEC field personnel and not to head office personnel like the
petitioner. Under the Revised Administrative Code, the COMELEC Chairman is the
sole officer specifically vested with the power to transfer or reassign COMELEC
personnel. The COMELEC Chairman will logically exercise the authority to transfer
or reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300.
The COMELEC en banc cannot arrogate unto itself this power because that will
mean amending the Revised Administrative Code, an act the COMELEC en banc
cannot legally do.
COMELEC Resolution No. 3300 does not require that every transfer or
reassignment of COMELEC personnel should carry the concurrence of the
COMELEC as a collegial body. Interpreting Resolution No. 3300 to require such
concurrence will render the resolution meaningless since the COMELEC en banc
will have to approve every personnel transfer or reassignment, making the
resolution utterly useless. Resolution No. 3300 should be interpreted for what it is,
an approval to effect transfers and reassignments of personnel, without need of
securing a second approval from the COMELECen banc to actually implement
such transfer or reassignment.
35
The COMELEC Chairman is the official expressly authorized by law to transfer or
reassign COMELEC personnel. The person holding that office, in a de jure,
capacity, is Benipayo. The COMELEC en banc, in COMELEC Resolution No. 3340,
approved the transfer or reassignment of COMELEC personnel during the election
period. Thus, Benipayo's order reassigning petitioner from the EID to the Law
Department does not violate Section 261 (h) of the Omnibus Election Code. For
the same reason, Benipayo's order designating Cinco Officer-in- Charge of the EID
is legally unassailable.
5. Whether or not the Officer-in-Charge of the COMELEC's Finance Services
Department, in continuing to make disbursements in favor of Benipayo,
Borra, Tuason and Cinco, is acting in excess of jurisdiction.
Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-
Charge of the Finance Services Department of the Commission on Elections, did
not act in excess of jurisdiction in paying the salaries and other emoluments of
Benipayo, Borra, Tuason and Cinco.
SAMMIE
Philippine Bar Association, Inc. v. JBC; March 17, 2010, April 20, 2010
ACCORDINGLY, the motions for reconsideration are denied with finality.
This petition stems from the previous case filed by the petitioner, in GR No.
191002, These cases trace their genesis to the controversy that has arisen from
the forthcoming compulsory retirement of Chief Justice Puno seven days after the
presidential election. The instant petitions were thus filed questioning her authority
to appoint a new Chief Justice. In the light of
the ban imposed on presidential appointments two months immediately before the
next presidential elections up to the end of the President’s term under Section 15,
Article VII of the Constitution. This view however seemingly conflicts with Section
4(1), Article VIII which provides that any vacancy in the SC shall be filled within 90
days from the occurrence of the vacancy, and Section 9, Article VIII which provides
that the President shall issue appointments to the Judiciary within 90 days from
submission by the JBC of the list of nominees. It is further argued that there is no
imperative need to appoint the next Chief Justice considering that Section 12 of
the Judiciary Act of 1948 can still address the situation of having the next
President appoint the successor. It provides that in case of a vacancy in the office
of the C.J. or of his inability to perform the duties and powers of his office, they
shall devolve upon the Associate Justice who is first in precedence, until such
disability is removed, or another C.J. is appointed and duly qualified. It is also
argued that there is no need for the incumbent President to appoint during the
prohibition period the successor of C.J. Puno because anyway there will still be
about 45 days of the 90 days mandated in Section 4 (1), Article VIII remaining (the
period that remains of the 90 days counted from C.J. Puno’s retirement after the
end of GMA’s term)
The court deny the motions for reconsideration for lack of merit, for all the matters
being thereby raised and argued, not being new, have all been resolved by the
decision of March 17, 2010.
First: Most of the movants contend that the principle ofstare decisis is controlling,
and accordingly insist that the Court has erred in disobeying or abandoning
Valenzuela.
Stare decisis derives its name from the Latin maxim stare decisis et non quieta
movere, i.e., to adhere to precedent and not to unsettle things that are settled. It
simply means that a principle underlying the decision in one case is deemed of
imperative authority, controlling the decisions of like cases in the same court and in
lower courts within the same jurisdiction, unless and until the decision in question
is reversed or overruled by a court of competent authority. The decisions relied
upon as precedents are commonly those of appellate courts, because the
decisions of the trial courts may be appealed to higher courts and for that reason
are probably not the best evidence of the rules of law laid down.
36 SAMMIE

For the intervenors to insist that Valenzuela ought not to be disobeyed, or
abandoned, or reversed, and that its wisdom should guide, if not control, the Court
in this case is, therefore, devoid of rationality and foundation. They seem to
conveniently forget that the Constitution itself recognizes the innate authority of the
Court en banc to modify or reverse a doctrine or principle of law laid down in any
decision rendered en banc or in division.
meaning of the law is clear and sensible, either with or without the omitted word or
words, interpolation is improper, because the primary source of the legislative
intent is in the language of the law itself.
The court cannot permit the meaning of the Constitution to be stretched to any
unintended point in order to suit the purposes of any quarter.

Second: Some intervenors are grossly misleading the public by their insistence that
the Constitutional Commission extended to the Judiciary the ban on presidential
appointments during the period stated in Section 15, Article VII.

The deliberations that the dissent of Justice Carpio Morales quoted from the
records of the Constitutional Commission did not concern either Section 15, Article
VII or Section 4 (1), Article VIII, but only Section 13, Article VII, a provision on
nepotism. The records of the Constitutional Commission show that Commissioner
Hilario G. Davide, Jr. had proposed to include judges and justices related to the
President within the fourth civil degree of consanguinity or affinity among the
persons whom the President might not appoint during his or her tenure. In the end,
however, Commissioner Davide, Jr. withdrew the proposal to include the Judiciary
in Section 13, Article VII " (t)o avoid any further complication," such that the final
version of the second paragraph of Section 13, Article VII even completely omits
any reference to the Judiciary.

Last: The movants take the majority to task for holding that Section 15, Article VII
does not apply to appointments in the Judiciary. They aver that the Court either
ignored or refused to apply many principles of statutory construction.
The movants gravely err in their posture, and are themselves apparently
contravening their avowed reliance on the principles of statutory construction.

For one, the movants, disregarding the absence from Section 15, Article VII of the
express extension of the ban on appointments to the Judiciary, insist that the ban
applied to the Judiciary under the principle of verba legis. That is self-contradiction
at its worst.

Another instance is the movants' unhesitating willingness to read into Section 4 (1)
and Section 9, both of Article VIII, the express applicability of the ban under
Section 15, Article VII during the period provided therein, despite the silence of said
provisions thereon. Yet, construction cannot supply the omission, for doing so
would generally constitute an encroachment upon the field of the Constitutional
Commission. Rather, Section 4 (1) and Section 9 should be left as they are, given
that their meaning is clear and explicit, and no words can be interpolated in them.
Interpolation of words is unnecessary, because the law is more than likely to fail to
express the legislative intent with the interpolation. In other words, the addition of
new words may alter the thought intended to be conveyed. And, even where the