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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:
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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 the de 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.
fi
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."
Estrada vs. Desierto, G.R. Nos. 146710-15. April 3, 2001 (resolution)
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. This happened when petitioner’s close friend Chavit
Singsong, accused him of receiving millions of pesos from jueting lords. The
exposé ignited reactions of rage, calling for the president’s resignation.
On November 13, 2000, House Speaker Villar transmitted the Articles of
Impeachment signed by 115 representatives or more than 1/3 of all the members
of the House of Representatives to the Senate. On November 20, 2000, the
Senate formally opened the impeachment trial of the petitioner. On January 16,
2001, by a vote of 11-10, the senator-judges ruled against the opening of the
second envelope which allegedly contained evidence showing that petitioner held
P3.3 billion in a secret bank account under the name “Jose Velarde.” The ruling
was met by a spontaneous outburst of anger that hit the streets of the metropolis.
Thereafter, all of the appointed members and department head resigned. PNP
Chief, Director General Pan lo 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
8 SAMMIE
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.
On January 20, 2001, at about 12 noon, Chief Justice Davide administered the
oath to respondent Arroyo as President of the Philippines. At 2:30 p.m., On that
same day, petitioner and his family hurriedly left Malacañang Palace.
Estrada and his counsel led a petition stating that "con rming petitioner to be the
lawful and incumbent President of the Republic of the Philippines temporarily
unable to discharge the duties of his o ce, and declaring respondent to have
taken her oath as and to be holding the O ce of the President, only in an acting
capacity pursuant to the provisions of the Constitution."
Issues:
1. Whether the Angara diary is admissible for being violative of the following
rules on evidence: hearsay, best evidence, authentication, admissions and
res inter alios acts; (no)
2. Whether congress post facto can decide petitioners inability to govern
considering section 11, Article VII of the Constitution; (yes)
Ruling:
1. No, the Angara diary is not inadmissible. the Angara Diary is not an out of
court statement. The Angara Diary is part of the pleadings in the cases at
bar. Petitioner cannot complain he was not furnished a copy of theAngara
Diary. Nor can he feign surprise on its use. To be sure, the said Diary was
frequently referred to by the parties in their pleadings. The three parts of
the Diary published in the PDI from February 4-6, 2001 were attached as
Annexes A-C, respectively, of the Memorandum of private respondents
Romeo T. Capulong, et al., dated February 20, 2001. The second and third
parts of the Diary were earlier also attached as Annexes 12 and 13 of the
Comment of private respondents Capulong, et al., dated February 12,
2001. In fact, petitioner even cited in his Second Supplemental Reply
Memorandum both the second part of the diary, published on February 5,
2001, and the third part, published on February 6, 2001. It was also
extensively used by Secretary of Justice Hernando Perez in his oral
arguments. Thus, petitioner had all the opportunity to contest the use of the
Diary but unfortunately failed to do so.
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Even assuming arguendo that the Angara Diary was an out of court statement, still
its use is not covered by the hearsay rule. Evidence is called hearsay when its
probative force depends, in whole or in part, on the competency and credibility of
some persons other than the witness by whom it is sought to produce it. There are
three reasons for excluding hearsay evidence: (1) absence of cross-examination;
(2) absence of demeanor evidence, and (3) absence of the oath. Not all hearsay
evidence, however, is inadmissible as evidence. Over the years, a huge body of
hearsay evidence has been admitted by courts due to their relevance,
trustworthiness and necessity.
The Angara Diary contains direct statements of petitioner which can be
categorized as admissions of a party: his proposal for a snap presidential election
where he would not be a candidate; his statement that he only wanted the ve-
day period promised by Chief of Sta Angelo Reyes; his statements that he would
leave by Monday if the second envelope would be opened by Monday and
"Pagod na pagod na ako. Ayoko na, masyado nang masakit. Pagod na ako sa red
tape, bureaucracy, intriga. (I am very tired. I don't want any more of this — it's too
painful. I'm tired of the red tape, the bureaucracy, the intrigue). I just want to clear
my name, then I will go." We noted that days before, petitioner has repeatedly
declared that he would not resign despite the growing clamor for his resignation.
The reason for the meltdown is obvious — his will not to resign has wilted.
2. Section 11 of Article VII of the Constitution which states that the
declaration by Congress of the President's inability must always be a priori
or before the Vice-President assumes the presidency. In the cases at bar,
special consideration should be given to the fact that the events which led
to the resignation of the petitioner happened at express speed and
culminated on a Saturday. Congress was then not in session and had no
reasonable opportunity to act a priori on petitioner's letter claiming inability
to govern. To be sure, however, the petitioner cannot strictly maintain that
the President of the Senate, the Honorable Aquilino Pimentel, Jr. and the
then Speaker of the House of Representatives, the Honorable Arnulfo P.
Fuentebella, recognized respondent Arroyo as the "constitutional
successor to the presidency" post facto. Petitioner himself states that his
letter alleging his inability to govern was "received by the O ce of the
Speaker on January 20, 2001 at 8:30 A.M. and the O ce of the Senate at 9
P.M. of the same day."
Thus, section 7 of Article VII covers the instance when (a) the President-elect fails
to qualify, (b) if a President shall not have been chosen and (c) if at the beginning
of the term of the President, the President-elect shall have died or shall have
 9 SAMMIE
become permanently disabled. Section 8 of Article VII covers the situation of the
death, permanent disability, removal from o ce or resignation of the President.
Section 11 of Article VII covers the case where the President transmits to the
President of the Senate and the Speaker of the House of Representatives his
written declaration that he is unable to discharge the powers and duties of his
o ce. In each case, the Constitution speci es the body that will resolve the issues
that may arise from the contingency. In case of election contest, section 4, Article
VII provides that the contests shall be resolved by this Court sitting en banc. In
case of resignation of the President, it is not disputed that this Court has
jurisdiction to decide the issue. In case of inability to govern, section 11 of Article
VII gives the Congress the power to adjudge the issue and petitioner himself
submitted this thesis which was shared by this Court. In light of these clear
provisions of the Constitution, it is inappropriate, to say the least, for petitioner to
make inferences that simply distort their meanings.
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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
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
10
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.
SAMMIE
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
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
11
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
SAMMIE
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
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
12
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.
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
SAMMIE
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.
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
13
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.
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:
SAMMIE
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
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.
14
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.
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,
SAMMIE
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.
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
15
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.
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
SAMMIE
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
declared unconstitutional just because the officers implementing them have acted
arbitrarily. If this were so, judging from the blunders committed by policemen in the
cases passed upon by the Court, majority of the provisions of the Revised Penal
Code would have been declared unconstitutional a long time ago.
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.
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
16
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
warrant of arrest. Thus, the fundamental protection given by this provision is that
between person and police must stand the protective authority of a magistrate
clothed with power to issue or refuse to issue search warrants or warrants of
arrest.
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.
SAMMIE
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.
17
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.
SAMMIE
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
18
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
SAMMIE
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
19 SAMMIE

power of control means the power to revise or reverse the acts or decisions of a Resident Marine Mammals v. Reyes GR No. 180771, April 21, 2015
subordinate officer involving the exercise of discretion.
WHEREFORE, the Petitions in G.R. Nos. 180771 and 181527 are GRANTED,
In short, the President sits at the apex of the Executive branch, and exercises
Service Contract No. 46 is hereby declared NULL AND VOID for violating the 1987
"control of all the executive departments, bureaus, and offices." There can be no
Constitution, Republic Act No. 7586, and Presidential Decree No. 1586.
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
The DOE entered into SC-46 with Japan Petroleum Corporation Co., Ltd. (JAPEX),
President vested with executive power exercising control over the entire Executive
a company organized and existing under the laws of Japan with a Philippine
branch. Any office in the Executive branch that is not under the control of the
branch office. This contract involved geological and geophysical studied of the
President is a lost command whose existence is without any legal or constitutional
tañon Strait. The studies included surface geology, sample analysis, and
basis.
reprocessing of seismic and magnetic data. JAPEX, assisted by DOE, also
conducted geophysical; and satellite surveys, as well as oil and gas samplings in
The Legislature cannot validly enact a law that puts a government office in the
Tañon strait.
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
The petitioners argued that there has been fish kill and reduction of catch as a
branch, it must remain subject to the control of the President. Otherwise, the
result of the activities. They also alleged the destruction of fish aggregating
Legislature can deprive the President of his constitutional power of control over "all
devices. Filipino fishers were also barred from entering and fishing within the
the executive . . . offices." If the Legislature can do this with the Executive branch,
radius of the oil rig activities.
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
Issues:
Supreme Court. This will destroy the system of checks and balances finely
Procedural Issues
structured in the 1987 Constitution among the Executive, Legislative, and Judicial
1. Locus Standi of Petitioners Resident Marine Mammals and Stewards
branches.
2. Impleading Former President Gloria Macapagal-Arroyo as an Unwilling Co-
Petitioner
Of course, the President's power of control does not extend to quasi- judicial
Main Issue:
bodies whose proceedings and decisions are judicial in nature and subject to
3. Legality of Service Contract No. 46 Service Contract No. 46 vis-Ã -vis Section 2,
judicial review, even as such quasi-judicial bodies may be under the administrative
Article XII of the 1987 Constitution
supervision of the President. It also does not extend to local government units,
which are merely under the general supervision of the President.
Ruling:
1. Locus Standi of Petitioners Resident Marine Mammals and Stewards
Section 6(b) and (c) of PD 15, which authorizes the trustees of the CCP Board to
The Resident Marine Mammals, through the Stewards, "claim" that they have the
fill vacancies in the Board, runs afoul with the President's power of control under
legal standing to file this action since they stand to be benefited or injured by the
Section 17, Article VII of the 1987 Constitution. The intent of Section 6(b) and (c) of
judgment in this suit
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
The Court passed the landmark Rules of Procedure for Environmental Cases,
entity, virtually outside the control of the President. Such a public office or board
which allow for a "citizen suit," and permit any Filipino citizen to file an action
cannot legally exist under the 1987 Constitution.
before our courts for violations of our environmental laws. (Citizen suits filed under
R.A. No. 8749 and R.A. No. 9003)

In light of the foregoing, the need to give the Resident Marine Mammals legal
standing has been eliminated by our Rules, which allow any Filipino citizen, as a
steward of nature, to bring a suit to enforce our environmental laws. It is worth
noting here that the Stewards are joined as real parties in the Petition and not just
in representation of the named cetacean species. The Stewards, Ramos and
20
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.
2. Impleading Former President Gloria Macapagal-Arroyo as an Unwilling Co-
Petitioner
Under the foregoing rule, when the consent of a party who should be joined as a
plaintiff cannot be obtained, he or she may be made a party defendant to the case.
This will put the unwilling party under the jurisdiction of the Court, which can
properly implead him or her through its processes. The unwilling party's name
cannot be simply included in a petition, without his or her knowledge and consent,
as such would be a denial of due process.
Moreover, the reason cited by the petitioners Stewards for including former
President Macapagal-Arroyo in their petition, is not sufficient to implead her as an
unwilling co-petitioner. Impleading the former President as an unwilling co-
petitioner, for an act she made in the performance of the functions of her office, is
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,
considering that being the Chief Executive of the Government is a job that, aside
from requiring all of the office holder's time, also demands undivided attention."
Therefore, former President Macapagal-Arroyo cannot be impleaded as one of the
petitioners in this suit. Thus, her name is stricken off the title of this case.
3. Legality of Service Contract No. 46 Service Contract No. 46 vis-Ã -vis Section 2,
Article XII of the 1987 Constitution
Under Section 4 of the NIPAS Act, a protected area refers to portions of land and
water, set aside due to their unique physical and biological significance, managed
to enhance biological diversity and protected against human exploitation.
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
a Protected Seascape to be an area of national significance characterized by the
harmonious interaction of man and land while providing opportunities for public
enjoyment through recreation and tourism within the normal lifestyle and economic
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.
Consistent with this endeavor is the requirement that an Environmental Impact
Assessment (EIA) be made prior to undertaking any activity outside the scope of
the management plan. Unless an ECC under the EIA system is obtained, no
activity inconsistent with the goals of the NIPAS Act shall be implemented.
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).
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
21
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.
SAMMIE
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
22
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
SAMMIE
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.
23
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
SAMMIE
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.
24
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
SAMMIE
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
25
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.
SAMMIE
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
26
"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.
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.
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
27
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.
SAMMIE
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.
28
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
SAMMIE
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.
29
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.
SAMMIE
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
30
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.
SAMMIE
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.
31
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
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.
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
32 SAMMIE

every vacancy in the Judiciary, because in order to constitute unlawful neglect of Matibag v. Benipayo, GR No. 149036, April 2, 2002
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
WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner.
recommending nominees to the Judiciary, that is, in submitting the list to the
President.
COMELEC en banc appointed petitioner as “Acting Director IV” of the EID. Such
appointment was renewed in “temporary” capacity twice, first by Chairperson
The distinction between a ministerial act and a discretionary one has been
Demetrio and then by Commissioner Javier. Later, PGMA appointed, ad interim,
delineated in the following manner:
Benipayo as COMELEC Chairman, and Borra and Tuason as COMELEC
Commissioners, each for a term of 7 yrs. The three took their oaths of office and
A purely ministerial act or duty is one which an officer or tribunal performs in
assumed their positions. However, since the Commission on Appointments did not
a given state of facts, in a prescribed manner, in obedience to the mandate of
act on said appointments, PGMA renewed the ad interim appointments.
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
Issues:
public officer and gives him the right to decide how or when the duty shall be
1. Whether or not the instant petition satisfies all the requirements before this
performed, such duty is discretionary and not ministerial.
Court may exercise its power of judicial review in constitutional cases;
2. Whether or not the assumption of office by Benipayo, Borra and Tuason on
The duty is ministerial only when the discharge of the same requires neither
the basis of the ad interim appointments issued by the President amounts to
the exercise of official discretion or judgment.
a temporary appointment prohibited by Section 1 (2), Article IX-C of the
Constitution;
Accordingly, we find no sufficient grounds to grant the petitions for mandamus and
3. Assuming that the first ad interim appointments and the first assumption of
to issue a writ of mandamus against the JBC. The actions for that purpose are
office by Benipayo, Borra and Tuason are legal, whether or not the renewal
premature, because it is clear that the JBC still has until May 17, 2010, at the
of their ad interim appointments and subsequent assumption of office to the
latest, within which to submit the list of nominees to the President to fill the vacancy
same positions violate the prohibition on reappointment under Section 1 (2),
created by the compulsory retirement of Chief Justice Puno.
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;
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.
Ruling:
1. Whether or not the instant petition satisfies all the requirements before this
Court may exercise its power of judicial review in constitutional cases;

The Power of judicial review has four requisites:

(1) the existence of an actual and appropriate controversy;
(2) a personal and substantial interest of the party raising the constitutional issue;
(3) the exercise of the judicial review is pleaded at the earliest opportunity; and
(4) the constitutional issue is the lis mota of the case.

Respondents argue that the second, third and fourth requisites are absent in this
case but the court was not persuaded.
33
The legality of petitioner's reassignment hinges on the constitutionality of
Benipayo's ad interim appointment and assumption of office. Unless the
constitutionality of Benipayo's ad interim appointment and assumption of office is
resolved, the legality of petitioner's reassignment from the EID to the Law
Department cannot be determined. Clearly, the lis mota of this case is the very
constitutional issue raised by petitioner.
In any event, the issue raised by petitioner is of paramount importance to the
public. The legality of the directives and decisions made by the COMELEC in the
conduct of the May 14, 2001 national elections may be put in doubt if the
constitutional issue raised by petitioner is left unresolved. In keeping with this
Court's duty to determine whether other agencies of government have remained
within the limits of the Constitution and have not abused the discretion given them,
this Court may even brush aside technicalities of procedure and resolve any
constitutional issue raised. Here the petitioner has complied with all the requisite
technicalities. Moreover, public interest requires the resolution of the constitutional
issue raised by petitioner.
2. Whether or not the assumption of office by
Benipayo, Borra and Tuason on the basis of the ad interim appointments issued by
the President amounts to a temporary appointment prohibited by Section 1 (2),
Article IX-C of the Constitution;
Petitioner posits the view that an ad interim appointment can be withdrawn or
revoked by the President at her pleasure, and can even be disapproved or simply
by-passed by the Commission on Appointments. For this reason, petitioner claims
that an ad interim appointment is temporary in character and consequently
prohibited by the last sentence of Section 1 (2), Article IX- C of the Constitution.
An ad interim appointment is a permanent appointment because it takes effect
immediately and can no longer be withdrawn by the President once the appointee
has qualified into office. The fact that it is subject to confirmation by the
Commission on Appointments does not alter its permanent character. The
Constitution itself makes an ad interim appointment permanent in character by
making it effective until disapproved by the Commission on Appointments or until
the next adjournment of Congress. The second paragraph of Section 16, Article VII
of the Constitution provides as follows:
"The President shall have the power to make appointments during the recess of
the Congress, whether voluntary or compulsory, but such appointments shall be
effective only until disapproval by the Commission on Appointments or until the
next adjournment of the Congress." (Emphasis supplied)
Thus, the ad interim appointment remains effective until such disapproval or next
adjournment, signifying that it can no longer be withdrawn or revoked by the
SAMMIE
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
34
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.
SAMMIE
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
35
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.
SAMMIE
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
36 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.
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.

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.
37
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)
Issue:
1. Does the ban on making presidential appointments under Section
15, Article VII extend to appointments to fill vacancies in the SC and in the
rest of the Judiciary?
2. Does Section 12 of the Judiciary Act of 1948 dispel the imperative need to
appoint a new C.J.?
3. Does the fact that there will still be about 45 days after the prohibition
period to comply with the mandate of the President to fill vacancies in
the SC dispel the need for Pres. GMA to appoint C.J. Puno’s successor?
Ruling:
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.
SAMMIE
First: Most of the movants contend that the principle of stare decisis is controlling,
and accordingly insist that the Court has erred in disobeying or abandoning
Valenzuela.
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.
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.
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
38
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
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.
‘ possible administrative offenses and for the initiation of the proper administrative
SAMMIE
Gonzales v. Ochoa, G.R. No. 196231, January 28, 2014
WHEREFORE, premises considered, the Court resolves to declare Section 8 (2)
UNCONSTITUTIONAL. This ruling renders any further ruling on the dismissal of
Deputy Ombudsman Emilio Gonzales III unnecessary, but is without prejudice to
the power of the Ombudsman to conduct an administrative investigation, if
warranted, into the possible administrative liability of Deputy Ombudsman Emilio
Gonzales III under pertinent Civil Service laws, rules and regulations.
Atty. Clarence Guinto, the Police Senior Superintendent filed an administrative
charge for grave misconduct with the National Police Commission (NAPOLCOM)
PNP-NCRPO against Mendoza, et al based on the same allegations made by
Kalaw. Pending Gonzales' action on Mendoza, et al.'s case, the Office of the City
Prosecutor of Manila City dismissed Kalaw's complaint against Mendoza, et al. for
his failure to substantiate his allegations. Similarly, on October 17, 2008, the PNP-
IAS recommended the dismissal without prejudice of the administrative case
against Mendoza, et al. for Kalaw's failure to prosecute.
After preparing a draft decision on Mendoza,et al.'s case, Gonzales forwarded the
entire records to the Office of then Ombudsman Mercedit as Gutierrez for her
review. In his draft decision, Gonzales found Mendoza, et al. guilty of grave
misconduct and imposed on them the penalty of dismissal from the service.
Mendoza, et al. received a copy of the Ombudsman's decision that approved
Gonzales' recommendation on. Mendoza, et al. filed a motion for reconsideration.
While the case is pending for final action by the Ombudsman on Mendoza, et al.'s
case, Mendoza hijacked a tourist bus and held the 21 foreign tourists and the four
Filipino tour assistants on board as hostages. While the government exerted
earnest attempts to peacefully resolve the hostage-taking, it ended tragically,
resulting in the deaths of Mendoza and several others on board the hijacked bus.
As the initial report of investigation Department of Justice and the Department of
the Interior and Local Government, as instructed by President Benigno Aquino, it
was later found that, the Ombudsman and Gonzales accountable for their "gross
negligence and grave misconduct in handling the case against Mendoza." The
IIRC stated that the Ombudsman and Gonzales' failure to promptly resolve
Mendoza's motion for reconsideration, "without justification and despite repeated
pleas" . . . "precipitated the desperate resort to hostage-taking." The IIRC
recommended the referral of its findings to the OP for further determination of
proceedings.
Issue:
1. whether Section 8(2) of the Ombudsman Act, vesting the president
disciplinary authority over deputy Ombudsman violates the independence of
the office of the Ombudsman and is hereby constitutional. (Yes)
39
2. whether petitioner Emilio Gonzales III is guilty of Gross neglect of duty and
of grave misconduct. (No)
Ruling:
1. whether Section 8(2) of the Ombudsman Act, vesting the president
disciplinary authority over deputy Ombudsman violates the independence of
the office of the Ombudsman and is hereby constitutional.
The issue of whether a Deputy Ombudsman may be subjected to the
administrative disciplinary jurisdiction of the President (concurrently with that of the
Ombudsman) is a justiciable — not a political — question. A justiciable question is
one which is inherently susceptible of being decided on grounds recognized by law,
as where the court finds that there are constitutionally-imposed limits on the
exercise of the powers conferred on a political branch of the government.
Neither the Executive nor the Legislative can create the power that Section 8 (2) of
RA No. 6770 grants where the Constitution confers none. When exercised
authority is drawn from a vacuum, more so when the authority runs counter to a
core constitutional principle and constitutional intents, the Court is duty-bound to
intervene under the powers and duties granted and imposed on it by Article VIII of
the Constitution.
Prior to the 1973 Constitution, Ombudsman-like agencies to serve as the people's
medium for airing grievances and for direct redress against abuses and
misconduct in the government. Ultimately, however, these agencies failed to fully
realize their objective for lack of the political independence necessary for the
effective performance of their function as government critic. It was under the 1973
Constitution that the Office of the Ombudsman became a constitutionally-
mandated office to give it political independence and adequate powers to enforce
its mandate. Pursuant to the 1973 Constitution, President Ferdinand Marcos
enacted Presidential Decree (PD) No. 1487, as amended by PD No. 1607 and PD
No. 1630, creating the Office of the Ombudsman to be known as Tanodbayan. It
was tasked principally to investigate, on complaint or motu proprio, any
administrative act of any administrative agency, including any government-owned
or controlled corporation. When the Office of the Tanodbayan was reorganized in
1979, the powers previously vested in the Special Prosecutor were transferred to
the Tanodbayan himself. He was given the exclusive authority to conduct
preliminary investigation of all cases cognizable by the Sandiganbayan, file the
corresponding information, and control the prosecution of these cases.
With the advent of the 1987 Constitution, a new Office of the Ombudsman was
created by constitutional fiat. Unlike in the 1973 Constitution, its independence
was expressly and constitutionally guaranteed. Its objectives are to enforce the
state policy in Section 27, Article II and the standard of accountability in public
service under Section 1, Article XI of the 1987 Constitution.
SAMMIE
Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman
is envisioned to be the "protector of the people" against the inept, abusive, and
corrupt in the Government, to function essentially as a complaints and action
bureau. This constitutional vision of a Philippine Ombudsman practically intends to
make the Ombudsman an authority to directly check and guard against the ills,
abuses and excesses of the bureaucracy. Pursuant to Section 13 (8), Article XI of
the 1987 Constitution, Congress enacted RA No. 6770 to enable it to further realize
the vision of the Constitution.
As the Ombudsman is expected to be an "activist watchman," the Court has upheld
its actions, although not squarely falling under the broad powers granted it by the
Constitution and by RA No. 6770, if these actions are reasonably in line with its
official function and consistent with the law and the Constitution.
The Ombudsman's broad investigative and disciplinary powers include all acts of
malfeasance, misfeasance, and nonfeasance of all public officials, including
Members of the Cabinet and key Executive officers, during their tenure. To
support these broad powers, the Constitution saw it fit to insulate the Office of the
Ombudsman from the pressures and influence of officialdom and partisan politics
and from fear of external reprisal by making it an "independent" office. Section 5,
Article XI of the Constitution expressed this intent.
Given the scope of its disciplinary authority, the Office of the Ombudsman is a very
powerful government constitutional agency that is considered "a notch above other
grievance-handling investigative bodies." It has powers, both constitutional and
statutory, that are commensurate with its daunting task of enforcing
accountability of public officers.
Under the Constitution, several constitutional bodies have been expressly labeled
as "independent." The extent of the independence enjoyed by these
constitutional bodies however varies and is to be interpreted with two significant
considerations in mind: first, the functions performed or the powers involved in a
given case; and second, consistency of any allowable interference to these powers
and functions, with the principle of checks and balances.
Notably, the independence enjoyed by the Office of the Ombudsman and by the
Constitutional Commissions shares certain characteristics — they do not owe their
existence to any act of Congress, but are created by the Constitution itself;
additionally, they all enjoy fiscal autonomy. In general terms, the framers of the
Constitution intended that these "independent" bodies be insulated from political
pressure to the extent that the absence of "independence" would result in the
impairment of their core functions.
Notably, the Constitution also created an "independent" Commission on Human
Rights, although it enjoys a lesser degree of independence since it is not granted
40
fiscal autonomy in the manner fiscal autonomy is granted to the constitutional
commissions. The lack of fiscal autonomy notwithstanding, the framers of the 1987
Constitution clearly expressed their desire to keep the Commission independent
from the executive branch and other political leaders.
These deliberative considerations abundantly show that the independent
constitutional commissions have been consistently intended by the framers to be
independent from executive control or supervision or any form of political
influence. At least insofar as these bodies are concerned, jurisprudence is
not scarce on how the "independence" granted to these bodies prevents
presidential interference.
The kind of independence enjoyed by the Office of the Ombudsman certainly
cannot be inferior — but is similar in degree and kind — to the independence
similarly guaranteed by the Constitution to the Constitutional Commissions since all
these offices fill the political interstices of a republican democracy that are crucial to
its existence and proper functioning.
Subjecting the Deputy Ombudsman to discipline and removal by the
President, whose own alter egos and officials in the Executive Department
are subject to the Ombudsman's disciplinary authority, cannot but seriously
place at risk the independence of the Office of the Ombudsman itself. The
Office of the Ombudsman, by express constitutional mandate, includes its key
officials, all of them tasked to support the Ombudsman in carrying out her mandate.
Unfortunately, intrusion upon the constitutionally-granted independence is what
Section 8 (2) of RA No. 6770 exactly did. By so doing, the law directly collided not
only with the independence that the Constitution guarantees to the Office of the
Ombudsman, but inevitably with the principle of checks and balances that the
creation of an Ombudsman office seeks to revitalize.
The Ombudsman can hardly be expected to place her complete trust in her
subordinate officials who are not as independent as she is, if only because they are
subject to pressures and controls external to her Office. This need for complete
trust is true in an ideal setting and truer still in a young democracy like the
Philippines where graft and corruption is still a major problem for the government.
For these reasons, Section 8 (2) of RA No. 6770 (providing that the President
may remove a Deputy Ombudsman) should be declared void.
The statements made by Commissioner Monsod emphasized a very logical
principle: the Executive power to remove and discipline key officials of the
Office of the Ombudsman, or to exercise any power over them, would result
in an absurd situation wherein the Office of the Ombudsman is given the
duty to adjudicate on the integrity and competence of the very persons who
can remove or suspend its members. Equally relevant is the impression that
SAMMIE
would be given to the public if the rule were otherwise. A complainant with a
grievance against a
high-ranking official of the Executive, who appears to enjoy the President's favor,
would be discouraged from approaching the Ombudsman with his complaint; the
complainant's impression (even if misplaced), that the Ombudsman would be
susceptible to political pressure, cannot be avoided. To be sure, such an
impression would erode the constitutional intent of creating an Office of the
Ombudsman as champion of the people against corruption and bureaucracy.
Under Section 2, Article XI of the 1987 Constitution, Congress is empowered to
determine the modes of removal from office of all public officers and employees
except the President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman, who are all
impeachable officials.
The intent of the framers of the Constitution in providing that "[a]ll other public
officers and employees may be removed from office as provided by law, but not by
impeachment" in the second sentence of Section 2, Article XI is to prevent
Congress from extending the more stringent rule of "removal only by impeachment"
to favored public officers. Understandably so, impeachment is the most difficult and
cumbersome mode of removing a public officer from office. It is, by its nature, a sui
generis politico-legal process that signals the need for a judicious and careful
handling as shown by the process required to initiate the proceeding; the one-year
limitation or bar for its initiation; the limited grounds for impeachment; the defined
instrumentality given the power to try impeachment cases; and the number of votes
required for a finding of guilt. All these argue against the extension of this removal
mechanism beyond those mentioned in the Constitution.
On the practical side, our nation has witnessed the complications and problems an
impeachment proceeding entails, thus justifying its limited application only to the
officials occupying the highest echelons of responsibility in our government. To
name a few, some of the negative practical effects of impeachment are: it stalls
legislative work; it is an expensive process in terms of the cost of prosecution
alone; and, more importantly, it is inherently divisive of the nation. Thus, in a cost-
benefit analysis of adopting impeachment as a mechanism, limiting Congress'
power to otherwise legislate on the matter is far more advantageous to the country.
DHEcCT
It is in these lights that the second sentence in Section 2, Article XI of the 1987
Constitution should be read. Contrary to the implied view of the minority, in no way
can this provision be regarded as blanket authority for Congress to provide for any
ground of removal it deems fit. While the manner and cause of removal are left to
congressional determination, this must still be consistent with constitutional
guarantees and principles, namely: the right to procedural and substantive due
41
process; the constitutional guarantee of security of tenure; the principle of
separation of powers; and the principle of checks and balances.
In short, the authority granted by the Constitution to Congress to provide for the
manner and cause of removal of all other public officers and employees does not
mean that Congress can ignore the basic principles and precepts established by
the Constitution.
In the same manner, the congressional determination of the identity of the
disciplinary authority is not a blanket authority for Congress to repose it on
whomsoever Congress chooses without running afoul of the independence
enjoyed by the Office of the Ombudsman and without disrupting the delicate check
and balance mechanism under the Constitution. Properly viewed from this
perspective, the core constitutional principle of independence is observed and any
possible absurdity resulting from a contrary interpretation is avoided. In other
words, while the Constitution itself vested Congress with the power to determine
the manner and cause of removal of all non-impeachable officials, this power must
be interpreted consistent with the core constitutional principle of independence of
the Office of the Ombudsman.
The President's power of removal is limited to specified grounds are dismally
inadequate when balanced with the constitutional principle of independence. The
mere filing of an administrative case against the Deputy Ombudsman and the
Special Prosecutor before the OP can already result in their suspension and
can interrupt the performance of their functions, in violation of Section 12,
Article XI of the Constitution. With only one term allowed under Section 11, a
Deputy Ombudsman or Special Prosecutor, if removable by the President, can be
reduced to the very same ineffective Office of the Ombudsman that the framers
had foreseen and carefully tried to avoid by making these offices independent
constitutional bodies.
At any rate, even assuming that the OP has disciplinary authority over the Deputy
Ombudsman, its decision finding Gonzales guilty of Gross Neglect of Duty and
Grave Misconduct constituting betrayal of public trust is p a t e n t l y erroneous.
2. whether petitioner Emilio Gonzales III is guilty of Gross neglect of duty and
of grave misconduct.
Gross negligence refers to negligence characterized by the want of even the
slightest care, acting or omitting to act in a situation where there is a duty to act,
not inadvertently but willfully and intentionally, with a conscious indifference to
consequences insofar as other persons may be affected. In the case of public
officials, there is gross negligence when a breach of duty is flagrant and palpable.
SAMMIE
Gonzales cannot be guilty of gross neglect of duty and/or inefficiency since he
acted on the case forwarded to him within nine days. In finding Gonzales guilty,
the OP relied on Section 8, Rule III of Administrative Order No. 7 (or the Rules of
Procedure of the Office of the Ombudsman, series of 1990, as amended) in ruling
that Gonzales should have acted on Mendoza's Motion for Reconsideration within
five days.
Even if we consider this provision to be mandatory, the period it requires cannot
apply to Gonzales since he is a Deputy Ombudsman whose obligation is to review
the case; he is not simply a Hearing Officer tasked with the initial resolution of the
motion. In Section 6 of Administrative Order No. 7 on the resolution of the case and
submission of the proposed decision, the period for resolving the case does not
cover the period within which it should be reviewed. Thus, the OP's ruling that
Gonzales had been grossly negligent for taking nine days, instead of five days, to
review a case was totally baseless.
No actionable failure to supervise subordinates
The Office of the Ombudsman is not a corner office in our bureaucracy. It handles
numerous cases that involve the potential loss of employment of many other public
employees. We cannot conclusively state, as the OP appears to suggest, that
Mendoza's case should have been prioritized over other similar cases. The Court
has already taken judicial notice of the steady stream of cases reaching the Office
of the Ombudsman. This consideration certainly militates against the OSG's
observation that there was "a grossly inordinate and inexcusable delay" on the part
of Gonzales.
Equally important, the constitutional guarantee of "speedy disposition of cases"
before, among others, quasi-judicial bodies, like the Office of the Ombudsman, is
itself a relative concept. Thus, the delay, if any, must be measured in this objective
constitutional sense. Unfortunately, because of the very statutory grounds relied
upon by the OP in dismissing Gonzales, the political and, perhaps, "practical"
considerations got the better of what is legal and constitutional.
The facts do not show that Gonzales' subordinates had in any way been grossly
negligent in their work. While GIPO Garcia reviewed the case and drafted the order
for more than three months, it is noteworthy that he had not drafted the initial
decision and, therefore, had to review the case for the first time. Even the
Ombudsman herself could not be faulted for acting on a case within four months,
given the amount of cases that her office handles.
42
Gonzales III v. OP, G.R. No. 196231, 4 September 2012(-)
WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in
OP Case No. 10-J-460 is REVERSED and SET ASIDE. Petitioner Emilio A.
Gonzales III is ordered REINSTATED with payment of back wages corresponding
to the period of suspension effective immediately, even as the Office of the
Ombudsman is directed to proceed with the investigation in connection with the
above case against petitioner.
In G.R. No. 196232, We AFFIRM the continuation of OP-DC Case No. 11-B-003
against Special Prosecutor Wendell Barreras-Sulit for alleged acts and omissions
tantamount to culpable violation of the Constitution and a betrayal of public trust, in
accordance with Section 8 (2) of the Ombudsman Act of 1989. The challenge to the
constitutionality of Section 8 (2) of the Ombudsman Act is hereby DENIED.
Ruling:
G.R. No. 196231
Betrayal of public trustis a new ground for impeachment under the 1987
Constitution added to the existing grounds of culpable violation of the Constitution,
treason, bribery, graft and corruption and other high crimes. Indeed, the catch-all
phrase betrayal of public trust that referred to "all acts not punishable by statutes
as penal offenses but, nonetheless, render the officer unfit to continue in office"
could be easily utilized for every conceivable misconduct or negligence in office.
However, deliberating on some workable standard by which the ground could be
reasonably interpreted, the Constitutional Commission recognized that human
error and good faith precluded an adverse conclusion.
The Constitutional Commission eventually found it reasonably acceptable for the
phrase betrayal of public trust to refer to "[a]cts which are just short of being
criminal but constitute gross faithlessness against public trust, tyrannical abuse of
power, inexcusable negligence of duty, favoritism, and gross exercise of
discretionary powers." In other words, acts that should constitute betrayal of public
trust as to warrant removal from office may be less than criminal but must be
attended by bad faith and of such gravity and seriousness as the other grounds for
impeachment.
A Deputy Ombudsman and a Special Prosecutor are not impeachable officers.
However, by providing for their removal from office on the same grounds as
removal by impeachment, the legislature could not have intended to redefine
constitutional standards of culpable violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, as well as betrayal of public trust, and apply
them less stringently. Hence, w h e r e betrayal of public trust, for purposes of
impeachment, was not intended to cover all kinds of official wrongdoing and plain
SAMMIE
errors of judgment, this should remain true even for purposes of removing a
Deputy Ombudsman and Special Prosecutor from office.
G.R. No. 196232
Petitioner Barreras-Sulit, has been resisting the President's authority to remove her
from office upon the averment that without the Sandiganbayan's final approval and
judgment on the basis of the PLEBARA, it would be premature to charge her with
acts and/or omissions "tantamount to culpable violations of the Constitution and
betrayal of public trust," which are grounds for removal from office under Section 8,
paragraph (2) of the Ombudsman Act of 1989; and which also constitute a violation
of Section 3, paragraph (e) of Republic Act No. 3019 (Anti-Graft and Corrupt
Practices Act) — causing undue injury to the Government or giving any private
party any unwarranted benefits, advantage or preference through manifest
partiality, evident bad faith or gross inexcusable negligence. With reference to the
doctrine of prejudicial procedural antecedent, petitioner Barreras-Sulit asserts that
the propriety of taking and continuing to take administrative disciplinary proceeding
against her must depend on the final disposition by the Sandiganbayan of the
PLEBARA, explaining that if the Sandiganbayan would uphold the PLEBARA,
there would no longer be any cause of complaint against her; if not, then the
situation becomes ripe for the determination of her failings.
The argument will not hold water. The incidents that have taken place subsequent
to the submission in court of the PLEBARA shows that the PLEBARA has been
practically approved, and that the only thing which remains to be done by the
Sandiganbayan is to promulgate a judgment imposing the proper sentence on the
accused Major General Garcia based on his new pleas to lesser offenses. On May
4, 2010, the Sandiganbayan issued a resolution declaring that the change of plea
under the PLEBARA was warranted and that it complied with jurisprudential
guidelines. The Sandiganbayan, thereafter, directed the accused Major General
Garcia to immediately convey in favor of the State all the properties, both real and
personal, enumerated therein. On August 11, 2010, the Sandiganbayan issued a
resolution, which, in order to put into effect the reversion of Major General Garcia's
ill-gotten properties, ordered the corresponding government agencies to cause the
transfer of ownership of said properties to the Republic of the Philippines. In the
meantime, the Office of the Special Prosecutor (OSP) informed the Sandiganbayan
that an Order had been issued by the Regional Trial Court of Manila, Branch 21 on
November 5, 2010 allowing the transfer of the accused's frozen accounts to the
Republic of the Philippines pursuant to the terms of the PLEBARA as approved by
the Sandiganbayan. Immediately after the OSP informed the Sandiganbayan that
its May 4, 2010 Resolution had been substantially complied with, Major General
Garcia manifested to the Sandiganbayan on November 19, 2010 his readiness for
sentencing and for the withdrawal of the criminal information against his wife and
two sons. Major General Garcia's Motion to Dismiss,
43 SAMMIE

The Sandiganbayan allowed accused Major General Garcia to plead guilty to the
lesser offenses of direct bribery and violation of Section 4 (b), R.A. No. 9160, as
amended. Upon Major General Garcia's motion, and with the express conformity of
the OSP, the Sandiganbayan allowed him to post bail in both cases, each at a
measly amount of P30,000.00.
The Court need not touch further upon the substantial matters that are the subject
of the pending administrative proceeding against petitioner Barreras-Sulit and are,
thus, better left to the complete and effective resolution of the administrative case
before the Office of the President.

The approval or disapproval of the PLEBARA by the Sandiganbayan is of no
consequence to an administrative finding of liability against petitioner Barreras-
Sulit. While the court's determination of the propriety of a plea bargain is on the
basis of the existing prosecution evidence on record, the disciplinary authority's
determination of the prosecutor's administrative liability is based on whether the
plea bargain is consistent with the conscientious consideration of the government's
best interest and the diligent and efficient performance by the prosecution of its
public duty to prosecute crimes against the State. Consequently, the disciplining
authority's finding of ineptitude, neglect or willfulness on the part of the prosecution,
more particularly petitioner Special Prosecutor Barreras-Sulit, in failing to pursue or
build a strong case for the government or, in this case, entering into an agreement
which the government finds "grossly disadvantageous," could result in
administrative liability, notwithstanding court approval of the plea bargaining
agreement entered into.
Plea bargaining is a process in criminal cases whereby the accused and the
prosecution work out a mutually satisfactory disposition of the case subject to court
approval. The essence of a plea bargaining agreement is the allowance of an
accused to plead guilty to a lesser offense than that charged against him(Section 2,
Rule 116 of the Revised Rules of Criminal Procedure)
The challenge to the constitutionality of Section 8 (2) of the Ombudsman Act has,
nonetheless, failed to obtain the necessary votes to invalidate the law, thus,
keeping said provision part of the law of the land. To recall, these cases involve two
distinct issues: (a) the constitutionality of Section 8 (2) of the Ombudsman Act; and
(b) the validity of the administrative action of removal taken against petitioner
Gonzales. While the Court voted unanimously to reverse the decision of the OP
removing petitioner Gonzales from office, it was equally divided in its opinion on the
constitutionality of the assailed statutory provision in its two deliberations held on
April 17, 2012 and September 4, 2012. There being no majority vote to invalidate
the law, the Court, therefore, dismisses the challenge to the constitutionality of
Section 8 (2) of the Ombudsman Act in accordance with Section 2 (d), Rule 12 of
the Internal Rules of the Court. Indeed, Section 4 (2), Article VIII of the 1987
Constitution requires the vote of the majority of the Members of the Court actually
taking part in the deliberations to sustain any challenge to the constitutionality or
validity of a statute or any of its provisions.

Plea bargaining is allowable when the prosecution does not have sufficient
evidence to establish the guilt of the accused of the crime charged. However, if the
basis for the allowance of a plea bargain in this case is the evidence on record,
then it is significant to state that in its earlier Resolution promulgated on January 7,
2010, the Sandiganbayan had evaluated the testimonies of twenty (20) prosecution
witnesses and declared that "the conglomeration of evidence presented by the
prosecution is viewed by the Court to be of strong character that militates against
the grant of bail."

Notwithstanding this earlier ruling by the Sandiganbayan, the OSP, unexplainably,

chose to plea bargain with the accused Major General Garcia as if its evidence
were suddenly insufficient to secure a conviction. At this juncture, it is not amiss to
emphasize that the "standard of strong evidence of guilt which is sufficient to deny
bail to an accused is markedly higher than the standard of judicial probable cause
which is sufficient to initiate a criminal case." Hence, in light of the apparently
strong case against accused Major General Garcia, the disciplining authority would
be hard- pressed not to look into the whys and wherefores of the prosecution's
turnabout in the case.
44
Nacino v. The Office of the Ombudsman, GR Nos. 234789-91, September 3,
2019
WHEREFORE, the petition is DISMISSED. The Ombudsman's Consolidated
Resolution dated June 13, 2017 and Consolidated Order dated September 5, 2017
issued in OMB-C-C-16-0419, OMB-C-C-16-0435, and OMB-C-C-16-0448 are
AFFIRMED insofar as they found no probable cause to charge private respondents
Benigno Simeon C. Aquino III, Alan LM. Purisima, and Getulio P. Napeñas with
reckless imprudence resulting in multiple homicide.
This tragedy stunned the nation and led to the opening of investigations by the
Senate and the PNP. The Senate Committees on Public Order and Dangerous
Drugs, Peace, Unification and Reconciliation, and Finance jointly held public
hearings, while the PNP formed its own Board of Inquiry (PNP-BOI). The Senate's
findings and recommendations were embodied in the Senate Report. The findings
of the PNP-BOI, on the other hand, were embodied in its report entitled "The
Mamasapano Report" dated March 2015 (PNP-BOI Report).
These reports, in turn, led to the filing of charges, three of which were the
aforementioned complaints lodged with the Ombudsman. Complainants were
mostly parents of the members of the SAF who were killed in the conduct of the
police operation dubbed as Oplan Exodus. Except for the names and
circumstances of complainants, the three complaints bore essentially the same
allegations and called for private respondents Aquino, Purisima, and Napeñas to
be held guilty of 44 counts of reckless imprudence resulting in multiple homicide
"as a consequence of their deliberate acts of imprudence, inexcusable negligence
and lack of foresight and precaution." The complaints outlined the facts that
allegedly point to the criminal culpability of each private respondent.
With respect to Aquino, the complaints averred that "[h]e helped plan 'Oplan:
Exodus' with gross and inexcusable negligence, and thereafter approved the
operation with full knowledge that it was flawed,"
Issue:
1. whether or not the Ombudsman committed grave abuse of discretion
amounting to lack or excess of jurisdiction in dismissing the complaints for
reckless imprudence resulting in multiple homicide filed against private
respondents. (NO)
Ruling:
1. whether or not the Ombudsman committed grave abuse of discretion
amounting to lack or excess of jurisdiction in dismissing the complaints for
reckless imprudence resulting in multiple homicide filed against private
respondents. (NO)
SAMMIE
Under article 365 of the RPC defines reckless imprudence. The Ombudsman held
that in reckless imprudence resulting in multiple homicide in relation to the
operation of a vehicle, it must be shown that there was a direct causal connection
between the negligence and injuries or damages sustained, or that such reckless
negligence was the proximate cause of the collision.
Gauging by this standard, the Ombudsman held that the proximate cause of the
death of the 44 SAF members was the intentional act of shooting by hostile forces
that included members of the MILF, BIFF, and PAGs. This intentional act was an
"active external [factor] that may not necessarily be considered as within the full
control of respondents, whether with a prior and timely coordination with
government forces." It constituted an "efficient intervening cause in the purported
negligence of [private] respondents during the planning, preparation, and actual
implementation of Oplan Exodus," that breaks the relation of cause and effect, i.e.,
the purported negligence and the resulting death or injury.
In fact, Napeñas explained in his consolidated counter-affidavit that the practice of
the SAF in conducting mission planning is to start with the unit and personnel
executing the operations. Accordingly, in the run-up to Oplan Exodus, the mission
planning group of the SAF was again organized on December 23, 2014, composed
of Napeñas, several officials of the PNP, the Commander of the Seaborne, and the
5th Batallion Commander.
In the Senate inquiry held on January 27, 2016, Napeñas testified that he was the
one who approved and signed Oplan Exodus and the one who handled and
directed its operations, not Purisima or Aquino.
On top of poor planning and execution, the Senate Report also observed that
Oplan Exodus broke the chain of command, was not followed to the details, was
badly coordinated, and had badges of failure from the very start.
The Senate Report stated that as the PNP is under the DILG, the President, as
Chief Executive, exercises supervision and control over the PNP. Given that the
President gave the policy direction to arrest Marwan and Usman, and that he
approved Oplan Exodus with full knowledge of its operational details, he is
ultimately responsible for the success or failure of the mission. It suggests Aquino's
accountability under the doctrine of command responsibility.
NOTE: In Rubrico vs. Macapagal- Arroyo, as then formulated, command
responsibility is "an omission mode of individual criminal liability," whereby the
superior is made responsible for crimes committed by his subordinates for failing
to prevent or punish the perpetrators16 (as opposed to crimes he ordered).
Two observations may be made in this regard.First, there is no evidence that the
policy direction to arrest Marwan and Usman came from Aquino. As mentioned,
45
SAF operations to capture these two high-value targets commenced in 2010, but
the Senate Report indicates that the earliest period that Aquino learned of the
mission to arrest the two criminals was in 2014, when Purisima presented to him
and other high-ranking government officials the concept of operations of Oplan
Wolverine. The Senate Report evinces that from 2010 until 2014, before Oplan
Exodus was implemented in 2015, there had been nine unsuccessful attempts to
capture Marwan and Usman. The SAF's operation plans for the succeeding
missions evolved, taking into consideration the cause of failure, additional
intelligence gathered, and other relevant information. It could not be said that the
policy direction for Oplan Exodus came from Aquino inasmuch as it is the SAF's
function to serve arrest warrants and conduct counter-terrorism operations against
local and international terrorist groups. No policy direction is required for the
performance of the SAF's mandate. As a legitimate police operation, Oplan Exodus
did not require Aquino's approval, and any purported approval he made was sure
to be merely a formality.
Our second point is that Aquino cannot be held criminally accountable under the
doctrine of command responsibility.
The Senate states that there is always a hierarchical structure in every
organization in which authority is exercised. This is supposedly the essence of
"chain of command." While the term is often associated with the military, it has
been applied to hierarchical structures in civilian government agencies and private
enterprises. Accordingly, the Senate continues, where there is a chain of
command, the doctrine of command responsibility applies, which also is not
restricted to the military after Executive Order No. 226, series of 1995 (EO 226)
institutionalized the doctrine in all government offices including the PNP.
To be sure, the President of the Republic of the Philippines is not part of the chain
of command of the PNP. Under Section 26 of Republic Act No. 6975, the command
and direction of the PNP is vested in the Chief of the PNP. That the PNP chain of
command does not include the President is further confirmed by the PNP BOI
Report itself which clearly stated that with respect to Oplan Exodus, the chain of
command in the PNP should have been: Police Deputy Director General Leonardo
Espina, the Officer-in-Charge of the PNP (OIC-PNP) as senior commander, and
Police and SAF Director Getulio Napeñas as intermediate commander, excluding
PNP Director General Purisima "who could not legally form part of the Chain of
Command by reason of his suspension."
The President's power over the PNP is subsumed in his general power of control
and supervision over the executive department of the government. In fact, in
Carpio v. Executive Secretary We held that "the national police force does not fall
under the Commander-in-Chief power of the President. This is necessarily so since
the police force, not being integrated with the military, is not a part of the Armed
Forces of the Philippines. As a civilian agency of the government, it x x x is [only]
SAMMIE
subject [to] the exercise by the President of the power of executive control." The
case of Saez v. Macapagal-Arroyo cited by the Senate described the President as
the commander-in-chief of the AFP, not the PNP. As such, he necessarily
possesses control over the military that qualifies him as a superior within the
purview of the command responsibility doctrine. Given these rulings, as the
President is not part of the chain of command in the PNP, it follows that he does
not exercise command responsibility over this civilian organization.
Besides, command responsibility has a technical meaning. In Saez, We ruled that
to hold someone liable under the doctrine of command responsibility, the following
elements must obtain: a) the existence of a superior-subordinate relationship
between the accused as superior and the perpetrator of the crime as his
subordinate; b) the superior knew or had reason to know that the crime was about
to be or had been committed; and c) the superior failed to take the necessary and
reasonable measures to prevent the criminal acts or punish the perpetrators
thereof. In this case, since Aquino is considered a superior of the AFP but not the
PNP which is the agency involved in this case, the first element is not satisfied.
Likewise, even granting that Aquino may be considered a "superior" of the PNP, the
last two elements are also not satisfied since it was not shown by evidence that he
knew or had reason to know that a crime was about to be or had been committed,
and that he failed to take steps to prevent the criminal act or punish its
perpetrators. Indeed, Oplan Exodus was a legitimate police operation.
Administrative and criminal charges against private respondents and other PNP
officials have been lodged not until after its execution, in view of the large
casualties incurred by the SAF.
Aquino may be included in the catchall phrase "any government official or
supervisor," but he may still not be held liable considering that he had no
knowledge of any crime that the PNP was about to commit or has committed, and
for which he failed to act. In any event, the provision at most makes a commander
liable administratively for neglect of duty. In this connection, We held in Principe v.
Fact-Finding & Intelligence Bureau, Office of the Ombudsman that administrative
liability will not attach absent proof of actual act or omission constituting neglect of
duty. In the absence of substantial evidence of gross neglect, administrative liability
could not be based on the principle of command responsibility. The negligence of
the superior's subordinates is not tantamount to his own negligence.
We do not find probable cause to charge Aquino with reckless imprudence
resulting in multiple homicide. If it would be necessary to invoke remote
justifications to thrust a respondent to court, then We would have been remiss in
our duty to uphold the law and protect the innocent from the torment of a criminal
prosecution.
The Court also does not find probable cause to charge Purisima of the same
offense.
46 SAMMIE

Lim v. Commission On Elections and Joseph Ejercito Estrada, G.R.

Without doubt, Napeñas had been negligent, as borne by both the Senate and No. 206666, January 21, 2015
PNP-BOI reports. However, We find it difficult to isolate the effects of his
negligence from the effects of all the other factors that contributed to the loss of
WHEREFORE, the petition for certiorari and petition-in-intervention are
lives in the implementation of Oplan Exodus.
DISMISSED. The Resolution dated April 1, 2013 of the Commission on Elections,
Second Division, and the Resolution dated April 23, 2013 of the Commission on
Lack of prior coordination with the AFP was seen by the Senate as the most fatal
Elections,En banc, both in SPA No. 13-211 (DC), are AFFIRMED.
mistake made by the mission planners of Oplan Exodus. However, Napeñas
SO ORDERED.
explained that past law enforcement operations against high-value targets failed
because of apparent leak in information. On the belief that the AFP was
On September 12, 2007, the Sandiganbayan convicted former President Estrada,
compromised, he recommended a time-on-target coordination with it. On the other
a former President of the Republic of the Philippines, for the crime of plunder.
hand, coordination with the representatives of the government in the peace
process would not have guaranteed that MILF will not join the fray, in light of the
On October 25, 2007, however, former President Gloria Macapagal-Arroyo (former
Senate's finding of MILF's seeming lack of sincerity that was manifestly
President Arroyo) extended executive clemency, by way of pardon, to former
demonstrated by its treatment of the SAF in the battlefield and the appearance that
President Estrada.
it had been coddling Marwan and other terrorists. These factors required Napeñas
to make a delicate balancing act in relation to Oplan Exodus.
Former President Estrada "received and accepted" the pardon by affixing his
signature beside his handwritten notation thereon.
In any case, to charge Napeñas with reckless imprudence would be to charge
under his responsibility the consequences of all incidents that contributed to the
On November 30, 2009, former President Estrada filed a Certificate of Candidacy
death of the 44 SAF members, even those beyond what he and his team may or
for the position of President. During that time, his candidacy earned three
should have reasonably foreseen during the planning and execution of Oplan
oppositions in the COMELEC: (1) SPA No. 09-024 (DC), a "Petition to Deny Due
Exodus — which is not fair. Moreover, it would pose a threat to future law
Course and Cancel Certificate of Candidacy" filed by Rev. Elly Velez B. Lao
enforcement undertakings if military and police officials would be held susceptible
Pamatong, ESQ; (2) SPA No. 09-028 (DC), a petition for "Disqualification as
to criminal charges for injury or death resulting from a legitimate operation. It will be
Presidential Candidate" filed by Evilio C. Pormento (Pormento); and (3) SPA No.
like a Sword of Damocles hanging over their heads, which can paralyze them and
09-104 (DC), a "Petition to Disqualify Estrada Ejercito, Joseph M. from Running as
consequently maim the government's efforts to curb criminality in the interest of
President due to Constitutional Disqualification and Creating Confusion to the
self-preservation. There is no perfect law enforcement operation. To the contrary,
Prejudice of Estrada, Mary Lou B" filed by Mary Lou Estrada. However, all three
they are mostly idiosyncratic and risky. There is no guarantee of police officers'
petitions were effectively dismissed on the uniform grounds that (i) the
safety even in developed countries possessed of sophisticated crime-fighting
Constitutional proscription on reelection applies to a sitting president; and (ii) the
technology.
pardon granted to former President Estrada by former President Arroyo restored
the former's right to vote and be voted for a public office. The subsequent motions
In view of all the attendant circumstances, We do not find probable cause to charge
for reconsideration thereto were denied by the COMELEC En banc.
Napeñas with reckless imprudence resulting in multiple homicide.
After the conduct of the May 10, 2010 synchronized elections, however, former
In fine, the Ombudsman did not commit grave abuse of discretion amounting to
President Estrada only managed to garner the second highest number of votes.
lack or excess of jurisdiction in dismissing the complaints for reckless imprudence
resulting in multiple homicide filed against private respondents.
Issue:
1. Whether or not the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in ruling that former President
Estrada is qualified to vote and be voted for in public office as a result of the
pardon granted to him by former President Arroyo. (No)
47
Ruling:
The petition for certiorari lacks merit.
Former President Estrada was granted an absolute pardon that fully restored all
his civil and political rights, which naturally includes the right to seek public elective
office, the focal point of this controversy. The wording of the pardon extended to
former President Estrada is complete, unambiguous, and unqualified. It is likewise
unfettered by Articles 36 and 41 of the Revised Penal Code. The only reasonable,
objective, and constitutional interpretation of the language of the pardon is that the
same in fact conforms to Articles 36 and 41 of the Revised Penal Code.
Recall that the petition for disqualification filed by Risos-Vidal against former
President Estrada, docketed as SPA No. 13-211 (DC), was anchored on Section 40
of the LGC, in relation to Section 12 of the OEC, that is, having been convicted of a
crime punishable by imprisonment of one year or more, and involving moral
turpitude, former President Estrada must be disqualified to run for and hold public
elective office notwithstanding the fact that he is a grantee of a pardon that
includes a statement expressing "[h]e is hereby restored to his civil and political
rights."
Risos-Vidal theorizes that former President Estrada is disqualified from running for
Mayor of Manila in the May 13, 2013 Elections, and remains disqualified to hold
any local elective post despite the presidential pardon extended to him in 2007 by
former President Arroyo for the reason that it (pardon) did not expressly provide for
the remission of the penalty of perpetual absolute disqualification, particularly the
restoration of his (former President Estrada) right to vote and be voted upon for
public office. She invokes Articles 36 and 41 of the Revised Penal Code as the
foundations of her theory.
It is insisted that, since a textual examination of the pardon given to and accepted
by former President Estrada does not actually specify which political right is
restored, it could be inferred that former President Arroyo did not deliberately
intend to restore former President Estrada's rights of suffrage and to hold public
office, or to otherwise remit the penalty of perpetual absolute disqualification. Even
if her intention was the contrary, the same cannot be upheld based on the pardon's
text. EC
The pardoning power of the President cannot be limited by legislative action.
The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article
IX-C, provides that the President of the Philippines possesses the power to grant
pardons, along with other acts of executive clemency.
It is apparent from the foregoing constitutional provisions that the only instances in
which the President may not extend pardon remain to be in: (1) impeachment
SAMMIE
cases; (2) cases that have not yet resulted in a final conviction; and (3) cases
involving violations of election laws, rules and regulations in which there was no
favorable recommendation coming from the COMELEC. Therefore, it can be
argued that any act of Congress by way of statute cannot operate to delimit the
pardoning power of the President.
I n Cristobal v. Labrador and Pelobello v. Palatino, which were decided under the
1935 Constitution, wherein the provision granting pardoning power to the President
shared similar phraseology with what is found in the present 1987 Constitution, the
Court then unequivocally declared that "subject to the limitations imposed by the
Constitution, the pardoning power cannot be restricted or controlled by legislative
action." The Court reiterated this pronouncement in Monsanto v. Factoran, Jr.
thereby establishing that, under the present Constitution, "a pardon, being a
presidential prerogative, should not be circumscribed by legislative action." Thus, it
is unmistakably the long- standing position of this Court that the exercise of the
pardoning power is discretionary in the President and may not be interfered with by
Congress or the Court, except only when it exceeds the limits provided for by the
Constitution.
This doctrine of non-diminution or non-impairment of the President's power of
pardon by acts of Congress, specifically through legislation, was strongly adhered
to by an overwhelming majority of the framers of the 1987 Constitution when they
flatly rejected a proposal to carve out an exception from the pardoning power of the
President in the form of "offenses involving graft and corruption" that would be
enumerated and defined by Congress through the enactment of a law.
The proper interpretation of Articles 36 and 41 of the Revised Penal Code.
The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the
Revised Penal Code cannot, in any way, serve to abridge or diminish the exclusive
power and prerogative of the President to pardon persons convicted of violating
penal statutes.
The Court cannot subscribe to Risos-Vidal's interpretation that the said Articles
contain specific textual commands which must be strictly followed in order to free
the beneficiary of presidential grace from the disqualifications specifically
prescribed by them.
Again, Articles 36 and 41 of the Revised Penal Code provides:
ART. 36. Â Pardon; its effects. — A pardon shall not work the restoration of the
right to hold public office, or the right of suffrage, unless such rights be expressly
restored by the terms of the pardon.
48
A pardon shall in no case exempt the culprit from the payment of the civil indemnity
imposed upon him by the sentence.
ART. 41. Reclusion perpetua and reclusion temporal — Their accessory
penalties. — The penalties of reclusion perpetua and reclusion temporal shall carry
with them that of civil interdiction for life or during the period of the sentence as the
case may be, and that of perpetual absolute disqualification which the offender
shall suffer even though pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon. (Emphases supplied.)
A rigid and inflexible reading of the above provisions of law, as proposed by Risos-
Vidal, is unwarranted, especially so if it will defeat or unduly restrict the power of
the President to grant executive clemency.
It is well-entrenched in this jurisdiction that where the words of a statute are clear,
plain, and free from ambiguity, it must be given its literal meaning and applied
without attempted interpretation. Verba legis non est recedendum. From the words
of a statute there should be no departure. It is this Court's firm view that the phrase
in the presidential pardon at issue which declares that former President Estrada "is
hereby restored to his civil and political rights" substantially complies with the
requirement of express restoration.
The Dissent of Justice Marvic M.V.F. Leonen agreed with Risos-Vidal that there
was no express remission and/or restoration of the rights of suffrage and/or to hold
public office in the pardon granted to former President Estrada, as required by
Articles 36 and 41 of the Revised Penal Code.
Justice Leonen posits in his Dissent that the aforementioned codal provisions must
be followed by the President, as they do not abridge or diminish the President's
power to extend clemency. He opines that they do not reduce the coverage of the
President's pardoning power. Particularly, he states:
Articles 36 and 41 refer only to requirements of convention or form. They only
provide a procedural prescription. They are not concerned with areas where or the
instances when the President may grant pardon; they are only concerned with how
he or she is to exercise such power so that no other governmental instrumentality
needs to intervene to give it full effect.
All that Articles 36 and 41 do is prescribe that, if the President wishes to include in
the pardon the restoration of the rights of suffrage and to hold public office, or the
remission of the accessory penalty of perpetual absolute disqualification, he or she
should do so expressly. Articles 36 and 41 only ask that the President state his or
her intentions clearly, directly, firmly, precisely, and unmistakably. To belabor the
SAMMIE
point, the President retains the power to make such restoration or remission,
subject to a prescription on the manner by which he or she is to state it.
With due respect, I disagree with the overbroad statement that Congress may
dictate as to how the President may exercise his/her power of executive clemency.
The form or manner by which the President, or Congress for that matter, should
exercise their respective Constitutional powers or prerogatives cannot be interfered
with unless it is so provided in the Constitution. This is the essence of the principle
of separation of powers deeply ingrained in our system of government which
"ordains that each of the three great branches of government has exclusive
cognizance of and is supreme in matters falling within its own constitutionally
allocated sphere." More so, this fundamental principle must be observed if non-
compliance with the form imposed by one branch on a co-equal and coordinate
branch will result into the diminution of an exclusive Constitutional prerogative.
For this reason, Articles 36 and 41 of the Revised Penal Code should be construed
in a way that will give full effect to the executive clemency granted by the
President, instead of indulging in an overly strict interpretation that may serve to
impair or diminish the import of the pardon which emanated from the Office of the
President and duly signed by the Chief Executive himself/herself. The said codal
provisions must be construed to harmonize the power of Congress to define crimes
and prescribe the penalties for such crimes and the power of the President to grant
executive clemency. All that the said provisions impart is that the pardon of the
principal penalty does not carry with it the remission of the accessory penalties
unless the President expressly includes said accessory penalties in the pardon. It
still recognizes the Presidential prerogative to grant executive clemency and,
specifically, to decide to pardon the principal penalty while excluding its accessory
penalties or to pardon both. Thus, Articles 36 and 41 only clarify the effect of the
pardon so decided upon by the President on the penalties imposed in accordance
with law.
A close scrutiny of the text of the pardon extended to former President Estrada
shows that both the principal penalty of reclusion perpetua and its accessory
penalties are included in the pardon. The first sentence refers to the executive
clemency extended to former President Estrada who was convicted by the
Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. The latter
is the principal penalty pardoned which relieved him of imprisonment. The
sentence that followed, which states that "(h)e is hereby restored to his civil and
political rights," expressly remitted the accessory penalties that attached to the
principal penalty of reclusion perpetua. Hence, even if we apply Articles 36 and 41
of the Revised Penal Code, it is indubitable from the text of the pardon that the
accessory penalties of civil interdiction and perpetual absolute disqualification were
expressly remitted together with the principal penalty of reclusion perpetua.
49
Thus, from both law and jurisprudence, the right to seek public elective office is
unequivocally considered as a political right. Hence, the Court reiterates its earlier
statement that the pardon granted to former President Estrada admits no other
interpretation other than to mean that, upon acceptance of the pardon granted to
him, he regained his FULL civil and political rights — including the right to seek
elective office.
On the other hand, the theory of Risos-Vidal goes beyond the plain meaning of
said penal provisions; and prescribes a formal requirement that is not only
unnecessary but, if insisted upon, could be in derogation of the constitutional
prohibition relative to the principle that the exercise of presidential pardon cannot
be affected by legislative action.
Risos-Vidal relied heavily on the separate concurring opinions in Monsanto v.
Factoran, Jr. to justify her argument that an absolute pardon must expressly state
that the right to hold public office has been restored, and that the penalty of
perpetual absolute disqualification has been remitted.
This is incorrect.
Her reliance on said opinions is utterly misplaced. Although the learned views of
Justices Teodoro R. Padilla and Florentino P. Feliciano are to be respected, they do
not form part of the controlling doctrine nor to be considered part of the law of the
land. On the contrary, a careful reading of the majority opinion in Monsanto,
penned by no less than Chief Justice Marcelo B. Fernan, reveals no statement that
denotes adherence to a stringent and overly nuanced application of Articles 36 and
41 of the Revised Penal Code that will in effect require the President to use a
statutorily prescribed language in extending executive clemency, even if the intent
of the President can otherwise be deduced from the text or words used in the
pardon. Furthermore, as explained above, the pardon here is consistent with, and
not contrary to, the provisions of Articles 36 and 41.
The disqualification of former President Estrada under Section 40 of the LGC
in relation to Section 12 of the OEC was removed by his acceptance of the
absolute pardon granted to him.
Section 40 of the LGC identifies who are disqualified from running for any elective
local position. Risos-Vidal argues that former President Estrada is disqualified
under item (a), to wit:
(a)Â Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence[.] (Emphasis
supplied.)
SAMMIE
Likewise, Section 12 of the OEC provides for similar prohibitions, but it provides for
an exception, to wit:
Section 12. Disqualifications. — . . . unless he has been given plenary pardon
or granted amnesty. (Emphasis supplied.)
As earlier stated, Risos-Vidal maintains that former President Estrada's conviction
for plunder disqualifies him from running for the elective local position of Mayor of
the City of Manila under Section 40 (a) of the LGC. However, the subsequent
absolute pardon granted to former President Estrada effectively restored his right
to seek public elective office. This is made possible by reading Section 40 (a) of the
LGC in relation to Section 12 of the OEC.
While it may be apparent that the proscription in Section 40 (a) of the LGC is
worded in absolute terms, Section 12 of the OEC provides a legal escape from the
prohibition — a plenary pardon or amnesty. In other words, the latter provision
allows any person who has been granted plenary pardon or amnesty after
conviction by final judgment of an offense involving moral turpitude, inter alia, to
run for and hold any public office, whether local or national position.
Take notice that the applicability of Section 12 of the OEC to candidates running for
local elective positions is not unprecedented. In Jalosjos, Jr. v. Commission on
Elections, the Court acknowledged the aforementioned provision as one of the
legal remedies that may be availed of to disqualify a candidate in a local election
filed any day after the last day for filing of certificates of candidacy, but not later
than the date of proclamation.
The third preambular clause of the pardon did not operate to make the
pardon conditional.
Contrary to Risos-Vidal's declaration, the third preambular clause of the pardon,
i.e., "[w]hereas, Joseph Ejercito Estrada has publicly committed to no longer seek
any elective position or office,"neither makes the pardon conditional, nor militate
against the conclusion that former President Estrada's rights to suffrage and to
seek public elective office have been restored. This is especially true as the pardon
itself does not explicitly impose a condition or limitation, considering the unqualified
use of the term "civil and political rights" as being restored.
Jurisprudence educates that a preamble is not an essential part of an act as it is an
introductory or preparatory clause that explains the reasons for the enactment,
usually introduced by the word "whereas." Whereas clauses do not form part of a
statute because, strictly speaking, they are not part of the operative language of
the statute. In this case, the whereas clause at issue is not an integral part of the
decree of the pardon, and therefore, does not by itself alone operate to make the
50
pardon conditional or to make its effectivity contingent upon the fulfilment of the
aforementioned commitment nor to limit the scope of the pardon.
Absent any contrary evidence, former President Arroyo's silence on former
President Estrada's decision to run for President in the May 2010 elections against,
among others, the candidate of the political party of former President Arroyo, after
the latter's receipt and acceptance of the pardon speaks volume of her intention to
restore him to his rights to suffrage and to hold public office.
Where the scope and import of the executive clemency extended by the President
is in issue, the Court must turn to the only evidence available to it, and that is the
pardon itself. From a detailed review of the four corners of said document, nothing
therein gives an iota of intimation that the third Whereas Clause is actually a
limitation, proviso, stipulation or condition on the grant of the pardon, such that the
breach of the mentioned commitment not to seek public office will result in a
revocation or cancellation of said pardon. To the Court, what it is simply is a
statement of fact or the prevailing situation at the time the executive clemency was
granted. It was not used as a condition to the efficacy or to delimit the scope of the
pardon.
Even if the Court were to subscribe to the view that the third Whereas Clause was
one of the reasons to grant the pardon, the pardon itself does not provide for the
attendant consequence of the breach thereof. This Court will be hard put to discern
the resultant effect of an eventual infringement. Just like it will be hard put to
determine which civil or political rights were restored if the Court were to take the
road suggested by Risos-Vidal that the statement "[h]e is hereby restored to his
civil and political rights" excludes the restoration of former President Estrada's
rights to suffrage and to hold public office. The aforequoted text of the executive
clemency granted does not provide the Court with any guide as to how and where
to draw the line between the included and excluded political rights.
Justice Leonen emphasizes the point that the ultimate issue for resolution is not
whether the pardon is contingent on the condition that former President Estrada
will not seek another elective public office, but it actually concerns the coverage of
the pardon — whether the pardon granted to former President Estrada was so
expansive as to have restored all his political rights, inclusive of the rights of
suffrage and to hold public office. Justice Leonen is of the view that the pardon in
question is not absolute nor plenary in scope despite the statement that former
President Estrada is "hereby restored to his civil and political rights," that is, the
foregoing statement restored to former President Estrada all his civil and political
rights except the rights denied to him by the unremitted penalty of perpetual
absolute disqualification made up of, among others, the rights of suffrage and to
hold public office. He adds that had the President chosen to be so expansive as to
include the rights of suffrage and to hold public office, she should have been more
clear on her intentions.
SAMMIE
However, the statement "[h]e is hereby restored to his civil and political rights," to
the mind of the Court, is crystal clear — the pardon granted to former President
Estrada was absolute, meaning, it was not only unconditional, it was unrestricted in
scope, complete and plenary in character, as the term "political rights" adverted to
has a settled meaning in law and jurisprudence.
With due respect, I disagree too with Justice Leonen that the omission of the
qualifying word "full" can be construed as excluding the restoration of the rights of
suffrage and to hold public office. There appears to be no distinction as to the
coverage of the term "full political rights" and the term "political rights" used alone
without any qualification. How to ascribe to the latter term the meaning that it is
"partial" and not "full" defies one's understanding. More so, it will be extremely
difficult to identify which of the political rights are restored by the pardon, when the
text of the latter is silent on this matter. Exceptions to the grant of pardon cannot be
presumed from the absence of the qualifying word "full" when the pardon restored
the "political rights" of former President Estrada without any exclusion or
reservation.
Therefore, there can be no other conclusion but to say that the pardon granted to
former President Estrada was absolute in the absence of a clear, unequivocal and
concrete factual basis upon which to anchor or support the Presidential intent to
grant a limited pardon.
To reiterate, insofar as its coverage is concerned, the text of the pardon can
withstand close scrutiny even under the provisions of Articles 36 and 41 of the
Revised Penal Code. cSIHCA
The COMELEC did not commit
grave abuse of discretion amounting to lack or excess of jurisdiction in
The COMELEC did not commit grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the assailed Resolutions.
The Court has consistently held that a petition for certiorari against actions of the
COMELEC is confined only to instances of grave abuse of discretion amounting to
patent and substantial denial of due process, because the COMELEC is presumed
to be most competent in matters falling within its domain.
As settled in jurisprudence, grave abuse of discretion is the arbitrary exercise of
power due to passion, prejudice or personal hostility; or the whimsical, arbitrary, or
capricious exercise of power that amounts to an evasion or refusal to perform a
positive duty enjoined by law or to act at all in contemplation of law. For an act to
be condemned as having been done with grave abuse of discretion, such an abuse
must be patent and gross.
51
The arguments forwarded by Risos-Vidal fail to adequately demonstrate any
factual or legal bases to prove that the assailed COMELEC Resolutions were
issued in a "whimsical, arbitrary or capricious exercise of power that amounts to an
evasion or refusal to perform a positive duty enjoined by law" or were so "patent
and gross" as to constitute grave abuse of discretion.
SAMMIE
Kapunan, Jr. vs. CA, 51 SCRA 42, March 13, 2009
WHEREFORE, the petition is dismissed. The assailed Joint Decision of the Court
of Appeals dated 29 December 1999, as well as its Resolution dated 22 May 2001
are hereby AFFIRMED. Costs against petitioners.
Petitioners face criminal charges in connection with the 1986 killing of Kilusang
Mayo Uno (KMU) Chairman Rolando Olalia and his driver, Leonor Alay-ay. These
consolidated petitions ask us to consider whether petitioners are immune from
prosecution for the Alay-ay/Olalia slayings by reason of a general grant of amnesty
issued by President Fidel V. Ramos to rebels, insurgents and other persons who
had committed crimes in furtherance of political ends.
Olalia and Alay-ay were both found dead with their bodies riddled with bullets on 13
November 1986. The double murders stirred considerable public anger, given
Olalia's high profile as Chairman of the KMU at the time of his death.
On 12 January 1998, private respondents Feliciana C. Olalia and Perolina G. Alay-
ay filed a letter-complaint before the Department of Justice (DOJ) charging
petitioner Eduardo E. Kapunan, Jr. (Kapunan, Jr.), petitioner Oscar E. Legaspi
(Legaspi), and other officers and men of the Armed Forces of the Philippines (AFP)
and the Philippine National Police (PNP) for the complex crime of kidnapping with
murder of Alay-ay and Olalia. The affidavits of TSgt. Medardo Barreto (Barreto) and
Eduardo E. Bueno were annexed to the complaint.
On 26 February 1998, Kapunan, Jr., filed a motion to dismiss the charges against
him before the Panel. On the same day, Legaspi likewise filed a motion to dismiss
alleging that his criminal liability had been totally extinguished by the amnesty
granted to him. The DOJ Prosecutor refused to rule on the motions to dismiss and
instead treated them as their counter-affidavits.
Issue:
whether or not the grant of amnesty extinguished their criminal liability. (No)
Ruling:
Proclamation Nos. 347 and 348 were issued on the same day, 25 March 1994, by
President Fidel Ramos. Their respective texts warrant examination. Section 1 of
Proclamation No. 347 reads, thus:
Section 1. Â Grant of Amnesty. — Amnesty is hereby granted to all persons who
shall apply therefor and who have or may have committed crimes, on or before
thirty (30) days following the publication of this Proclamation in two (2) newspapers
of general circulation, in pursuit of political beliefs, whether punishable under the
Revised Penal Code or special laws, including but not limited to the following:
rebellion or insurrection; coup d' etat; conspiracy and proposal to commit rebellion,
52
insurrection or coup d' etat; disloyalty of public officers or employees; inciting to
rebellion or insurrection; sedition; conspiracy to commit sedition; inciting to
sedition; illegal assembly; illegal association; direct assault; indirect assault;
resistance and disobedience to a person in authority or the agents of such person;
tumults and other disturbances of public order; unlawful use of means of
publication and unlawful utterances; alarms and scandals; illegal possession of
firearms, ammunition or explosives, committed in furtherance of, incident to, or in
connection with the crimes of rebellion or insurrection; and violations of Articles 59
(desertion), 62 (absence without leave), 67 (mutiny or sedition), 68 (failure to
suppress mutiny or sedition), 94 (various crimes), 96 (conduct unbecoming an
officer and a gentleman), and 97 (general article) of the Articles of War: Provided,
that the amnesty shall not cover crimes against chastity and other crimes
committed for personal ends.
Section 1 of Proclamation No. 348, as amended by Section 1 of Proclamation No.
377, provides:
Section 1. Â Grant of Amnesty. — Amnesty is hereby granted to all personnel of the
AFP and PNP who shall apply therefor and who have or may have committed, as
of the date of this Proclamation, acts or omissions punishable under the Revised
Penal Code, the Articles of War or other special laws, in furtherance of, incident to,
or in connection with counter-insurgency operations; Provided, that such acts or
omissions do not constitute serious human rights violations, such as acts of torture,
extra-legal execution, arson, massacre, rape, other crimes against chastity or
robbery of any form; and Provided, That the acts were not committed for personal
ends.(Emphasis supplied)
Administrative Order No. 1-94, as amended, serves as the implementing rules to
the two proclamations. It provides further clarification as to their respective
coverage.
The Court of Appeals alluded to a measure of ambiguity in respect to whether
Proclamation No. 347 also extends to personnel of the Armed Forces of the
Philippines considering that Proclamation No. 348, issued on the same day, does
specifically cover such class of persons. It ultimately concluded that AFP personnel
were not included in Proclamation No. 347, the same including only "rebels and
insurgent returnees" in its ambit.
We note that on the contrary the text of Proclamation No. 347 is sufficiently clear
that members of the Armed Forces of the Philippines are indeed covered by the
Proclamation. If AFP personnel were not under the coverage of Proclamation No.
347, then Section 2 (b) thereof would be utterly inutile.
It appears that the interpretation of the Court of Appeals that military personnel
were not covered under Proclamation No. 347 was derived from the belief that
SAMMIE
rebels/insurgents were mutually exclusive with military personnel. There is no
doubting that "rebels" or "insurgents" have acquired a connotative association with
armed insurrectionists who originate outside the forces of the government, as
contradistinguished from members of the AFP who take up arms against the State.
Still, the very text of Section 1 of Proclamation No. 347 extends to "all persons"
who committed the particular acts described in the provision, and not just "rebels"
or "insurgents". Nothing in the text of the proclamation excludes military personnel
by reason of their association, and indeed as we pointed out, Section 2 (b) makes
it evident that they are included.
At the same time, a close reading of Proclamation No. 347 reveals that it is not a
unilateral grant of amnesty. Section 1 states that it is granted "to all persons who
shall apply therefor." Pursuant to Section 4, it is the NAC which is primarily tasked
"with receiving and processing applications for amnesty, and determining whether
the applicants are entitled to amnesty under this Proclamation." Pursuant to its
functions, it has the power to "promulgate rules and regulations subject to the
approval of the President." Final decisions or determinations of the NAC are
appealable to the Court of Appeals.
The extension of amnesty under Proclamation No. 347 takes effect only after the
determination by the National Amnesty Commission as to whether the applicant is
qualified under the terms of the proclamation. To fulfill its mandate, the NAC is
empowered to enact rules and regulations, to summon witnesses and issue
subpoenas. Evidently, the NAC does not just stamp its approval to every
application before it. It possesses the power to determine facts, and therefrom, to
decide whether the applicant is qualified for amnesty. The fact that the decisions of
the NAC are subject to judicial review further supports the conclusiveness of its
findings.
Both petitioners had duly applied for amnesty with the National Amnesty
Commission, and both had been issued amnesty certificates. However, an
examination of these certificates reveals that the grant of amnesty was not as far-
reaching as the petitioners imply.
The limited scope of the amnesty granted to Legaspi is even more apparent. At
most, it could only cover offenses connected with his participation in the 1987 and
1989 coup attempts.
On their face, the murders of Olalia and Alay-ay do not indicate they are
components of rebellion. It is not self-explanatory how the murders of two private
citizens could have been oriented to the aims of rebellion, explained in the Revised
Penal Code as "removing from the allegiance to [the] Government or its laws, the
territory of the Republic of the Philippines or any part thereof, of any body of land,
naval or other armed forces, of depriving the Chief Executive or the Legislature,
wholly or partially, of any of their powers or prerogatives."
53
For exculpatory context, Kapunan cites the Final Report of the independent fact-
finding commission popularly known as the "Davide Commission" created by
Republic Act No. 6832 (R.A. No. 6832) to "investigate all the facts and
circumstances of the failed coup d'étatof December 1989, and recommend
measures to prevent similar attempts at a violent seizure of power."
The Final Report adverted to a planned coup d'etat code-named "God Save the
Queen" in November 1986, the same month as the murders of Olalia and Alay-ay.
The Final Report recounted the killings as well as the resulting nationwide protests
in reaction thereto "where labor and other cause-oriented groups denounced the
military as the perpetrators of the crime." The Final Report took note of the
accusations as to the possible motive for the military to execute the murders, and
the investigation undertaken by the National Bureau of Investigation (NBI) which
allegedly found evidence to link some RAM officers to the killing. The Final Report
stated: "The argument was made that the timing and brutality of the murders were
meant to create an unstable situation favorable for a coup.
Perhaps, it was the realization that their actions could be exploited by the ultra-right
that radical labor unions and organizations desisted from prolonged massive
demonstrations at that time."
The Final Report also concluded that among the possible classifications for
"triggering events" leading to military intervention was "simulated events that could
be created or provoked in order to effect the tense and unstable atmosphere
necessary for a coup." Political assassinations, "which the brutal killing of Rolando
Olalia could have been", were described as "a good example" of such simulated
events.
We do not wish to denigrate from the wisdom of the Davide Commission. However,
its findings cannot be deemed as conclusive and binding on this Court, or any court
for that matter. Nothing in R.A. No. 6832 mandates that the findings of fact or
evaluations of the Davide Commission acquire binding effect or otherwise
countermand the determinative functions of the judiciary. The proper role of the
findings of fact of the Davide Commission in relation to the judicial system is
highlighted by Section 1 (c) of R.A. No. 6832, which requires the Commission to
"[t]urn over to the appropriate prosecutorial authorities all evidence involving any
person when in the course of its investigation, the Commission finds that there is
reasonable ground to believe that he appears to be liable for any criminal offense
in connection with said coup d'état."
Whatever factual findings or evidence unearthed by the Davide Commission that
could form the basis for prosecutorial action still need be * evaluated by the
appropriate prosecutorial authorities to serve as the nucleus of either a criminal
complaint or exculpation therefrom. If a criminal complaint is indeed filed, the same
SAMMIE
findings or evidence are still subject to the normal review and evaluation processes
undertaken by the judge, to be assessed in accordance with our procedural law.
Any equation between rebellion and the Olalia/Alay-ay killings requires
accompanying context such as that possibly provided by the Final Report.
However, there is no such context that we are able to appreciate and act upon at
this juncture. Assuming that Kapunan, Jr. was intent to invoke the amnesty granted
him in his defense against the charges connected with the Olalia/Alay-ay slays, it
would be incumbent upon him to prove before the courts that the murders were
elemental to his commission or attempted commission of the crime of rebellion,
and not just by way of a general averment, but through detailed evidence.
The same may be said of the affidavit of Barreto, which made two relevant claims:
that the entire force of the Security Group of the Ministry of Defense was then
actively preparing for the launch of a rumored military exercise akin to the 1986
People Power Revolution; and that he was told by another respondent, Captain
Dicon, that the murder of Olalia was needed to create an atmosphere of
destabilization spurred by the protest actions of the KMU which the RAM could
then use as justification for military intervention similar to the first EDSA revolt.
Based on these claims in Barreto's affidavit, the Investigating Panel itself stated in
its findings that the
killings of Olalia and Alay-ay were undertaken on the premise "that their death
would bring about massive protest action that will contribute to the destabilization
of the Cory Aquino government and eventually a military take over of the
government."
Barreto's affidavit, as integrated in the findings of the Investigating Panel, would
have been extremely favorable to Kapunan had the relevant question been
whether the Olalia/Alay-ay murders were committed in furtherance of a political
belief. However, as we pointed out earlier, such motive under Proclamation No.
347 operates only to the extent of entitling the criminal to apply for amnesty. The
actual grant of amnesty still depends on the NAC's determination as to whether the
applicant is indeed entitled to amnesty. In Kapunan's case, the grant of amnesty
extended to him pertains only to the crime of rebellion.
Kapunan himself admits before this Court that the November 1986 "God Save the
Queen" coup plot "was pre-empted". We can take judicial notice that there was no
public uprising or taking up of arms against the Aquino government that took place
in November of 1986, and no serious coup attempt until 28 August 1987. The tenor
of Barreto's claims make it clear that the Olalia/Alay-ay killings were intended to
spark immediate instability which would be exploited for the coup attempt. The
absence of any immediate rebellion taking place contemporaneous with or
immediately after the Olalia/Alay-ay killings calls to question whether there was a
causal connection between the murders and the consummated crime of rebellion.
54
At the very least, that circumstance dissuades us from concluding with certainty
that the killings were inherent to or absorbed in the crime of rebellion. Such a
matter can be addressed instead through a full-dress trial on the merits.
What we said as to Kapunan, Jr. also answers Legaspi's similar contentions. In the
latter's case, the grant of amnesty was specifically limited to his participation in the
1987 and 1989 coup attempts against the Aquino administration. The murders took
place in November 1986. They were supposedly intended to create an atmosphere
that would facilitate an immediate coup d'etat. It is difficult for the Court to
appreciate at this point how the Olalia/Alay-ay killings were connected with the
1987 or 1991 coup attempts, though Legaspi is free to establish such a connection
through a trial on the merits.
The Court is satisfied that there is prima facieevidence for the prosecution of the
petitioners for the murders of Rolando Olalia and Leonor Alay-ay. The arguments
that petitioners are exempt from prosecution on account of the grants of amnesty
they had received are ultimately without merit, on account of the specified
limitations in the said grant of amnesty.
SAMMIE
Sanlakas v. Executive Committee, 421 SCRA 656, February 3, 2004
WHEREFORE, the petitions are hereby DISMISSED.
Some three hundred junior officers and enlisted men of the Armed Forces of the
Philippines (AFP) stormed into the Oakwood Premiere apartments in Makati City in
the wee hours of July 27, 2003. Bewailing the corruption in the AFP, the soldiers
demanded, among other things, the resignation of the President, the Secretary of
Defense and the Chief of the Philippine National Police (PNP).
In the wake of the Oakwood occupation, the President issued later in the day
Proclamation No. 427 and General Order No. 4, both declaring "a state of
rebellion" and calling out the Armed Forces to suppress the rebellion.
Petitioner Members of Congress claim that the declaration of a state of rebellion by
the President is tantamount to an exercise of Congress' emergency powers, thus
impairing the lawmakers' legislative powers. Petitioners also maintain that the
declaration is a subterfuge to avoid congressional scrutiny into the President's
exercise of martial law powers.
Issue:
WON proclamation No. 427 and General Order No. 4 are constitutional? (Yes)
Ruling:
It is true that for the purpose of exercising the calling out power the Constitution
does not require the President to make a declaration of a state of rebellion as what
Section 18, Article VII provides.
The said provision grants the President, as Commander-in-Chief, a "sequence" of
"graduated power[s]." From the most to the least benign, these are: the calling out
power, the power to suspend the privilege of the writ of habeas corpus, and the
power to declare martial law. In the exercise of the latter two powers, the
Constitution requires the concurrence of two conditions, namely, an actual invasion
or rebellion, and that public safety requires the exercise of such power. However,
as we observed in Integrated Bar of the Philippines v. Zamora, "[t]hese conditions
are not required in the exercise of the calling out power. The only criterion is that
'whenever it becomes necessary,' the President may call the armed forces 'to
prevent or suppress lawless violence, invasion or rebellion.'"
Nevertheless, it is equally true that Section 18, Article VII does not expressly
prohibit the President from declaring a state of rebellion. Note that the Constitution
vests the President not only with Commander-in-Chief powers but, first and
foremost, with Executive powers.
55
Section 1, Article VII of the 1987 Philippine Constitution states: "The executive
power shall be vested in the President. . . ." As if by exposition, Section 17 of the
same Article provides: "He shall ensure that the laws be faithfully executed." The
provisions trace their history to the Constitution of the United States.
Eventually, the power of the State to intervene in and even take over the operation
of vital utilities in the public interest was accepted. In the Philippines, this led to the
incorporation of Section 6, Article XIII of the 1935 Constitution, which was later
carried over with modifications in Section 7 , Article XIV of the 1973 Constitution,
and thereafter in Section 18, Article XII of the 1987 Constitution.
In The Philippine Presidency A Study of Executive Power, the late Mme. Justice
Irene R. Cortes, proposed that the Philippine President was vested with residual
power and that this is even greater than that of the U.S. President. She attributed
this distinction to the "unitary and highly centralized" nature of the Philippine
government. She noted that, "There is no counterpart of the several states of the
American union which have reserved powers under the United States constitution."
The President's power to reorganize the executive branch is also an exercise of his
residual powers under Section 20, Title I, Book III of E.O. No. 292 which grants the
President broad organization powers to implement reorganization measures, viz.:
SEC. 20. Residual Powers. – Unless Congress provides otherwise, the President
shall exercise such other powers and functions vested in the President which are
provided for under the laws and which are not specifically enumerated above, or
which are not delegated by the President in accordance with law.
In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into
jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's power
to forbid the return of her exiled predecessor. The rationale for the majority's ruling
rested on the President's
. . . unstated residual powers which are implied from the grant of executive power
and which are necessary for her to comply with her duties under the Constitution.
The powers of the President are not limited to what are expressly enumerated in
the article on the Executive Department and in scattered provisions of the
Constitution. This is so, notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of the President as a
reaction to the abuses under the regime of Mr. Marcos, for the result was a
limitation of specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of executive
power. [Emphasis supplied. Italics in the original.]
Thus, the President's authority to declare a state of rebellion springs in the main
from her powers as chief executive and, at the same time, draws strength from her
SAMMIE
Commander-in-Chief powers. Indeed, as the Solicitor General accurately points
out, statutory authority for such a declaration may be found in Section 4, Chapter 2
(Ordinance Power), Book III (Office of the President) of the Revised Administrative
Code of 1987, which states:
SEC. 4. Proclamations. — Acts of the President fixing a date or declaring a status
or condition of public moment or interest, upon the existence of which the operation
of a specific law or regulation is made to depend, shall be promulgated in
proclamations which shall have the force of an executive order. [Emphasis
supplied.]
The foregoing discussion notwithstanding, in calling out the armed forces, a
declaration of a state of rebellion is an utter superfluity. At most, it only gives notice
to the nation that such a state exists and that the armed forces may be called to
prevent or suppress it. Perhaps the declaration may wreak emotional effects upon
the perceived enemies of the State, even on the entire nation. But this Court's
mandate is to probe only into the legal consequences of the declaration. This Court
finds that such a declaration is devoid of any legal significance. For all legal intents,
the declaration is deemed not written. Should there be any "confusion" generated
by the issuance of Proclamation No. 427 and General Order No. 4, we clarify that,
as the dissenters in Lacson correctly pointed out, the mere declaration of a state of
rebellion cannot diminish or violate constitutionally protected rights. Indeed, if a
state of martial law does not suspend the operation of the Constitution or
automatically suspend the privilege of the writ of habeas corpus, then it is with
more reason that a simple declaration of a state of rebellion could not bring about
these conditions. At any rate, the presidential issuances themselves call for the
suppression of the rebellion "with due regard to constitutional rights."
For the same reasons, apprehensions that the military and police authorities may
resort to warrantless arrests are likewise unfounded. In Lacson vs. Perez, supra,
majority of the Court held that "[i]n quelling or suppressing the rebellion, the
authorities may only resort to warrantless arrests of persons suspected of rebellion,
as provided under Section 5, Rule 113 of the Rules of Court, if the circumstances
so warrant. The warrantless arrest feared by petitioners is, thus, not based on the
declaration of a 'state of rebellion.'" In other words, a person may be subjected to a
warrantless arrest for the crime of rebellion whether or not the President has
declared a state of rebellion, so long as the requisites for a valid warrantless arrest
are present.
It is not disputed that the President has full discretionary power to call out the
armed forces and to determine the necessity for the exercise of such power. While
the Court may examine whether the power was exercised within constitutional
limits or in a manner constituting grave abuse of discretion, none of the petitioners
here have, by way of proof, supported their assertion that the President acted
without factual basis.
56
The argument that the declaration of a state of rebellion amounts to a declaration
of martial law and, therefore, is a circumvention of the report requirement, is a leap
of logic. There is no indication that military tribunals have replaced civil courts in
the "theater of war" or that military authorities have taken over the functions of civil
government. There is no allegation of curtailment of civil or political rights. There is
no indication that the President has exercised judicial and legislative powers. In
short, there is no illustration that the President has attempted to exercise or has
exercised martial law powers.
Nor by any stretch of the imagination can the declaration constitute an indirect
exercise of emergency powers, which exercise depends upon a grant of Congress
pursuant to Section 23 (2), Article VI of the Constitution.
The petitions do not cite a specific instance where the President has attempted to
or has exercised powers beyond her powers as Chief Executive or as Commander-
in-Chief. The President, in declaring a state of rebellion and in calling out the
armed forces, was merely exercising a wedding of her Chief Executive and
Commander-in-Chief powers. These are purely executive powers, vested on the
President by Sections 1 and 18, Article VII, as opposed to the delegated legislative
powers contemplated by Section 23 (2), Article VI.
SAMMIE
Gudani v. Senga, August 15, 2006
WHEREFORE, the petition is DENIED.
The petitioners are high-ranking officers of the Armed Forces of the Philippines
(AFP). Both petitioners, Brigadier General Francisco Gudani (Gen. Gudani) and
Lieutenant Colonel Alexander Balutan (Col. Balutan), belonged to the Philippine
Marines. At the time of the subject incidents, both Gen. Gudani and Col. Balutan
were assigned to the Philippine Military Academy (PMA) in Baguio City, the former
as the PMA Assistant Superintendent, and the latter as the Assistant Commandant
of Cadets.
On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several
senior officers of the AFP to appear at a public hearing before the Senate
Committee). The hearing was scheduled after topics concerning the conduct of the
2004 elections emerged in the public eye, particularly allegations of massive
cheating and the surfacing of copies of an audio excerpt purportedly of a phone
conversation between President Gloria Macapagal Arroyo and an official of the
Commission on Elections (COMELEC) widely reputed as then COMELEC
Commissioner Virgilio Garcillano.
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso
Senga (Gen. Senga) were among the several AFP officers who received a letter
invitation from Sen. Biazon to attend the hearing. Gen. Senga replied through a
letter to Sen. Biazon that he would be unable to attend the hearing due to a
previous commitment in Brunei, but he nonetheless "directed other officers from
the AFP who were invited to attend the hearing.”
On 26 September 2005, the Office of the Chief of Staff of the AFP issued a
Memorandum addressed to the Superintendent of the PMA Gen. Cristolito P.
Baloing (Gen. Baloing). It was signed by Lt. Col. Hernando DCA Iriberri in behalf of
Gen. Senga. Noting that Gen. Gudani and Col. Balutan had been invited to attend
the Senate Committee hearing on 28 September 2005, the Memorandum directed
the two officers to attend the hearing. Conformably, Gen. Gudani and Col. Balutan
filed their respective requests for travel authority addressed to the PMA
Superintendent.
Gen. Senga wrote a letter to Sen. Biazon, requesting the postponement of the
hearing scheduled for the following day, since the AFP Chief of Staff was himself
unable to attend said hearing, and that some of the invited officers also could not
attend as they were "attending to other urgent operational matters." By this time,
both Gen. Gudani and Col. Balutan had already departed Baguio for Manila to
attend the hearing.
57
The following day, Gen. Senga sent another letter to Sen. Biazon, this time
informing the senator that "no approval has been granted by the President to any
AFP officer to appear" before the hearing scheduled on that day. Nonetheless, both
Gen. Gudani and Col. Balutan were present as the hearing started, and they both
testified as to the conduct of the 2004 elections.
The Office of the Solicitor General (OSG), representing the respondents before this
Court, has offered additional information surrounding the testimony of Gen. Gudani
and Col. Balutan. The OSG manifests that the couriers of the AFP Command
Center had attempted to deliver the radio message to Gen. Gudani's residence in a
subdivision in Parañaque City late in the night of 27 September 2005, but they
were not permitted entry by the subdivision guards. The next day, 28 September
2005, shortly before the start of the hearing, a copy of Gen. Senga's letter to Sen.
Biazon sent earlier that day was handed at the Senate by Commodore Amable B.
Tolentino of the AFP Office for Legislative Affairs to Gen. Gudani, who replied that
he already had a copy. Further, Gen. Senga called Commodore Tolentino on the
latter's cell phone and asked to talk to Gen. Gudani, but Gen. Gudani refused. In
response, Gen. Senga instructed Commodore Tolentino to inform Gen. Gudani that
"it was an order," yet Gen. Gudani still refused to take Gen. Senga's call.
A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the
office of Gen. Senga issued a statement which noted that the two had appeared
before the Senate Committee "in spite of the fact that a guidance has been given
that a Presidential approval should be sought prior to such an appearance;" that
such directive was "in keeping with the time[- ]honored principle of the Chain of
Command;" and that the two officers "disobeyed a legal order, in violation of
A[rticles of] W[ar] 65 (Willfully Disobeying Superior Officer), hence they will be
subjected to General Court Martial proceedings . . ." Both Gen. Gudani and Col.
Balutan were likewise relieved of their assignments then.
On the very day of the hearing, 28 September 2005, President Gloria- Macapagal-
Arroyo issued Executive Order No. 464 (E.O. 464). The OSG notes that the E.O.
"enjoined officials of the executive department including the military establishment
from appearing in any legislative inquiry without her approval." This Court
subsequently ruled on the constitutionality of the said executive order in Senate v.
Ermita. The relevance of E.O. 464 and Senate to the present petition shall be
discussed forthwith.
In the meantime, on 30 September 2005, petitioners were directed by General
Senga, through Col. Henry A. Galarpe of the AFP Provost Marshal General, to
appear before the Office of the Provost Marshal General (OPMG) on 3 October
2005 for investigation. During their appearance before Col. Galarpe, both
petitioners invoked their right to remain silent. The following day, Gen. Gudani was
compulsorily retired from military service, having reached the age of 56.
SAMMIE
In an Investigation Report dated 6 October 2005, the OPMG recommended that
petitioners be charged with violation of Article of War 65, on willfully disobeying a
superior officer, in relation to Article of War 97, on conduct prejudicial to the good
order and military discipline. As recommended, the case was referred to a Pre-Trial
Investigation Officer (PTIO) preparatory to trial by the General Court Martial
(GCM). Consequently, on 24 October 2005, petitioners were separately served with
Orders respectively addressed to them and signed by respondent Col. Gilbert Jose
C. Roa, the Pre- Trial Investigating Officer of the PTIO. The Orders directed
petitioners to appear in person before Col. Roa at the Pre-Trial Investigation of the
Charges for violation of Articles 65 and 97 of Commonwealth Act No. 408, and to
submit their counter-affidavits and affidavits of witnesses at the Office of the Judge
Advocate General. The Orders were accompanied by respective charge sheets
against petitioners, accusing them of violating Articles of War 65 and 97.
Issue:
1. WON Executive Order No. 464 (E.O. 464) that President Arroyo issued is
unconstitutional. (No)
Ruling:
1. WON Executive Order No. 464 (E.O. 464) that President Arroyo issued is
unconstitutional.
What the Court has to consider though is whether the violation of the
aforementioned order of Gen. Senga, which emanated from the President, could
lead to any investigation for court-martial of petitioners. It has to be acknowledged
as a general principle that AFP personnel of whatever rank are liable under military
law for violating a direct order of an officer superior in rank. Whether petitioners did
violate such an order is not for the Court to decide, but it will be necessary to
assume, for the purposes of this petition, that petitioners did so.
Preliminarily, we must discuss the effect of E.O. 464 and the Court's ruling i n
Senate on the present petition. Notably, it is not alleged that petitioners were in
any way called to task for violating E.O. 464, but instead, they were charged
for violating the direct order of Gen. Senga not to appear before the Senate
Committee, an order that stands independent of the executive order.
Distinctions are called for, since Section 2(b) of E.O. 464 listed "generals and flag
officers of the Armed Forces of the Philippines and such other officers who in the
judgment of the Chief of Staff are covered by the executive privilege," as among
those public officials required in Section 3 of E.O. 464 "to secure prior consent of
the President prior to appearing before either House of Congress." The Court in
Senate declared both Section 2(b) and Section 3 void, and the impression may
have been left following Senate that it settled as doctrine, that the President is
prohibited from requiring military personnel from attending congressional hearings
without having first secured prior presidential consent. That impression is wrong.
58
Senate turned on the nature of executive privilege, a presidential prerogative which
is encumbered by significant limitations. Insofar as E.O. 464 compelled officials of
the executive branch to seek prior presidential approval before appearing before
Congress, the notion of executive control also comes into consideration. However,
the ability of the President to require a military official to secure prior consent
before appearing before Congress pertains to a wholly different and independent
specie of presidential authority — the commander-in-chief powers of the President.
By tradition and jurisprudence, the commander-in-chief powers of the President are
not encumbered by the same degree of restriction as that which may attach to
executive privilege or executive control.
Petitioners wish to see annulled the "gag order" that required them to secure
presidential consent prior to their appearance before the Senate, claiming that it
violates the constitutional right to information and transparency in matters of public
concern; or if not, is tantamount at least to the criminal acts of obstruction of justice
and grave coercion. However, the proper perspective from which to consider this
issue entails the examination of the basis and authority of the President to issue
such an order in the first place to members of the AFP and the determination of
whether such an order is subject to any limitations.
The vitality of the tenet that the President is the commander-in-chief of the Armed
Forces is most crucial to the democratic way of life, to civilian supremacy over the
military, and to the general stability of our representative system of government.
The Constitution reposes final authority, control and supervision of the AFP to the
President, a civilian who is not a member of the armed forces, and whose duties as
commander-in-chief represent only a part of the organic duties imposed upon the
office, the other functions being clearly civil in nature. Civilian supremacy over the
military also countermands the notion that the military may bypass civilian
authorities, such as civil courts, on matters such as conducting warrantless
searches and seizures.
Pursuant to the maintenance of civilian supremacy over the military, the
Constitution has allocated specific roles to the legislative and executive branches
of government in relation to military affairs. Military appropriations, as with all other
appropriations, are determined by Congress, as is the power to declare the
existence of a state of war. Congress is also empowered to revoke a proclamation
of martial law or the suspension of the writ of habeas corpus. The approval of the
Commission on Appointments is also required before the President can promote
military officers from the rank of colonel or naval captain. Otherwise, on the
particulars of civilian dominance and administration over the military, the
Constitution is silent, except for the commander-in-chief clause which is fertile in
meaning and implication as to whatever inherent martial authority the President
may possess.
SAMMIE
The commander-in-chief provision in the Constitution is denominated as Section
18, Article VII, which begins with the simple declaration that "[t]he President shall
be the Commander-in-Chief of all armed forces of the Philippines . . ." Outside
explicit constitutional limitations, such as those found in Section 5, Article XVI, the
commander-in-chief clause vests on the President, as commander-in-chief,
absolute authority over the persons and actions of the members of the armed
forces. Such authority includes the ability of the President to restrict the travel,
movement and speech of military officers, activities which may otherwise be
sanctioned under civilian law.
Critical to military discipline is obeisance to the military chain of command. Willful
disobedience of a superior officer is punishable by court- martial under Article 65 of
the Articles of War. "An individual soldier is not free to ignore the lawful orders or
duties assigned by his immediate superiors. For there would be an end of all
discipline if the seaman and marines on board a ship of war [or soldiers deployed
in the field], on a distant service, were permitted to act upon their own opinion of
their rights [or their opinion of the President's intent], and to throw off the authority
of the commander whenever they supposed it to be unlawfully exercised."
Further traditional restrictions on members of the armed forces are those imposed
on free speech and mobility. Kapunan is ample precedent in justifying that a soldier
may be restrained by a superior officer from speaking out on certain matters. As a
general rule, the discretion of a military officer to restrain the speech of a soldier
under his/her command will be accorded deference, with minimal regard if at all to
the reason for such restraint. It is integral to military discipline that the soldier's
speech be with the consent and approval of the military commander.
The necessity of upholding the ability to restrain speech becomes even more
imperative if the soldier desires to speak freely on political matters. The
Constitution requires that "[t]he armed forces shall be insulated from partisan
politics," and that '[n]o member of the military shall engage directly or indirectly in
any partisan political activity, except to vote." Certainly, no constitutional provision
or military indoctrination will eliminate a soldier's ability to form a personal political
opinion, yet it is vital that such opinions be kept out of the public eye. For one,
political belief is a potential source of discord among people, and a military torn by
political strife is incapable of fulfilling its constitutional function as protectors of the
people and of the State. For another, it is ruinous to military discipline to foment an
atmosphere that promotes an active dislike of or dissent against the President, the
commander- in-chief of the armed forces. Soldiers are constitutionally obliged to
obey a President they may dislike or distrust. This fundamental principle averts the
country from going the way of banana republics.
Parenthetically, it must be said that the Court is well aware that our country's recent
past is marked by regime changes wherein active military dissent from the chain of
command formed a key, though not exclusive, element. The Court is not blind to
59
history, yet it is a judge not of history but of the Constitution. The Constitution, and
indeed our modern democratic order, frown in no uncertain terms on a politicized
military, informed as they are on the trauma of absolute martial rule. Our history
might imply that a political military is part of the natural order, but this view cannot
be affirmed by the legal order. The evolutionary path of our young democracy
necessitates a reorientation from this view, reliant as our socio-political culture has
become on it. At the same time, evolution mandates a similar demand that our
system of governance be more responsive to the needs and aspirations of the
citizenry, so as to avoid an environment vulnerable to a military apparatus able at
will to exert an undue influence in our polity.
Of possibly less gravitas, but of equal importance, is the principle that mobility of
travel is another necessary restriction on members of the military. A soldier cannot
leave his/her post without the consent of the commanding officer. The reasons are
self-evident. The commanding officer has to be aware at all times of the location of
the troops under command, so as to be able to appropriately respond to any
exigencies. For the same reason, commanding officers have to be able to restrict
the movement or travel of their soldiers, if in their judgment, their presence at place
of call of duty is necessary. At times, this may lead to unsentimental, painful
consequences, such as a soldier being denied permission to witness the birth of
his first-born, or to attend the funeral of a parent. Yet again, military life calls for
considerable personal sacrifices during the period of conscription, wherein the
higher duty is not to self but to country.
Indeed, the military practice is to require a soldier to obtain permission from the
commanding officer before he/she may leave his destination. A soldier who goes
from the properly appointed place of duty or absents from his/her command, guard,
quarters, station, or camp without proper leave is subject to punishment by court-
martial. It is even clear from the record that petitioners had actually requested for
travel authority from the PMA in Baguio City to Manila, to attend the Senate
Hearing. Even petitioners are well aware that it was necessary for them to obtain
permission from their superiors before they could travel to Manila to attend the
Senate Hearing.
It is clear that the basic position of petitioners impinges on these fundamental
principles we have discussed. They seek to be exempted from military justice for
having traveled to the Senate to testify before the Senate Committee against the
express orders of Gen. Senga, the AFP Chief of Staff. If petitioners' position is
affirmed, a considerable exception would be carved from the unimpeachable right
of military officers to restrict the speech and movement of their juniors. The ruinous
consequences to the chain of command and military discipline simply cannot
warrant the Court's imprimatur on petitioner's position.
may the President prevent a member of the armed forces from testifying before a
legislative inquiry?
SAMMIE
We hold that the President has constitutional authority to do so, by virtue of her
power as commander-in-chief, and that as a consequence a military officer who
defies such injunction is liable under military justice. At the same time, we also hold
that any chamber of Congress which seeks the appearance before it of a military
officer against the consent of the President has adequate remedies under law to
compel such attendance. Any military official whom Congress summons to testify
before it may be compelled to do so by the President. If the President is not so
inclined, the President may be commanded by judicial order to compel the
attendance of the military officer. Final judicial orders have the force of the law of
the land which the President has the duty to faithfully execute.
As earlier noted, we ruled inSenate that the President may not issue a blanket
requirement of prior consent on executive officials summoned by the legislature to
attend a congressional hearing. In doing so, the Court recognized the considerable
limitations on executive privilege, and affirmed that the privilege must be formally
invoked on specified grounds. However, the ability of the President to prevent
military officers from testifying before Congress does not turn on executive
privilege, but on the Chief Executive's power as commander-in-chief to
control the actions and speech of members of the armed forces. The
President's prerogatives as commander-in-chief are not hampered by the
same limitations as in executive privilege.
Our ruling that the President could, as a general rule, require military officers to
seek presidential approval before appearing before Congress is based foremost on
the notion that a contrary rule unduly diminishes the prerogatives of the President
as commander-in-chief. Congress holds significant control over the armed forces in
matters such as budget appropriations and the approval of higher-rank promotions,
yet it is on the President that the Constitution vests the title as commander-in-chief
and all the prerogatives and functions appertaining to the position. Again, the
exigencies of military discipline and the chain of command mandate that the
President's ability to control the individual members of the armed forces be
accorded the utmost respect. Where a military officer is torn between obeying the
President and obeying the Senate, the Court will without hesitation affirm that the
officer has to choose the President. After all, the Constitution prescribes that it is
the President, and not the Senate, who is the commander-in-chief of the armed
forces.
At the same time, the refusal of the President to allow members of the military to
appear before Congress is still subject to judicial relief. The Constitution itself
recognizes as one of the legislature's functions is the conduct of inquiries in aid of
legislation. Inasmuch as it is ill-advised for Congress to interfere with the
President's power as commander-in-chief, it is similarly detrimental for the
President to unduly interfere with Congress's right to conduct legislative inquiries.
The impasse did not come to pass in this petition, since petitioners testified anyway
60
despite the presidential prohibition. Yet the Court is aware that with its
pronouncement today that the President has the right to require prior consent from
members of the armed forces, the clash may soon loom or actualize.
We believe and hold that our constitutional and legal order sanctions a modality by
which members of the military may be compelled to attend legislative inquiries
even if the President desires otherwise, a modality which does not offend the Chief
Executive's prerogatives as commander-in-chief. The remedy lies with the
courts.
The fact that the executive branch is an equal, coordinate branch of government to
the legislative creates a wrinkle to any basic rule that persons summoned to testify
before Congress must do so. There is considerable interplay between the
legislative and executive branches, informed by due deference and respect as to
their various constitutional functions. Reciprocal courtesy idealizes this
relationship; hence, it is only as a last resort that one branch seeks to compel the
other to a particular mode of behavior. The judiciary, the third coordinate branch of
government, does not enjoy a similar dynamic with either the legislative or
executive branches. Whatever weakness inheres on judicial power due to its
inability to originate national policies and legislation, such is balanced by the fact
that it is the branch empowered by the Constitution to compel obeisance to its
rulings by the other branches of government.
As evidenced by Arnault v. Nazareno and Bengzon v. Senate Blue Ribbon
Committee, among others, the Court has not shirked from reviewing the exercise
by Congress of its power of legislative inquiry. Arnault recognized that the
legislative power of inquiry and the process to enforce it, "is an essential and
appropriate auxiliary to the legislative function." On the other hand, Bengzon
acknowledged that the power of both houses of Congress to conduct inquiries in
aid of legislation is not "absolute or unlimited", and its exercise is circumscribed by
Section 21, Article VI of the Constitution. From these premises, the Court enjoined
the Senate Blue Ribbon Committee from requiring the petitioners in Bengzon from
testifying and producing evidence before the committee, holding that the inquiry in
question did not involve any intended legislation.
Senate affirmed both the Arnault and Bengzonrulings. It elucidated on the
constitutional scope and limitations on the constitutional power of congressional
inquiry. Thus:
As discussed in Arnault, the power of inquiry, "with process to enforce it," is
grounded on the necessity of information in the legislative process. If the
information possessed by executive officials on the operation of their offices is
necessary for wise legislation on that subject, by parity of reasoning, Congress has
the right to that information and the power to compel the disclosure thereof.
SAMMIE
As evidenced by the American experience during the so-called "McCarthy era",
however, the right of Congress to conduct inquirites in aid of legislation is, in theory,
no less susceptible to abuse than executive or judicial power. It may thus be
subjected to judicial review pursuant to the Court's certiorari powers under Section
1, Article VIII of the Constitution.
In Senate, the Court ruled that the President could not impose a blanket prohibition
barring executive officials from testifying before Congress without the President's
consent notwithstanding the invocation of executive privilege to justify such
prohibition. The Court did not rule that the power to conduct legislative inquiry ipso
facto superseded the claim of executive privilege, acknowledging instead that the
viability of executive privilege stood on a case to case basis. Should neither branch
yield to the other branch's assertion, the constitutional recourse is to the courts, as
the final arbiter if the dispute. It is only the courts that can compel, with
conclusiveness, attendance or non- attendance in legislative inquiries.
Following these principles, it is clear that if the President or the Chief of Staff
refuses to allow a member of the AFP to appear before Congress, the legislative
body seeking such testimony may seek judicial relief to compel the attendance.
Such judicial action should be directed at the heads of the executive branch or the
armed forces, the persons who wield authority and control over the actions of the
officers concerned. The legislative purpose of such testimony, as well as any
defenses against the same — whether grounded on executive privilege, national
security or similar concerns — would be accorded due judicial evaluation. All the
constitutional considerations pertinent to either branch of government may be
raised, assessed, and ultimately weighed against each other. And once the courts
speak with finality, both branches of government have no option but to comply with
the decision of the courts, whether the effect of the decision is to their liking or
disfavor.
Courts are empowered, under the constitutional principle of judicial review, to
arbitrate disputes between the legislative and executive branches of government
on the proper constitutional parameters of power. This is the fair and workable
solution implicit in the constitutional allocation of powers among the three branches
of government. The judicial filter helps assure that the particularities of each case
would ultimately govern, rather than any overarching principle unduly inclined
towards one branch of government at the expense of the other. The procedure may
not move as expeditiously as some may desire, yet it ensures thorough
deliberation of all relevant and cognizable issues before one branch is compelled
to yield to the other. Moreover, judicial review does not preclude the legislative and
executive branches from negotiating a mutually acceptable solution to the impasse.
After all, the two branches, exercising as they do functions and responsibilities that
are political in nature, are free to smooth over the thorns in their relationship with a
salve of their own choosing.
61
And if emphasis be needed, if the courts so rule, the duty falls on the
shoulders of the President, as commander-in-chief, to authorize the
appearance of the military officers before Congress. Even if the President
has earlier disagreed with the notion of officers appearing before the
legislature to testify, the Chief Executive is nonetheless obliged to comply
with the final orders of the courts.
SAMMIE
Kulayan v. Tan, GR No. 187298, July 3, 2012
WHEREFORE, the instant petition is GRANTED. Judgment is rendered
commanding respondents to desist from further proceedings in implementing
Proclamation No. 1, Series of 2009, and its Implementing Guidelines. The said
proclamation and guidelines are hereby declared NULL and VOID for having been
issued in grave abuse of discretion, amounting to lack or excess of jurisdiction.
Three members from the International Committee of the Red Cross (ICRC) were
kidnapped in the vicinity of the Provincial Capitol in Patikul, Sulu. The victims were
seized by three armed men who were later confirmed to be members of the Abu
Sayyaf Group (ASG). The leader of the alleged kidnappers was identified as Raden
Abu, a former guard at the Sulu Provincial Jail. News reports linked Abu to Albader
Parad, one of the known leaders of the Abu Sayyaf.
A task force was created by the ICRC and the Philippine National Police (PNP),
which then organized a parallel local group known as the Local Crisis Committee.
The local group, later renamed Sulu Crisis Management Committee, convened
under the leadership of respondent Abdusakur Mahail Tan, the Provincial Governor
of Sulu. Its armed forces component was headed by respondents General Juancho
Saban, and his deputy, Colonel Eugenio Clemen. The PNP component was
headed by respondent Police Superintendent Bienvenido G. Latag, the Police
Deputy Director for Operations of the Autonomous Region of Muslim Mindanao
(ARMM).
Governor Tan organized the Civilian Emergency Force (CEF), a group of armed
male civilians coming from different municipalities, who were redeployed to
surrounding areas of Patikul. The organization of the CEF was embodied in a
"Memorandum of Understanding" entered into between three parties: the provincial
government of Sulu, represented by Governor Tan; the Armed Forces of the
Philippines, represented by Gen. Saban; and the Philippine National Police,
represented by P/SUPT. Latag. The Whereas clauses of the Memorandum alluded
to the extraordinary situation in Sulu, and the willingness of civilian supporters of
the municipal mayors to offer their services in order that "the early and safe rescue
of the hostages may be achieved."
This Memorandum, which was labeled 'secret' on its all pages, also outlined the
responsibilities of each of the party signatories.
Meanwhile, Ronaldo Puno, then Secretary of the Department of the Interior and
Local Government, announced to the media that government troops had cornered
some one hundred and twenty (120) Abu Sayyaf members along with the three (3)
hostages. However, the ASG made contact with the authorities and demanded that
the military pull its troops back from the jungle area. The government troops
yielded and went back to their barracks; the Philippine Marines withdrew to their
62
camp, while police and civilian forces pulled back from the terrorists' stronghold by
ten (10) to fifteen (15) kilometers. Threatening that one of the hostages will be
beheaded, the ASG further demanded the evacuation of the military camps and
bases in the different barangays in Jolo. The authorities were given no later than
2:00 o'clock in the afternoon of 31 March 2009 to comply.
On 31 March 2009, Governor Tan issued Proclamation No. 1, Series of 2009
(Proclamation 1-09), declaring a state of emergency in the province of Sulu. It cited
the kidnapping incident as a ground for the said declaration, describing it as a
terrorist act pursuant to the Human Security Act (R.A. 9372). It also invoked
Section 465 of the Local Government Code of 1991 (R.A. 7160), which bestows on
the Provincial Governor the power to carry out emergency measures during man-
made and natural disasters and calamities, and to call upon the appropriate
national law enforcement agencies to suppress disorder and lawless violence.
In the same Proclamation, respondent Tan called upon the PNP and the CEF to set
up checkpoints and chokepoints, conduct general search and seizures including
arrests, and other actions necessary to ensure public safety.
On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to report to
respondent P/SUPT. Julasirim Kasim. Upon arriving at the police station, he was
booked, and interviewed about his relationship to Musin, Jaiton, and Julamin, who
were all his deceased relatives. Upon admitting that he was indeed related to the
three, he was detained. After a few hours, former Punong Barangay Juljahan
Awadi, Hadji Hadjirul Bambra, Abdugajir Hadjirul, as well as PO2 Marcial Hajan,
SPO3 Muhilmi Ismula,Punong Barangay Alano Mohammad and jeepney driver
Abduhadi Sabdani, were also arrested. The affidavit of the apprehending officer
alleged that they were suspected ASG supporters and were being arrested under
Proclamation 1-09. The following day, 2 April 2009, the hostage Mary Jane Lacaba
was released by the ASG.
On 4 April 2009, the office of Governor Tan distributed to civic organizations, copies
of the "Guidelines for the Implementation of Proclamation No. 1, Series of 2009
Declaring a State of Emergency in the Province of Sulu." These Guidelines
suspended all Permits to Carry Firearms Outside of Residence (PTCFORs) issued
by the Chief of the PNP, and allowed civilians to seek exemption from the gun ban
only by applying to the Office of the Governor and obtaining the appropriate
identification cards. The said guidelines also allowed general searches and
seizures in designated checkpoints and chokepoints.
On 16 April 2009, Jamar M. Kulayan, Temogen S. Tulawie, Hadji Mohammad
Yusop Ismi, Ahajan Awadi, and SPO1 Sattal H. Jadjuli, residents of Patikul, Sulu,
filed the present Petition for Certiorari and Prohibition, claiming that Proclamation
1-09 was issued with grave abuse of discretion amounting to lack or excess of
SAMMIE
jurisdiction, as it threatened fundamental freedoms guaranteed under Article III of
the 1987 Constitution.
Petitioners contend that Proclamation No. 1 and its Implementing Guidelines were
issued ultra vires, and thus null and void, for violating
Sections 1 and 18, Article VII of the Constitution, which grants the President sole
authority to exercise emergency powers and calling-out powers as the chief
executive of the Republic and commander-in-chief of the armed forces.
Additionally, petitioners claim that the Provincial Governor is not authorized by any
law to create civilian armed forces under his command, nor regulate and limit the
issuances of PTCFORs to his own private army.
Issue:
WON Proclamation No. 1 is unconstitutional (yes)
Ruling:
i. Only the President is vested with calling-out powers, as the commander-in-
chief of the Republic
Villena v. Secretary of Interior, it has already been established that there is one
repository of executive powers, and that is the President of the Republic. This
means that when Section 1, Article VII of the Constitution speaks of executive
power, it is granted to the President and no one else.
Corollarily, it is only the President, as Executive, who is authorized to exercise
emergency powers as provided under Section 23, Article VI, of the Constitution, as
well as what became known as the calling-out powers under Section 7, Article VII
thereof.
ii. The exceptional characterof Commander-in-Chief powers dictate that they
are exercised by one president
Springing from the well-entrenched constitutional precept of One President is the
notion that there are certain acts which, by their very nature, may only be
performed by the president as the Head of the State. One of these acts or
prerogatives is the bundle of Commander-in-Chief powers to which the "calling-out"
powers constitutes a portion. The President's Emergency Powers, on the other
hand, is balanced only by the legislative act of Congress, as embodied in the
second paragraph of Section 23, Article 6 of the Constitution:
Article 6, Sec. 23(2).In times of war or other national emergency, the Congress
may, by law, authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and proper to carry
out a declared national policy. Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next adjournment thereof.
63
Article 7, Sec 18.The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may call out such
armed forces to prevent or suppress lawless violence, invasion or rebellion. In case
of invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within forty-eight hours from
the proclamation of martial law or the suspension of the privilege of the writ of
habeas corpus, the President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a
call.
The power to declare a state of martial law is subject to the Supreme Court's
authority to review the factual basis thereof. By constitutional fiat, the calling-out
powers, which is of lesser gravity than the power to declare martial law, is
bestowed upon the President alone. As noted in Villena, " (t)here are certain
constitutional powers and prerogatives of the Chief Executive of the Nation which
must be exercised by him in person and no amount of approval or ratification will
validate the exercise of any of those powers by any other person. Such, for
instance, is his power to suspend the writ of habeas corpus and proclaim martial
law
Indeed, while the President is still a civilian, Article II, Section 3of the Constitution
mandates that civilian authority is, at all times, supreme over the military, making
the civilian president the nation's supreme military leader. The net effect of Article
II, Section 3, when read with Article VII, Section 18, is that a civilian President is
the ceremonial, legal and administrative head of the armed forces. The Constitution
does not require that the President must be possessed of military training and
talents, but as Commander-in-Chief, he has the power to direct military operations
and to determine military strategy. Normally, he would be expected to delegate the
actual command of the armed forces to military experts; but the ultimate power is
his. As Commander-in-Chief, he is authorized to direct the movements of the naval
and military forces placed by law at his command, and to employ them in the
manner he may deem most effectual.
Under the foregoing provisions, Congress may revoke such proclamation or
suspension and the Court may review the sufficiency of the factual basis thereof.
SAMMIE
However, there is no such equivalent provision dealing with the revocation or
review of the President's action to call out the armed forces. The distinction places
the calling out power in a different category from the power to declare martial law
and the power to suspend the privilege of the writ ofhabeas corpus, otherwise, the
framers of the Constitution would have simply lumped together the three powers
and provided for their revocation and review without any qualification.
In addition to being the commander-in-chief of the armed forces, the President also
acts as the leader of the country's police forces, under the mandate of Section 17,
Article VII of the Constitution, which provides that, "The President shall have
control of all the executive departments, bureaus, and offices. He shall ensure that
the laws be faithfully executed." During the deliberations of the Constitutional
Commission on the framing of this provision, Fr. Bernas defended the retention of
the word "control," employing the same rationale of singularity of the office of the
president, as the only Executive under the presidential form of government.
In the discussions of the Constitutional Commission regarding the above
provision it is clear that the framers never intended for local chief executives
to exercise unbridled control over the police in emergency situations. This is
without prejudice to their authority over police units in their jurisdiction as provided
by law, and their prerogative to seek assistance from the police in day to day
situations, as contemplated by the Constitutional Commission. But as a civilian
agency of the government, the police, through the NAPOLCOM, properly comes
within, and is subject to, the exercise by the President of the power of executive
control.
iii. The provincial governor does not possess the same calling-out powers as
the President
Given the foregoing, respondent provincial governor is not endowed with the
power to call upon the armed forces at his own bidding. In issuing the
assailed proclamation, Governor Tan exceeded his authority when he
declared a state of emergency and called upon the Armed Forces, the police,
and his own Civilian Emergency Force. The calling-out powers contemplated
under the Constitution is exclusive to the President. An exercise by another
official, even if he is the local chief executive, is ultra vires, and may not be justified
by the invocation of Section 465 of the Local Government Code, as will be
discussed subsequently.
Respondents, however, justify this stance by stating that nowhere in the seminal
case of David v. Arroyo, which dealt squarely with the issue of the declaration of a
state of emergency, does it limit the said authority to the President alone.
Respondents contend that the ruling in David expressly limits the authority to
declare a national emergency, a condition which covers the entire country, and
does not include emergency situations in local government units. This claim is
64
belied by the clear intent of the framers that in all situations involving threats to
security, such as lawless violence, invasion or rebellion, even in localized areas, it
is still the President who possesses the sole authority to exercise calling-out
powers.
III. Section 465 of the Local Government Code cannot be invoked to justify
the powers enumerated under Proclamation 1-09
Respondent governor characterized the kidnapping of the three ICRC workers as a
terroristic act, and used this incident to justify the exercise of the powers
enumerated under Proclamation 1-09. He invokes Section 465, in relation to
Section 16, of the Local Government Code, which purportedly allows the governor
to carry out emergency measures and call upon the appropriate national law
enforcement agencies for assistance. But a closer look at the said proclamation
shows that there is no provision in the Local Government Code nor in any law on
which the broad and unwarranted powers granted to the Governor may be based.
Petitioners cite the implementation of "General Search and Seizure including
arrests in the pursuit of the kidnappers and their supporters," as being violative of
the constitutional proscription on general search warrants and general seizures.
Petitioners rightly assert that this alone would be sufficient to render the
proclamation void, as general searches and seizures are proscribed, for being
violative of the rights enshrined in the Bill of Rights.
In fact, respondent governor has arrogated unto himself powers exceeding even
the martial law powers of the President, because as the Constitution itself declares,
"A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize
the conferment of the jurisdiction on military courts and agencies over civilians
where civil courts are able to function, nor automatically suspend the privilege of
the writ."
We find, and so hold, that there is nothing in the Local Government Code which
justifies the acts sanctioned under the said Proclamation. Not even Section 465 of
the said Code, in relation to Section 16,
Respondents cannot rely on paragraph 1, subparagraph (vii) of Article 465 above,
as the said provision expressly refers to calamities and disasters, whether man-
made or natural. The governor, as local chief executive of the province, is certainly
empowered to enact and implement emergency measures during these
occurrences. But the kidnapping incident in the case at bar cannot be considered
as a calamity or a disaster. Respondents cannot find any legal mooring under this
provision to justify their actions.
SAMMIE
Paragraph 2, subparagraph (vi) of the same provision is equally inapplicable for
two reasons. First, the Armed Forces of the Philippines does not fall under the
category of a "national law enforcement agency," to which the National Police
Commission (NAPOLCOM) and its departments belong. Its mandate is to uphold
the sovereignty of the Philippines, support the Constitution, and defend the
Republic against all enemies, foreign and domestic. Its aim is also to secure the
integrity of the national territory. Second, there was no evidence or even an
allegation on record that the local police forces were inadequate to cope with the
situation or apprehend the violators. If they were inadequate, the recourse of the
provincial governor was to ask the assistance of the Secretary of Interior and Local
Government, or such other authorized officials, for the assistance of national law
enforcement agencies.
The Local Government Code does not involve the diminution of central powers
inherently vested in the National Government, especially not the prerogatives
solely granted by the Constitution to the President in matters of security and
defense.
The intent behind the powers granted to local government units is fiscal, economic,
and administrative in nature. The Code is concerned only with powers that would
make the delivery of basic services more effective to the constituents, and should
not be unduly stretched to confer calling-out powers on local executives.
In the sponsorship remarks for Republic Act 7160, it was stated that the devolution
of powers is a step towards the autonomy of local government units (LGUs), and is
actually an experiment whose success heavily relies on the power of taxation of
the LGUs. The underpinnings of the Code can be found in Section 5, Article II of
the 1973 Constitution, which allowed LGUs to create their own sources of revenue.
During the interpellation made by Mr. Tirol addressed to Mr. de Pedro, the latter
emphasized that "Decentralization is an administrative concept and the process of
shifting and delegating power from a central point to subordinate levels to promote
independence, responsibility, and quicker decision-making. . . . (I)t does not
involve any transfer of final authority from the national to field levels, nor
diminution of central office powers and responsibilities. Certain government
agencies, including the police force, are exempted from the decentralization
process because their functions are not inherent in local government units."
IV. Provincial governor is not authorized to convene CEF
Pursuant to the national policy to establish one police force, the organization of
private citizen armies is proscribed as described Section 24 of Article XVIII of the
Constitution
Additionally, Section 21 of Article XI states that, "The preservation of peace and
order within the regions shall be the responsibility of the local police agencies
which shall be organized, maintained, supervised, and utilized in accordance with
65
applicable laws. The defense and security of the regions shall be the responsibility
of the National Government."
Thus, with the discussions in the Constitutional Commission as guide, the creation
of the Civilian Emergency Force (CEF) in the present case, is also invalid.
SAMMIE
David, et al. v. Macapagal-Arroyo, GR No. 171396, May 3, 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.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and
warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in
the absence of proof that these petitioners were committing acts constituting
lawless violence, invasion or rebellion and violating BP 880; the imposition of
standards on media or any form of prior restraint on the press, as well as the
warrantless search of the Tribune offices and whimsical seizure of its articles for
publication and other materials, are declared UNCONSTITUTIONAL.
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa
People Power I, President Arroyo issued PP 1017 declaring a state of national
emergency. On the same day, the President issued G.O. No. 5 implementing PP
1017, calling upon the armed forces (AFP) and the Philippine National Police
(PNP), to prevent and suppress acts of terrorism and lawless violence in the
country.
Followed after the issuance of PP 1017 and G.O. No. 5:
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."
In the midst of the proclamation of Arroyo, despite the revocation of the permits of
assemblies and rallies, groups of protesters (members of Kilusang Mayo Uno
66 SAMMIE

[KMU] and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-

KMU]), marched from various parts of Metro Manila with the intention of converging A. PROCEDURAL
at the EDSA shrine. Those who were already near the EDSA site were violently First, we must resolve the procedural roadblocks.
dispersed by huge clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear gas to stop and break
up the marching groups, and scatter the massed participants. The same police
action was used against the protesters marching forward to Cubao, Quezon City
and to the corner of Santolan Street and EDSA. That same evening, hundreds of
riot policemen broke up an EDSA celebration rally held along Ayala Avenue and
Paseo de Roxas Street in Makati City. During the dispersal of the rallyists along
EDSA, police arrested (without warrant) petitioner Randolf S. David, a professor at
the University of the Philippines and newspaper columnist. Also arrested was his
companion, Ronald Llamas, president of party-list Akbayan.

Operatives of the Criminal Investigation and Detection Group (CIDG) of the PNP,
on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila.
The raiding team confiscated news stories by reporters, documents, pictures, and
mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City
were stationed inside the editorial and business offices of the newspaper; while
policemen from the Manila Police District were stationed outside the building.

A few minutes after the search and seizure at theDaily Tribune offices, the police
surrounded the premises of another pro-opposition paper, Malaya, and its sister
publication, the tabloid Abante.

Seven petitions were filed challenging the constitutionality of PP 1017 and G.O.
No. 5 were filed with this Court against the above-named respondents. Three (3) of
these petitions impleaded President Arroyo as respondent.

Issue:
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
67
Ampatuan v. Puno, GR No. 190259, June 7, 2011
WHEREFORE, the petition is DISMISSED for lack of merit.
On November 24, 2009, the day after the gruesome massacre of 57 men and
women, including some news reporters, then President Gloria Macapagal-Arroyo
issued Proclamation 1946, placing "the Provinces of Maguindanao and Sultan
Kudarat and the City of Cotabato under a state of emergency." She directed the
Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) "to
undertake such measures as may be allowed by the Constitution and by law to
prevent and suppress all incidents of lawless violence" in the named places.
Moreover, President issued Administrative Order 273-A (AO 273-A) amending the
former, by "delegating" instead of "transferring" supervision of the ARMM to the
DILG.
Claiming that the President's issuances encroached on the ARMM's autonomy,
petitioners Datu Zaldy Uy Ampatuan, Ansaruddin Adiong, and Regie Sahali-
Generale, all ARMM officials, 4 filed this petition for prohibition under Rule 65. They
alleged that the proclamation and the orders empowered the DILG Secretary to
take over ARMM's operations and seize the regional government's powers, in
violation of the principle of local autonomy under Republic Act 9054 (also known as
the Expanded ARMM Act) and the Constitution. The President gave the DILG
Secretary the power to exercise, not merely administrative supervision, but control
over the ARMM since the latter could suspend ARMM officials and replace them.
Petitioner ARMM officials claimed that the President had no factual basis for
declaring a state of emergency, especially in the Province of Sultan Kudarat and
the City of Cotabato, where no critical violent incidents occurred. The deployment
of troops and the taking over of the ARMM constitutes an invalid exercise of the
President's emergency powers.
Issues:
1. Whether or not Proclamation 1946 and AOs 273 and 273-A violate the
principle of local autonomy under Section 16, Article X of the Constitution,
and Section 1, Article V of the Expanded ARMM Organic Act; (NO)
2. Whether or not President Arroyo invalidly exercised emergency powers
when she called out the AFP and the PNP to prevent and suppress all
incidents of lawless violence in Maguindanao, Sultan Kudarat, and Cotabato
City; and (NO)
3. Whether or not the President had factual bases for her actions. (YES)
Ruling:
1. Whether or not Proclamation 1946 and AOs 273 and 273-A violate the
principle of local autonomy under Section 16, Article X of the Constitution,
and Section 1, Article V of the Expanded ARMM Organic Act;
SAMMIE
The claim of petitioners that the subject proclamation and administrative orders
violate the principle of local autonomy is anchored on the allegation that, through
them, the President authorized the DILG Secretary to take over the operations of
the ARMM and assume direct governmental powers over the region.
But, in the first place, the DILG Secretary did not take over control of the powers of
the ARMM. After law enforcement agents took respondent Governor of ARMM into
custody for alleged complicity in the Maguindanao massacre, the ARMM Vice-
Governor, petitioner Ansaruddin Adiong, assumed the vacated post on December
10, 2009 pursuant to the rule on succession found in Article VII, Section 12, of RA
9054. In turn, Acting Governor Adiong named the then Speaker of the ARMM
Regional Assembly, petitioner Sahali-Generale, Acting ARMM Vice-Governor. In
short, the DILG Secretary did not take over the administration or operations of the
ARMM.
2. Whether or not President Arroyo invalidly exercised emergency powers
when she called out the AFP and the PNP to prevent and suppress all
incidents of lawless violence in Maguindanao, Sultan Kudarat, and Cotabato
City; and
Petitioners contend that the President unlawfully exercised emergency powers
when she ordered the deployment of AFP and PNP personnel in the places
mentioned in the proclamation. But such deployment is not by itself an exercise of
emergency powers as understood under Section 23 (2), Article VI of the
Constitution, which provides:
SECTION 23.. . . (2) In times of war or other national emergency, the
Congress may, by law, authorize the President, for a limited period and
subject to such restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease upon the
next adjournment thereof.
The President did not proclaim a national emergency, only a state of emergency in
the three places mentioned. And she did not act pursuant to any law enacted by
Congress that authorized her to exercise extraordinary powers. The calling out of
the armed forces to prevent or suppress lawless violence in such places is a power
that the Constitution directly vests in the President. She did not need a
congressional authority to exercise the same.
3. Whether or not the President had factual bases for her actions.
68
The President's call on the armed forces to prevent or suppress lawless violence
springs from the power vested in her under Section 18, Article VII of the
Constitution, which provides.
SECTION 18. The President shall be the Commander- in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may call
out such armed forces to prevent or suppress lawless violence, invasion or
rebellion. . . .
Here, petitioners failed to show that the declaration of a state of emergency in the
Provinces of Maguindanao, Sultan Kudarat and Cotabato City, as well as the
President's exercise of the "calling out" power had no factual basis. They simply
alleged that, since not all areas under the ARMM were placed under a state of
emergency, it follows that the take over of the entire ARMM by the DILG Secretary
had no basis too.
But, apart from the fact that there was no such take over to begin with, the OSG
also clearly explained the factual bases for the President's decision to call out the
armed forces, as follows:
The Ampatuan and Mangudadatu clans are prominent families engaged in
the political control of Maguindanao. It is also a known fact that both families
have an arsenal of armed followers who hold elective positions in various
parts of the ARMM and the rest of Mindanao.
Considering the fact that the principal victims of the brutal bloodshed are
members of the Mangudadatu family and the main perpetrators of the brutal
killings are members and followers of the Ampatuan family, both the military
and police had to prepare for and prevent reported retaliatory actions from
the Mangudadatu clan and additional offensive measures from the Ampatuan
clan.
The Ampatuan forces are estimated to be approximately two thousand four
hundred (2,400) persons, equipped with about two thousand (2,000) firearms,
about four hundred (400) of which have been accounted for. . . .
As for the Mangudadatus, they have an estimated one thousand eight
hundred (1,800) personnel, with about two hundred (200) firearms. . . .
Apart from their own personal forces, both clans have Special Civilian
Auxiliary Army (SCAA) personnel who support them: about five hundred
(500) for the Ampatuans and three hundred (300) for the Mangudadatus.
SAMMIE
What could be worse than the armed clash of two warring clans and their
armed supporters, especially in light of intelligence reports on the potential
involvement of rebel armed groups (RAGs).
One RAG was reported to have planned an attack on the forces of Datu Andal
Ampatuan, Sr. to show support and sympathy for the victims. The said attack
shall worsen the age- old territorial dispute between the said RAG and the
Ampatuan family.
On the other hand, RAG faction which is based in Sultan Kudarat was
reported to have received three million pesos (P3,000,000.00) from Datu
Andal Ampatuan, Sr. for the procurement of ammunition. The said faction is a
force to reckon with because the group is well capable of launching a series
of violent activities to divert the attention of the people and the authorities
away from the multiple murder case. . . .
In addition, two other factions of a RAG are likely to support the
Mangudadatu family. The Cotabato-based faction has the strength of about
five hundred (500) persons and three hundred seventy-two (372) firearms
while the Sultan Kudarat- based faction has the strength of about four
hundred (400) persons and three hundred (300) firearms and was reported to
be moving towards Maguindanao to support the Mangudadatu clan in its
armed fight against the Ampatuans.
In other words, the imminence of violence and anarchy at the time the President
issued Proclamation 1946 was too grave to ignore and she had to act to prevent
further bloodshed and hostilities in the places mentioned. Progress reports also
indicated that there was movement in these places of both high-powered firearms
and armed men sympathetic to the two clans. Thus, to pacify the people's fears
and stabilize the situation, the President had to take preventive action. She called
out the armed forces to control the proliferation of loose firearms and dismantle the
armed groups that continuously threatened the peace and security in the affected
places.
Notably, the present administration of President Benigno Aquino III has not
withdrawn the declaration of a state of emergency under Proclamation 1946. It has
been reported that the declaration would not be lifted soon because there is still a
need to disband private armies and confiscate loose firearms. Apparently, the
presence of troops in those places is still necessary to ease fear and tension
among the citizenry and prevent and suppress any violence that may still erupt,
despite the passage of more than a year from the time of the Maguindanao
massacre.
Since petitioners are not able to demonstrate that the proclamation of state of
emergency in the subject places and the calling out of the armed forces to prevent
69 SAMMIE

or suppress lawless violence there have clearly no factual bases, the Court must Fortun, et al. v. Gloria Macapagal- Arroyo, GR No. 190293, 20 March 2012
respect the President's actions.
WHEREFORE, the Court DISMISSES the consolidated petitions on the ground
that the same have become moot and academic.

On November 23, 2009 heavily armed men, believed led by the ruling Ampatuan
family, gunned down and buried under shoveled dirt 57 innocent civilians on a
highway in Maguindanao. In response to this carnage, on November 24 President
Arroyo issued Presidential Proclamation 1946, declaring a state of emergency in
Maguindanao, Sultan Kudarat, and Cotabato City to prevent and suppress similar
lawless violence in Central Mindanao.

Believing that she needed greater authority to put order in Maguindanao and
secure it from large groups of persons that have taken up arms against the
constituted authorities in the province, on December 4, 2009 President Arroyo
issued Presidential Proclamation 1959 declaring martial law and suspending the
privilege of the writ of habeas corpus in that province except for identified areas of
the Moro Islamic Liberation Front.

Two days later or on December 6, 2009 President Arroyo submitted her report to
Congress in accordance with Section 18, Article VII of the 1987 Constitution which
required her, within 48 hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus, to submit to that body a
report in person or in writing of her action.

In her report, President Arroyo said that she acted based on her finding that
lawless men have taken up arms in Maguindanao and risen against the
government. The President described the scope of the uprising, the nature,
quantity, and quality of the rebels' weaponry, the movement of their heavily armed
units in strategic positions, the closure of the Maguindanao Provincial Capitol,
Ampatuan Municipal Hall, Datu Unsay Municipal Hall, and 14 other municipal halls,
and the use of armored vehicles, tanks, and patrol cars with unauthorized "PNP/
Police" markings.

On December 9, 2009 Congress, in joint session, convened pursuant to Section

18, Article VII of the 1987 Constitution to review the validity of the President's
action. But, two days later or on December 12 before Congress could act, the
President issued Presidential Proclamation 1963, lifting martial law and restoring
the privilege of the writ of habeas corpus in Maguindanao.

Petitioners Philip Sigfrid A. Fortun and the other petitioners in G.R. 190293,
190294, 190301, 190302, 190307, 190356, and 190380 brought the present
actions to challenge the constitutionality of President Arroyo's Proclamation 1959
affecting Maguindanao. But, given the prompt lifting of that proclamation before
Congress could review it and before any serious question affecting the rights and
70
liberties of Maguindanao's inhabitants could arise, the Court deems any review of
its constitutionality the equivalent of beating a dead horse.
Issue:
1. WON the petitioners can still challenge the constitutionality of the
proclamation NO. 1959 after it has been promptly lifted by the president.
(NO)
Ruling:
1. WON the petitioners can still challenge the constitutionality of the
proclamation NO. 1959 after it has been promptly lifted by the president.
(NO)
Justifiable controversy
President Arroyo withdrew her proclamation of martial law and suspension of the
privilege of the writ of habeas corpus before the joint houses of Congress could
fulfill their automatic duty to review and validate or invalidate the same. The
pertinent provisions of Section 18, Article VII of the 1987 Constitution state:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within forty-eight hours from
the proclamation of martial law or the suspension of the privilege of writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it. DCTSEA
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without any need
of a call.
Although the above vests in the President the power to proclaim martial law or
suspend the privilege of the writ of habeas corpus, he shares such power with the
Congress. Thus:
1. The President's proclamation or suspension is temporary, good for only 60
days;
2. He must, within 48 hours of the proclamation or suspension, report his
action in person or in writing to Congress;
SAMMIE
3. Both houses of Congress, if not in session must jointly convene within 24
hours of the proclamation or suspension for the purpose of reviewing its
validity; and
4. The Congress, voting jointly, may revoke or affirm the President's
proclamation or suspension, allow their limited effectivity to lapse, or extend
the same if Congress deems warranted.
It is evident that under the 1987 Constitution the President and the Congress act in
tandem in exercising the power to proclaim martial law or suspend the privilege of
the writ of habeas corpus. They exercise the power, not only sequentially, but in a
sense jointly since, after the President has initiated the proclamation or the
suspension, only the Congress can maintain the same based on its own evaluation
of the situation on the ground, a power that the President does not have.
Consequently, although the Constitution reserves to the Supreme Court the power
to review the sufficiency of the factual basis of the proclamation or suspension in a
proper suit, it is implicit that the Court must allow Congress to exercise its own
review powers, which is automatic rather than initiated. Only when Congress
defaults in its express duty to defend the Constitution through such review should
the Supreme Court step in as its final rampart. The constitutional validity of the
President's proclamation of martial law or suspension of the writ of habeas corpus
is first a political question in the hands of Congress before it becomes ajusticiable
one in the hands of the Court.
Here, President Arroyo withdrew Proclamation 1959 before the joint houses of
Congress, which had in fact convened, could act on the same. Consequently, the
petitions in these cases have become moot and the Court has nothing to review.
The lifting of martial law and restoration of the privilege of the writ of habeas corpus
in Maguindanao was a supervening event that obliterated any justiciable
controversy.
Review of factual basis
Since President Arroyo withdrew her proclamation of martial law and suspension of
the privilege of the writ of habeas corpus in just eight days, they have not been
meaningfully implemented. The military did not take over the operation and control
of local government units in Maguindanao. The President did not issue any law or
decree affecting Maguindanao that should ordinarily be enacted by Congress. No
indiscriminate mass arrest had been reported. Those who were arrested during the
period were either released or promptly charged in court. Indeed, no petition for
habeas corpus had been filed with the Court respecting arrests made in those eight
days. The point is that the President intended by her action to address an uprising
in a relatively small and sparsely populated province. In her judgment, the rebellion
was localized and swiftly disintegrated in the face of a determined and amply
armed government presence.
71 SAMMIE

Notably, under Section 18, Article VII of the 1987 Constitution, the Court has only
30 days from the filing of an appropriate proceeding to review the sufficiency of the
factual basis of the proclamation of martial law or the suspension of the privilege of
the writ of habeas corpus. Thus —
The Supreme Court may review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus or the extension thereof,
and must promulgate its decision thereon within thirty days from its filing.
(Emphasis supplied)
Of course, the Court has in exceptional cases passed upon issues that ordinarily
would have been regarded as moot. But the present cases do not present sufficient
basis for the exercise of the power of judicial review. The proclamation of martial
law and the suspension of the privilege of the writ of habeas corpus in this case,
unlike similar Presidential acts in the late 60s and early 70s, appear more like
saber-rattling than an actual deployment and arbitrary use of political power.

More than two years have passed since petitioners filed the present actions to
annul Proclamation 1959. When the Court did not decide it then, it actually opted
for a default as was its duty, the question having become moot and academic.

Justice Carpio of course points out that should the Court regard the powers of the
President and Congress respecting the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus as sequential or joint, it
would be impossible for the Court to exercise its power of review within the 30 days
given it.

But those 30 days, fixed by the Constitution, should be enough for the Court to
fulfill its duty without pre-empting congressional action. Section 18, Article VII,
requires the President to report his actions to Congress, in person or in writing,
within 48 hours of such proclamation or suspension. In turn, the Congress is
required to convene without need of a call within 24 hours following the President's
proclamation or suspension. Clearly, the Constitution calls for quick action on the
part of the Congress. Whatever form that action takes, therefore, should give the
Court sufficient time to fulfill its own mandate to review the factual basis of the
proclamation or suspension within 30 days of its issuance.

If the Congress procrastinates or altogether fails to fulfill its duty respecting the
proclamation or suspension within the short time expected of it, then the Court can
step in, hear the petitions challenging the President's action, and ascertain if it has
a factual basis. If the Court finds none, then it can annul the proclamation or the
suspension. But what if the 30 days given it by the Constitution proves inadequate?
Justice Carpio himself offers the answer in his dissent: that 30-day period does not
operate to divest this Court of its jurisdiction over the case. The settled rule is that
jurisdiction once acquired is not lost until the case has been terminated.

The problem in this case is that the President aborted the proclamation of martial
law and the suspension of the privilege of the writ of habeas corpus in
Maguindanao in just eight days. In a real sense, the proclamation and the
suspension never took off. The Congress itself adjourned without touching the
matter, it having become moot and academic.
72
Lagman v. Medialdea, July 4, 2017, G.R. No. 231658
WHEREFORE, the Court FINDS sufficient factual bases for the issuance of
Proclamation No. 216 and DECLARES it as CONSTITUTIONAL. Accordingly, the
consolidated Petitions are hereby DISMISSED.
May 23, 2017, and for a period not exceeding 60 days, President Rodrigo Roa
Duterte issued Proclamation No. 216 declaring a state of martial law and
suspending the privilege of the writ of habeas corpus in the whole of Mindanao.
Within the timeline set by Section 18, Article VII of the Constitution, the President
submitted to Congress on May 25, 2017, a written Report on the factual basis of
Proclamation No. 216.
The President went on to explain that on May 23, 2017, a government operation to
capture the high-ranking officers of the Abu Sayyaf Group (ASG) and the Maute
Group was conducted. These groups, which have been unleashing havoc in
Mindanao, however, confronted the government operation by intensifying their
efforts at sowing violence aimed not only against the government authorities and its
facilities but likewise against civilians and their properties. As narrated in the
President's Report.
In particular, the President chronicled in his Report the events which took place on
May 23, 2017 in Marawi City which impelled him to declare a state of martial law
and suspend the privilege of writ of habeas corpus.
In addition to the Report, representatives from the Executive Department, the
military and police authorities conducted briefings with the Senate and the House
of Representatives relative to the declaration of martial law.
After the submission of the Report and the briefings, the Senate issued P.S.
Resolution No. 388 expressing full support to the martial law proclamation and
finding Proclamation No. 216 "to be satisfactory, constitutional and in accordance
with the law." In the same Resolution, the Senate declared that it found "no
compelling reason to revoke the same."
Petitioners claims that the declaration of martial law has no sufficient factual basis
because there is no rebellion or invasion in Marawi City or in any part of Mindanao.
It argues that acts of terrorism in Mindanao do not constitute rebellion 12 since
there is no proof that its purpose is to remove Mindanao or any part thereof from
allegiance to the Philippines, its laws, or its territory.
Issues:
1. Locus standi of petitioners.
SAMMIE
2. Whether or not the petitions are the "appropriate proceeding" covered by
paragraph 3, Section 18, Article VII of the Constitution sufficient to invoke
the mode of review required by the Court.
3. The power of the Court to review the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ of
habeas corpus under Section 18, Article VII of the 1987 Constitution is
independent of the actions taken by Congress.
4. The judicial power to review the sufficiency of factual basis of the
declaration of martial law or the suspension of the privilege of the writ of
habeas corpus does not extend to the calibration of the President's decision
of which among his graduated powers he will avail of in a given situation.
5. Whether or not Proclamation No. 216 may be considered vague and thus
void because of (a) its inclusion of "other rebel groups"; and (b) the absence
of any guideline specifying its actual operational parameters within the
entire Mindanao region.
6. Whether or not nullifying Proclamation No. 216 will (a) have the effect of
recalling Proclamation No. 55; or (b) also nullify the acts of the President in
calling out the armed forces to quell lawless violence in Marawi and other
parts of the Mindanao region.
7. The Scope of the Power to Review.
8. The parameters for determining the sufficiency of the factual basis for the
declaration of martial law and/or the suspension of the privilege of the writ of
habeas corpus.
Ruling:
1. Locus standi of petitioners.
Petitioners in the Cullamat Petition claim to be "suing in their capacities as citizens
of the Republic;" similarly, petitioners in the Mohamad Petition all claim to be
"Filipino citizens, all women, all of legal [age], and residents of Marawi City." In the
Lagman Petition, however, petitioners therein did not categorically mention that
they are suing as citizens but merely referred to themselves as duly elected
Representatives. That they are suing in their official capacities as Members of
Congress could have elicited a vigorous discussion considering the issuance by
the House of Representatives of House Resolution No. 1050 expressing full
support to President Duterte and finding no reason to revoke Proclamation No.
216. By such resolution, the House of Representatives is declaring that it finds no
reason to review the sufficiency of the factual basis of the martial law declaration,
which is in direct contrast to the views and arguments being espoused by the
petitioners in the Lagman Petition. Considering, however, the trend towards
relaxation of the rules on legal standing, as well as the transcendental issues
involved in the present Petitions, the Court will exercise judicial self-restraint and
will not venture into this matter. After all, "the Court is not entirely without discretion
to accept a suit which does not satisfy the requirements of a [bona fide] case or of
standing. Considerations paramount to [the requirement of legal standing] could
73
compel assumption of jurisdiction." In any case, the Court can take judicial
cognizance of the fact that petitioners in the Lagman Petition are all citizens of the
Philippines since Philippine citizenship is a requirement for them to be elected as
representatives. We will therefore consider them as suing in their own behalf as
citizens of this country. Besides, respondents did not question petitioners' legal
standing.
2. Whether or not the petitions are the "appropriate proceeding" covered by
paragraph 3, Section 18, Article VII of the Constitution sufficient to invoke
the mode of review required by the Court.
During the oral argument, the petitioners theorized that the jurisdiction of this Court
under the third paragraph of Section 18, Article VII is sui generis. It is a special and
specific jurisdiction of the Supreme Court different from those enumerated in
Sections 1 and 5 of Article VIII.
The Court agrees.
a) Jurisdiction must be specifically conferred by the Constitution or by law.
It is settled that jurisdiction over the subject matter is conferred only by the
Constitution or by the law. Unless jurisdiction has been specifically conferred by the
Constitution or by some legislative act, no body or tribunal has the power to act or
pass upon a matter brought before it for resolution. It is likewise settled that in the
absence of a clear legislative intent, jurisdiction cannot be implied from the
language of the Constitution or a statute. It must appear clearly from the law or it
will not be held to exist.
A plain reading of the afore-quoted Section 18, Article VII reveals that it specifically
grants authority to the Court to determine the sufficiency of the factual basis of the
proclamation of martial law or suspension of the privilege of the writ of habeas
corpus
b) "In an appropriate proceeding" does not refer to a petition for certiorari filed
under Section 1 or 5 of Article VIII.
It could not have been the intention of the framers of the Constitution that the
phrase "in an appropriate proceeding" would refer to a Petition for Certiorari
pursuant to Section 1 or Section 5 of Article VIII. The standard of review in a
petition for certiorari is whether the respondent has committed any grave abuse of
discretion amounting to lack or excess of jurisdiction in the performance of his or
her functions. Thus, it is not the proper tool to review the sufficiency of the factual
basis of the proclamation or suspension. It must be emphasized that under Section
18, Article VII, the Court is tasked to review the sufficiency of the factual basis of
the President's exercise of emergency powers. Put differently, if this Court applies
SAMMIE
the standard of review used in a petition for certiorari, the same would emasculate
its constitutional task under Section 18, Article VII.
c) Purpose/significance of Section 18, Article VII is to constitutionalize the pre-
Marcos martial law ruling in In the Matter of the Petition for Habeas Corpus of
Lansang.
The third paragraph of Section 18, Article VII was inserted by the framers of the
1987 Constitution to constitutionalize the pre-Marcos martial law ruling of this Court
in In the Matter of the Petition for Habeas Corpus of Lansang, to wit: that the
factual basis of the declaration of martial law or the suspension of the privilege of
the writ of habeas corpus is not a political question but precisely within the ambit of
judicial review.
"In determining the meaning, intent, and purpose of a law or constitutional
provision, the history of the times out of which it grew and to which it may be
rationally supposed to bear some direct relationship, the evils intended to be
remedied, and the good to be accomplished are proper subjects of inquiry."
To recall, the Court held in the 1951 case of Montenegro v. Castañeda that the
authority to decide whether there is a state of rebellion requiring the suspension of
the privilege of the writ of habeas corpus is lodged with the President and his
decision thereon is final and conclusive upon the courts. This ruling was reversed
in the 1971 case of Lansang where it was held that the factual basis of the
declaration of martial law and the suspension of the privilege of the writ of habeas
corpus is not a political question and is within the ambit of judicial review. However,
in 1983, or after the declaration of martial law by former President Ferdinand E.
Marcos, the Court, in Garcia- Padilla v. Enrile , abandoned the ruling in Lansang
and reverted to Montenegro. According to the Supreme Court, the constitutional
power of the President to suspend the privilege of the writ of habeas corpus is not
subject to judicial inquiry.
Thus, by inserting Section 18 in Article VII which allows judicial review of the
declaration of martial law and suspension of the privilege of the writ of habeas
corpus, the framers of the 1987 Constitution in effect constitutionalized and
reverted to the Lansang doctrine.
d) Purpose of Section 18, Article VII is to provide additional safeguard against
possible abuse by the President on the exercise of the extraordinary powers.
Section 18, Article VII is meant to provide additional safeguard against possible
abuse by the President in the exercise of his power to declare martial law or
suspend the privilege of the writ of habeas corpus. Reeling from the aftermath of
the Marcos martial law, the framers of the Constitution deemed it wise to insert the
now third paragraph of Section 18 of Article VII. 99 This is clear from the records of
74
the Constitutional Commission when its members were deliberating on whether the
President could proclaim martial law even without the concurrence of Congress.
To give more teeth to this additional safeguard, the framers of the 1987
Constitution not only placed the President's proclamation of martial law or
suspension of the privilege of the writ of habeas corpus within the ambit of judicial
review, it also relaxed the rule on standing by allowing any citizen to question
before this Court the sufficiency of the factual basis of such proclamation or
suspension. Moreover, the third paragraph of Section 18, Article VII veritably
conferred upon any citizen a demandable right to challenge the sufficiency of the
factual basis of said proclamation or suspension. It further designated this Court as
the reviewing tribunal to examine, in an appropriate proceeding, the sufficiency of
the factual basis and to render its decision thereon within a limited period of 30
days from date of filing.
e) Purpose of Section 18, Article VII is to curtail the extent of the powers of the
President.
The most important objective, however, of Section 18, Article VII is the curtailment
of the extent of the powers of the Commander-in-Chief. This is the primary
reason why the provision was not placed in Article VIII or the Judicial Department
but remained under Article VII or the Executive Department.
During the closing session of the Constitutional Commission's deliberations,
President Cecilia Muñoz Palma expressed her sentiments on the 1987
Constitution. She said:
The executive power is vested in the President of the Philippines elected by the
people for a six-year term with no reelection for the duration of his/her life. While
traditional powers inherent in the office of the President are granted,
nonetheless for the first time, there are specific provisions which curtail the
extent of such powers. Most significant is the power of the Chief Executive to
suspend the privilege of the writ of habeas corpus or proclaim martial law.
The flagrant abuse of that power of the Commander-in-Chief by Mr. Marcos caused
the imposition of martial law for more than eight years and the suspension of the
privilege of the writ even after the lifting of martial law in 1981. The new
Constitution now provides that those powers can be exercised only in two cases,
invasion or rebellion when public safety demands it, only for a period not exceeding
60 days, and reserving to Congress the power to revoke such suspension or
proclamation of martial law which congressional action may not be revoked by the
President. More importantly, the action of the President is made subject to judicial
review, thereby again discarding jurisprudence which render[s] the executive action
a political question and beyond the jurisdiction of the courts to adjudicate.
SAMMIE
For the first time, there is a provision that the state of martial law does not suspend
the operation of the Constitution nor abolish civil courts or legislative assemblies,
or vest jurisdiction to military tribunals over civilians, or suspend the privilege of the
writ. Please forgive me if, at this point, I state that this constitutional provision
vindicates the dissenting opinions I have written during my tenure in the Supreme
Court in the martial law cases.
f) To interpret "appropriate proceeding" as filed under Section 1 of Article VIII would
be contrary to the intent of the Constitution.
To conclude that the "appropriate proceeding" refers to a Petition for Certiorari filed
under the expanded jurisdiction of this Court would, therefore, contradict the clear
intention of the framers of the Constitution to place additional safeguards against
possible martial law abuse for, invariably, the third paragraph of Section 18, Article
VII would be subsumed under Section 1 of Article VIII. In other words, the framers
of the Constitution added the safeguard under the third paragraph of Section 18,
Article VII on top of the expanded jurisdiction of this Court.
g) Jurisdiction of the Court is not restricted to those enumerated in Sections 1 and
5 of Article VIII.
The jurisdiction of this Court is not restricted to those enumerated in Sections 1
and 5 of Article VIII. For instance, its jurisdiction to be the sole judge of all contests
relating to the election, returns, and qualifications of the President or Vice-
President can be found in the last paragraph of Section 4, Article VII. The power of
the Court to review on certiorari the decision, order, or ruling of the Commission on
Elections and Commission on Audit can be found in Section 7, Article IX (A).
h) Unique features of the third paragraph of Section 18, Article VII make it sui
generis.
The unique features of the third paragraph of Section 18, Article VII clearly indicate
that it should be treated as sui generis separate and different from those
enumerated in Article VIII. Under the third paragraph of Section 18, Article VII, a
petition filed pursuant therewith will follow a different rule on standing as any citizen
may file it. Said provision of the Constitution also limits the issue to the sufficiency
of the factual basis of the exercise by the Chief Executive of his emergency
powers. The usual period for filing pleadings in Petition for Certiorari is likewise not
applicable under the third paragraph of Section 18, Article VII considering the
limited period within which this Court has to promulgate its decision.
A proceeding "[i]n its general acceptation, [is] the form in which actions are to be
brought and defended, the manner of intervening in suits, of conducting them, the
mode of deciding them, of opposing judgments, and of executing." In fine, the
phrase "in an appropriate proceeding" appearing on the third paragraph of Section
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18, Article VII refers to any action initiated by a citizen for the purpose of
questioning the sufficiency of the factual basis of the exercise of the Chief
Executive's emergency powers, as in these cases. It could be denominated as a
complaint, a petition, or a matter to be resolved by the Court.
3. The power of the Court to review the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ of
habeas corpus under Section 18, Article VII of the 1987 Constitution is
independent of the actions taken by Congress.
During the oral argument, the OSG urged the Court to give deference to the
actions of the two co-equal branches of the Government: on the part of the
President as Commander-in-Chief, in resorting to his extraordinary powers to
declare martial law and suspend the privilege of the writ of habeas corpus; and on
the part of Congress, in giving its imprimatur to Proclamation No. 216 and not
revoking the same.
The framers of the 1987 Constitution reformulated the scope of the extraordinary
powers of the President as Commander-in-Chief and the review of the said
presidential action. In particular, the President's extraordinary powers of
suspending the privilege of the writ of habeas corpus and imposing martial law are
subject to the veto powers of the Court and Congress.
a) The judicial power to review versus the co
The Court may strike down the presidential proclamation in an appropriate
proceeding filed by any citizen on the ground of lack of sufficient factual basis. On
the other hand, Congress may revoke the proclamation or suspension, which
revocation shall not be set aside by the President.
In reviewing the sufficiency of the factual basis of the proclamation or suspension,
the Court considers only the information and data available to the President prior to
or at the time of the declaration; it is not allowed to "undertake an independent
investigation beyond the pleadings." On the other hand, Congress may take into
consideration not only data available prior to, but likewise events supervening the
declaration. Unlike the Court which does not look into the absolute correctness of
the factual basis as will be discussed below, Congress could probe deeper and
further; it can delve into the accuracy of the facts presented before it.
In addition, the Court's review power is passive; it is only initiated by the filing of a
petition "in an appropriate proceeding" by a citizen. On the other hand, Congress'
review mechanism is automatic in the sense that it may be activated by Congress
itself at any time after the proclamation or suspension was made.
Thus, the power to review by the Court and the power to revoke by Congress are
not only totally different but likewise independent from each other although
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concededly, they have the same trajectory, which is, the nullification of the
presidential proclamation. Needless to say, the power of the Court to review can be
exercised independently from the power of revocation of Congress.
b.) Re-examination of the Court's pronouncement in Fortun v. President
Macapagal-Arroyo.
Considering the above discussion, the Court finds it imperative to re-examine,
reconsider, and set aside its pronouncement in Fortun v. President Macapagal-
Arroyo to the effect that:
Consequently, although the Constitution reserves to the Supreme Court the power
to review the sufficiency of the factual basis of the proclamation or suspension in a
proper suit, it is implicit that the Court must allow Congress to exercise its own
review powers, which is automatic rather than initiated. Only when Congress
defaults in its express duty to defend the Constitution through such review should
the Supreme Court step in as its final rampart. The constitutional validity of the
President's proclamation of martial law or suspension of the writ o f habeas corpus
is first a political question in the hands of Congress before it becomes a justiciable
one in the hands of the Court.
XXX XXXXXX XXXX
If the Congress procrastinates or altogether fails to fulfill its duty respecting the
proclamation or suspension within the short time expected of it, then the Court can
step in, hear the petitions challenging the President's action, and ascertain if it has
a factual basis. x x x
By the above pronouncement, the Court willingly but unwittingly clipped its own
power and surrendered the same to Congress as well as abdicated from its
bounden duty to review. Worse, the Court considered itself just on stand-by, waiting
and willing to act as a substitute in case Congress "defaults." It is an aberration, a
stray declaration, which must be rectified and set aside in this proceeding.
We, therefore, hold that the Court can simultaneously exercise its power of review
with, and independently from, the power to revoke by Congress. Corollary, any
perceived inaction or default on the part of Congress does not deprive or deny the
Court of its power to review.
4. The judicial power to review the sufficiency of factual basis of the
declaration of martial law or the suspension of the privilege of the writ of
habeas corpus does not extend to the calibration of the President's decision
of which among his graduated powers he will avail of in a given situation.
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The President as the Commander-in-Chief wields the extraordinary powers of: a)
calling out the armed forces; b) suspending the privilege of the writ of habeas
corpus; and c) declaring martial law. These powers may be resorted to only under
specified conditions.
The framers of the 1987 Constitution reformulated the powers of the Commander-
in-Chief by revising the "grounds for the activation of emergency powers, the
manner of activating them, the scope of the powers, and review of presidential
action."
a) Extraordinary powers of the President distinguished.
Among the three extraordinary powers, the calling out power is the most benign
and involves ordinary police action. The President may resort to this extraordinary
power whenever it becomes necessary to prevent or suppress lawless violence,
invasion, or rebellion. "[T]he power to call is fully discretionary to the President;" the
only limitations being that he acts within permissible constitutional boundaries or in
a manner not constituting grave abuse of discretion. In fact, "the actual use to
which the President puts the armed forces is x x x not subject to judicial review."
The extraordinary powers of suspending the privilege of the wit of habeas corpus
and/or declaring martial law may be exercised only when there is actual invasion or
rebellion, and public safety requires it. The 1987 Constitution imposed the following
limits in the exercise of these powers: "(1) a time limit of sixty days; (2) review and
possible revocation by Congress; [and] (3) review and possible nullification by the
Supreme Court."
The framers of the 1987 Constitution eliminated insurrection, and the phrase
"imminent danger thereof" as grounds for the suspension of the privilege of the writ
of habeas corpus or declaration of martial law. They perceived the phrase
"imminent danger" to be "fraught with possibilities of abuse;" besides, the calling
out power of the President "is sufficient for handling imminent danger."
The powers to declare martial law and to suspend the privilege of the writ of
habeas corpus involve curtailment and suppression of civil rights and individual
freedom. Thus, the declaration of martial law serves as a warning to citizens that
the Executive Department has called upon the military to assist in the maintenance
of law and order, and while the emergency remains, the citizens must, under pain
of arrest and punishment, not act in a manner that will render it more difficult to
restore order and enforce the law. As such, their exercise requires more stringent
safeguards by the Congress, and review by the Court.
b.) “Graduation " of powers refers to hierarchy based on scope and effect; it does
not refer to a sequence, order, or arrangement by which the Commander-in-Chief
must adhere to.
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Indeed, the 1987 Constitution gives the "President, as Commander-in-Chief, a
'sequence' of 'graduated power[s].' From the most to the least benign, these are:
the calling out power, the power to suspend the privilege of the writ of habeas
corpus, and the power to declare martial law." It must be stressed, however, that
the graduation refers only to hierarchy based on scope and effect. It does not in
any manner refer to a sequence, arrangement, or order which the Commander-in-
Chief must follow. This so-called "graduation of powers" does not dictate or restrict
the manner by which the President decides which power to choose.
These extraordinary powers are conferred by the Constitution with the President as
Commander-in-Chief; it therefore necessarily follows that the power and
prerogative to determine whether the situation warrants a mere exercise of the
calling out power; or whether the situation demands suspension of the privilege of
the writ of habeas corpus; or whether it calls for the declaration of martial law, also
lies, at least initially, with the President. The power to choose, initially, which among
these extraordinary powers to wield in a given set of conditions is a judgment call
on the part of the President. As Commander-in-Chief, his powers are broad enough
to include his prerogative to address exigencies or threats that endanger the
government, and the very integrity of the State.
It is thus beyond doubt that the power of judicial review does not extend to
calibrating the President's decision pertaining to which extraordinary power to avail
given a set of facts or conditions. To do so would be tantamount to an incursion into
the exclusive domain of the Executive and an infringement on the prerogative that
solely, at least initially, lies with the President.
d) The framers of the 1987 Constitution intended the Congress not to interfere a
priori in the decision-making process of the President.
The elimination by the framers of the 1987 Constitution of the requirement of prior
concurrence of the Congress in the initial imposition of martial law or suspension of
the privilege of the writ of habeas corpus further supports the conclusion that
judicial review does not include the calibration of the President's decision of which
of his graduated powers will be availed of in a given situation. Voting 28 to 12, the
framers of the 1987 Constitution removed the requirement of congressional
concurrence in the first imposition of martial law and suspension of the privilege.
e) The Court must similarly and necessarily refrain from calibrating the President's
decision of which among his extraordinary powers to avail given a certain situation
or condition.
It cannot be overemphasized that time is paramount in situations necessitating the
proclamation of martial law or suspension of the privilege of the writ of habeas
corpus. It was precisely this time element that prompted the Constitutional
77
Commission to eliminate the requirement of concurrence of the Congress in the
initial imposition by the President of martial law or suspension of the privilege of the
writ of habeas corpus. Considering that the proclamation of martial law or
suspension of the privilege of the writ of habeas corpus is now anchored on actual
invasion or rebellion and when public safety requires it, and is no longer under
threat or in imminent danger thereof, there is a necessity and urgency for the
President to act quickly to protect the country. The Court, as Congress does, must
thus accord the President the same leeway by not wading into the realm that is
reserved exclusively by the Constitution to the Executive Department.
f) The recommendation of the Defense Secretary is not a condition for the
declaration of martial law or suspension of the privilege of the writ of habeas
corpus.
Even the recommendation of, or consultation with, the Secretary of National
Defense, or other high-ranking military officials, is not a condition for the President
to declare martial law. A plain reading of Section 18, Article VII of the Constitution
shows that the President's power to declare martial law is not subject to any
condition except for the requirements of actual invasion or rebellion and that public
safety requires it. Besides, it would be contrary to common sense if the decision of
the President is made dependent on the recommendation of his mere alter ego.
Rightly so, it is only on the President and no other that the exercise of the powers
of the Commander-in- Chief under Section 18, Article VII of the Constitution is
bestowed. ICH
g) In any event, the President initially employed the most benign action — the
calling out power — before he declared martial law and suspended the privilege of
the writ of habeas corpus.
At this juncture, it must be stressed that prior to Proclamation No. 216 or the
declaration of martial law on May 23, 2017, the President had already issued
Proclamation No. 55 on September 4, 2016, declaring a state of national
emergency on account of lawless violence in Mindanao. This, in fact, is extant in
the first Whereas Clause of Proclamation No. 216. Based on the foregoing
presidential actions, it can be gleaned that although there is no obligation or
requirement on his part to use his extraordinary powers on a graduated or
sequential basis, still the President made the conscious and deliberate effort to first
employ the most benign from among his extraordinary powers. As the initial and
preliminary step towards suppressing and preventing the armed hostilities in
Mindanao, the President decided to use his calling out power first. Unfortunately,
the situation did not improve; on the contrary, it only worsened. Thus, exercising his
sole and exclusive prerogative, the President decided to impose martial law and
suspend the privilege of the writ of habeas corpus on the belief that the armed
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hostilities in Mindanao already amount to actual rebellion and public safety requires
it.
5. Whether or not Proclamation No. 216 may be considered vague and thus
void because of (a) its inclusion of "other rebel groups"; and (b) the absence
of any guideline specifying its actual operational parameters within the
entire Mindanao region.
Proclamation No. 216 is being facially challenged on the ground of "vagueness" by
the insertion of the phrase "other rebel groups" in its Whereas Clause and for lack
of available guidelines specifying its actual operational parameters within the entire
Mindanao region, making the proclamation susceptible to broad interpretation,
misinterpretation, or confusion.
This argument lacks legal basis.
a) Void-for-vagueness doctrine.
The void-for-vagueness doctrine holds that a law is facially invalid if "men of
common intelligence must necessarily guess at its meaning and differ as to its
application." "[A] statute or act may be said to be vague when it lacks
comprehensible standards that men of common intelligence must necessarily
guess at its meaning and differ in its application. [In such instance, the statute] is
repugnant to the Constitution in two respects: (1) it violates due process for failure
to accord persons, especially the parties targeted by it, fair notice of the conduct to
avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle."
b) Vagueness doctrine applies only in free speech cases.
The vagueness doctrine is an analytical tool developed for testing "on their faces"
statutes in free speech cases or, as they are called in American law, First
Amendment cases. 142 A facial challenge is allowed to be made to a vague statute
and also to one which is overbroad because of possible "'chilling effect' on
protected speech that comes from statutes violating free speech. A person who
does not know whether his speech constitutes a crime under an overbroad or
vague law may simply restrain himself from speaking in order to avoid being
charged of a crime. The overbroad or vague law thus chills him into silence."
Invalidation of statutes "on its face" should be used sparingly because it results in
striking down statutes entirely on the ground that they might be applied to parties
not before the Court whose activities are constitutionally protected. "Such
invalidation would constitute a departure from the usual requirement of 'actual case
and controversy' and permit decisions to be made in a sterile abstract context
having no factual concreteness."
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c) Proclamation No. 216 cannot be facially challenged using the vagueness
doctrine.
Clearly, facial review of Proclamation No. 216 on the grounds of vagueness is
unwarranted. Proclamation No. 216 does not regulate speech, religious freedom,
and other fundamental rights that may be facially challenged. What it seeks to
penalize is conduct, not speech.
As held by the Court inDavid v. President Macapagal-Arroyo, the facial review of
Proclamation No. 1017, issued by then President Gloria Macapagal-Arroyo
declaring a state of national emergency, on ground of vagueness is uncalled for
since a plain reading of Proclamation No. 1017 shows that it is not primarily
directed at speech or even speech-related conduct. It is actually a call upon the
Armed Forces of the Philippines (AFP) to prevent or suppress all forms of lawless
violence. Like Proclamation No. 1017, Proclamation No. 216 pertains to a
spectrum of conduct, not free speech, which is manifestly subject to state
regulation.
d) Inclusion of "other rebel groups" does not make Proclamation No. 216 vague.
The contention that the phrase "other rebel groups" leaves Proclamation No. 216
open to broad interpretation, misinterpretation, and confusion, cannot be sustained.
The term "other rebel groups" in Proclamation No. 216 is not at all vague when
viewed in the context of the words that accompany it. Verily, the text of
Proclamation No. 216 refers to "other rebel groups" found in Proclamation No. 55,
which it cited by way of reference in its Whereas clauses.
e) Lack of guidelines/ operational parameters does not make Proclamation No. 216
vague.
Neither could Proclamation No. 216 be described as vague, and thus void, on the
ground that it has no guidelines specifying its actual operational parameters within
the entire Mindanao region. Besides, operational guidelines will serve only as mere
tools for the implementation of the proclamation. In Part III, we declared that
judicial review covers only the sufficiency of information or data available to or
known to the President prior to, or at the time of, the declaration or suspension.
And, as will be discussed exhaustively in Part VII, the review will be confined to the
proclamation itself and the Report submitted to Congress.
Clearly, therefore, there is no need for the Court to determine the constitutionality
of the implementing and/or operational guidelines, general orders, arrest orders
and other orders issued after the proclamation for being irrelevant to its review.
Thus, any act committed under the said orders in violation of the Constitution and
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the laws, such as criminal acts or human rights violations, should be resolved in a
separate proceeding. Finally, there is a risk that if the Court wades into these
areas, it would be deemed as trespassing into the sphere that is reserved
exclusively for Congress in the exercise of its power to revoke.
6. Whether or not nullifying Proclamation No. 216 will (a) have the effect of
recalling Proclamation No. 55; or (b) also nullify the acts of the President in
calling out the armed forces to quell lawless violence in Marawi and other
parts of the Mindanao region.
a) The calling out power is in a different category from the power to declare martial
law and the power to suspend the privilege of the writ of habeas corpus;
nullification of Proclamation No. 216 will not affect Proclamation No. 55.
The Court's ruling in these cases will not, in any way, affect the President's
declaration of a state of national emergency on account of lawless violence in
Mindanao through Proclamation No. 55 dated September 4, 2016, where he called
upon the Armed Forces and the Philippine National Police (PNP) to undertake such
measures to suppress any and all forms of lawless violence in the Mindanao
region, and to prevent such lawless violence from spreading and escalating
elsewhere in the Philippines.
This locus standi requirement, however, need not be complied with in so far as the
Court's jurisdiction to review the sufficiency of the factual basis of the President's
declaration of martial law or suspension of the privilege of the writ of habeas
corpus is concerned. In fact, by constitutional design, such review may be
instituted by any citizen before the Court, without the need to prove that he or she
stands to sustain a direct and personal injury as a consequence of the questioned
Presidential act/s.
But, even assuming arguendo that the Court finds no sufficient basis for the
declaration of martial law in this case, such ruling could not affect the President's
exercise of his calling out power through Proclamation No. 55.
b) The operative fact doctrine.
Neither would the nullification of Proclamation No. 216 result in the nullification of
the acts of the President done pursuant thereto. Under the "operative fact
doctrine," the unconstitutional statute is recognized as an "operative fact" before it
is declared unconstitutional.
However, it must also be stressed that this "operative fact doctrine" is not a fool-
proof shield that would repulse any challenge to acts performed during the
effectivity of martial law or suspension of the privilege of the writ of habeas corpus,
purportedly in furtherance of quelling rebellion or invasion, and promotion of public
safety, when evidence shows otherwise.
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7. The Scope of the Power to Review.
a) The scope of the power of review under the 1987 Constitution refers only to the
determination of the sufficiency of the factual basis of the declaration of martial law
and suspension of the privilege of habeas corpus.
To recall, the Court, in the case of In the Matter of the Petition for Habeas Corpus
of Lansang, which was decided under the 1935 Constitution, held that it can inquire
into,within proper bounds, whether there has been adherence to or compliance
with the constitutionally-imposed limitations on the Presidential power to suspend
the privilege of the writ of habeas corpus. "Lansang limited the review function of
the Court to a very prudentially narrow test of arbitrariness."
b) The "sufficiency of factual basis test."
Similarly, under the doctrine of contemporaneous construction, the framers of the
1987 Constitution are presumed to know the prevailing jurisprudence at the time
they were drafting the Constitution. Thus, the phrase "sufficiency of factual basis"
in Section 18, Article VII of the Constitution should be understood as the only test
for judicial review of the President's power to declare martial law and suspend the
privilege of the writ of habeas corpus under Section 18, Article VII of the
Constitution. The Court does not need to satisfy itself that the President's decision
is correct, rather it only needs to determine whether the President's decision had
sufficient factual bases.
We conclude, therefore, that Section 18, Article VII limits the scope of judicial
review by the introduction of the "sufficiency of the factual basis" test.
As Commander-in-Chief, the President has the sole discretion to declare martial
law and/or to suspend the privilege of the writ of habeas corpus, subject to the
revocation of Congress and the review of this Court. Since the exercise of these
powers is a judgment call of the President, the determination of this Court as to
whether there is sufficient factual basis for the exercise of such, must be based
only on facts or information known by or available to the President at the time he
made the declaration or suspension, which facts or information are found in the
proclamation as well as the written Report submitted by him to Congress. These
may be based on the situation existing at the time the declaration was made or
past events. As to how far the past events should be from the present depends on
the President. Past events may be considered as justifications for the declaration
and/or suspension as long as these are connected or related to the current
situation existing at the time of the declaration.
As to what facts must be stated in the proclamation and the written Report is up to
the President. As Commander-in-Chief, he has sole discretion to determine what to
include and what not to include in the proclamation and the written Report taking
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into account the urgency of the situation as well as national security. He cannot be
forced to divulge intelligence reports and confidential information that may
prejudice the operations and the safety of the military.
Similarly, events that happened after the issuance of the proclamation, which are
included in the written report, cannot be considered in determining the sufficiency
of the factual basis of the declaration of martial law and/or the suspension of the
privilege of the writ of habeas corpus since these happened after the President had
already issued the proclamation. If at all, they may be used only as tools, guides or
reference in the Court's determination of the sufficiency of factual basis, but not as
part or component of the portfolio of the factual basis itself.
In determining the sufficiency of the factual basis of the declaration and/or the
suspension, the Court should look into the full complement or totality of the factual
basis, and not piecemeal or individually. Neither should the Court expect absolute
correctness of the facts stated in the proclamation and in the written Report as the
President could not be expected to verify the accuracy and veracity of all facts
reported to him due to the urgency of the situation. To require precision in the
President's appreciation of facts would unduly burden him and therefore impede
the process of his decision-making. Such a requirement will practically necessitate
the President to be on the ground to confirm the correctness of the reports
submitted to him within a period that only the circumstances obtaining would be
able to dictate. Such a scenario, of course, would not only place the President in
peril but would also defeat the very purpose of the grant of emergency powers
upon him, that is, to borrow the words of Justice Antonio T. Carpio in Fortun, to
"immediately put an end to the root cause of the emergency." Possibly, by the time
the President is satisfied with the correctness of the facts in his possession, it
would be too late in the day as the invasion or rebellion could have already
escalated to a level that is hard, if not impossible, to curtail.
Besides, the framers of the 1987 Constitution considered intelligence reports of
military officers as credible evidence that the President can appraise and to which
he can anchor his judgment, as appears to be the case here.
Corollary, as the President is expected to decide quickly on whether there is a need
to proclaim martial law even only on the basis of intelligence reports, it is irrelevant,
for purposes of the Court's review, if subsequent events prove that the situation
had not been accurately reported to him. After all, the Court's review is confined to
the sufficiency, not accuracy, of the information at hand during the declaration or
suspension; subsequent events do not have any bearing insofar as the Court's
review is concerned. In any event, safeguards under Section 18, Article VII of the
Constitution are in place to cover such a situation, e.g., the martial law period is
good only for 60 days; Congress may choose to revoke it even immediately after
the proclamation is made; and, this Court may investigate the factual background
of the declaration.
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Hence, the maxim falsus in uno, falsus in omnibus finds no application in this case.
Falsities of and/or inaccuracies in some of the facts stated in the proclamation and
the written report are not enough reasons for the Court to invalidate the declaration
and/or suspension as long as there are other facts in the proclamation and the
written Report that support the conclusion that there is an actual invasion or
rebellion and that public safety requires the declaration and/or suspension.
In sum, the Court's power to review is limited to the determination of whether the
President in declaring martial law and suspending the privilege of the writ of
habeas corpus had sufficient factual basis. Thus, our review would be limited to an
examination on whether the President acted within the bounds set by the
Constitution, i.e., whether the facts in his possession prior to and at the time of the
declaration or suspension are sufficient for him to declare martial law or suspend
the privilege of the writ of habeas corpus.
8. The parameters for determining the sufficiency of the factual basis for the
declaration of martial law and/or the suspension of the privilege of the writ of
habeas corpus.
a) Actual invasion or rebellion, and public safety requirement.
Section 18, Article VII itself sets the parameters for determining the sufficiency of
the factual basis for the declaration of martial law and/or the suspension of the
privilege of the writ of habeas corpus, "namely (1) actual invasion or rebellion, and
(2) public safety requires the exercise of such power."Without the concurrence of
the two conditions, the President's declaration of martial law and/or suspension of
the privilege of the writ of habeas corpus must be struck down.
As a general rule, a word used in a statute which has a technical or legal meaning,
is construed to have the same technical or legal meaning. Since the Constitution
did not define the term "rebellion," it must be understood to have the same
meaning as the crime of "rebellion" in the Revised Penal Code (RPC).
Thus, rebellion as mentioned in the Constitution could only refer to rebellion as
defined under Article 134 of the RPC. To give it a different definition would not only
create confusion but would also give the President wide latitude of discretion,
which may be abused — a situation that the Constitution seeks to prevent.
b) Probable cause is the allowable standard of proof for the President.
In determining the existence of rebellion, the President only needs to convince
himself that there is probable cause or evidence showing that more likely than not
a rebellion was committed or is being committed. To require him to satisfy a higher
standard of proof would restrict the exercise of his emergency powers. Along this
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line, Justice Carpio, in his Dissent in Fortun v. President Macapagal-Arroyo,
concluded that the President needs only to satisfy probable cause as the standard
of proof in determining the existence of either invasion or rebellion for purposes of
declaring martial law, and that probable cause is the most reasonable, most
practical and most expedient standard by which the President can fully ascertain
the existence or non-existence of rebellion necessary for a declaration of martial
law or suspension of the writ. This is because unlike other standards of proof,
which, in order to be met, would require much from the President and therefore
unduly restrain his exercise of emergency powers, the requirement of probable
cause is much simpler. It merely necessitates an "average man [to weigh] the facts
and circumstances without resorting to the calibration of the rules of evidence of
which he has no technical knowledge. He [merely] relies on common sense [and] x
x x needs only to rest on evidence showing that, more likely than not, a crime has
been committed x x x by the accused."
To summarize, the parameters for determining the sufficiency of factual basis are
as follows: 1) actual rebellion or invasion; 2) public safety requires it; the first two
requirements must concur; and 3) there is probable cause for the President to
believe that there is actual rebellion or invasion.
Having laid down the parameters for review, the Court shall now proceed to the
core of the controversy — whether Proclamation No. 216, Declaring a State of
Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the
whole of Mindanao, lacks sufficient factual basis.
There is sufficient factual basis for the declaration of martial law and the
suspension of the writ of habeas corpus.
At this juncture, it bears to emphasize that the purpose of judicial review is not the
determination of accuracy or veracity of the facts upon which the President
anchored his declaration of martial law or suspension of the privilege of the writ of
habeas corpus; rather, only the sufficiency of the factual basis as to convince the
President that there is probable cause that rebellion exists. It must also be
reiterated that martial law is a matter of urgency and much leeway and flexibility
should be accorded the President. As such, he is not expected to completely
validate all the information he received before declaring martial law or suspending
the privilege of the writ of habeas corpus.
We restate the elements of rebellion for reference:
1. That there be (a) public uprising, and (b) taking up arms against the
Government; and
2. That the purpose of the uprising or movement is either: (a) to remove from the
allegiance to said Government or its laws the territory of the Philippines or any part
81
thereof, or any body of land, naval or other armed forces or (b) to deprive the Chief
Executive or Congress, wholly or partially, of any of their powers or prerogatives.
Petitioners concede that there is an armed public uprising in Marawi City. However,
they insist that the armed hostilities do not constitute rebellion in the absence of the
element of culpable political purpose, i.e., the removal from the allegiance to the
Philippine Government or its laws: (i) the territory of the Philippines or any part
thereof; or (ii) any body of land, naval, or other armed forces; or (b) to deprive the
Chief Executive or Congress, wholly or partially, of any of their powers and
prerogatives.
The contention lacks merit.
a) Facts, events and information upon which the President anchored his decision
to declare martial law and suspend the privilege of the writ of habeas corpus.
Since the President supposedly signed Proclamation No. 216 on May 23, 2017 at
10:00 PM, the Court will consider only those facts and/or events which were known
to or have transpired on or before that time, consistent with the scope of judicial
review. Thus, the following facts and/or events were deemed to have been
considered by the President in issuing Proclamation No. 216.
Public safety requires the declaration of martial law and the suspension of
the privilege of the writ of habeas corpus in the whole of Mindanao.
Invasion or rebellion alone may justify resort to the calling out power but definitely
not the declaration of martial law or suspension of the privilege of the writ of
habeas corpus. For a declaration of martial law or suspension of the privilege of
the writ of habeas corpus to be valid, there must be a concurrence of actual
rebellion or invasion and the public safety requirement. In his Report, the President
noted that the acts of violence perpetrated by the ASG and the Maute Group were
directed not only against government forces or establishments but likewise against
civilians and their properties. In addition and in relation to the armed hostilities,
bomb threats were issued; road blockades and checkpoints were set up; schools
and churches were burned; civilian hostages were taken and killed; non-Muslims or
Christians were targeted; young male Muslims were forced to join their group;
medical services and delivery of basic services were hampered; reinforcements of
government troops and civilian movement were hindered; and the security of the
entire Mindanao Island was compromised.
These particular scenarios convinced the President that the atrocities had already
escalated to a level that risked public safety and thus impelled him to declare
martial law and suspend the privilege of the writ of habeas corpus. In the last
paragraph of his Report, the President declared:
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While the government is presently conducting legitimate operations to address the
on- going rebellion, if not the seeds of invasion, public safety necessitates the
continued implementation of martial law and the suspension of the privilege of the
writ of habeas corpus in the whole of Mindanao until such time that the rebellion is
completely quelled.
Based on the foregoing, we hold that the parameters for the declaration of martial
law and suspension of the privilege of the writ of habeas corpus have been
properly and fully complied with. Proclamation No. 216 has sufficient factual basis
there being probable cause to believe that rebellion exists and that public safety
requires the martial law declaration and the suspension of the privilege of the writ
of habeas corpus.
Whole of Mindanao
a) The overriding and paramount concern of martial law is the protection of the
security of the nation and the good and safety of the public.
Considering the nation's and its people's traumatic experience of martial law under
the Marcos regime, one would expect the framers of the 1987 Constitution to stop
at nothing from not resuscitating the law. Yet it would appear that the constitutional
writers entertained no doubt about the necessity and practicality of such specie of
extraordinary power and thus, once again, bestowed on the Commander-in-Chief
the power to declare martial law albeit in its diluted form.
Indeed, martial law and the suspension of the privilege of the writ of habeas corpus
are necessary for the protection of the security of the nation; suspension of the
privilege of the writ of habeas corpus is "precautionary, and although it might
[curtail] certain rights of individuals, [it] is for the purpose of defending and
protecting the security of the state or the entire country and our sovereign people."
Commissioner Ople referred to the suspension of the privilege of the writ of habeas
corpus as a "form of immobilization" or "as a means of immobilizing potential
internal enemies" "especially in areas like Mindanao."
Aside from protecting the security of the country, martial law also guarantees and
promotes public safety. It is worthy of mention that rebellion alone does not justify
the declaration of martial law or suspension of the privilege of the writ of habeas
corpus; the public safety requirement must likewise be present.
b) As Commander-in-Chief, the President receives vital, relevant, classified, and
live information which equip and assist him in making decisions.
In Parts IX and X, the Court laid down the arsenal of facts and events that formed
the basis for Proclamation No. 216. For the President, the totality of facts and
events, more likely than not, shows that actual rebellion exists and that public
82
safety requires the declaration of martial law and suspension of the privilege of the
writ of habeas corpus. Otherwise stated, the President believes that there is
probable cause that actual rebellion exists and public safety warrants the issuance
of Proclamation No. 216. In turn, the Court notes that the President, in arriving at
such a conclusion, relied on the facts and events included in the Report, which we
find sufficient.
To be sure, the facts mentioned in the Proclamation and the Report are far from
being exhaustive or all-encompassing. At this juncture, it may not be amiss to state
that as Commander- in-Chief, the President has possession of documents and
information classified as "confidential," the contents of which cannot be included in
the Proclamation or Report for reasons of national security. These documents may
contain information detailing the position of government troops and rebels, stock of
firearms or ammunitions, ground commands and operations, names of suspects
and sympathizers, etc. In fact, during the closed door session held by the Court,
some information came to light, although not mentioned in the Proclamation or
Report. But then again, the discretion whether to include the same in the
Proclamation or Report is the judgment call of the President. In fact, petitioners
concede to this. During the oral argument, petitioner Lagman admitted that "the
assertion of facts [in the Proclamation and Report] is the call of the President."
It is beyond cavil that the President can rely on intelligence reports and classified
documents. "It is for the President as [C]ommander-in-[C]hief of the Armed Forces
to appraise these [classified evidence or documents/]reports and be satisfied that
the public safety demands the suspension of the writ." Significantly, respect to
these so-called classified documents is accorded even "when [the] authors of or
witnesses to these documents may not be revealed."
In fine, not only does the President have a wide array of information before him, he
also has the right, prerogative, and the means to access vital, relevant, and
confidential data, concomitant with his position as Commander-in-Chief of the
Armed Forces.
c) The Court has no machinery or tool equal to that of the Commander-in-Chief to
ably and properly assess the ground conditions.
In contrast, the Court does not have the same resources available to the President.
However, this should not be considered as a constitutional lapse. On the contrary,
this is in line with the function of the Court, particularly in this instance, to
determine the sufficiency of factual basis of Proclamation No. 216. As thoroughly
discussed in Part VIII, the determination by the Court of the sufficiency of factual
basis must be limited only to the facts and information mentioned in the Report and
Proclamation. In fact, the Court, in David v. President Macapagal-Arroyo, cautioned
not to "undertake an independent investigation beyond the pleadings." In this
regard, "the Court will have to rely on the fact-finding capabilities of the [E]xecutive
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[D]epartment;" in turn, the Executive Department will have to open its findings to
the Court, which it did during the closed door session last June 15, 2017.
d) The 1987 Constitution grants to the President, as Commander-in-Chief, the
discretion to determine the territorial coverage or application of martial law or
suspension of the privilege of the writ of habeas corpus.
Section 18, Article VII of the Constitution states that "[i]n case of invasion or
rebellion, when the public safety requires it, [the President] may x x x suspend the
privilege of writ of habeas corpus or placethe Philippines or any part thereof
under martial law." Clearly, the Constitution grants to the President the discretion
to determine the territorial coverage of martial law and the suspension of the
privilege of the writ of habeas corpus. He may put the entire Philippines or only a
part thereof under martial law.
This is both an acknowledgement and a recognition that it is the Executive
Department, particularly the President as Commander-in-Chief, who is the
repository of vital, classified, and live information necessary for and relevant in
calibrating the territorial application of martial law and the suspension of the
privilege of the writ of habeas corpus. It, too, is a concession that the President has
the tactical and military support, and thus has a more informed understanding of
what is happening on the ground. Thus, the Constitution imposed a limitation on
the period of application, which is 60 days, unless sooner nullified, revoked or
extended, but not on the territorial scope or area of coverage; it merely stated "the
Philippines or any part thereof," depending on the assessment of the President.
e) The Constitution has provided sufficient safeguards against possible abuses of
Commander-in- Chief's powers; further curtailment of Presidential powers should
not only be discouraged but also avoided.
Considering the country's history, it is understandable that the resurgence of
martial law would engender apprehensions among the citizenry. Even the Court as
an institution cannot project a stance of nonchalance. However, the importance of
martial law in the context of our society should outweigh one's prejudices and
apprehensions against it. The significance of martial law should not be undermined
by unjustified fears and past experience. After all, martial law is critical and crucial
to the promotion of public safety, the preservation of the nation's sovereignty and
ultimately, the survival of our country. It is vital for the protection of the country not
only against internal enemies but also against those enemies lurking from beyond
our shores. As such, martial law should not be cast aside, or its scope and potency
limited and diluted, based on bias and unsubstantiated assumptions.
Conscious of these fears and apprehensions, the Constitution placed several
safeguards which effectively watered down the power to declare martial law. The
1987 Constitution "[clipped] the powers of [the] Commander-in-Chief because of
83
[the] experience with the previous regime." 261 Not only were the grounds limited
to actual invasion or rebellion, but its duration was likewise fixed at 60 days, unless
sooner revoked, nullified, or extended; at the same time, it is subject to the veto
powers of the Court and Congress.
At this juncture, it bears to stress that it was the collective sentiment of the framers
of the 1987 Constitution that sufficient safeguards against possible misuse and
abuse by the Commander- in-Chief of his extraordinary powers are already in
place and that no further emasculation of the presidential powers is called for in the
guise of additional safeguards. The Constitution recognizes that any further
curtailment, encumbrance, or emasculation of the presidential powers would not
generate any good among the three co-equal branches, and to the country and its
citizens as a whole.
f) Rebellion and public safety; nature, scope, and range.
It has been said that the "gravamen of the crime of rebellion is an armed public
uprising against the government;" and that by nature, "rebellion is x x x a crime of
masses or multitudes, involving crowd action, that cannot be confined a priori,
within predetermined bounds." 267 We understand this to mean that the precise
extent or range of the rebellion could not be measured by exact metes and bounds.
To illustrate: A contingent armed with high-powered firearms publicly assembled in
Padre Faura, Ermita, Manila where the Court's compound is situated. They
overpowered the guards, entered the Court's premises, and hoisted the ISIS flag.
Their motive was political, i.e., they want to remove from the allegiance to the
Philippine government a part of the territory of the Philippines, particularly the
Court's compound and establish it as an ISIS-territory.
Based on the foregoing illustration, and vis-à-vis the nature of the crime of
rebellion, could we validly say that the rebellion is confined only within the Court's
compound? Definitely not. The possibility that there are other rebels positioned in
the nearby buildings or compound of the Philippine General Hospital (PGH) or the
Manila Science High School (MSHS) could not be discounted. There is no way of
knowing that all participants in the rebellion went and stayed inside the Court's
compound.
Neither could it be validly argued that the armed contingent positioned in PGH or
MSHS isnot engaged in rebellion because there is no publicity in their acts as, in
fact, they were merely lurking inside the compound of PGH and MSHS. However, it
must be pointed out that for the crime of rebellion to be consummated, it is not
required that all armed participants should congregate in one place, in this case,
the Court's compound, and publicly rise in arms against the government for the
attainment of their culpable purpose. It suffices that a portion of the contingent
gathered and formed a mass or a crowd and engaged in an armed public uprising
against the government. Similarly, it cannot be validly concluded that the grounds
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on which the armed public uprising actually took place should be the measure of
the extent, scope or range, of the actual rebellion. This is logical since the other
rebels positioned in PGH, MSHS, or elsewhere, whose participation did not involve
the publicity aspect of rebellion, may also be considered as engaging in the crime
of rebellion.
Proceeding from the same illustration, suppose we say that the President, after
finding probable cause that there exists actual rebellion and that public safety
requires it, declares martial law and suspends the writ of habeas corpus in the
whole of Metro Manila, could we then say that the territorial coverage of the
proclamation is too expansive?
To answer this question, we revert back to the premise that the discretion to
determine the territorial scope of martial law lies with the President. The
Constitution grants him the prerogative whether to put the entire Philippines or any
part thereof under martial law. There is no constitutional edict that martial law
should be confined only in the particular place where the armed public uprising
actually transpired. This is not only practical but also logical. Martial law is an
urgent measure since at stake is the nation's territorial sovereignty and survival. As
such, the President has to respond quickly. After the rebellion in the Court's
compound, he need not wait for another rebellion to be mounted in Quezon City
before he could impose martial law thereat. If that is the case, then the President
would have to wait until every remote corner in the country is infested with rebels
before he could declare martial law in the entire Philippines. For sure, this is not
the scenario envisioned by the Constitution.
Going back to the illustration above, although the President is not required to
impose martial law only within the Court's compound because it is where the
armed public uprising actually transpired, he may do so if he sees fit. At the same
time, however, he is not precluded from expanding the coverage of martial law
beyond the Court's compound. After all, rebellion is not confined within
predetermined bounds.
Public safety, which is another component element for the declaration of martial
law, "involves the prevention of and protection from events that could endanger the
safety of the general public from significant danger, injury/harm, or damage, such
as crimes or disasters." Public safety is an abstract term; it does not take any
physical form. Plainly, its range, extent or scope could not be physically measured
by metes and bounds.
Perhaps another reason why the territorial scope of martial law should not
necessarily be limited to the particular vicinity where the armed public uprising
actually transpired, is because of the unique characteristic of rebellion as a crime.
"The crime of rebellion consists of many acts. It is a vast movement of men and a
complex net of intrigues and plots. Acts committed in furtherance of rebellion[,]
84
though crimes in themselves[,] are deemed absorbed in one single crime of
rebellion." Rebellion absorbs "other acts committed in its pursuance." Direct
assault, murder, homicide, arson, robbery, and kidnapping, just to name a few, are
absorbed in the crime of rebellion if committed in furtherance of rebellion; "[i]t
cannot be made a basis of a separate charge." Jurisprudence also teaches that not
only common crimes may be absorbed in rebellion but also "offenses under special
laws [such as Presidential Decree No. 1829] which are perpetrated in furtherance
of the political offense." "All crimes, whether punishable under a special law or
general law, which are mere components or ingredients, or committed in
furtherance thereof, become absorbed in the crime of rebellion and cannot be
isolated and charged as separate crimes in themselves."
Thus, by the theory of absorption, the crime of murder committed in Makati City, if
committed in furtherance of the crime of rebellion being hypothetically staged in
Padre Faura, Ermita, Manila, is stripped of its common complexion and is
absorbed in the crime of rebellion. This all the more makes it difficult to confine the
application of martial law only to the place where the armed public uprising is
actually taking place. In the illustration above, Padre Faura could only be the nerve
center of the rebellion but at the same time rebellion is also happening in Makati
City.
In fine, it is difficult, if not impossible, to fix the territorial scope of martial law
indirect proportion to the "range" of actual rebellion and public safety simply
because rebellion and public safety have no fixed physical dimensions. Their
transitory and abstract nature defies precise measurements; hence, the
determination of the territorial scope of martial law could only be drawn from
arbitrary, not fixed, variables. The Constitution must have considered these
limitations when it granted the President wide leeway and flexibility in determining
the territorial scope of martial law.
Moreover, the President's duty to maintain peace and public safety is not limited
only to the place where there is actual rebellion; it extends to other areas where the
present hostilities are in danger of spilling over. It is not intended merely to prevent
the escape of lawless elements from Marawi City, but also to avoid enemy
reinforcements and to cut their supply lines coming from different parts of
Mindanao. Thus, limiting the proclamation and/or suspension to the place where
there is actual rebellion would not only defeat the purpose of declaring martial law,
it will make the exercise thereof ineffective and useless.
g) The Court must stay within the confines of its power.
The Court can only act within the confines of its power.
For the Court to overreach is to infringe upon another's territory. Clearly, the power
to determine the scope of territorial application belongs to the President. "The
Court cannot indulge in judicial legislation without violating the principle of
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separation of powers, and, hence, undermining the foundation of our republican
system."
To reiterate, the Court is not equipped with the competence and logistical
machinery to determine the strategical value of other places in the military's efforts
to quell the rebellion and restore peace. It would be engaging in an act of
adventurism if it dares to embark on a mission of deciphering the territorial metes
and bounds of martial law. To be blunt about it, hours after the proclamation of
martial law none of the members of this Court could have divined that more than
ten thousand souls would be forced to evacuate to Iligan and Cagayan de Oro and
that the military would have to secure those places also; none of us could have
predicted that Cayamora Maute would be arrested in Davao City or that his wife
Ominta Romato Maute would be apprehended in Masiu, Lanao del Sur; and, none
of us had an inkling that the Bangsamoro Islamic Freedom Fighters (BIFF) would
launch an attack in Cotabato City. The Court has no military background and
technical expertise to predict that. In the same manner, the Court lacks the
technical capability to determine which part of Mindanao would best serve as
forward operating base of the military in their present endeavor in Mindanao. Until
now the Court is in a quandary and can only speculate whether the 60- day
lifespan of Proclamation No. 216 could outlive the present hostilities in Mindanao. It
is on this score that the Court should give the President sufficient leeway to
address the peace and order problem in Mindanao.
Thus, considering the current situation, it will not serve any purpose if the President
is goaded into using "the sword of Alexander to cut the Gordian knot" by attempting
to impose another encumbrance; after all, "the declaration of martial law or the
suspension of the privilege of the writ of habeas corpus is essentially an
executive act."
h) Several local armed groups have formed linkages aimed at committing rebellion
and acts in furtherance thereof in the whole of Mindanao.
With a predominantly Muslim population, Marawi City is "the only Islamic City of the
South." On April 15, 1980, it was conferred the official title of "Islamic City of
Marawi."The city's first name, "Dansalan," "was derived from the word 'dansal,'
meaning a destination point or rendezvous. Literally, it also means arrival or
coming." Marawi lies in the heart of Mindanao. In fact, the Kilometer Zero marker in
Mindanao is found in Marawi City thereby making Marawi City the point of
reference of all roads in Mindanao.
Thus, there is reasonable basis to believe that Marawi is only the staging point of
the rebellion, both for symbolic and strategic reasons. Marawi may not be the
target but the whole of Mindanao. As mentioned in the Report, "[l]awless armed
groups have historically used provinces adjoining Marawi City as escape routes,
supply lines, and backdoor passages;" there is also the plan to establish a wilayat
85
in Mindanao by staging the siege of Marawi. The report that prior to May 23, 2017,
Abdullah Maute had already dispatched some of his men to various places in
Mindanao, such as Marawi, Iligan, and Cagayan de Oro for bombing operations,
carnapping, and the murder of military and police personnel, must also be
considered. Indeed, there is some semblance of truth to the contention that Marawi
is only the start, and Mindanao the end.
There were also intelligence reports from the military about offensives committed
by the ASG and other local rebel groups. All these suggest that the rebellion in
Marawi has already spilled over to other parts of Mindanao.
Moreover, considering the widespread atrocities in Mindanao and the linkages
established among rebel groups, the armed uprising that was initially staged in
Marawi cannot be justified as confined only to Marawi. The Court therefore will not
simply disregard the events that happened during the Davao City bombing, the
Mamasapano massacre, the Zamboanga City siege, and the countless bombings
in Cotabato, Sultan Kudarat, Sulu, and Basilan, among others. 298 The Court
cannot simply take the battle of Marawi in isolation. As a crime without
predetermined bounds, the President has reasonable basis to believe that the
declaration of martial law, as well as the suspension of the privilege of the writ of
habeas corpus in the whole of Mindanao, is most necessary, effective, and called
for by the circumstances.
i) Terrorism neither negates nor absorbs rebellion.
It is also of judicial notice that the insurgency in Mindanao has been ongoing for
decades. While some groups have sought legal and peaceful means, others have
resorted to violent extremism and terrorism. Rebellion may be subsumed under the
crime of terrorism, which has a broader scope covering a wide range of predicate
crimes. In fact, rebellion is only one of the various means by which terrorism can
be committed. However, while the scope of terrorism may be comprehensive, its
purpose is distinct and well-defined. The objective of a "terrorist" is to sow and
create a condition of widespread fear among the populace in order to coerce the
government to give in to an unlawful demand. This condition of widespread fear is
traditionally achieved through bombing, kidnapping, mass killing, and beheading,
among others. In contrast, the purpose of rebellion, as previously discussed, is
political, i.e., (a) to remove from the allegiance to the Philippine Government or its
laws: (i) the territory of the Philippines or any part thereof; (ii) any body of land,
naval, or armed forces; or (b) to deprive the Chief Executive or Congress, wholly or
partially, of any of their powers and prerogatives.
In determining what crime was committed, we have to look into the main objective
of the malefactors. If it is political, such as for the purpose of severing the
allegiance of Mindanao to the Philippine Government to establish a wilayat therein,
the crime is rebellion. If, on the other hand, the primary objective is to sow and
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create a condition of widespread and extraordinary fear and panic among the
populace in order to coerce the government to give in to an unlawful demand, the
crime is terrorism. Here, we have already explained and ruled that the President
did not err in believing that what is going on in Marawi City is one contemplated
under the crime of rebellion.
In any case, even assuming that the insurgency in Marawi City can also be
characterized as terrorism, the same will not in any manner affect Proclamation No.
216. Section 2 of Republic Act (RA) No. 9372, otherwise known as the Human
Security Act of 2007 expressly provides that " [n]othing in this Act shall be
interpreted as a curtailment, restriction or diminution of constitutionally recognized
powers of the executive branch of the government." Thus, as long as the President
complies with all the requirements of Section 18, Article VII, the existence of
terrorism cannot prevent him from exercising his extraordinary power of
proclaiming martial law or suspending the privilege of the writ of habeas corpus.
After all, the extraordinary powers of the President are bestowed on him by the
Constitution. No act of Congress can, therefore, curtail or diminish such powers.
Besides, there is nothing in Art. 134 of the RPC and RA 9372 which states that
rebellion and terrorism are mutually
Verily, the Court upholds the validity of the declaration of martial law and
suspension of the privilege of the writ of habeas corpus in the entire Mindanao
region.
At the end of the day, however ardently and passionately we may believe in the
validity or correctness of the varied and contentious causes or principles that we
espouse, advocate or champion, let us not forget that at this point in time we, the
Filipino people, are confronted with a crisis of such magnitude and proportion that
we all need to summon the spirit of unity and act as one undivided nation, if we are
to overcome and prevail in the struggle at hand.
Let us face up to the fact that the siege in Marawi City has entered the second
month and only God or Allah knows when it would end. Let us take notice of the
fact that the casualties of the war are mounting. To date, 418 have died. Out of that
were 303 Maute rebels as against 71 government troops and 44 civilians.
86
Lagman v. Pimentel, GR Nos. 235935, 236061, 236145, 236155, February 6,
2018
WHEREFORE, the CourtFINDS sufficient factual bases for the issuance of
Resolution of Both Houses No. 4 and DECLARES it as CONSTITUTIONAL.
Accordingly, the consolidated Petitions are hereby DISMISSED.
These are consolidated petitions,1 filed under the third paragraph, Section 18 of
Article VII of the Constitution, assailing the constitutionality of the extension of the
proclamation of martial law and suspension of the privilege of the writ of habeas
corpus in the entire Mindanao for one year.
Ruling:
Procedural Issues:
Failure to attach Resolution of Both Houses No. 4
is not fatal to the petitions.
Section 1, 75 Rule 129 of the Rules of Court provides that a court can take judicial
notice of the official acts of the legislative department without the introduction of
evidence.
"Judicial notice is the cognizance of certain facts that judges may properly take and
act on without proof because these facts are already known to them; it is the duty
of the court to assume something as matters of fact without need of further
evidentiary support."
Resolution of Both Houses No. 4 is an official act of Congress, thus, this Court can
take judicial notice thereof. The Court also notes that respondents annexed a copy
of the Resolution to their Consolidated Comment. Hence, We see no reason to
consider petitioners' failure to submit a certified copy of the Resolution as a fatal
defect that forecloses this Court's review of the petitions.
The President should be dropped as party respondent
Presidential privilege of immunity from suit is a well-settled doctrine in our
jurisprudence. The President may not be sued during his tenure or actual
incumbency, and there is no need to expressly grant such privilege in the
Constitution or law. This privilege stems from the recognition of the President's vast
and significant functions which can be disrupted by court
litigations.
Accordingly, in David, the Court ruled that it was improper to implead former
President Gloria Macapagal-Arroyo in the petitions assailing the constitutionality of
Presidential Proclamation No. 1017, where she declared a state of national
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emergency, and General Order No. 5, where she called upon the AFP and the
Philippine National Police (PNP) to prevent and suppress acts of terrorism and
lawless violence in the country.
It is, thus, clear that petitioners in G.R. Nos. 236061 and 236145 committed a
procedural misstep in including the President as a respondent in their petitions.
The Congress is an indispensable party to the consolidated petitions.
Of the four petitions before the Court, only G.R. No. 236145 impleaded the
Congress as party-respondent.
Section 7, Rule 3 of the Rules of Court requires that "parties in interest without
whom no final determination can be had of an action shall be joined as plaintiffs or
defendants."
In these consolidated petitions, petitioners are questioning the constitutionality of a
congressional act, specifically the approval of the President's request to extend
martial law in Mindanao. Petitioners in G.R. Nos. 235935 and 236155 have also
put in issue the manner in which the Congress deliberated upon the President's
request for extension. Clearly, therefore, it is the Congress as a body, and not just
its leadership, which has interest in the subject matter of these cases.
Consequently, it was procedurally incorrect for petitioners in G.R. Nos. 235935,
236061 and 236155 to implead only the Senate President and the House Speaker
among the respondents.
Arguably, Senator Aquilino Pimentel III and House Speaker Pantaleon Alvarez can
be said to have an interest in these cases, as representatives of the Senate and
the House of Representatives, respectively. However, considering that one of their
main contentions is that the "supermajority" of the Congress gravely abused their
discretion when they allegedly railroaded the adoption of Resolution of Both
Houses No. 4, it stands to reason and the requirements of due process that
petitioners in G.R. Nos. 235935 and 236061 should have impleaded the Congress
as a whole. Needless to say, the entire body of Congress, and not merely the
respective leaders of its two Houses, will be directly affected should We strike
down the extension of martial law. Thus, We hold that in cases impugning the
extension of martial law for lack of sufficient factual basis, the entire body of the
Congress, composed of the Senate and the House of Representatives, must be
impleaded, being an indispensable party thereto.
It is true that a party's failure to implead an indispensable party is not per se a
ground for the dismissal of the action, as said party may be added, by order of the
court on motion of the party or motu proprio, at any stage of the action or at such
times as are just. However, it remains essential — as it is jurisdictional — that an
indispensable party be impleaded before judgment is rendered by the court, as the
absence of such indispensable party renders all subsequent acts of the court null
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and void for want of authority to act, not only as to the absent parties but even as
to those present. Joining indispensable parties into an action is mandatory, being a
requirement of due process. In their absence, the judgment cannot attain real
finality.
We are, thus, unprepared to trivialize the necessity to implead the entire Congress
as party-respondent in this proceeding, especially considering that the factual
scenario and the concomitant issues raised herein are novel and unprecedented.
Nevertheless, inasmuch as the Congress was impleaded as a respondent in G.R.
No. 236145 and the OSG has entered its appearance and argued for all the
respondents named in the four consolidated petitions, the Court finds that the
"essential" and "jurisdictional" requirement of impleading an indispensable party
has been substantially complied with.
The Court is not barred by the doctrine of conclusiveness of judgment from
examining the persistence of rebellion in Mindanao
Citing the doctrine of conclusiveness of judgment, respondents contend that
petitioners could no longer raise the issue of the existence of rebellion in
Mindanao, in light of this Court's ruling in Lagman and Padilla v. Congress.
Reliance on the doctrine of conclusiveness of judgment is misplaced.
Conclusiveness of judgment, a species of the principle of res judicata, bars the re-
litigation of any right, fact or matter in issue directly adjudicated or necessarily
involved in the determination of an action before a competent court in which
judgment is rendered on the merits. In order to successfully apply in a succeeding
litigation the doctrine of conclusiveness of judgment, mere identities of parties and
issues is required.
In this case, despite the addition of new petitioners, We find that there is
substantial identity of parties between the present petitions and the earlier Lagman
case given their privity or shared interest in either protesting or supporting martial
law in Mindanao. It is settled that for purposes of res judicata, only substantial
identity of parties is required and not absolute identity. There is substantial identity
of parties when there is community of interest between a party in the first case and
a party in the second case even if the latter was not impleaded in the first case.
As to the second requirement, We do not find that there is identity of issues
between the Lagman and Padilla cases, on one hand, and the case at bar.
In contrast, the consolidated petitions at hand essentially assail the Congress' act
of approving the President's December 8, 2017 request and extending the
declaration of martial law in Mindanao from January 1 to December 31, 2018. In
SAMMIE
support of their case, petitioners argue that rebellion no longer persists in
Mindanao and that public safety is not endangered by the existence of mere
"remnants" of the Maute group, ASG, DAESH-inspired DIWM members.
Although there are similarities in the arguments of petitioners in the earlier Lagman
case and the petitions at bar, We do not find that petitioners are seeking to re-
litigate a matter already settled in the Lagman case with respect to the existence of
rebellion. A reading of the consolidated petitions reveals that petitioners do not
contest the existence of violence committed by various armed groups in Mindanao.
From the foregoing, it appears that petitioners merely question the gravity and
extent of these occurrences as to necessitate the continued implementation of
martial law in Mindanao. In other words, the issue put forth by petitioners in the
earlier Lagman case, which this Court already settled, refers to the existence of a
state of rebellion which would trigger the President's initial declaration of martial
law, whereas the factual issue in the case at bar refers to the persistence of the
same rebellion in Mindanao which would justify the extension of martial law.
That petitioners are not barred from questioning the alleged persistence of the
rebellion in these consolidated petitions is also supported by the transitory nature
of the Court's judgment on the sufficiency of the factual basis for a declaration of
martial law. The following exchange during the deliberations of the 1986
Constitutional Commission is instructive.
Verily, the Court's review in martial law cases is largely dependent on the existing
factual scenario used as basis for its imposition or extension. The gravity and
scope of rebellion or invasion, as the case may be, should necessarily be re-
examined, in order to make a justiciable determination on whether rebellion
persists in Mindanao as to justify an extension of a state of martial law.
The Court's power to review the extension of martial law is limited solely to
the determination of the sufficiency of the factual basis thereof.
Section 1, Article VIII of the Constitution pertains to the Court's judicial power to
settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. The first part is
to be known as the traditional concept of judicial power while the latter part, an
innovation of the 1987 Constitution, became known as the court's expanded
jurisdiction. Under its expanded jurisdiction, courts can now delve into acts of any
branch or instrumentality of the Government traditionally considered as political if
such act was tainted with grave abuse of discretion.
88
In seeking the Court's review of the extension of Proclamation No. 216 on the
strength of the third paragraph of Section 18, Article VII of the Constitution,
petitioners in G.R. No. 235935 alternately invoke the Court's expanded (certiorari)
jurisdiction under Section 1, Article VIII.
In Lagman,We emphasized that this Court's jurisdiction under the third paragraph
of Section 18, Article VII is special and specific, different from those enumerated in
Sections 1 and 5 of Article VIII. It was further stressed therein that the standard of
review in a petition for certiorari is whether the respondent has committed any
grave abuse of discretion amounting to lack or excess of jurisdiction in the
performance of his or her functions, whereas under Section 18, Article VII, the
Court is tasked to review the sufficiency of the factual basis of the President's
exercise of emergency powers. Hence, the Court concluded that a petition for
certiorari pursuant to Section 1 or Section 5 of Article VIII is not the proper tool to
review the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus. We held that to apply the
standard of review in a petition for certiorari will emasculate the Court's
constitutional task under Section 18, Article VII, which was precisely meant to
provide an additional safeguard against possible martial law abuse and limit the
extent of the powers of the Commander-in-Chief.
With regard to the extension of the proclamation of martial law or the suspension of
the privilege of the writ, the same special and specific jurisdiction is vested in the
Court to review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual basis thereof. Necessarily, and by parity of reasoning, acertiorari petition
invoking the Court's expanded jurisdiction is not the proper remedy to review the
sufficiency of the factual basis of the Congress' extension of the proclamation of
martial law or suspension of the privilege of the writ.
Furthermore, as in the case of the Court's review of the President's proclamation of
martial law or suspension of the privilege of the writ, the Court's judicial review of
the Congress' extension of such proclamation or suspension is limited only to a
determination of the sufficiency of the factual basis thereof. By its plain language,
the Constitution provides such scope of review in the exercise of the Court's sui
generis authority under Section 18, Article VII, which is principally aimed at
balancing (or curtailing) the power vested by the Constitution in the Congress to
determine whether to extend such proclamation or suspension.
Substantive Issues
Congressional check on the exercise of martial law and suspension powers
Under the 1935 and 1973 Constitutions, the Congress had no power to review or
limit the Executive's exercise of the authority to declare martial law or to suspend
the privilege of the writ of habeas corpus. Borne of the country's martial law
SAMMIE
experience under the Marcos regime, such power was subsequently established in
the 1987 Constitution as part of a system of checks and balance designed to
forestall any potential abuse of an extraordinary power lodged in the President as
Commander-in-Chief of the country's armed forces.
The 1987 Constitution grants the Congress the power to shorten or extend the
President's proclamation of martial law or suspension of the privilege of the writ of
habeas corpus. Section 18, Article VII of the 1987 Constitution.
Joint executive and legislative act
When approved by the Congress, the extension of the proclamation or suspension,
as described during the deliberations on the 1987 Constitution, becomes a "joint
executive and legislative act" or a "collective judgment" between the President and
the Congress.
At the core of the instant petitions is a challenge to the "joint executive and
legislative act," embodied in the President's December 8, 2017 initiative and in the
latter's Resolution of Both Houses No. 4, which further extended the
implementation of martial law and the suspension of the privilege of the writ of
habeas corpus in the entire Mindanao for one year, from January 1 to December
31, 2018. Petitioners assail not only the sufficiency of the factual basis of this
extension, but also the manner in which it was approved.
The manner in which Congress deliberated on the President's request for
extension is not subject to judicial review
Petitioners question the manner that the Congress approved the extension of
martial law in Mindanao and characterized the same as done with undue haste.
Petitioners premised their argument on the fact that the Joint Rules adopted by
both Houses, in regard to the President's request for further extension, provided for
an inordinately short period for interpellation of resource persons and for
explanation by each Member after the voting is concluded.
The assailed provisions refer to Section 7 of Rule V and Section 14 of Rule VIII of
the Rules of the Joint Session of Congress on the Call of the President to Further
Extend the Period of Proclamation No. 216, Series of 2017.
No less than the Constitution, under Section 16 of Article VI, grants the Congress
the right to promulgate its own rules to govern its proceedings.
Construing the full discretionary power granted to the Congress in promulgating its
rules, the Court, in the case of Spouses Dela Paz (Ret.) v. Senate Committee on
Foreign Relations, et al. explained that the limitation of this unrestricted power
deals only with the imperatives of quorum, voting and publication. It should be
89
added that there must be a reasonable relation between the mode or method of
proceeding established by the rule and the result which is sought to be attained.
The rules in question do not pertain to quorum, voting or publication. Furthermore,
deliberations on extending martial law certainly cannot be equated to the
consideration of regular or ordinary legislation. The Congress may consider such
matters as urgent as to necessitate swift action, or it may take its time investigating
the factual situation. This Court cannot engage in undue speculation that members
of Congress did not review and study the President's request based on a bare
allegation that the time allotted for deliberation was too short.
Legislative rules, unlike statutory laws, do not have the imprints of permanence
and obligatoriness during their effectivity. In fact, they may be revoked, modified or
waived at the pleasure of the body adopting them. Being merely matters of
procedure, their observance are of no concern to the courts. Absent a showing of
"violation of a constitutional provision or the rights of private individuals," the Court
will not intrude into this legislative realm. Constitutional respect and a becoming
regard for the sovereign acts of a coequal branch prevents the Court from prying
into the internal workings of the Congress.
Furthermore, it has not escaped this Court's attention that the rules that governed
the Joint Session were in fact adopted, without objection, by both Houses of
Congress on December 13, 2017. So also, the Transcript of the Plenary
Proceedings of the Joint Session showed that Members of Congress were, upon
request, granted extension of their time to interpellate.
Congress has the power to extend and determine the period of martial law
and the suspension of the privilege of the writ of habeas corpus
In Section 18, Article VII of the 1987 Constitution, the provision is indisputably
silent as to how many times the Congress, upon the initiative of the President, may
extend the proclamation of martial law or the suspension of the privilege of habeas
corpus. Such silence, however, should not be construed as a vacuum, flaw or
deficiency in the provision. While it does not specify the number of times that the
Congress is allowed to approve an extension of martial law or the suspension of
the privilege of the writ of habeas corpus, Section 18, Article VII is clear that the
only limitations to the exercise of the congressional authority to extend such
proclamation or suspension are that the extension should be upon the President's
initiative; that it should be grounded on the persistence of the invasion or rebellion
and the demands of public safety; and that it is subject to the Court's review of the
sufficiency of its factual basis upon the petition of any citizen.
A cardinal rule in statutory construction is that when the law is clear and free from
any doubt or ambiguity, there is no room for construction or interpretation, but only
for application. Thus, whenever there is a determination that the invasion or
SAMMIE
rebellion persists and public safety requires the extension of martial law or of the
suspension of the privilege of the writ, the Congress may exercise its authority to
grant such extension as may be requested by the President, even if it be
subsequent to the initial extension.
Section 18, Article VII did not also fix the period of the extension of the
proclamation and suspension. However, it clearly gave the Congress the authority
to decide on its duration; thus, the provision states that that the extension shall be
"for a period to be determined by the Congress." If it were the intention of the
framers of the Constitution to limit the extension to sixty (60) days, as petitioners in
G.R. No. 235935 theorize, they would not have expressly vested in the Congress
the power to fix its duration.
The Court cannot accept said petitioners' argument that the 60-day limit can be
deduced from the following clause in Section 18, Article VII: "the Congress may,in
the same manner, extend such proclamation or suspension." The word "manner"
means a way a thing is done or a mode of procedure; it does not refer to a period
or length of time. Thus, the clause should be understood to mean that the
Congress must observe the same manner of voting required for the revocation of
the initial proclamation or suspension, as mentioned in the sentence preceding it,
i.e., "voting jointly, by a vote of at least a majority of all its Members in regular or
special session."
Even on the assumption that there is a gap in our Constitution anent the frequency
and period of the Congress' extension, and there is a need for this Court to
exercise its power to interpret the law, We undertake the same in such a way as to
reflect the will of the drafters of the Constitution. "While We may not read into the
law a purpose that is not there, We nevertheless have the right to read out of it the
reason for its enactment."
Commissioner Jose E. Suarez's proposal to limit the extension to 60 days was not
adopted by the majority of the Commission's members. The framers evidently gave
enough flexibility on the part of the Congress to determine the duration of the
extension. Plain textual reading of Section 18, Article VII and the records of the
deliberation of the Constitutional Commission buttress the view that as regards the
frequency and duration of the extension, the determinative factor is as long as "the
invasion or rebellion persists and public safety requires" such extension.
The President and the Congress had sufficient factual basis to extend
Proclamation No. 216
Section 18, Article VII of the 1987 Constitution requires two factual bases for the
extension of the proclamation of martial law or of the suspension of the privilege of
the writ of habeas corpus: (a) the invasion or rebellion persists; and (b) public
safety requires the extension.
90
A. Rebellion persists
Rebellion, as applied to the exercise of the President's martial law and suspension
powers, is as defined under Article 134 of the Revised Penal Code.
Rebellion thus exists when "(1) there is a (a) public uprising and (b) taking arms
against the Government; and (2) the purpose of the uprising or movement is either
(a) to remove from the allegiance to the Government or its laws: (i) the territory of
the Philippines or any part thereof; or (ii) any body of land, naval, or other armed
forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any
of their powers and prerogatives."
The President issued Proclamation No. 216 in response to the series of attacks
launched by the Maute Group and other rebel groups in Marawi City. The President
reported to the Congress that these groups had publicly taken up arms for the
purpose of removing Mindanao from its allegiance to the Government and its laws
and establishing a DAESH/ISIS wilayat or province in Mindanao.
On July 22, 2017, upon the President's initiative, Congress extended Proclamation
No. 216 until December 31, 2017.
The ensuing question, therefore, is whether the rebellion persists as to satisfy the
first condition for the extension of martial law or of the suspension of the privilege
of the writ of habeas corpus.
The word "persist" means "to continue to exist," "to go on resolutely or stubbornly
in spite of opposition, importunity or warning," or to "carry on." It is the opposite of
the words "cease," "discontinue," "end," "expire," "finish," "quit," "stop" and
"terminate."
The reasons cited by the President in his request for further extension indicate that
the rebellion, which caused him to issue Proclamation No. 216, continues to exist
and its "remnants" have been resolute in establishing a DAESH/ISIS territory in
Mindanao, carrying on through the recruitment and training of new members,
financial and logistical build-up, consolidation of forces and continued attacks.
The AFP's data also showed that Foreign Terrorist Fighters (FTFs) are now acting
as instructors to the new members of the Dawlah Islamiyah.
These accounts ineluctably show that the rebellion that spawned the Marawi crisis
persists, and that its remaining members have regrouped, substantially increased
in number, and are no less determined to turn Mindanao into a DAESH/ISIS
territory.
SAMMIE
Petitioners in G.R. No. 235935 argue that "remnants" or a residue of a rebel group
cannot possibly mount a rebellion. The argument, however, fails to take into
account the 185 persons identified in the Martial Law Arrest Orders who are still at
large; the 400 new members whom said remnants were able to recruit; the influx of
48 FTFs who are training the new recruits in their ways of terrorism; and the
financial and logistical build-up which the group is currently undertaking with their
sympathizers and protectors. It likewise fails to consider that the new Dawlah
Islamiyah members number nearly the same as the group that initially stormed
Marawi City, and while the government succeeded in vanquishing 1,010 rebels
following the siege, it took several months to accomplish this even under martial
law. Thus, it will be imprudent nay reckless to downplay or dismiss the capacity of
said remnants to relentlessly pursue their objective of establishing a seat of
DAESH/ISIS power in Mindanao.
B. Public safety requires the extension
In Lagman, the Court defined "public safety" as follows:
Public safety, which is another component element for the declaration of martial
law, "involves the prevention of and protection from events that could endanger the
safety of the general public from significant danger, injury/harm, or damage,
such as crimes or disasters." Public safety is an abstract term; it does not take
any physical form. Plainly, its range, extent or scope could not be physically
measured by metes and bounds. (Emphasis ours)
The question, therefore, is whether the acts, circumstances and events upon which
the extension was based posed a significant danger, injury or harm to the general
public. The Court answers in the affirmative.
As his December 8, 2017 letter to the Congress would show, the President's
request for further extension had been based on the security assessment of the
AFP and the PNP. Notably, the President also acknowledged that the grounds or
"essential facts" cited in his letter were of his "personal knowledge" as
Commander-in-Chief of the armed forces. The President's request to Congress
also referred to the monitoring activities that led to the Executive's findings, which
the AFP confirmed during the January 17, 2018 oral argument.
According to Executive Secretary Salvador Medialdea, the President made his
request to the Congress after "a careful personal evaluation" of the reports from
the Martial Law Administrator, Martial Law Implementor, the PNP, the National
Security Adviser and the National Intelligence Coordinating Agency (NICA), as well
as information gathered from local government officials and residents of Mindanao.
On December 12, 2017, the AFP separately gave the Senate and the House of
Representatives a briefing on the Executive Department's basis for requesting the
further extension of Proclamation No. 216.
91
At the Joint Session, of the Congress held on December 13, 2017 Executive
Secretary Salvador Medialdea, Defense Secretary Delfin Lorenzana, AFP General
Guerrero, PNP Chief Ronald Dela Rosa, the head of the NICA, the National
Security Adviser, as well as the Secretaries of the Department of Justice, the
Department of Public Works and Highways, Department of Labor and Employment,
Transportation and Communication, and the Chairman of the Task Force Bangon
Marawi, were present and sworn in as resource persons. Secretary Medialdea
highlighted to the Congress the reasons cited by the President in his request, and
during the course of the session, he, Secretary Lorenzana, AFP General Guerrero
and Senior Deputy Executive Secretary Menardo Guevarra responded to
interpellations from a number of Senators and Representatives on the propriety
and necessity of further extending martial law in Mindanao.
The Joint Session also provided an occasion for the Representative from the
Second District of Lanao del Sur to confirm the recruitment activities of the
"remnants" of the Maute and Hapilon groups.
Following its deliberation on the request for further extension, the Congress, in joint
session, resolved to further extend Proclamation No. 216 for one year, with 240
members voting for, and 27 against, the President's initiative. In approving the
extension, Congress agreed with the factual considerations of the Executive, as
can be gleamed from the 4th and 6th Whereas clauses of Resolution of Both
Houses No. 4.
The information upon which the extension of martial law or of the suspension of the
privilege of the writ of habeas corpus shall be based principally emanate from and
are in the possession of the Executive Department. Thus, "the Court will have to
rely on the fact-finding capabilities of the [E]xecutive [D]epartment; in turn, the
Executive Department will have to open its findings to the scrutiny of the Court."
The Executive Department did open its findings to the Court when the AFP gave its
"briefing" or "presentation" during the oral arguments, presenting data, which had
been vetted by the NICA, "based on intelligence reports gathered on the ground,"
from personalities they were able to capture and residents in affected areas,
declassified official documents, and intelligence obtained by the PNP. According to
the AFP, the same presentation, save for updates, was given to the Congress. As it
stands, the information thus presented has not been challenged or questioned as
regards its reliability.
The facts as provided by the Executive and considered by Congress amply
establish that rebellion persists in Mindanao and public safety is significantly
endangered by it. The Court, thus, holds that there exists sufficient factual basis for
the further extension sought by the President and approved by the Congress in its
Resolution of Both Houses No. 4.
SAMMIE
Necessarily, We do not see the merit to the petitioners' theory in the Cullamat
petition that the extent of threat to public safety as would justify the declaration or
extension of the proclamation of martial law and the suspension of the privilege of
the writ must be of such level that the government cannot sufficiently govern, nor
assure public safety or deliver government services. Petitioners posit that only in
this scenario may martial law be constitutionally permissible.
Restrained caution must be exercised in adopting petitioners' theory for several
reasons. To begin with, a hasty adoption of the suggested scale, level or extent of
threat to public safety is to supplant into the plain text of the Constitution. An
interpretation of the Constitution precedes from the fundamental postulate that the
Constitution is the basic and paramount law to which all other laws must conform
and to which all persons, including the highest officials of the land, must defer. The
consequent duty of the judiciary then is to determine conflicting claims of authority
under the Constitution and to establish for the parties in an actual controversy the
rights which that instrument secures and guarantees to them. This must be so
considering that the Constitution is the mother of all laws, sufficient and complete in
itself. For the Court to categorically pronounce which kind of threat to public safety
justifies the declaration or extension of martial law and which ones do not, is to
improvise on the text of the Constitution ideals even when these ideals are not
expressed as a matter of positive law in the written Constitution. Such judicial
improvisation finds no justification.
For another, if the Court were to be successful in disposing of its bounden duty to
allocate constitutional boundaries, the Constitutional doctrines the Court produces
must necessarily remain steadfast no matter what may be the tides of time. The
adoption of the extreme scenario as the measure of threat to public safety as
suggested by petitioners is to invite doubt as to whether the proclamation of martial
law would be at all effective in such case considering that enemies of the State
raise unconventional methods which change over time. It may happen that by the
time government loses all capability to dispose of its functions, the enemies of the
government might have already been successful in removing allegiance therefrom.
Any declaration then of martial law would be of no useful purpose and such could
not be the intent of the Constitution. Instead, the requirement of public safety as it
presently appears in the Constitution admits of flexibility and discretion on the part
of the Congress.
So too, when the President and the Congress ascertain whether public safety
requires the declaration and extension of martial law, respectively, they do so by
calibrating not only the present state of public safety but the further repercussions
of the actual rebellion to public safety in the future as well.
The requirement of the Constitution is therefore adequately met when there is
sufficient factual basis to hold that the present and past acts constituting the actual
92
rebellion are of such character that endanger and will endanger public safety. This
permissive approach is sanctioned not only by an acknowledgment that the
Congress is and should be allowed flexibility but also because the Court is without
the luxury of time to determine accuracy and precision.
No necessity to impose tests on the choice and manner of the President's
exercise of military powers
We refuse to be tempted by petitioner Rosales' prodding that We set two tests in
reviewing the constitutionality of a declaration or extension of martial law. In her
memorandum, she clarifies the two tests, as follows:
1. Proportionality Test requires that a situation is of such gravity or scale as to
demand resort to the most extreme of measures, i.e., a situation where the
ordinary police powers of the State are no longer sufficient to restore, secure or
preserve public safety; and
2. Suitability Test requires that a situation is such that the declaration of martial law
is the correct tool to address safety problem.
It is sufficient to state that this Court already addressed the same argument in Our
decision in Lagman. The determination of which among the Constitutionally given
military powers should be exercised in a given set of factual circumstances is a
prerogative of the President. The Court's power of review, as provided under
Section 18, Article VII do not empower the Court to advise, nor dictate its own
judgment upon the President, as to which and how these military powers should be
exercised.
Safeguards against abuse
Martial law is a law of necessity. "Necessity creates the conditions for martial law
and at the same time limits the scope of martial law." 184 Thus, when the need for
which Proclamation No. 216 was further extended no longer exists, the President
can lift the martial law imposition even before the end of the one-year period.
Under the same circumstances, the Congress itself may pass a resolution pre-
terminating the extension. This power emanates from the Congress' authority,
granted under the Constitution, to approve the extension and to fix its duration. The
power to determine the period of the extension necessarily includes the power to
shorten it. Furthermore, considering that this Court's judgment on the
constitutionality of an extension is "transitory," or "valid at that certain point of time,"
any citizen may petition the Court to review the sufficiency of the factual basis for
its continued implementation should the President and the Congress fail or refuse
to lift the imposition of martial law. During the deliberations on the 1987
Constitution.
SAMMIE
Petitioners fear that the one-year extension of martial law will only intensify the
human rights violations committed by government forces against civilians. To place
a territory under martial law is undeniably an immense power, and like all other
powers, it may be abused. However, the possibility of abuse and even the country's
martial law experience under
the Marcos regime did not prevent the framers of the 1987 Constitution from
including it among the Commander-in-Chief powers of the President. This is in
recognition of the fact that during critical times when the security or survival of the
state is greatly imperiled, an equally vast and extraordinary measure should be
available for the President to protect and defend it.
Nevertheless, cognizant of such possibility of abuse, the framers of the 1987
Constitution endeavored to institute a system of checks and balances to limit the
President's exercise of the martial law and suspension powers, and to establish
safeguards to protect civil liberties. Thus, pursuant to Section 18, Article VII of the
1987 Constitution.
Human rights violations and abuses in the implementation of martial law and
suspension powers cannot by any measure be condoned. The Court lauds
petitioners' vigilance to make sure that the abuses of the past are not repeated and
perceived abuses of the present will not go unnoticed. However, as the Court
settled in Lagman, alleged human rights violations committed during the
implementation of martial law or the suspension of the privilege of the writ of
habeas corpus should be resolved in a separate proceeding. It, thus, bears noting
some of the remedies, requirements and penalties imposed under existing laws,
meant to address abuses by arresting or investigating public officers.
Under R.A. No. 9372 or the Human Security Act of 2007, rebellion may be
subsumed in the crime of terrorism; it is one of the means by which terrorism can
be committed. 194 R.A. No. 9372 imposes specific penalties for failure of the law
enforcement personnel to deliver the suspect to the proper judicial authority within
the prescribed period, for violating the rights of the detainee, and for using torture
in the interrogation or investigation of a detainee.
This Court has likewise promulgated rules aimed at enforcing human rights. In A.M.
No. 07-9-12-SC, this Court made available the remedy of a writ of amparo to any
person whose right to life, liberty and security is violated or threatened with
violation by an unlawful act or omission of a public official or employee, or of a
private individual or entity. Similarly, in A.M. No. 08-1-16-SC, this Court also crafted
the rule on the writ ofhabeas data to provide a remedy for any person whose right
to privacy in life, liberty or security is violated or threatened by an unlawful act or
omission of a public official or employee, or of a private individual or entity engaged
in the gathering, collecting or storing of data or information regarding the person,
family, home and correspondence of the aggrieved party.
93
It also bears to note that the Philippines, is a signatory to the Universal Declaration
of Human Rights (UDHR), which is embodied in the International Bill of Human
Rights. As such, it recognizes that everyone has the right to liberty and security of
one's person. That no one shall be subjected to arbitrary arrest or detention; or that
no one shall be deprived of his liberty except on such grounds and in accordance
with such procedure as are established by law, are just among the thirty (30)
articles, mentioned in the UDHR setting forth the human rights and fundamental
freedoms to which all men and women, everywhere in the world, are entitled,
without any discrimination.
Significantly, during the Congress' December 13, 2017 Joint Session, the
Executive Department, through Secretary Lorenzana, made an express
commitment to submit a monthly report to the Congress regarding the extended
implementation of martial law in Mindanao. 202 Although not required under
Section 18, Article VII of the 1987 Constitution, the submission of such report is an
ideal complement to the system of checks and balance instituted therein. It will
clearly assist the Congress in evaluating the need to maintain or shorten the period
of extension of martial law in Mindanao; it will also serve as an additional measure
to check on possible abuses or human rights violations in the Executive's
enforcement of martial law.
Petitioners failed to comply with the requisites for the issuance of an
injunctive writ
The purpose of a preliminary injunction under Section 3, Rule 58 of the Rules of
Court, is to prevent threatened or continuous irremediable injury to some of the
parties before their claims can be thoroughly studied and adjudicated. Its sole aim
is to preserve the status quo until the merits of the case can be heard fully. Status
quo is the last actual, peaceable and uncontested situation which precedes a
controversy. By jurisprudence, to be entitled to an injunctive writ, petitioners have
the burden to establish the following requisites: (1) a right in esse or a clear and
unmistakable right to be protected; (2) a violation of that right; (3) that there is an
urgent and permanent act and urgent necessity for the writ to prevent serious
damage; and (4) no other ordinary, speedy, and adequate remedy exists to prevent
the infliction of irreparable injury.
Petitioners anchored their prayer for the issuance of an injunctive writ on
respondents' gross transgressions of the Constitution when they extended the
martial law in Mindanao for one year. The Lagman petition likewise alleges that
petitioner Villarin, a Davao City resident, is personally prejudiced by the extension
or martial law in Mindanao "which would spawn violations of civil liberties of
Mindanaoans like petitioner Villarin who is a steadfast critic of the Duterte
administration and of the brutalities committed by police and military forces."
SAMMIE
These grounds, however, cannot carry the day for the petitioners. Basic is the rule
that mere allegation is not evidence and is not equivalent to proof. These
allegations cannot constitute a rightin esse, as understood in jurisprudence. A right
in esse is a clear and unmistakable right to be protected, one clearly founded on or
granted by law or is enforceable as a matter of law. The existence of a right to be
protected, and the acts against which the writ is to be directed are violative of said
right must be established.
The alleged violations of the petitioners' civil liberties do not justify the grant of
injunctive relief. The petitioners failed to prove that the alleged violations are
directly attributable to the imposition of martial law. They likewise failed to establish
the nexus between the President's exercise of his martial law powers and their
unfounded apprehension that the imposition "will target civilians who have no
participation at all in any armed uprising or struggle." Incidentally, petitioners failed
to state what the"civil liberties" specifically refer to, and how the extension of
martial law in Mindanao would threaten these "civil liberties" in derogation of the
rule of law. Evidently, petitioners' right is doubtful or disputed, and can hardly be
considered a clear legal right, sufficient for the grant of an injunctive writ.
Incidentally, there is nothing in the Constitution, nor in any law which supports
petitioners' theory. Such purported human right violations cannot be utilized as
ground either to enjoin the President from exercising the power to declare martial
law, or the Congress in extending the same. To sanction petitioners' plea would
result into judicial activism, thereby going against the principle of separation of
powers.
As discussed above, petitioners are not left without any recourse. Such
transgressions can be addressed in a separate and independent court action.
Recall that the imposition of martial law does not result in suspending the operation
of the Constitution, nor supplant the functioning of the civil courts nor authorize the
conferment of jurisdiction on military courts and agencies over civilians where civil
courts are able to function. Hence, petitioners can lodge a complaint-affidavit
before the prosecutor's office or file a direct complaint before the appropriate courts
against erring parties.
94
Constantino v. Cuisia, G.R. No. 106064, October 13, 2005
WHEREFORE the petition is hereby DISMISSED. No costs.
The Financing Program was the culmination of efforts that began during the term of
former President Corazon Aquino to manage the country's external debt problem
through a negotiation-oriented debt strategy involving cooperation and negotiation
with foreign creditors. Pursuant to this strategy, the Aquino government entered
into three restructuring agreements with representatives of foreign creditor
governments during the period of 1986 to 1991. During the same period, three
similarly-oriented restructuring agreements were executed with commercial bank
creditors.
On 28 February 1992, the Philippine Debt Negotiating Team, chaired by
respondent Pelaez, negotiated an agreement with the country's Bank Advisory
Committee, representing all foreign commercial bank creditors, on the Financing
Program which respondents characterized as "a multi-option financing package."
The Program was scheduled to be executed on 24 July 1992 by respondents in
behalf of the Republic. Nonetheless, petitioners alleged that even prior to the
execution of the Program respondents had already implemented its "buyback
component" when on 15 May 1992, the Philippines bought back P1.26 billion of
external debts pursuant to the Program.
The petition sought to enjoin the ratification of the Program, but the Court did not
issue any injunctive relief. Hence, it came to pass that the Program was signed in
London as scheduled. The petition still has to be resolved though as petitioners
seek the annulment "of any and all acts done by respondents, their subordinates
and any other public officer pursuant to the agreement and program in question."
Even after the signing of the Program, respondents themselves acknowledged that
the remaining principal objective of the petition is to set aside respondents' actions.
Petitioners characterize the Financing Program as a package offered to the
country's foreign creditors consisting of two debt-relief options. 11 The first option
was a cash buyback of portions of the Philippine foreign debt at a discount. 12 The
second option allowed creditors to convert existing Philippine debt instruments into
any of three kinds of bonds/securities: (1) new money bonds with a five-year grace
period and 17 years final maturity, the purchase of which would allow the creditors
to convert their eligible debt papers into bearer bonds with the same terms; (2)
interest- reduction bonds with a maturity of 25 years; and (3) principal-
collateralized interest- reduction bonds with a maturity of 25 years.
On the other hand, according to respondents the Financing Program would cover
about U.S. $5.3 billion of foreign commercial debts and it was expected to deal
comprehensively with the commercial bank debt problem of the country and pave
the way for the country's access to capital markets. 14 They add that the Program
SAMMIE
carried three basic options from which foreign bank lenders could choose, namely:
to lend money, to exchange existing restructured Philippine debts with an interest
reduction bond; or to exchange the same Philippine debts with a principal
collateralized interest reduction bond.
Issue:
1. debt-relief contracts entered into pursuant to the Financing Program as
beyond the powers granted to the President under Section 20, Article VII of
the Constitution.
2. Even assuming that the contracts were permissible, it is only the president
who may exercise the power to enter into contracts, such power may not be
delegated
3. The financing program violates several constitutional policies and the
contracts were executed with grave abuse of discretion.
Ruling:
1. debt-relief contracts entered into pursuant to the Financing Program as
beyond the powers granted to the President under Section 20, Article VII of
the Constitution.
For their first constitutional argument, petitioners submit that the buyback and
bond-conversion schemes do not constitute the loan "contract" or "guarantee"
contemplated in the Constitution and are consequently prohibited. Sec. 20, Art. VII
of the Constitution.
Loans are transactions wherein the owner of a property allows another party to use
the property and where customarily, the latter promises to return the property after
a specified period with payment for its use, called interest. On the other hand,
bonds are interest-bearing or discounted government or corporate securities that
obligate the issuer to pay the bondholder a specified sum of money, usually at
specific intervals, and to repay the principal amount of the loan at maturity. The
word "bond" means contract, agreement, or guarantee. All of these terms are
applicable to the securities known as bonds. An investor who purchases a bond is
lending money to the issuer, and the bond represents the issuer's contractual
promise to pay interest and repay principal according to specific terms. A short-
term bond is often called a note.
The language of the Constitution is simple and clear as it is broad. It allows the
President to contract and guarantee foreign loans. It makes no prohibition on the
issuance of certain kinds of loans or distinctions as to which kinds of debt
instruments are more onerous than others. This Court may not ascribe to the
Constitution meanings and restrictions that would unduly burden the powers of the
President. The plain, clear and unambiguous language of the Constitution should
be construed in a sense that will allow the full exercise of the power provided
95
therein. It would be the worst kind of judicial legislation if the courts were to
misconstrue and change the meaning of the organic act.
The only restriction that the Constitution provides, aside from the prior concurrence
of the Monetary Board, is that the loans must be subject to limitations provided by
law. In this regard, we note that Republic Act (R.A.) No. 245 as amended by Pres.
Decree (P.D.) No. 142, s. 1973, entitled An Act Authorizing the Secretary of
Finance to Borrow to Meet Public Expenditures Authorized by Law, and for Other
Purposes, allows foreign loans to be contracted in the form of inter alia, bonds.
Under the foregoing provisions, sovereign bonds may be issued not only to
supplement government expenditures but also to provide for the purchase,37
redemption, or refunding of any obligation, either direct or guaranteed, of the
Philippine Government.
Petitioners, however, point out that a supposed difference between contracting a
loan and issuing bonds is that the former creates a definite creditor-debtor
relationship between the parties while the latter does not. They explain that a
contract of loan enables the debtor to restructure or novate the loan, which benefit
is lost upon the conversion of the debts to bearer bonds such that "the Philippines
surrenders the novatable character of a loan contract for the irrevocable and
unpostponable demandability of a bearer bond." Allegedly, the Constitution
prohibits the President from issuing bonds which are "far more onerous" than
loans.
This line of thinking is flawed to say the least. The negotiable character of the
subject bonds is not mutually exclusive with the Republic's freedom to negotiate
with bondholders for the revision of the terms of the debt. Moreover, the securities
market provides some flexibility — if the Philippines wants to pay in advance, it can
buy out its bonds in the market; if interest rates go down but the Philippines does
not have money to retire the bonds, it can replace the old bonds with new ones; if it
defaults on the bonds, the bondholders shall organize and bring about a re-
negotiation or settlement. In fact, several countries have restructured their
sovereign bonds in view either of inability and/or unwillingness to pay the
indebtedness. Petitioners have not presented a plausible reason that would
preclude the Philippines from acting in a similar fashion, should it so opt.
This theory may even be dismissed in a perfunctory manner since petitioners are
merely expecting that the Philippines would opt to restructure the bonds but with
the negotiable character of the bonds, would be prevented from so doing. This is a
contingency which petitioners do not assert as having come to pass or even
imminent. Consummated acts of the executive cannot be struck down by this Court
merely on the basis of petitioners' anticipatory cavils.
SAMMIE
On the Buyback Scheme
In their Comment, petitioners assert that the power to pay public debts lies with
Congress and was deliberately withheld by the Constitution from the President. It is
true that in the balance of power between the three branches of government, it is
Congress that manages the country's coffers by virtue of its taxing and spending
powers. However, the law-making authority has promulgated a law ordaining an
automatic appropriations provision for debt servicing by virtue of which the
President is empowered to execute debt payments without the need for further
appropriations. Regarding these legislative enactments.
Petitioners claim that the buyback scheme is neither a guarantee nor a loan since
its underlying intent is to extinguish debts that are not yet due and demandable.
Thus, they suggest that contracts entered pursuant to the buyback scheme are
unconstitutional for not being among those contemplated in Sec. 20, Art. VII of the
Constitution.
Buyback is a necessary power which springs from the grant of the foreign
borrowing power. Every statute is understood, by implication, to contain all such
provisions as may be necessary to effectuate its object and purpose, or to make
effective rights, powers, privileges or jurisdiction which it grants, including all such
collateral and subsidiary consequences as may be fairly and logically inferred from
its terms. The President is not empowered to borrow money from foreign banks
and governments on the credit of the Republic only to be left bereft of authority to
implement the payment despite appropriations therefor.
Even petitioners concede that "[t]he Constitution, as a rule, does not enumerate–
let alone enumerate all — the acts which the President (or any other public officer)
may not do," and "[t]he fact that the Constitution does not explicitly bar the
President from exercising a power does not mean that he or she does not have
that power." It is inescapable from the standpoint of reason and necessity that the
authority to contract foreign loans and guarantees without restrictions on payment
or manner thereof coupled with the availability of the corresponding appropriations,
must include the power to effect payments or to make payments unavailing by
either restructuring the loans or even refusing to make any payment altogether.
More fundamentally, when taken in the context of sovereign debts, a buyback is
simply the purchase by the sovereign issuer of its own debts at a discount. Clearly
then, the objection to the validity of the buyback scheme is without basis.
2. Even assuming that the contracts were permissible, it is only the president
who may exercise the power to enter into contracts, such power may not be
delegated
96
Petitioners stress that unlike other powers which may be validly delegated by the
President, the power to incur foreign debts is expressly reserved by the
Constitution in the person of the President. They argue that the gravity by which
the exercise of the power will affect the Filipino nation requires that the President
alone must exercise this power. They submit that the requirement of prior
concurrence of an entity specifically named by the Constitution — the Monetary
Board — reinforces the submission that not respondents but the President "alone
and personally" can validly bind the country.
Petitioners' position is negated both by explicit constitutional and legal imprimaturs,
as well as the doctrine of qualified political agency.
The evident exigency of having the Secretary of Finance implement the decision of
the President to execute the debt-relief contracts is made manifest by the fact that
the process of establishing and executing a strategy for managing the
government's debt is deep within the realm of the expertise of the Department of
Finance, primed as it is to raise the required amount of funding, achieve its risk and
cost objectives, and meet any other sovereign debt management goals.
If, as petitioners would have it, the President were to personally exercise every
aspect of the foreign borrowing power, he/she would have to pause from running
the country long enough to focus on a welter of time-consuming detailed activities
— the propriety of incurring/guaranteeing loans, studying and choosing among the
many methods that may be taken toward this end, meeting countless times with
creditor representatives to negotiate, obtaining the concurrence of the Monetary
Board, explaining and defending the negotiated deal to the public, and more often
than not, flying to the agreed place of execution to sign the documents. This sort of
constitutional interpretation would negate the very existence of cabinet positions
and the respective expertise which the holders thereof are accorded and would
unduly hamper the President's effectivity in running the government.
As it was, the backdrop consisted of a major policy determination made by then
President Aquino that sovereign debts have to be respected and the concomitant
reality that the Philippines did not have enough funds to pay the debts. Inevitably, it
fell upon the Secretary of Finance, as the alter ego of the President regarding "the
sound and efficient management of the financial resources of the Government," to
formulate a scheme for the implementation of the policy publicly expressed by the
President herself. Nevertheless, there are powers vested in the President by the
Constitution which may not be delegated to or exercised by an agent or alter ego of
the President.
These distinctions hold true to this day. There are certain presidential powers which
arise out of exceptional circumstances, and if exercised, would involve the
suspension of fundamental freedoms, or at least call for the supersedence of
executive prerogatives over those exercised by co-equal branches of government.
SAMMIE
The declaration of martial law, the suspension of the writ of habeas corpus, and the
exercise of the pardoning power notwithstanding the judicial determination of guilt
of the accused, all fall within this special class that demands the exclusive exercise
by the President of the constitutionally vested power. The list is by no means
exclusive, but there must be a showing that the executive power in question is of
similar gravitas and exceptional import.
We cannot conclude that the power of the President to contract or guarantee
foreign debts falls within the same exceptional class. Indubitably, the decision to
contract or guarantee foreign debts is of vital public interest, but only akin to any
contractual obligation undertaken by the sovereign, which arises not from any
extraordinary incident, but from the established functions of governance.
Another important qualification must be made. The Secretary of Finance or any
designated alter ego of the President is bound to secure the latter's prior consent to
or subsequent ratification of his acts. In the matter of contracting or guaranteeing
foreign loans, the repudiation by the President of the very acts performed in this
regard by the alter ego will definitely have binding effect. Had petitioners herein
succeeded in demonstrating that the President actually withheld approval and/or
repudiated the Financing Program, there could be a cause of action to nullify the
acts of respondents. Notably though, petitioners do not assert that respondents
pursued the Program without prior authorization of the President or that the terms
of the contract were agreed upon without the President's authorization. Congruent
with the avowed preference of then President Aquino to honor and restructure
existing foreign debts, the lack of showing that she countermanded the acts of
respondents leads us to conclude that said acts carried presidential approval.
With constitutional parameters already established, we may also note, as a source
of suppletory guidance, the provisions of R.A. No. 245. The afore-quoted Section 1
thereof empowers the Secretary of Finance with the approval of the President and
after consultation of the Monetary Board, "to borrow from time to time on the credit
of the Republic of the Philippines such sum or sums as in his judgment may be
necessary, and to issue therefor evidences of indebtedness of the Philippine
Government." Ineluctably then, while the President wields the borrowing power it is
the Secretary of Finance who normally carries out its thrusts.
In our recent rulings inSouthern Cross Cement Corporation v. The Philippine
Cement Manufacturers Corp. , this Court had occasion to examine the authority
granted by Congress to the Department of Trade and Industry (DTI) Secretary to
impose safeguard measures pursuant to the Safeguard Measures Act. In doing so,
the Court was impelled to construe Section 28(2), Article VI of the Constitution,
which allowed Congress, by law, to authorize the President to "fix within specified
limits, and subject to such limitations and restrictions as it may impose, tariff rates,
import and export quotas, tonnage and wharfage dues, and other duties or imposts
within the framework of the national development program of the Government."
97
While the Court refused to uphold the broad construction of the grant of power as
preferred by the DTI Secretary, it nonetheless tacitly acknowledged that Congress
could designate the DTI Secretary, in his capacity as alter ego of the President, to
exercise the authority vested on the chief executive under Section 28(2), Article VI.
At the same time, the Court emphasized that since Section 28(2), Article VI
authorized Congress to impose limitations and restrictions on the authority of the
President to impose tariffs and imposts, the DTI Secretary was necessarily
subjected to the same restrictions that Congress could impose on the President in
the exercise of this taxing power.
Similarly, in the instant case, the Constitution allocates to the President the
exercise of the foreign borrowing power "subject to such limitations as may be
provided under law." Following Southern Cross, but in line with the limitations as
defined in Villena, the presidential prerogative may be exercised by the President's
alter ego, who in this case is the Secretary of Finance.
It bears emphasis that apart from the Constitution, there is also a relevant statute,
R.A. No. 245, that establishes the parameters by which the alter ego may act in
behalf of the President with respect to the borrowing power. This law expressly
provides that the Secretary of Finance may enter into foreign borrowing contracts.
This law neither amends nor goes contrary to the Constitution but merely
implements the subject provision in a manner consistent with the structure of the
Executive Department and the alter ego doctine. In this regard, respondents have
declared that they have followed the restrictions provided under R.A. No. 245,
which include the requisite presidential authorization and which, in the absence of
proof and even allegation to the contrary, should be regarded in a fashion
congruent with the presumption of regularity bestowed on acts done by public
officials.
Moreover, in praying that the acts of the respondents, especially that of the
Secretary of Finance, be nullified as being in violation of a restrictive constitutional
interpretation, petitioners in effect would have this Court declare R.A. No. 245
unconstitutional. We will not strike down a law or provisions thereof without so
much as a direct attack thereon when simple and logical statutory construction
would suffice.
Petitioners also submit that the unrestricted character of the Financing Program
violates the framers' intent behind Section 20, Article VII to restrict the power of the
President. This intent, petitioners note, is embodied in the proviso in Sec. 20, Art.
VII, which states that said power is "subject to such limitations as may be provided
under law." However, as previously discussed, the debt-relief contracts are
governed by the terms of R.A. No. 245, as amended by P.D. No. 142 s. 1973, and
therefore were not developed in an unrestricted setting.
SAMMIE
3. The financing program violates several constitutional policies and the
contracts were executed with grave abuse of discretion.
Assuming the accuracy of the foregoing for the nonce, despite the watered-down
parameters of petitioners' computations, we can make no conclusion other than
that respondents' efforts were geared towards debt-relief with marked positive
results and towards achieving the constitutional policies which petitioners so hastily
declare as having been violated by respondents. We recognize that as with other
schemes dependent on volatile market and economic structures, the contracts
entered into by respondents may possibly have a net outflow and therefore
negative result. However, even petitioners call this latter event the worst-case
scenario. Plans are seldom foolproof. To ask the Court to strike down debt-relief
contracts, which, according to independent third party evaluations using
historically-suggested rates would result in "substantial debt-relief," based merely
on the possibility of petitioners' worst-case scenario projection, hardly seems
reasonable.
Moreover, the policies set by the Constitution as litanized by petitioners are not a
panacea that can annul every governmental act sought to be struck down. The gist
of petitioners' arguments on violation of constitutional policies and grave abuse of
discretion boils down to their allegation that the debt-relief agreements entered into
by respondents do not deliver the kind of debt-relief that petitioners would want.
Petitioners cite the aforementioned article in stating that that "the agreement
achieves little that cannot be gained through less complicated means like
postponing (rescheduling) principal payments,"
Note must be taken that from these citations, petitioners submit that there is
possibly a better way to go about debt rescheduling and, on that basis, insist that
the acts of respondents must be struck down. These are rather tenuous grounds to
condemn the subject agreements as violative of constitutional principles.
Conclusion
The raison d' etre of the Financing Program is to manage debts incurred by the
Philippines in a manner that will lessen the burden on the Filipino taxpayers — thus
the term "debt-relief agreements." The measures objected to by petitioners were
not aimed at incurring more debts but at terminating pre-existing debts and were
backed by the know-how of the country's economic managers as affirmed by third
party empirical analysis.
That the means employed to achieve the goal of debt-relief do not sit well with
petitioners is beyond the power of this Court to remedy. The exercise of the power
of judicial review is merely to check — not supplant — the Executive, or to simply
ascertain whether he has gone beyond the constitutional limits of his jurisdiction
but not to exercise the power vested in him or to determine the wisdom of his act.
98
In cases where the main purpose is to nullify governmental acts whether as
unconstitutional or done with grave abuse of discretion, there is a strong
presumption in favor of the validity of the assailed acts. The heavy onus is in on
petitioners to overcome the presumption of regularity.
We find that petitioners have not sufficiently established any basis for the Court to
declare the acts of respondents as unconstitutional.
SAMMIE
Bayan v. Zamora, 342 SCRA 449 (2000)
IN VIEW WHEREOF, the petition is DISMISSED.
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.
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.
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.
The Office of the Solicitor General, commenting for the respondents, questioned
the standing of the petitioners to file the instant suit. It also contended that the
petition at bar violates the rule on hierarchy of courts. On the substantive issue
raised by petitioners, respondents argue that the executive department has no duty
to transmit the Rome Statute to the Senate for concurrence.
Issue:
1. 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. (NO)
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
99
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. 13 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.
In filing this petition, the petitioners interpret Section 21, Article VII of the 1987
Constitution to mean that the power to ratify treaties belongs to the Senate.
We disagree.
Petitioners' arguments equate the signing of the treaty by the Philippine
representative with ratification. 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
SAMMIE
the Senate, the Department of Foreign Affairs shall comply with the provisions of
the treaty to render it effective. Section 7 of Executive Order No. 459.
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
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 o f 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.
 100
Saguisag v. Ochoa, G.R. No. 212426, January 12, 2016
WHEREFORE, we hereby DISMISS the petitions.
The petitioners led this petition to question the constitutionality of the Enhanced
Defense Cooperation Agreement (EDCA) between the Republic of the Philippines
and the United States of America (U.S.). Petitioners allege that respondents
committed grave abuse of discretion amounting to lack or excess of jurisdiction
when they entered into EDCA with the U.S., claiming that the instrument violated
multiple constitutional provisions. In reply, respondents argue that petitioners lack
standing to bring the suit. To support the legality of their actions, respondents
invoke the 1987 Constitution, treaties, and judicial precedents.
Issues:
1. Whether the President may enter into an executive agreement on foreign
military bases, troops, or facilities and stay consistent with the Constitution,
as well as with existing laws and treaties (yes)
Ruling:
1. Analysis pro ered when it claims that the foreign relations power of the
President should not be interpreted in isolation. The analysis itself
demonstrates how the foreign a airs function, while mostly the President's,
is shared in several instances, namely in Section 2 of Article II on the
conduct of war; Sections 20 and 21 of Article VII on foreign loans, treaties,
and international agreements; Sections 4 (2) and 5 (2) (a) of Article VIII on
the judicial review of executive acts; Sections 4 and 25 of Article XVIII on
treaties and international agreements entered into prior to the Constitution
and on the presence of foreign military troops, bases, or facilities.
In fact, the analysis devotes a whole subheading to the relationship between the
two major presidential functions and the role of the Senate in it.
This approach of giving utmost deference to presidential initiatives in respect of
foreign a airs is not novel to the Court. The President's act of treating EDCA as an
executive agreement is not the principal power being analyzed as the Dissenting
Opinion seems to suggest. Rather, the preliminary analysis is in reference to the
expansive power of foreign a airs. We have long treated this power as something
the Courts must not unduly restrict.
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Despite the President's roles as defender of the State and sole authority in foreign
relations, the 1987 Constitution expressly limits his ability in instances when it
involves the entry of foreign military bases, troops or facilities. The initial limitation
is found in Section 21 of the provisions on the Executive Department: "No treaty
or international agreement shall be valid and e ective unless concurred in by at
least two-thirds of all the Members of the Senate." The speci c limitation is given
by Section 25 of the Transitory Provisions, the full text of which reads as follows:
SECTION 25. After the expiration in 1991 of the Agreement between the Republic
of the Philippines and the United States of America concerning Military Bases,
foreign military bases, troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and, when the Congress so
requires, rati ed by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other
contracting State.
It is quite plain that the Transitory Provisions of the 1987 Constitution intended to
add to the basic requirements of a treaty under Section 21 of Article VII. This
means that both provisions must be read as additional limitations to the
President's overarching executive function in matters of defense and foreign
relations.
Again we refer to Section 25, Article XVIII of the Constitution:
SECTION 25. After the expiration in 1991 of the Agreement between the Republic
of the Philippines and the United States of America concerning Military Bases,
foreign military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate and, when
the Congress so requires, rati ed by a majority of the votes cast by the people in a
national referendum held for that purpose, and recognized as a treaty by the other
contracting State. (Emphases supplied)
In view of this provision, petitioners argue that EDCA must be in the form of a
"treaty" duly concurred in by the Senate. They stress that the Constitution is
unambigous in mandating the transmission to the Senate of all international
agreements concluded after the expiration of the MBA in 1991 — agreements that
concern the presence of foreign military bases, troops, or facilities in the country.
Accordingly, petitioners maintain that the Executive Department is not given the
choice to conclude agreements like EDCA in the form of an executive agreement.
This is also the view of the Senate, which, through a majority vote of 15 of its
members — with 1 against and 2 abstaining — says in SR 105 that EDCA must be
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submitted to the Senate in the form of a treaty for concurrence by at least two-
thirds of all its members.
The Senate cites two constitutional provisions (Article VI, Section 21 and Article
XVIII, Section 25) to support its position. Compared with the lone constitutional
provision that the O ce of the Solicitor General (OSG) cites, which is Article XVIII,
Section 4 (2), which includes the constitutionality of "executive agreement(s)"
among the cases subject to the Supreme Court's power of judicial review, the
Constitution clearly requires submission of EDCA to the Senate. Two speci c
provisions versus one general provision means that the speci c provisions prevail.
The term "executive agreement" is "a term wandering alone in the Constitution,
bereft of provenance and an unidenti ed constitutional mystery."
The author of SR 105, Senator Miriam Defensor Santiago, upon interpellation even
added that the MDT, which the Executive claims to be partly implemented through
EDCA, is already obsolete.
There are two insurmountable obstacles to this Court's agreement with SR 105, as
well as with the comment on interpellation made by Senator Santiago.
First, the concept of "executive agreement" is so well-entrenched in this Court's
pronouncements on the powers of the President. When the Court validated the
concept of "executive agreement," it did so with full knowledge of the Senate's
role in concurring in treaties. It was aware of the problematique of distinguishing
when an international agreement needed Senate concurrence for validity, and
when it did not; and the Court continued to validate the existence of "executive
agreements" even after the 1987 Constitution. This follows a long line of similar
decisions upholding the power of the President to enter into an executive
agreement.
Second, the MDT has not been rendered obsolescent, considering that as late as
2009, this Court continued to recognize its validity.
Third, to this Court, a plain textual reading of Article XIII, Section 25, inevitably
leads to the conclusion that it applies only to a proposed agreement between our
government and a foreign government, whereby military bases, troops, or facilities
of such foreign government would be "allowed" or would "gain entry" Philippine
territory.
Note that the provision "shall not be allowed" is a negative injunction. This
wording signi es that the President is not authorized by law to allow foreign
military bases, troops, or facilities to enter the Philippines, except under a treaty
concurred in by the Senate. Hence, the constitutionally restricted authority
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pertains to the entry of the bases, troops, or facilities, and not to the activities to
be done after entry.
It is evident that the constitutional restriction refers solely to the initial entry of the
foreign military bases, troops, or facilities. Once entry is authorized, the
subsequent acts are thereafter subject only to the limitations provided by the rest
of the Constitution and Philippine law, and not to the Section 25 requirement of
validity through a treaty.
The VFA has already allowed the entry of troops in the Philippines. This Court
stated inLim v. Executive Secretary:
After studied re ection, it appeared farfetched that the ambiguity surrounding the
meaning of the word "activities" arose from accident. In our view, it was
deliberately made that way to give both parties a certain leeway in negotiation. In
this manner, visiting US forces may sojourn in Philippine territory for
purposes other than military. As conceived, the joint exercises may include
training on new techniques of patrol and surveillance to protect the nation's
marine resources, sea search-and-rescue operations to assist vessels in distress,
disaster relief operations, civic action projects such as the building of school
houses, medical and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises.
It is only logical to assume that "Balikatan 02-1," a "mutual anti-terrorism advising,
assisting and training exercise," falls under the umbrella of sanctioned or
allowable activities in the context of the agreement. Both the history and intent of
the Mutual Defense Treaty and the VFA support the conclusion that combat-
related activities -as opposed to combat itself-such as the one subject of the
instant petition, are indeed authorized. (Emphasis supplied)
Moreover, the Court indicated that the Constitution continues to govern the
conduct of foreign military troops in the Philippines, readily implying the legality of
their initial entry into the country.
The President may generally enter into executive agreements subject to
limitations de ned by the Constitution and may be in furtherance of a treaty
already concurred in by the Senate.
It would be helpful to put into context the contested language found in Article
XVIII, Section 25. Its more exacting requirement was introduced because of the
previous experience of the country when its representatives felt compelled to
consent to the old MBA. They felt constrained to agree to the MBA in ful lment of
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one of the major conditions for the country to gain independence from the U.S. As
a result of that experience, a second layer of consent for agreements that allow
military bases, troops and facilities in the country is now articulated in Article XVIII
of our present Constitution.
This second layer of consent, however, cannot be interpreted in such a way that
we completely ignore the intent of our constitutional framers when they provided
for that additional layer, nor the vigorous statements of this Court that a rm the
continued existence of that class of international agreements called "executive
agreements."
The power of the President to enter intobinding executive agreements without
Senate concurrence is already well- established in this jurisdiction. That power has
been alluded to in our present and past Constitutions, in various statutes, in
Supreme Court decisions, and during the deliberations of the Constitutional
Commission. They cover a wide array of subjects with varying scopes and
purposes, including those that involve the presence of foreign military forces in the
country.
As the sole organ of our foreign relations and the constitutionally assigned chief
architect of our foreign policy, the President is vested with the exclusive power to
conduct and manage the country's interface with other states and governments.
Being the principal representative of the Philippines, the Chief Executive speaks
and listens for the nation; initiates, maintains, and develops diplomatic relations
with other states and governments; negotiates and enters into international
agreements; promotes trade, investments, tourism and other economic relations;
and settles international disputes with other states.
As previously discussed, this constitutional mandate emanates from the inherent
power of the President to enter into agreements with other states, including the
prerogative to conclude binding executive agreements that do not require further
Senate concurrence. The existence of this presidential power is so well-
entrenched that Section 5 (2) (a), Article VIII of the Constitution, even provides for
a check on its exercise
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Esmiro v. Duterte, GR No. 256288, June 29, 2021
WHEREFORE, in view of the foregoing, the petition is hereby DISMISSED.
By this Petition for Mandamus, 1 petitioner Atty. Romeo M. Esmero (petitioner)
seeks the issuance of a writ to compel respondent President Rodrigo R. Duterte
(President Duterte) to comply with his constitutional duty to defend the national
territory, which includes the West Philippine Sea, against Chinese incursions.
Ruling:
The petition is DISMISSED for utter lack of merit.
Our ruling in De Lima v. Duterte is clear: the President is immune from suit during
his incumbency, regardless of the nature of the suit filed against him. Petitioner
named President Duterte as the sole respondent in this case. For this reason, this
suit should be dismissed outright.
Even if, for the sake of argument, the Court was inclined to overlook this fatal flaw
and consider the case filed against the Executive Secretary, as the representative
of the President, if only to save the petition from perfunctory dismissal, a writ of
mandamus would still not lie in petitioner's favor.
Section 3, Rule 65 of the Rules of Court provides that amandamus petition may be
resorted to when any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station.
Mandamus is used merely to compel action and to coerce the performance of a
pre-existing duty; it does not lie to control discretion. For a petition for mandamus
to prosper, it must be shown that the subject of the petition is a ministerial act or
duty on the part of the board, officer or person, and that the petitioner has a well-
defined, clear and certain right to warrant the grant thereof. It falls on the petitioner
to show that his clear legal right to the performance of the act, and a corresponding
compelling duty on the part of the respondent to perform the act.
In addition to treaty-making, the President also has the power to appoint
ambassadors, other public ministers, and consuls; receive ambassadors and other
public ministers duly accredited to the Philippines; and deport aliens.
Petitioner submits that it is the ministerial duty of the President, as part of his
mandate to enforce the laws and see to their faithful execution, to "defend" the
national territory by going before the United Nations (UN) to ask the latter to send
"UN Patrol Boats x x x to protect our fishermen." It is also petitioner's view that the
103 SAMMIE

Philippines should "sue China with (sic) the International Court of Justice [(ICJ)]
and demand that China should pay for the Kalayaan Islands which it took from us
for trillions of Dollars in damages."

For all his posturing, however, petitioner has failed to point to any law that
specifically requires the President to go to the UN or the ICJ to sue China for its
incursions into our exclusive economic zone (EEZ). Neither has he shown a clear
and unmistakable constitutional or statutory provision which prescribes how the
President is to respond to any threat (actual or imminent) from another State to our
sovereignty or exercise of our sovereign rights.

Ultimately, the decision of how best to address our disputes with China (be it
militarily, diplomatically, legally) rests on the political branches of government. 35
While we are loath to give a "blank check" especially where the risk of grave abuse
of discretion may be high, we cannot have an "entrammeled executive" who will be
ill-equipped to face the "amorphous threat[s] and perpetrators whose malign intent
may be impossible to know until they strike." The Constitution vests executive
power, which includes the duty to execute the law, protect the Philippines, and
conduct foreign affairs, in the President — not this Court. Barring violations of the
limits provided by law and the Constitution, we should take care not to substitute
our exercise of discretion for his. As "the branch that knows least about the national
security concerns that the subject entails," we cannot, in the words of Justice
Scalia, just simply "blunder in."