Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-46570 April 21, 1939
JOSE D. VILLENA, petitioner,
vs.
THE SECRETARY OF THE INTERIOR, respondent.
Vicente del Rosario for petitioner.
Office of the Solicitor-General Ozaeta for respondent.
LAUREL, J.:
This is an original action of prohibition with prayer for preliminary injunction
against the Secretary of the Interior to restrain him and his agents from
proceeding with the investigation of the herein petitioner, Jose D. Villena,
mayor of Makati, Rizal, which was scheduled to take place on March 28, 1939,
until this case is finally determined by this court. The respondent was required
to answer, but the petition for preliminary injunction was denied.
It appears that the Division of Investigation of the Department of Justice, upon
the request of the Secretary of the Interior, conducted an inquiry into the
conduct of the petitioner, as a result of which the latter was found to have
committed bribery, extortion, malicious abuse of authority and unauthorized
practice of the law profession. The respondent, therefore, on February 8, 1939,
recommended to the President of the Philippines the suspension of the
petitioner to prevent possible coercion of witnesses, which recommendation
was granted, according to the answer of the Solicitor-General of March 20,
1939, verbally by the President on the same day. The Secretary of the Interior
suspended the petitioner from office on February 9, 1939, and then and
thereafter wired the Provincial Governor of Rizal with instruction that the
petitioner be advised accordingly. On February 13, 1939, the respondent wrote
the petitioner a letter, specifying the many charges against him and notifying
him of the designation of Emiliano Anonas as special investigator to investigate
the charges. The special investigator forthwith notified the petitioner that the
formal investigation would be commenced on February 17, 1939, at 9 a. m., but
due to several incidents and postponements, the same had to be set definitely
for March 28, 1939. Hence, the petition for preliminary injunction referred to in
the beginning of this opinion.
The petitioner contends in his petition:
(1) That the Secretary of the Interior has no jurisdiction or authority to
suspend and much less to prefer by himself administrative charges
against the petitioner and decide also by himself the merits of the
charges as the power to suspend municipal elective officials and to try
and punish them for misconduct in office or dereliction of duty is
lodged in some other agencies of the government;
(2) That the acts of the respondent in suspending the petitioner from office
and in preferring by himself charges against him and in designating a
special investigator to hear the charges specified in Exhibit A are null
and void for the following reasons:
(a) Because the Secretary of the Interior, by suspending the petitioner,
has exercised control over local governments when that power has
been taken away from the President of the Philippines by the
Constitution for the to abrogate and the power to abrogate means
the power to power to control has been interpreted to include the
power usurp and the power to usurp necessarily includes the
power to destroy;
(b) Because even if the respondent Secretary of the Interior has power
of supervision over local governments, that power, according to
the constitution, must be exercised in accordance with the
provisions of law and the provisions of law governing trials of
charges against elective municipal officials are those contained in
section 2188 of the Administrative Code as amended. In other
words, the Secretary of the Interior must exercise his supervision
over local governments, if he has that power under existing law, in
accordance with section 2188 of the Administrative Code, as
amended, as the latter provision govern the procedure to be
followed in suspending and punishing elective local officials while
section 79 (C) of the Administrative Code is the general law which
must yield to the special law;
(c) Because the respondent Secretary of the Interior is exercising an
arbitrary power by converting himself into a complainant and at
the same time judge of the charges he has preferred against the
petitioner;
(d) Because the action of the respondent Secretary of the Interior is not
based on any sworn statement of any private person or citizen of
this government when section 2188 of the Administrative Code
requires the complaint against elective municipal officials to be
under oath in order to merit consideration by the authorities.
Petitioner prays this Honorable Court:
(a) To issue a writ of preliminary injunction against the respondent
restraining him, his agents, attorneys and all persons acting by virtue of
his authority from further proceeding against the petitioner until this
case is finally determined by this court;
(b) To declare, after the hearing of this petition, that the respondent is
without authority or jurisdiction to suspend the petitioner from the
office of mayor of Makati and to order his immediate reinstatement in
office;
(c) To declare that the respondent has no authority to prefer charges against
the petitioner and to investigate those charges for the grant him that
power the respondent would be acting as prosecutor and judge of the
case of his own creation.
Upon the other hand, the Solicitor-General contends in his answer:
1. That section 79 (C) in relation with section 86 of the Revised
Administrative Code expressly empowers the respondent as Secretary
of the Interior to "order the investigation of any act or conduct of any
person in the service of any bureau or office under his department"
and in connection therewith to "designate an official or person who
shall conduct such investigation"; (Par. 4.)
2. That although section 2188 of the Revised Administrative Code, invoked
by the petitioner, empowers the provincial governor to `receive and
investigate complaints made under oath against municipal officers for
neglect of duty, oppression, corruption or other form of
maladministration of office', said section does not preclude the
respondent as Secretary of the Interior from exercising the power
vested in him by section 79 (C) in relation with section 86 of the
Revised Administrative Code; and that, moreover, said section 2188
must be read in relation with section 37 of Act No. 4007, known as the
Reorganization Law of 1932; (Par. 4 [b].)
3. That at the commencement of the investigation the petitioner did not
question the power or jurisdiction of the Department of the Interior to
investigate the administrative charges against him but merely
contended that the filing of said charges was not in accordance with
law for the reason that they did not bear the oaths of the complainants;
(Par. 5.)
4. That the authority of a department head order the investigation of any
act or conduct of any person under his department necessarily carries
with it by implication the authority to take such measures as he may
deem necessary to accomplish the purpose of the investigation, such
as by suspending the officer under investigation to prevent coercion of
witnesses; and that, furthermore, the suspension from office of the
herein petitioner by the respondent was authorized by the Chief
Executive, who is empowered by section 64 (B) of the Administrative
Code to remove officials from office; (Par. 7.)
5. That the petition does not allege facts and circumstances that would
warrant the granting of the writ of preliminary injunction under section
164 of the Code of Civil Procedure; (Par. 8.)
6. That it is a well-settled rule "that courts of equity have no power to
restrain public officers by injunction from performing any official act
which they are by law required to perform, or acts which are not in
excess of the authority and discretion reposed in them." (Par. 9)
The issues presented in this case may be reduced to an inquiry into the legal
authority of the Secretary of the Interior (a) to order an investigation, by a
special investigation appointed by him, of the charges of corruption and
irregularity brought to his attention against the mayor of the municipality of
Makati, Province of Rizal, who is the petitioner herein, and (b) to decree the
suspension of the said mayor pending the investigation of the charges.
Section 79 (C) of the Administrative Code provides as follows:
The Department Head shall have direct control, direction, and supervision
over all bureaus and offices under his jurisdiction and may, any provision of
existing law to the contrary notwithstanding, repeal or modify the decisions
of the chiefs of said bureaus of offices when advisable in the public interest.
The Department Head may order the investigation of any act conduct of
any person in the service of any bureau of office under his department and
in connection therewith may appoint a committee or designate an official or
person who shall conduct such investigations, and such committee, official,
or person may summon, witness by subpoena and subpoena duces tecum,
administer oath and take testimony relevant to the investigation.
The above section speaks, it is true, of direct control, direction, and supervision
over bureaus and offices under the jurisdiction of the Secretary of the Interior,
but this section should be interpreted in relation to section 86 of the same Code
which grants to the Department of the Interior "executive supervision over the
administration of provinces, municipalities, chartered cities and other local
political subdivisions." In the case of Planas vs. Gil (37 Off. Gaz., 1228), we
observed that "Supervision is not a meaningless thing. It is an active power. It is
certainly not without limitation, but it at least implies authority to inquire into
facts and conditions in order to render the power real and effective. If
supervision is to be conscientious and rational, and not automatic and brutal, it
must be founded upon a knowledge of actual facts and conditions disclosed
after careful study and investigation." The principle there enunciated is
applicable with equal force to the present case.
We hold, therefore, that the Secretary of the Interior is invested with authority to
order the investigation of the charges against the petitioner and to appoint a
special investigator for that purpose.
As regards the challenged power of the Secretary of the Interior to decree the
suspension of the herein petitioner pending an administrative investigation of
the charges against him, the question, it may be admitted, is not free from
difficulties. There is no clear and express grant of power to the secretary to
suspend a mayor of a municipality who is under investigation. On the contrary,
the power appears lodged in the provincial governor by section 2188 of the
Administrative Code which provides that "The provincial governor shall receive
and investigate complaints made under oath against municipal officers for
neglect of duty, oppression, corruption or other form of maladministration of
office, and conviction by final judgment of any crime involving moral turpitude.
For minor delinquency he may reprimand the offender; and if a more severe
punishment seems to be desirable he shall submit written charges touching the
matter to the provincial board, furnishing a copy of such charges to the accused
either personally or by registered mail, and he may in such case suspend the
officer (not being the municipal treasurer) pending action by the board, if in his
opinion the charge be one affecting the official integrity of the officer in
question. Where suspension is thus effected, the written charges against the
officer shall be filed with the board within five days." The fact, however, that the
power of suspension is expressly granted by section 2188 of the Administrative
Code to the provincial governor does not mean that the grant is necessarily
exclusive and precludes the Secretary of the Interior from exercising a similar
power. For instance, counsel for the petitioner admitted in the oral argument
that the President of the Philippines may himself suspend the petitioner from
office in virtue of his greater power of removal (sec. 2191, as amended,
Administrative Code) to be exercised conformably to law. Indeed, if the
President could, in the manner prescribed by law, remove a municipal official, it
would be a legal incongruity if he were to be devoid of the lesser power of
suspension. And the incongruity would be more patent if, possessed of the
power both to suspend and to remove a provincial official (sec. 2078,
Administrative Code), the President were to be without the power to suspend a
municipal official. Here is, parenthetically, an instance where, as counsel for
petitioner admitted, the power to suspend a municipal official is not exclusive.
Upon the other hand, it may be argued with some degree of plausibility that, if
the Secretary of the Interior is, as we have hereinabove concluded, empowered
to investigate the charges against the petitioner and to appoint a special
investigator for that purpose, preventive suspension may be a means by which
to carry into effect a fair and impartial investigation. This is a point, however,
which, for the reason hereinafter indicated, we do not have to decide.
The Solicitor-General argues that section 37 of Act No. 4007, known as the
Reorganization Law of 1932, by providing, "the provisions of the existing law to
the contrary notwithstanding," that "whenever a specific power, authority, duty,
function, or activity is entrusted to a chief of bureau, office, division or service,
the same shall be understood as also conferred upon the proper Department
Head who shall have authority to act directly in pursuance thereof, or to review,
modify or revoke any decision or action of said chief of bureau, office, division
or service", should be interpreted to concede to the Secretary of the Interior the
power to suspend a mayor of a municipality. The argument is so generally
sweeping that, unless distinctions are made, the effect would be the complete
abrogation at will of the powers of provincial and municipal officials even in
corporate affairs of local governments. Under the theory suggested by the
Solicitor-General, the Secretary of the Interior could, as observed by able
counsel for the petitioner, enter into a contract and sign a deed of conveyance
of real property in behalf of a municipality against the opposition of the mayor
thereof who is the local official authorized by law to do so (sec. 2196, Revised
Administrative Code), or in behalf of a province in lieu of the provincial
governor thereof (sec 2068, Ibid.), and otherwise exercise powers of corporate
character mentioned in sections 2067 and 2175 of the Revised Administrative
Code and which are lodged in the corresponding provincial and municipal
officials. And if the power of suspension of the Secretary of the Interior is to be
justified on the plea that the pretended power is governmental and not
corporate, the result would be more disastrous. Then and thereunder, the
Secretary of the Interior, in lieu of the mayor of the municipality, could directly
veto municipal ordinances and resolutions under section 2229 of the Revised
Administrative Code; he could, without any formality, elbow aside the municipal
mayor and himself make appointments to all non-elective positions in the
municipal service, under section 2199 of the Revised Administrative Code; he
could, instead of the provincial governor, fill a temporary vacancy in any
municipal office under subsection (a), section 2188, as amended, of the said
Code; he-could even directly appoint lieutenants of barrios and wrest the
authority given by section 2218 of the Revised Administrative Code to a
municipal councilor. Instances may be multiplied but it is unnecessary to go any
further. Prudence, then, dictates that we should hesitate to accept the
suggestion urged upon us by the Solicitor-General, especially where we find the
path indicated by him neither illuminated by the light of our own experience nor
cemented by the virtuality of legal principles but is, on the contrary, dimmed by
the recognition however limited in our own Constitution of the right of local
self-government and by the actual operation and enforcement of the laws
governing provinces, chartered cities, municipalities and other political
subdivisions. It is not any question of wisdom of legislation but the existence of
any such destructive authority in the law invoked by the Government that we
are called upon to pass and determine here.
In the deliberation of this case it has also been suggested that, admitting that
the President of the Philippines is invested with the authority to suspend the
petitioner, and it appearing that he had verbally approved or at least
acquiesced in the action taken by the Secretary of the Interior, the suspension of
the petitioner should be sustained on the principle of approval or ratification of
the act of the Secretary of the Interior by the President of the Philippines. There
is, to be sure, more weight in this argument than in the suggested
generalization of section 37 of Act No. 4007. Withal, at first blush, the argument
of ratification may seem plausible under the circumstances, it should be
observed that there are certain prerogative acts which, by their very nature,
cannot be validated by subsequent approval or ratification by the President.
There are certain constitutional power 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 (par. 3, sec. 11, Art. VII) and the exercise by him
of the benign prerogative of mercy (par. 6, sec. 11, idem). Upon the other hand,
doubt is entertained by some members of the court whether the statement
made by the Secretary to the President in the latter's behalf and by his authority
that the President had no objection to the suspension of the petitioner could be
accepted as an affirmative exercise of the power of suspension in this case, or
that the verbal approval by the President of the suspension alleged in a
pleading presented in this case by the Solicitor-General could be considered as
a sufficient ratification in law.
After serious reflection, we have decided to sustain the contention of the
government in this case on the board proposition, albeit not suggested, that
under the presidential type of government which we have adopted and
considering the departmental organization established and continued in force
by paragraph 1, section 12, Article VII, of our Constitution, all executive and
administrative organizations are adjuncts of the Executive Department, the
heads of the various executive departments are assistants and agents of the
Chief Executive, and except in cases where the Chief Executive is required by
the Constitution or the law to act in person or the exigencies of the situation
demand that he act personally, the multifarious executive and administrative
functions of the Chief Executive are performed by and through the executive
departments, and the acts of the secretaries of such departments, performed
and promulgated in the regular course of business, are, unless disapproved or
reprobated by the Chief Executive, presumptively the acts of the Chief
Executive. (Runkle vs. United States [1887], 122 U. S., 543; 30 Law. ed., 1167: 7
Sup. Ct. Rep., 1141; see also U. S. vs. Eliason [1839], 16 Pet., 291; 10 Law. ed.,
968; Jones vs. U. S. [1890], 137 U. S., 202; 34 Law. ed., 691; 11 Sup. Ct., Rep.,
80; Wolsey vs. Chapman [1880], 101 U. S., 755; 25 Law. ed., 915: Wilcox vs.
Jackson [1836], 13 Pet., 498; 10 Law. ed., 264.)
Fear is expressed by more than one member of this court that the acceptance of
the principle of qualified political agency in this and similar cases would result in
the assumption of responsibility by the President of the Philippines for acts of
any member of his cabinet, however illegal, irregular or improper may be these
acts. The implications, it is said, are serious. Fear, however, is no valid argument
against the system once adopted, established and operated. Familiarity with the
essential background of the type of government established under our
Constitution, in the light of certain well-known principles and practices that go
with the system, should offer the necessary explanation. With reference to the
Executive Department of the government, there is one purpose which is crystal-
clear and is readily visible without the projection of judicial searchlight, and that
is, the establishment of a single, not plural, Executive. The first section of Article
VII of the Constitution, dealing with the Executive Department, begins with the
enunciation of the principles that "The executive power shall be vested in a
President of the Philippines." This means that the President of the Philippines is
the Executive of the Government of the Philippines, and no other. The heads of
the executive departments occupy political positions and hold office in an
advisory capacity, and, in the language of Thomas Jefferson, "should be of the
President's bosom confidence" (7 Writings, Ford ed., 498), and, in the language
of Attorney-General Cushing (7 Op., Attorney-General, 453), "are subject to the
direction of the President." Without minimizing the importance of the heads of
the various departments, their personality is in reality but the projection of that
of the President. Stated otherwise, and as forcibly characterized by Chief Justice
Taft of the Supreme Court of the United States, "each head of a department is,
and must be, the President's alter ego in the matters of that department where
the President is required by law to exercise authority" (Myers vs. United States,
47 Sup. Ct. Rep., 21 at 30; 272 U. S., 52 at 133; 71 Law. ed., 160). Secretaries of
departments, of course, exercise certain powers under the law but the law
cannot impair or in any way affect the constitutional power of control and
direction of the President. As a matter of executive policy, they may be granted
departmental autonomy as to certain matters but this is by mere concession of
the executive, in the absence of valid legislation in the particular field. If the
President, then, is the authority in the Executive Department, he assumes the
corresponding responsibility. The head of a department is a man of his
confidence; he controls and directs his acts; he appoints him and can remove
him at pleasure; he is the executive, not any of his secretaries. It is therefore
logical that he, the President, should be answerable for the acts of
administration of the entire Executive Department before his own conscience no
less than before that undefined power of public opinion which, in the language
of Daniel Webster, is the last repository of popular government. These are the
necessary corollaries of the American presidential type of government, and if
there is any defect, it is attributable to the system itself. We cannot modify the
system unless we modify the Constitution, and we cannot modify the
Constitution by any subtle process of judicial interpretation or constitution.
The petition is hereby dismissed, with costs against the petitioner. So ordered.
Avancea, C. J., Diaz, and Concepcion, JJ., concur.

Separate Opinions
VILLA-REAL, J., concurring in the result:
I concur in the result. The Secretary of the Interior is nowhere given the power
to suspend a municipal elective officer pending charges, and in the absence of
such power he may not suspend him. The power to suspend cannot be implied
even from an arbitrary power to remove, except where the power to remove is
limited to cause; in such case, the power to suspend, made use of as a
disciplinary power pending charges, is regarded as included within the power of
removal (46 Corpus Juris, sec. 142, page 982). Provincial governors alone are
expressly empowered to suspend municipal officers under certain conditions by
section 2188 of the Revised Administrative Code, and the President of the
Philippines by section 2191, as amended, of the same Code. Though the
suspension of the petitioner by the Secretary of the Interior was unauthorized,
the implied approval by the President of the Philippines validated such
suspension.
IMPERIAL, J., concurring and dissenting:
I concur in the result because in my opinion (1) the President of the Philippines,
under sections 64 (b), and 2191 of the Revised Administrative Code, as the
latter has been amended, and section 11 (1), Article VII, of the Constitution, is
vested with the power to expel and suspend municipal officials for grave
misconduct, and it appears that the suspension was ordered by virtue of that
authority; and (2) the Secretary of the Interior acted within the powers conferred
upon him by section 79 (C), in connection with section 86, of the Revised
Administrative Code, as amended, in ordering an administrative investigation of
the charges against the petitioner, in his capacity as mayor of the municipality of
Makati, Province of Rizal.
It is a fact that, as a result of the investigation conducted by the Division of
Investigation of the Department of Justice, the respondent, in turn, ordered the
administrative investigation of the petitioner and recommend his temporary
suspension to the President of the Philippines to preclude him from exerting
pressure upon the witnesses who would testify in the investigation, and that the
President of the Philippines, through Secretary Jorge B. Vargas, stated that he
had no objection to the suspension. The act of the President of the Philippines,
in my opinion, was an exercise of his power to suspend the petitioner and the
statement that he had no objection was, at bottom, an order of suspension. The
circumstance that in the communication which the respondent addressed to the
petitioner it appeared as though the suspension had been ordered by him, is
immaterial and does not alter the merits of the case, as the facts disclose that
the order of suspension came directly from the President of the Philippines.
However, I dissent from the conclusion of the majority that, under the existing
presidential system of government and in view of the fact that the department
secretaries are, in the last analysis, agents of the executive, the acts of the said
officials are presumptively deemed the acts of the executive and that,
consequently, the suspension of the petitioner directed by the respondent
should be considered, under the same theory, as the suspension decreed by the
President of the Philippines. I believe that the principle thus enunciated is at
once dangerous and without legal sanction. Under the law each of these
officials has his own powers and duties and I doubt seriously if it has ever been
the intention of the legislative to confuse their duties and prerogatives, for
otherwise it would be difficult, if not impossible, to limit and fix responsibility.
The respondent himself could not have so understood the law when, under the
facts, in order to suspend the petitioner he found it necessary to obtain the
express authority of the President of the Philippines.
MORAN, J., concurring and dissenting:
I concur in the result.
The ratio dicidendi of the case is contained in the following paragraph of the
majority decision:
. . ., that under the presidential type of government which we have adopted
and considering the departmental organization established and continued
in force by paragraph 1, section 12, Article VII, of our Constitution, all
executive and administrative organizations are adjuncts of the Executive
Department, the heads of the various executive departments are assistants
and agents of the Chief Executive, and, except in cases where the Chief
Executive is required by the Constitution or the law to act in person or the
exigencies of the situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive are performed
by and through the executive departments, and the acts of the secretaries
of such departments, performed and promulgated in the regular course of
business, are, unless disapproved or reprobated by the Chief Executive,
presumptively the acts of the Chief Executive. . . .
If by this proposition it is meant that the power of suspension residing in the
President may validly be exercised by the Secretary of the Interior in his own
name, and his act, unless disapproved or reprobated by the President, is
presumptively the act of the President, I disagree. The implications involved in
the proposition are serious. Suppose the Secretary of Justice, pending
proceedings against a judge of first instance, suspends him temporarily, a power
vested in the President (section 173, Adm. Code), is the suspension valid in the
silence of the President? Suppose the Secretary of Public Works and
Communications removes the Director of Posts , is the removal the act of the
President if not disapproved by the latter? Suppose the Secretary of the Interior
grants conditional pardon to a prisoner, is the pardon valid unless reprobated
by the President? The answer are self-evident.
It is true that the majority decision makes exception of the powers which the
Chief Executive, by Constitution, by law, or by the exigencies of the situation,
should exercise in person. The distinction, however, thus sought to be
established between the powers which the President should exercise in person
and those which he may exercise thru the department secretaries, if it exists at
all, is extremely shadowy and in fact can nowhere be found in the Constitution,
in the law or practices of administration. On the contrary, the weight of wisdom
and authority is that powers committed or intrusted by the Constitution or by
law to the President must be exercised by him positively and in person. The only
functions of the President which, in my opinion, may be performed by the
department secretaries are those which are preliminary or preparatory to the
exercise of his powers, such as, in investigation, research and other inquiries
which may be necessary for a wise and judicious exercise of his judgment or
discretion. This opinion finds corroboration in section 79-A of the Administrative
Code.
The proposition contained in the majority decision is even of much wider scope
than is above stated, for it conveys the idea that all the functions of the
executive branch of the government are in the President, with the executive
departments as mere adjuncts to him and the department secretaries his mere
assistants or agents with no authority, function or responsibility of their own,
except those emanating from the President, and that, therefore, as they cannot
act but at the will of the President, all their acts, unless disapproved or
reprobated by the President, are presumptively the acts of the Presidents. This
sweeping statement is undoubtedly inspired by section 1, Article VII, of the
Constitution, which provides that "the executive power shall be vested in a
President of the Philippines." It disregards, however, the true meaning of other
provisions of the Constitution, such as paragraph 1 of section 12 of the same
article, which provides that "executive departments of the present Government
of the Philippine Islands shall continue as now authorized by law until the
National Assembly shall provide otherwise." (Emphasis supplied.)
According to section 74 of the Administrative Code ". . . the departments are
established for the proper distribution of the work of the executive, for the
performance of the functions expressly assigned to them by law, and in order
that each branch of the administration may have a chief responsible for its
direction and policy." (Emphasis supplied.) To give effect to this provision, each
department head is expressly vested with broad as well as specific powers
commensurate with his responsibility, such as the powers to ". . . promulgate,
whenever he may see fit to do so, all rules, regulations, orders, circulars, . . .
necessary to regulate the proper working and harmonious and efficient
administration of each and all of the offices and dependencies of his
department, and for the strict enforcement and proper execution of the laws
relative to matters under the jurisdiction of said department" (section 79-B,
Adm. Code); the power of direction and supervision over such bureaus and
offices under his jurisdiction, and to repeal or modify the decisions of the chief
of said bureaus or offices when advisable in the public interest (section 79-C,
Adm. Code; section 37, Act No. 4007); the power to appoint subordinate
officers and employees whose appointment is not expressly vested by law in the
President, and to remove and punish them except as specially provided
otherwise in accordance with the Civil Service Law (section 79-D, Adm. Code),
etc. All these powers are continued in force by the Constitution.
Thus, while in one provision the Constitution vests in the President of the
Philippines the executive power of the government, in another the same
Constitution recognizes the powers of the department secretaries conferred
upon them by law. The apparent conflict between the two provisions is
reconciled by the Constitution itself by means of the power of control vested in
the President over the executive departments. That power of control could not
have been intended to wipe out or supersede all the powers of the department
secretaries, for, otherwise, those powers would not have been continued in
force by the Constitution. It would certainly be an absurdity in the Constitution
to recognize and at the same time abrogate those powers. On the contrary, the
creation of the power of control implies the preservation, not the destruction, of
all the powers conferred by law upon the department secretaries. In fact, the
majority admits the existence of those powers, subject, of course, to the powers
of control of the President. Now, the power of control may or may not be
exercised. If not exercised, the acts of the department secretaries in pursuance
of their powers would remain in full force and effect, and are their own acts and
not the President's. If exercised, by way of disapproval or reprobation of the
acts of the department secretaries, the acts so reprobated are still their acts and
not the President's.
There is more theory than law in the statement that the personally of the
department secretaries is but the projection of that of the President. There is
more truth in the language used by Chief Justice Taft, as quoted in the majority
opinion, to the effect that "each head of a department is, and must be, the
President's alter ego in the matters of that department where the President is
required by law to exercise authority" (emphasis supplied.). For it is only when
the President exercises his authority and powers that the department secretaries
act merely as his assistants, agents or advisers, and, in such cases, their acts are
his. But when they act in accordance with the powers vested in them by law,
they act with a personality separate from and no less distinct than that of the
President himself, if the recognition accorded to their powers by the
Constitution is to mean anything at all. And the fact that the government we
have instituted is a presidential one in no wise destroys what the law has
created and the Constitution has recognized. The presidential system of
government could not have been intended to supersede a government of laws
for a government of men.
If, as stated by the majority, all the official acts of the secretaries of the
departments are presumptively the acts of the President, it must follow that the
President is presumptively responsible therefor. That this corrollary proposition
cannot be maintained is obvious. At every instance, he would be called upon to
accountability for acts of which he might not have any knowledge at all and for
which he could in no wise be held responsible. In the complicated activities of
each department, multifarious official acts have to be performed from time to
time. Very often these acts are performed in pursuance of powers and duties
expressly lodged in them by law; and, occasionally, upon authority and direction
of the President in the latter's exercise of his power of control. In the
performance of such acts, executive and administrative discretion had to be
exercised for which responsibility must accordingly be exclusive and purely
personal. To hold the President presumptively responsible for such acts would
suggest, in effect, the necessity on the part of the President to exercise constant
and unrelaxing vigilance over all the official acts of the secretaries of the
departments, under hazard of being involved in endless difficulties. The
manifold exigencies of government render such a suggestion inconceivable.
My view, therefore, is that the department secretaries may act in a purely
advisory capacity or under the direction and authority of the President in the
latter's exercise of his constitutional power of control, and, in such cases, the
proposition contained in the majority decision applies, because then, the
department secretaries act purely for the Chief Executive. However, they may
also act in pursuance of the powers and duties conferred upon them by law and
continued in force by the Constitution, and, unless the President desires to
intervene, in appropriate cases, by interposing his constitutional power of
control, the acts of the department secretaries are exclusively their own, and
they are likewise exclusively responsible therefor. It follows that when a
department secretary acts in his own name and not by order or authority of the
President, he is presumed to be so acting in pursuance of a power conferred
upon him by law, and when the power is not thus conferred, his act is null and
void. And if the power is conferred expressly upon the President, he must
exercise it positively and in person with such assistance, advice and
recommendation of the corresponding department head, as he himself may
choose to demand. Accordingly, the bare statement made by the President of
his non-objection to the action taken by the Secretary of the Interior in the
present case is not a sufficient exercise of his power to suspend, for it may mean
neither approval nor disapproval. The President probably believed, and indeed
rightly as I shall hereafter show, that the power to suspend the petitioner also
resided in the Secretary of the Interior, and called upon to exercise his power of
supervision, he confined himself to making a mere statement of non-objection
to the latter's exercise of his power. This, in my opinion, is the most rational
explanation of the passive attitude thus observed by the President. I am almost
sure that had he intended to exercise his own power to suspend, he would have
done so, as usually, in a manner that would not admit of any possibility of
doubt.
Moreover, besides the written statement of non-objection made by the
President, it is claimed by the Solicitor-General that the President expressly and
orally approved the order of suspension issued by the Secretary of the Interior.
Such supposed oral approval alleged in the respondent's answer is, however,
deemed controverted by the petitioner, according to section 104 of Act No.
190, and, not being supported by proof, it cannot be considered as true fact in
the disposition of this case.
If I agree with the result, it is not therefore on the broad proposition relied upon
by the majority, but from what is necessary implied from express provisions of
law. Section 37 of Act No. 4007 provides:
The provisions of the existing law to the contrary notwithstanding,
whenever a specific power, authority, duty, function or activity is entrusted
to a chief of bureau, office, division or service, the same shall be
understood as also conferred upon the proper Department Head who shall
have authority to act directly in pursuance thereof, or to review, modify or
revoke any decision or action of said chief of bureau, office, division or
service.
There can be no question that the word "division" in the above provision has no
other reference than to provinces and municipalities (Chapter 2 and section 86,
Adm. Code). It is then evident that this provision confers upon the Secretary of
the Interior the power residing in the provincial governor (section 2188, Adm.
Code) to decree the suspension of the petitioner pending an administrative
investigation of the charges against him. That this is the true meaning of the
law, the majority does not question.
Fear, however, has been expresses in the majority opinion that this view may
result in the complete abrogation of the powers of provincial and municipal
officials even in corporate affairs of local governments. Instances are cited in
which the Secretary of the Interior may exercise for himself the powers vested
by law in provincial governors and municipal mayors as to matters of both
governmental and corporate functions of provinces and municipalities, such as,
the power to veto, the power to appoint, and the power to enter into contracts.
Whether or not the Secretary of the Interior can thus exercise the powers vested
by law in provincial and municipal executives in the instances cited, to the
complete abrogation of provincial and municipal autonomy, is a question which
I need not discuss now. Other provisions of law and a number of collateral
questions may have to be inquired into if any safe conclusion is to be formed.
But even if, as feared, the law has the effect of nullifying the powers conferred
upon provincial and municipal executives, can there be any doubt that the law
can do so? The same authority that creates those powers may withdraw or
qualify them at will or provide effective measures of supervision over their
exercise. The extent or even the existence of local autonomy is a matter which
lies within the exclusive prerogative of the Legislature to define. If the law is
clear, or duty to apply it is just as clear, irrespective of how destructive it may be
of the autonomy of local governments. To refuse to apply a law, which is
otherwise applicable and is valid and constitutional, simply because it does
violence to our theory of government, would, in effect, be imposing ourselves
upon the legislature department of the government and an intrusion into its
own sphere of constitutional authority.
Moreover, the law is not of such "destructive authority" as the majority has
pictured it to be. The philosophy behind this provision is apparent. It is
intended to supply possible omissions or inactions on the part of the
subordinate officers concerned by reason of the entanglement arising from
partisan activities. The power which the law confers upon the department head
is undoubtedly susceptible of abuses. But what power is not susceptible of
abuse? In the enactment of the law, the legislature undoubtedly relied much on
the sense of patriotism and sound judgment of the department head. It is
perhaps the intention of the law that the department head should exercise his
power in a manner compatible with the autonomy given the local governments,
and that he should act directly only when the exigencies of the situation require
him to act in the interest of the Nation. Thus, the department head is given
ample discretion. The possibility of a mischievous or disastrous abuse of power
on his part is not entirely without any remedy at all. The presidential power of
control over executive departments and the existence of judicial remedies may
afford effective check or redress. In the instant case, there is no showing that the
Secretary of the Interior has abused, or even intended to abuse the power of
suspension. If a capricious and whimsical use of such power presents itself to us
for determination in some future time, then and there must we declare where
one power begins and the other ends.
As the law, therefore, is not unconstitutional, we would be ignoring it clear
provision if not applied in this case.










Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS.
JR., IRENE M. ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC,
GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR YIGUEZ and
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by
its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY
ORDOEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE
VILLA, in their capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration Commissioner, Secretary of
National Defense and Chief of Staff, respectively, respondents.
R E S O L U T I O N

EN BANC:
In its decision dated September 15,1989, the Court, by a vote of eight (8) to
seven (7), dismissed the petition, after finding that the President did not act
arbitrarily or with grave abuse of discretion in determining that the return of
former President Marcos and his family at the present time and under present
circumstances pose a threat to national interest and welfare and in prohibiting
their return to the Philippines. On September 28, 1989, former President
Marcos died in Honolulu, Hawaii. In a statement, President Aquino said:
In the interest of the safety of those who will take the death of Mr. Marcos in
widely and passionately conflicting ways, and for the tranquility of the state and
order of society, the remains of Ferdinand E. Marcos will not be allowed to be
brought to our country until such time as the government, be it under this
administration or the succeeding one, shall otherwise decide. [Motion for
Reconsideration, p. 1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed by petitioners,
raising the following major arguments:
1. to bar former President Marcos and his family from returning to the
Philippines is to deny them not only the inherent right of citizens to return to
their country of birth but also the protection of the Constitution and all of the
rights guaranteed to Filipinos under the Constitution;
2. the President has no power to bar a Filipino from his own country; if she has,
she had exercised it arbitrarily; and
3. there is no basis for barring the return of the family of former President
Marcos. Thus, petitioners prayed that the Court reconsider its decision, order
respondents to issue the necessary travel documents to enable Mrs. Imelda R.
Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee M. Manotoc, Tommy
Manotoc and Gregorio Araneta to return to the Philippines, and enjoin
respondents from implementing President Aquino's decision to bar the return of
the remains of Mr. Marcos, and the other petitioners, to the Philippines.
Commenting on the motion for reconsideration, the Solicitor General argued
that the motion for reconsideration is moot and academic as to the deceased
Mr. Marcos. Moreover, he asserts that "the 'formal' rights being invoked by the
Marcoses under the label 'right to return', including the label 'return of Marcos'
remains, is in reality or substance a 'right' to destabilize the country, a 'right' to
hide the Marcoses' incessant shadowy orchestrated efforts at
destabilization." [Comment, p. 29.] Thus, he prays that the Motion for
Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for reconsideration, the burden is
upon the movants, petitioner herein, to show that there are compelling reasons
to reconsider the decision of the Court.
2. After a thorough consideration of the matters raised in the motion for
reconsideration, the Court is of the view that no compelling reasons have been
established by petitioners to warrant a reconsideration of the Court's decision.
The death of Mr. Marcos, although it may be viewed as a supervening event,
has not changed the factual scenario under which the Court's decision was
rendered. The threats to the government, to which the return of the Marcoses
has been viewed to provide a catalytic effect, have not been shown to have
ceased. On the contrary, instead of erasing fears as to the destabilization that
will be caused by the return of the Marcoses, Mrs. Marcos reinforced the basis
for the decision to bar their return when she called President Aquino "illegal,"
claiming that it is Mr. Marcos, not Mrs. Aquino, who is the "legal" President of
the Philippines, and declared that the matter "should be brought to all the
courts of the world." [Comment, p. 1; Philippine Star, October 4, 1989.]
3. Contrary to petitioners' view, it cannot be denied that the President, upon
whom executive power is vested, has unstated residual powers which are
implied from the grant of executive power and which are necessary for her to
comply with her duties under the Constitution. The powers of the President are
not limited to what are expressly enumerated in the article on the Executive
Department and in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the Constitutional
Commission of 1986 to limit the powers of the President as a reaction to the
abuses under the regime of Mr. Marcos, for the result was a limitation of specific
power of the President, particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of executive power.
That the President has powers other than those expressly stated in the
Constitution is nothing new. This is recognized under the U.S. Constitution from
which we have patterned the distribution of governmental powers among three
(3) separate branches.
Article II, [section] 1, provides that "The Executive Power shall be vested in
a President of the United States of America." In Alexander Hamilton's
widely accepted view, this statement cannot be read as mere shorthand for
the specific executive authorizations that follow it in [sections] 2 and 3.
Hamilton stressed the difference between the sweeping language of article
II, section 1, and the conditional language of article I, [section] 1: "All
legislative Powers herein granted shall be vested in a Congress of the
United States . . ." Hamilton submitted that "[t]he [article III enumeration [in
sections 2 and 31 ought therefore to be considered, as intended merely to
specify the principal articles implied in the definition of execution power;
leaving the rest to flow from the general grant of that power, interpreted in
confomity with other parts of the Constitution...
In Myers v. United States, the Supreme Court accepted Hamilton's
proposition, concluding that the federal executive, unlike the Congress,
could exercise power from sources not enumerated, so long as not
forbidden by the constitutional text: the executive power was given in
general terms, strengthened by specific terms where emphasis was
regarded as appropriate, and was limited by direct expressions where
limitation was needed. . ." The language of Chief Justice Taft in Myers
makes clear that the constitutional concept of inherent power is not a
synonym for power without limit; rather, the concept suggests only that not
all powers granted in the Constitution are themselves exhausted by internal
enumeration, so that, within a sphere properly regarded as one of
"executive' power, authority is implied unless there or elsewhere expressly
limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159 (1978).]
And neither can we subscribe to the view that a recognition of the President's
implied or residual powers is tantamount to setting the stage for another
dictatorship. Despite petitioners' strained analogy, the residual powers of the
President under the Constitution should not be confused with the power of the
President under the 1973 Constitution to legislate pursuant to Amendment No.
6 which provides:
Whenever in the judgment of the President (Prime Minister), there exists a
grave emergency or a threat or imminence thereof, or whenever the interim
Batasang Pambansa or the regular National Assembly fails or is unable to
act adequately on any matter for any reason that in his judgment requires
immediate action, he may, in order to meet the exigency, issue the
necessary decrees, orders, or letters of instruction, which shall form part of
the law of the land,
There is no similarity between the residual powers of the President under the
1987 Constitution and the power of the President under the 1973 Constitution
pursuant to Amendment No. 6. First of all, Amendment No. 6 refers to an
express grant of power. It is not implied. Then, Amendment No. 6 refers to a
grant to the President of the specific power of legislation.
4. Among the duties of the President under the Constitution, in compliance with
his (or her) oath of office, is to protect and promote the interest and welfare of
the people. Her decision to bar the return of the Marcoses and subsequently,
the remains of Mr. Marcos at the present time and under present circumstances
is in compliance with this bounden duty. In the absence of a clear showing that
she had acted with arbitrariness or with grave abuse of discretion in arriving at
this decision, the Court will not enjoin the implementation of this decision.
ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for
lack of merit."
Separate Opinions
CRUZ, J., dissenting:
Nothing important has happened to change my vote for granting the petition.
The death of Marcos has not plunged the nation into paroxysms of grief as the
so-called "loyalists" had hoped. By and large, it has been met with only passing
interest if not outright indifference from the people. Clearly, the discredited
dictator is in death no El Cid. Marcos dead is only an unpleasant memory, not a
bolt of lightning to whip the blood.
This only shows that if he was at all a threat to the national security when he was
already moribund that feeble threat has died with him. As the government
stresses, he has been reduced to a non-person (which makes me wonder why it
is still afraid of him). His cadaver is not even regarded as a symbol of this or that
or whatever except by his fanatical followers. It is only a dead body waiting to
be interred in this country.
This is a tempest in a teapot. We have more important things to do than
debating over a corpse that deserves no kinder fate than dissolution and
oblivion. I say let it be brought home and buried deep and let us be done with
it forever.
PARAS, J., dissenting on the Motion for Reconsideration:
I find no reason to deviate from the dissenting opinion I have already expressed.
Firstly, the former President, although already dead, is still entitled to certain
rights. It is not correct to say that a dead man, since he is no longer a human
being, has ceased to have rights. For instance, our Revised Penal Code
prohibits the commission of libel against a deceased individual. And even if we
were to assume the non- existence anymore of his human rights what about the
human rights of his widow and the other members of his family?
Secondly, up to now, the alleged threats to national security have remained
unproved and consequently, unpersuasive. Our Armed Forces can easily control
any possible uprising or political and military destabilization. In fact, the
converse appears to be nearer the truth, that is, if we do not allow the remains
to come, more trouble may be expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for the
return is granted. To refuse the request can mean a hardening of resistance
against the well-intentioned aim of the administration. Upon the other hand, to
grant the petition may well soften the hearts of the oppositionists; paving the
way for a united citizenry.
Finally, the entire world will surely applaud our government's act of mercy. As
Shakespeare once wrote "the quality of mercy is not strained." Surely,
compassion is the better part of government. Remove mercy, and you remove
the best reason against civil strife, which if not abated can turn our country into
a mainstream of fiery dissent and in the end, as one great man has put it, the
question will no longer be what is right, but what is left.
PADILLA, J., dissenting:
The death of former President Ferdinand E. Marcos, which supervened after
decision in this case had been rendered, was pre-empted and foreseen in my
original dissenting opinion. There I said that the first cogent and decisive
proposition in this case is that "Mr. Marcos is a Filipino and, as such, entitled to
return to, die and be buried in this country." I have only to add a few statements
to that dissenting opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e.
to return to and die in this country, The remaining right of this Filipino that cries
out for vindication at this late hour is the right to be buried in this country. Will
the respondents be allowed to complete the circle of denying the constitutional
and human right of Mr. Marcos to travel which, as stated in my dissenting
opinion, includes the right to return to, die and be buried in this country? The
answer should be in the negative if the Constitution is to still prevail; the answer
should be in the negative if we are to avoid the completely indefensible act of
denying a Filipino the last right to blend his mortal remains with a few square
feet of earth in the treasured land of his birth.
Those who would deny this Filipino the only constitutional and human right that
can be accorded him now say that the constitutional and human right to be
buried in this country would apply to any Filipino, except Mr. Marcos, because
he was a dictator and he plundered the country. This is the most irrelevant
argument that can be raised at this time. For, our democracy is built on the
fundamental assumption (so we believe) that the Constitution and all its
guarantees apply to all Filipinos, whether dictator or pauper, learned or
ignorant, religious or agnostic as long as he is a Filipino.
It is said that to accord this Filipino the right to be buried in this country would
pose a serious threat to national security and public safety. What threat? As
pointed out in my dissenting opinion, the second cogent and decisive
proposition in this case is that respondents have not presented any "hard
evidence" (factual bases) or convincing proof of such threat. "All we have are
general conclusions of national security and public safety' in avoidance of a
specific, demandable and enforceable constitutional and basic human right to
return." Recent events have, to my mind, served to confirm the validity of such
dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to national
security, the situation cannot be any worse with a dead Marcos returning. For, a
dead Marcos will return to be buried into mother earth, where there are no
protests, "demos", or even dissents, where the rule that reigns, in the language
of Mr. Justice Jackson in Barnette is the "unanimity of the graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten
national security, his supporters would pose that threat to national security. This
argument is untenable as it is without merit. As I see it, Marcos' supporters pose
a greater threat to peace and order, with Marcos deprived of his right to burial
in this country. On the other hand, if the remains of Mr. Marcos are brought to
the country and allowed the burial to which he is constitutionally and humanly
entitled, Marcos' supporters would be deprived of an otherwise potent
argumentso conducive to mass protests and even violencethat their Idol
has been cruelly denied the right to be buried in his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or human
rights, to speak of. This contention entirely begs the issue. In the first place, one
cannot overlook that the right of Mr. Marcos, as a Filipino, to be buried in this
country, is asserted not for the first time after his death. It was vigorously
asserted long before his death. But, more importantly, the right of every Filipino
to be buried in his country, is part of a continuing right that starts from birth and
ends only on the day he is finally laid to rest in his country.
This dissenting opinion does not pretend to deny the Philippine government
the right to lay down conditions for the burial of Mr. Marcos in this country, but I
submit that these conditions must, as a fundamental postulate, recognize the
right of the man, as a Filipino, to be buried in this country NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country now.
Without in any way affecting my respect and regard for my brethren and sisters
in the majority, I am deeply concerned and greatly disturbed that, with their
decision banning a dead Marcos from burial in this country, they have passed an
opportunity to defuse a constitutional crisis that, in my humble assessment,
threatens to ignite an already divided nation, Regrettably, they have ignored the
constitutional dimension of the problem rooted in the ageless and finest
tradition of our people for respect and deference to the dead. What predictably
follows will be a continuing strife, among our people, of unending hatred,
recriminations and retaliations. God save this country!
My vote is for this Court to ORDER the respondents to allow the immediate
return and burial in the Republic of the Philippines of former President
Ferdinand E. Marcos, subject to such conditions as the Philippine government
may impose in the interest of peace and order.
SARMIENTO, J., Dissenting:
The case has curious trappings of a deja vu, the shoe being on the other foot,
yet, as I stated before, I can not allow personal emotions to soften my
"hardened impartiality" and deny, as a consequence, the rights of the ex-
President's bereaved to bury his remains in his homeland, and for them to
return from exile. As I had, then, voted to grant the petition, so do I vote to
grant reconsideration.
I have gone to lengths to locate in the four comers of the Constitution, by direct
grant or by implication, the President's supposed "residual" power to forbid
citizens from entering the motherland reiterated in the resolution of the majority.
I have found none. I am not agreed, that:
3. Contrary to petitioners view, it cannot be denied that the President, upon
whom executive power is vested, has unstated residual powers which are
implied from the grant of executive power and which are necessary for her
to comply with her duties under the Constitution. The powers of the
President are not limited to what are expressly enumerated in the article on
the Executive Department and in scattered provisions of the Constitution.
This, 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.
It is a nice word game, but it is nothing else. For, if the Constitution has
imposed limitations on specific powers of the President, it has, a fortiori,
prescribed a diminution of executive power. The Charter says that the right may
only be restricted by: (1) a court order; or (2) by fiat of law. Had the fundamental
law intended a presidential imprimatur, it would have said so. It would have also
completed the symmetry: judicial, congressional, and executive restraints on the
right. No amount of presumed residual executive power can amend the Charter.
It is well to note that the Bill of Rights stands primarily, a limitation not only
against legislative encroachments on individual liberties, but more so, against
presidential intrusions. And especially so, because the President is the caretaker
of the military establishment that has, several times over, been unkind to part of
the population it has also sworn to protect.
That "[t]he threats to the government, to which the return of the Marcoses has
been viewed to provide a catalytic effect, have not been shown to have ceased"
(Res., 3) is the realm of conjecture, speculation, and imagination. The military
has shown no hard evidence that "the return of the Marcoses" would indeed
interpose a threat to national security. And apparently, the majority itself is not
convinced ("has been viewed...").
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate
President, does not, so I submit, reinforce alleged fears of a massive
destabilization awaiting the nation. The military has said over and over that
Marcos followers are not capable of successful destabilization effort. And only
this morning (October 27, 1989), media reported the assurances given to
foreign investors by no less than the President, of the political and economic
stability of the nation, as well as the Government's capability to quell forces that
menace the gains of EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal
impressions, however, are beside the point. I reiterate that the President has no
power to deny requests of Marcos relatives to bury Marcos in his homeland. As
for the former, let them get their just deserts here too. And let the matter rest.
Separate Opinions
CRUZ, J., dissenting:
Nothing important has happened to change my vote for granting the petition.
The death of Marcos has not plunged the nation into paroxysms of grief as the
so-called "loyalists" had hoped. By and large, it has been met with only passing
interest if not outright indifference from the people. Clearly, the discredited
dictator is in death no El Cid. Marcos dead is only an unpleasant memory, not a
bolt of lightning to whip the blood.
This only shows that if he was at all a threat to the national security when he was
already moribund that feeble threat has died with him. As the government
stresses, he has been reduced to a non-person (which makes me wonder why it
is still afraid of him). His cadaver is not even regarded as a symbol of this or that
or whatever except by his fanatical followers. It is only a dead body waiting to
be interred in this country.
This is a tempest in a teapot. We have more important things to do than
debating over a corpse that deserves no kinder fate than dissolution and
oblivion. I say let it be brought home and buried deep and let us be done with
it forever.
PARAS, J., dissenting on the Motion for Reconsideration:
I find no reason to deviate from the dissenting opinion I have already expressed.
Firstly, the former President, although already dead, is still entitled to certain
rights. It is not correct to say that a dead man, since he is no longer a human
being, has ceased to have rights. For instance, our Revised Penal Code
prohibits the commission of libel against a deceased individual. And even if we
were to assume the non- existence anymore of his human rights what about the
human rights of his widow and the other members of his family?
Secondly, up to now, the alleged threats to national security have remained
unproved and consequently, unpersuasive. Our Armed Forces can easily control
any possible uprising or political and military destabilization. In fact, the
converse appears to be nearer the truth, that is, if we do not allow the remains
to come, more trouble may be expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for the
return is granted. To refuse the request can mean a hardening of resistance
against the well-intentioned aim of the administration. Upon the other hand, to
grant the petition may well soften the hearts of the oppositionists; paving the
way for a united citizenry.
Finally, the entire world will surely applaud our government's act of mercy. As
Shakespeare once wrote "the quality of mercy is not strained." Surely,
compassion is the better part of government. Remove mercy, and you remove
the best reason against civil strife, which if not abated can turn our country into
a mainstream of fiery dissent and in the end, as one great man has put it, the
question will no longer be what is right, but what is left.
PADILLA, J., dissenting:
The death of former President Ferdinand E. Marcos, which supervened after
decision in this case had been rendered, was pre-empted and foreseen in my
original dissenting opinion. There I said that the first cogent and decisive
proposition in this case is that "Mr. Marcos is a Filipino and, as such, entitled to
return to, die and be buried in this country." I have only to add a few statements
to that dissenting opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e.
to return to and die in this country, The remaining right of this Filipino that cries
out for vindication at this late hour is the right to be buried in this country. Will
the respondents be allowed to complete the circle of denying the constitutional
and human right of Mr. Marcos to travel which, as stated in my dissenting
opinion, includes the right to return to, die and be buried in this country? The
answer should be in the negative if the Constitution is to still prevail; the answer
should be in the negative if we are to avoid the completely indefensible act of
denying a Filipino the last right to blend his mortal remains with a few square
feet of earth in the treasured land of his birth.
Those who would deny this Filipino the only constitutional and human right that
can be accorded him now say that the constitutional and human right to be
buried in this country would apply to any Filipino, except Mr. Marcos, because
he was a dictator and he plundered the country. This is the most irrelevant
argument that can be raised at this time. For, our democracy is built on the
fundamental assumption (so we believe) that the Constitution and all its
guarantees apply to all Filipinos, whether dictator or pauper, learned or
ignorant, religious or agnostic as long as he is a Filipino.
It is said that to accord this Filipino the right to be buried in this country would
pose a serious threat to national security and public safety. What threat? As
pointed out in my dissenting opinion, the second cogent and decisive
proposition in this case is that respondents have not presented any "hard
evidence" (factual bases) or convincing proof of such threat. "All we have are
general conclusions of national security and public safety' in avoidance of a
specific, demandable and enforceable constitutional and basic human right to
return." Recent events have, to my mind, served to confirm the validity of such
dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to national
security, the situation cannot be any worse with a dead Marcos returning. For, a
dead Marcos will return to be buried into mother earth, where there are no
protests, "demos", or even dissents, where the rule that reigns, in the language
of Mr. Justice Jackson in Barnette is the "unanimity of the graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten
national security, his supporters would pose that threat to national security. This
argument is untenable as it is without merit. As I see it, Marcos' supporters pose
a greater threat to peace and order, with Marcos deprived of his right to burial
in this country. On the other hand, if the remains of Mr. Marcos are brought to
the country and allowed the burial to which he is constitutionally and humanly
entitled, Marcos' supporters would be deprived of an otherwise potent
argumentso conducive to mass protests and even violencethat their Idol
has been cruelly denied the right to be buried in his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or human
rights, to speak of. This contention entirely begs the issue. In the first place, one
cannot overlook that the right of Mr. Marcos, as a Filipino, to be buried in this
country, is asserted not for the first time after his death. It was vigorously
asserted long before his death. But, more importantly, the right of every Filipino
to be buried in his country, is part of a continuing right that starts from birth and
ends only on the day he is finally laid to rest in his country.
This dissenting opinion does not pretend to deny the Philippine government
the right to lay down conditions for the burial of Mr. Marcos in this country, but I
submit that these conditions must, as a fundamental postulate, recognize the
right of the man, as a Filipino, to be buried in this country NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country now.
Without in any way affecting my respect and regard for my brethren and sisters
in the majority, I am deeply concerned and greatly disturbed that, with their
decision banning a dead Marcos from burial in this country, they have passed an
opportunity to defuse a constitutional crisis that, in my humble assessment,
threatens to ignite an already divided nation, Regrettably, they have ignored the
constitutional dimension of the problem rooted in the ageless and finest
tradition of our people for respect and deference to the dead. What predictably
follows will be a continuing strife, among our people, of unending hatred,
recriminations and retaliations. God save this country!
My vote is for this Court to ORDER the respondents to allow the immediate
return and burial in the Republic of the Philippines of former President
Ferdinand E. Marcos, subject to such conditions as the Philippine government
may impose in the interest of peace and order.
SARMIENTO, J., Dissenting:
The case has curious trappings of a deja vu, the shoe being on the other foot,
yet, as I stated before, I can not allow personal emotions to soften my
"hardened impartiality" and deny, as a consequence, the rights of the ex-
President's bereaved to bury his remains in his homeland, and for them to
return from exile. As I had, then, voted to grant the petition, so do I vote to
grant reconsideration.
I have gone to lengths to locate in the four comers of the Constitution, by direct
grant or by implication, the President's supposed "residual" power to forbid
citizens from entering the motherland reiterated in the resolution of the majority.
I have found none. I am not agreed, that:
3. Contrary to petitioners view, it cannot be denied that the President, upon
whom executive power is vested, has unstated residual powers which are
implied from the grant of executive power and which are necessary for her
to comply with her duties under the Constitution. The powers of the
President are not limited to what are expressly enumerated in the article on
the Executive Department and in scattered provisions of the Constitution.
This, 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.
It is a nice word game, but it is nothing else. For, if the Constitution has
imposed limitations on specific powers of the President, it has, a fortiori,
prescribed a diminution of executive power. The Charter says that the right may
only be restricted by: (1) a court order; or (2) by fiat of law. Had the fundamental
law intended a presidential imprimatur, it would have said so. It would have also
completed the symmetry: judicial, congressional, and executive restraints on the
right. No amount of presumed residual executive power can amend the Charter.
It is well to note that the Bill of Rights stands primarily, a limitation not only
against legislative encroachments on individual liberties, but more so, against
presidential intrusions. And especially so, because the President is the caretaker
of the military establishment that has, several times over, been unkind to part of
the population it has also sworn to protect.
That "[t]he threats to the government, to which the return of the Marcoses has
been viewed to provide a catalytic effect, have not been shown to have ceased"
(Res., 3) is the realm of conjecture, speculation, and imagination. The military
has shown no hard evidence that "the return of the Marcoses" would indeed
interpose a threat to national security. And apparently, the majority itself is not
convinced ("has been viewed...").
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate
President, does not, so I submit, reinforce alleged fears of a massive
destabilization awaiting the nation. The military has said over and over that
Marcos followers are not capable of successful destabilization effort. And only
this morning (October 27, 1989), media reported the assurances given to
foreign investors by no less than the President, of the political and economic
stability of the nation, as well as the Government's capability to quell forces that
menace the gains of EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal
impressions, however, are beside the point. I reiterate that the President has no
power to deny requests of Marcos relatives to bury Marcos in his homeland. As
for the former, let them get their just deserts here too. And let the matter rest.









































Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 177857-58 September 4, 2012
PHILIPPINE COCONUT PRODUCERS FEDERATION, INC. (COCOFED),
MANUEL V. DEL ROSARIO, DOMINGO P. ESPINA, SALVADOR P.
BALLARES, JOSELITO A. MORALEDA, PAZ M. YASON, VICENTE A. CADIZ,
CESARIA DE LUNA TITULAR, and RAYMUNDO C. DE VILLA, Petitioners,
vs.
REPUBLIC OF THE PHILIPPINES, Respondent.
WIGBERTO E. TAADA, OSCAR F. SANTOS, SURIGAO DEL SUR
FEDERATION OF AGRICULTURAL COOPERATIVES (SUFAC) and MORO
FARMERS ASSOCIATION OF ZAMBOANGA DEL SUR (MOFAZS),
represented by ROMEO C. ROYANDOYAN, Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 178193
DANILO B. URSUA, Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, Respondent.
R E S O L U T I O N
VELASCO, JR., J.:
For consideration is a Motion for Reconsideration of the Decision of the Court
dated January 24, 2012 interposed by petitioners in G.R. Nos. 177857-58,
namely: Philippine Coconut Producers Federation, Inc. (COCOFED), Manuel V.
del Rosario, Domingo P. Espina, Salvador P. Ballares, Joselito A. Moraleda, Paz
M. Yason, Vicente A. Cadiz, Cesaria De Luna Titular, and Raymundo C. De Villa.
On March 14, 2012, petitioner-movants filed a Manifestation and Motion stating
that they failed to include the Office of the Solicitor General (OSG) in the list of
persons to be furnished with a copy of the Motion for Reconsideration. They
accordingly moved that their belated service of a copy of the Motion for
Reconsideration on the OSG be considered compliance with the rules on
service of motions for reconsideration. This Court noted and accepted the
Manifestation and Motion. On March 15, 2012, petitioner-movants filed a
Memorandum in support of the instant motion for reconsideration.
To the said motion, intervenors Wigberto E. Taada, et al. filed on June 10,
2012 their Comment and Opposition. The OSG, on the other hand, after filing
two motions for extension on May 22, 2012 and June 21, 2012, respectively,
filed its Motion to Admit Comment, with Comment attached, on July 13, 2012.
This Court noted and admitted the Comment.
As will be recalled, the Court, in its January 24, 2012 Decision, affirmed, with
modification, the Partial Summary Judgments (PSJs) rendered by the
Sandiganbayan (1) on July 11, 2003 in Civil Case No. 0033-A (PSJ-A), as
amended by a Resolution issued on June 5, 2007; and (2) on
May 7, 2004 in Civil Case No. 0033-F (PSJ-F), as amended by a Resolution
issued on May 11, 2007.
In this recourse, petitioner-movants urge the Court to reconsider its Decision of
January 24, 2012 on the ground that it:
1. Made erroneous findings of fact;
2. Erred in affirming the Sandiganbayans jurisdiction of the subject matter
of the subdivided amended complaints;
3. Erred in ruling that due process was not violated;
4. Erred in ruling on the constitutionality of the coconut levy laws;
5. Erred in ruling that the Operative Fact Doctrine does not apply; and
6. Erred in ruling that the right to speedy disposition of cases was not
violated.
The instant motion is but a mere reiteration or rehash of the arguments that
have already been previously pleaded, discussed and resolved by this Court in
its January 24, 2012 Decision. And considering that the motions arguments are
unsubstantial to warrant a reconsideration or at least a modification, this Court
finds no reason to modify or let alone reverse the challenged Decision.
As of 1983,
1
the Class A and B San Miguel Corporation (SMC) common shares
in the names of the 14 CIIF Holding Companies are 33,133,266 shares. From
1983 to November 19, 2009 when the Republic of the Philippines representing
the Presidential Commission on Good Government (PCGG) filed the "Motion To
Approve Sale of CIIF SMC Series I Preferred Shares," the common shares of the
CIIF Holding companies increased to 753,848,312 Class A and B SMC common
shares.
2

Owing, however, to a certain development that altered the factual situation then
obtaining in G.R. Nos. 177857-58, there is, therefore, a compelling need to
clarify the fallo of the January 24, 2012 Decision to reconcile it, vis-a-vis the
shares of stocks in SMC which were declared owned by the Government, with
this development. We refer to the Resolution
3
issued by the Court on
September 17, 2009 in the then consolidated cases docketed as G.R. Nos.
177857-58, G.R. No. 178193 and G.R. No. 180705. In that Resolution which has
long become final and executory, the Court, upon motion of COCOFED and
with the approval of the Presidential Commission on Good Government,
granted the conversion of 753,848,312 Class "A" and Class "B" SMC common
shares registered in the name of the CIIF companies to SMC Series 1 Preferred
Shares of 753,848,312, subject to certain terms and conditions. The dispositive
portion of the aforementioned Resolution states:
WHEREFORE, the Court APPROVES the conversion of the 753,848,312 SMC
Common Shares registered in the name of CIIF companies to SMC SERIES 1
PREFERRED SHARES of 753,848,312, the converted shares to be registered in
the names of CIIF companies in accordance with the terms and conditions
specified in the conversion offer set forth in SMCs Information Statement and
appended as Annex "A" of COCOFEDs Urgent Motion to Approve the
Conversion of the CIIF SMC Common Shares into SMC Series 1 Preferred
Shares. The preferred shares shall remain in custodia legis and their ownership
shall be subject to the final ownership determination of the Court. Until the
ownership issue has been resolved, the preferred shares in the name of the CIIF
companies shall be placed under sequestration and PCGG management.
(Emphasis added.)
The net dividend earnings and/or redemption proceeds from the Series 1
Preferred Shares shall be deposited in an escrow account with the Land Bank of
the Philippines or the Development Bank of the Philippines.
Respondent Republic, thru the PCGG, is hereby directed to cause the CIIF
companies, including their respective directors, officers, employees, agents, and
all other persons acting in their behalf, to perform such acts and execute such
documents as required to effectuate the conversion of the common shares into
SMC Series 1 Preferred Shares, within ten (10) days from receipt of this
Resolution.
Once the conversion is accomplished, the SMC Common Shares previously
registered in the names of the CIIF companies shall be released from
sequestration.
SO ORDERED.
4

The CIIF block of SMC shares, as converted, is the same shares of stocks that
are subject matter of, and declared as owned by the Government in, the
January 24, 2012 Decision. Hence, the need to clarify.
WHEREFORE, the Court resolves to DENY with FINALITY the instant Motion for
Reconsideration dated February 14, 2012 for lack of merit.
The Court further resolves to CLARIFY that the 753,848,312 SMC Series 1
preferred shares of the CIIF companies converted from the CIIF block of SMC
shares, with all the dividend earnings as well as all increments arising from, but
not limited to, the exercise of preemptive rights subject of the September 17,
2009 Resolution, shall now be the subject matter of the January 24, 2012
Decision and shall be declared owned by the Government and be used only for
the benefit of all coconut farmers and for the development of the coconut
industry.
As modified, the fallo of the January 24, 2012 Decision shall read, as follows:
WHEREFORE, the petitions in G.R. Nos. 177857-58 and 178793 are hereby
DENIED. The Partial Summary Judgment dated July 11, 2003 in Civil Case No.
0033-A as reiterated with modification in Resolution dated June 5, 2007, as well
as the Partial Summary Judgment dated May 7, 2004 in Civil Case No. 0033-F,
which was effectively amended in Resolution dated May 11, 2007, are
AFFIRMED with MODIFICATION, only with respect to those issues subject of
the petitions in G.R. Nos. 177857-58 and 178193. However, the issues raised in
G.R. No. 180705 in relation to Partial Summary Judgment dated July 11, 2003
and Resolution dated June 5, 2007 in Civil Case No. 0033-A, shall be decided
by this Court in a separate decision.
The Partial Summary Judgment in Civil Case No. 0033-A dated July 11, 2003, is
hereby MODIFIED, and shall read as follows:
WHEREFORE, in view of the foregoing, We rule as follows:
SUMMARY OF THE COURTS RULING.
A. Re: CLASS ACTION MOTION FOR A SEPARATE SUMMARY JUDGMENT
dated April 11, 2001 filed by Defendant Maria Clara L. Lobregat, COCOFED, et
al., and Ballares, et al.
The Class Action Motion for Separate Summary Judgment dated April 11, 2001
filed by defendant Maria Clara L. Lobregat, COCOFED, et al. and Ballares, et
al., is hereby DENIED for lack of merit.
B. Re: MOTION FOR PARTIAL SUMMARY JUDGMENT (RE: COCOFED, ET AL.
AND BALLARES, ET AL.) dated April 22, 2002 filed by Plaintiff.
1. a. The portion of Section 1 of P.D. No. 755, which reads:
and that the Philippine Coconut Authority is hereby authorized to
distribute, for free, the shares of stock of the bank it acquired to the
coconut farmers under such rules and regulations it may promulgate.
taken in relation to Section 2 of the same P.D., is unconstitutional: (i) for
having allowed the use of the CCSF to benefit directly private interest
by the outright and unconditional grant of absolute ownership of the
FUB/UCPB shares paid for by PCA entirely with the CCSF to the
undefined "coconut farmers", which negated or circumvented the
national policy or public purpose declared by P.D. No. 755 to
accelerate the growth and development of the coconut industry and
achieve its vertical integration; and (ii) for having unduly delegated
legislative power to the PCA.
b. The implementing regulations issued by PCA, namely, Administrative
Order No. 1, Series of 1975 and Resolution No. 074-78 are likewise
invalid for their failure to see to it that the distribution of shares serve
exclusively or at least primarily or directly the aforementioned public
purpose or national policy declared by P.D. No. 755.
2. Section 2 of P.D. No. 755 which mandated that the coconut levy funds
shall not be considered special and/or fiduciary funds nor part of the
general funds of the national government and similar provisions of Sec.
5, Art. III, P.D. No. 961 and Sec. 5, Art. III, P.D. No. 1468 contravene
the provisions of the Constitution, particularly, Art. IX (D), Sec. 2; and
Article VI, Sec. 29 (3).
3. Lobregat, COCOFED, et al. and Ballares, et al. have not legally and
validly obtained title of ownership over the subject UCPB shares by
virtue of P.D. No. 755, the Agreement dated May 25, 1975 between
the PCA and defendant Cojuangco, and PCA implementing rules,
namely, Adm. Order No. 1, s. 1975 and Resolution No. 074-78.
4. The so-called "Farmers UCPB shares" covered by 64.98% of the UCPB
shares of stock, which formed part of the 72.2% of the shares of stock
of the former FUB and now of the UCPB, the entire consideration of
which was charged by PCA to the CCSF, are hereby declared
conclusively owned by, the Plaintiff Republic of the Philippines.
x x x x x x x x x
SO ORDERED.
The Partial Summary Judgment in Civil Case No. 0033-F dated May 7, 2004, is
hereby MODIFIED, and shall read as follows:
WHEREFORE, the MOTION FOR EXECUTION OF PARTIAL SUMMARY
JUDGMENT (RE: CIIF BLOCK OF SMC SHARES OF STOCK) dated August 8,
2005 of the plaintiff is hereby denied for lack of merit. However, this Court
orders the severance of this particular claim of Plaintiff. The Partial Summary
Judgment dated May 7, 2004 is now considered a separate final and
appealable judgment with respect to the said CIIF Block of SMC shares of stock.
1wphi1
The Partial Summary Judgment rendered on May 7, 2004 is modified by
deleting the last paragraph of the dispositive portion, which will now read, as
follows:
WHEREFORE, in view of the foregoing, we hold that:
The Motion for Partial Summary Judgment (Re: Defendants CIIF Companies, 14
Holding Companies and Cocofed, et al) filed by Plaintiff is hereby GRANTED.
ACCORDINGLY, THE CIIF COMPANIES, NAMELY:
1. Southern Luzon Coconut Oil Mills (SOLCOM);
2. Cagayan de Oro Oil Co., Inc. (CAGOIL);
3. Iligan Coconut Industries, Inc. (ILICOCO);
4. San Pablo Manufacturing Corp. (SPMC);
5. Granexport Manufacturing Corp. (GRANEX); and
6. Legaspi Oil Co., Inc. (LEGOIL),
AS WELL AS THE 14 HOLDING COMPANIES, NAMELY:
1. Soriano Shares, Inc.;
2. ACS Investors, Inc.;
3. Roxas Shares, Inc.;
4. Arc Investors; Inc.;
5. Toda Holdings, Inc.;
6. AP Holdings, Inc.;
7. Fernandez Holdings, Inc.;
8. SMC Officers Corps, Inc.;
9. Te Deum Resources, Inc.;
10. Anglo Ventures, Inc.;
11. Randy Allied Ventures, Inc.;
12. Rock Steel Resources, Inc.;
13. Valhalla Properties Ltd., Inc.; and
14. First Meridian Development, Inc.
AND THE CONVERTED SMC SERIES 1 PREFERRED SHARES TOTALING
753,848,312 SHARES SUBJECT OF THE RESOLUTION OF THE COURT DATED
SEPTEMBER 17, 2009 TOGETHER "WITH ALL DIVIDENDS DECLARED, PAID
OR ISSUEDTHEREON AFTER THAT DATE, AS WELL AS ANY INCREMENTS
THERETO ARISING FROM, BUT NOT LIMITED TO, EXERCISE OF PRE-EMPTIVE
RIGHTS ARE DECLARED OWNED BY THE GOVERNMENT TO RE USED ONLY
FOH THE BENEFIT OF ALL COCONUT FARMERS AND FOR THE
DEVELOPMENT OF THE COCONUT I NDUSTRY. AND ORDERED
HECONVEYED TO THE GOVERNMENT.
THE COURT AFFIRMIS THE RESOLUTIONS ISSUED BY THE SANDIGANBAYAN
ON JUNE 5, 2007 IN CIVIL CASE NO. 0033-A AND ON MAY 11, 2007 IN CIVIL
CASE NO. 0033-F, THAT THERE IS NO MORE NECESSITY OF FURTHER TRIAL
WITH RESPECT TO THE ISSUE OF OWNERSHIP OF (1) THE SEQUESTERED
UCPB SHARES, (2) THE CHF BLOCK OF SMC SHARES AND (3) THE CIIF
COMPANIES, AS THEY HAVE FINALLY BEEN ADJUDICATED IN THE
AFOREMIENTIONED PARTIAL SUMMARY JUDGMENTS DATED JULY 11, 2003
AND MAY 7, 2004.
SO ORDERED.
Costs against petitioners COCOFED, et al., in G.R. Nos. 177857-58 and Danilo
S. Ursua in G.R. No. 178193.
No further pleadings shall be entertained. Let Entry of Judgment be made in
due course.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
ANTONIO T. CARPIO
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
*

Associate Justice
ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
*

Associate Justice
LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice
ROBERTO A. ABAD
Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice
JOSE CATRAL MENDOZA
Associate Justice
BIENVENIDO L. REYES
Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section l3, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Resolution had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.
MARIA LOURDES P. A. SERENO
Chief Justice

Footnotes
*
No part.
1
Rollo (G.R. Nos. 177857-58), Vol. 1, p. 404, Partial Summary Judgment, Civil
Case No. 0033-F.
2
Id., Vol. 3, p. 2277.
3
600 SCRA 102.
4
Id. at 145-146.



Republic of the Philippines
SUPREME COURT
Manila

G.R. No. 171396 May 3, 2006
PROF. RANDOLF S. DAVID, LORENZO TAADA III, RONALD LLAMAS, H.
HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S.
MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG,
Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-
CHIEF, EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ
II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA,
CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR
GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE,
Respondents.
x-------------------------------------x
G.R. No. 171409 May 3, 2006
NIEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC.,
Petitioners,
vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE
DIRECTOR GENERAL ARTURO C. LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171485 May 3, 2006
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A.
CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO,
MUJIV S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL.
GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE
R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO
GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES,
JOSEL G. VIRADOR, RAFAEL V. MARIANO, GILBERT C. REMULLA,
FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-BARAQUEL, IMELDA
C. NICOLAS, MARVIC M.V.F. LEONEN, NERI JAVIER COLMENARES,
MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES
REPRESENTED BY AMADO GAT INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR.,
SECRETARY, DND RONALDO V. PUNO, SECRETARY, DILG, GENEROSO
SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF PNP,
Respondents.
x-------------------------------------x
G.R. No. 171483 May 3, 2006
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C.
LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL
FEDERATION OF LABOR UNIONS KILUSANG MAYO UNO (NAFLU-
KMU), REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V.
USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P.
DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE
HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO SENGA, AND
THE PNP DIRECTOR GENERAL, ARTURO LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171400 May 3, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO
SENGA, AND DIRECTOR GENERAL ARTURO LOMIBAO, Respondents.
G.R. No. 171489 May 3, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA,
JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C.
ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE, BERNARD L.
DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR OF THE
PHILIPPINES (IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO
SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND DIRECTOR
GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP CHIEF,
Respondents.
x-------------------------------------x
G.R. No. 171424 May 3, 2006
LOREN B. LEGARDA, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND
COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS
DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP);
GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE
ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA, IN
HIS CAPACITY AS EXECUTIVE SECRETARY, Respondents.
D E C I S I O N
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid formula
are necessary.
1
Superior strength the use of force cannot make wrongs into
rights. In this regard, the courts should be vigilant in safeguarding the
constitutional rights of the citizens, specifically their liberty.
Chief Justice Artemio V. Panganibans philosophy of liberty is thus most
relevant. He said: "In cases involving liberty, the scales of justice should
weigh heavily against government and in favor of the poor, the oppressed,
the marginalized, the dispossessed and the weak." Laws and actions that
restrict fundamental rights come to the courts "with a heavy presumption
against their constitutional validity."
2

These seven (7) consolidated petitions for certiorari and prohibition allege that
in issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No.
5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of
discretion. Petitioners contend that respondent officials of the Government, in
their professed efforts to defend and preserve democratic institutions, are
actually trampling upon the very freedom guaranteed and protected by the
Constitution. Hence, such issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree of
liberty, without which, law becomes tyranny, with the degree of law, without
which, liberty becomes license?
3

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, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of
the Philippines and Commander-in-Chief of the Armed Forces of the
Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of
the Philippine Constitution which states that: "The President. . . whenever it
becomes necessary, . . . may call out (the) armed forces to prevent or suppress. .
.rebellion. . .," and in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless
violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction; and as provided in
Section 17, Article 12 of the Constitution do hereby declare a State of
National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in 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 in May
2004;
WHEREAS, these conspirators have repeatedly tried to bring down the
President;
WHEREAS, the claims of these elements have been recklessly magnied by
certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State by obstructing
governance including hindering the growth of the economy and sabotaging
the peoples condence in government and their faith in the future of this
country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left
and extreme Right the opening to intensify their avowed aims to bring
down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences, ramifications
and collateral effects constitute a clear and present danger to the safety and
the integrity of the Philippine State and of the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in 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 and 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 in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our
republican government;
WHEREAS, the claims of these elements have been recklessly magnified by
certain segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing
governance, including hindering the growth of the economy and sabotaging
the peoples confidence in the government and their faith in the future of this
country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and
extreme Right the opening to intensify their avowed aims to bring down the
democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences, ramifications
and collateral effects constitute a clear and present danger to the safety and the
integrity of the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued
declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the
powers vested in me under the Constitution as President of the Republic of the
Philippines, and Commander-in-Chief of the Republic of the Philippines, and
pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call
upon the Armed Forces of the Philippines (AFP) and the Philippine National
Police (PNP), to prevent and suppress acts of terrorism and lawless violence in
the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as
the officers and men of the AFP and PNP, to immediately carry out the
necessary and appropriate actions and measures to suppress and prevent
acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national
emergency and after all these petitions had been filed, the President lifted PP
1017. She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the
Constitution, Proclamation No. 1017 dated February 24, 2006, was issued
declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24,
2006, which were issued on the basis of Proclamation No. 1017, the Armed
Forces of the Philippines (AFP) and the Philippine National Police (PNP), were
directed to maintain law and order throughout the Philippines, prevent and
suppress all form of lawless violence as well as any act of rebellion and to
undertake such action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and
quelled the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Republic of the Philippines, by virtue of the powers vested in me by law, hereby
declare that the state of national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5,
respondents stated that the proximate cause behind the executive issuances
was the conspiracy among some military officers, leftist insurgents of the New
Peoples Army (NPA), and some members of the political opposition in a plot to
unseat or assassinate President Arroyo.
4
They considered the aim to oust or
assassinate the President and take-over the reigns of government as a clear and
present danger.
During the oral arguments held on March 7, 2006, the Solicitor General
specified the facts leading to the issuance of PP 1017 and G.O. No. 5.
Signicantly, there was no refutation from petitioners counsels.
The Solicitor General argued that the intent of the Constitution is to give full
discretionary powers to the President in determining the necessity of calling
out the armed forces. He emphasized that none of the petitioners has shown
that PP 1017 was without factual bases. While he explained that it is not
respondents task to state the facts behind the questioned Proclamation,
however, they are presenting the same, narrated hereunder, for the elucidation
of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny
Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the
Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in
Fort Bonifacio, Taguig City. In a public statement, they vowed to remain defiant
and to elude arrest at all costs. They called upon the people to "show and
proclaim our displeasure at the sham regime. Let us demonstrate our disgust,
not only by going to the streets in protest, but also by wearing red bands on our
left arms."
5

On February 17, 2006, the authorities got hold of a document entitled "Oplan
Hackle I " which detailed plans for bombings and attacks during the Philippine
Military Academy Alumni Homecoming in Baguio City. The plot was to
assassinate selected targets including some cabinet members and President
Arroyo herself.
6
Upon the advice of her security, President Arroyo decided not
to attend the Alumni Homecoming. The next day, at the height of the
celebration, a bomb was found and detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in
Batangas province. Found in his possession were two (2) flash disks containing
minutes of the meetings between members of the Magdalo Group and the
National Peoples Army (NPA), a tape recorder, audio cassette cartridges,
diskettes, and copies of subversive documents.
7
Prior to his arrest, Lt. San Juan
announced through DZRH that the "Magdalos D-Day would be on February 24,
2006, the 20th Anniversary of Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that
members of the PNP- Special Action Force were planning to defect. Thus, he
immediately ordered SAF Commanding General Marcelino Franco, Jr. to
"disavow" any defection. The latter promptly obeyed and issued a public
statement: "All SAF units are under the effective control of responsible and
trustworthy officers with proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping Cojuangco,
President Cory Aquinos brother, businessmen and mid-level government
officials plotted moves to bring down the Arroyo administration. Nelly Sindayen
of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic, called a
U.S. government official about his groups plans if President Arroyo is ousted.
Saycon also phoned a man code-named Delta. Saycon identified him as B/Gen.
Danilo Lim, Commander of the Armys elite Scout Ranger. Lim said "it was all
systems go for the planned movement against Arroyo."
8

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to
Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines
(AFP), that a huge number of soldiers would join the rallies to provide a critical
mass and armed component to the Anti-Arroyo protests to be held on February
24, 2005. According to these two (2) officers, there was no way they could
possibly stop the soldiers because they too, were breaking the chain of
command to join the forces foist to unseat the President. However, Gen. Senga
has remained faithful to his Commander-in-Chief and to the chain of command.
He immediately took custody of B/Gen. Lim and directed Col. Querubin to
return to the Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work
within the military and the police establishments in order to forge alliances with
its members and key officials. NPA spokesman Gregorio "Ka Roger" Rosal
declared: "The Communist Party and revolutionary movement and the entire
people look forward to the possibility in the coming year of accomplishing its
immediate task of bringing down the Arroyo regime; of rendering it to weaken
and unable to rule that it will not take much longer to end it."
9

On the other hand, Cesar Renerio, spokesman for the National Democratic
Front (NDF) at North Central Mindanao, publicly announced: "Anti-Arroyo
groups within the military and police are growing rapidly, hastened by the
economic difficulties suffered by the families of AFP officers and enlisted
personnel who undertake counter-insurgency operations in the field." He
claimed that with the forces of the national democratic movement, the anti-
Arroyo conservative political parties, coalitions, plus the groups that have been
reinforcing since June 2005, it is probable that the Presidents ouster is nearing
its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers
and cell sites in Bulacan and Bataan was also considered as additional factual
basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army
outpost in Benguet resulting in the death of three (3) soldiers. And also the
directive of the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila radicals and 25,000 more from the
provinces in mass protests.
10

By midnight of February 23, 2006, the President convened her security advisers
and several cabinet members to assess the gravity of the fermenting peace and
order situation. She directed both the AFP and the PNP to account for all their
men and ensure that the chain of command remains solid and undivided. To
protect the young students from any possible trouble that might break loose on
the streets, the President suspended classes in all levels in the entire National
Capital Region.
For their part, petitioners cited the events that followed after the issuance
of PP 1017 and G.O. No. 5.
Immediately, 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 Presidents 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."
11

Undeterred by the announcements that rallies and public assemblies would not
be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and
National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]),
marched from various parts of Metro Manila with the intention of converging at
the EDSA shrine. Those who were already near the EDSA site were violently
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.
12

According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the
ground for the dispersal of their assemblies.
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.
At around 12:20 in the early morning of February 25, 2006, 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.
13

A few minutes after the search and seizure at the Daily Tribune offices, the
police surrounded the premises of another pro-opposition paper, Malaya, and
its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to
show a strong presence, to tell media outlets not to connive or do anything
that would help the rebels in bringing down this government." The PNP warned
that it would take over any media organization that would not follow "standards
set by the government during the state of national emergency." Director
General Lomibao stated that "if they do not follow the standards and the
standards are - if they would contribute to instability in the government, or if
they do not subscribe to what is in General Order No. 5 and Proc. No. 1017
we will recommend a takeover." National Telecommunications Commissioner
Ronald Solis urged television and radio networks to "cooperate" with the
government for the duration of the state of national emergency. He asked for
"balanced reporting" from broadcasters when covering the events surrounding
the coup attempt foiled by the government. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates rules set
out for media coverage when the national security is threatened.
14

Also, on February 25, 2006, the police arrested Congressman Crispin Beltran,
representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU),
while leaving his farmhouse in Bulacan. The police showed a warrant for his
arrest dated 1985. Beltrans lawyer explained that the warrant, which stemmed
from a case of inciting to rebellion filed during the Marcos regime, had long
been quashed. Beltran, however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they
were told they could not be admitted because of PP 1017 and G.O. No. 5. Two
members were arrested and detained, while the rest were dispersed by the
police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went
after him during a public forum at the Sulo Hotel in Quezon City. But his two
drivers, identified as Roel and Art, were taken into custody.
Retired Major General Ramon Montao, former head of the Philippine
Constabulary, was arrested while with his wife and golfmates at the Orchard
Golf and Country Club in Dasmarias, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro Casio and
Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador
was arrested at the PAL Ticket Office in Davao City. Later, he was turned over to
the custody of the House of Representatives where the "Batasan 5" decided to
stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of
Representatives Beltran, Satur Ocampo, et al., are not being raised in these
petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of
national emergency has ceased to exist.
In the interim, these seven (7) petitions 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.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the
grounds that (1) it encroaches on the emergency powers of Congress; (2) itis a
subterfuge to avoid the constitutional requirements for the imposition of martial
law; and (3) it violates the constitutional guarantees of freedom of the press, of
speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing
Co., Inc. challenged the CIDGs act of raiding the Daily Tribune offices as a clear
case of "censorship" or "prior restraint." They also claimed that the term
"emergency" refers only to tsunami, typhoon, hurricane and similar
occurrences, hence, there is "absolutely no emergency" that warrants the
issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G.
Escudero, and twenty one (21) other members of the House of Representatives,
including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza
Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute
"usurpation of legislative powers"; "violation of freedom of expression" and "a
declaration of martial law." They alleged that President Arroyo "gravely abused
her discretion in calling out the armed forces without clear and verifiable factual
basis of the possibility of lawless violence and a showing that there is necessity
to do so."
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred
that PP 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate
unto President Arroyo the power to enact laws and decrees; (2) their issuance
was without factual basis; and (3) they violate freedom of expression and the
right of the people to peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that
PP 1017 and G.O. No. 5 are unconstitutional because they violate (a) Section
4
15
of Article II, (b) Sections 1,
16
2,
17
and 4
18
of Article III, (c) Section 23
19
of
Article VI, and (d) Section 17
20
of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP
1017 is an "arbitrary and unlawful exercise by the President of her Martial Law
powers." And assuming that PP 1017 is not really a declaration of Martial Law,
petitioners argued that "it amounts to an exercise by the President of
emergency powers without congressional approval." In addition, petitioners
asserted that PP 1017 "goes beyond the nature and function of a proclamation
as defined under the Revised Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP
1017 and G.O. No. 5 are "unconstitutional for being violative of the freedom of
expression, including its cognate rights such as freedom of the press and the
right to access to information on matters of public concern, all guaranteed
under Article III, Section 4 of the 1987 Constitution." In this regard, she stated
that these issuances prevented her from fully prosecuting her election protest
pending before the Presidential Electoral Tribunal.
In respondents Consolidated Comment, the Solicitor General countered that:
first, the petitions should be dismissed for being moot; second,petitioners in
G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485
(Escudero et al.) and 171489 (Cadiz et al.) have no legal standing; third, it is not
necessary for petitioners to implead President Arroyo as respondent; fourth, PP
1017 has constitutional and legal basis; and fifth, PP 1017 does not violate the
peoples right to free expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties
on the above interlocking issues which may be summarized as follows:
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) Whetherthe 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
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the
concept of judicial review enunciated in Marbury v. Madison.
21
This concept
rests on the extraordinary simple foundation --
The Constitution is the supreme law. It was ordained by the people, the ultimate
source of all political authority. It confers limited powers on the national
government. x x x If the government consciously or unconsciously oversteps
these limitations there must be some authority competent to hold it in
control, to thwart its unconstitutional attempt, and thus to vindicate and
preserve inviolate the will of the people as expressed in the Constitution.
This power the courts exercise. This is the beginning and the end of the
theory of judicial review.
22

But the power of judicial review does not repose upon the courts a "self-starting
capacity."
23
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.
24

Respondents maintain that the first and second requisites are absent, hence, we
shall limit our discussion thereon.
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.
25
The Solicitor General
refutes the existence of such actual case or controversy, contending that the
present petitions were rendered "moot and academic" by President Arroyos
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,
26
so that a declaration thereon
would be of no practical use or value.
27
Generally, courts decline jurisdiction
over such case
28
or dismiss it on ground of mootness.
29

The Court holds that President Arroyos 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."
30

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;
31
second, the exceptional character of the situation and the
paramount public interest is involved;
32
third, when constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and
the public;
33
and fourth, the case is capable of repetition yet evading review.
34

All the foregoing exceptions are present here and justify this Courts assumption
of jurisdiction over the instant petitions. Petitioners alleged that the issuance of
PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the
issues being raised affect the publics interest, involving as they do the peoples
basic rights to freedom of expression, of assembly and of the press. Moreover,
the Court has the duty to formulate guiding and controlling constitutional
precepts, doctrines or rules. It has the symbolic function of educating the bench
and the bar, and in the present petitions, the military and the police, on the
extent of the protection given by constitutional guarantees.
35
And lastly,
respondents contested actions are capable of repetition. Certainly, the petitions
are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited
Chief Justice Artemio V. Panganibans Separate Opinion in Sanlakas v. Executive
Secretary.
36
However, they failed to take into account the Chief Justices 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.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court
deems it imperative to have a more than passing discussion on legal standing or
locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a given
question."
37
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 beneted or injured by the
judgment in the suit or the party entitled to the avails of the suit."
38

Succinctly put, the plaintiffs standing is based on his own right to the relief
sought.
The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a "public right" in assailing an allegedly illegal official
action, does so as a representative of the general public. He may be a person
who is affected no differently from any other person. He could be suing as a
"stranger," or in the category of a "citizen," or taxpayer." In either case, he has
to adequately show that he is entitled to seek judicial protection. In other
words, he has to make out a sufficient interest in the vindication of the public
order and the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down in Beauchamp v.
Silk,
39
where it was held that the plaintiff in a taxpayers suit is in a different
category from the plaintiff in a citizens suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is but
the mere instrument of the public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins:
40
"In matter of mere public right,
howeverthe people are the real partiesIt is at least the right, if not the
duty, of every citizen to interfere and see that a public offence be properly
pursued and punished, and that a public grievance be remedied." With
respect to taxpayers suits, Terr v. Jordan
41
held that "the right of a citizen and
a taxpayer to maintain an action in courts to restrain the unlawful use of
public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in
any official policy or act with which he disagreed with, and thus hinders the
activities of governmental agencies engaged in public service, the United State
Supreme Court laid down the more stringent "direct injury" test in Ex Parte
Levitt,
42
later reaffirmed in Tileston v. Ullman.
43
The same Court ruled that for a
private individual to invoke the judicial power to determine the validity of an
executive or legislative action, he must show that he has sustained a direct
injury as a result of that action, and it is not sufcient 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,
44
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." The Vera doctrine was upheld in a litany
of cases, such as, Custodio v. President of the Senate,
45
Manila Race Horse
Trainers Association v. De la Fuente,
46
Pascual v. Secretary of Public Works
47

and Anti-Chinese League of the Philippines v. Felix.
48

However, being a mere procedural technicality, the requirement of locus standi
may be waived by the Court in the exercise of its discretion. This was done in
the 1949 Emergency Powers Cases, Araneta v. Dinglasan,
49
where the
"transcendental importance" of the cases prompted the Court to act liberally.
Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,
50
this
Court resolved to pass upon the issues raised due to the "far-reaching
implications" of the petition notwithstanding its categorical statement that
petitioner therein had no personality to file the suit. Indeed, there is a chain of
cases where this liberal policy has been observed, allowing ordinary citizens,
members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.
51

Thus, the Court has adopted a rule that even where the petitioners have failed
to show direct injury, they have been allowed to sue under the principle of
"transcendental importance." Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,
52
where the Court ruled that the
enforcement of the constitutional right to information and the
equitable diffusion of natural resources are matters of
transcendental importance which clothe the petitioner with locus
standi;
(2) Bagong Alyansang Makabayan v. Zamora,
53
wherein the Court held that
"given the transcendental importance of the issues involved, the
Court may relax the standing requirements and allow the suit to
prosper despite the lack of direct injury to the parties seeking
judicial review" of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,
54
while the Court noted that the petitioners
may not file suit in their capacity as taxpayers absent a showing that
"Balikatan 02-01" involves the exercise of Congress taxing or
spending powers, it reiterated its ruling in Bagong Alyansang
Makabayan v. Zamora,
55
that in cases of transcendental importance,
the cases must be settled promptly and denitely and standing
requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided
by this Court. Taxpayers, voters, concerned citizens, and legislators may be
accorded standing to sue, provided that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public
funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of
the election law in question;
(4) for concerned citizens, there must be a showing that the issues raised
are of transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained
of infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Courts attitude
toward legal standing.
In Kilosbayan, Inc. v. Morato,
56
the Court ruled that the status of Kilosbayan as a
peoples organization does not give it the requisite personality to question the
validity of the on-line lottery contract, more so where it does not raise any issue
of constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation
that public funds are being misused. Nor can it sue as a concerned citizen as it
does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
Comelec,
57
the Court reiterated the "direct injury" test with respect to
concerned citizens cases involving constitutional issues. It held that "there must
be a showing that the citizen personally suffered some actual or threatened
injury arising from the alleged illegal official act."
In Lacson v. Perez,
58
the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not
demonstrated any injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,
59
the Court ruled that only the petitioners
who are members of Congress have standing to sue, as they claim that the
Presidents declaration of a state of rebellion is a usurpation of the emergency
powers of Congress, thus impairing their legislative powers. As to
petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court
declared them to be devoid of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and
Llamas, is beyond doubt. The same holds true with petitioners in G.R. No.
171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged "direct
injury" resulting from "illegal arrest" and "unlawful search" committed by police
operatives pursuant to PP 1017. Rightly so, the Solicitor General does not
question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation
of legislative powers. They also raised the issue of whether or not the
concurrence of Congress is necessary whenever the alarming powers incident to
Martial Law are used. Moreover, it is in the interest of justice that those affected
by PP 1017 can be represented by their Congressmen in bringing to the
attention of the Court the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v.
Enriquez,
60
Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan,
61
Association of Small Landowners in the Philippines, Inc. v. Secretary of
Agrarian Reform,
62
Basco v. Philippine Amusement and Gaming Corporation,
63

and Taada v. Tuvera,
64
that when the issue concerns a public right, it is
sufficient that the petitioner is a citizen and has an interest in the execution of
the laws.
In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violated its
right to peaceful assembly may be deemed sufficient to give it legal standing.
Organizations may be granted standing to assert the rights of their
members.
65
We take judicial notice of the announcement by the Office of the
President banning all rallies and canceling all permits for public assemblies
following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the
Integrated Bar of the Philippines (IBP) have no legal standing, having failed to
allege any direct or potential injury which the IBP as an institution or its
members may suffer as a consequence of the issuance of PP No. 1017 and G.O.
No. 5. In Integrated Bar of the Philippines v. Zamora,
66
the Court held that the
mere invocation by the IBP of its duty to preserve the rule of law and nothing
more, while undoubtedly true, is not sufficient to clothe it with standing in this
case. This is too general an interest which is shared by other groups and the
whole citizenry. However, in view of the transcendental importance of the issue,
this Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the
instant petition as there are no allegations of illegal disbursement of public
funds. The fact that she is a former Senator is of no consequence. She can no
longer sue as a legislator on the allegation that her prerogatives as a lawmaker
have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media
personality will not likewise aid her because there was no showing that the
enforcement of these issuances prevented her from pursuing her occupation.
Her submission that she has pending electoral protest before the Presidential
Electoral Tribunal is likewise of no relevance. She has not sufficiently shown that
PP 1017 will affect the proceedings or result of her case. But considering once
more the transcendental importance of the issue involved, this Court may relax
the standing rules.
It must always be borne in mind that the question of locus 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."1avvphil.net
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,
67
may not be sued in any civil or criminal case, and there is no
need to provide for it in the Constitution or law. It will degrade the dignity of
the high office of the President, the Head of State, if he can be dragged into
court litigations while serving as such. Furthermore, it is important that he be
freed from any form of harassment, hindrance or distraction to enable him to
fully attend to the performance of his official duties and functions. Unlike the
legislative and judicial branch, only one constitutes the executive branch and
anything which impairs his usefulness in the discharge of the many great and
important duties imposed upon him by the Constitution necessarily impairs the
operation of the Government. However, this does not mean that the President is
not accountable to anyone. Like any other official, he remains accountable to
the people
68
but he may be removed from office only in the mode provided by
law and that is by impeachment.
69

B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
"necessary" for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the Presidents
exercise of his Commander-in-Chief power has reached its distilled point - from
the indulgent days of Barcelon v. Baker
70
and Montenegro v. Castaneda
71
to the
volatile era of Lansang v. Garcia,
72
Aquino, Jr. v. Enrile,
73
and Garcia-Padilla v.
Enrile.
74
The tug-of-war always cuts across the line defining "political
questions," particularly those questions "in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the
government."
75
Barcelon and Montenegro were in unison in declaring that the
authority to decide whether an exigency has arisen belongs to the
President and his decision is nal and conclusive on the courts. Lansang took
the opposite view. There, the members of the Court were unanimous in the
conviction that the Court has the authority to inquire into the existence of
factual bases in order to determine their constitutional sufficiency. From the
principle of separation of powers, it shifted the focus to the system of
checks and balances, "under which the President is supreme, x x x only if
and when he acts within the sphere allotted to him by the Basic Law, and
the authority to determine whether or not he has so acted is vested in the
Judicial Department, which in this respect, is, in turn, constitutionally
supreme."
76
In 1973, the unanimous Court of Lansang was divided in Aquino v.
Enrile.
77
There, the Court was almost evenly divided on the issue of whether the
validity of the imposition of Martial Law is a political or justiciable question.
78

Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared
that there is a need to re-examine the latter case, ratiocinating that "in times of
war or national emergency, the President must be given absolute control
for the very life of the nation and the government is in great peril. The
President, it intoned, is answerable only to his conscience, the People, and
God."
79

The Integrated Bar of the Philippines v. Zamora
80
-- a recent case most pertinent
to these cases at bar -- echoed a principle similar to Lansang. While the Court
considered the Presidents "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 Courts 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." The latter part of the authority represents a broadening of
judicial power to enable the courts of justice to review what was before a
forbidden territory, to wit, the discretion of the political departments of the
government.
81
It speaks of judicial prerogative not only in terms of power but
also of duty.
82

As to how the Court may inquire into the Presidents exercise of power, Lansang
adopted the test that "judicial inquiry can go no further than to satisfy the Court
not that the Presidents decision is correct," but that "the President did not act
arbitrarily." Thus, the standard laid down is not correctness, but arbitrariness.
83

In Integrated Bar of the Philippines, this Court further ruled that "it is
incumbent upon the petitioner to show that the Presidents 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 Arroyos exercise of the calling-out
power, by issuing PP 1017, is totally bereft of factual basis. A reading of the
Solicitor Generals Consolidated Comment and Memorandum shows a detailed
narration of the events leading to the issuance of PP 1017, with supporting
reports forming part of the records. Mentioned are the escape of the Magdalo
Group, their audacious threat of the Magdalo D-Day, the defections in the
military, particularly in the Philippine Marines, and the reproving statements
from the communist leaders. There was also the Minutes of the Intelligence
Report and Security Group of the Philippine Army showing the growing alliance
between the NPA and the military. Petitioners presented nothing to refute such
events. Thus, absent any contrary allegations, the Court is convinced that the
President was justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not
expected to simply fold her arms and do nothing to prevent or suppress what
she believed was lawless violence, invasion or rebellion. However, the exercise
of such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency
This case brings to fore a contentious subject -- the power of the President in
times of emergency. A glimpse at the various political theories relating to this
subject provides an adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the
English doctrine of prerogative to cope with the problem of emergency. In times
of danger to the nation, positive law enacted by the legislature might be
inadequate or even a fatal obstacle to the promptness of action necessary to
avert catastrophe. In these situations, the Crown retained a prerogative "power
to act according to discretion for the public good, without the proscription
of the law and sometimes even against it."
84
But Locke recognized that this
moral restraint might not suffice to avoid abuse of prerogative powers. Who
shall judge the need for resorting to the prerogative and how may its
abuse be avoided? Here, Locke readily admitted defeat, suggesting that "the
people have no other remedy in this, as in all other cases where they have
no judge on earth, but to appeal to Heaven."
85

Jean-Jacques Rousseau also assumed the need for temporary suspension of
democratic processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to
circumstances, may, in certain cases, render them disastrous and make them
bring about, at a time of crisis, the ruin of the State
It is wrong therefore to wish to make political institutions as strong as to render
it impossible to suspend their operation. Even Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to
their preservation, the method is to nominate a supreme lawyer, who shall
silence all the laws and suspend for a moment the sovereign authority. In such a
case, there is no doubt about the general will, and it clear that the peoples first
intention is that the State shall not perish.
86

Rosseau did not fear the abuse of the emergency dictatorship or "supreme
magistracy" as he termed it. For him, it would more likely be cheapened by
"indiscreet use." He was unwilling to rely upon an "appeal to heaven." Instead,
he relied upon a tenure of office of prescribed duration to avoid perpetuation of
the dictatorship.
87

John Stuart Mill concluded his ardent defense of representative government: "I
am far from condemning, in cases of extreme necessity, the assumption of
absolute power in the form of a temporary dictatorship."
88

Nicollo Machiavellis view of emergency powers, as one element in the whole
scheme of limited government, furnished an ironic contrast to the Lockean
theory of prerogative. He recognized and attempted to bridge this chasm in
democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra
constitutional measures; for although they may for a time be beneficial, yet the
precedent is pernicious, for if the practice is once established for good objects,
they will in a little while be disregarded under that pretext but for evil purposes.
Thus, no republic will ever be perfect if she has not by law provided for
everything, having a remedy for every emergency and fixed rules for applying it.
89

Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate into
the constitution a regularized system of standby emergency powers to be
invoked with suitable checks and controls in time of national danger. He
attempted forthrightly to meet the problem of combining a capacious reserve of
power and speed and vigor in its application in time of emergency, with
effective constitutional restraints.
90

Contemporary political theorists, addressing themselves to the problem of
response to emergency by constitutional democracies, have employed the
doctrine of constitutional dictatorship.
91
Frederick M. Watkins saw "no reason
why absolutism should not be used as a means for the defense of liberal
institutions," provided it "serves to protect established institutions from the
danger of permanent injury in a period of temporary emergency and is
followed by a prompt return to the previous forms of political life."
92
He
recognized the two (2) key elements of the problem of emergency governance,
as well as all constitutional governance: increasing administrative powers of
the executive, while at the same time "imposing limitation upon that
power."
93
Watkins placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a dictatorship: "The
period of dictatorship must be relatively shortDictatorship should always
be strictly legitimate in characterFinal authority to determine the need
for dictatorship in any given case must never rest with the dictator
himself"
94
and the objective of such an emergency dictatorship should be
"strict political conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of Watkins.
95
"It is a
problem of concentrating power in a government where power has
consciously been divided to cope with situations of unprecedented
magnitude and gravity. There must be a broad grant of powers, subject to
equally strong limitations as to who shall exercise such powers, when, for how
long, and to what end."
96
Friedrich, too, offered criteria for judging the
adequacy of any of scheme of emergency powers, to wit: "The emergency
executive must be appointed by constitutional means i.e., he must be
legitimate; he should not enjoy power to determine the existence of an
emergency; emergency powers should be exercised under a strict time
limitation; and last, the objective of emergency action must be the defense
of the constitutional order."
97

Clinton L. Rossiter, after surveying the history of the employment of emergency
powers in Great Britain, France, Weimar, Germany and the United States,
reverted to a description of a scheme of "constitutional dictatorship" as solution
to the vexing problems presented by emergency.
98
Like Watkins and Friedrich,
he stated a priori the conditions of success of the "constitutional dictatorship,"
thus:
1) No general regime or particular institution of constitutional dictatorship
should be initiated unless it is necessary or even indispensable to the
preservation of the State and its constitutional order
2) the decision to institute a constitutional dictatorship should never be
in the hands of the man or men who will constitute the dictator
3) No government should initiate a constitutional dictatorship without
making specific provisions for its termination
4) all uses of emergency powers and all readjustments in the organization
of the government should be effected in pursuit of constitutional or
legal requirements
5) no dictatorial institution should be adopted, no right invaded, no
regular procedure altered any more than is absolutely necessary for the
conquest of the particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional
dictatorship should never be permanent in character or effect
7) The dictatorship should be carried on by persons representative of every
part of the citizenry interested in the defense of the existing
constitutional order. . .
8) Ultimate responsibility should be maintained for every action taken
under a constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the decision
to institute one should never be in the hands of the man or men who
constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the termination of
the crisis for which it was instituted
11) the termination of the crisis must be followed by a complete return as
possible to the political and governmental conditions existing prior to
the initiation of the constitutional dictatorship
99

Rossiter accorded to legislature a far greater role in the oversight exercise of
emergency powers than did Watkins. He would secure to Congress final
responsibility for declaring the existence or termination of an emergency, and
he places great faith in the effectiveness of congressional investigating
committees.
100

Scott and Cotter, in analyzing the above contemporary theories in light of
recent experience, were one in saying that, "the suggestion that democracies
surrender the control of government to an authoritarian ruler in time of
grave danger to the nation is not based upon sound constitutional theory."
To appraise emergency power in terms of constitutional dictatorship serves
merely to distort the problem and hinder realistic analysis. It matters not
whether the term "dictator" is used in its normal sense (as applied to
authoritarian rulers) or is employed to embrace all chief executives
administering emergency powers. However used, "constitutional dictatorship"
cannot be divorced from the implication of suspension of the processes of
constitutionalism. Thus, they favored instead the "concept of constitutionalism"
articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of
problems of emergency powers, and which is consistent with the findings of this
study, is that formulated by Charles H. McIlwain. While it does not by any means
necessarily exclude some indeterminate limitations upon the substantive powers
of government, full emphasis is placed upon procedural limitations, and
political responsibility. McIlwain clearly recognized the need to repose
adequate power in government. And in discussing the meaning of
constitutionalism, he insisted that the historical and proper test of
constitutionalism was the existence of adequate processes for keeping
government responsible. He refused to equate constitutionalism with the
enfeebling of government by an exaggerated emphasis upon separation of
powers and substantive limitations on governmental power. He found that the
really effective checks on despotism have consisted not in the weakening of
government but, but rather in the limiting of it; between which there is a great
and very significant difference. In associating constitutionalism with "limited"
as distinguished from "weak" government, McIlwain meant government
limited to the orderly procedure of law as opposed to the processes of
force. The two fundamental correlative elements of constitutionalism for
which all lovers of liberty must yet ght are the legal limits to arbitrary
power and a complete political responsibility of government to the
governed.
101

In the final analysis, the various approaches to emergency of the above political
theorists - from Locks "theory of prerogative," to Watkins doctrine of
"constitutional dictatorship" and, eventually, to McIlwains "principle of
constitutionalism" --- ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power to
the Chief Executive, while insuring that such powers will be exercised with
a sense of political responsibility and under effective limitations and
checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a
repressive regime, the 1986 Constitutional Commission, in drafting the 1987
Constitution, endeavored to create a government in the concept of Justice
Jacksons "balanced power structure."
102
Executive, legislative, and judicial
powers are dispersed to the President, the Congress, and the Supreme Court,
respectively. Each is supreme within its own sphere. But none has the
monopoly of power in times of emergency. Each branch is given a role to
serve as limitation or check upon the other. This system does not weaken the
President, it just limits his power, using the language of McIlwain. In other
words, in times of emergency, our Constitution reasonably demands that we
repose a certain amount of faith in the basic integrity and wisdom of the Chief
Executive but, at the same time, it obliges him to operate within carefully
prescribed procedural limitations.
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.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
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.
103

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,
104
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." In Broadrick v. Oklahoma,
105
it was
held:
It remains a matter of no little difficulty to determine when a law may properly
be held void on its face and when such summary action is inappropriate. But
the plain import of our cases is, at the very least, that facial overbreadth
adjudication is an exception to our traditional rules of practice and that its
function, a limited one at the outset, attenuates as the otherwise
unprotected behavior that it forbids the State to sanction moves from
pure speech toward conduct and that conduct even if expressive falls
within the scope of otherwise valid criminal laws that reect legitimate
state interests in maintaining comprehensive controls over harmful,
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."
106
Here, the incontrovertible fact remains that PP 1017
pertains to a spectrum of conduct, not free speech, which is manifestly subject
to state regulation.
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;"
107
The reason for this is obvious. Embedded in the traditional rules
governing constitutional adjudication is the principle that a person to whom a
law may be applied will not be heard to challenge a law on the ground that it
may conceivably be applied unconstitutionally to others, i.e., in other
situations not before the Court.
108
A writer and scholar in Constitutional Law
explains further:
The most distinctive feature of the overbreadth technique is that it marks
an exception to some of the usual rules of constitutional litigation.
Ordinarily, a particular litigant claims that a statute is unconstitutional as
applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper applications
on a case to case basis. Moreover, challengers to a law are not permitted
to raise the rights of third parties and can only assert their own interests.
In overbreadth analysis, those rules give way; challenges are permitted to
raise the rights of third parties; and the court invalidates the entire statute
"on its face," not merely "as applied for" so that the overbroad law becomes
unenforceable until a properly authorized court construes it more narrowly. The
factor that motivates courts to depart from the normal adjudicatory rules is the
concern with the "chilling;" deterrent effect of the overbroad statute on third
parties not courageous enough to bring suit. The Court assumes that an
overbroad laws "very existence may cause others not before the court to refrain
from constitutionally protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third parties.
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. In Younger v. Harris,
109
it was
held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and
requiring correction of these deficiencies before the statute is put into effect, is
rarely if ever an appropriate task for the judiciary. The combination of the
relative remoteness of the controversy, the impact on the legislative
process of the relief sought, and above all the speculative and amorphous
nature of the required line-by-line analysis of detailed statutes,...ordinarily
results in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.
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.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important
provisions, thus:
First provision:
"by virtue of the power vested upon me by Section 18, Artilce VII do hereby
command the Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless violence as
well any act of insurrection or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare a
State of National Emergency."
First Provision: Calling-out Power
The first provision pertains to the Presidents calling-out power. In Sanlakas v.
Executive Secretary,
111
this Court, through Mr. Justice Dante O. Tinga, held that
Section 18, Article VII of the Constitution reproduced as follows:
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 Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual bases of the proclamation of martial law or
the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released.
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,
112
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 Offices 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 Presidents 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
Presidents authority to declare a "state of rebellion" (in Sanlakas) and the
authority to proclaim a state of national emergency. While President Arroyos
authority to declare a "state of rebellion" emanates from her powers as Chief
Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2,
Book II of the Revised Administrative Code of 1987, which provides:
SEC. 4. Proclamations. Acts of the President fixing a date or declaring a
status or condition of public moment or interest, upon the existence of which
the operation of a specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of an executive order.
President Arroyos 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 States 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.
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."
113

In his "Statement before the Senate Committee on Justice" on March 13, 2006,
Mr. Justice Vicente V. Mendoza,
114
an authority in constitutional law, said that of
the three powers of the President as Commander-in-Chief, the power to declare
Martial Law poses the most severe threat to civil liberties. It is a strong medicine
which should not be resorted to lightly. It cannot be used to stifle or persecute
critics of the government. It is placed in the keeping of the President for the
purpose of enabling him to secure the people from harm and to restore order
so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII,
provides:
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
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 Arroyos calling-out power
for the armed forces to assist her in preventing or suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to ensure that the
laws be faithfully executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested,
115
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."
116
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,
117
including the
Philippine National Police
118
under the Department of Interior and Local
Government.
119

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur
Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador argue
that PP 1017 is unconstitutional as it arrogated upon President Arroyo the
power to enact laws and decrees in violation of Section 1, Article VI of the
Constitution, which vests the power to enact laws in Congress. They assail the
clause "to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction."
\
Petitioners contention is understandable. A reading of PP 1017 operative
clause shows that it was lifted
120
from Former President Marcos Proclamation
No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines
by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2)
of the Constitution, do hereby place the entire Philippines as defined in Article
1, Section 1 of the Constitution under martial law and, in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines, prevent
or suppress all forms of lawless violence as well as any act of insurrection
or rebellion and to enforce obedience to all the laws and decrees, orders
and regulations promulgated by me personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative
power. Its enabling clause states: "to enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my
direction." Upon the other hand, the enabling clause of PP 1017 issued by
President Arroyo is: to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my
direction."
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 x x x
promulgated by me personally or upon my direction."
The President is granted an Ordinance Power under Chapter 2, Book III of
Executive Order No. 292 (Administrative Code of 1987). She may issue any of
the following:
Sec. 2. Executive Orders. Acts of the President providing for rules of a
general or permanent character in implementation or execution of constitutional
or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. Acts of the President which relate to particular
aspect of governmental operations in pursuance of his duties as administrative
head shall be promulgated in administrative orders.
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.
Sec. 5. Memorandum Orders. Acts of the President on matters of
administrative detail or of subordinate or temporary interest which only concern
a particular officer or office of the Government shall be embodied in
memorandum orders.
Sec. 6. Memorandum Circulars. Acts of the President on matters relating to
internal administration, which the President desires to bring to the attention of
all or some of the departments, agencies, bureaus or offices of the Government,
for information or compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. Acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be
issued as general or special orders.
President Arroyos 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.
121

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 Arroyos exercise of legislative power by
issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the
military?
As this Court stated earlier, President Arroyo has no authority to enact decrees.
It follows that these decrees are void and, therefore, cannot be enforced. With
respect to "laws," she cannot call the military to enforce or implement certain
laws, such as customs laws, laws governing family and property relations, laws
on obligations and contracts and the like. She can only order the military, under
PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders, and
regulations promulgated by me personally or upon my direction; and as
provided in Section 17, Article XII of the Constitution do hereby declare a
state of national emergency.
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 x x x" but also to act pursuant to the provision
of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires,
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.
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.
This provision was first introduced in the 1973 Constitution, as a product of the
"martial law" thinking of the 1971 Constitutional Convention.
122
In effect at the
time of its approval was President Marcos Letter of Instruction No. 2 dated
September 22, 1972 instructing the Secretary of National Defense to take over
"the management, control and operation of the Manila Electric Company, the
Philippine Long Distance Telephone Company, the National Waterworks and
Sewerage Authority, the Philippine National Railways, the Philippine Air Lines,
Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by
the Government of its effort to contain, solve and end the present national
emergency."
Petitioners, particularly the members of the House of Representatives, claim that
President Arroyos inclusion of Section 17, Article XII in PP 1017 is an
encroachment on the legislatures emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the Presidents 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 reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint
session assembled, voting separately, shall have the sole power to declare the
existence of a state of war.
(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.
It may be pointed out that the second paragraph of the above 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 in pari 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.
123
Considering that Section
17 of Article XII and Section 23 of Article VI, previously quoted, relate to
national emergencies, they must be read together to determine the limitation of
the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident
in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers
to the President. Certainly, a body cannot delegate a power not reposed
upon it. However, knowing that during grave emergencies, it may not be
possible or practicable for Congress to meet and exercise its powers, the
Framers of our Constitution deemed it wise to allow Congress to grant
emergency powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress
may prescribe.
(4) The emergency powers must be exercised to carry out a national
policy declared by Congress.
124

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. Youngstown Sheet & Tube Co. et al. v.
Sawyer,
125
held:
It is clear that if the President had authority to issue the order he did, it must be
found in some provision of the Constitution. And it is not claimed that express
constitutional language grants this power to the President. The contention is
that presidential power should be implied from the aggregate of his powers
under the Constitution. Particular reliance is placed on provisions in Article II
which say that "The executive Power shall be vested in a President . . . .;" that
"he shall take Care that the Laws be faithfully executed;" and that he "shall be
Commander-in-Chief of the Army and Navy of the United States.
The order cannot properly be sustained as an exercise of the Presidents military
power as Commander-in-Chief of the Armed Forces. The Government attempts
to do so by citing a number of cases upholding broad powers in military
commanders engaged in day-to-day fighting in a theater of war. Such cases
need not concern us here. Even though "theater of war" be an expanding
concept, we cannot with faithfulness to our constitutional system hold that
the Commander-in-Chief of the Armed Forces has the ultimate power as
such to take possession of private property in order to keep labor disputes
from stopping production. This is a job for the nations lawmakers, not for
its military authorities.
Nor can the seizure order be sustained because of the several
constitutional provisions that grant executive power to the President. In
the framework of our Constitution, the Presidents power to see that the
laws are faithfully executed refutes the idea that he is to be a lawmaker.
The Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks
bad. And the Constitution is neither silent nor equivocal about who shall
make laws which the President is to execute. The rst section of the rst
article says that "All legislative Powers herein granted shall be vested in a
Congress of the United States. . ."
126

Petitioner Cacho-Olivares, et al. contends that the term "emergency" under
Section 17, Article XII refers to "tsunami," "typhoon," "hurricane"and"similar
occurrences." This is a limited view of "emergency."
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.
127
Emergencies, as perceived by legislature or
executive in the United Sates since 1933, have been occasioned by a wide
range of situations, classifiable under three (3) principal heads: a) economic,
128

b) natural disaster,
129
and c) national security.
130

"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.
131
This is
evident in the Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committees definition of "national emergency"
which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or
direct the operation of any privately owned public utility or business affected
with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for example,
calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about
strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term "national
emergency."
MR. BENGZON. Unless they are of such proportions such that they would
paralyze government service.
132

x x x x x x
MR. TINGSON. May I ask the committee if "national emergency" refers to
military national emergency or could this be economic emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.
133

It may be argued that when there is national emergency, Congress may not be
able to convene and, therefore, unable to delegate to the President the power
to take over privately-owned public utility or business affected with public
interest.
In Araneta v. Dinglasan,
134
this Court emphasized that legislative power, through
which extraordinary measures are exercised, remains in Congress even in times
of crisis.
"x x x
After all the criticisms that have been made against the efficiency of the system
of the separation of powers, the fact remains that the Constitution has set up
this form of government, with all its defects and shortcomings, in preference to
the commingling of powers in one man or group of men. The Filipino people by
adopting parliamentary government have given notice that they share the faith
of other democracy-loving peoples in this system, with all its faults, as the ideal.
The point is, under this framework of government, legislation is preserved for
Congress all the time, not excepting periods of crisis no matter how serious.
Never in the history of the United States, the basic features of whose
Constitution have been copied in ours, have specific functions of the legislative
branch of enacting laws been surrendered to another department unless we
regard as legislating the carrying out of a legislative policy according to
prescribed standards; no, not even when that Republic was fighting a total war,
or when it was engaged in a life-and-death struggle to preserve the Union. The
truth is that under our concept of constitutional government, in times of
extreme perils more than in normal circumstances the various branches,
executive, legislative, and judicial, given the ability to act, are called upon to
perform the duties and discharge the responsibilities committed to them
respectively."
Following our interpretation of Section 17, Article XII, invoked by President
Arroyo in issuing PP 1017, this Court rules that such Proclamation does not
authorize her during the emergency to temporarily take over or direct the
operation of any privately owned public utility or business affected with public
interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of
national emergency, however, without legislation, he has no power to take over
privately-owned public utility or business affected with public interest. The
President cannot decide whether exceptional circumstances exist warranting the
take over of privately-owned public utility or business affected with public
interest. Nor can he determine when such exceptional circumstances have
ceased. Likewise, without legislation, the President has no power to point out
the types of businesses affected with public interest that should be taken over.
In short, the President has no absolute authority to exercise all the powers of
the State under Section 17, Article VII in the absence of an emergency powers
act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to
security, is that military necessity and the guaranteed rights of the individual are
often not compatible. Our history reveals that in the crucible of conflict, many
rights are curtailed and trampled upon. Here, the right against unreasonable
search and seizure; the right against warrantless arrest; and the freedom of
speech, of expression, of the press, and of assembly under the Bill of Rights
suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24,
2006, they were arrested without warrants on their way to EDSA to celebrate
the 20th Anniversary of People Power I. The arresting officers cited PP 1017 as
basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co.,
Inc. claimed that on February 25, 2006, the CIDG operatives "raided and
ransacked without warrant" their office. Three policemen were assigned to
guard their office as a possible "source of destabilization." Again, the basis was
PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that
their members were "turned away and dispersed" when they went to EDSA and
later, to Ayala Avenue, to celebrate the 20th Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners shows
that they resulted from the implementation, pursuant to G.O. No. 5, of PP
1017.
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
135
and may afford an
opportunity for abuse in the manner of application.
136
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.
137
PP 1017 is merely an invocation of the Presidents 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.
138
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 efcient administration of law. Such rules and regulations create
no relation except between the official who issues them and the official who
receives them.
139
They are based on and are the product of, a relationship in
which power is their source, and obedience, their object.
140
For these reasons,
one requirement for these rules to be valid is that they must be reasonable, not
arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the
"necessary and appropriate actions and measures to suppress and prevent
acts of terrorism and lawless violence."
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 following observations are quite apropos:
In the actual unipolar context of international relations, the "fight against
terrorism" has become one of the basic slogans when it comes to the
justification of the use of force against certain states and against groups
operating internationally. Lists of states "sponsoring terrorism" and of terrorist
organizations are set up and constantly being updated according to criteria that
are not always known to the public, but are clearly determined by strategic
interests.
The basic problem underlying all these military actions or threats of the use of
force as the most recent by the United States against Iraq consists in the
absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of
violence either by states, by armed groups such as liberation movements, or by
individuals.
The dilemma can by summarized in the saying "One countrys terrorist is
another countrys freedom fighter." The apparent contradiction or lack of
consistency in the use of the term "terrorism" may further be demonstrated by
the historical fact that leaders of national liberation movements such as Nelson
Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in
Algeria, to mention only a few, were originally labeled as terrorists by those who
controlled the territory at the time, but later became internationally respected
statesmen.
What, then, is the defining criterion for terrorist acts the differentia specifica
distinguishing those acts from eventually legitimate acts of national resistance or
self-defense?
Since the times of the Cold War the United Nations Organization has been
trying in vain to reach a consensus on the basic issue of definition. The
organization has intensified its efforts recently, but has been unable to bridge
the gap between those who associate "terrorism" with any violent act by non-
state groups against civilians, state functionaries or infrastructure or military
installations, and those who believe in the concept of the legitimate use of force
when resistance against foreign occupation or against systematic oppression of
ethnic and/or religious groups within a state is concerned.
The dilemma facing the international community can best be illustrated by
reference to the contradicting categorization of organizations and movements
such as Palestine Liberation Organization (PLO) which is a terrorist group for
Israel and a liberation movement for Arabs and Muslims the Kashmiri
resistance groups who are terrorists in the perception of India, liberation
fighters in that of Pakistan the earlier Contras in Nicaragua freedom fighters
for the United States, terrorists for the Socialist camp or, most drastically, the
Afghani Mujahedeen (later to become the Taliban movement): during the Cold
War period they were a group of freedom fighters for the West, nurtured by the
United States, and a terrorist gang for the Soviet Union. One could go on and
on in enumerating examples of conflicting categorizations that cannot be
reconciled in any way because of opposing political interests that are at the
roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and
evaluations of one and the same group and its actions be explained? In our
analysis, the basic reason for these striking inconsistencies lies in the divergent
interest of states. Depending on whether a state is in the position of an
occupying power or in that of a rival, or adversary, of an occupying power in a
given territory, the definition of terrorism will "fluctuate" accordingly. A state
may eventually see itself as protector of the rights of a certain ethnic group
outside its territory and will therefore speak of a "liberation struggle," not of
"terrorism" when acts of violence by this group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on the
definition of terrorism exactly because of these conflicting interests of sovereign
states that determine in each and every instance how a particular armed
movement (i.e. a non-state actor) is labeled in regard to the terrorists-freedom
fighter dichotomy. A "policy of double standards" on this vital issue of
international affairs has been the unavoidable consequence.
This "definitional predicament" of an organization consisting of sovereign states
and not of peoples, in spite of the emphasis in the Preamble to the United
Nations Charter! has become even more serious in the present global power
constellation: one superpower exercises the decisive role in the Security
Council, former great powers of the Cold War era as well as medium powers are
increasingly being marginalized; and the problem has become even more acute
since the terrorist attacks of 11 September 2001 I the United States.
141

The absence of a law defining "acts of terrorism" may result in abuse and
oppression on the part of the police or military. An illustration is when a group
of persons are merely engaged in a drinking spree. Yet the military or the police
may consider the act as an act of terrorism and immediately arrest them
pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part. It
must be remembered that an act can only be considered a crime if there is a law
defining the same as such and imposing the corresponding penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D.
No. 1835 dated January 16, 1981 enacted by President Marcos during the
Martial Law regime. This decree is entitled "Codifying The Various Laws on Anti-
Subversion and Increasing The Penalties for Membership in Subversive
Organizations." The word "terrorism" is mentioned in the following provision:
"That one who conspires with any other person for the purpose of overthrowing
the Government of the Philippines x x x by force, violence, terrorism, x x x shall
be punished by reclusion temporal x x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist
Party of the Philippines) enacted by President Corazon Aquino on May 5, 1985.
These two (2) laws, however, do not define "acts of terrorism." Since there is no
law defining "acts of terrorism," it is President Arroyo alone, under G.O. No. 5,
who has the discretion to determine what acts constitute terrorism. Her
judgment on this aspect is absolute, without restrictions. Consequently, there
can be indiscriminate arrest without warrants, breaking into offices and
residences, taking over the media enterprises, prohibition and dispersal of all
assemblies and gatherings unfriendly to the administration. All these can be
effected in the name of G.O. No. 5. These acts go far beyond the calling-out
power of the President. Certainly, they violate the due process clause of the
Constitution. Thus, this Court declares that the "acts of terrorism" portion of
G.O. No. 5 is unconstitutional.
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.
We first examine G.R. No. 171396 (David et al.)
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."
142
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.
143

In the Brief Account
144
submitted by petitioner David, certain facts are
established: first, he was arrested without warrant; second, the PNP operatives
arrested him on the basis of PP 1017; third, he was brought at Camp Karingal,
Quezon City where he was fingerprinted, photographed and booked like a
criminal suspect; fourth,he was treated brusquely by policemen who "held his
head and tried to push him" inside an unmarked car; fifth, he was charged with
Violation of Batas Pambansa Bilang No. 880
145
and Inciting to Sedition; sixth,
he was detained for seven (7) hours; and seventh,he was eventually released for
insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause
to believe based on personal knowledge of facts or circumstances that
the person to be arrested has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner Davids
warrantless arrest. During the inquest for the charges of inciting to sedition and
violation of BP 880, all that the arresting officers could invoke was their
observation that some rallyists were wearing t-shirts with the invective "Oust
Gloria Now" and their erroneous assumption that petitioner David was the
leader of the rally.
146
Consequently, the Inquest Prosecutor ordered his
immediate release on the ground of insufficiency of evidence. He noted that
petitioner David was not wearing the subject t-shirt and even if he was wearing
it, such fact is insufficient to charge him with inciting to sedition. Further, he
also stated that there is insufficient evidence for the charge of violation of BP
880 as it was not even known whether petitioner David was the leader of the
rally.
147

But what made it doubly worse for petitioners David et al. is that not only was
their right against warrantless arrest violated, but also their right to peaceably
assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs. It is a necessary consequence of our
republican institution and complements the right of speech. As in the case of
freedom of expression, this right is not to be limited, much less denied, except
on a showing of a clear and present danger of a substantive evil that Congress
has a right to prevent. In other words, like other rights embraced in the freedom
of expression, the right to assemble is not subject to previous restraint or
censorship. It may not be conditioned upon the prior issuance of a permit or
authorization from the government authorities except, of course, if the assembly
is intended to be held in a public place, a permit for the use of such place, and
not for the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they
were exercising their right to peaceful assembly. They were not committing any
crime, neither was there a showing of a clear and present danger that warranted
the limitation of that right. As can be gleaned from circumstances, the charges
of inciting to sedition and violation of BP 880 were mere afterthought. Even
the Solicitor General, during the oral argument, failed to justify the arresting
officers conduct. In De Jonge v. Oregon,
148
it was held that peaceable
assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding
of meetings for peaceable political action cannot be proscribed. Those who
assist in the conduct of such meetings cannot be branded as criminals on that
score. The question, if the rights of free speech and peaceful assembly are not
to be preserved, is not as to the auspices under which the meeting was held but
as to its purpose; not as to the relations of the speakers, but whether their
utterances transcend the bounds of the freedom of speech which the
Constitution protects. If the persons assembling have committed crimes
elsewhere, if they have formed or are engaged in a conspiracy against the
public peace and order, they may be prosecuted for their conspiracy or other
violations of valid laws. But it is a different matter when the State, instead of
prosecuting them for such offenses, seizes upon mere participation in a
peaceable assembly and a lawful public discussion as the basis for a
criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal
and arrest of the members of KMU et al. (G.R. No. 171483) unwarranted.
Apparently, their dispersal was done merely on the basis of Malacaangs
directive canceling all permits previously issued by local government units. This
is arbitrary. The wholesale cancellation of all permits to rally is a blatant
disregard of the principle that "freedom of assembly is not to be limited,
much less denied, except on a showing of a clear and present danger of a
substantive evil that the State has a right to prevent."
149
Tolerance is the
rule and limitation is the exception. Only upon a showing that an assembly
presents a clear and present danger that the State may deny the citizens right
to exercise it. Indeed, respondents failed to show or convince the Court that the
rallyists committed acts amounting to lawless violence, invasion or rebellion.
With the blanket revocation of permits, the distinction between protected and
unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is
lodged with the local government units. They have the power to issue permits
and to revoke such permits after due notice and hearing on the determination
of the presence of clear and present danger. Here, petitioners were not even
notified and heard on the revocation of their permits.
150
The first time they
learned of it was at the time of the dispersal. Such absence of notice is a fatal
defect. When a persons right is restricted by government action, it behooves a
democratic government to see to it that the restriction is fair, reasonable, and
according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of
speech i.e., the freedom of the press. Petitioners narration of facts, which the
Solicitor General failed to refute, established the following: first, the Daily
Tribunes offices were searched without warrant;second, the police operatives
seized several materials for publication; third, the search was conducted at
about 1:00 o clock in the morning of February 25, 2006; fourth, the search was
conducted in the absence of any official of the Daily Tribune except the security
guard of the building; and fifth, policemen stationed themselves at the vicinity
of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief
of Staff Michael Defensor was quoted as saying that such raid was "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."
Director General Lomibao further stated that "if they do not follow the
standards and the standards are if they would contribute to instability in
the government, or if they do not subscribe to what is in General Order
No. 5 and Proc. No. 1017 we will recommend a takeover." National
Telecommunications Commissioner Ronald Solis urged television and radio
networks to "cooperate" with the government for the duration of the state of
national emergency. He warned that his agency will not hesitate to
recommend the closure of any broadcast outt that violates rules set out
for media coverage during times when the national security is threatened.
151

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays
down the steps in the conduct of search and seizure. Section 4 requires that a
search warrant be issued upon probable cause in connection with one specific
offence to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce. Section 8
mandates that the search of a house, room, or any other premise be made in
the presence of the lawful occupant thereof or any member of his family or in
the absence of the latter, in the presence of two (2) witnesses of sufficient age
and discretion residing in the same locality. And Section 9 states that the
warrant must direct that it be served in the daytime, unless the property is on
the person or in the place ordered to be searched, in which case a direction
may be inserted that it be served at any time of the day or night. All these rules
were violated by the CIDG operatives.
Not only that, the search violated petitioners freedom of the press. The best
gauge of a free and democratic society rests in the degree of freedom enjoyed
by its media. In the Burgos v. Chief of Staff
152
this Court held that --
As heretofore stated, the premises searched were the business and printing
offices of the "Metropolitan Mail" and the "We Forum" newspapers. As a
consequence of the search and seizure, these premises were padlocked and
sealed, with the further result that the printing and publication of said
newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent
to the freedom of the press guaranteed under the fundamental law, and
constitutes a virtual denial of petitioners' freedom to express themselves
in print. This state of being is patently anathematic to a democratic
framework where a free, alert and even militant press is essential for the
political enlightenment and growth of the citizenry.
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.
153
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.
154

Incidentally, during the oral arguments, the Solicitor General admitted that the
search of the Tribunes offices and the seizure of its materials for publication and
other papers are illegal; and that the same are inadmissible "for any purpose,"
thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen,
when inspected the Tribune for the purpose of gathering evidence and you
admitted that the policemen were able to get the clippings. Is that not in
admission of the admissibility of these clippings that were taken from the
Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and I
know, Your Honor, and these are inadmissible for any purpose.
155

x x x x x x x x x
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you have
to do is to get those past issues. So why do you have to go there at 1 oclock in
the morning and without any search warrant? Did they become suddenly part of
the evidence of rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is not based on any law,
and it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in
1017 which says that the police could go and inspect and gather clippings from
Daily Tribune or any other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I dont know if it is
premature to say this, we do not condone this. If the people who have been
injured by this would want to sue them, they can sue and there are
remedies for this.
156

Likewise, the warrantless arrests and seizures executed by the police were,
according to the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I dont know whether this will clarify. The acts, the supposed illegal or unlawful
acts committed on the occasion of 1017, as I said, it cannot be condoned. You
cannot blame the President for, as you said, a misapplication of the law. These
are acts of the police officers, that is their responsibility.
157

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in
every aspect and "should result in no constitutional or statutory breaches if
applied according to their letter."
The Court has passed upon the constitutionality of these issuances. Its
ratiocination has been exhaustively presented. At this point, suffice it to
reiterate that PP 1017 is limited to the calling out by the President of the military
to prevent or suppress lawless violence, invasion or rebellion. When in
implementing its provisions, pursuant to G.O. No. 5, the military and the police
committed acts which violate the citizens rights under the Constitution, this
Court has to declare such acts unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganibans concurring opinion,
attached hereto, is considered an integral part of this ponencia.
S U M M A T I O N
In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening
event would have normally rendered this case moot and academic. However,
while PP 1017 was still operative, illegal acts were committed allegedly in
pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar
to it, may not again be issued. Already, there have been media reports on April
30, 2006 that allegedly PP 1017 would be reimposed "if the May 1 rallies"
become "unruly and violent." Consequently, the transcendental issues raised by
the parties should not be "evaded;" they must now be resolved to prevent
future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it
constitutes a call by the President for the AFP to prevent or suppress lawless
violence. The proclamation is sustained by Section 18, Article VII of the
Constitution and the relevant jurisprudence discussed earlier. However, PP
1017s extraneous provisions giving the President express or implied power (1)
to issue decrees; (2) to direct the AFP to enforce obedience to all laws even
those not related to lawless violence as well as decrees promulgated by the
President; and (3) to impose standards on media or any form of prior restraint
on the press, are ultra vires and unconstitutional. The Court also rules that
under Section 17, Article XII of the Constitution, the President, in the absence of
a legislation, cannot take over privately-owned public utility and private
business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the
President acting as Commander-in-Chief addressed to subalterns in the AFP
to carry out the provisions of PP 1017. Significantly, it also provides a valid
standard that the military and the police should take only the "necessary and
appropriate actions and measures to suppress and prevent acts of lawless
violence."But the words "acts of terrorism" found in G.O. No. 5 have not
been legally defined and made punishable by Congress and should thus be
deemed deleted from the said G.O. While "terrorism" has been denounced
generally in media, no law has been enacted to guide the military, and
eventually the courts, to determine the limits of the AFPs authority in carrying
out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also
pristine clear that (1) the warrantless arrest of petitioners Randolf S. David and
Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU
and NAFLU-KMU members; (3) the imposition of standards on media or any
prior restraint on the press; and (4) the warrantless search of the Tribune offices
and the whimsical seizures of some articles for publication and other materials,
are not authorized by the Constitution, the law and jurisprudence. Not even by
the valid provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil,
criminal or administrative sanctions on the individual police officers concerned.
They have not been individually identified and given their day in court. The civil
complaints or causes of action and/or relevant criminal Informations have not
been presented before this Court. Elementary due process bars this Court from
making any specific pronouncement of civil, criminal or administrative liabilities.
It is well to remember that military power is a means to an end and
substantive civil rights are ends in themselves. How to give the military the
power it needs to protect the Republic without unnecessarily trampling
individual rights is one of the eternal balancing tasks of a democratic
state.During emergency, governmental action may vary in breadth and intensity
from normal times, yet they should not be arbitrary as to unduly restrain our
peoples liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied the
various competing political philosophies is that, it is possible to grant
government the authority to cope with crises without surrendering the two vital
principles of constitutionalism: the maintenance of legal limits to arbitrary
power, and political responsibility of the government to the governed.
158

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.
No costs.
SO ORDERED.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
(On leave)
REYNATO S. PUNO
Associate Justice

LEONARDO A. QUISUMBING
Asscociate Justice
CONSUELO YNARES-SANTIAGO
Associate Justice
ANTONIO T. CARPIO
Asscociate Justice
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
RENATO C. CORONA
Asscociate Justice
CONCHITA CARPIO MORALES
Associate Justice
ROMEO J. CALLEJO, SR.
Asscociate Justice
ADOLFO S. AZCUNA
Associate Justice
DANTE O. TINGA
Asscociate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
CANCIO C. GARCIA
Asscociate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Court.
ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes
1
Law and Disorder, The Franklin Memorial Lectures, Justice Tom C. Clark
Lecturer, Volume XIX, 1971, p. 29.
2
Chief Justice Artemio V. Panganiban, Liberty and Prosperity, February 15,
2006.
3
Articulated in the writings of the Greek philosopher, Heraclitus of Ephesus,
540-480 B.C., who propounded universal impermanence and that all things,
notably opposites are interrelated.
4
Respondents Comment dated March 6, 2006.
5
Ibid.
6
Ibid.
7
Minutes of the Intelligence Report and Security Group, Philippine Army, Annex
"I" of Respondents Consolidated Comment.
8
Respondents Consolidated Comment.
9
Ibid.
10
Ibid.
11
Petition in G.R. No. 171396, p. 5.
12
Police action in various parts of Metro Manila and the reactions of the huge
crowds being dispersed were broadcast as "breaking news" by the major
television stations of this country.
13
Petition in G.R. No. 171400, p. 11.
14
Ibid.
15
The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the
fulfillment thereof, all citizens may be required, under conditions provided by
law, to render personal military or civil service.
16
No person shall be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the laws.
17
The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched
and the persons or things to be seized.
18
No law shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the
Government for redress of grievances.
19
(1) The Congress, by a vote of two-thirds of both Houses in joint session
assembled, voting separately, shall have the sole power to declare the existence
of a state of war.
(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.
20
In times of national emergency, when the public interest so requires, 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.
21
1 Cranch 137 [1803].
22
Howard L. MacBain, "Some Aspects of Judicial Review," Bacon Lectures on
the Constitution of the United States (Boston: Boston University Heffernan Press,
1939), pp. 376-77.
23
The Court has no self-starting capacity and must await the action of some
litigant so aggrieved as to have a justiciable case. (Shapiro and Tresolini,
American Constitutional Law, Sixth Edition, 1983, p. 79).
24
Cruz, Philippine Political Law, 2002 Ed., p. 259.
25
Ibid.
26
Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA
736.
27
Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. No. 132795,
March 10, 2004, 425 SCRA 129; Vda. De Dabao v. Court of Appeals, G.R. No.
1165, March 23, 2004, 426 SCRA 91; and Paloma v. Court of Appeals, G.R. No.
145431, November 11, 2003, 415 SCRA 590.
28
Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56,
January 26, 2004, 421 SCRA 21; Vda. De Dabao v. Court of Appeals, supra.
29
Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756.
30
Cruz, Philippine Political Law, 2002, p. 268 citing Norton v. Shelby, 118 U.S.
425.
31
Province of Batangas v. Romulo, supra.
32
Lacson v. Perez, supra.
33
Province of Batangas v. Romulo, supra.
34
Albaa v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435
SCRA 98, Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577,
Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA
656.
35
Salonga v. Cruz Pao, et al., No. L- 59524, February 18, 1985, 134 SCRA 438.
36
G.R. No. 159085, February 3, 2004, 421 SCRA 656.
37
Blacks Law Dictionary, 6th Ed. 1991, p. 941.
38
Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).
39
275 Ky 91, 120 SW2d 765 (1938).
40
19 Wend. 56 (1837).
41
232 NC 48, 59 SE2d 359 (1950).
42
302 U.S. 633.
43
318 U.S. 446.
44
65 Phil. 56 (1937).
45
G.R. No. 117, November 7, 1945 (Unreported).
46
G.R. No. 2947, January 11, 1959 (Unreported).
47
110 Phil. 331 (1960).
48
77 Phil. 1012 (1947).
49
84 Phil. 368 (1949) The Court held: "Above all, the transcendental importance
to the public of these cases demands that they be settled promptly and
definitely, brushing aside, if we must, technicalities of procedure."
50
L-No. 40004, January 31, 1975, 62 SCRA 275.
51
Taada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27, where the
Court held that where the question is one of public duty and the enforcement of
a public right, the people are the real party in interest, and it is sufficient that
the petitioner is a citizen interested in the execution of the law;
Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150
SCRA 530, where the Court held that in cases involving an assertion of a public
right, the requirement of personal interest is satisfied by the mere fact that the
petitioner is a citizen and part of the general public which possesses the right.
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L.
No. 81311, June 30, 1988, 163 SCRA 371, where the Court held that objections
to taxpayers lack of personality to sue may be disregarded in determining the
validity of the VAT law;
Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264, where the
Court held that while no expenditure of public funds was involved under the
questioned contract, nonetheless considering its important role in the economic
development of the country and the magnitude of the financial consideration
involved, public interest was definitely involved and this clothed petitioner with
the legal personality under the disclosure provision of the Constitution to
question it.
Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian
Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343, where the Court ruled
that while petitioners are strictly speaking, not covered by the definition of a
"proper party," nonetheless, it has the discretion to waive the requirement, in
determining the validity of the implementation of the CARP.
Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, 191 SCRA
452, where the Court held that it enjoys the open discretion to entertain
taxpayers suit or not and that a member of the Senate has the requisite
personality to bring a suit where a constitutional issue is raised.
Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771, where
the Court held that petitioner as a taxpayer, has the personality to file the
instant petition, as the issues involved, pertains to illegal expenditure of public
money;
Osmea v. Comelec, G.R. No. 100318, 100308, 100417,100420, July 30, 1991,
199 SCRA 750, where the Court held that where serious constitutional questions
are involved, the "transcendental importance" to the public of the cases
involved demands that they be settled promptly and definitely, brushing aside
technicalities of procedures;
De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA 420, where the
Court held that the importance of the issues involved concerning as it does the
political exercise of qualified voters affected by the apportionment, necessitates
the brushing aside of the procedural requirement of locus standi.
52
G.R. No. 133250, July 9, 2002, 384 SCRA 152.
53
G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342
SCRA 449.
54
G.R. No. 151445, April 11, 2002, 380 SCRA 739.
55
Supra.
56
G.R. No. 118910, November 16, 1995, 250 SCRA 130.
57
G.R. No. 132922, April 21, 1998, 289 SCRA 337.
58
G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756.
59
G.R. No. 159085, February 3, 2004, 421 SCRA 656.
60
235 SCRA 506 (1994).
61
Supra.
62
Supra.
63
197 SCRA 52, 60 (1991).
64
Supra.
65
See NAACP v. Alabama, 357 U.S. 449 (1958).
66
G.R. No. 141284, August 15, 2000, 338 SCRA 81.
67
From the deliberations of the Constitutional Commission, the intent of the
framers is clear that the immunity of the President from suit is concurrent only
with his tenure and not his term. (De Leon, Philippine Constitutional Law, Vol. 2,
2004 Ed., p. 302).
68
Section 1, Article XI of the Constitution provides: Public Office is a public
trust. Public officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty and efficiency,
act with patriotism and justice, and lead modest lives.
69
Ibid., Sec. 2.
70
No. 2908, September 30, 2005, 471 SCRA 87.
71
91 Phil. 882 (1952).
72
No. L-33964, December 11, 1971, 42 SCRA 448.
73
No. L-35546, September 17, 1974, 59 SCRA 183.
74
No. L-61388, April 20, 1983, 121 SCRA 472.
75
Taada v. Cuenco, 103 Phil. 1051 (1957).
76
Lansang v. Garcia, supra, pp. 473 and 481.
77
Supra.
78
"Five Justices Antonio, Makasiar, Esguerra, Fernandez, and Aquino took
the position that the proclamation of martial law and the arrest and detention
orders accompanying the proclamation posed a "political question" beyond the
jurisdiction of the Court. Justice Antonio, in a separate opinion concurred in by
Makasiar, Fernandez, and Aquino, argued that the Constitution had deliberately
set up a strong presidency and had concentrated powers in times of emergency
in the hands of the President and had given him broad authority and discretion
which the Court was bound to respect. He made reference to the decision in
Lansang v. Garcia but read it as in effect upholding the "political question"
position. Fernandez, in a separate opinion, also argued Lansang, even
understood as giving a narrow scope of review authority to the Court, affirmed
the impossible task of checking the action taken by the President. Hence, he
advocated a return to Barcelon v. Baker. Similarly, Esguerra advocated the
abandonment of Lansang and a return to Barcelon. And, although Justices
Castro, Fernando, Muoz- Palma, and, implicitly, Teehankee, lined up on the
side of justiciability as enunciated in Lansang, x x x Barredo, however, wanted to
have the best of both worlds and opted for the view that "political questions are
not per se beyond the Courts jurisdiction ... but that as a matter of policy
implicit in the Constitution itself the Court should abstain from interfering with
the Executives Proclamation." (Bernas, The 1987 Constitution of the Republic of
the Philippines: A Commentary, 1996 Edition, p. 794.)
79
See Separate Opinion of J. Puno in Integrated Bar of the Philippines v.
Zamora, supra.
80
Supra.
81
Cruz, Philippine Political Law, 2002 Ed., p. 247.
82
Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA
756.
83
Supra, 481-482.
84
Smith and Cotter, Powers of the President during Crises, 1972, p. 6.
85
Ibid.
86
The Social Contract (New York: Dutton, 1950), pp. 123-124.
87
Smith and Cotter, Powers of the President during Crises, 1972, pp. 6-7.
88
Representative Government, New York, Dutton, 1950, pp. 274, 277-78.
89
The Discourses, Bk. 1, Ch. XXXIV.
90
Smith and Cotter, Powers of the President During Crises, 1972. p. 8.
91
Ibid.
92
See The Problem of Constitutional Dictatorship, p. 328.
93
Ibid., p. 353.
94
Ibid., pp. 338-341.
95
Smith and Cotter, Powers of the President During Crises, 1972, p. 9.
96
Constitutional Government and Democracy, Ch. XXVI, rev. ed., Boston: Ginn
& Co., 1949, p. 580.
97
Ibid, pp. 574-584.
98
Smith and Cotter, Powers of the President During Crises, 1972, p. 10.
99
Rossiter, Constitutional Dictatorship, Princeton: Princeton University Press,
1948, pp. 298-306.
100
Smith and Cotter, Powers of the President During Crises, 1972, p. 11.
101
Smith and Cotter, Powers of the President During Crises, 1972, p. 12.
102
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; 72 Sup. Ct. 863; 96
L. Ed. 1153 (1952), See Concurring Opinion J. Jackson.
103
See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan,
G.R. No. 148560, November 19, 2001, 369 SCRA 393.
104
481 U.S. 739, 95 L. Ed. 2d 697 (1987).
105
Supra.
106
See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan,
supra.
107
Broadrick v. Oklahoma, 413 U.S. 601 (1973).
108
Ibid.
109
401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971), United States v. Raines, 362
U.S. 17, 4 L.Ed.2d 524 (1960); Board of Trustees, State Univ. of N.Y v. Fox, 492
U.S. 469, 106 L.Ed.2d 388 (1989).
110
Ermita-Malate Hotel and Motel Operators Association v. City Mayor, No.
L-24693, July 31, 1967, 20 SCRA 849 (1967).
111
G.R. No. 159085, February 3, 2004, 421 SCRA 656, wherein this Court
sustained President Arroyos declaration of a "state of rebellion" pursuant to her
calling-out power.
112
Supra.
113
Westel Willoughby, Constitutional Law of the United States 1591 [2d Ed.
1929, quoted in Aquino v. Ponce Enrile, 59 SCRA 183 (1974), (Fernando, J.,
concurring)].
114
Retired Associate Justice of the Supreme Court.
115
Section 1, Article VII of the Constitution.
116
Section 5, Article VII of the Constitution.
117
Section 18, Article VII of the Constitution.
118
Section 6, Article XVI of the Constitution.
119
See Republic Act No. 6975.
120
Ironically, even the 7th Whereas Clause of PP 1017 which states that "Article
2, Section 4 of our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government"
replicates more closely Section 2, Article 2 of the 1973 Constitution than Section
4, Article 2 of the 1987 Constitution which provides that, "[t[he prime duty of
the Government is to serve and protect the people."
121
Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v.
Ministry of Finance, 115 SCRA 418 (1982); Garcia-Padilla v. Ponce-Enrile, supra.
Aquino v. Commission on Election, supra.
122
Section 17, Article XIV of the 1973 Constitution reads: "In times of national
emergency when the public interest so requires, the State may temporarily take
over or direct the operation of any privately owned public utility or business
affected with public interest."
123
Antieau, Constitutional Construction, 1982, p.21.
124
Cruz, Philippine Political Law, 1998, p. 94.
125
343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952).
126
Tresolini, American Constitutional Law, 1959, Power of the President, pp.
255-257.
127
Smith and Cotter, Powers of the President During Crises, 1972, p. 14
128
The Federal Emergency Relief Act of 1933 opened with a declaration that
the economic depression created a serious emergency, due to wide-spread
unemployment and the inadequacy of State and local relief funds, . . . making it
imperative that the Federal Government cooperate more effectively with the
several States and Territories and the District of Columbia in furnishing relief to
their needy and distressed people. President Roosevelt in declaring a bank
holiday a few days after taking office in 1933 proclaimed that "heavy and
unwarranted withdrawals of gold and currency from banking institutions for
the purpose of hoarding; ... resulting in "sever drains on the Nations stocks of
gold have created a national emergency," requiring his action. Enacted
within months after Japans attack on Pearl Harbor, the Emergency Price Control
Act of 1942 was designed to prevent economic dislocations from endangering
the national defense and security and the effective prosecution of the war.
(Smith and Cotter, Powers of the President During Crises, 1972, p.18)
129
The Emergency Appropriation Act for Fiscal 1935 appropriated fund to meet
the emergency and necessity for relief in stricken agricultural areas and in
another section referred to "the present drought emergency."[129] The India
Emergency Food Aid Act of 1951 provided for emergency shipments of food to
India to meet famine conditions then ravaging the great Asian sub-continent.
The Communication Act of 1934 and its 1951 amendment grant the President
certain powers in time of "public peril or disaster." The other statutes provide
for existing or anticipated emergencies attributable to earthquake, flood,
tornado, cyclone, hurricane, conflagration an landslides.[129] There is also a
Joint Resolution of April 1937. It made "funds available for the control of
incipient or emergency outbreaks of insect pests or plant diseases, including
grasshoppers, Mormon crickets, and chinch bugs. (66 Stat 315, July 1, 1952,
Sec. 2 [a]) Supra.
130
National Security may be cataloged under the heads of (1) Neutrality, (2)
Defense, (3) Civil Defense, and (4) Hostilities or War. (p. 22) The Federal Civil
Defense Act of 1950 contemplated an attack or series of attacks by an enemy of
the United States which conceivably would cause substantial damage or injury
to civilian property or persons in the United States by any one of several means;
sabotage, the use of bombs, shellfire, or atomic, radiological, chemical,
bacteriological means or other weapons or processes. Such an occurrence
would cause a "National Emergency for Civil Defense Purposes," or "a state of
civil defense emergency," during the term which the Civil Defense Administrator
would have recourse to extraordinary powers outlined in the Act. The New York-
New Jersey Civil Defense Compact supplies an illustration in this context for
emergency cooperation. "Emergency" as used in this compact shall mean and
include invasion, or other hostile action, disaster, insurrection or imminent
danger thereof. ( Id., p.15-16)
131
Cruz, Philippine Political Law, 1998, p. 95.
132
Record of the Constitutional Commission, Vol. III, pp. 266-267.
133
Record of the Constitutional Convention, pp. 648-649.
134
84 Phil. 368 (1949).
135
Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173.
136
Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM 346, 282 P 1, 70
ALR 1261, cert den 280 US 610, 74 L ed 653, 50 S Ct 158.
137
Sanitation Dist. V. Campbell (Ky), 249 SW 2d 767; Rochester v. Gutberlett,
211 NY 309, 105 NE 548.
138
Hammond Packing Co. v. Arkansas, 212 US 322, 53 L ed 530, 29 S Ct 370.
139
De Leon and De Leon Jr., Administrative Law, Text and Cases, 2001 Ed., p.
115.
140
Ibid.
141
In a Lecture delivered on March 12, 2002 as part of the Supreme Court
Centenary Lecture Series, Hans Koechler, Professor of Philosophy at the
University of Innsbruck (Austria) and President of the International Progress
Organization, speaking on "The United Nations, The International Rule of Law
and Terrorism" cited in the Dissenting Opinion of Justice Kapunan in Lim v.
Executive Secretary, G.R. No. 151445, April 11, 2002, 380 SCRA 739.
142
Section 2, Article III of the 1987 Constitution.
143
Bernas, The 1987 Constitution of the Republic of the Philippines, A
Reviewer-Primer, p. 51.
144
Annex "A" of the Memorandum in G.R. No. 171396, pp. 271-273.
145
An Act Ensuring the Free Exercise by the People of their Right Peaceably to
Assemble and Petition the Government for Other Purposes.
146
Annex "A" of the Memorandum in G.R. No. 171396, pp. 271-273.
147
Ibid.
148
299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278.
149
Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA 553.
150
Section 5. Application requirements - All applications for a permit shall
comply with the following guidelines:
x x x x x x
(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modication of the permit, he shall
immediately inform the applicant who must be heard on the matter.
151
Petition in G.R. No. 171400, p. 11.
152
No. L-64161, December 26, 1984, 133 SCRA 816.
153
Dissenting Opinion, J. Cruz, National Press Club v. Commission on Elections,
G.R. Nos. 102653, 102925 & 102983, March 5, 1992, 207 SCRA 1.
154
Boyd v. United States, 116 U.S. 616 (1886).
155
Transcript of Stenographic Notes, Oral Arguments, March 7, 2006, p. 470.
156
Ibid., pp. 432-433.
157
Ibid, pp. 507-508.
158
Smith and Cotter, Powers of the President During Crisis, 1972, p. 146.

SUMMARY OF THE VOTING IN THE PP 1017 DECISION
Fourteen of the 15 SC justices participated in the decision. Senior Associate
Justice Reynato S. Puno was on leave.
Justice Angelina Sandoval Gutierrezs 78-page ponencia was concurred in by 10
Justices: Chief Justice Artemio V. Panganiban and Justices Leonardo A.
Quisumbing, Consuelo Ynares Santiago, Antonio T. Carpio, Ma. Alicia Austria-
Martinez, Conchita Carpio Morales, Romeo J. Callejo, Sr., Adolfo S. Azcuna,
Minita V. Chico-Nazario, and Cancio C. Garcia.
Both the Chief Justice and Justice Ynares-Santiago wrote separate concurring
opinions. The Chief Justices concurring opinion was joined by Justices Carpio,
Carpio Morales, and Callejo, Sr.
Justice Dante O. Tingas dissenting opinion was joined by Justices Renato C.
Corona and Presbitero J. Velasco, Jr.
EN BANC
G.R. No. 171396 DAVID et al. v. ARROYO, etc., et al. and related cases
(G.R. Nos. 171409, 171483, 171485, 171400, 171424 and 171489)
Promulgated on:
May 3, 2006
x --------------------------------------------------------------------------- x
CONCURRING OPINION
CJ:
I was hoping until the last moment of our deliberations on these consolidated
cases that the Court would be unanimous in its Decision. After all, during the
last two weeks, it decided with one voice two equally contentious and nationally
significant controversies involving Executive Order No. 464
1
and the so-called
Calibrated Preemptive Response policy.
2

However, the distinguished Mr. Justice Dante O. Tingas Dissenting Opinion has
made that hope an impossibility. I now write, not only to express my full
concurrence in the thorough and elegantly written ponencia of the esteemed
Mme. Justice Angelina Sandoval-Gutierrez, but more urgently to express a little
comment on Justice Tingas Dissenting Opinion (DO).
The Dissent dismisses all the Petitions, grants no reliefs to petitioners, and finds
nothing wrong with PP 1017. It labels the PP a harmless pronouncement -- "an
utter superfluity" -- and denounces the ponencia as an "immodest show of
brawn" that "has imprudently placed the Court in the business of defanging
paper tigers."
Under this line of thinking, it would be perfectly legal for the President to
reissue PP 1017 under its present language and nuance. I respectfully disagree.
Let us face it. Even Justice Tinga concedes that under PP 1017, the police -- "to
some minds" -- "may have flirted with power." With due respect, this is a
masterful understatement. PP 1017 may be a paper tiger, but -- to borrow the
colorful words of an erstwhile Asian leader -- it has nuclear teeth that must
indeed be defanged.
Some of those who drafted PP 1017 may be testing the outer limits of
presidential prerogatives and the perseverance of this Court in safeguarding the
peoples constitutionally enshrined liberty. They are playing with fire, and unless
prudently restrained, they may one day wittingly or unwittingly burn down the
country. History will never forget, much less forgive, this Court if it allows such
misadventure and refuses to strike down abuse at its inception. Worse, our
people will surely condemn the misuse of legal hocus pocus to justify this trifling
with constitutional sanctities.
And even for those who deeply care for the President, it is timely and wise for
this Court to set down the parameters of power and to make known, politely
but firmly, its dogged determination to perform its constitutional duty at all
times and against all odds. Perhaps this country would never have had to
experience the wrenching pain of dictatorship; and a past President would not
have fallen into the precipice of authoritarianism, if the Supreme Court then had
the moral courage to remind him steadfastly of his mortality and the inevitable
historical damnation of despots and tyrants. Let not this Court fall into that same
rut.
ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes
1
Senate v. Ermita, GR No. 169777, April 20, 2006.
2
Bayan v. Ermita, GR No. 169838, April 25, 2006.

EN BANC
G.R. No. 171396 --- Professor Randolf S. David, et al., Petitioners, versus
Gloria Macapagal-Arroyo, as President and Commander-in-Chief, et al,
Respondents.
G.R. No. 171409 --- Ninez Cacho-Olivares and Tribune Publishing Co., Inc.,
Petitioners, versus Honorable Secretary Eduardo Ermita and Honorable
Director General Arturo C. Lomibao, Respondents.
G.R. No. 171485 --- Francis Joseph G. Escudero, et al. Petitioners, versus
Eduardo R. Ermita, et al., Respondents.
G.R. No. 171483 --- Kilusang Mayo Uno, represented by its Chairperson
Elmer C. Labog and Secretary General Joel Maglunsod, et al., Petitioners,
versus Her Excellency President Gloria Macapagal Arroyo, et al.,
Respondents.
G.R. No. 171400 --- Alternative Law Groups, Inc.. (ALG), Petitioners, versus
Executive Secretary, Eduardo Ermita, et al., Respondents.
G.R. No. 171489 Jose Anselmo I. Cadiz, et al., Petitioners,
versus Hon. Executive Secretary Eduardo Ermita, et al., Respondents.
G.R. No. 171424 --- Loren B. Legarda, Petitioner, versus President Gloria
Macapagal-Arroyo, in her capacity as President and Commander-in-Chief, et
al., Respondents;
Promulgated:
May 3, 2006
x ---------------------------------------------------------------------------------------- x
CONCURRING OPINION
YNARES-SANTIAGO, J.:
The only real security for social well-being is the free exercise of mens minds.
-Harold J. Laski, Professor of Government and Member of the British Labor
Party, in his book, Authority in the Modern State (1919).
The ideals of liberty and equality, the eminent U.S. Supreme Court Justice
Benjamin Cardozo once wrote, are preserved against the assaults of
opportunism, the expediency of the passing hour, the erosion of small
encroachments, the scorn and derision of those who have no patience with
general principles.
1
In an open and democratic society, freedom of thought and
expression is the matrix, the indispensable condition, of nearly every other form
of freedom.
2

I share the view that Presidential Proclamation No. 1017 (PP 1017) under which
President Gloria Macapagal Arroyo declared a state of national emergency, and
General Order No. 5 (GO No. 5), issued by the President pursuant to the same
proclamation are both partly unconstitutional.
I fully agree with the pronouncement that PP 1017 is no more than the exercise
by the President, as the Commander-in-Chief of all armed forces of the
Philippines, of her power to call out such armed forces whenever it becomes
necessary to prevent or suppress lawless violence, invasion or rebellion. This
is allowed under Section 18, Article VII of the Constitution.
However, such "calling out" power does not authorize the President to direct
the armed forces or the police to enforce laws not related to lawless violence,
invasion or rebellion. The same does not allow the President to promulgate
decrees with the force and effect similar or equal to laws as this power is vested
by the Constitution with the legislature. Neither is it a license to conduct
searches and seizures or arrests without warrant except in cases provided in the
Rules of Court. It is not a sanction to impose any form of prior restraint on the
freedom of the press or expression or to curtail the freedom to peaceably
assemble or frustrate fundamental constitutional rights.
In the case of Bayan v. Ermita
3
this Court thru Justice Adolfo S. Azcuna
emphasized that the right to peaceably assemble and petition for redress of
grievances is, together with freedom of speech, of expression, and of the press,
a right that enjoys primacy in the realm of constitutional protection. These rights
constitute the very basis of a functional democratic polity, without which all the
other rights would be meaningless and unprotected.
On the other hand, the direct reference to Section 17, Article XII of the
Constitution as the constitutional basis for the declaration of a state of national
emergency is misplaced. This provision can be found under the article on
National Economy and Patrimony which presupposes that "national
emergency" is of an economic, and not political, nature. Moreover, the said
provision refers to the temporary takeover by the State of any privately-owned
public utility or business affected with public interest in times of national
emergency. In such a case, the takeover is authorized when the public interest
so requires and subject to "reasonable terms" which the State may prescribe.
The use of the word "State" as well as the reference to "reasonable terms"
under Section 17, Article XII can only pertain to Congress. In other words, the
said provision is not self-executing as to be validly invoked by the President
without congressional authorization. The provision merely declares a state
economic policy during times of national emergency. As such, it cannot be
taken to mean as authorizing the President to exercise "takeover" powers
pursuant to a declaration of a state of national emergency.
The President, with all the powers vested in her by Article VII, cannot arrogate
unto herself the power to take over or direct the operation of any privately
owned public utility or business affected with public interest without
Congressional authorization. To do so would constitute an ultra vires act on the
part of the Chief Executive, whose powers are limited to the powers vested in
her by Article VII, and cannot extend to Article XII without the approval of
Congress.
Thus, the Presidents authority to act in times of national emergency is still
subject to the limitations expressly prescribed by Congress. This is a featured
component of the doctrine of separation of powers, specifically, the principle of
checks and balances as applicable to the political branches of government, the
executive and the legislature.
With regard to GO No. 5, I agree that it is unconstitutional insofar as it
mandates the armed forces and the national police "to prevent and suppress
acts of terrorism and lawless violence in the country." There is presently no law
enacted by Congress that defines terrorism, or classifies what acts are
punishable as acts of terrorism. The notion of terrorism, as well as acts
constitutive thereof, is at best fraught with ambiguity. It is therefore subject to
different interpretations by the law enforcement agencies.
As can be gleaned from the facts, the lack of a clear definition of what
constitutes "terrorism" have led the law enforcement officers to necessarily
guess at its meaning and differ as to its application giving rise to unrestrained
violations of the fundamental guarantees of freedom of peaceable assembly
and freedom of the press.
In Kolender v. Lawson,
4
the United States Supreme Court nullified a state
statute requiring persons who loitered or wandered on streets to provide
"credible and reliable" identification and to account for their presence when
requested to do so by a police officer. Writing for the majority, Justice Sandra
Day OConnor noted that the most important aspect of vagueness doctrine was
the imposition of guidelines that prohibited arbitrary, selective enforcement on
constitutionally suspect basis by police officers. This rationale for invocation of
that doctrine was of special concern in this case because of the potential for
arbitrary suppression of the fundamental liberties concerning freedom of speech
and expression, as well as restriction on the freedom of movement.
Thus, while I recognize that the President may declare a state of national
emergency as a statement of a factual conditionpursuant to our ruling in
Sanlakas v. Executive Secretary,
5
I wish to emphasize that the same does not
grant her any additional powers. Consequently, while PP 1017 is valid as a
declaration of a factual condition, the provisions which purport to vest in the
President additional powers not theretofore vested in her must be struck down.
The provision under GO No. 5 ordering the armed forces to carry out measures
to prevent or suppress "acts of terrorism" must be declared unconstitutional as
well.
Finally, it cannot be gainsaid that government action to stifle constitutional
liberties guaranteed under the Bill of Rights cannot be preemptive in meeting
any and all perceived or potential threats to the life of the nation. Such threats
must be actual, or at least gravely imminent, to warrant government to take
proper action. To allow government to preempt the happening of any event
would be akin to "putting the cart before the horse," in a manner of speaking.
State action is proper only if there is a clear and present danger of a substantive
evil which the state has a right to prevent. We should bear in mind that in a
democracy, constitutional liberties must always be accorded supreme
importance in the conduct of daily life. At the heart of these liberties lies
freedom of speech and thought not merely in the propagation of ideas we
love, but more importantly, in the advocacy of ideas we may oftentimes loathe.
As succinctly articulated by Justice Louis D. Brandeis:
Fear of serious injury cannot alone justify suppression of free speech and
assembly. x x x It is the function of speech to free men from the bondage of
irrational fears. To justify suppression of free speech there must be reasonable
ground to believe that the danger apprehended is imminent. There must be
reasonable ground to believe that the evil to be prevented is a serious one. x x
x But even advocacy of violation, however reprehensible morally, is not a
justification for denying free speech where the advocacy falls short of incitement
and there is nothing to indicate that the advocacy would be immediately acted
on. The wide difference between advocacy and incitement, between
preparation and attempt, between assembling and conspiracy, must be borne in
mind. In order to support a finding of clear and present danger it must be
shown either that immediate serious violence was to be expected or was
advocated, or that the past conduct furnished reason to believe that such
advocacy was then contemplated.
6

IN VIEW OF THE FOREGOING, I vote to PARTLY GRANT the petitions.
CONSUELO YNARES-SANTIAGO
Associate Justice

Footnotes
1
Cardozo, B. Nature of Judicial Process, 1921.
2
Palko v. State of Connecticut, 302 U.S. 319 (1937).
3
G.R. Nos. 169838, 169848, 169881, April 25, 2006.
4
461 U.S. 352 (1983).
5
G.R. Nos. 159085, 159103, 159185 & 159196, February 3, 2004, 421 SCRA
656.
6
Brandeis, J. , joined by Holmes, J., concurring in Whitney v. California, 274
U.S. 357 (1927).

G.R. No. 171396 (Prof. Randolf S. David, Lorenzo Taada III, Ronald Llamas, H.
Harry L. Roque, Jr., Joel Ruiz Butuyan, Roger R. Rayel, Gary S. Mallari, Romel
Regalado Bagares, Christopher F.C. Bolastig, petitioners, v. Gloria Macapagal-
Arroyo, as President and Commander-in-Chief, Executive Secretary Eduardo
Ermita, Hon. Avelino Cruz II, Secretary of National Defense, General Generoso
Senga, Chief of Staff, Armed Forces of the Philippines, Director General Arturo
Lomibao, Chief, Philippine National Police, respondents.)
G.R. No. 171409 (Niez Cacho-Olivares and Tribune Publishing Co., Inc.,
petitioner, v. Honorable Secretary Eduardo Ermita and Honorable Director
General Arturo Lomibao, respondents.)
G.R. No. 171485 (Francis Joseph G. Escudero, Joseph A. Santiago, Teodoro A.
Casino, Agapito A. Aquino, Mario G. Aguja, Satur C. Ocampo, Mujiv S.
Hataman, Juan Edgardo Angara, Teofisto DL. Guingona III, Emmanuel Josel J.
Villanueva, Liza L. Maza, Imee R. Marcos, Renato B. Magtubo, Justin Marc SB.
Chipeco, Roilo Golez, Darlene Antonio-Custudio, Loretta Ann P. Rosales, Josel
G. Virador, Rafael V. Mariano, Gilbert C. Remulla, Florencio G. Noel, Ana
Theresa Hontiveros-Baraquel, Imelda C. Nicolas, Marvic M.V.F. Leonenen, Neri
Javier Colmenares, Movement of Concerned Citizens for Civil Liberties,
represented by Amado Gat Inciong, petitioners, v. Eduardo R. Ermita, Executive
Secretary, Avelino J. Cruz, Jr., Secretary, DND Ronaldo V. Puno, Secretary, DILG,
Generoso Senga, AFP Chief of Staff, Arturo Lumibao, Chief PNP, respondents.)
G.R. No. 171483 (Kilusang Mayo Uno, represented by its Chairperson Elmer C.
Labog and Secretary General Joel Maglunsod, National Federation of Labor
Unions-Kilusang Mayo Uno (NAFLU-KMU), represented by its National
President, Joselito v. Ustarez, Antonio C. Pascual, Salvador t. Carranza, Emilia P.
Dapulang, Martin Custodio, Jr., and Roque M. Tan, petitioners, v. Her
Excellency, President Gloria Macapagal-Arroyo, The Honorable Executive
Secretary, Eduardo Ermita, The Chief of Staff, Armed Forces of the Philippines,
Generoso Senga, and the PNP Director General, Arturo Lomibao, respondents.)
G.R. No. 171400 (Alternative Law Groups, Inc. v. (ALG), petitioner, v. Executive
Secretary Eduardo L. Ermita. Lt. Gen. Generoso Senga, and Director General
Arturo Lomibao, respondents.)
G.R. No. 171489 (Jose Anselmo I. Cadiz, Feliciano M. Bautista, Romulo R.
Rivera, Jose Amor M. Amorado, Alicia A. Risos-Vidal, Felimon C. Abelita III,
Manuel P. Legaspi, J.B., Jovy C. Bernabe, Bernard L. Dagcuta, Rogelio V. Garcia
and Integrated Bar of the Philippines (IBP), petitioners, v. Hon. Executive
Secretary Eduardo Ermita, General Generoso Senga, in his capacity as AFP
Chief of Staff, and Direcotr General Arturo Lomibao, in his capacity as PNP
Chief, respondents.)
G.R. No. 171424 (Loren B. Legarda, petitioner, v. Gloria Macapagal-Arroyo, in
her capacity as President and Commander-in-Chief; Arturo Lomibao, in his
capacity as Director-General of the Philippine National Police (PNP); Generoso
Senga, in his capacity as Chief of Staff of the Armed Forces of the Philippine
(AFP); and Eduardo Ermita, in his capacity as Executive Secretary, respondents.)
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DISSENTING OPINION
TINGA, J:
I regret to say that the majority, by its ruling today, has imprudently placed the
Court in the business of defanging paper tigers. The immodest show of brawn
unfortunately comes at the expense of an exhibition by the Court of a
fundamental but sophisticated understanding of the extent and limits of
executive powers and prerogatives, as well as those assigned to the judicial
branch. I agree with the majority on some points, but I cannot join the majority
opinion, as it proceeds to rule on non-justiciable issues based on fears that have
not materialized, departing as they do from the plain language of the
challenged issuances to the extent of second-guessing the Chief Executive. I
respectfully dissent.
The key perspective from which I view these present petitions is my own
ponencia in Sanlakas v. Executive Secretary,
1
which centered on Presidential
Proclamation No. 427 (PP 427), declaring a "state of rebellion" in 2003. The
Court therein concluded that while the declaration was constitutional, such
declaration should be regarded as both regarded as "an utter superfluity",
which "only gives notice to the nation that such a state exists and that the
armed forces may be called to prevent or suppress it", and "devoid of any legal
significance", and "cannot diminish or violate constitutionally protected rights."
I submit that the same conclusions should be reached as to Proclamation No.
1017 (PP 1017). Following the cardinal precept that the acts of the executive are
presumed constitutional is the equally important doctrine that to warrant
unconstitutionality, there must be a clear and unequivocal breach of the
Constitution, not a doubtful and argumentative implication.
2
Also well-settled as
a rule of construction is that where thee are two possible constructions of law or
executive issuance one of which is in harmony with the Constitution, that
construction should be preferred.
3
The concerns raised by the majority relating
to PP 1017 and General Order Nos. 5 can be easily disquieted by applying this
well-settled principle.
I.
PP 1017Has No Legal Binding Effect; Creates No Rights and
Obligations; and Cannot Be Enforced or Invoked in a Court< Of Law
First, the fundamentals. The President is the Chief of State and Foreign
Relations, the chief of the Executive Branch,
4
and the Commander-in-Chief of
the Armed Forces.
5
The Constitution vests on the President the executive
power.
6
The President derives these constitutional mandates from direct
election from the people. The President stands as the most recognizable
representative symbol of government and of the Philippine state, to the extent
that foreign leaders who speak with the President do so with the understanding
that they are speaking to the Philippine state.
Yet no matter the powers and prestige of the presidency, there are significant
limitations to the office of the President. The President does not have the power
to make or legislate laws,
7
or disobey those laws passed by Congress.
8
Neither
does the President have to power to create rights and obligations with binding
legal effect on the Filipino citizens, except in the context of entering into
contractual or treaty obligations by virtue of his/her position as the head of
State. The Constitution likewise imposes limitations on certain powers of the
President that are normally inherent in the office. For example, even though the
President is the administrative head of the Executive Department and maintains
executive control thereof,
9
the President is precluded from arbitrarily
terminating the vast majority of employees in the civil service whose right to
security of tenure is guaranteed by the Constitution.
10

The President has inherent powers,
11
powers expressly vested by the
Constitution, and powers expressly conferred by statutes. The power of the
President to make proclamations, while confirmed by statutory grant, is
nonetheless rooted in an inherent power of the presidency and not expressly
subjected to constitutional limitations. But proclamations, as they are, are a
species of issuances of extremely limited efficacy. As defined in the
Administrative Code, proclamations are merely "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".
12
A proclamation, on its own, cannot create or suspend any
constitutional or statutory rights or obligations. There would be need of a
complementing law or regulation referred to in the proclamation should such
act indeed put into operation any law or regulation by fixing a date or declaring
a status or condition of a public moment or interest related to such law or
regulation. And should the proclamation allow the operationalization of such
law or regulation, all subsequent resultant acts cannot exceed or supersede the
law or regulation that was put into effect.
Under Section 18, Article VII of the Constitution, among the constitutional
powers of the President, as Commander-in-Chief, is to "call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion".
13
The
existence of invasion or rebellion could allow the President to either suspend
the privilege of the writ of habeas corpus or place the Philippines or any part
thereof under martial law, but there is a fairly elaborate constitutional procedure
to be observed in such a case, including congressional affirmation or revocation
of such suspension or declaration, as well as the availability of judicial review.
However, the existence of lawless violence, invasion or rebellion does not ipso
facto cause the "calling out" of the armed forces, the suspension of habeas
corpus or the declaration of martial law it remains within the discretion of the
President to engage in any of these three acts should said conditions arise.
Sanlakas involved PP 427, which declared the existence of a "state of rebellion."
Such declaration could ostensibly predicate the suspension of the privilege of
the writ of habeas corpus or the declaration of martial law, but the President did
not do so. Instead, PP 427, and the accompanying General Order No. 4,
invoked the "calling out" of the Armed Forces to prevent lawless violence,
invasion and rebellion. Appreciably, a state of lawless violence, invasion or
rebellion could be variable in scope, magnitude and gravity; and Section 18,
Article VII allows for the President to respond with the appropriate measured
and proportional response.
Indeed, the diminution of any constitutional rights through the suspension of
the privilege of the writ or the declaration of martial law is deemed as "strong
medicine" to be used sparingly and only as a last resort, and for as long as only
truly necessary. Thus, the mere invocation of the "calling out" power stands as a
balanced means of enabling a heightened alertness in dealing with the armed
threat, but without having to suspend any constitutional or statutory rights or
cause the creation of any new obligations. For the utilization of the "calling out"
power alone cannot vest unto the President any new constitutional or statutory
powers, such as the enactment of new laws. At most, it can only renew
emphasis on the duty of the President to execute already existing laws without
extending a corresponding mandate to proceed extra-constitutionally or extra-
legally. Indeed, the "calling out" power does not authorize the President or the
members of the Armed Forces to break the law.
These were the premises that ultimately informed the Courts decision in
Sanlakas, which affirmed the declaration of a "state of rebellion" as within the
"calling out" power of the President, but which emphasized that for legal
intents and purposes, it should be both regarded as "an utter superfluity",
which "only gives notice to the nation that such a state exists and that the
armed forces may be called to prevent or suppress it," and "devoid of any legal
significance," as it could not "cannot diminish or violate constitutionally
protected rights." The same premises apply as to PP 1017.
A comparative analysis of PP 427 and PP 1017, particularly their operative
clauses, is in order.
PP 427 PP 1017
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers
vested in me by law, hereby confirm the existence of an actual and on-going
rebellion, compelling me to declare a state of rebellion.
In view of the foregoing, I am issuing General Order No. 4 in accordance with
Section 18, Article VII of the Constitution, calling out the Armed Forces of the
Philippines and the Philippine National Police to immediately carry out the
necessary actions and measures to suppress and quell the rebellion with due
regard to constitutional rights.
NOW, THEREFORE, I Gloria Macapagal-Arroyo, President of the Republic of the
Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by
virtue of the powers vested upon me by Section 18, Article 7 of the Philippine
Constitution which states that: "The President. . . whenever it becomes
necessary, . . . may call out (the) armed forces to prevent or suppress. . .
rebellion. . .," and in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless violence as
well any act of insurrection or rebellion and to enforce obedience to all the laws
and to all decrees, orders and regulations promulgated by me personally or
upon my direction; and as provided in Section 17, Article 12 of the Constitution
do hereby declare a State of National Emergency.
Let us begin with the similarities. Both PP 427 and PP 1017 are characterized by
two distinct phases. The first is the declaration itself of a status or condition, a
"state of rebellion" in PP 437, and a "state of national emergency" under PP
1017. Both "state of rebellion" and "state of national emergency" are terms
within constitutional contemplation. Under Section 18, Article VII, the existence
of a "state of rebellion" is sufficient premise for either the suspension of the
privilege of the writ of habeas corpus or the declaration of martial law, though in
accordance with the strict guidelines under the same provision. Under Section
17, Article XII, the existence of a state of national emergency is sufficient ground
for the State, during the emergency, under reasonable terms prescribed by it,
and when the public interest so requires, to temporarily take over or direct the
operation of any privately-owned public utility or business affected with public
interest. Under Section 23(2), Article VI, the existence of a state of national
emergency may also allow Congress to 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.
Certainly, the declaration could stand as the first step towards constitutional
authorization for the exercise by the President, the Congress or the State of
extraordinary powers and prerogatives. However, the declaration alone cannot
put into operation these extraordinary powers and prerogatives, as the
declaration must be followed through with a separate act providing for the
actual utilization of such powers. In the case of the "state of rebellion," such act
involves the suspension of the writ or declaration of martial law. In the case of
the "state of national emergency," such act involves either an order for the
takeover or actual takeover by the State of public utilities or businesses imbued
with public interest or the authorization by Congress for the President to
exercise emergency powers.
In PP 427, the declaration of a "state of rebellion" did not lead to the
suspension of the writ or the declaration of martial law. In PP 1017, the
declaration of a "state of national emergency" did not lead to an authorization
for the takeover or actual takeover of any utility or business, or the grant by
Congress to the President of emergency powers. Instead, both declarations led
to the invocation of the calling out power of the President under Section 18,
Article VII, which the majority correctly characterizes as involving only "ordinary
police action."
I agree with the ponencias holding that PP 1017 involves the exercise by the
President of the "calling out" power under Section 18, Article VII. In Integrated
Bar v. Zamora,
14
the Court was beseeched upon to review an order of President
Estrada commanding the deployment of the Marines in patrols around Metro
Manila, in view of an increase in crime.
15
The Court, speaking through Justice
Santiago Kapunan, affirmed the Presidents order, asserting that "it is the
unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the
military when in his judgment it is necessary to do so in order to prevent or
suppress lawless violence, invasion or rebellion. Unless the petitioner can show
that the exercise of such discretion was gravely abused, the Presidents exercise
of judgment deserves to be accorded respect from this Court."
16
Tellingly, the
order of deployment by President Estrada was affirmed by the Court even
though we held the view that the power then involved was not the "calling out"
power, but "the power involved may be no more than the maintenance of
peace and order and promotion of the general welfare."
17

It was also maintained in Integrated Bar that while Section 18, Article VII
mandated two conditions actual rebellion or invasion and the requirement of
public safety before the suspension of the privilege of the writ of habeas
corpus or the declaration of martial law could be declared, "these conditions
are not required in the case of the power to call out the armed forces. The only
criterion is that whenever it becomes necessary, the President may call the
armed forces to suppress lawless violence, invasion or rebellion."
18
The Court
concluded that the implication was "that the President is given full discretion
and wide latitude in the exercise of the power to call as compared to the two
other powers."
19

These propositions were affirmed in Sanlakas, wherein the invocation of the
calling out power was expressly made by President Arroyo. The Court noted
that for the purpose of exercising the calling out power, the Constitution did not
require the President to make a declaration of a state of rebellion.
20
At the same
time, the Court in Sanlakas acknowledged that "the Presidents authority to
declare a state of rebellion springs in the main from her powers as chief
executive and, at the same time, draws strength from her Commander-in-
Chief powers."
21

For still unclear reasons, the majority attempts to draw a distinction between
Sanlakas and the present petitions by that the statutory authority to declare a
"state of rebellion" emanates from the Administrative Code of 1987, particularly
the provision authorizing the President to make proclamations. As such, the
declaration of a "state of rebellion," pursuant to statutory authority, "was merely
an act declaring a status or condition of public moment or interest." The
majority grossly misreads Sanlakas, which expressly roots the declaration of a
state of rebellion from the wedded powers of the Chief Executive, under
Section 1, Article VII, and as Commander-in-Chief, under Section 18, Article VII.
Insofar as PP 1017 is concerned, the calling out power is definitely involved, in
view of the directive to the Armed Forces of the Philippines to "suppress all
forms of lawless violence". But there are nuances to the calling out power
invoked in PP 1017 which the majority does not discuss. The directive "to
suppress all forms of lawless violence" is addressed not only to the Armed
Forces but to the police as well. The "calling out" of the police does not derive
from Section 17, Article VII, or the commander-in-chief clause, our national
police being civilian in character. Instead, the calling out of the police is sourced
from the power of the President as Chief Executive under Section 1, Article VII,
and the power of executive control under Section 18, Article VII. Moreover,
while the permissible scope of military action is limited to acts in furtherance of
suppressing lawless violence, rebellion, invasion, the police can be commanded
by the President to execute all laws without distinction in light of the
presidential duty to execute all laws.
22

Still, insofar as Section 17, Article VII is concerned, wide latitude is accorded to
the discretion of the Chief Executive in the exercise of the "calling out" power
due to a recognition that the said power is of limited import, directed only to
the Armed Forces of the Philippines, and incapable of imposing any binding
legal effect on the citizens and other branches of the Philippines. Indeed, PP
1017 does not purport otherwise. Nothing in its operative provisions authorize
the President, the Armed Forces of the Philippines, or any officer of the law, to
perform any extra-constitutional or extra-legal acts. PP 1017 does not dictate
the suspension of any of the peoples guarantees under the Bill of Rights.
If it cannot be made more clear, neither the declaration of a state of
emergency under PP 1017 nor the invocation of the calling out power
therein authorizes warrantless arrests, searches or seizures; the
infringement of the right to free expression, peaceable assembly and
association and other constitutional or statutory rights. Any public ofcer
who nonetheless engaged or is engaging in such extra-constitutional or
extra-legal acts in the name of PP 1017 may be subjected to the
appropriate civil, criminal or administrative liability.
To prove this point, let us now compare PP 1017 with a different presidential
issuance, one that was intended to diminish constitutional and civil rights of the
people. The said issuance, Presidential Proclamation No. 1081, was issued by
President Marcos in 1972 as the instrument of declaring martial law. The
operative provisions read:
PD. 1081 PP 1017
Now, thereof, I, Ferdinand E. Marcos, President Of the Philippines, by virtue of
the powers vested upon me by article VII, Section 10, Paragraph (2) of the
Constitution, do hereby place the entire Philippines as defined in the article I,
Section 1, of the Constitution under martial law, and in my capacity as their
commander-in-chief, do hereby command the arned forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress all forms
of lawless violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and decrees, orders and regulations promulgated by
me personally or upon my direction.
In addition, I do hereby order that all persons presently detained, as well as
others who may hereafter be similarly detained for the crimes of insurrection or
rebellion, and all other crimes and offenses committed in furtherance or on the
occasion thereof, or incident thereto, or in connection therewith, for crimes
against national security and the law of nations, crimes, against the fundamental
laws of the state, crimes against public order, crimes involving usurpation of
authority, rank, title and improper use of names, uniforms and insignia, crimes
committed by public officers, and for such other crimes as will be enumerated in
Orders that I shall subsequently promulgate, as well as crimes as a consequence
of any violation of any decree, order or regulation promulgated by me
personally or promulgated upon my direction shall be kept under detention
until otherwise ordered released by me or by my duly designated
representative. (emphasis supplied)
NOW, THEREFORE, I Gloria Macapagal-Arroyo, President of the Republic of the
Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by
virtue of the powers vested upon me by Section 18, Article 7 of the Philippine
Constitution which states that: "The President. . . whenever it becomes
necessary, . . . may call out (the) armed forces to prevent or suppress. . .
rebellion. . .," and in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless violence as
well any act of insurrection or rebellion and to enforce obedience to all the laws
and to all decrees, orders and regulations promulgated by me personally or
upon my direction; and as provided in Section 17, Article 12 of the Constitution
do hereby declare a State of National Emergency.
Let us examine the differences between PP No. 1081 and PP 1017. First, while
PP 1017 merely declared the existence of a state of rebellion, an act ultimately
observational in character, PP 1081 "placed the entire Philippines under martial
law," an active implement
23
that, by itself, substituted civilian governmental
authority with military authority. Unlike in the 1986 Constitution, which was
appropriately crafted with an aversion to the excesses of Marcosian martial rule,
the 1935 Constitution under which PP 1081 was issued left no intervening
safeguards that tempered or limited the declaration of martial law. Even the
contrast in the verbs used, "place" as opposed to "declare," betrays some
significance. To declare may be simply to acknowledge the existence of a
particular condition, while to place ineluctably goes beyond mere
acknowledgement, and signifies the imposition of the actual condition even if it
did not exist before.
Both PP 1081 and PP 1017 expressly invoke the calling out power. However, the
contexts of such power are wildly distaff in light of PP 1081s accompanying
declaration of martial law. Since martial law involves the substitution of the
military in the civilian functions of government, the calling out power involved in
PP 1081 is significantly greater than the one involved in PP 1017, which could
only contemplate the enforcement of existing laws in relation to the suppression
of lawless violence, rebellion or invasion and the maintenance of general peace
and order.
Further proof that PP 1081 intended a wholesale suspension of civil liberties in
the manner that PP 1017 does not even ponder upon is the subsequent
paragraph cited, which authorizes the detention and continued detention of
persons for a plethora of crimes not only directly related to the rebellion or
lawless violence, but of broader range such as those "against national security,"
or "public order." The order of detention under PP 1081 arguably includes
every crime in the statute book. And most alarmingly, any person detained by
virtue of PP 1081 could remain in perpetual detention unless otherwise released
upon order of President Marcos or his duly authorized representative.
Another worthy point of contrast concerns how the Supreme Court, during the
martial law era, dealt with the challenges raised before it to martial law rule and
its effects on civil liberties. While martial law stood as a valid presidential
prerogative under the 1935 Constitution, a ruling committed to safeguard civil
rights and liberties could have stood ground against even the most fundamental
of human rights abuses ostensibly protected under the 1935 and 1973
constitutions and under international declarations and conventions. Yet a
perusal of Aquino v. Enrile,
24
the case that decisively affirmed the validity of
martial law rule, shows that most of the Justices then sitting exhibited diffidence
guised though as deference towards the declaration of martial law. Note these
few excerpts from the several opinions submitted in that case which stand as
typical for those times:
The present state of martial law in the Philippines is peculiarly Filipino and fits
into no traditional patterns or judicial precedents. xxx In the first place I am
convinced (as are the other Justices), without need of receiving evidence as in
an ordinary adversary court proceeding, that a state of rebellion existed in the
country when Proclamation No. 1081 was issued. It was a matter of
contemporary history within the cognizance not only of the courts but of all
observant people residing here at that time. xxx The state of rebellion continues
up to the present. The argument that while armed hostilities go on in several
provinces in Mindanao there are none in other regions except in isolated
pockets in Luzon, and that therefore there is no need to maintain martial law all
over the country, ignores the sophisticated nature and ramifications of rebellion
in a modern setting. It does not consist simply of armed clashes between
organized and identifiable groups on fields of their own choosing. It includes
subversion of the most subtle kind, necessarily clandestine and operating
precisely where there is no actual fighting. Underground propaganda, through
printed newssheets or rumors disseminated in whispers; recruiting of armed and
ideological adherents, raising of funds, procurement of arms and materiel, fifth-
column activities including sabotage and intelligence all these are part of the
rebellion which by their nature are usually conducted far from the battle fronts.
They cannot be counteracted effectively unless recognized and dealt with in
that context.
25

x x x
[T]he fact that courts are open cannot be accepted as proof that the rebellion
and insurrection, which compellingly called for the declaration of martial law, no
longer imperil the public safety. Nor are the many surface indicia adverted to by
the petitioners (the increase in the number of tourists, the choice of Manila as
the site of international conferences and of an international beauty contest) to
be regarded as evidence that the threat to public safety has abated. There is
actual armed combat, attended by the somber panoply of war, raging in Sulu
and Cotabato, not to mention the Bicol region and Cagayan Valley. I am hard
put to say, therefore, that the Governments claim is baseless.
I am not insensitive to the plea made here in the name of individual liberty. But
to paraphrase Ex parte Moyer, if it were the liberty alone of the petitioner
Diokno that is in issue we would probably resolve the doubt in his favor and
grant his application. But the Solicitor General, who must be deemed to
represent the President and the Executive Department in this case, has
manifested that in the Presidents judgment peace and tranquility cannot be
speedily restored in the country unless the petitioners and others like them
meantime remain in military custody. For, indeed, the central matter involved is
not merely the liberty of isolated individuals, but the collective peace, tranquility
and security of the entire nation.
26

x x x
It may be that the existence or non-existence or imminence of a rebellion of the
magnitude that would justify the imposition of martial law is an objective fact
capable of judicial notice, for a rebellion that is not of general knowledge to the
public cannot conceivably be dangerous to public safety. But precisely because
it is capable of judicial notice, no inquiry is needed to determine the propriety
of the Executives action.
Again, while the existence of a rebellion may be widely known, its real extent
and the dangers it may actually pose to the public safety are not always easily
perceptible to the unpracticed eye. In the present day practices of rebellion, its
inseparable subversion aspect has proven to be more effective and important
than "the rising (of persons) publicly and taking arms against the Government"
by which the Revised Penal Code characterizes rebellion as a crime under its
sanction. Subversion is such a covert kind of anti-government activity that it is
very difficult even for army intelligence to determine its exact area of influence
and effect, not ot mention the details of its forces and resources. By subversion,
the rebels can extend their field of action unnoticed even up to the highest
levels of the government, where no one can always be certain of the political
complexion of the man next to him, and this does not exclude the courts. Arms,
ammunition and all kinds of war equipment travel and are transferred in deep
secrecy to strategic locations, which can be ones neighborhood without him
having any idea of what is going on. There are so many insidious ways in which
subversives act, in fact too many to enumerate, but the point that immediately
suggests itself is that they are mostly incapable of being proven in court, so how
are We to make a judicial inquiry about them that can satisfy our judicial
conscience.
The Constitution definitely commits it to the Executive to determine the factual
bases and to forthwith act as promptly as possible to meet the emergencies of
rebellion and invasion which may be crucial to the life of the nation. He must do
this with unwavering conviction, or any hesitancy or indecision on his part will
surely detract from the needed precision in his choice of the means he would
employ to repel the aggression. The apprehension that his decision might be
held by the Supreme Court to be a transgression of the fundamental law he has
sworn to defend and preserve would deter him from acting when precisely it is
most urgent and critical that he should act, since the enemy is about to strike
the mortal blow.
27

x x x
To start with, Congress was not unaware of the worsening conditions of peace
and order and of, at least, evident insurgency, what with the numerous easily
verifiable reports of open rebellious activities in different parts of the country
and the series of rallies and demonstrations, often bloody, in Manila itself and
other centers of population, including those that reached not only the portals
but even the session hall of the legislature, but the legislators seemed not to be
sufficiently alarmed or they either were indifferent or did not know what to do
under the circumstances. Instead of taking immediate measures to alleviate the
conditions denounced and decried by the rebels and the activists, they debated
and argued long on palliatives without coming out with anything substantial
much less satisfactory in the eyes of those who were seditiously shouting for
reforms. In any event, in the face of the inability of Congress to meet the
situation, and prompted by his appraisal of a critical situation that urgently
called for immediate action, the only alternative open to the President was to
resort to the other constitutional source of extraordinary powers, the
Constitution itself.
28

x x x
Proclamation 1081 is in no sense any more constitutionally offensive. In fact, in
ordering detention of persons, the Proclamation pointedly limits arrests and
detention only to those "presently detained, as well as others who may
hereafter be similarly detained for the crimes of insurrection or rebellion, and all
other crimes and offences committed in furtherance or on the occasion thereof,
or incident thereto, or in connection therewith, for crimes against national
security and the law of nations, crimes, against the fundamental laws of the
state, crimes against public order, crimes involving usurpation of authority, rank,
title and improper use of names, uniforms and insignia, crimes committed by
public officers, and for such other crimes as will be enumerated in Orders that I
shall subsequently promulgate, as well as crimes as a consequence of any
violation of any decree, order or regulation promulgated by me personally or
promulgated upon my direction." Indeed, even in the affected areas, the
Constitution has not been really suspended much less discarded. As
contemplated in the fundamental law itself, it is merely in a state of anaesthesia,
to the end that the much needed major surgery to save the nations life may be
successfully undertaken.
29

x x x
The quoted lines of reasoning can no longer be sustained, on many levels, in
these more enlightened times. For one, as a direct reaction to the philosophy of
judicial inhibition so frequently exhibited during the Marcos dictatorship, our
present Constitution has explicitly mandated judicial review of the acts of
government as part of the judicial function. As if to rebuff Aquino, the 1987
Constitution expressly allows the Supreme Court to review the sufficiency of the
factual basis of the proclamation of martial law and decide the same within 30
days from the filing of the appropriate case.
30
The Constitution also emphasizes
that a state of martial law did not suspend the operation of the Constitution or
supplant the functioning of the judicial and legislative branches.
31
The
expediency of hiding behind the political question doctrine can no longer be
resorted to.
For another, the renewed emphasis within domestic and international society on
the rights of people, as can be seen in worldwide democratic movements
beginning with our own in 1986, makes it more difficult for a government
established and governed under a democratic constitution, to engage in official
acts that run contrary to the basic tenets of democracy and civil rights. If a
government insists on proceeding otherwise, the courts will stand in defense of
the basic constitutional rights of the people.
Still, the restoration of rule under law, the establishment of national
governmental instrumentalities, and the principle of republicanism all ensure
that the constitutional government retains significant powers and prerogatives,
for it is through such measures that it can exercise sovereign will in behalf of the
people. Concession to those presidential privileges and prerogatives should be
made if due. The abuses of past executive governments should not detract from
these basic governmental powers, even as they may warrant a greater degree of
wariness from those institutions that balance power and the people themselves.
And the rule of law should prevail above all. The damage done by martial rule
was not merely personal but institutional, and the proper rebuke to the caprices
and whims of the iniquitous past is to respect the confines of the restored rule
of law.
32

Nothing in PP 1017, or any issuance by any President since Aquino, comes even
close to matching PP 1081. It is a rank insult to those of us who suffered or
stood by those oppressed under PP 1081 to even suggest that the
innocuous PP 1017 is of equivalent import.
PP 1017 Does Not Purport or Pretend that the President Has The Power to Issue
Decrees
There is one seeming similarity though in the language of PP 1017 and PP 1081,
harped upon by some of the petitioners and alluded to by the majority. PP 1017
contains a command to the Armed Forces "to enforce obedience to all the laws
and to all decrees, orders and regulations by [the President]". A similar
command was made under PP 1081. That in itself should not be a cause of
surprise, since both PP 1017 and PP 1081 expressly invoked the "calling out"
power, albeit in different contexts.
The majority however considers that since the President does not have the
power to issue decrees, PP 1017 is unconstitutional insofar as it enforces
obedience "to all decrees." For one, it should be made clear that the President
currently has no power to issue decrees, and PP 1017 by no measure seeks to
restore such power to the President. Certainly, not even a single decree was
issued by President Arroyo during the several days PP 1017 was in effect, or
during her term thus far for that matter.
At the same time, such power did once belong to the President during the
Marcos era and was extensively utilized by President Marcos. It has to be
remembered that chafed as we may have under some of the Marcos decrees,
per the 1987 Constitution they still remain as part of the law of the land unless
particularly stricken down or repealed by subsequent enactments. Indeed, when
the President calls upon the Armed Forces to enforce the laws, those subsisting
presidential decrees issued by President Marcos in the exercise of his legislative
powers are included in the equation.
This view is supported by the rules of statutory construction. The particular
passage in PP 1017 reads ""to enforce obedience to all the laws and to all
decrees, orders and regulations," with the phrases "all the laws and to all
decrees" separated by a comma from "orders and regulations promulgated by
me." Inherently, laws and those decrees issued by President Marcos in the
exercise of his legislative powers, and even those executive issuances of
President Aquino in the exercise of her legislative powers, belong to the same
class, superior in the hierarchy of laws than "orders and regulations." The use of
the conjunction "and" denotes a joinder or union, "relating the one to the
other."
33
The use of "and" establishes an association between laws and decrees
distinct from orders and regulations, thus permitting the application of the
doctrine of noscitur a sociis to construe "decrees" as those decrees which at
present have the force of law. The dividing comma further signifies the
segregation of concepts between "laws and decrees" on one hand, and "orders
and regulations" on the other.
Further proof that "laws and decrees" stand as a class distinct from "orders and
regulations" is the qualifying phrase "promulgated by me," which necessarily
refers only to orders and regulations. Otherwise, PP 1017 would be ridiculous in
the sense that the obedience to be enforced only relates to laws promulgated
by President Arroyo since she assumed office in 2001. "Laws and decrees" do
not relate only to those promulgated by President Arroyo, but other laws
enacted by past sovereigns, whether they be in the form of the Marcos
presidential decrees, or acts enacted by the American Governor-General such
as the Revised Penal Code. Certainly then, such a qualification sufficiently
addresses the fears of the majority that PP 1017 somehow empowers or
recognizes the ability of the current President to promulgate decrees. Instead,
the majority pushes an interpretation that, if pursued to its logical end, suggests
that the President by virtue of PP 1017 is also arrogating unto herself, the power
to promulgate laws, which are in the mold of enactments from Congress. Again,
in this respect, the grouping of "laws" and "decrees" separately from "orders"
and "regulations" signifies that the President has not arrogated unto herself the
power to issue decrees in the mold of the infamous Marcos decrees.
Moreover, even assuming that PP 1017 was intended to apply to decrees which
the current President could not very well issue, such intention is of no
consequence, since the proclamation does not intend or pretend to grant the
President such power in the first place. By no measure of contemplation could
PP 1017 be interpreted as reinstating to the President the power to issue
decrees.
I cannot see how the phrase "enforce obedience to decrees" can be the source
of constitutional mischief, since the implementation of PP 1017 will not vest on
the President the power to issue such decrees. If the Court truly feels the need
to clarify this point, it can do so with the expediency of one sentence or even a
footnote. A solemn declaration that the phrase is unconstitutional would be like
killing a flea with dynamite when insect powder would do.
PP 1017 A Valid Exercise of Prerogatives
Inherent and Traditional in the Office of The Presidency
Thus far, I have dwelt on the legal effects of PP 1017, non-existent as they may
be in relation to the citizenry, the courts or on Congress. Still, there is another
purpose and dimension behind PP 1017 that fall within the valid prerogatives of
the President.
The President, as head of state, is cast in a unique role in our polity matched by
no other individual or institution. Apart from the constitutional powers vested on
the President lie those powers rooted in the symbolic functions of the office.
There is the common expectation that the President should stand as the
political, moral and social leader of the nation, an expectation not referred to in
of the oath of office, but expected as a matter of tradition. In fact, a President
may be cast in crisis even if the Chief Executive has broken no law, and faithfully
executed those laws that exist, simply because the President has failed to win
over the hearts and minds of the citizens. As a Princeton academic, Woodrow
Wilson once observed that with the People, the President is everything, and
without them nothing, and the sad decline of his own eventual presidency is no
better proof of the maxim. Such are among the vagaries of the political office,
and generally beyond judicial relief or remedy.
Justice Robert Jacksons astute observation in Youngstown Sheet & Tube Co. v.
Sawyer
34
on the unique nature of the presidency, has been widely quoted:
Executive power has the advantage of concentration in a single head in whose
choice the whole Nation has a part, making him the focus of public hopes and
expectations. In drama, magnitude, and finality, his decisions so far overshadow
any others that almost alone he fills the public eye and ear. No other personality
in public life can begin to compete with him in access to the public mind
through modern methods of communications. By his prestige as head of state
and his influence upon public opinion he exerts a leverage upon those who are
supposed to check and balance his power which often cancels their
effectiveness.
35

Correspondingly, the unique nature of the office affords the President the
opportunity to profoundly influence the public discourse, not necessarily
through the enactment or enforcement of laws, but specially by the mere
expediency of taking a stand on the issues of the day. Indeed, the President is
expected to exercise leadership not merely through the proposal and
enactment of laws, but by making such vital stands. U.S. President Theodore
Roosevelt popularized the notion of the presidency as a "bully pulpit", in line
with his belief that the President was the steward of the people limited only by
the specific restrictions and prohibitions appearing in the Constitution, or
impleaded by Congress under its constitutional powers.
Many times, the President exercises such prerogative as a responsive measure,
as after a mass tragedy or calamity. Indeed, when the President issues a
declaration or proclamation of a state of national mourning after a disaster with
massive casualties, while perhaps de rigeur, is not the formalistic exercise of
tradition, but a statement that the President, as the representative of the
Filipino people, grieves over the loss of life and extends condolences in behalf
of the people to the bereaved. This is leadership at its most solemn.
Yet the President is not precluded, in the exercise of such role, to be merely
responsive. The popular expectation in fact is of a pro-active, dynamic chief
executive with an ability to identify problems or concerns at their incipience and
to respond to them with all legal means at the earliest possible time. The
President, as head of state, very well has the capacity to use the office to garner
support for those great national quests that define a civilization, as President
Kennedy did when by a mere congressional address, he put America on track to
the goal of placing a man on the moon. Those memorable presidential
speeches memorized by schoolchildren may have not, by themselves, made
operative any law, but they served not only merely symbolic functions, but help
profoundly influence towards the right direction, the public opinion in the
discourse of the times. Perhaps there was no more dramatic example of the use
of the "bully pulpit" for such noble purposes than in 1964, when an American
President from Texas stood before a Congress populated by many powerful
bigots, and fully committed himself as no other President before to the cause of
civil rights with his intonation of those lines from the civil rights anthem, "we
shall overcome."
From an earlier era in American history, Lincolns Emancipation Proclamation
stands out as a presidential declaration which clearly staked American polity on
the side of the democratic ideal, even though the proclamation itself was of
dubitable legal value. The proclamation, in short form, "freed the slaves", but
was not itself free of legal questions. For one, the notion that the President
could, by himself, alter the civil and legal status of an entire class of persons was
dubious then and now, although President Lincoln did justify his action as in the
exercise of his powers as commander-in-chief during wartime, "as a fit and
necessary war measure for suppressing [the] rebellion." Moreover, it has been
pointed out that the Proclamation only freed those slaves in those states which
were then in rebellion, and it eventually took the enactment of the Thirteenth
Amendment of the U.S. Constitution to legally abolish involuntary servitude.
36

Notwithstanding the legal haze surrounding it, the Emancipation Proclamation
still stands as a defining example not only of the Lincoln Presidency, but of
American democratic principles. It may be remembered to this day not exactly
as an operational means by which slaves were actually freed, but as a clear
rhetorical statement that slavery could no longer thenceforth stand.
The President as Chief Government Spokesperson of the democratic ideals is
entrusted with a heady but comfortable pursuit. But no less vital, if somewhat
graver, is the role of the President as the Chief Defender of the democratic way
of life. The "calling out" power assures the President such capability to a great
extent, yet it will not fully suffice as a defense of democracy. There is a need for
the President to rally the people to defend the Constitution which guarantees
the democratic way of life, through means other than coercive. I assert that the
declaration of a state of emergency, on premises of a looming armed threat
which have hardly been disputed, falls within such proper functions of the
President as the defender of the Constitution. It was designed to inform the
people of the existence of such a threat, with the expectation that the citizenry
would not aid or abet those who would overturn through force the democratic
government. At the same time, the Proclamation itself does not violate the
Constitution as it does not call for or put into operation the suspension or
withdrawal of any constitutional rights, or even create or diminish any
substantive rights.
I submit that it would be proper for the Court to recognize that PP 1017 strikes a
commendable balance between the Constitution, the "calling out" power, and
the inherent function of the Presidency as defender of the democratic
constitution. PP 1017 keeps within the scope and limitations of these three
standards. It asserts the primacy of the democratic order, civilian control over
the armed forces, yet respects constitutional and statutory guarantees of the
people.
II.
Section 17, Article XII of the Constitution In Relation to PP 1017
My next issue with the majority pertains to the assertion that the President does
not have the power to take over public utilities or businesses impressed with
public interest under Section 17, Article XII of the Constitution without prior
congressional authorization. I agree that the power of the State to take over
such utilities and businesses is highly limited, and should be viewed with
suspicion if actually enforced.
Yet qualifications are in order with regard to how Section 17, Article XII actually
relates of PP 1017.
I agree with the majority that a distinction should be asserted as between the
power of the President to declare a state of emergency, and the exercise of
emergency powers under Section 17, Article XII. The President would have the
power to declare a state of emergency even without Section 17, Article XII.
At the same time, it should be recognized that PP 1017, on its face and as
applied, did not involve the actual takeover of any public utility or business
impressed with public interest. To some minds, the police action in relation to
the Daily Tribune may have flirted with such power, yet ultimately the
newspaper was able to independently publish without police interference or
court injunction. It may be so that since PP 1017 did make express reference to
Section 17, Article XII, but it should be remembered that the constitutional
provision refers to a two-fold power of the State to declare a national
emergency and to take over such utilities and enterprises. The first power under
Section 17, Article XII is not distinct from the power of the President, derived
from other constitutional sources, to declare a state of national emergency.
Reference to Section 17, Article XII in relation to the power to declare a state of
national emergency is ultimately superfluous. A different situation would obtain
though if PP 1017 were invoked in the actual takeover of a utility or business,
and in such case, full consideration of the import of Section 17, Article XII would
be warranted. But no such situation obtains in this case, and any discussion
relating to the power of the State to take over a utility or business under Section
17, Article XII would ultimately be obiter dictum.
I respectfully submit that the Court, in these petitions, need not have engaged
this potentially contentious issue, especially as it extends to whether under
constitutional contemplation, the President may act in behalf of the State in
exercising the powers under Section 17, Article XII. Nonetheless, considering
that the majority has chosen to speak out anyway, I will express agreement that
as a general rule, the President may exercise such powers under Section 17,
Article XII only under the grant of congressional approval. Certainly, the notion
that congressional authority is required under Section 17, Article XII is not
evident from the provision. Even Fr. Bernas notes that Section 17 does not
require, as does Article VI, Section 23(2), that the authorization be "by law",
thus leaving the impression that the authorization can come from the President.
37

After the 1989 coup detat, President Aquino issued issued Proclamation No.
503 on 6 December 1989, declaring a state of national emergency, and referring
therein to Section 17, Article XII by citing the entire provision. The declaration
was subsequently reaffirmed by Congress when two weeks after, it enacted
Republic Act No. 6826. Notably, Section 3(3) of the law authorized the President
"to temporarily takeover or direct the operation of any privately-owned public
utility or business affected with public interest that violates the herein declared
national policy". Tellingly, however, such authority was granted by Congress
expressly "pursuant to Article VI, Section 23(2) of the Constitution", and not the
take-over provision in Section 17, Article XII. Evidently, the view that Section 17,
Article XII requires prior congressional authority has some novelty to it.
Still, I concede that it is fundamentally sound to construe Section 17 as requiring
congressional authority or approval before the takeover under the provision
may be effected. After all, the taking over of a privately owned public utility or
business affected with public interest would involve an infringement on the right
of private enterprise to profit; or perhaps even expropriation for a limited
period. Constitutionally, the taking of property can only be accomplished with
due process of law,
38
and the enactment of appropriate legislation prescribing
the terms and conditions under which the President may exercise the powers of
the State under Section 17 stands as the best assurance that due process of law
would be observed.
The fact that Section 17 is purposely ambivalent as to whether the President
may exercise the power therein with or without congressional approval leads me
to conclude that it is constitutionally permissible to recognize exceptions, such
as in extreme situations wherein obtention of congressional authority is
impossible or inexpedient considering the emergency. I thus dissent to any
proposition that such requirement is absolute under all circumstances. I maintain
that in such extreme situations, the President may exercise such authority
subject to judicial review.
It should be admitted that some emergencies are graver and more imminent
than others. It is not within the realm of impossibility that by reason of a
particularly sudden and grave emergency, Congress may not be able to
convene to grant the necessary congressional authority to the President.
Certainly, if bombs from a foreign invader are falling over Manila skies, it may be
difficult, not to mention unnecessarily onerous, to require convening Congress
before the President may exercise the functions under Section 17, Article XII.
The proposition of the majority may be desirable as the general rule, but the
correct rule that should be adopted by the Court should not be so absolute so
as to preclude the exercise by the President of such power under extreme
situations.
In response to this argument, the majority cites portions of Araneta v. Dinglasan,
39
most pertinent of which reads: "The point is, under this framework of
government, legislation is preserved for Congress all the time, not excepting
periods of crisis no matter how serious."
For one, Araneta did not involve a situation wherein the President attempted to
exercise emergency powers without congressional authority; concerning as it
did the exercise by President Quirino of those emergency powers conferred
several years earlier by Congress to President Quezon at the onset of the Pacific
phase of World War II. The Court therein ruled that the emergency that justified
then the extraordinary grant of powers had since expired, and that there no
longer existed any authority on the part of the President to exercise such
powers, notwithstanding that the law, Commonwealth Act No. 671, "did not in
term fix the duration of its effectiveness".
Clearly, the context in which the Court made that observation in Araneta is not
the same context within which my own observations oscillate. My own
submission is premised on the extreme situation wherein Congress may be
physically unable to convene, an exceptional circumstance which the hard-line
stance of the majority makes no concessions for.
Indeed, even the factual milieu recounted in Araneta conceded that such
extreme circumstance could occur, when it noted President Quezons claim that
he was impelled to call for a special session of the National Assembly after
foreseeing that "it was most unlikely that the Philippine Legislature would hold
its next regular session which was to open on January 1, 1942."
40
That the
National Assembly then was able to convene and pass Commonwealth Act No.
671 was fortunate, but somewhat a luxury nonetheless. Indeed, it is not beyond
the realm of possibility that the emergency contemplated would be so grave
that a sufficient number of members of Congress would be physically unable to
convene and meet the quorum requirement.
Ultimately though, considering that the authorized or actual takeover under
Section 17, Article XII, is not presented as a properly justiciable issue.
Nonetheless, and consistent with the general tenor, the majority has undertaken
to decide this non-justiciable issue, and to even place their view in the
dispositive portion in a bid to enshrine it as doctrine. In truth, the Courts
pronouncement on this point is actually obiter. It is hoped that should the issue
become ripe for adjudication before this Court, the obiter is not adopted as a
precedent without the qualification that in extreme situations wherein
congressional approval is impossible or highly impractical to obtain, the powers
under Section 17, Article XII may be authorized by the President.
III.
Overbreadth and "Void for Vagueness" Doctrines Applicable Not Only To Free
Speech Cases
The majority states that "the overbreadth doctrine is an analytical tool
developed for testing on their faces statutes in free speech cases"
41
, and may
thus be entertained "in cases involving statutes which, by their terms, seek to
regulate only spoken words, and not conduct. A similar characterization is
made as to the "void for vagueness" doctrine, which according to the majority,
is "subject to the same principles governing overbreadth doctrine also an
analytical tool for testing on their faces statutes in free speech cases."
42

As I noted in my Separate Opinion in Romualdez v. Sandiganbayan,
43
citing
Justice Kapunan, there is a viable distinction between "void for vagueness" and
"overbreadth" which the majority sadly ignores.
A view has been proferred that "vagueness and overbreadth doctrines are not
applicable to penal laws." These two concepts, while related, are distinct from
each other. On one hand, the doctrine of overbreadth applies generally to
statutes that infringe upon freedom of speech. On the other hand, the
"void-for-vagueness" doctrine applies to criminal laws, not merely those
that regulate speech or other fundamental constitutional right. (not merely
those that regulate speech or other fundamental constitutional rights.) The
fact that a particular criminal statute does not infringe upon free speech does
not mean that a facial challenge to the statute on vagueness grounds cannot
succeed.
44

The distinction may prove especially crucial since there has been a long line of
cases in American Supreme Court jurisprudence wherein penal statutes have
been invalidated on the ground that they were "void for vagueness." As I cited
in Romualdez v. Sandiganbayan,
45
these cases are Connally v. General
Construction Co,.
46
Lanzetta v. State of New Jersey,
47
Bouie v. City of Columbia,
48
Papachristou v. City of Jacksonville,
49
Kolender v. Lawson,
50
and City of
Chicago v. Morales.
51

Granting that perhaps as a general rule, overbreadth may find application only
in "free speech"
52
cases, it is on the other hand very settled doctrine that a
penal statute regulating conduct, not speech, may be invalidated on the ground
of "void for vagueness". In Romualdez, I decried the elevation of the suspect
and radical new doctrine that the "void for vagueness" challenge cannot apply
other than in free speech cases. My view on this point has not changed, and
insofar as the ponencia would hold otherwise, I thus dissent.
Moreover, even though the argument that an overbreadth challenge can be
maintained only in free speech cases has more jurisprudential moorings, the
rejection of the challenge on that basis alone may prove unnecessarily
simplistic. I maintain that there is an even stronger ground on which the
overbreadth and "void for vagueness" arguments can be refuted that
Presidential Proclamation 1017 (PP 1017) neither creates nor diminishes any
rights or obligations whatsoever. In fact, I submit again that this proposition is
the key perspective from which the petitions should be examined.
IV.
General Order No. 5
Suffers No Constitutional Infirmity
The majority correctly concludes that General Order No. 5 is generally
constitutional. However, they make an unnecessary distinction with regard to
"acts of terrorism", pointing out that Congress has not yet passed a law
defining and punishing terrorism or acts of terrorism.
That may be the case, but does the majority seriously suggest that the President
or the State is powerless to suppress acts of terrorism until the word "terrorism"
is defined by law? Terrorism has a widely accepted meaning that encompasses
many acts already punishable by our general penal laws. There are several
United Nations and multilateral conventions on terrorism
53
, as well as
declarations made by the United Nations General Assembly denouncing and
seeking to combat terrorism.
54
There is a general sense in international law as to
what constitutes terrorism, even if no precise definition has been adopted as
binding on all nations. Even without an operative law specifically defining
terrorism, the State already has the power to suppress and punish such acts of
terrorism, insofar as such acts are already punishable, as they almost always are,
in our extant general penal laws. The President, tasked with the execution of all
existing laws, already has a sufficient mandate to order the Armed Forces to
combat those acts of terrorism that are already punishable in our Revised Penal
Code, such as rebellion, coup detat, murder, homicide, arson, physical injuries,
grave threats, and the like. Indeed, those acts which under normal
contemplation would constitute terrorism are associated anyway with or
subsumed under lawless violence, which is a term found in the Constitution
itself. Thus long ago, the State has already seen it fit to punish such acts.
Moreover, General Order No. 5 cannot redefine statutory crimes or create new
penal acts, since such power belongs to the legislative alone. Fortunately,
General Order No. 5 does not assume to make such redefinitions. It may have
been a different matter had General Order No. 5 attempted to define "acts of
terrorism" in a manner that would include such acts that are not punished under
our statute books, but the order is not comported in such a way. The proper
course of action should be to construe "terrorism" not in any legally defined
sense, but in its general sense. So long as it is understood that "acts of
terrorism" encompasses only those acts which are already punishable under our
laws, the reference is not constitutionally infirm.
The majority cites a theoretical example wherein a group of persons engaged in
a drinking spree may be arrested by the military or police in the belief that they
were committing acts of terrorism pursuant to General Order No. 5. Under the
same logical framework that group of persons engaged in a drinking spree
could very well be arrested by the military or police in the belief that they are
committing acts of lawless violence pursuant to General Order No. 5, instead of
acts of terrorism. Obviously such act would be "abuse and oppression" on the
part of the military and the police, whether justified under "lawless violence" or
"acts of terrorism". Yet following the logic of the majority, the directive to
prevent acts of "lawless violence" should be nullified as well.
If the point of the majority is that there are no justiciable standards on what
constitutes acts of terrorism, it should be pointed out that only the following
scenarios could ensue. For one, a person would actually be arrested and
charged with "acts of terrorism", and such arrest or charge would be thrown out
of the courts, since our statute books do not criminalize the specific crime of
terrorism. More probably, a person will be arrested and charged for acts that
may under the laypersons contemplation constitutes acts of terrorism, but
would be categorized in the information and charge sheet as actual crimes
under our Revised Penal Code. I simply cannot see how General Order No. 5
could validate arrests and convictions for non-existent crimes.
Interestingly, the majority, by taking issue with the lack of definition and possible
broad context of "acts of terrorism", seems to be positively applying the
arguments of "overbreadth" or "void for vagueness", arguments which they
earlier rejected as applicable only in the context of free expression cases. The
inconsistency is breath-taking. While I disagree with the majority-imposed
limitations on the applicability of the "overbreadth" or "void for vagueness"
doctrines, I likewise cannot accede to the application of those doctrines in the
context of General Order No. 5, for the same reason that they should not apply
to PP 1017. Neither General Order No. 5 nor PP 1017 is a penal statute, or have
an operative legal effect of infringing upon liberty, expression or property. As
such, neither General Order No. 5 nor PP 1017 can cause the deprivation of life,
liberty or property, thus divorcing those issuances from the context of the due
process clause. The same absence of any binding legal effect of these two
issuances correspondingly disassociates them from the constitutional
infringement of free expression or association. Neither "void for vagueness" nor
"overbreadth" therefore lie.
Another point. The majority concludes from General Order No. 5 that the
military or police is limited in authority to perform those acts that are "necessary
and appropriate actions and measures to suppress and prevent acts of terrorism
and lawless violence," and such acts committed beyond such authority are
considered illegal. I do not dispute such conclusion, but it must be emphasized
that "necessary and appropriate actions and measures" precisely do not
authorize the military or police to commit unlawful and unconstitutional acts
themselves, even if they be geared towards suppressing acts of terrorism or
lawless violence. Indeed, with the emphasis that PP 1017 does not create
new rights or obligations, or diminish existing ones, it necessarily follows
that General Order No. 5, even if premised on a state of emergency,
cannot authorize the military or police to ignore or violate constitutional or
statutory rights, or enforce laws completely alien to the suppression of
lawless violence. Again, following the cardinal principle of legal hermeneutics
earlier adverted to, General Order No. 5 should be viewed in harmony with the
Constitution, and only if it the Order irreconcilably deviates from the
fundamental law should it be struck down.
V.
Court Should Refrain Making Any Further Declaration, For Now,
Relating to the Individual Grievances Raised by the Petitioners in Relation To PP
1017
I respectfully disagree with the manner by which the majority would treat the
"void as applied" argument presented by the petitioners. The majority adopts
the tack of citing three particular injuries alleged by the petitioners as inflicted
with the implementation of PP 1017. The majority analyzes the alleged injuries,
correlates them to particular violations of the Bill of Rights, and ultimately
concludes that such violations were illegal.
The problem with this approach is that it would forever deem the Court as a
trier or reviewer at first instance over questions involving the validity of
warrantless arrests, searches, seizures and the dispersal of rallies, all of which
entail a substantial level of factual determination. I agree that PP 1017 does not
expand the grounds for warrantless arrests, searches and seizures or dispersal of
rallies, and that the proclamation cannot be invoked before any court to assert
the validity of such unauthorized actions. Yet the problem with directly
adjudicating that the injuries inflicted on David, et al., as illegal, would be that
such would have been done with undue haste, through an improper legal
avenue, without the appropriate trial of facts, and without even impleading the
particular officers who effected the arrests/searches/seizures.
I understand that the injurious acts complained of by the petitioners upon the
implementation of PP 1017 are a source of grave concern. Indubitably, any
person whose statutory or constitutional rights were violated in the name of PP
1017 or General Order No. 5 deserves redress in the appropriate civil or
criminal proceeding, and even the minority wishes to makes this point as
emphatically clear, if not moreso, as the majority. Yet a ruling from this Court,
without the proper factual basis or prayer for remuneration for the injury
sustained, would ultimately be merely symbolic. While the Court will not be
harmed by a symbolic reafrmation of commitment to the principles in the
Bill of Rights, it will be harmed by a ruling that unduly and inappropriately
expands the very limited function of the Court as a trier of facts on rst
instance.
In my dissent in Teves v. Sandiganbayan,
55
I alluded to the fact that our legal
system may run counter-intuitive in the sense that the seemingly or obviously
guilty may still, after trial, be properly acquitted or exonerated; to the extent
that even an accused who murders another person in front of live television
cameras broadcast to millions of sets is not yet necessarily guilty of the crime of
murder or homicide.
56
Hence, the necessity of a proper trial so as to allow the
entire factual milieu to be presented, tested and evaluated before the court. In
my theoretical example, the said accused should nonetheless be acquitted if the
presence of exempting circumstances is established. The same principle applies
in these cases. Certainly, we in the Court can all agree that PP 1017 cannot be
invoked to justify acts by the police or military officers that go beyond the
Constitution and the laws. But the course of prudence dictates that the
pronouncement of such a doctrine, while enforceable in a court of law, should
not yet extend itself to specific examples that have not yet been properly
litigated. The function of this Court is to make legal pronouncements not
based on "obvious" facts, but on proven facts.
A haphazard declaration by the Court that the arrests or seizures were "illegal"
would likewise preclude any meaningful review or reevaluation of pertinent legal
doctrines that otherwise could have been reexamined had these acts been
properly challenged in regular order. For example, the matter of the warrantless
arrests in these cases could have most certainly compelled the Court to again
consider the doctrine laid down in Umil v. Ramos on warrantless arrests and
rebellion as a continuing crime, a doctrine that may merit renewed evaluation.
Yet any healthy reexamination of Umil, or other precedents for that matter,
require the presentation and trial of the proper factual predicates, a course
which the majority unfortunately "short-cuts" in this present decision.
Of course, despite the grandiloquent pronouncement by the majority that the
acts complained of by the petitioners and implemented pursuant to General
Order No. 5 are illegal, it could nonetheless impose civil, criminal or
administrative sanctions on the individual police officers concerned, as these
officers had not been "individually identified and given their day in court". Of
course, the Court would be left with pie on its face if these persons, once "given
their day in court", would be able to indubitably establish that their acts were
actually justified under law. Perhaps worse, the pronouncement of the majority
would have had the effect of prejudging these cases, if ever lodged, even
before trial on the merits.
Certainly, a declaration by the majority that PP 1017 or General Order No. 5
cannot justify violation of statutory or constitutional rights (a declaration which
the minority would have no qualms assenting to) would sufficiently arm those
petitioners and other persons whose rights may have been injured in the
implementation of PP 1017, with an impeccable cause of action which they
could pursue against the violators before the appropriate courts. At the same
time, if the officers or officials concerned have basis to contend that no such
rights were violated, for justifications independent of PP 1017 or General Order
No. 5, such claims could receive due consideration before the courts. Such a
declaration would squarely entrench the Court as a defender of the Bill of
Rights, foster enforceable means by which the injured could seek actual redress
for the injury sustained, and preserve the integrity and order of our procedural
law.
VI.
Conclusion
The country-wide attention that the instant petitions have drawn should not
make the Court lose focus on its principal mission, which is to settle the law of
the case. On the contrary, the highly political nature of these petitions should
serve as forewarning for the Court to proceed ex abundante cautelam, lest the
institution be unduly dragged into the partisan mud. The credibility of the Court
is ensured by making decisions in accordance with the Constitution without
regard to the individual personalities involved; with sights set on posterity,
oblivious of the popular flavor of the day.
By deciding non-justiciable issues and prejudging cases and controversies
without a proper trial on the merits, the majority has diminished the potency of
this Courts constitutional power in favor of rhetorical statements that afford no
quantifiable relief. It is for the poet and the politician to pen beautiful paeans to
the peoples rights and liberties, it is for the Court to provide for viable legal
means to enforce and safeguard these rights and liberties. When the passions of
these times die down, and sober retrospect accedes, the decision of this Court
in these cases will be looked upon as an extended advisory opinion.
Yes, PP 1017 and General Order No. 5 warrant circumspect scrutiny from those
interested and tasked with preserving our civil liberties. They may even stand, in
the appropriate contexts, as viable partisan political issues. But the plain fact
remains that, under legal contemplation, these issuances are valid on their face,
and should result in no constitutional or statutory breaches if applied according
to their letter.
I vote to DISMISS all the petitions.
DANTE O. TINGA
Associate Justice

Footnotes
1
G.R. Nos. 159085, 159103, 159185, 159196, 3 February 2004, 421 SCRA 656.
2
R. Agpalo, Statutory Construction, 3rd.ed. (1995), at 21.
3
"When a statute is reasonably susceptible of two constructions, one
constitutional and the other unconstitutional, that construction in favor of its
constitutionality shall be adopted and the construction that will render it invalid
rejected." See R. Agpalo, id., at 266; citing Mutuc v. COMELEC, G.R. No.
32717, Nov. 26, 1970, 36 SCRA 228; J.M. Tuason & Co., Inc. v. Land Tenure
Adm., G.R. No. 21064, Feb. 18, 1970, 31 SCRA 413; American Bible Society v.
City of Manila, 101 Phil. 386 (1957); Alba v. Evangelista, 100 Phil. 683 (1957);
Maddumba v. Ozaeta, 82 Phil. 345 (1948); Benguet Exploration, Inc. v.
Department of Agriculture and Natural Resources, G.R. No. 29534, Fe. 28,
1977, 75 SCRA 285 (1977); De la Cruz v. Paras, G.R. No. 42591, July 25, 1983,
123 SCRA 569.
4
See Constitution, Section 17, Article VII.
5
See Constitution, Section 18, Article VII.
6
See Constitution, Section 1, Article VII.
7
The plenary legislative power being vested in Congress. See Constitution,
Section 1, Article VI.
8
"[The President] shall ensure that the laws be faithfully executed." See
Constitution, Section 17, Article VII.
9
Supra note 4.
10
"No officer or employee of the civil service shall be removed or suspended
except for cause provided by law." See Constitution, Section 2(3), Article IX-B.
11
See, e.g., Marcos v. Manglapus, G.R. No. 88211, 27 October 1989, 178 SCRA
760, 763.
12
See Administrative Code, Section 4, Chapter 2, Book III.
13
See Section 18, Article VII, Constitution.
14
392 Phil. 618 (2000)
15
Id. at 627.
16
Id. at 644.
17
Id. at 636.
18
Id. at 643.
19
Id.
20
Sanlakas v. Executive Secretary, supra note 1, at 668.
21
Id. at 677.
22
Supra note 8.
23
The declaration of martial law then within the President to make under
authority of Section 10(2), Article VII of the 1935 Constitution.
24
No. L-35546, 17 September 1974, 59 SCRA 183.
25
Aquino, Jr. v. Enrile, id. at 240-241.
26
Aquino, Jr. v. Enrile, id. at 262-263, Castro, J., Separate Opinion.
27
Id. at 398-399, Barredo, J., concurring.
28
Id. at 405-406, Barredo, J., concurring.
29
Id. at 423, Barredo, J., concurring.
30
Constitution, Section 18, Article VII.
31
Constitution, Section 18, Article VII.
32
See Mijares v. Hon. Ranada, G.R. No. 139325, 12 April 2005.
33
See R. Agpalo, Statutory Construction, p. 206.
34
343 U.S. 579, 653-654, J. Jackson, concurring.
35
Ibid.
36
See George Fort Milton, The Use of Presidential Power: 1789-1943, 1980 ed.,
at 119-120.
37
See J. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines:
A Commentary, 2003 ed., at 1183.
38
See Section 1, Article III, Constitution.
39
84 Phil. 368 (1949).
40
Id. at 379.
41
Decision, infra.
42
Id.
43
G.R. No. 152259, 29 July 2004, 435 SCRA 371, 395-406.
44
Id., at 398, citing Estrada v. Sandiganbayan, 421 Phil. 290, J. Kapunan,
dissenting, at pp. 382-384.
45
Id., at 398-401.
46
269 U.S. 385, 393 (1926).
47
306 U.S. 451 (1939).
48
378 U.S. 347 (1964).
49
405 U.S. 156 (1972).
50
461 U.S. 352 (1983).
51
Case No. 97-1121, 10 June 1999.
52
But see United States v. Robel, 389 U.S. 258 (1967), wherein the U.S.
Supreme Court invalidated a portion of the Subversive Control Activities Act on
the ground of overbreadth as it sought to proscribe the exercise the right of free
association, also within the First Amendment of the United States Constitution
but a distinct right altogether from free expression.
53
To name a few, the Convention on the Prevention and Punishment of Crimes
against Internationally Protected Persons, including Diplomatic Agents (1973);
International Convention for the Suppression of Terrorist Bombings (1997);
International Convention for the Suppression of the Financing of Terrorism
(1999); the International Convention for the Suppression of Acts of Nuclear
Terrorism (2005). See "United Nations Treaty Collection Conventions on
Terrorism", http://untreaty.un.org/English/Terrorism.asp (last visited, 30 April
2006).
54
See, e.g., Resolution No. 49/60, Adopted by the United Nations General
Assembly on 17 February 1995.
55
G.R. No. 154182, 17 December 2004, 447 SCRA 309, 335-348. J. Tinga,
dissenting.
56
Id. at 345.












































Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 166620 April 20, 2010
ATTY. SYLVIA BANDA, CONSORICIA O. PENSON, RADITO V. PADRIGANO,
JEAN R. DE MESA, LEAH P. DELA CRUZ, ANDY V. MACASAQUIT, SENEN
B. CORDOBA, ALBERT BRILLANTES, GLORIA BISDA, JOVITA V.
CONCEPCION, TERESITA G. CARVAJAL, ROSANNA T. MALIWANAG,
RICHARD ODERON, CECILIA ESTERNON, BENEDICTO CABRAL, MA.
VICTORIA E. LAROCO, CESAR ANDRA, FELICISIMO GALACIO, ELSA R.
CALMA, FILOMENA A. GALANG, JEAN PAUL MELEGRITO, CLARO G.
SANTIAGO, JR., EDUARDO FRIAS, REYNALDO O. ANDAL, NEPHTALIE
IMPERIO, RUEL BALAGTAS, VICTOR R. ORTIZ, FRANCISCO P. REYES, JR.,
ELISEO M. BALAGOT, JR., JOSE C. MONSALVE, JR., ARTURO ADSUARA,
F.C. LADRERO, JR., NELSON PADUA, MARCELA C. SAYAO, ANGELITO
MALAKAS, GLORI A RAMENTO, JULI ANA SUPLEO, MANUEL
MENDRIQUE, E. TAYLAN, CARMELA BOBIS, DANILO VARGAS, ROY-LEO
C. PABLO, ALLAN VILLANUEVA, VICENTE R. VELASCO, JR., IMELDA
ERENO, FLORIZA M. CATIIS, RANIEL R. BASCO, E. JALIJALI, MARIO C.
CARAAN, DOLORES M. AVIADO, MICHAEL P. LAPLANA, GUILLERMO G.
SORIANO, ALICE E. SOJO, ARTHUR G. NARNE, LETICIA SORIANO,
FEDERICO RAMOS, JR., PETERSON CAAMPUED, RODELIO L. GOMEZ,
ANTONIO D. GARCIA, JR., ANTONIO GALO, A. SANCHEZ, SOL E.
TAMAYO, JOSEPHINE A.M. COCJIN, DAMIAN QUINTO, JR., EDLYN
MARIANO, M.A. MALANUM, ALFREDO S. ESTRELLA, and JESUS MEL
SAYO, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, The Director
General of the Philippine Information Agency and The National Treasurer,
Respondents.
D E C I S I O N
LEONARDO-DE CASTRO, J.:
The present controversy arose from a Petition for Certiorari and prohibition
challenging the constitutionality of Executive Order No. 378 dated October 25,
2004, issued by President Gloria Macapagal Arroyo (President Arroyo).
Petitioners characterize their action as a class suit filed on their own behalf and
on behalf of all their co-employees at the National Printing Office (NPO).
The NPO was formed on July 25, 1987, during the term of former President
Corazon C. Aquino (President Aquino), by virtue of Executive Order No. 285
1

which provided, among others, the creation of the NPO from the merger of the
Government Printing Office and the relevant printing units of the Philippine
Information Agency (PIA). Section 6 of Executive Order No. 285 reads:
SECTION 6. Creation of the National Printing Office. There is hereby created a
National Printing Office out of the merger of the Government Printing Office
and the relevant printing units of the Philippine Information Agency. The Office
shall have exclusive printing jurisdiction over the following:
a. Printing, binding and distribution of all standard and accountable forms
of national, provincial, city and municipal governments, including
government corporations;
b. Printing of officials ballots;
c. Printing of public documents such as the Official Gazette, General
Appropriations Act, Philippine Reports, and development information
materials of the Philippine Information Agency.
The Office may also accept other government printing jobs, including
government publications, aside from those enumerated above, but not in an
exclusive basis.
The details of the organization, powers, functions, authorities, and related
management aspects of the Office shall be provided in the implementing
details which shall be prepared and promulgated in accordance with Section II
of this Executive Order.
The Office shall be attached to the Philippine Information Agency.
On October 25, 2004, President Arroyo issued the herein assailed Executive
Order No. 378, amending Section 6 of Executive Order No. 285 by, inter alia,
removing the exclusive jurisdiction of the NPO over the printing services
requirements of government agencies and instrumentalities. The pertinent
portions of Executive Order No. 378, in turn, provide:
SECTION 1. The NPO shall continue to provide printing services to government
agencies and instrumentalities as mandated by law. However, it shall no longer
enjoy exclusive jurisdiction over the printing services requirements of the
government over standard and accountable forms. It shall have to compete with
the private sector, except in the printing of election paraphernalia which could
be shared with the Bangko Sentral ng Pilipinas, upon the discretion of the
Commission on Elections consistent with the provisions of the Election Code of
1987.
SECTION 2. Government agencies/instrumentalities may source printing
services outside NPO provided that:
2.1 The printing services to be provided by the private sector is superior in
quality and at a lower cost than what is offered by the NPO; and
2.2 The private printing provider is flexible in terms of meeting the target
completion time of the government agency.
SECTION 3. In the exercise of its functions, the amount to be appropriated for
the programs, projects and activities of the NPO in the General Appropriations
Act (GAA) shall be limited to its income without additional financial support
from the government. (Emphases and underscoring supplied.)
Pursuant to Executive Order No. 378, government agencies and
instrumentalities are allowed to source their printing services from the private
sector through competitive bidding, subject to the condition that the services
offered by the private supplier be of superior quality and lower in cost
compared to what was offered by the NPO. Executive Order No. 378 also
limited NPOs appropriation in the General Appropriations Act to its income.
Perceiving Executive Order No. 378 as a threat to their security of tenure as
employees of the NPO, petitioners now challenge its constitutionality,
contending that: (1) it is beyond the executive powers of President Arroyo to
amend or repeal Executive Order No. 285 issued by former President Aquino
when the latter still exercised legislative powers; and (2) Executive Order No.
378 violates petitioners security of tenure, because it paves the way for the
gradual abolition of the NPO.
We dismiss the petition.
Before proceeding to resolve the substantive issues, the Court must first delve
into a procedural matter. Since petitioners instituted this case as a class suit, the
Court, thus, must first determine if the petition indeed qualifies as one. In Board
of Optometry v. Colet,
2
we held that "[c]ourts must exercise utmost caution
before allowing a class suit, which is the exception to the requirement of joinder
of all indispensable parties. For while no difficulty may arise if the decision
secured is favorable to the plaintiffs, a quandary would result if the decision
were otherwise as those who were deemed impleaded by their self-appointed
representatives would certainly claim denial of due process."
Section 12, Rule 3 of the Rules of Court defines a class suit, as follows:
Sec. 12. Class suit. When the subject matter of the controversy is one of
common or general interest to many persons so numerous that it is
impracticable to join all as parties, a number of them which the court finds to be
sufficiently numerous and representative as to fully protect the interests of all
concerned may sue or defend for the benefit of all. Any party in interest shall
have the right to intervene to protect his individual interest.
From the foregoing definition, the requisites of a class suit are: 1) the subject
matter of controversy is one of common or general interest to many persons; 2)
the parties affected are so numerous that it is impracticable to bring them all to
court; and 3) the parties bringing the class suit are sufficiently numerous or
representative of the class and can fully protect the interests of all concerned.
In Mathay v. The Consolidated Bank and Trust Company,
3
the Court held that:
An action does not become a class suit merely because it is designated as such
in the pleadings. Whether the suit is or is not a class suit depends upon the
attending facts, and the complaint, or other pleading initiating the class action
should allege the existence of the necessary facts, to wit, the existence of a
subject matter of common interest, and the existence of a class and the number
of persons in the alleged class,

in order that the court might be enabled to
determine whether the members of the class are so numerous as to make it
impracticable to bring them all before the court, to contrast the number
appearing on the record with the number in the class and to determine whether
claimants on record adequately represent the class and the subject matter of
general or common interest. (Emphases ours.)
Here, the petition failed to state the number of NPO employees who would be
affected by the assailed Executive Order and who were allegedly represented
by petitioners. It was the Solicitor General, as counsel for respondents, who
pointed out that there were about 549 employees in the NPO.
4
The 67
petitioners undeniably comprised a small fraction of the NPO employees whom
they claimed to represent. Subsequently, 32 of the original petitioners executed
an Affidavit of Desistance, while one signed a letter denying ever signing the
petition,
5
ostensibly reducing the number of petitioners to 34. We note that
counsel for the petitioners challenged the validity of the desistance or
withdrawal of some of the petitioners and insinuated that such desistance was
due to pressure from people "close to the seat of power."
6
Still, even if we were
to disregard the affidavit of desistance filed by some of the petitioners, it is
highly doubtful that a sufficient, representative number of NPO employees have
instituted this purported class suit. A perusal of the petition itself would show
that of the 67 petitioners who signed the Verification/Certification of Non-
Forum Shopping, only 20 petitioners were in fact mentioned in the jurat as
having duly subscribed the petition before the notary public. In other words,
only 20 petitioners effectively instituted the present case.
Indeed, in MVRS Publications, Inc. v. Islamic Dawah Council of the Philippines,
Inc.,
7
we observed that an element of a class suit or representative suit is the
adequacy of representation. In determining the question of fair and adequate
representation of members of a class, the court must consider (a) whether the
interest of the named party is coextensive with the interest of the other
members of the class; (b) the proportion of those made a party, as it so bears, to
the total membership of the class; and (c) any other factor bearing on the ability
of the named party to speak for the rest of the class.
Previously, we held in Ibaes v. Roman Catholic Church
8
that where the interests
of the plaintiffs and the other members of the class they seek to represent are
diametrically opposed, the class suit will not prosper.
It is worth mentioning that a Manifestation of Desistance,
9
to which the
previously mentioned Affidavit of Desistance
10
was attached, was filed by the
President of the National Printing Office Workers Association (NAPOWA). The
said manifestation expressed NAPOWAs opposition to the filing of the instant
petition in any court. Even if we take into account the contention of petitioners
counsel that the NAPOWA President had no legal standing to file such
manifestation, the said pleading is a clear indication that there is a divergence
of opinions and views among the members of the class sought to be
represented, and not all are in favor of filing the present suit. There is here an
apparent conflict between petitioners interests and those of the persons whom
they claim to represent. Since it cannot be said that petitioners sufficiently
represent the interests of the entire class, the instant case cannot be properly
treated as a class suit.
As to the merits of the case, the petition raises two main grounds to assail the
constitutionality of Executive Order No. 378:
First, it is contended that President Arroyo cannot amend or repeal Executive
Order No. 285 by the mere issuance of another executive order (Executive
Order No. 378). Petitioners maintain that former President Aquinos Executive
Order No. 285 is a legislative enactment, as the same was issued while
President Aquino still had legislative powers under the Freedom Constitution;
11

thus, only Congress through legislation can validly amend Executive Order No.
285.
Second, petitioners maintain that the issuance of Executive Order No. 378
would lead to the eventual abolition of the NPO and would violate the security
of tenure of NPO employees.
Anent the first ground raised in the petition, we find the same patently without
merit.
It is a well-settled principle in jurisprudence that the President has the power to
reorganize the offices and agencies in the executive department in line with the
Presidents constitutionally granted power of control over executive offices and
by virtue of previous delegation of the legislative power to reorganize executive
offices under existing statutes.
In Buklod ng Kawaning EIIB v. Zamora,
12
the Court pointed out that Executive
Order No. 292 or the Administrative Code of 1987 gives the President
continuing authority to reorganize and redefine the functions of the Office of the
President. Section 31, Chapter 10, Title III, Book III of the said Code, is explicit:
Sec. 31. Continuing Authority of the President to Reorganize his Office. The
President, subject to the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have continuing authority to reorganize
the administrative structure of the Office of the President. For this purpose, he
may take any of the following actions:
(1) Restructure the internal organization of the Office of the President
Proper, including the immediate Offices, the President Special
Assistants/Advisers System and the Common Staff Support System, by
abolishing, consolidating or merging units thereof or transferring
functions from one unit to another;
(2) Transfer any function under the Office of the President to any other
Department or Agency as well as transfer functions to the Office of the
President from other Departments and Agencies; and
(3) Transfer any agency under the Office of the President to any other
department or agency as well as transfer agencies to the Office of the
President from other Departments or agencies. (Emphases ours.)
Interpreting the foregoing provision, we held in Buklod ng Kawaning EIIB, thus:
But of course, the list of legal basis authorizing the President to reorganize any
department or agency in the executive branch does not have to end here. We
must not lose sight of the very source of the power that which constitutes an
express grant of power. Under Section 31, Book III of Executive Order No. 292
(otherwise known as the Administrative Code of 1987), "the President, subject
to the policy in the Executive Office and in order to achieve simplicity, economy
and efficiency, shall have the continuing authority to reorganize the
administrative structure of the Office of the President." For this purpose, he may
transfer the functions of other Departments or Agencies to the Office of the
President. In Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that
reorganization "involves the reduction of personnel, consolidation of offices, or
abolition thereof by reason of economy or redundancy of functions." It takes
place when there is an alteration of the existing structure of government offices
or units therein, including the lines of control, authority and responsibility
between them. The EIIB is a bureau attached to the Department of Finance. It
falls under the Office of the President. Hence, it is subject to the Presidents
continuing authority to reorganize.
13
(Emphasis ours.)
It is undisputed that the NPO, as an agency that is part of the Office of the Press
Secretary (which in various times has been an agency directly attached to the
Office of the Press Secretary or as an agency under the Philippine Information
Agency), is part of the Office of the President.
14

Pertinent to the case at bar, Section 31 of the Administrative Code of 1987
quoted above authorizes the President (a) to restructure the internal
organization of the Office of the President Proper, including the immediate
Offices, the President Special Assistants/Advisers System and the Common Staff
Support System, by abolishing, consolidating or merging units thereof or
transferring functions from one unit to another, and (b) to transfer functions or
offices from the Office of the President to any other Department or Agency in
the Executive Branch, and vice versa.
Concomitant to such power to abolish, merge or consolidate offices in the
Office of the President Proper and to transfer functions/offices not only among
the offices in the Office of President Proper but also the rest of the Office of the
President and the Executive Branch, the President implicitly has the power to
effect less radical or less substantive changes to the functional and internal
structure of the Office of the President, including the modification of functions
of such executive agencies as the exigencies of the service may require.
In the case at bar, there was neither an abolition of the NPO nor a removal of
any of its functions to be transferred to another agency. Under the assailed
Executive Order No. 378, the NPO remains the main printing arm of the
government for all kinds of government forms and publications but in the
interest of greater economy and encouraging efficiency and profitability, it must
now compete with the private sector for certain government printing jobs, with
the exception of election paraphernalia which remains the exclusive
responsibility of the NPO, together with the Bangko Sentral ng Pilipinas, as the
Commission on Elections may determine. At most, there was a mere alteration
of the main function of the NPO by limiting the exclusivity of its printing
responsibility to election forms.
15

There is a view that the reorganization actions that the President may take with
respect to agencies in the Office of the President are strictly limited to transfer
of functions and offices as seemingly provided in Section 31 of the
Administrative Code of 1987.
However, Section 20, Chapter 7, Title I, Book III of the same Code significantly
provides:
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. (Emphasis
ours.)
Pursuant to Section 20, the power of the President to reorganize the Executive
Branch under Section 31 includes such powers and functions that may be
provided for under other laws. To be sure, an inclusive and broad interpretation
of the Presidents power to reorganize executive offices has been consistently
supported by specific provisions in general appropriations laws.
In the oft-cited Larin v. Executive Secretary,
16
the Court likewise adverted to
certain provisions of Republic Act No. 7645, the general appropriations law for
1993, as among the statutory bases for the Presidents power to reorganize
executive agencies, to wit:
Section 48 of R.A. 7645 provides that:
"Sec. 48. Scaling Down and Phase Out of Activities of Agencies Within the
Executive Branch. The heads of departments, bureaus and offices and
agencies are hereby directed to identify their respective activities which are no
longer essential in the delivery of public services and which may be scaled
down, phased out or abolished, subject to civil [service] rules and regulations. x
x x. Actual scaling down, phasing out or abolition of the activities shall be
effected pursuant to Circulars or Orders issued for the purpose by the Office of
the President."
Said provision clearly mentions the acts of "scaling down, phasing out and
abolition" of offices only and does not cover the creation of offices or transfer of
functions. Nevertheless, the act of creating and decentralizing is included in the
subsequent provision of Section 62, which provides that:
"Sec. 62. Unauthorized organizational changes. Unless otherwise created by
law or directed by the President of the Philippines, no organizational unit or
changes in key positions in any department or agency shall be authorized in
their respective organization structures and be funded from appropriations by
this Act."
The foregoing provision evidently shows that the President is authorized to
effect organizational changes including the creation of offices in the department
or agency concerned.
The contention of petitioner that the two provisions are riders deserves scant
consideration. Well settled is the rule that every law has in its favor the
presumption of constitutionality. Unless and until a specific provision of the law
is declared invalid and unconstitutional, the same is valid and binding for all
intents and purposes.
17
(Emphases ours)
Buklod ng Kawaning EIIB v. Zamora,
18
where the Court upheld as valid then
President Joseph Estradas Executive Order No. 191 "deactivating" the
Economic Intelligence and Investigation Bureau (EIIB) of the Department of
Finance, hewed closely to the reasoning in Larin. The Court, among others, also
traced from the General Appropriations Act
19
the Presidents authority to effect
organizational changes in the department or agency under the executive
structure, thus:
We adhere to the precedent or ruling in Larin that this provision recognizes the
authority of the President to effect organizational changes in the department or
agency under the executive structure. Such a ruling further finds support in
Section 78 of Republic Act No. 8760. Under this law, the heads of departments,
bureaus, offices and agencies and other entities in the Executive Branch are
directed (a) to conduct a comprehensive review of their respective mandates,
missions, objectives, functions, programs, projects, activities and systems and
procedures; (b) identify activities which are no longer essential in the delivery of
public services and which may be scaled down, phased-out or abolished; and (c)
adopt measures that will result in the streamlined organization and improved
overall performance of their respective agencies. Section 78 ends up with the
mandate that the actual streamlining and productivity improvement in agency
organization and operation shall be effected pursuant to Circulars or Orders
issued for the purpose by the Office of the President. x x x.
20
(Emphasis ours)
Notably, in the present case, the 2003 General Appropriations Act, which was
reenacted in 2004 (the year of the issuance of Executive Order No. 378),
likewise gave the President the authority to effect a wide variety of
organizational changes in any department or agency in the Executive Branch.
Sections 77 and 78 of said Act provides:
Section 77. Organized Changes. Unless otherwise provided by law or directed
by the President of the Philippines, no changes in key positions or
organizational units in any department or agency shall be authorized in their
respective organizational structures and funded from appropriations provided
by this Act.
Section 78. Institutional Strengthening and Productivity Improvement in Agency
Organization and Operations and Implementation of Organization/
Reorganization Mandated by Law. The Government shall adopt institutional
strengthening and productivity improvement measures to improve service
delivery and enhance productivity in the government, as directed by the
President of the Philippines. The heads of departments, bureaus, offices,
agencies, and other entities of the Executive Branch shall accordingly conduct a
comprehensive review of their respective mandates, missions, objectives,
functions, programs, projects, activities and systems and procedures; identify
areas where improvements are necessary; and implement corresponding
structural, functional and operational adjustments that will result in streamlined
organization and operations and improved performance and productivity:
PROVIDED, That actual streamlining and productivity improvements in agency
organization and operations, as authorized by the President of the Philippines
for the purpose, including the utilization of savings generated from such
activities, shall be in accordance with the rules and regulations to be issued by
the DBM, upon consultation with the Presidential Committee on Effective
Governance: PROVIDED, FURTHER, That in the implementation of
organizations/reorganizations, or specific changes in agency structure, functions
and operations as a result of institutional strengthening or as mandated by law,
the appropriation, including the functions, projects, purposes and activities of
agencies concerned may be realigned as may be necessary: PROVIDED,
FINALLY, That any unexpended balances or savings in appropriations may be
made available for payment of retirement gratuities and separation benefits to
affected personnel, as authorized under existing laws. (Emphases and
underscoring ours.)
Implicitly, the aforequoted provisions in the appropriations law recognize the
power of the President to reorganize even executive offices already funded by
the said appropriations act, including the power to implement structural,
functional, and operational adjustments in the executive bureaucracy and, in so
doing, modify or realign appropriations of funds as may be necessary under
such reorganization. Thus, insofar as petitioners protest the limitation of the
NPOs appropriations to its own income under Executive Order No. 378, the
same is statutorily authorized by the above provisions.
In the 2003 case of Bagaoisan v. National Tobacco Administration,
21
we upheld
the "streamlining" of the National Tobacco Administration through a reduction
of its personnel and deemed the same as included in the power of the President
to reorganize executive offices granted under the laws, notwithstanding that
such streamlining neither involved an abolition nor a transfer of functions of an
office. To quote the relevant portion of that decision:
In the recent case of Rosa Ligaya C. Domingo, et al. vs. Hon. Ronaldo D.
Zamora, in his capacity as the Executive Secretary, et al., this Court has had
occasion to also delve on the Presidents power to reorganize the Office of the
President under Section 31(2) and (3) of Executive Order No. 292 and the power
to reorganize the Office of the President Proper. x x x
x x x x
The first sentence of the law is an express grant to the President of a continuing
authority to reorganize the administrative structure of the Office of the
President. The succeeding numbered paragraphs are not in the nature of
provisos that unduly limit the aim and scope of the grant to the President of the
power to reorganize but are to be viewed in consonance therewith. Section
31(1) of Executive Order No. 292 specifically refers to the Presidents power to
restructure the internal organization of the Office of the President Proper, by
abolishing, consolidating or merging units hereof or transferring functions from
one unit to another, while Section 31(2) and (3) concern executive offices
outside the Office of the President Proper allowing the President to transfer any
function under the Office of the President to any other Department or Agency
and vice-versa, and the transfer of any agency under the Office of the President
to any other department or agency and vice-versa.
In the present instance, involving neither an abolition nor transfer of offices, the
assailed action is a mere reorganization under the general provisions of the law
consisting mainly of streamlining the NTA in the interest of simplicity, economy
and efficiency. It is an act well within the authority of the President motivated
and carried out, according to the findings of the appellate court, in good faith, a
factual assessment that this Court could only but accept.
22
(Emphases and
underscoring supplied.)
In the more recent case of Tondo Medical Center Employees Association v.
Court of Appeals,
23
which involved a structural and functional reorganization of
the Department of Health under an executive order, we reiterated the principle
that the power of the President to reorganize agencies under the executive
department by executive or administrative order is constitutionally and
statutorily recognized. We held in that case:
This Court has already ruled in a number of cases that the President may, by
executive or administrative order, direct the reorganization of government
entities under the Executive Department. This is also sanctioned under the
Constitution, as well as other statutes.
Section 17, Article VII of the 1987 Constitution, clearly states: "[T]he president
shall have control of all executive departments, bureaus and offices." Section
31, Book III, Chapter 10 of Executive Order No. 292, also known as the
Administrative Code of 1987 reads:
SEC. 31. Continuing Authority of the President to Reorganize his Office - The
President, subject to the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have continuing authority to reorganize
the administrative structure of the Office of the President. For this purpose, he
may take any of the following actions:
x x x x
In Domingo v. Zamora [445 Phil. 7 (2003)], this Court explained the rationale
behind the Presidents continuing authority under the Administrative Code to
reorganize the administrative structure of the Office of the President. The law
grants the President the power to reorganize the Office of the President in
recognition of the recurring need of every President to reorganize his or her
office "to achieve simplicity, economy and efficiency." To remain effective and
efficient, it must be capable of being shaped and reshaped by the President in
the manner the Chief Executive deems fit to carry out presidential directives and
policies.
The Administrative Code provides that the Office of the President consists of
the Office of the President Proper and the agencies under it. The agencies
under the Office of the President are identified in Section 23, Chapter 8, Title II
of the Administrative Code:
Sec. 23. The Agencies under the Office of the President.The agencies under
the Office of the President refer to those offices placed under the chairmanship
of the President, those under the supervision and control of the President,
those under the administrative supervision of the Office of the President, those
attached to it for policy and program coordination, and those that are not
placed by law or order creating them under any specific department.
x x x x
The power of the President to reorganize the executive department is likewise
recognized in general appropriations laws. x x x.
x x x x
Clearly, Executive Order No. 102 is well within the constitutional power of the
President to issue. The President did not usurp any legislative prerogative in
issuing Executive Order No. 102. It is an exercise of the Presidents
constitutional power of control over the executive department, supported by
the provisions of the Administrative Code, recognized by other statutes, and
consistently affirmed by this Court.
24
(Emphases supplied.)
Subsequently, we ruled in Anak Mindanao Party-List Group v. Executive
Secretary
25
that:
The Constitutions express grant of the power of control in the President justifies
an executive action to carry out reorganization measures under a broad
authority of law.
In enacting a statute, the legislature is presumed to have deliberated with full
knowledge of all existing laws and jurisprudence on the subject. It is thus
reasonable to conclude that in passing a statute which places an agency under
the Office of the President, it was in accordance with existing laws and
jurisprudence on the Presidents power to reorganize.
In establishing an executive department, bureau or office, the legislature
necessarily ordains an executive agencys position in the scheme of
administrative structure. Such determination is primary, but subject to the
Presidents continuing authority to reorganize the administrative structure. As far
as bureaus, agencies or offices in the executive department are concerned, the
power of control may justify the President to deactivate the functions of a
particular office. Or a law may expressly grant the President the broad authority
to carry out reorganization measures. The Administrative Code of 1987 is one
such law.
26

The issuance of Executive Order No. 378 by President Arroyo is an exercise of a
delegated legislative power granted by the aforementioned Section 31,
Chapter 10, Title III, Book III of the Administrative Code of 1987, which provides
for the continuing authority of the President to reorganize the Office of the
President, "in order to achieve simplicity, economy and efficiency." This is a
matter already well-entrenched in jurisprudence. The reorganization of such an
office through executive or administrative order is also recognized in the
Administrative Code of 1987. Sections 2 and 3, Chapter 2, Title I, Book III of the
said Code provide:
Sec. 2. Executive Orders. - Acts of the President providing for rules of a general
or permanent character in implementation or execution of constitutional or
statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. - Acts of the President which relate to particular
aspects of governmental operations in pursuance of his duties as administrative
head shall be promulgated in administrative orders. (Emphases supplied.)
To reiterate, we find nothing objectionable in the provision in Executive Order
No. 378 limiting the appropriation of the NPO to its own income. Beginning
with Larin and in subsequent cases, the Court has noted certain provisions in the
general appropriations laws as likewise reflecting the power of the President
to reorganize executive offices or agencies even to the extent of modifying and
realigning appropriations for that purpose.
Petitioners contention that the issuance of Executive Order No. 378 is an
invalid exercise of legislative power on the part of the President has no legal leg
to stand on.
In all, Executive Order No. 378, which purports to institute necessary reforms in
government in order to improve and upgrade efficiency in the delivery of public
services by redefining the functions of the NPO and limiting its funding to its
own income and to transform it into a self-reliant agency able to compete with
the private sector, is well within the prerogative of President Arroyo under her
continuing delegated legislative power to reorganize her own office. As pointed
out in the separate concurring opinion of our learned colleague, Associate
Justice Antonio T. Carpio, the objective behind Executive Order No. 378 is
wholly consistent with the state policy contained in Republic Act No. 9184 or
the Government Procurement Reform Act to encourage competitiveness by
extending equal opportunity to private contracting parties who are eligible and
qualified.
27
1avvphi1
To be very clear, this delegated legislative power to reorganize pertains only to
the Office of the President and the departments, offices and agencies of the
executive branch and does not include the Judiciary, the Legislature or the
constitutionally-created or mandated bodies. Moreover, it must be stressed that
the exercise by the President of the power to reorganize the executive
department must be in accordance with the Constitution, relevant laws and
prevailing jurisprudence.
In this regard, we are mindful of the previous pronouncement of this Court in
Dario v. Mison
28
that:
Reorganizations in this jurisdiction have been regarded as valid provided they
are pursued in good faith. As a general rule, a reorganization is carried out in
"good faith" if it is for the purpose of economy or to make bureaucracy more
efficient. In that event, no dismissal (in case of a dismissal) or separation actually
occurs because the position itself ceases to exist. And in that case, security of
tenure would not be a Chinese wall. Be that as it may, if the "abolition," which is
nothing else but a separation or removal, is done for political reasons or
purposely to defeat security of tenure, or otherwise not in good faith, no valid
"abolition" takes place and whatever "abolition" is done, is void ab initio. There
is an invalid "abolition" as where there is merely a change of nomenclature of
positions, or where claims of economy are belied by the existence of ample
funds. (Emphasis ours.)
Stated alternatively, the presidential power to reorganize agencies and offices in
the executive branch of government is subject to the condition that such
reorganization is carried out in good faith.
If the reorganization is done in good faith, the abolition of positions, which
results in loss of security of tenure of affected government employees, would be
valid. In Buklod ng Kawaning EIIB v. Zamora,
29
we even observed that there was
no such thing as an absolute right to hold office. Except those who hold
constitutional offices, which provide for special immunity as regards salary and
tenure, no one can be said to have any vested right to an office or salary.
30

This brings us to the second ground raised in the petition that Executive
Order No. 378, in allowing government agencies to secure their printing
requirements from the private sector and in limiting the budget of the NPO to
its income, will purportedly lead to the gradual abolition of the NPO and the
loss of security of tenure of its present employees. In other words, petitioners
avow that the reorganization of the NPO under Executive Order No. 378 is
tainted with bad faith. The basic evidentiary rule is that he who asserts a fact or
the affirmative of an issue has the burden of proving it.
31

A careful review of the records will show that petitioners utterly failed to
substantiate their claim. They failed to allege, much less prove, sufficient facts to
show that the limitation of the NPOs budget to its own income would indeed
lead to the abolition of the position, or removal from office, of any employee.
Neither did petitioners present any shred of proof of their assertion that the
changes in the functions of the NPO were for political considerations that had
nothing to do with improving the efficiency of, or encouraging operational
economy in, the said agency.
In sum, the Court finds that the petition failed to show any constitutional
infirmity or grave abuse of discretion amounting to lack or excess of jurisdiction
in President Arroyos issuance of Executive Order No. 378.
WHEREFORE, the petition is hereby DISMISSED and the prayer for a Temporary
Restraining Order and/or a Writ of Preliminary Injunction is hereby DENIED. No
costs.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
ANTONIO T. CARPIO
Associate Justice
RENATO C. CORONA
Associate Justice
CONCHITA CARPIO MORALES
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice
On official leave
ROBERTO A. ABAD
*

Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice
JOSE P. PEREZ
Associate Justice
JOSE C. MENDOZA
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
*
On official leave.
1
ABOLISHING THE GENERAL SERVICES ADMINISTRATION AND
TRANSFERRING ITS FUNCTIONS TO APPROPRIATE GOVERNMENT
AGENCIES.
2
328 Phil. 1187, 1204 (1996).
3
157 Phil. 551, 563-564 (1974).
4
Respondents Comment on the Manifestation of Desistance, rollo, p. 86.
5
Id. at 30-32.
6
Id. at 44.
7
444 Phil. 230, 257 (2003); citing 59 Am Jur 2d, 456 (1977).
8
12 Phil. 227, 241 (1908).
9
Rollo, p. 29.
10
Id. at 30-32.
11
DECLARING NATIONAL POLICY TO IMPLEMENT THE REFORMS
MANDATED BY THE PEOPLE, PROTECTING THEIR BASIC RIGHTS, ADOPTING
A PROVISIONAL CONSTITUTION, AND PROVIDING FOR AN ORDERLY
TRANSITION TO A GOVERNMENT UNDER A NEW CONSTITUTION.
12
413 Phil. 281 (2001).
13
Id. at 294-295.
14
Section 23, Chapter 8, Title II, Book III of the Administrative Code of 1987
provides:
Section 23. The Agencies under the Office of the President. - The agencies
under the Office of the President refer to those offices placed under the
chairmanship of the President, those under the supervision and control of the
President, those under the administrative supervision of the Office of the
President, those attached to it for policy and program coordination, and those
that are not placed by law or order creating them under any specific
department.
15
Subsequently, in order to harmonize Executive Order No. 378 with other
executive issuances and laws relating to the printing of government forms,
President Arroyo, through the Executive Secretary, issued Memorandum Circular
No. 180 (dated August 13, 2009) to clarify the printing responsibility of the
NPO. The said issuance provided that the NPO had exclusive printing
jurisdiction over standard and accountable forms with money value and
specialized accountable forms, which may be contracted out to the NPOs
accredited private security printers under the guidelines therein provided. It also
affirmed the NPOs exclusive jurisdiction over the printing of election forms and
public documents, such as the Official Gazette, General Appropriations Act,
Philippine Reports and development information materials of the Philippine
Information Agency. It is only with respect to other standard accountable forms
and other government printing jobs that private providers may be engaged in
accordance with prescribed guidelines and upon written waiver issued by the
NPO.
16
G.R. No. 112745, October 16, 1997, 280 SCRA 713.
17
Id. at 729-730.
18
Supra note 12.
19
Republic Act 8760, signed into law on February 16, 2000.
20
Buklod ng Kawaning EIIB v. Zamora, supra note 12 at 293-294.
21
455 Phil. 761 (2003).
22
Id. at 775-772.
23
G.R. No. 167324, July 17, 2007, 527 SCRA 746.
24
Id. at 766-770.
25
G.R. No. 166052, August 29, 2007, 531 SCRA 583.
26
Id. at 596.
27
It is, however, highly debatable whether Executive Order No. 378 is a mere
implementation of the Government Procurement Reform Act, as Justice Carpio
proposes, since there is nothing in the said statute that authorizes modification
of the functions or appropriations of an executive office or agency.
28
G.R. Nos. 81954, 81967, 82023, 83737, 85310, 85335 and 86241, August 8,
1989, 176 SCRA 84, 127.
29
Supra note 12.
30
Id.
31
Eureka Personnel & Management Services, Inc. v. Valencia, G.R. No. 159358,
July 15, 2009, citing Republic v. Orbecido III, G.R. No. 154380, October 5,
2005, 472 SCRA 114; Noceda v. Court of Appeals, 372 Phil. 383 (1999); Luxuria
Homes, Inc. v. Court of Appeals, 361 Phil. 989 (1999).

SEPARATE CONCURRING OPINION
CARPIO, J.:
I concur in the result that Executive Order No. 378 (EO 378) is a valid
Presidential issuance, but not because it implements Section 31, Chapter 10,
Book II of the Administrative Code of 1987
1
(Section 31) or that it is sanctioned
by case law anchored on Presidential Decree No. 1416 (PD 1416), but because
EO 378 merely implements Republic Act No. 9184 (RA 9184)
2
regulating
government procurement activities.
EO 378 Exceeds the Parameters of Section 31
Section 31, an executive legislation,
3
grants to the executive a narrow power to
reorganize ringed with limitations on two fronts: (1) the branch of the
government covered and (2) the scope of authority delegated:
Continuing Authority of the President to Reorganize his Office. The President,
subject to the policy in the Executive Office and in order to achieve simplicity,
economy and efficiency, shall have continuing authority to reorganize the
administrative structure of the Office of the President. For this purpose, he may
take any of the following actions:
(1) Restructure the internal organization of the Office of the President Proper,
including the immediate Offices, the Presidential Special Assistants/Advisers
System and the Common Staff Support System, by abolishing, consolidating or
merging units thereof or transferring functions from one unit to another;
(2) Transfer any function under the Office of the President to any other
Department or Agency as well as transfer functions to the Office of the
President from other Departments and Agencies; and
(3) Transfer any agency under the Office of the President to any other
department or agency as well as transfer agencies to the Office of the President
from other departments or agencies. (Emphasis supplied)
Section 31 limits Executive discretion to reorganize the Office of the President
and the enumerated ancillary offices along the following functional and
structural lines: (1) restructuring the internal organization of the Office of the
President Proper by abolishing, consolidating or merging units thereof or
transferring functions from one unit to another; (2) transferring any function
under the Office of the President to any other Department/Agency or vice
versa; or (3) transferring any agency under the Office of the President to any
other Department/Agency or vice versa. This listing is closed and admits of no
other category of reorganization.
Tested against these three narrow categories of reorganization, EO 378 fails to
pass muster. EO 378 effects two changes to the National Printing Office (NPO):
first, it reduces the NPOs exclusive printing function to cover election
paraphernalia only, allowing private printing establishments to bid for the right
to print government standard and accountable forms and second, it caps the
NPOs annual appropriation to its income. Although EO 378s narrowing of the
NPOs functions arguably falls under Section 31(1)s ambit authorizing abolition
of units, this power is limited to the Office of the President Proper, defined
under the 1987 Administrative Code as consisting of "the Private Office, the
Executive Office, the Common Staff Support System, and the President Special
Assistants/Advisers System x x x."
4
The NPO is not part of the Office of the
President Proper, being an agency attached to the Office of the President, a
bigger entity consisting "of the Office of the President Proper and the agencies
under it."
5
Thus, Section 31(1) is no basis to declare that the President has the
power to "abolish agencies under the Office of the President."
6
Section 31(1)
limits this power only to the Office of the President Proper.
Further, insofar as the "Office of the President" is concerned, the Presidents
reorganization powers are limited to transferring any function or any agency
from that office to any department or agency and vice versa. No amount of
etymological stretching can make reduction of function and capping of budget
fit under the narrow concept of "transferring any function or any agency."
Case Law Cited No Authority to Validate EO 378
The cases the Decision cites furnish no bases to validate EO 378. The leading
case in this area, Larin v. Executive Secretary
7
(reiterated in Buklod ng Kawaning
EIIB v. Hon. Sec. Zamora
8
and Tondo Medical Center Employees Association v.
Court of Appeals
9
) relied on Section 20, Chapter 7, Book II of the Administrative
Code of 1987 in relation to PD 1416:
Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292
which states:
"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." (italics ours)
This provision speaks of such other powers vested in the President under the
law. What law then which gives him the power to reorganize? It is Presidential
Decree No. 1772 which amended Presidential Decree No. 1416. These decrees
expressly grant the President of the Philippines the continuing authority to
reorganize the national government, which includes the power to group,
consolidate bureaus and agencies, to abolish offices, to transfer functions, to
create and classify functions, services and activities and to standardize salaries
and materials.
10
(Emphasis supplied)
Larin and its progeny cannot validate EO 378 because its statutory basis, PD
1416, is an undue delegation of legislative power.
It is an unquestioned attribute of the broad and undefined legislative power of
Congress to fashion Philippine bureaucracy by creating (and thus, abolishing)
public offices save for offices created by the Constitution.
11
This power,
including its ancillary to reorganize,
12
is exercised by the other branches only as
allowed by Congress under valid statutory delegation. Even then, the delegated
power only partakes of the original legislative power as the other branches can
only implement the legislatures will.
13
Thus, despite their equally broad and
undefined powers, neither the executive nor the judiciary inherently possesses
the power to reorganize its bureaucracy.
14

A simple scanning of the list of powers PD 1416 vests on the Executive shows
that far from being a legislative delegation to implement congressional will, PD
1416 surrenders to the Executive the core legislative power to re-mold
Philippine bureaucracy, with the ancillary privilege to control funding, thus:
1. The President of the Philippines shall have continuing authority to reorganize
the administrative structure of the National Government.
2. For this purpose, the President may, at his discretion, take the following
actions:
(a) Group, coordinate, consolidate or integrate departments, bureaus, offices,
agencies, instrumentalities and functions of the government;
(b) Abolish departments, offices, agencies or functions which may not be
necessary, or create those which are necessary, for the efficient conduct of
government functions services and activities;
(c) Transfer functions, appropriations, equipment, properties, records and
personnel from one department, bureau, office, agency or instrumentality to
another;
(d) Create, classify, combine, split, and abolish positions; and
(e) Standardize salaries, materials and equipment. (Emphasis supplied)
Presidential Decree No. 1772 (PD 1772), amending PD 1416, enlarged the
scope of these powers by extending the Presidents power to reorganize "to x x
x all agencies, entities, instrumentalities, and units of the National Government,
including all government-owned or controlled corporations, as well as the entire
range of the powers, functions, authorities, administrative relationships, and
related aspects pertaining to these agencies, entities, instrumentalities, and
units."
15
Further, PD 1772 clarified that the Presidents power to "create,
abolish, group, consolidate, x x x or integrate" offices relates to "entities,
agencies, instrumentalities, and units of the National Government."
16

The term "national government" has an established meaning in statutory and
case law. Under the statute governing Philippine bureaucracy, the
Administrative Code of 1987, "national government" refers to "the entire
machinery of the central government, as distinguished from the different forms
of local government."
17
Jurisprudence has interpreted this provision of the
Administrative Code to encompass "the three great departments: the
executive, the legislative, and the judicial."
18
By delegating to the Executive the
"continuing authority to reorganize the administrative structure of the National
Government" including the power to "create, abolish, group, consolidate, x x x
or integrate" the "entities, agencies, instrumentalities, and units of the National
Government," PD 1416, as amended, places under the Executive branch the
vast and undeniably legislative power to constitute the entire Philippine
Government in the guise of "reorganization."
Capping the unprecedented siphoning of legislative power to the Executive, PD
1416, as amended, authorizes the Executive to "transfer appropriations" and
"standardize salaries" in the national government. The authorization to "transfer
appropriations" is a complete repugnancy to the constitutional proscription that
"No law shall be passed authorizing any transfer of appropriations. x x x."
19
On
the other hand, the Constitution mandates that "The Congress shall provide for
the standardization of compensation of government officials and employees, x x
x."
20
Indeed, Congress, with the Executives acquiescence, has repeatedly
exercised this exclusive power to standardize public sector employees
compensation by enacting a law to that effect
21
and exempting classes of
employees from its coverage.
22

Thus, much like the invalidated Section 68 of the previous Revised
Administrative Code delegating to the President the legislative power to create
municipalities,
23
PD 1416, as amended, delegates to the President that
undefined legislative power to constitute the Philippine bureaucracy which the
sovereign people of this polity delegated to Congress only. This subsequent
delegation of the power to legislate offends the fundamental precept in our
scheme of government that delegated power cannot again be delegated.
24

The radical merger of legislative and executive powers PD 1416 sanctions
makes sense in a parliamentary system of merged executive and legislative
branches. Indeed, PD 1416, issued in 1979, three years after Amendment No. 6
vested legislative power to then President Marcos, was precisely meant to
operate within such system, as declared in PD 1416s last "Whereas" clause:
"WHEREAS, the transition towards the parliamentary form of government will
necessitate flexibility in the organization of the national government[.]" When
the Filipino people ratified the 1987 Constitution on 2 February 1987, restoring
the operation of the original tri-branch system of government, PD 1416s
paradigm of merged executive and legislative powers ceased to have relevance.
Although then President Aquino, by her revolutionary ascension to the
Presidency, held and exercised these two powers under the Provisional
Constitution,
25
her legislative powers ceased when the post-EDSA Congress
convened on 27 July 1987 following the 1987 Constitutions mandate that "The
incumbent President shall continue to exercise legislative powers until the first
Congress is convened."
26
Thus, even though the demands of modernity
27
and
the imperatives of checks and balances
28
may have blurred the demarcation
lines among the three branches, we remain a government of separated powers,
rooted in the conviction that division not unity of powers prevents tyranny.
29

PD 1416, as amended, with its blending of legislative and executive powers, is a
vestige of an autrocratic era, totally anachronistic to our present-day
constitutional democracy.
Making sweeping statements that the Presidents power to reorganize "pertains
only to the Office of the President and departments, offices, and agencies of the
executive branch and does not include the Judiciary, the Legislature or
constitutionally created or mandated bodies" and that "the exercise by the
President of the power to reorganize x x x must be in accordance with the
Constitution, relevant laws and jurisprudence"
30
will not erase PD 1416 and PD
1772 from our statute books. If this Court found it intolerable under our system
of government for the President to demand "obedience to all x x x decrees x x
x promulgated by me personally or upon my direction,"
31
the same hostility
should be directed against PD 1416s authorization for the President to
"reorganize x x x the National Government," "transfer x x x appropriations" and
"standardize salaries." These issuances all vest on the President unadulterated
legislative power.
Hence, PD 1416, being repugnant to the 1987 Constitution in several aspects,
can no longer be given effect. At the very least, the exercise of legislative
powers by the President under PD 1416 ceased upon the convening of the First
Congress, as expressly provided in Section 6, Article XVIII of the 1987
Constitution.
Similarly, Anak Mindanao Party-List Group v. The Executive Secretary
32
(finding
valid executive issuances transferring to a department
33
two offices under the
Office of the President) is not in point because that case involved a
reorganization falling within the ambit of Section 31(3) transferring offices from
the Office of the President to another department.
Nor is Canonizado v. Aguirre
34
authority for the proposition that the power of
the President to reorganize under Section 31 involves the "alteration of the
existing structure of government offices or units therein, including the lines of
control, authority and responsibility between them" or the "reduction of
personnel, consolidation of offices, or abolition thereof by reason of economy
or redundancy of functions."
35
Canonizado reviewed a legislative reorganization
(Republic Act No. 8851 reorganizing the Philippine National Police) thus Section
31 never figured in its analysis. Accordingly, the vast reach of Canonizados
definition of the power to reorganize
36
relates to Congress, which is, after all,
the original repository of such power, as incident to its broad and all-
encompassing power to legislate.
Doctrine of Presidential Control
Over the Executive Department No Basis
to Validate EO 378
The doctrine of presidential control over the executive department likewise
furnishes no basis to uphold the validity of EO 378. As distinguished from
supervision, the doctrine of control finds application in altering acts of the
Presidents subordinates. It does not sanction structural or functional changes
even within the executive department.
37

EO 378 Valid for Implementing RA 9184
RA 9184 mandates the conduct of competitive bidding in all the procurement
activities of the government including the acquisition of "items, supplies,
materials, and general support services x x x which may be needed in the
transaction of the public businesses or in the pursuit of any government x x x
activity"
38
save for limited transactions.
39
By opening governments procurement
of standard and accountable forms to competitive bidding (except for
documents crucial to the conduct of clean elections which has to be printed
solely by government), EO 378 merely implements RA 9184s principle of
promoting "competitiveness by extending equal opportunity to enable private
contracting parties who are eligible and qualified to participate in public
bidding."
40
Indeed, EO 378 is not so much a "reorganization" move involving
realignment of offices and personnel movement as an issuance to "ensure that
the government benefits from the best services available from the market at the
best price."
41
EO 378s capping of NPOs budget to its income is a logical by-
product of opening NPOs operations to the private sector with the entry of
market forces, there will expectedly be a decrease in its workload, lowering its
funding needs.
Accordingly, I vote to DISMISS the petition.
ANTONIO T. CARPIO
Associate Justice

Footnotes
1
Executive Order No. 292.
2
The Government Procurement Reform Act.
3
EO 292 was enacted by then President Aquino on 25 July 1987 in the exercise
of her legislative power under Section 1, Article II of the Provisional
Constitution.
4
Section 22, Chapter 8, Title II, Book III of the Administrative Code of 1987
provides:
Office of the President Proper. - (1) The Office of the President Proper shall
consist of the Private Office, the Executive Office, the Common Staff Support
System, and the Presidential Special Assistants/Advisers System;
(2) The Executive Office refers to the Offices of the Executive Secretary, Deputy
Executive Secretaries and Assistant Executive Secretaries;
(3) The Common Staff Support System embraces the offices or units under the
general categories of development and management, general government
administration and internal administration; and
(4) The President Special Assistants/Advisers System includes such special
assistants or advisers as may be needed by the President.
5
Section 21, Chapter 8, Title II, Book III of the Administrative Code of 1987
provides: "Organization. The Office of the President shall consist of the Office of
the President Proper and the agencies under it."
6
Decision, p. 11.
7
345 Phil. 962 (1997).
8
413 Phil. 281 (2001) (upholding the validity of executive issuances deactivating
the Economic Intelligence and Investigation Bureau, an agency under the Office
of the President).
9
G.R. No. 167324, 17 July 2007, 527 SCRA 746.
10
Supra note 7 at 730.
11
See Canonizado v. Aguirre, G.R. No. 133132, 25 January 2000, 323 SCRA
312; Buklod ng Kawaning EIIB v. Zamora, G.R. Nos. 142801-802, 10 July 2001,
360 SCRA 718.
12
We described this power, as exercised by Congress, as follows:
"Reorganization takes place when there is an alteration of the existing structure
of government offices or units therein, including the lines of control, authority
and responsibility between them. It involves a reduction of personnel,
consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions." (Canonizado v. Aguirre, G.R. No. 133132, 25 January
2000, 323 SCRA 312, 326; internal citations omitted).
13
The doctrine of non-delegation of legislative power admits of only two
exceptions under the Constitution, namely, the delegation to the local
governments (Section 3 and Section 20, Article X) and to the President on the
imposition of tariff rates, trade quotas, and shipping dues (VI, 28(2) and
adoption of measures during national emergency (Section 23(2), Article VI).
14
For the Executive, this authorization is found in Section 31, Chapter 10, Book
II of the Administrative Code of 1987. For the judiciary, Section 43 of Batas
Pambansa Blg. 129 (The Judiciary Reorganization Act of 1980) required the
Supreme Court to submit to the President the staffing pattern for courts
constituted under that law for issuance of relevant implementing rules. For the
reorganization of the Office of the Court Administrator, Section 7 of Presidential
Decree No. 828, as amended by Presidential Decree No. 842, delegated to the
Supreme Court the power to "create such offices, services, divisions and other
units in the Office of the Court Administrator, as may be necessary."
15
Last paragraph, Section 1, PD 1772.
16
Section 2, PD 1772 (emphasis supplied).
17
Section 2(2), Executive Order No. 292 (emphasis supplied). More specialized
statutes, such as Section 4 of Republic Act No. 6758 (Compensation and
Position Classification Act of 1989) substantially hews to the Administrative
Codes definition: "The term "government" refers to the Executive, the
Legislative and the Judicial Branches and the Constitutional Commissions and
shall include all, but shall not be limited to, departments, bureaus, offices,
boards, commissions, courts, tribunals, councils, authorities, administrations,
centers, institutes, state colleges and universities, local government units, and
the armed forces. x x x" (emphasis supplied).
18
Mactan Cebu International Airport Authority v. Marcos, G.R. No. 120082, 11
September 1996, 261 SCRA 667, 688-689, citing the following definition of
"government" in Bacani v. NACOCO, 100 Phil. 468, 471-472 (1956):
[W]e state that the term "Government" may be defined as "that institution or
aggregate of institutions by which an independent society makes and carries
out those rules of action which are necessary to enable men to live in a social
state, or which are imposed upon the people forming that society by those who
possess the power or authority of prescribing them" This institution, when
referring to the national government, has reference to what our Constitution has
established composed of three great departments, the legislative, executive,
and the judicial, through which the powers and functions of government are
exercised. (Internal citation omitted; emphasis supplied)
19
Article VI, Section 25(5), Constitution.
20
Section 5, Article IX-B, Constitution. The entire provision reads: "The
Congress shall provide for the standardization of compensation of government
officials and employees, including those in government-owned or controlled
corporations with original charters, taking into account the nature of the
responsibilities pertaining to, and the qualifications required for, their
positions."
21
Republic Act No. 6758 (Compensation and Position Classification Act of
1989).
22
E.g., Republic Act No. 7907 (1995) for Land Bank of the Philippines; Republic
Act No. 8282 (1997) for Social Security System; Republic Act No. 8289 (1997)
for Small Business Guarantee and Finance Corporation; Republic Act No. 8291
(1997) for Government Service Insurance System; Republic Act No. 8523 (1998)
for Development Bank of the Philippines; Republic Act No. 8763 (2000) for
Home Guaranty Corporation; and Republic Act No. 9302 (2004) for Philippine
Deposit Insurance Corporation (PDIC).
23
Struck down as unconstitutional in Pelaez v. Auditor General, No. L-23825, 24
December 1965, 15 SCRA 569.
24
A paradigmatic statement of the doctrine runs:
The power to make laws the legislative power is vested in a bicameral
Legislature by the Jones Law (sec. 12) and in a unicameral National Assembly by
the Constitution (Act. VI, sec. 1, Constitution of the Philippines). The Philippine
Legislature or the National Assembly may not escape its duties and
responsibilities by delegating that power to any other body or authority. Any
attempt to abdicate the power is unconstitutional and void, on the principle that
potestas delegata non delegare potest. This principle is said to have originated
with the glossators, was introduced into English law through a misreading of
Bracton, there developed as a principle of agency, was established by Lord
Coke in the English public law in decisions forbidding the delegation of judicial
power, and found its way into America as an enlightened principle of free
government. It has since become an accepted corollary of the principle of
separation of powers. x x x x (People v. Vera, 65 Phil. 56, 112 (1937); emphasis
supplied).
25
Section 1, Article II.
26
Section 6, Article XVIII. See also Association of Small Landowners in the
Philippines Inc. v. Secretary of Agrarian Reform, G.R. No. 78742, 14 July 1989,
175 SCRA 343.
27
The rise of the administrative state since the latter half of the last century saw
the blending of quasi-legislative and quasi-judicial powers in multifarious
executive offices, radically redefining the classical notion of separation of
powers. (see Irene R. Cortes, Philippine Administrative Law: Cases and Materials
6-11 [2nd ed., 1984])
28
Among the constitutionally permissible inter-branch encroachments are the
Presidents veto power, Congress power of legislative inquiry and the judiciarys
power of judicial review.
29
This is a core theory justifying the separation of powers, undergirded by
modern political thinking, which found its way into the writings of the framers of
the United States Constitution, the blueprint of the present Philippine
constitution.
30
Decision, p. 20.
31
Presidential Proclamation No. 1017 which was partially declared
unconstitutional in David v. Arroyo, G.R. No. 171396, 3 May 2006, 489 SCRA
160.
32
G.R. No. 166052, 29 August 2007, 531 SCRA 583.
33
Department of Agrarian Reform.
34
G.R. No. 133132, 25 January 2000, 323 SCRA 312.
35
Id. at 326.
36
Citing De Leon and De Leon, Jr., The Law On Public Officers And Election
Law (1994 ed.), 365 and Dario v. Mison, G.R. No. 81954, 8 August 1989, 176
SCRA 84 (reviewing the constitutionality of Executive Order No. 127,
reorganizing the then Ministry of Finance, issued by President Corazon C.
Aquino in the exercise of her legislative powers under the Provisional
Constitution).
37
This is apparent from the following canonical distinction of the two doctrines:
"In administrative law supervision means overseeing or the power or authority
of an officer to see that subordinate officers perform their duties. If the latter fail
or neglect to fulfill them the former may take such action or step as prescribed
by law to make them perform their duties. Control, on the other hand, means
the power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute
the judgment of the former for that of the latter." (Mondano v. Silvosa, 97 Phil.
143, 147-148 [1955]) (Emphasis supplied).
38
Section 4 in relation to Section 5(h).
39
Section 10, Article IV in relation to Article XVI.
40
Section 3(c).
41
EO 378, second "Whereas" clause.





















Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-30057 January 31, 1984
BRUNO O. APARRI, petitioner,
vs.
THE COURT OF APPEALS and LAND AUTHORITY, the latter in substitution
for REMEDIOS O. FORTICH, as Chairman, ANGELINO M. BANZON,
RAFAEL B. HILAO, VALERIANO PLANTILLA and SEVERO YAP, as members
of the Board of Directors of the defunct National Resettlement and
Rehabilitation Administration (NARRA), respondents.
Enrique D. Tayag for petitioner.
Magno B. Pablo and Cipriano A. Tan for respondent Land Authority.

MAKASIAR, J.:
This petition for certiorari seeks to review the decision of the then Court of
Appeals (now Intermediate Appellate Court under BP 129) dated September
24, 1968, affirming the decision of the then Court of First Instance (now
Regional Trial Court), the dispositive portion of which is as follows:
WHEREFORE, the judgment of the lower court insofar as it decrees the
dismissal of the present petition for mandamus is hereby affirmed, without
pronouncement as to costs (p. 50, rec.).
The facts of the case are as follows:
On January 15, 1960, private respondents (as members of the Board of
Directors of the defunct National Resettlement and Rehabilitation
Administration created under Republic Act No. 1160, approved June 18, 1954
NARRA) approved the following resolution:
RESOLUTION NO. 13 (Series of 1960)
RESOLVED, as it is hereby resolved, to appoint Mr. Bruno 0. Aparri, as
General Manager of the National Resettlement and Rehabilitation
Administration (NARRA) with all the rights, prerogatives and compensation
appurtenant thereto to take effect on January 16, 1960);
RESOLVED FURTHER, as it is hereby resolved, to inform the President of
the Philippines of the above appointment of Mr. Aparri (p. 2, rec.).
Pursuant thereto, private respondent Remedies O. Fortich, in her capacity as
Chairman of the NARRA Board, appointed petitioner Bruno O. Aparri as
reflected in the following letter:
Manila, January 22, 1960
Mr. Bruno O. Aparri c/o NARRA, Manila
SIR:
You are hereby appointed as GENERAL MANAGER in the National
Resettl ement and Rehabi l i tati on Admi ni strati on ( NARRA) wi th
compensation at the rate of TWELVE THOUSAND (P12,000.00) PESOS per
annum the appointment to take effect January 16,1960 . . . .
REINSTATEMENT ... (p. 2, rec.).
The power of the Board of Directors of the NARRA to appoint the general
manager is provided for in paragraph (2),Section 8, Republic Act No. 1160
(approved June 18, 1954), to wit:
Sec. 8. Powers and Duties of the Board of Directors. The Board of
Directors shall have the following powers and duties: ...
2) To appoint and fix the term of office of General Manager ..., subject to
the recommendation of the Office of Economic Coordination and the
approval of the President of the Philippines, .... The Board, by a majority
vote of all members, may, for cause, upon recommendation of the Office of
Economic Coordination and with the approval of the President of the
Philippines, suspend and/or remove the General Manager and/or the
Assistant General Manager (p. 46, rec., emphasis supplied).
On March 15, 1962, the same Board of Directors approved the following
resolution:
RESOLUTION NO. 24 (Series of 1962)
WHEREAS, the Chairman of the Board has transmitted to the Board of
Directors the desire of the Office of the President Malacanang, Manila, to
fix the term of office of the incumbent General Manager up to the close of
office hours on March 31, 1962, in accordance with the provision of Section
8, sub-section 2 of R.A. No. 1160;
NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, that the
Board of Directors hereby fix, as it is hereby fixed, the term of office of the
incumbent General Manager of the National Resettlement and
Rehabilitation Administration (NARRA) to March 31, 1962 (pp. 6-7, rec.,
emphasis supplied).
Petitioner filed a petition for mandamus with preliminary injunction with the
then Court of First Instance of Manila on March 29, 1962. The petition prayed to
annul the resolution of the NARRA Board dated March 15, 1962, to command
the Board to allow petitioner to continue in office as General Manager until he
vacates said office in accordance with law and to sentence the private
respondents jointly and severally to pay the petitioner actual damages in the
sum of P95,000.00, plus costs.
On August 8, 1963, when the case was still pending decision in the lower court,
Republic Act No. 3844, otherwise known as the Agricultural Land Reform Code,
took effect. The said law abolished the NARRA (Sec. 73, R.A. 3844) and
transferred its functions and powers to the Land Authority. On October 21,
1963, the then Court of First Instance of Manila rendered judgment, finding
"that this case has become academic by reason of the approval of the
Agricultural Land Reform Code (Republic Act No. 3844) and thereby dismissing
the instant petition without pronouncement as to costs" (p. 5, rec.).
On appeal to the then Court of Appeals, the appellate tribunal speaking
through then Mr. Justice Antonio C. Lucero, affirmed the decision of the lower
court. in dismissing the petition for mandamus. Pertinent provisions of the
decision are as follows:
xxx xxx xxx
In the light of the foregoing facts, it is evident that Bruno O. Aparri
accepted the position of General Manager without fixed term and his
appointment is, in essence, terminable at the pleasure of the appointing
power which, in this case, is the Board of Directors. Where, as in the case at
bar, the appointing officer, that is, the Board of Directors, had fixed the
term of office of the incumbent Manager to end on March 31, 1962, the
replacement of Bruno O. Aparri is not removal but by reason of the term of
his office which is one of the recognized modes of terminating official
relations. Considering that the term of office of the General Manager of the
NARRA is not fixed by law nor has it been fixed by the Board of Directors at
the time of his appointment although it had the power to do so, it is
obvious that the term of office of herein petitioner Bruno O. Aparri expired
on March 31, 1962 and his right to hold the said office was thereby
extinguished. In other words, Bruno O. Aparri cessation from office invokes
no removal but merely the expiration of the term of office which was within
the power of the Board of Directors to fix. Hence, Bruno O. Aparri
continues only for so long as the term of his office has not ended (Alba vs.
Hon. Jose N. Evangelists, 100 Phil. 683) [Decision of the Court of Appeals,
pp. 48-49, rec., emphasis supplied].
The motion for reconsideration by petitioner in the then Court of Appeals was
denied on January 10, 1969.
On January 20, 1969, the petitioner filed a petition for certiorari to review the
decision of the then Court of Appeals dated September 24, 1968 (pp. 1-41,
rec.). The same was initially denied for lack of merit in a resolution dated
January 27, 1969 (p. 55, rec.); but on motion for reconsideration filed on
February 11, 1969, the petition was given due course (p. 66, rec.).
The only legal issue sought to be reviewed is whether or not Board Resolution
No. 24 (series of 1962) was a removal or dismissal of petitioner without cause.
WE affirm. WE hold that the term of office of the petitioner expired on March
31, 1962.
A public office is the right, authority, and duty created and conferred by law, by
which for a given period, either fixed by law or enduring at the pleasure of the
creating power, an individual is invested with some portion of the sovereign
functions of the government, to be exercise by him for the benefit of the public
([Mechem Public Offices and Officers,] Sec. 1). The right to hold a public office
under our political system is therefore not a natural right. It exists, when it exists
at all only because and by virtue of some law expressly or impliedly creating and
conferring it (Mechem Ibid., Sec. 64). There is no such thing as a vested interest
or an estate in an office, or even an absolute right to hold office. Excepting
constitutional offices which provide for special immunity as regards salary and
tenure, no one can be said to have any vested right in an office or its salary (42
Am. Jur. 881).
The National Resettlement and Rehabilitation Administration (NARRA) was
created under Republic Act No. 1160 (approved June 18,1954), which provides
that:
Sec. 2. NATI ONAL RESETTLEMENT AND REHABI LI TATI ON
ADMINISTRATION ... there is hereby created a corporation to be known
as National Resettlement and Rehabilitation Administration hereafter
referred to as "NARRA" to perform under the supervision and control of
the President of the Philippines, through the Office of Economic
Coordinator all the duties and functions of the Bureau of Lands as provided
for in Commonwealth Act numbered Six Hundred and Ninety-one, as
amended, and such other duties as are hereinafter specified in this Act. It
shall be headed by a General Manager and an Assistant Manager who shall
be appointed as hereinafter provided (emphasis supplied).
Paragraph 2, Section 8 of Republic Act 1160 expressly gives to the Board of
Directors of the NARRA the power "to appoint and fix the term of office of the
general manager ... subject to the recommendation of Economic Coordination
and the approval of the President of the Philippines" (emphasis supplied).
By "appointment" is meant the act of designation by the executive officer,
board or body, to whom that power has been delegated, of the individual who
is to exercise the functions of a given office (Mechem op. cit., Sec. 102). When
the power of appointment is absolute, and the appointee has been determined
upon, no further consent or approval is necessary, and the formal evidence of
the appointment, the commission, may issue at once. Where, however, the
assent or confirmationof some other officer or body is required, the Commission
can issue or the appointment is complete only when such assent or condition is
obtained (People vs. Bissell, 49 Cal. 407). To constitute an "appointment" to
office, there must be some open, unequivocal act of appointment on the part of
the appointing authority empowered to make it, and it may be said that an
appointment to office is made and is complete when the last act required of the
appointing authority has been performed (Molnar vs. City of Aurora, 348 N.E.
2d 262, 38 III App. 3d 580). In either case, the appointment becomes complete
when the last act required of the appointing power is performed (State vs.
Barbour, 53 Conn. 76, 55 Am. Rep. 65).
The petitioner was appointed as general manager pursuant to Resolution No.
13 (series of 1960 approved on January 15, 1960) of the Board of Directors.
A careful perusal of the resolution points out the fact that the appointment is by
itself incomplete because of the lack of approval of the President of the
Philippines to such appointment. Thus, We note that Resolution No. 13 states:
xxx xxx xxx
... RESOLVED FURTHER, as it is hereby resolved, to inform the President of
the Philippines of the above appointment of Mr. Aparri (p. 2, rec.).
Presumably, the Board of Directors of the NARRA expected that such
appointment be given approval by the then President. Lacking such approval by
the President as required by the law (par. 2, Sec. 8 of R.A. 1160), the
appointment of petitioner was not complete. The petitioner can, at best, be
classified as a de facto officer because he assumed office "under color of a
known appointment or election, void because the officer was not eligible or
because there was a want of power in the electing body, or by reasons of some
defect or irregularity in its exercise, such ineligibility, want of power, or defect
being unknown to the public" (State vs. Carroll, 38 Conn. 449, 9Am. Rep. 409).
However, such appointment was made complete upon approval of Resolution
No. 24 (series of 1962-approved March 15, 1962) wherein the President
submitted to the Board his "desire" to fix the term of office of the petitioner up
to the close of office hours on March 31, 1962. The questioned resolution
corrected whatever requisite lacking in the earlier Resolution No. 13 of the
respondent Board. Resolution No. 24, approved by the respondent Board and
pursuant to "the desire of the President" legally fixed the term of office of
petitioner as mandated by paragraph 2, Section 8 of Republic Act 1160.
The word "term" in a legal sense means a fixed and definite period of time
which the law describes that an officer may hold an office (Sueppel vs. City
Council of Iowa City, 136 N.W. 2D 523, quoting 67 CJS OFFICERS, secs. 42,
54[1]). According to Mochem, the term of office is the period during which an
office may be held. Upon the expiration of the officer's term, unless he is
authorized by law to hold over, his rights, duties and authority as a pubic officer
must ipso facto cease (Mechem, op. cit., Secs. 396-397). In the law on Public
Officers, the most natural and frequent method by which a public officer ceases
to be such is by the expiration of the term for which he was elected or
appointed. The question of when this event has occurred depends upon a
number of considerations, the most prominent of which, perhaps, are whether
he was originally elected or appointed for a definite term or for a term
dependent upon some act or event ... (Mechem op. cit., Sec. 384).
It is necessary in each case to interpret the word "term" with the purview of
statutes so as to effectuate the statutory scheme pertaining to the office under
examination (Barber vs. Blue, 417 P.2D 401, 51 Cal. Rptr. 865, 65 C.2d N5). In
the case at bar, the term of office is not fixed by law. However, the power to fix
the term is vested in the Board of Directors subject to the recommendation of
the Office of Economic Coordination and the approval of the President of the
Philippines. Resolution No. 24 (series of 1962) speaks of no removal but an
expiration of the term of office of the petitioner. The statute is undeniably clear.
It is the rule in statutory construction that if the words and phrase of a statute
are not obscure or ambiguous, its meaning and the intention of the legislature
must be determined from the language employed, and, where there is no
ambiguity in the words, there is no room for construction (Black on
Interpretation of Laws, Sec. 51). The courts may not speculate as to the
probable intent of the legislature apart from the words (Hondoras vs. Soto, 8
Am. St., Rep. 744). The reason for the rule is that the legislature must be
presumed to know the meaning of words, to have used words advisedly and to
have expressed its intent by the use of such words as are found in the statute
(50 Am. Jur. p. 212).
Removal entails the ouster of an incumbent before the expiration of his term
(Manalang vs. Quitoriano, 50 O.G. 2515). The petitioner in this case was not
removed before the expiration of his term. Rather, his right to hold the office
ceased by the expiration on March 31, 1962 of his term to hold such office.
WHEREFORE, THE DECISION APPEALED FROM IS HEREBY AFFIRMED.
WITHOUT COSTS.
SO ORDERED.
Concepcion, Jr., Guerrero, Abad Santos, De Castro and Escolin, JJ., concur.
Aquino, J., concur in the result.




















































Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 92008 July 30, 1990
RAMON P. BINAMIRA, petitioner,
vs.
PETER D. GARRUCHO, JR., respondent.
Ledesma, Saludo & Associates for petitioner.

CRUZ, J.:
In this petition for quo warranto, Ramon P. Binamira seeks reinstatement to the
office of General Manager of the Philippine Tourism Authority from which he
claims to have been removed without just cause in violation of his security of
tenure.
The petitioner bases his claim on the following communication addressed to
him by the Minister of Tourism on April 7, 1986:
MEMORANDUM TO: MR. RAMON P. BINAMIRA
You are hereby designated General Manager of the Philippine Tourism
Authority, effective immediately.
By virtue hereof, you may qualify and enter upon the performance of the
duties of the office.
(Sgd.) JOSE ANTONIO GONZALES Minister of Tourism and Chairman,
P.T.A. Board
Pursuant thereto, the petitioner assumed office on the same date.
On April 10, 1986, Minister Gonzales sought approval from President Aquino of
the composition of the Board of Directors of the PTA, which included Binamira
as Vice-Chairman in his capacity as General Manager. This approval was given
by the President on the same date.
1

Binamira claims that since assuming office, he had discharged the duties of PTA
General Manager and Vice-Chairman of its Board of Directors and had been
acknowledged as such by various government offices, including the Office of
the President.
He complains, though, that on January 2, 1990, his resignation was demanded
by respondent Garrucho as the new Secretary of Tourism. Binamira's demurrer
led to an unpleasant exchange that led to his filing of a complaint against the
Secretary with the Commission on Human Rights. But that is another matter that
does not concern us here.
What does is that on January 4, 1990, President Aquino sent respondent
Garrucho the following memorandum,
2
copy furnished Binamira:
4 January 1990
MEMORANDUM TO: Hon. Peter D. Garrucho, Jr.. Secretary of Tourism
It appearing from the records you have submitted to this Office that the
present General Manager of the Philippine Tourism Authority was
designated not by the President, as required by P.D. No. 564, as amended,
but only by the Secretary of Tourism, such designation is invalid.
Accordingly, you are hereby designated concurrently as General Manager,
effective immediately, until I can appoint a person to serve in the said office
in a permanent capacity.
Please be guided accordingly.
(Sgd.) CORAZON C. AQUINO
cc: Mr. Ramon P. Binamira Philippine Tourism Authority Manila
Garrucho having taken over as General Manager of the PTA in accordance with
this memorandum, the petitioner filed this action against him to question his
title. Subsequently, while his original petition was pending, Binamira filed a
supplemental petition alleging that on April 6, 1990, the President of the
Philippines appointed Jose A. Capistrano as General Manager of the Philippine
Tourism Authority. Capistrano was impleaded as additional respondent.
The issue presented in this case is starkly simple.
Section 23-A of P.D. 564, which created the Philippine Tourism Authority,
provides as follows:
SECTION 23-A. General Manager-Appointment and Tenure. The
General Manager shall be appointed by the President of the Philippines
and shall serve for a term of six (6) years unless sooner removed for cause;
Provided, That upon the expiration of his term, he shall serve as such until
his successor shall have been appointed and qualified. (As amended by
P.D. 1400)
It is not disputed that the petitioner was not appointed by the President of the
Philippines but only designated by the Minister of Tourism. There is a clear
distinction between appointment and designation that the petitioner has failed
to consider.
Appointment may be defined as the selection, by the authority vested with the
power, of an individual who is to exercise the functions of a given office.
3
When
completed, usually with its confirmation, the appointment results in security of
tenure for the person chosen unless he is replaceable at pleasure because of the
nature of his office. Designation, on the other hand, connotes merely the
imposition by law of additional duties on an incumbent official,
4
as where, in
the case before us, the Secretary of Tourism is designated Chairman of the
Board of Directors of the Philippine Tourism Authority, or where, under the
Constitution, three Justices of the Supreme Court are designated by the Chief
Justice to sit in the Electoral Tribunal of the Senate or the House of
Representatives.
5
It is said that appointment is essentially executive while
designation is legislative in nature.
Designation may also be loosely defined as an appointment because it likewise
involves the naming of a particular person to a specified public office. That is
the common understanding of the term. However, where the person is merely
designated and not appointed, the implication is that he shall hold the office
only in a temporary capacity and may be replaced at will by the appointing
authority. In this sense, the designation is considered only an acting or
temporary appointment, which does not confer security of tenure on the person
named.
Even if so understood, that is, as an appointment, the designation of the
petitioner cannot sustain his claim that he has been illegally removed. The
reason is that the decree clearly provides that the appointment of the General
Manager of the Philippine Tourism Authority shall be made by the President of
the Philippines, not by any other officer. Appointment involves the exercise of
discretion, which because of its nature cannot be delegated. Legally speaking, it
was not possible for Minister Gonzales to assume the exercise of that discretion
as an alter ego of the President. The appointment (or designation) of the
petitioner was not a merely mechanical or ministerial act that could be validly
performed by a subordinate even if he happened as in this case to be a
member of the Cabinet.
An officer to whom a discretion is entrusted cannot delegate it to another,
the presumption being that he was chosen because he was deemed fit and
competent to exercise that judgment and discretion, and unless the power
to substitute another in his place has been given to him, he cannot
delegate his duties to another.
6

In those cases in which the proper execution of the office requires, on the
part of the officer, the exercise of judgment or discretion, the presumption
is that he was chosen because he was deemed fit and competent to
exercise that judgment and discretion, and, unless power to substitute
another in his place has been given to him, he cannot delegate his duties
to another.
7

Indeed, even on the assumption that the power conferred on the President
could be validly exercised by the Secretary, we still cannot accept that the act of
the latter, as an extension or "projection" of the personality of the President,
made irreversible the petitioner's title to the position in question. The
petitioner's conclusion that Minister Gonzales's act was in effect the act of
President Aquino is based only on half the doctrine he vigorously invokes.
Justice Laurel stated that doctrine clearly in the landmark case of Villena v.
Secretary of the Interior,
8
where he described the relationship of the President
of the Philippines and the members of the Cabinet as follows:
... all executive and administrative organizations are adjuncts of the
Executive Department, the heads of the various executive departments are
assistants and agents of the Chief Executive, and, except in cases where the
Chief Executive is required by the Constitution or the law to act in person
or the exigencies of the situation demand that he act personally, the
multifarious executive and administrative functions of the Chief Executive
are performed by and through the executive departments, and the acts of
the secretaries of such departments, performed and promulgated in the
regular course of business, are, unless disapproved or reprobated by the
Chief Executive, presumptively the acts of the Chief Executive.
The doctrine presumes the acts of the Department Head to be the acts of the
President of the Philippines when "performed and promulgated in the regular
course of business," which was true of the designation made by Minister
Gonzales in favor of the petitioner. But it also adds that such acts shall be
considered valid only if not 'disapproved or reprobated by the Chief Executive,"
as also happened in the case at bar.
The argument that the designation made by Minister Gonzales was approved
by President Aquino through her approval of the composition of the Board of
Directors of the PTA is not persuasive. It must be remembered that Binamira
was included therein as Vice- Chairman only because of his designation as PTA
General Manager by Minister Gonzales. Such designation being merely
provisional, it could be recalled at will, as in fact it was recalled by the President
herself, through the memorandum she addressed to Secretary Garrucho on
January 4, 1990.
With these rulings, the petitioner's claim of security of tenure must perforce fall
to the ground. His designation being an unlawful encroachment on a
presidential prerogative, he did not acquire valid title thereunder to the position
in question. Even if it be assumed that it could be and was authorized, the
designation signified merely a temporary or acting appointment that could be
legally withdrawn at pleasure, as in fact it was (albeit for a different reason).itc-
asl In either case, the petitioner's claim of security of tenure must be rejected.
The Court sympathizes with the petitioner, who apparently believed in good
faith that he was being extended a permanent appointment by the Minister of
Tourism. After all, Minister Gonzales had the ostensible authority to do so at the
time the designation was made. This belief seemed strengthened when
President Aquino later approved the composition of the PTA Board of Directors
where the petitioner was designated Vice-Chairman because of his position as
General Manager of the PTA. However, such circumstances fall short of the
categorical appointment required to be made by the President herself, and not
the Minister of Tourism, under Sec. 23 of P.D. No. 564. We must rule therefore
that the petitioner never acquired valid title to the disputed position and so has
no right to be reinstated as General Manager of the Philippine Tourism
Authority.
WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is
so ordered.
Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla,
Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.
Fernan, C.J., took no part.

Footnotes
1 Annex C, Rollo, p, 28.
2 Annex 1, lbid., p. 62.
3 Cruz, Phil. Political Law, 1989 ed., p. 178; Gonzales, Neptali A., Administrative
Law, Law on Public Officers and Election Law, 1961 ed., p. 146.
4 Ibid., Gonzales, p, 153.
5 Sec. 14, P.D. 564, Sec. 17, Article VI, 1987 Constitution.
6 State v. Patterson, 34 N. 567; 46 Corpus Juris, 1033; Mechem, Law of Public
Officers, p. 567.
7 State v. Patterson, 34 N. 163.
8 67 Phil. 451.



























Republic of the Philippines
SUPREME COURT
Manila
EN BANC
CAPT. ERNESTO S. CABALLERO, G.R. No. 174312
Petitioner,
Present:
- versus - PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
PHILIPPINE COAST GUARD CARPIO,
EFFICIENCY AND SEPARATION AUSTRIA-MARTINEZ,
BOARD (PCG-ESB), COMM. CORONA,
ELPIDIO B. PADAMA, CAPT. CARPIO MORALES,
ALEJANDRO N. FLORA, CAPT. AZCUNA,
ANTONIO LALISAN, CAPT. TINGA,
CESAR A. SARILE, CDR. CHICO-NAZARIO,
EDUARDO DUMLAO, CDR. LUIS VELASCO, JR.,
TUASON, JR., and LT. LAZARO NACHURA,*
ERNESTO C. VALDEZ, JR., in REYES,
their capacity as members of the LEONARDO-DE CASTRO, and
PCG-ESB, PHILIPPINE COAST BRION, JJ.
GUARD (PCG), DEPARTMENT
OF TRANSPORTATION AND
COMMUNICATIONS (DOTC) Promulgated:
and JENNIFER G. LIWANAG,
Respondents. September 22, 2008
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
D E C I S I O N
REYES, R.T., J.:
BROUGHT to fore is the administrative disciplinary system of the Philippine
Coast Guard (PCG) for erring members. We trace the transition of the PCG from
a component of the Armed Forces of the Philippines (AFP) to an adjunct of the
Department of Transportation and Communications (DOTC). We also set
straight questions on administrative disciplinary procedures for uniformed
personnel of the PCG.
Before the Court is a petition for review on certiorari of the Decision
1
of the
Court of Appeals (CA) in CA-G.R. SP No. 92951. The CA reversed the
judgment
2
of the Regional Trial Court (RTC), Branch 37, Manila in Civil Case No.
03-107563 granting the petition for certiorari and prohibition lodged before it
by PCG Captain Ernesto S. Caballero.
The Facts
In August 2002, petitioner Captain Ernesto S. Caballero, Commander of the
Internal Affairs and Service Headquarters Group of the PCG, became the
subject of a sexual harassment complaint filed by Dr. Jennifer Liwanag. Dr.
Liwanag is a dentist and a civilian employee of the PCG assigned at the dental
detachment of the PCG Headquarters located in Port Area, Manila. In her
affidavit-complaint, Dr. Liwanag alleged:
3. On or about February, 2002, at around 2 oclock in the afternoon, Capt.
Caballero entered the dental detachment of the Philippine Coast Guard to
obtain a treatment with Dr. Donna B. Dinglasan, a dentist and also a civilian
employee of the Philippine Coast Guard;
4. While he was in the receiving area waiting for Dr. Dinglasan, he was talking to
me and other personnel of such clinic/detachment;
5. As I was sitting at the bench listening to him, he walked towards me and, he
suddenly touched my thighs. I was shocked and was not able to react with his
advancement;
6. He sat beside and very close to me on my right side and put his left hand at
the side of my leg, touching and rubbing it in a back and forth motion. I was
surprised that I immediately stood up and walk (sic) away from him;
7. I went directly to the treatment room and talked about the incident to Lt.
Rodolfo S. Ingel, Jr., but he just told me to forget about it and said, "Hayaan mo
na, matanda na yon";
8. At around three oclock in the afternoon, that same day, on my way to my
locker room, which is located at the far end of the hallway to get something, I
chanced upon Capt. Caballero who came from the toilet which is also located
near the locker room;
9. He noticed me. Since the locker room is open, he entered such room and
said, "Patingin naman ng locker mo." He closed the door and suddenly
embraced and pulled me towards him. He kissed me on the cheek, then he
forcefully moved his lips towards my lips;
10. I right away pushed him and drove him back and resisted his advances.
Then, he left me;
11. I was stunned, shocked and trembling;
12. I really felt insulted, disgusted, humiliated and sickened of what Captain
Caballero did to me; afterwards I went to Lt. Ingel crying. I told him what
transpired in the locker room;
13. I can hardly sleep for so many nights after the incident;
14. Since May 2002, there were already bad rumors going on at the
headquarters, which put me on the (sic) bad light and the center of the
controversy and mockery;
15. I am executing this affidavit-complaint to attest to the truth of the foregoing
facts for the purpose of instituting formal criminal and administrative charges
against CAPTAIN ERNESTO S. CABALLERO PCG (CSG) with postal address at
Philippine Coast Guard Headquarters Support Group, 139 25th Street, Port
Area, Manila for the acts described above.
3

Liwanags complaint was eventually referred to the Office of the Coast Guard
Judge Advocate (OCGJA). However, despite the issuance of a subpoena
directing him to appear before the investigating officers and submit his counter-
affidavit and any evidence on his behalf, petitioner failed to appear. Instead,
petitioner questioned the proceedings, claiming that the OCGJA was not the
proper office to conduct the investigation. Despite his protest, the investigation
proceeded in due course, based mainly on Dr. Liwanags evidence.
The investigating officers, Lt. Fedelyn A. Santos and Ens. Mitzie S. Silva,
recommended that petitioner be tried before the Philippine Coast Guard
Efficiency and Separation Board (PCG-ESB) for misconduct on the ground of
sexual harassment.
4
Acting Coast Guard Advocate Lt. Lazaro Ernesto C. Valdez,
Jr. endorsed the investigation report to PCG Commandant Reuben Lista. Lt.
Valdez recommended that petitioner be tried before the PCG-ESB, despite the
pendency of a criminal complaint against petitioner for acts of lasciviousness
before the Department of Justice. On April 11, 2003, PCG Commandant Lista
approved the recommendation. Petitioners administrative case was then
referred to the PCG-ESB.
In April 2003,
5
the PCG-ESB submitted its report with the following
observations, among others:
3. Capt. Ernesto S. Caballero was holding a very sensitive position and a
member of the PCG Promotions Board B when the incident happened. His acts
constitutes misconduct as he abused his authority and moral ascendancy over a
female Civilian Employee who has been working in the PCG organization for the
last four (4) years and the wife of a PCG Junior Officer whose promotion falls
under the jurisdiction of the said Board.
4. Pursuant to DOTC Department Order No. 2000-61 and Memorandum
Circular No. 2000-64, this case is submitted to this Board to determine the
respondent Officers fitness and suitability to remain in the service.
6

On August 14, 2003, petitioner filed before the RTC in Manila a petition for
certiorari and prohibition with an application for a temporary restraining order
(TRO) against respondents PCG-ESB, its members and Dr. Liwanag. Petitioner
sought to nullify and set aside the orders
7
issued by the PCG-ESB in relation to
ESB Case No. 003-03, entitled "Re: Capt. Ernesto S. Caballero," for
misconduct. He also sought the nullification of DOTC Department Order (DO)
Nos. 2000-61
8
and 2002-76
9
as well as Memorandum Circular No. 2000-64.
10

The DOs were the basis for the constitution of the PCG-ESB. In essence,
petitioner argued that the PCG-ESB acted without or in excess of jurisdiction in
taking cognizance of the administrative complaint for sexual harassment filed by
Dr. Liwanag.
RTC Judgment

On September 9, 2003, the RTC issued an Order granting petitioners
application for a writ of preliminary injunction. On August 2, 2005, a
Decision
11
was rendered in favor of petitioner, with the following fallo:
WHEREFORE, premises considered, the petition for Certiorari and
Prohibition is GRANTED. The creation of ESB and its procedure are hereby
declared IMPROPER and IRREGULAR and the proceeding had thereon
against petitioner is declared NULL and VOID as such Board has no
jurisdiction over the complaint of Dra. Jennifer G. Liwanag.
The preliminary injunction is hereby made PERMANENT, and the
respondent board and all its members as well as private respondent Dra.
Jennifer G. Liwanag are hereby directed to cease and desist from
continuing the questioned proceedings.
12

Following are pertinent segments of discussion by the RTC:
The primordial issues to be resolved in this case are as follows:
1. Whether or not the Court has jurisdiction over the instant petition;
2. Whether or not the petitioners are guilty of estoppel;
3. Whether or not the validity of DOTC Department Order Nos. 2000-61
and 2002-76 and Memo Circular No. 2000-64 was seasonably raised to this
Court; and
4. Whether respondent board has committed grave abuse of discretion
amounting to lack or in excess of jurisdiction.
The rst issue has been squarely passed upon by this Court in its order
dated September 9, 2003. To reiterate, the jurisdiction of this Court over
the subject case springs from Section 4 Rule 65 of the Revised Rules of
Court on Civil Procedure which unequivocally provides that petition shall
be led in the Regional Trial Court exercising jurisdiction over the
territorial area if it relates to the acts or omissions of a board, among
others.
What is involved in this case is a board exercising administrative discipline
over the PCG ofcers created by the DOTC. While it is true that petitioner
alleged that ESB is a quasi-judicial body exercising quasi-judicial function,
such allegation is not sufcient to confer or loss jurisdiction. The crucial
matter is the real import of such board to determine which court has
jurisdiction. This is so because the legal precept is that jurisdiction is
conferred by law and cannot be acquired by mere acquiescence of the
parties. Respondent board not being co-equal body of the Regional Trial
Court, the instant petition is validly led to this Court.
Anent the second issue, the Supreme Court has frequently declared a long
standing rule that jurisdiction over the subject matter is conferred only by
the Constitution or law. It cannot be xed by the will of the parties; it
cannot be acquired through waiver, enlarged or diminished by any act or
omission of the parties (Mun. of Sogod v. Rosal, G.R. No. L-38204, Sept.
24, 1991, 201 SCRA 632). Thus, the fact that petitioner had once sat as
member of ESB, by itself, could not prevent him from questioning the
jurisdiction of respondent board.
x x x x
Department Order No. 2000-61, creating the PCG-ESB, was issued on
November 6, 2000 by the DOTC pursuant to the Executive Order No. 477,
series of 1998 promulgated by then President Fidel V. Ramos. It is
undisputed, however, that with the advent of said EO 477, the PCG has
ceased to exist as a major unit of the Philippine Navy and they were, as a
consequence, separated from the command of the Armed Forces of the
Philippines (AFP). Not being part of Phil. Navy or AFP, PCG loses its
military character and civilianized in the process.
However, subsequently, the DOTC issued the questioned circular,
Memorandum Circular No. 2000-64, which outlined the rules and
regulations on the discharge or separation by administrative action of all
PCG ofcers. This circular was made and adopted pursuant to Executive
Order No. 337, series of 1998.
x x x x
Thereafter, on December 9, 2002, the DOTC issued Department Order No.
2002-76 regarding re-composition of PCG-ESB pursuant to Department
Order No 2000-61, which created the PCG-ESB.
x x x x
As borne out by the records, it is no less than the General Headquarters of
the AFP, through the Deputy Chief of Staff of Personnel (J-1) who
categorically stated and conrmed that PCG has ceased to be a major unit
of the Philippine Navy, AFP.
x x x x
Moreover, in the cited case of ELPIDIO SORIANO v. REUBEN S. LISTA, et
al., G.R. No. 153881, March 24, 2003, the Supreme Court has made an
express pronouncement that the PCG is under the DOTC and no longer
part of the Philippine Navy or the Armed Forces of the Philippines. And
while public respondents may argue that such ruling refers to the
promotion of PCG Ofcers, this court could not see any reason why such
pronouncement could not be applied on the appropriateness of continuous
adaptation of military system in the PCG notwithstanding the irreversible
fact that it is no longer part of the military establishment.
x x x x
This Court is not saying that the DOTC cannot issue a Department Order or
Circular for the discipline of PCG ofcers. The DOTC has all the rights to do
so being tasked of the administrative supervision over PCG. But as
manifested by private respondents counsel on their comment, it is the Civil
Service Administrative Disciplinary Rules on Sexual Harassment that should
govern because DOTC is a civilian component of government such that the
DOTC Secretary should create the Committee on Decorum and
Investigation (CODI) of the PCG, which should handle all cases of sexual
harassment pursuant to CSC Resolution No. 01-0940.
This Court does not agree with public respondents view that PCG-ESB
could proceed independently of another PCG Administrative proceeding.
As there is only one act complained of, there must be only one
administrative proceeding in the PCG against petitioner, which regrettably,
ESB, a military type proceeding is not appropriate.
13

Public respondents moved for reconsideration.
14
The motion was, however,
denied in an Order
15
dated October 28, 2005.
Representing public respondents, the Ofce of the Solicitor General (OSG)
appealed to the CA, submitting the following issues:
(I) Does the trial court have jurisdiction to pass upon PCG-ESB orders dated
July 10, 2003 and July 31, 2003 and to enjoin the administrative
proceedings being conducted by the PCG-ESB which, according to Capt.
Caballeros judicial admission, is a quasi-judicial body exercising quasi-
judicial functions?;
(II) Was the petition below questioning the validity of DOTC Department
Orders Nos. 2000-61 and 2002-76, as well as Memorandum Circular No.
2000-64 led seasonably?;
(III) Are DOTC Department Order No. 2000-61, which created the PCG-
ESB, and DOTC Department Order No. 2002-76, which recomposed the
PCG-ESB lawful?;
(IV) Is DOTC Memorandum Circular No. 2000-64, which prescribes the rules
and regulations for the discharge or separation by administrative action of
PCG uniformed personnel lawful?; and,
(V) Does the PCG-ESB have jurisdiction to conduct administrative
proceedings against Capt. Caballero?
16

CA Disposition
On June 19, 2006, the CA gave judgment in favor of public respondents,
disposing as follows:
WHEREFORE, premises considered, the present appeal is hereby
GRANTED and the appealed Decision dated August 2, 2005 of the
Regional Trial Court of Manila, Branch 37 in Civil Case No. 03-107563 is
hereby REVERSED and SET ASIDE. A new judgment is hereby entered
DISMISSING the petition for certiorari and prohibition for lack of merit.
No pronouncement as to costs.
SO ORDERED.
17

Issues
His motion for reconsideration having been denied, petitioner has resorted
to the present recourse under Rule 45, raising twin issues:
I. WHETHER THE HONORABLE COURT OF APPEALS RULED IN
ACCORDANCE WITH THE PREVAILING LAWS AND JURISPRUDENCE,
PARTICULARLY THE RULING OF THIS COURT IN THE CASE OF SORIANO
III VS. LISTA, (399 SCRA 437), WHEN IT HELD THAT UNIFORMED
PERSONNEL OF THE PHILIPPINE COAST GUARD (PCG) ARE STILL
COVERED BY THE MILITARY LAW ON ADMINISTRATIVE DISCIPLINE,
THEREBY VESTING JURISDICTION TO PCG-ESB.
II. WHETHER THE MANIFEST BIAS OF THE MEMBERS OF THE PCG-ESB
AGAINST THE PETITIONER HAS OUSTED THEM OF ITS JURISDICTION TO
TRY AND DECIDE THE CASE OF THE PETITIONER.
18
(Underscoring
supplied)
Our Ruling

Before discussing at length the issues hoisted by petitioner, it would be
instructive to look into the background relating to the establishment of the
PCG.
The PCG was established by virtue of Republic Act (RA) No. 5173.
19
This
Republic Act institutionalized the PCG as a major unit of the Philippine
Navy. The relevant provisions of the said law read:
SECTION 1. Coast Guard Objectives. 17 There is hereby created in the
Philippine Navy a major unit to be known as Philippine Coast Guard which
shall have the following general objectives:
x x x x
SECTION 4. Organization; Administration. 17 The Philippine Coast Guard
shall be headed by a Commandant who shall be a Flag Ofcer. Subject to
the approval of the Secretary of National Defense, the Flag Ofcer-in-
Command, Philippine Navy, shall organize the Philippine Coast Guard into
operational units of subordinate commands and equip the same as may be
necessary for effective exercise of the functions and duties vested upon it
by law, and shall promulgate rules and regulations necessary for its
administration. The Philippine Coast Guard shall be administered and
maintained as a separate unit of the Philippine Navy, and it shall be
specially trained and equipped for the effective discharge of police duties
at sea.
20
(Underscoring supplied)
On March 30, 1998, President Fidel V. Ramos issued Executive Order (EO)
No. 475
21
which transferred the PCG from the Department of National
Defense (DND) to the Ofce of the President. The transfer was made
pursuant to the Presidents authority under Section 31, Chapter 10, Title III,
Book III of EO No. 292 (Administrative Code of 1987) to reorganize the
Ofce of the President through the transfer of any agency or function to
the Ofce of the President. EO No. 475 contains a third "whereas" clause,
22
which states that the Philippine Coast Guard remains a subordinate unit
of the Philippine Navy. Further, Sections 3 and 6 of EO No. 475 states:
SECTION 3. Implementing Requirements. 17 There is hereby created a
Transition and Liquidation Committee to be composed of the DOTC as
Chairman, the Philippine Navy, PCG, Department of Budget and
Management and the Ofce of the President as members. These agencies
shall designate their respective representatives to this Committee which
shall recommend to the President the necessary plans and measures to
effect the transfer within 30 days from the signing of this EO. The
Committee shall likewise, undertake the appropriate inventory and
disposition of all PCG properties.
x x x x
SECTION 6. Pay, Allowances, and Retirement of Uniformed Personnel.
17 PCG uniformed personnel shall continue to receive the same base
bay, longevity pay, and other allowances and benets as authorized for
corresponding grades and ranks in the AFP. PCG uniformed personnel shall
continue to be covered by PD 1638 (AFP Retirement Law), as amended,
until such time as the PCG is able to establish its own retirement system
under a regime and timetable agreed upon by the Committee.
23

Subsequently, President Ramos issued EO No. 477 on April 15, 1998
transferring the PCG to the DOTC. Section 1 of EO No. 477 states:
Section 1. Transfer. 17 The PCG is hereby transferred from the Ofce of
the President to the DOTC. The DOTC shall exercise administrative
supervision over the PCG. (Underscoring supplied)
EO No. 477 also provided that the Transition and Liquidation Committee
(TLC) created pursuant to EO No. 475 shall continue to exercise its
functions. Section 3 of EO No. 477 specically provided:
The Committee shall likewise prepare plans and measures to ensure the
smooth transfer of personnel from the PN to the PCG. Such plans and
measures shall include the rules and guidelines covering matters pertaining
to the transfer of commissionship of PCG ofcers, the administration and
discipline and order during the transition period and appointments and
promotions and benets of ofcers and enlisted men of the PCG, among
others.
24
(Underscoring supplied)
Section 6 of EO No. 477 further provided that PCG uniformed personnel
shall continue to receive the same base pay, longevity pay and other
allowances and benets authorized for corresponding grades and ranks in
the AFP. The same section likewise declared that PCG uniformed personnel
shall continue to be covered by the AFP Retirement Law until such time as
the PCG is able to establish its own retirement system as provided for by
the transition committee.
25

On May 15, 1998, in accordance with the directives contained in both EO
Nos. 475 and 477, Arturo T. Valdez, DOTC Undersecretary and Chairman of
the PCG Transition and Liquidation Committee (PCG-TLC), submitted to
then President Ramos a report on the plans and measures to effect the
implementation of PCGs transfer to DOTC. Noteworthy is Section A(5) and
(6) of the said report which states:
PHILIPPINE COAST GUARD TRANSITION AND LIQUIDATION COMMITTEE
(EO 475 & EO 477)
PLANS AND MEASURES TO IMPLEMENT EXECUTIVE ORDERS 475 & 477

A. PERSONNEL MANAGEMENT
x x x x
CONCERN PLAN/MEASURE IMPLEMENTING
DOCUMENT
Subsequently, the DOTC issued the following DOs relative to the exercise
of its administrative supervision over the PCG:
First, on November 6, 2000, the DOTC issued DO No. 2000-61 creating the
PCG-ESB. DO No. 2000-61 was issued by the DOTC by virtue of EO No.
477 which provided for the transfer of the PCG to the DOTC and DND
Memorandum Circular No. 30 which provided that all applicable laws
pertaining to discipline, law and order shall remain applicable to the PCG.
Second, the DOTC issued Memorandum Circular No. 2000-64 which
provided for the discharge or separation by administrative action of PCG
ofcers. Pertinent provisions of the said order are as follows:
1. Purpose. 17 Pursuant to paragraph 12 of Executive Order No. 337
dated 13 September 1998 hereby prescribed are the rules and regulations
as well as the procedures governing the discharge or separation from the
Coast Guard service of PCG Ofcers.
2. Discharge or Separation from the Service. 17 PCG Ofcer shall be
administratively discharged or separated from the service as provided in
EO# 337, series of 1998 and these implementing rules and regulations.
a. Referral of Case for Misconduct. 17 When a PCG Ofcer commits any
act of misconduct of such a nature and gravity as to warrant his/her
discharge or separation from the service, his/her name and record shall be
referred by the Commandant, Philippine Coast Guard to the PCG Efciency
and Separation Board for the determination of his/her suitability or tness
for retention in the service.
x x x x
4. PCG Efciency and Separation Board. 17/p>
a. Designation. 17 The Efciency and Separation Board established under
Executive Order No. 337, s-88 shall be ofcially designated as the
Philippine Coast Guard Efciency and Separation Board.
I. Being now subject to the administrative supervision of the DOTC, the
PCG has become a civilian agency with a distinct administrative disciplinary
system for its uniformed personnel administered by the PCG-Efciency and
Separation Board.
Petitioner essentially argues that the PCG-ESB is devoid of any authority to
conduct administrative disciplinary proceedings against him. According to
petitioner, the transfer of the PCG to the DOTC has stripped the ESB,
which adopts military rules of procedure in the conduct of its proceedings,
of authority and jurisdiction over him. It is asserted that civil service law
and rules should be adopted in the conduct of any administrative
disciplinary measures against PCG personnel, uniformed or non-uniformed.
We are not persuaded. EO No. 477 vested the DOTC with administrative
supervision over the PCG. Under the Administrative Code of 1987,
administrative supervision covers the following:
(2) Administrative Supervision. 17 (a) Administrative supervision which
shall govern the administrative relationship between a department or its
5. Administration
of Discipline and
Order
nder Section 4 of RA No. 5173, the PCG
shall, "subject to the approval of the
Secretary of the National Defense,
promulgate rules and regulations necessary
for its administration." Since Section 1 of
EO No. 477 transfers administrative
supervision over the PCG to the DOTC,
approval for the promulgation of such rules
and regulations now rests upon the
Secretary, DOTC. A PCG Code of
Discipline for Uniformed Personnel shall
therefore be formulated and promulgated
subject to the Secretarys approva
By DOTC
(being
formulated)
6. Procurement,
Promotion,
Separation and
Attrition
Under Section 4 of RA No. 5173, the PCG
shall "subject to the approval of the
Secretary of National Defense x x x
promulgate rules and regulations necessary
for its administration." Since Section 1 of
EO No. 477 transfers administrative
supervision over the PCG to the DOTC,
approval for the promulgation of such rules
and regulations now rests upon the
Secretary, DOTC. Coast Guard/DOTC
guidelines covering procurement,
promotion, separation and attrition shall
therefore be formulated and promulgated
subject to the Secretarys approval. Until
such guidelines are promulgated, however,
the PCG shall remain covered by pertinent
AFP/PN rules and regulations
PCG/DOTC
guidelines
(being
formulated
by the PCG
for the
approval of
the
Secretary,
DOTC)
equivalent and regulatory agencies or other agencies as may be provided
by law, shall be limited to the authority of department or its equivalent to
generally oversee the operations of such agencies and to insure that they
are managed effectively, efciently and economically but without
interference with day-to-day activities; or management audit,
performance evaluation and inspection to determine compliance with
policies, standards and guidelines of the department; to take such action as
may be necessary for the proper performance of ofcial functions,
including rectication of violations, abuses and other forms of
maladministration; and to review and pass upon budget proposals of such
agencies but may not increase or add to them;
(b) Such authority shall not, however, extend to: (1) appointments and
other personnel actions x x x.
26

Pursuant to this authority, the DOTC via Memorandum Circular No.
2000-61 created the PCG-Efciency and Separation Board to oversee the
promotion, discharge or separation from the service of PCG uniformed
personnel. The memorandum circular likewise prescribed the rules,
regulations and the procedures to be adopted by the ESB in the
performance of its functions.
It bears stressing that the authority of the ESB extends only to the
promotion, discharge or separation from the service of uniformed
personnel. The non-uniformed or civilian complement of the PCG became
subject to the disciplinary rules pervading in the mother department,
DOTC, which of course are the pertinent civil service laws, rules and
regulations.
That the ESB rules of procedure are akin to the rules permeating
administrative proceedings adopted by the Armed Forces of the
Philippines and the Philippine Navy does not remove the PCG from the
ambit of a civilian agency. It remains a civilian component of the DOTC
regardless of the nature of the rules of procedure of the ESB. This is
because the PCG is a distinct instrumentality performing an essential
function 17 that of enforcing the countrys maritime laws. As such, its
ofcers are not similarly situated as ordinary civil service employees. The
adoption of a distinctive administrative disciplinary mechanism different
from that of other government agencies is clearly justied.
This is not a novel issue. In the recent Manalo v. Calderon,
27
this Court
recognized that the Philippine National Police has an administrative
disciplinary system distinct from that of ordinary agencies. Its personnel
are different from ordinary civil service employees. We held then:
Lastly, petitioners contend that by placing them under restrictive custody,
they are made to suffer lesser rights than those enjoyed by private
citizens. On this score, the Courts pronouncement in Canson, et al. v.
Hidalgo, et al. is categorical. It was held there that although the PNP is
civilian in character, its members are subject to the disciplinary authority of
the Chief, Philippine National Police, under the National Police
Commission. Courts cannot, by injunction, review, overrule, or otherwise
interfere with valid acts of police ofcials. The police organization must
observe self-discipline and obey a chain of command under civilian ofcials.
Elsewise stated, police ofcers are not similarly situated with ordinary civil
service employees. The PNP has its own administrative disciplinary
mechanism different from those of other government employees. Sa ibang
salita, ang kapulisan ay hindi katulad ng karaniwang kawani ng pamahalaan.
Ang PNP ay may sariling mekanismo ng pagdisiplina na kaiba sa
ipinatutupad sa ibang empleyado ng gobyerno.
In Fianza v. The Peoples Law Enforcement Board, et al., we ruled:
x x x although respondent policemen continue to be citizens, as public
respondents contend, they are not the private citizens17 referred to in
the laws cited above. Clearly, the term private citizens17 does not
ordinarily include men in uniform, such as the respondent PNP men. This is
particularly evident in the PNP law which uses the term members of the
PNP17 as well as private citizens17 to refer to different groups of
persons and not interchangeably. The plain meaning rule17 or verba
legis in statutory construction is applicable in this situation. When the
words of a statute are clear, plain, and free from ambiguity, it must be
given its interpretation. The term private citizen17 in the PNP Law and
PLEB Rules is used in its common signication and was not meant to refer
to the members of the PNP, such as respondent policemen.
28

We take the same position here. The Philippine Coast Guard is a distinct
agency. Its uniformed personnel ought not to be treated in the same
manner as other civil servants.
Too, petitioners reliance on Soriano III v. Lista
29
is misplaced. There is
nothing in the said case that would indicate that the administration and
discipline of PCG uniformed personnel should be patterned after pertinent
civil service laws and rules. Said the Court in Lista:
x x x As aptly pointed out by the Solicitor General, the PCG used to be
administered and maintained as a separate unit of the Philippine Navy
under Section 4 of RA 5173. It was subsequently placed under the direct
supervision and control of the Secretary of the Department of National
Defense (DND) pursuant to Section 4 of PD 601. Eventually, it was
integrated into the Armed Forces of the Philippines (AFP) as a major
subordinate unit of the Philippine Navy under Section 54 of Chapter 8,
Sub-title II, Title VIII, Book IV of EO 292, as amended.
However, on March 30, 1998, after the aforesaid changes in the charter of
the PCG, then President Fidel V. Ramos, in the exercise of his statutory
authority to reorganize the Ofce of the President, issued EO 475
transferring the PCG from the DND to the Ofce of the President. He later
on again transferred the PCG from the Ofce of the President to the
Department of Transportation and Communications (DOTC).
Now that the PCG is under the DOTC and no longer part of the Philippine
Navy or the Armed Forces of the Philippines, the promotions and
appointments of respondent ofcers of the PCG, or any PCG ofcer from
the rank of captain and higher for that matter, do not require conrmation
by the CA.
30
(Underscoring supplied)
The issue in Lista was the legality of the PCG ofcers17 appointments by
the President in the absence of conrmation by the Commission on
Appointments. The case did not tackle discipline and order among PCG
uniformed personnel.
31
As aptly observed by the OSG, nowhere in the said
decision did the Court rule that PCG ofcers should be covered by civil
service rules.
Incidentally, there were bills led in the Thirteenth Congress seeking to
amend the PCG Charter, like Senate Bills 1287 and 2081
32
and House Bill
No. 5304.
33
As noted by the appellate court:
That the PCG uniformed personnel is treated as a separate class 17
insofar as the maintenance of discipline and efciency within the said
institution 17 from that of non-uniformed civilian employees, can be
gleaned from those proposed bills still pending in both the Senate and
House of Representatives. Senate Bills 1287 and 2081, for instance,
categorically provide that in the investigation of administrative cases
against PCG ofcers and enlisted personnel, the PCG shall adopt the
military justice system until such time that it has promulgated the
provisions of the PCG Code of Discipline, Order, and Justice for PCG
ofcers and enlisted personnel. On the other hand, the applicable rules,
regulations, and guidelines promulgated by the Civil Service Commission
shall govern the investigation of administrative cases against PCG non-
uniformed/civilian employees. A similar provision is found in the proposed
consolidated House Bill No. 5304. Signicantly, HB No. 5304 and SB 1287
also contained a proviso that in times of war as declared by Congress, or
the President, the PCG or parts thereof, shall be attached to the DND as a
support unit.
Though indeed, the foregoing are just legislative proposals, it is an
undeniable reality that the transfer of administrative supervision over PCG
to the DOTC did not result in transferring jurisdiction over disciplinary
actions or administrative cases involving PCG ofcers and enlisted
personnel to the Civil Service Commission as in the case of its ordinary
employees falling under the disciplinary jurisdiction of the Commission.
34

Until these bills get approval and ripen into law, the jurisdiction and
authority of the ESB over uniformed personnel, including its rules of
procedure, should be respected. Otherwise, this Court would be jumping
the gun on Congress. That would be indulging in impermissible judicial
legislation.
II. There is no manifest bias or prejudice of the members of the PCG-ESB.
Anent the imputation of prejudice and bias on the part of the PCG-ESB
Board, We rule in the negative. Public ofcers enjoy the presumption of
regularity in the exercise of their functions. Absent any proof to the
contrary, We cannot sustain the bare allegation of petitioner that the Board
acted with prejudice.
The general rule is that the ndings of facts of administrative bodies are
conclusive and not subject to review by the Court. In proceedings before
administrative and quasi-judicial bodies, substantial evidence is sufcient to
establish a fact in issue. Said quantum of evidence is that amount of
relevant evidence which a reasonable mind might accept as adequate to
justify a conclusion.
35

Contrary to the assertion of petitioner, We nd that the evidence on
record overwhelmingly establishes his administrative liability. In addition to
the afdavit submitted by Dr. Liwanag, the complaint against petitioner
was duly supported by the individual sworn statements of Dr. Donna B.
Dinglasan, Dr. Angelita P. Costa, and Lt. Rodolfo S. Ingel, who were all
detailed in the PCG Dental Detachment, where the incident complained of
transpired.
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.
RUBEN T. REYES
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING, Associate Justice
CONSUELO YNARES-SANTIAGO, Associate Justice
ANTONIO T. CARPIO, Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ, Associate Justice
RENATO C. CORONA, Associate Justice
CONCHITA CARPIO MORALES, Associate Justice
ADOLFO S. AZCUNA, Associate Justice
DANTE O. TINGA, Associate Justice
MINITA V. CHICO-NAZARIO, Associate Justice
PRESBITERO J. VELASCO, JR., Associate Justice
(No part)
ANTONIO EDUARDO B. NACHURA, Associate Justice
TERESITA J. LEONARDO-DE CASTRO, Associate Justice
ARTURO D. BRION
Associate Justice
C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

* No part. Justice Nachura participated in the present case as Solicitor
General.
1
Rollo, pp. 30-49. Penned by Associate Justice Martin S. Villarama, Jr.,
with Associate Justices Lucas P. Bersamin and Celia C. Librea-Leagogo,
concurring.
2
Penned by Judge Vicente A. Hidalgo.
3
Records, pp. 280-281; Exhibits "1" to "1-A."
4
Id. at 260-265; Exhibit "D."
5
From the records, it is unclear when the report was executed. What
appears is that it was served on the parties in April 2003.
6
Rollo, pp. 247-248; Exhibit "A."
7
Orders dated July 10, 2003 and July 31, 2003.
8
Creation of the Philippine Coast Guard Efciency Separation Board
(DOTC Department Order No. 2000-61).
9
Re-composition of the Philippine Coast Guard Efciency and Separation
Board (DOTC Department Order No. 2002-76), December 9, 2002.
10
Discharge or Separation by Administrative Action of PCG Ofcers (DOTC
Memorandum Circular No. 2000-64).
11
Records, pp. 611-620.
12
Id. at 620.
13
Id. at 614-619.
14
Id. at 622-651.
15
Id. at 671.
16
Rollo, p. 40.
17
Id. at 49.
18
Id. at ____.
19
An Act Creating a Philippine Coast Guard, Prescribing Its Powers and
Functions, Appropriating the Necessary Funds Therefor, and For Other
Purposes. Approved on August 4, 1967.
20
Republic Act No. 5173, Secs. 1 & 4.
21
Transferring the Philippine Coast Guard from the Department of National
Defense to the Ofce of the President and For Other Purposes.
22
Executive Order No. 475 17/p>
"WHEREAS, PCG remains a major subordinate unit of the Philippine Navy
by virtue of Section 54, Chapter 8, Subtitle II, Title VIII, Book IV of EO No.
292 dated 25 July 1987, otherwise known as the Administrative Code of
1987, and assigned functions pertaining to the promotion of safety of life
at sea and the protection of this marine environment. x x x."
23
Id., Secs. 3 & 6.
24
Executive Order No. 477, Sec. 3.
25
Id., Sec. 6.
26
Executive Order No. 292, Chapter 7, Sec. 38.
27
G.R. No. 178920, October 15, 2007, 536 SCRA 290.
28
Manalo v. Calderon, id. at 17-18.
29
G.R. No. 153881, March 24, 2003, 399 SCRA 437.
30
Soriano III v. Lista, id. at 439-440.
31
Id.
32
Filed by Senators Rodolfo G. Biazon (SB 1287) and Luisa Ejercito Estrada
(SB 2081). Thirteenth Congress.
33
"An Act Transferring the Philippine Coast Guard to the Department of
Transportation and Communications as an Attached Agency and Redening
Its Organization and Personnel Administration, Amending Republic Act No.
5173, and for Other Purposes." Thirteenth Congress.
34
Rollo, pp. 47-48.
35
Megascope General Services v. National Labor Relations Commission,
G.R. No. 109224, June 19, 1997, 274 SCRA 147.

G.R. No. 174312 - CAPT. ERNESTO S. CABALLERO, Petitioner, - versus -
PHILIPPINE COAST GUARD EFFICIENCY AND SEPARATION BOARD (PCG-
ESB), COMM. ELPIDIO B. PADAMA, CAPT. ALEJANDRO N. FLORA, CAPT.
ANTONIO LALISAN, CAPT. CESAR A. SARILE, CDR. EDUARDO DUMLAO,
CDR. LUIS TUASON, JR., AND LT. LAZARO ERNESTO C. VALDEZ, JR., in
their capacity as members of the PCG-ESB, PHILIPPINE COAST GUARD
(PCG), DEPARTMENT OF TRANSPORTATION AND COMMUNICATION
(DOTC) and JENNIFER G. LIWANAG, Respondents.
Promulgated:
September 22, 2008
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
SEPARATE CONCURRING OPINION
CARPIO, J.:
I concur in the result of the majority opinion that the Philippine Coast
Guard Efciency and Separation Board (PCG-ESB) has jurisdiction to
conduct administrative proceedings against Capt. Ernesto Caballero.
The Philippine Coast Guard (PCG) was created under Republic Act No.
5173 (RA 5173)
1
as a major unit of the Philippine Navy. Under Section 4 of
RA 5173, the PCG is administered and maintained as a separate unit of the
Philippine Navy. Pursuant to Presidential Decree No. 601, issued on 9
December 1974, the PCG was placed under the direct supervision and
control of the Secretary of National Defense.
2

On 30 March 1998, then President Fidel V. Ramos issued Executive Order
No. 475, transferring the PCG from the Department of National Defense to
the Ofce of the President. Subsequently, Executive Order No. 477 (EO
477) was issued on 15 April 1998, transferring the PCG from the Ofce of
the President to the Department of Transportation and Communication
(DOTC). Under Section 1 of EO 477, the DOTC shall exercise administrative
supervision over the PCG.
On 6 November 2000, the DOTC Secretary issued Department Order No.
2000-61, creating the PCG-ESB. Subsequently, DOTC Memorandum Circular
No. 2000-64 was issued which prescribed the rules and regulations, and
the procedures governing the discharge or separation from the Coast
Guard service of PCG Ofcers. On 9 December 2002, the DOTC Secretary
issued Department Order No. 2002-76 on the re-composition of the PCG-
ESB. In effect, the DOTC created PCG-ESB patterned after the Efciency
and Separation Board established under Executive Order No. 337 (EO
337),
3
and prescribed its implementing rules and regulations.
The paramount effect of the transfer of the PCG from the Department of
National Defense to the Ofce of the President and eventually to the
DOTC is the transformation of the PCG into a non-military agency. Thus,
the PCG is already civilian in character. By removing the PCG under the
control and supervision of the military, the PCG ceased to be a part of the
military establishment, and has already assumed civilian character. Thus, in
Soriano III v. Lista,
4
the Court held that the promotions and appointments
of PCG ofcers do not require conrmation by the Commission on
Appointments since the constitutional provision on "ofcers of the armed
forces from the rank of colonel or naval captain" requiring such
conrmation refers only to military ofcers.
The DOTCs creation of PCG-ESB patterned after the Efciency and
Separation Board established under EO 337 for the Armed Forces of the
Philippines and its major services does not mean that the PCG is still
covered by the military rules on administrative discipline. It should be
emphasized that the PCG-ESB was created under DOTC Department Order
No. 2000-61, which was issued by the DOTC Secretary in the exercise of
his power of administrative supervision over the PCG. Under Section 38(2),
Chapter 7, Book IV of Executive Order No. 292 (EO 292),
5
administrative
supervision includes the authority of the Department to take such action as
may be necessary for the proper performance of ofcial functions,
including rectication of violations, abuses and other forms of
maladministration.
6
Section 7(5), Chapter 2, Book IV of EO 292 provides
that among the powers and functions of a Department Secretary is to
exercise disciplinary powers over ofcers and employees under the
Secretary in accordance with law, including their investigation and the
designation of a committee or ofcer to conduct such investigation. The
Secretary is also mandated to promulgate not only rules and regulations
necessary to carry out department objectives, policies, functions, plans,
programs and projects, but also administrative issuances necessary for the
efcient administration of the ofces under the Secretary and for proper
execution of the laws relative thereto. Section 7, Chapter 2, Book IV of the
Administrative Code of 1987 provides:
SEC. 7. Powers and Functions of the Secretary. 17 The Secretary shall:
x x x
(3) Promulgate rules and regulations necessary to carry out department
objectives, policies, functions, plans, programs and projects;
(4) Promulgate administrative issuances necessary for the efcient
administration of the ofces under the Secretary and for proper execution
of the laws relative thereto. These issuances shall not prescribe penalties
for their violation, except when expressly authorized by law;
(5) Exercise disciplinary powers over ofcers and employees under the
Secretary in accordance with law, including their investigation and the
designation of a committee or ofcer to conduct such investigation;
x x x (Emphasis supplied)
Thus, the DOTCs administrative supervision over PCG includes the
authority to adopt policies and implement appropriate measures to
regulate the conduct and discipline of the PCG personnel.
Clearly, the DOTC Secretary, exercising administrative supervision over
PCG pursuant to EO 477, acted within his jurisdiction and authority under
EO 292 when he issued Department Order No. 2000-61, Memorandum
Circular No. 2000-64, and Department Order No. 2002-76.
Thus, I submit that the creation of the PCG-ESB is valid and that the PCG-
ESB has jurisdiction to conduct administrative disciplinary proceedings
against Capt. Ernesto Caballero.
Accordingly, I vote to DISMISS the petition.
ANTONIO T. CARPIO
Associate Justice



1
An Act Creating the Philippine Coast Guard, Prescribing its Powers and
Functions, Appropriating the Necessary Funds Therefor, and for Other
Purposes.
2
See Section 4, Presidential Decree No. 601.
3
Prescribing Regulations Governing the Discharge or Separation by
Administrative Action of Ofcers of the Regular Force and Reserve
Ofcers on Extended Tour of Active Duty in the Armed Forces of the
Philippines.
4
447 Phil. 566 (2003).
5
Otherwise known as the Administrative Code of 1987.
6
Section 38(2), Chapter 7, Book IV of EO 292 reads:
(2) Administrative Supervision. 17 Administrative supervision which shall
govern the administrative relationship between a department or its
equivalent and regulatory agencies or other agencies as may be provided
by law, shall be limited to the authority of the department or its equivalent
to generally oversee the operations of such agencies and to ensure that
they are managed effectively, efciently and economically but without
interference with day-to-day activities; or require the submission of reports
and cause the conduct of management audit, performance evaluation and
inspection to determine compliance with policies, standards and guidelines
of the department; to take such action as may be necessary for the proper
performance of ofcial functions, including rectication of violations,
abuses and other forms of maladministration; and to review and pass upon
budget proposals of such agencies but may not increase or add to them.










Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-25577 March 15, 1966
ONOFRE P. GUEVARA, petitioner,
vs.
RAOUL M. INOCENTES, respondent.
Ambrosia Padilla and Onofre Guevara for the petitioner.
Office of the Solicitor General for the respondent.
BAUTISTA ANGELO, J.:
This decision is written in keeping with the statement we made in our resolution
dated February 16, 1966.
Petitioner was extended an ad interim appointment as Undersecretary of Labor
by the former Executive on November 18, 1965, having taken his oath of office
on November 25 of the same year, and considering that the ad interim
appointment for the same position extended to respondent by the incumbent
Executive on January 23, 1966 is invalid in spite of Memorandum Circular No. 8
issued by the latter on the same date declaring all ad interim appointments
made by the former Executive as having lapsed with the adjournment of the
special session of Congress at about midnight of January 22, 1966, petitioner
brought before this Court the instant petition for quo warranto seeking to be
declared the person legally entitled to said office of Undersecretary of Labor.
The petition is predicated on the following grounds: (1) under Article VII,
Section 10(4) of the Constitution, petitioner's ad interim appointment is valid
and permanent and may only become ineffective either upon express
disapproval by the Commission on Appointments or upon the adjournment of
the regular session of Congress of 1966; (2) here there has been no express
disapproval by the Commission on Appointments because the same has never
been constituted during the special session called by President Marcos in his
Proclamation No. 2, series of 1966; and (3) there has been no adjournment of
the Congress as contemplated in the Constitution because (a) the aforesaid
special session was suspended by the House on Saturday, January 22, 1966 at
10:55 p.m. to be resumed on Monday, January 24, 1966 at 10:00 a.m.; (b) the
resolution approved by the Senate on January 23, 1966 at past 2:00 a.m. for
adjournment sine die is not the adjournment contemplated in Article VII,
Section 10(a) of our Constitution; (c) the suspension by the House or the
adjournment by the Senate to resume the session on January 24, 1966 at 10:00
a.m. meant the end of the special session and the start of the regular session as
a continuous session without any interruption; and (d) the phrase "until the next
adjournment of the Congress" must be related with the phrase "until
disapproval by the Commission on Appointments" so that the adjournment
contemplated should refer to a regular session during which the Commission on
Appointments may be organized and allowed to discharge its functions as such.
Respondent, on the other hand, set up the following defenses: (1) petitioner's
ad interim appointment lapsed when Congress adjourned its last special session
called under Proclamation No. 2 of President Marcos; (2) an ad interim
appointment ceases to be valid after each term of Congress and so petitioner's
appointment must have lapsed as early as December 30, 1965; (3) petitioner's
ad interim appointment as well as others made under similar conditions, is
contrary to morals, good customs and public policy, and hence null and void;
and (4) petitioner's appointment is void in the light of the doctrine laid down in
Rodriguez, Jr. vs. Quirino, G.R. No. L-19800 October 28, 1953.
After due deliberation, the Court resolved that the ad interim appointment
extended to petitioner on November 18, 1965 by the former Executive lapsed
when the special session of Congress adjourned sine die at about midnight of
January 22, 1966, as embodied in our resolution dated February 16, 1966.
We will now elaborate on the reasons expressed in said resolution.
The important provision to be considered is Article VII, Section 10, Subsection 4
of our Constitution, which provides:
The President shall have the power to make appointments during the
recess of the Congress, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
A perusal of the above-quoted provision would at once reveal that it is the clear
intent of the framers of our Constitution to make a recess appointment effective
only (a) until disapproval by the Commission on Appointments, or (b) until the
next adjournment of Congress, and never a day longer regardless of the nature
of the session adjourned. And this is so considering the plain language of the
aforesaid provision which is free from any ambiguity in the light of the well-
settled rule of statutory construction that "when the intention of the legislature
is so apparent from the face of the statute that there can be no question as to
its meaning there is no room for construction" (Vol. 2, Sutherland, Statutory
Construction, p. 316). Hence, the above provision contemplates two modes of
termination of an ad interim appointment, or of one made during the recess of
Congress, which are completely separate from, and independent of, each other.
And while during the special session called under proclamation No. 2 no
Commission on Appointments was organized by Congress, the second mode of
termination, however, had its constitutional effect, as when Congress adjourned
sine die at about midnight of January 22. 1966. Such adjournment, in legal
contemplation, had the effect of terminating petitioner's appointment thereby
rendering it legally ineffective.
Petitioner's theory that the first mode of termination consisting in the
disapproval by the Commission on Appointments should be inseparately
related with the clause "until the next adjournment of Congress" in the sense
that the Commission has to be first organized in order that the last mode may
operate is untenable considering that the latter is not dependent upon, nor
influenced in any manner by the operation of the former. As already stated, the
two modes of termination are completely separate from and independent of
each other. If the framers of the Constitution had intended to make the
operation of the second clause dependent upon the prior constitution of the
Commission on Appointments they should have so stated in clear terms
considering that the first clause implies a positive act of the Commission, while
the second an entirely separate and independent act of Congress. Indeed, the
theory of petitioner, if carried to its logical conclusion, may result into the
anomaly that, should Congress be controlled by a party not inclined to organize
said Commission, or should there arise a group which for reasons of its own
indulges in obstructionism, the Commission on Appointments contemplated in
the Constitution is never organized as a consequence of the action of either, any
appointment made during the recess of Congress would never run the test of
legislative scrutiny and would thereby then be always considered permanent
even if it is extended ad interim, a result which, to be sure, was never intended
by the framers of our Constitution. It thus becomes imperative that we avoid
such absurd result.
It is true that the provision of the Constitution we are now considering in
speaking of the mode of termination epitomized in the phrase "until the next
adjournment of the Congress" does not make any reference to any specific
session of the Congress, whether regular or special, but such silence is of
no moment, for it is a well-known maxim in statutory construction that when the
law does not distinguish we should not distinguish. UBI LEX NON DISTINGUIT
NEC NOS DISTINGUERE DEBEMUS (Robles vs. Zambales Chromite Mining
Company, et al., G. R. No. L-12560, September 30, 1958). Consequently, it is
safe to conclude that the framers of our Constitution in employing merely the
word adjournment as a mode of terminating an appointment made during the
recess of Congress had in mind either the regular or special session, and not
simply the regular one as contended by petitioner.
Under our tripartite form of government predicated on the principle of
separation of powers the power to appoint is inherently an executive function
while the power to confirm or reject appointments belongs to the legislative
department, the latter power having been conferred as a check on the former.
This power to check may be exercised through the members of both Houses in
the Commission on Appointments. But although the Commission on
Appointments is provided for in the Constitution, its organization requires
congressional action, and once organized, by express provision of the
Constitution, it "shall meet only while Congress is in session." Consequently, if
for any reason Congress adjourns a regular or special session without organizing
the Commission on Appointments, Congress should be deemed to have
impliedly exercised said power to check by allowing the ad interim
appointments to lapse as provided for in the Constitution.
The next important inquiry is: Since Congress in its special session held under
Proclamation No. 2 of the President, series of 1966, did not deem it wise to
organize the Commission on Appointments to act on the recess appointments
made by the former Executive, can it be said that Congress is deemed to have
impliedly exercised its power to check on such recess appointments when it
adjourned its special session at about 12:00 o'clock midnight of January 22,
1966?
The answer must of necessity be in the affirmative inasmuch as that special
session actually adjourned in legal contemplation at about 12:00 midnight of
January 22, 1966 considering that the Senate adjourned sine die at about said
hour. Although the House allegedly suspended its session at 10:55 p.m. on
January 22, 1966 to be resumed on Monday, January 24, 1966, at 10:00 a.m.,
Congress cannot be considered to be in special session subsequently to
January 22 for the reason that the House without the Senate which had
adjourned sine die, is not "Congress." Indeed, when the Senate adjourned at
12:00 midnight on January 22, 1966 this adjournment should be considered as
the "next adjournment of the Congress" of the special session notwithstanding
the alleged suspension of the session earlier by the House for the reason that
neither the House nor the Senate can hold session independently of the other in
the same manner as neither can transact any legislative business after the
adjournment of the other. None other than President Macapagal and Speaker
Cornelio Villareal expressed such opinion when as members of the Lower House
in 1954 they expoused and defended the same on the floor as can be seen from
the following transcript of the congressional record:
Mr. MACAPAGAL . . . Since the Senate has, by its own responsibility,
adjourned one and a half hours ago, therefore, under the present facts, in
our Constitution this House is automatically adjourned, and therefore it is
improper and illegal for us to continue the proceedings farther.
x x x x x x x x x
Mr. VILLAREAL Mr. Speaker, although it is true that I do not want to
appeal from the ruling of the Chair, nonetheless, I maintain that our
actuations from the time we approved that resolution will be illegal acts,
and I do not want this Congress to commit illegal acts because it will affect
the dignity of this Chamber. We are not unaware of the facts. I invite the
Presiding Officer and everybody here to go to the Senate now, and if they
accept my challenge, let us go so that I can prove to them that there is not
one ghost of any Senator in that Chamber. The Senate has actually
adjourned, Mr. Speaker, and are we to have a fiction here that the Senators
are still holding a session? We approved that resolution of adjournment
before twelve o'clock tonight knowing that the Senate adjourned two or
three hours ago. Are we crazy here to believe that the Senators are still
holding sessions? How can we in conscience justify our actuations here that
we are still doing something for the benefit of the people when in fact and
in truth we are not because we cannot do so? . . .
Mr. Speaker, let us be frank; let us be honest to ourselves; let us not ridicule
ourselves; let us adjourn now because we having nothing to do and all that
we will do will be illegal beginning now. . . .
Mr. Speaker. I honestly believe that legally we cannot do anything any
further, and if I am the author of a bill pending approval, I would not submit
the bill for passage now because that will be the subject of litigation in
court as to whether such approval will be legal or not, and I would never
risk my committee report to be submitted after the approval of that
resolution, knowing fully well that actually and physically that Upper
Chamber has already adjourned. (Congressional Record, House of
Representatives, 3rd Congress, Republic of the Philippines, First Regular
and First Special Sessions, Vol. I, pp. 4091 and 4094).1wph1.t
As a corollary, the theory that there was a continuous session without any
interruption when the house allegedly suspended its session at 10:55 p.m. on
January 22, 1966 to be resumed on Monday, January 24, 1966 at 10:00 a.m.
cannot be accepted, because such theory runs counter to well-established
parliamentary precedents and practice. Thus, for one thing, between January
22, 1966 at 10:55 p.m. and January 24, 1966 at 10:35 a.m. when the House
opened its regular session, there intervened January 23, 1966, which was
Sunday, and as such is expressly excluded by the Constitution as a session day
of Congress. For another, it is imperative that there be a "constructive recess"
between a special and regular session, as when a regular session succeeds
immediately a special session or vice-versa, and so a special session cannot be
held immediately before a regular session without any interruption nor can both
be held simultaneously together. Hinds' Precedents has the following to say on
the matter:
The commissions granted during the recess prior to the convening of
Congress in extraordinary session November 9, 1903, of course furnished
lawful warrant for the assumption by the persons named therein of the
duties of the offices to which they were, respectively, commissioned. Their
names were regularly sent to the Senate thereafter. If confirmed, of course
they would hold under appointment initiated by the nomination without
any regard to the recess commission. If not confirmed, their right to hold
under the recess nomination absolutely ended at 12 o'clock meridian on
the 7th of December, 1903, for at that hour the extraordinary session ended
and the regular session of Congress began by operation of law. An
extraordinary session and a regular session can not coexist, and the
beginning of the regular session at 12 o'clock was the end of the
extraordinary session; not a constructive end of it, but an actual end of it. At
12 o'clock December 7 the President pro tempore of the Senate said:
Senators, the hour provided by law for the meeting of the first regular
session of the Fifty-eighth Congress having arrived, I declare the
extraordinary session adjourned without day.
Aside from the statement upon the record that the "hour had struck" which
marked the ending of the one and the beginning of the other, the
declaration of the President pro tempore was without efficacy. It did not
operate to adjourn without day either the Congress or the Senate. Under
the law the arrival of the hour did both.
The constitutional provision that the commission shall expire at the end of
the next session is self-executing, and when the session expires the right to
hold under the commission expires with it. If there be no appreciable point
of time between the end of one session and the beginning of another, since
of necessity one ends and another begins, the tenure under the
commission as absolutely terminates as if months of recess supervened.
(Hinds' Precedents of the House of Representatives of the United States,
Vol. V, p. 854.)
Considering now petitioner's ad interim appointment and others extended
under similar conditions in the light of the doctrine we laid down in the Aytona
case, we may say that they were even more irregular than those involved in said
case to the extend that they may be avoided even on this ground alone. Thus,
while President Garcia only extended 350 ad interim appointments after he had
lost the election, President Macapagal made 1,717 ad interim appointments
most of which were made only after the elections in November, 1965. As a
consequence, the following anomalies were noted: a former presidential
assistant was appointed judge of three different salas, another was appointed to
a non-existing branch of the Court of First Instance of Pangasinan, while still
another who had a pending disbarment case received an ad interim
appointment as judge of first instance. This is indeed a far cry from the following
admonition we made in the Aytona case:
Of course, nobody will assert that President Garcia ceased to be such
earlier than at noon of December 30, 1961. But it is common sense to
believe that after the proclamation of the election of President Macapagal,
his was no more than a "caretaker" administration. He was duty bound to
prepare for the orderly transfer of authority to the incoming President, and
he should not do acts which, he ought to know, would embarrass or
obstruct the policies of his successor. The time for debate had passed; the
electorate had spoken. It was not for him to use his powers as incumbent
President to continue the political warfare that had ended or to avail
himself of presidential prerogatives to serve partisan purposes. The filling
up of vacancies in important positions, if few, and so spaced as to afford
some assurance of deliberate action and careful consideration of the need
for the appointment and the appointee's qualifications may undoubtedly
be permitted. But the issuance of 350 appointments in one night and the
planned induction of almost all of them a few hours before the inauguration
of the new President may, with some reason, be regarded by the latter as
an abuse of Presidential prerogatives, the steps taken being apparently a
mere partisan effort to fill all vacant positions irrespective of fitness and
other conditions, and thereby to deprive the new administration of an
opportunity to make the corresponding appointments. (Aytona vs. Castillo,
et al., G.R. No. L-19313, January 20, 1962.)
It is hoped that now and hereafter such excess in the exercise of power should
be obviated to avoid confusion, uncertainty, embarrassment and chaos which
may cause disruption in the normal function of government to the prejudice of
public interest. It is time that such excess be stopped in the interest of the
public weal.
Wherefore, petition is denied. No costs.
Bengzon, C.J., Reyes, J.B.L., Barrera and Regala, JJ., concur.
Makalintal, J., dissents for the same reasons previously expressed by him in the
resolution of Feb. 16, 1966.
Bengzon, J.P., and Sanchez, JJ., took no part.
Separate Opinions
CONCEPCION, J., concurring:
Having been extended an ad interim appointment, dated November 18, 1965,
as Undersecretary of Labor, petitioner Onofre F. Guevara assumed the office on
November 25, 1965. The question for determination is whether his title to said
office has lapsed upon adjournment of the special session of Congress that
began on January 17, 1966, in view of the provisions of Section 10(4), Article VII
of the Constitution, reading:
The President shall have the power to make appointments during the
recess of the Congress, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
Petitioner maintains that the question adverted to above should be answered in
the negative, for there has been no adjournment of Congress because the
aforementioned special session had commenced on January 17, 1966, and,
although the Senate had adjourned sine die shortly after midnight of January 22
to 23, 1966, the House of Representatives merely suspended its session on
January 22, 1966, at 10:55 p.m., "to be resumed on January 24, 1966, at 10:00
a.m." when the present regular session began. Petitioner concludes, therefrom,
that Congress has been in continuous session without any interruption" since
January 17, 1966.
This pretense is clearly devoid of merit for:
1. The Senate had admittedly adjourned at about midnight of January 22 to 23,
1966. Inasmuch as the House of Representatives is only a part of our Congress,
not Congress itself, it follows necessarily that "Congress" can not be said to
have been in session on January 23, 1966.
2. Not even the House was in special session on January 23 and 24, 1966. The
fact is that it did not hold any session on January 23, 1966. Although it
purported to have "suspended" the session on January 22 to be resumed on
January 24, the House did not, evidently, intend to "resume" the special session
on January 24, 1966, at 10:00 a.m., for: a) the members of the House knew that
the regular session would then begin; b) the regular session did begin on
January 24, 1966, at 10:00 a.m.; and c) they did not meet, or try or even purport
to meet in special session on January 24, 1966, or at any other time after
January 22, 1966. In other words, when, on January 22, 1966 at 10:55 p.m., the
House placed on record that the (special) session was then suspended to be
resumed on January 24, 1966, at 10:00 a.m., it meant that the Congressmen
would meet on January 24, 1966, at 10:00 a.m., not in special session, but to
begin the regular session.
3. Petitioner does not claim that Congress is still in special session. It is, likewise,
an undisputable and undisputed fact that the regular session of Congress had
begun on January 24, 1966. Since the commencement of such regular session
has necessarily put an end, ipso facto, to the special session that began on
January 17, 1966, the inevitable conclusion is that Congress, assembled in such
special session, has adjourned since, at least, January 24, 1966,
1
even if we
assumed hypothetically that its two (2) Houses had actually assembled daily in
legislative session, without any interruption, from January 17 up to this date,
which is not a fact. Indeed, said assumption does not offset the fact that the
present regular session of Congress is different, distinct and separate from said
special session; that said regular session is not the session next following the
issuance of petitioner's ad interim appointment; and that, even if the regular
session had followed the special session, without any physical solution of
continuity, said special session, which is the one next to said ad interim
appointment has in fact and in law been adjourned. Hence, it is admitted in the
petition herein (par. 6[d]) that the aforementioned "suspension by the House" of
its session on January 22, to be resumed on January 24, 1966, at 10:00 a.m.
"meant the end of the special session."
It is next urged by petitioner that the clause "the next adjournment of the
Congress" in the above quoted provision of our fundamental law refers to an
adjournment of Congress assembled in regular session. I am unable to accept
this view because:
1) To do so would entail a judicial legislation by the insertion of the word
"regular" in said provision. We can not even justify such act upon the
ground of judicial construction, for "where the language of a statute is
plain and unambiguous" as the constitutional precept in question is
"there is no occasion for construction, and the statute must be given
effect according to its plain and obvious meaning,"
2
and "this is true
even though other meanings of the language employed could be
fraud."
3

The editor of American Jurisprudence has expressed itself as follows:
x x x Where the language of a statute is plain and unambiguous
and conveys a clear and definite meaning, there is no occasion for
resorting to the rules of statutory construction, and the court has
no right to look for or impose another meaning.
4

2) Neither can we adopt petitioner's theory without, in effect, amending the
Constitution, and violating its requirement therefor of "a vote of three-
fourths (3/4) of all the Members of the Senate and of the House of
Representatives voting separately" and a ratification by a majority of
the votes cast at a plebiscite called for the purpose.
5
As the branch of
the Government to which the task of being the last bulwark of the
Constitution has been assigned, we can not adopt the posture
advocated by the petitioner, entailing as it does an impairment of the
basic tenets of our political system, and the assumption of omnipotent
powers which, admittedly, we do not have.
3) Petitioner's theory is refuted by the fact admitted by petitioner and his
counsel that the adjournment of a special session of Congress may
render ineffective an ad interim appointment made prior thereto, if
said appointment had been preceded by a regular session of a new
Congress. In fact, upon adjournment of the regular session of Congress
in 1965, ad interim appointments were made, some of which, including
those of several members of this Court, were renewed upon the
adjournment of each of the several special sessions called after said
regular session. In other words, it is an established practice in this
jurisdiction, confirmed no less than by the party backing up petitioner
herein, that ad interim appointments made before a given special
session of Congress, expire upon the adjournment thereof.
4) Petitioner's theory is further refuted by the fact that, if a special session is
held before the initial regular session of a new Congress, and the
Commission on Appointments is organized during said special session,
its adjournment would admittedly extinguish the effectivity of ad
interim appointments made prior thereto, provided, according to
petitioner, that the Commission has had reasonable time during that
session to act on said appointments.
In this connection, it should be noted that, although Congress convenes in
regular session on the fourth Monday of January, it may by law fix another date
for the beginning of said session.
6
Suppose that the date fixed by law therefor
is, say, June 19 (Rizal's birthday); that ad interim appointments have been made
on January 2, following the assumption of office of a new President, who calls
four (4) special sessions, one after the other, each for thirty (30) days, the first to
begin on January 5; and that the Commission on Appointments is duly
organized on January 10. Shall we hold that, if the Commission does not act on
said appointments, the same shall be effective until the adjournment of the
regular session of Congress, which, in our hypothesis, would take place early in
October? Indeed, there is no plausible reason to distinguish between the
adjournment of a regular session and that of a special session, insofar as the
effect thereof upon ad interim appointments is concerned.
The main argument adduced in support of petitioner's theory that the
adjournment of the last special session of Congress cannot affect the effectivity
of his ad interim appointment, is that the Commission on Appointments had not
been organized during said special session and that, even if then organized, the
Commission would not have had enough time, during that session, to consider
the 1,717 ad interim appointments made after the last special session held in
1965.
With respect to the last part of the argument, the Constitution does not make
the extinctive effect of the "next adjournment of the Congress" upon ad interim
appointments made prior thereto dependent on the sufficiency of the time
available to the Commission on Appointments. Thus, if the Commission on
Appointments were not organized until, say, May 15, 1966, there could be no
possible doubt that such ad interim appointments as may have been made prior
to the present regular session of Congress, no matter how many said
appointments may be, would lapse upon adjournment of Congress at about
May 20, or five (5) days later, even if this period of time were manifestly
inadequate to permit a reasonable consideration of said appointments.
Let us now consider the theory that the "next adjournment of the Congress"
does not extinguish the effectivity of ad interim appointments made prior
thereto, unless the Commission on Appointments has been organized before
said adjournment. This theory is contradicted by the admission of petitioner's
counsel during the hearing of this case, that, upon adjournment of a regular
session of Congress, ad interim appointments made before said session would
lapse, even if the Commission on Appointments had not been organized prior
to said adjournment.
The aforementioned theory is, moreover, predicated upon false assumptions,
namely: that the "next adjournment of the Congress" should be construed in
relation only to the "disapproval of the Commission on Appointments," not to
"the recess of the Congress"; that "the next adjournment of the Congress"
terminates the effectivity of ad interim appointments because the Commission
on Appointments cannot function when Congress is not in session; and that
Congress would be usurping the functions of the Commission on Appointments
if said appointments lapsed by the adjournment of Congress, although the
Commission had not as yet been constituted.
At the outset, it is well to remember that one of the fundamental tenets
underlying our constitutional system is the principle of separation of powers,
pursuant to which the powers of government are mainly divided into three
classes,
7
each of which is assigned to a given branch of the service.
8
The main
characteristic of said principle is not, however, this allocation of powers among
said branches of the service,
9
but the fact that: 1) each department is
independent of the others and supreme within its own sphere; and 2) the power
vested in one department cannot be given or delegated, either by the same or
by Act of Congress, to any other department. The reason is that, otherwise,
instead of being separated, said powers are likely to be concentrated - and
hence united - in one (1) department,
10
thereby seriously jeopardizing our
republican system. Indeed, history has shown that sovereignty cannot long
remain in the people when the powers of Government are in the hands of one
man, for the latter is thus placed in a position, and would eventually be inclined,
to change his role, from that of a public servant to that of master of the people.
The separation of powers in our Government is not, however, absolute. Not all
legislative powers are vested in Congress. Some, like the veto power and the
power to make rules of Court, are explicitly vested in the President and the
Supreme Court, respectively.
11
Similarly, not all executive powers are vested in
the President. Some, like the treaty-making power, are shared by him with the
legislative department.
12
Not all judicial powers are vested in courts of justice.
Some like the pardoning power are lodged exclusively in the President.
13

As a consequence, there is some overlapping of powers and a system of checks
and balances, under which a department may exercise some measure of
restraint, upon another department. Such is the situation as regards appointing
power of the Executive, which is subject to said restraint by the legislative
department.
14
Indeed, the latter may limit said executive power by, inter alia,
prescribing the qualifications of the appointees, fixing their term of office, or
disapproving appointments to some offices.
With respect to the approval or disapproval of appointments, the framers of our
Constitution considered it, however, impractical to entrust the exercise of the
power to the whole National Assembly or Congress. Considering its sizeable
membership, it was deemed wiser to vest the power of confirmation or rejection
of appointments upon a body, small enough to permit reasonable expeditious
action, when necessary, but sufficiently representative to reflect substantially the
views of the legislature. Hence, the Commission on Appointments, which, under
the present Constitution, consists of "twelve Senators and twelve Members of
the House of Representatives elected by each House, respectively, on basis of
proportional representation of the political parties therein."
15
Although, in the
discharge of their duties, the Members of the Commission are not under the
control of Congress, it is only obvious, from the composition of the Commission
particularly the equal representation therein of each House of Congress and
the manner of selection of the Members of the Commission that the same
was expected to reflect the feelings of Congress on presidential appointments,
and this expectation has, invariably, been borne out by the facts. In other words,
the Commission was intended to be, and is an agent of Congress, or the means
by which Congress may check the appointing power of the President.
More specifically, appointments made by the President are subject to two (2)
forms of legislative restraint, namely: a) disapproval of the Commission on
Appointments; and b) termination of the effectivity of ad interim appointments
upon "the next adjournment of the Congress."
As regards the first form of restraint, the Constitution provides that regular
appointments to specified offices shall be made only after consent thereto has
been given by the Commission on Appointments, to which the President must
have first submitted the corresponding nominations.
16
Inasmuch as the
Commission can act only while Congress is in session,
17
no appointments could
be made during a recess of Congress for lack of said consent, if the provision
above quoted had not been inserted in the fundamental law. Pursuant thereto,
which Congress is not in session, a nomination need not be made. Neither is
the previous consent of the Commission on Appointments necessary, for, being
impotent to act at such time, said consent cannot possibly be given. In order to
avoid a hiatus in the public service to forestall a suspension in the exercise of
governmental functions the President may "make appointments during the
recess of the Congress, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next adjournment
of the Congress."
Now, why is the lifetime of ad interim appointments limited? Because, if they
expired before the session of Congress, the evil sought to be avoided
interruption in the discharge of essential functions may take place. Because
the same evil would result if the appointments ceased to be effective during the
session of Congress and before its adjournment.
18
Upon the other hand, once
Congress has adjourned, the evil aforementioned may easily be conjured by the
issuance of other ad interim appointments or reappointments.
In short, an ad interim appointment ceases to be effective upon disapproval by
the Commission, because the incumbent can not continue holding office over
the positive objection of the Commission. It ceases, also, upon the next
adjournment of the Congress," simply because the President may then issue
new appointments not because of implied disapproval of the Commission
deduce from its inaction during the session of Congress, for, under the
Constitution, the Commission may affect adversely the ad interim appointments
only by action, never by omission. If the adjournment of Congress were an
implied disapproval of ad interim appointments made prior thereto, then the
President could no longer appoint those so bypassed by the Commission. But,
the fact is that the President may reappoint them, thus clearly indicating that the
reason for said termination of the ad interim appointments is not the
disapproval thereof allegedly inferred from said omission of the Commission,
but, the circumstance that, upon said adjournment of the Congress, the
President is free to make ad interim appointments or reappointments.
It is thus patent that the adjournment of Congress operates differently from the
disapproval by the Commission; that the effect of the former is predicated upon
a premise other than that of the latter; and that the opinion of the majority of
the Court in the case at bar, not only does not lead to an encroachment by
Congress upon the field assigned to the Commission on Appointments, but is,
moreover, in consonance with the latter and the spirit of the fundamental law.
In fact, the first draft of our Constitution provided that ad interim appointments
shall "become ineffective after a period of three months or upon disapproval"
by a Permanent Commission, which was to perform the functions of the
Commission on Appointments. In other words, it subjected the effectivity of said
appointments to (1) a period (three months) and (2) a condition (disapproval by
the Permanent Commission). It is worthy of notice, in this connection, that the
operation of said period was not conditioned upon the organization of the
Permanent Commission. The provision incorporated into the original
Constitution
19
adopted, in principle, the same limitations: a period and a
condition. In lieu of the "Permanent Commission", it used the phrase
"Commission on Appointments", and instead of the three-month term in the
draft, it, merely, inserted the clause "until the next adjournment of the National
Assembly". Upon the amendment of our Constitution, by the establishment of a
bicameral legislature, the term "Congress" was substituted in lieu of the
"National Assembly". The philosophy of the original draft was thereby
preserved the effectivity of ad interim appointments is subject to a condition
(disapproval by the Commission on Appointments) and a period (the next
adjournment of the Congress, regardless of whether the Commission on
Appointments was been organized or not).
A portion of my concurring and dissenting opinion in Aytona vs. Castillo
(L-19313, Jan. 19, 1962) has been quoted in support of petitioner herein.
Detached from the context thereof, the quotation seemingly gives an
impression altogether at variance with the obvious import of said opinion. The
Aytona case did not involve the legal issue posed in this case the effect of
the adjournment of a special session of Congress upon ad interim appointments
made prior thereto. The question raised in the Aytona case was whether an
incoming President could, before Congress had met in regular or special
session, validly withdraw ad interim appointments made by the outgoing
President, in order that the Commission on Appointments could not act, even if
it wanted to, on said appointments. In the regular session of Congress following
said withdrawal of ad interim appointments, the Commission on Appointments
was actually organized. What is more, the Commission did, in fact, approve or
confirm some of the aforementioned ad interim appointments. The Aytona case
was decided even before the next session of Congress had begun. An incident
thereof
20
was decided before the adjournment of said session. There was no
occasion, therefore, to pass upon the effect of said adjournment. In the case at
bar, the ad interim appointments made by the outgoing President were not
withdrawn by the incoming President before the special session of Congress;
the Commission on Appointments was not organized during said special
session; and the President merely considered said appointments
21
ineffective
upon the adjournment of the aforementioned special session, as well as
withdrawn.
True, there are a number of things in common between the Aytona case and the
one at bar; in both cases the outgoing President had made hundreds of ad
interim appointments knowing that he had lost his bid for reelection; in both
cases equity is, admittedly, against the action taken by the outgoing President
and in favor of that taken by the incoming President; in both cases the judicial
verdict has been in favor of the latter. But, then, there are the following points of
difference: (1) the right of the incoming President to withdraw said
appointments in the Aytona case was defended by those who deny the
existence of such right in the present case; (2) those who invoked equity in favor
of the measure taken by the incoming President in the Aytona case, now object
to the application of the rules of equity in favor of the action taken by the
incoming President in the case at bar; (3) the only legal ground, in support of
our decision in the Aytona case was a principle of equity in the writs of
prohibition and mandamus sought by Aytona depended upon the sound
discretion of the Court to be exercised on equitable principles, because of
which the writs were denied whereas, in addition to equity, there is a clear
and explicit provision of the Constitution in support of the step taken by the
incoming President in the present case; (4) those who urged the condition of
said decision in the Aytona case, backed by no other principles than those of
equity, and hailed it as an act of justice, now maintains that said principles, plus
said constitutional provision, are insufficient to warrant a similar decision in the
present case.
It is trite to say that the interest of the appointees involved therein cannot but
be the object of grave concern. But, the Courts must apply the law as they find
it, not as they wish it to be. Moreover, the power to make ad interim
appointments and the lifetime thereof are dictated by considerations of public
policy the neccessity of insuring continuity in the discharge of the sovereign
functions of the State. The protection of the interest of the appointees is
subordinate to such policy and merely incidental thereto. Under our
constitutional set up, the President is the principal administrative officer of the
Government. As such, he is the officer mainly responsible for the faithful
execution of the laws and the maintenance of law and order in the Philippines.
Consistently with this responsibility, he has authority to appoint those who shall
assist him in the discharge of his difficult task. He may exercise such authority,
even if his term is about to expire, but, only to avoid a disruption in the
operation of the Government. And his appointees particularly those whose
appointments have been confirmed by the Commission on Appointments
shall be entitled to remain in office, even after the expiration of his term. But,
the recipients of his ad interim appointments are forwarned that the same are
subject to the resolutory condition and the period adverted to above. They
know that, unless approved by the Commission prior thereto, the appointments
cease to be effective upon the expiration of said period. They know that the
incoming Executive may then either re-appoint those whose ad interim
appointments had lapsed or appoint others whom he may deem fit to carry out
the policies of his administration. In the exercise of this authority, his functions
are mainly political, and, hence, not subject to judicial review.
Wherefore, I vote to dismiss the petition and concur in the majority opinion,
penned by Mr. Justice Felix Bautista Angelo.
DIZON, J., concurring:
I concur. However, aside from the reasons given in support of the majority
opinion penned by Mr. Justice Felix Bautista Angelo, I am of the opinion that
the ad interim appointments extended to petitioner Guevara must be deemed
to have lapsed for the reasons given in support of the concurring opinion
penned by former Justice Sabino Padilla in the Aytona case with which I
concur.
Footnotes
CONCEPCION, J., concurring:
1
The Constitutional provision that the commission shall expire at the end of the
next session is self-executing, and when the session expires the right to hold
under the commission expires with it. If there be no appreciable point of time
between the end of one session and the beginning of another, since of
necessity one ends and another begins, the tenure under the commission is
absolutely terminated as if months of recess supervened. Hind's Precedents of
the House of Representatives, see pp. 859-861 and 862-864, Vol- 5.
2
82 C.J.S. 577.
3
Hattemer v. State Tax Commission, 177 So. 156, 235 Ala. 44; City of
Birmingham v. Southern Express Co., 51 So. 159, Ala. 529; Hartford Accident &
Indemnity Co. v. W.S. Dickey Clay Mfg. Co., 24 A. 2d 315, 26 Del. Ch. 411;
State ex rel, Grodin v. Barnes, 161 So. 568, 573, 119 Fla. 405; Home Owners'
Loan Corporation v. District Court of Woodbury Country, 272 N.W. 416, 223
Iowa 269; 82 C.J.S. 582.
4
50 Am. Jur. 205-206.
5
Art. XV, Const. of the Phil.
6
Art. VI, Sec. 9, Const. of the Phil.
7
The legislative, the executive and the judicial.
8
The legislative to Congress, the executive to the President, and the judicial to
the Supreme Court and such inferior courts as may be established by law.
9
For there may be allocation or division of powers without separation of powers.
10
In all likelihood in the Executive, who has the armed forces under his
command.
11
Art. VI, Sec. 20(2) (3), and Art. VIII, Sec. 13, Const. of the Phil.
12
Or the Senate, as regards treaties, Art. VI, Sec. 10(7), Const. of the Phil.
13
Art. VII, Sec. 10(6), Const. of the Phil.
14
The Constitution has provided for an elaborate system of checks and balances
to secure coordination in the workings of the various departments of the
government. For example, the Chief Executive under our Constitution is so far
made a check on the legislative power that this assessment is required in the
enactment of laws. This, however, is subject to the further check that a bill may
become a law notwithstanding the refusal of the President to approve it, by a
vote of two-thirds or three-fourths, as the case may be, of the National
Assembly. The President has also the right to convene the Assembly in special
session whenever he chooses. On the other hand, the National Assembly
operates as a check on the Executive in the sense that its consent through its
Commission on Appointments is necessary in the appointment of certain
officers; and the concurrence of a majority of all its members is essential to the
conclusion of treaties. . . . . " (Angara vs. Electoral Commission, 63 Phil. 130.)
The Congress of the Philippines operates as a check on the other departments
through the exercise of powers expressly or impliedly conferred upon it. This,
while the power to appoint executive officers is essentially an executive
function, presidential nominations to said offices is subject to confirmation by
the Commission on Appointments, composed of some members of both houses
of Congress. (Francisco, Philippine Political Law, 1955 ed., p. 149.)
Congress may check the President through its Commission on Appointments,
by rejecting appointments made by the President. (Martin, Philippine Political
Law, 1964 Rev. Ed., p. 70.)
The President, in addition to the general grant of executive power, was also
expressly conferred the veto power which is essentially legislative in nature; and
the Commission on Appointments, a legislative agency, was given the specific
power to participate in the essentially executive power of appointment by
confirming or rejecting presidential appointments. (Taada & Carreon, Pol. Law
of the Phil., Vol. 1, pp. 182-183, 206-207.)
15
Art. VI, Sec. 12, Const. of the Phil.
16
Art. VII, Sec. 10(3), Const. of the Phil.
17
Art. VI, Sec. 13, Const. of the Phil.
18
During such session there must first be a nomination, and only after the
Commission has consented thereto may the President issue the corresponding
appointment.
19
Under which the legislative power was vested in a unicameral National
Assembly.
20
The intervention of Perfecto Querubin, Resolution of March 30, 1962. See,
also, Cunanan vs. Tan, L-19721, May 10, 1962.
21
Including those made by him before said special session.









Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 191002 April 20, 2010
ARTURO M. DE CASTRO, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA
MACAPAGAL - ARROYO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191032
JAIME N. SORIANO, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191057
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
A.M. No. 10-2-5-SC
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE
CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY, ESTELITO P.
MENDOZA, Petitioner,
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191149
JOHN G. PERALTA, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN,
JR.; NATIONAL UNION OF PEOPLES LAWYERS; MARLOU B. UBANO;
INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER,
represented by its Immediate Past President, ATTY. ISRAELITO P.
TORREON, and the latter in his own personal capacity as a MEMBER of the
PHILIPPINE BAR; MITCHELL JOHN L. BOISER; BAGONG ALYANSANG
BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN
SECRETARY GENERAL RENATO M. REYES, JR.; CONFEDERATION FOR
UNITY, RECOGNITION AND ADVANCE-MENT OF GOVERNMENT
EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE; KALIPUNAN
NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA
ARELLANO; ALYANSA NG NAGKAKAI SANG KABATAAN NG
SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN
LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS;
LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY
LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF THE
PHILIPPINES (NUSP) CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS
GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and
STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP)
CHAIRMAN MA. CRISTINA ANGELA GUEVARRA; WALDEN F. BELLO and
LORETTA ANN P. ROSALES; WOMEN TRIAL LAWYERS ORGANIZATION
OF THE PHILIPPINES, represented by YOLANDA QUISUMBING-
JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-
OLEDAN; MA. VERENA KASILAG-VILLANUEVA; MARILYN STA. ROMANA;
LEONILA DE JESUS; and GUINEVERE DE LEON; AQUILINO Q. PIMENTEL,
JR.; Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191342
ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and
ATTY. ROLAND B. INTING (IBP Governor-Eastern Visayas), Petitioners,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191420
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA
MACAPAGAL-ARROYO, Respondents.
R E S O L U T I O N
BERSAMIN, J.:
On March 17, 2010, the Court promulgated its decision, holding:
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002
and G.R. No. 191149, and the petition for mandamus in G.R. No.
191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No.
191342 for lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the
Judicial and Bar Council:
(a) To resume its proceedings for the nomination of candidates to
fill the vacancy to be created by the compulsory retirement of
Chief Justice Reynato S. Puno by May 17, 2010;
(b) To prepare the short list of nominees for the position of Chief
Justice;
(c) To submit to the incumbent President the short list of nominees
for the position of Chief Justice on or before May 17, 2010;
and
(d) To continue its proceedings for the nomination of candidates to
fill other vacancies in the Judiciary and submit to the
President the short list of nominees corresponding thereto in
accordance with this decision.
SO ORDERED.
Motions for Reconsideration
Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and
Roland B. Inting (G.R. No. 191342), and Philippine Bar Association (G.R. No.
191420), as well as intervenors Integrated Bar of the Philippines-Davao del Sur
(IBP-Davao del Sur, et al.); Christian Robert S. Lim; Peter Irving Corvera; Bagong
Alyansang Bayan and others (BAYAN, et al.); Alfonso V. Tan, Jr.; the Women Trial
Lawyers Organization of the Philippines (WTLOP); Marlou B. Ubano; Mitchell
John L. Boiser; and Walden F. Bello and Loretta Ann P. Rosales (Bello, et al.),
filed their respective motions for reconsideration. Also filing a motion for
reconsideration was Senator Aquilino Q. Pimentel, Jr., whose belated
intervention was allowed.
We summarize the arguments and submissions of the various motions for
reconsideration, in the aforegiven order:
Soriano
1. The Court has not squarely ruled upon or addressed the issue of whether
or not the power to designate the Chief Justice belonged to the
Supreme Court en banc.
2. The Mendoza petition should have been dismissed, because it sought a
mere declaratory judgment and did not involve a justiciable
controversy.
3. All Justices of the Court should participate in the next deliberations. The
mere fact that the Chief Justice sits as ex officio head of the JBC
should not prevail over the more compelling state interest for him to
participate as a Member of the Court.
Tolentino and Inting
1. A plain reading of Section 15, Article VII does not lead to an
interpretation that exempts judicial appointments from the express ban
on midnight appointments.
2. In excluding the Judiciary from the ban, the Court has made distinctions
and has created exemptions when none exists.
3. The ban on midnight appointments is placed in Article VII, not in Article
VIII, because it limits an executive, not a judicial, power.
4. Resort to the deliberations of the Constitutional Commission is
superfluous, and is powerless to vary the terms of the clear prohibition.
5. The Court has given too much credit to the position taken by Justice
Regalado. Thereby, the Court has raised the Constitution to the level of
a venerated text whose intent can only be divined by its framers as to
be outside the realm of understanding by the sovereign people that
ratified it.
6. Valenzuela should not be reversed.
7. The petitioners, as taxpayers and lawyers, have the clear legal standing
to question the illegal composition of the JBC.
Philippine Bar Association
1. The Courts strained interpretation of the Constitution violates the basic
principle that the Court should not formulate a rule of constitutional
law broader than what is required by the precise facts of the case.
2. Considering that Section 15, Article VII is clear and straightforward, the
only duty of the Court is to apply it. The provision expressly and clearly
provides a general limitation on the appointing power of the President
in prohibiting the appointment of any person to any position in the
Government without any qualification and distinction.
3. The Court gravely erred in unilaterally ignoring the constitutional
safeguard against midnight appointments.
4. The Constitution has installed two constitutional safeguards:- the
prohibition against midnight appointments, and the creation of the
JBC. It is not within the authority of the Court to prefer one over the
other, for the Courts duty is to apply the safeguards as they are, not as
the Court likes them to be.
5. The Court has erred in failing to apply the basic principles of statutory
construction in interpreting the Constitution.
6. The Court has erred in relying heavily on the title, chapter or section
headings, despite precedents on statutory construction holding that
such headings carried very little weight.
7. The Constitution has provided a general rule on midnight appointments,
and the only exception is that on temporary appointments to executive
positions.
8. The Court has erred in directing the JBC to resume the proceedings for
the nomination of the candidates to fill the vacancy to be created by
the compulsory retirement of Chief Justice Puno with a view to
submitting the list of nominees for Chief Justice to President Arroyo on
or before May 17, 2010. The Constitution grants the Court only the
power of supervision over the JBC; hence, the Court cannot tell the
JBC what to do, how to do it, or when to do it, especially in the
absence of a real and justiciable case assailing any specific action or
inaction of the JBC.
9. The Court has engaged in rendering an advisory opinion and has
indulged in speculations.
10. The constitutional ban on appointments being already in effect, the
Courts directing the JBC to comply with the decision constitutes a
culpable violation of the Constitution and the commission of an
election offense.
11. The Court cannot reverse on the basis of a secondary authority a
doctrine unanimously formulated by the Court en banc.
12. The practice has been for the most senior Justice to act as Chief Justice
whenever the incumbent is indisposed. Thus, the appointment of the
successor Chief Justice is not urgently necessary.
13. The principal purpose for the ban on midnight appointments is to arrest
any attempt to prolong the outgoing Presidents powers by means of
proxies. The attempt of the incumbent President to appoint the next
Chief Justice is undeniably intended to perpetuate her power beyond
her term of office.
IBP-Davao del Sur, et al.
1. Its language being unambiguous, Section 15, Article VII of the
Constitution applies to appointments to the Judiciary. Hence, no
cogent reason exists to warrant the reversal of the Valenzuela
pronouncement.
2. Section 16, Article VII of the Constitution provides for presidential
appointments to the Constitutional Commissions and the JBC with the
consent of the Commission on Appointments. Its phrase "other officers
whose appointments are vested in him in this Constitution" is enough
proof that the limitation on the appointing power of the President
extends to appointments to the Judiciary. Thus, Section 14, Section 15,
and Section 16 of Article VII apply to all presidential appointments in
the Executive and Judicial Branches of the Government.
3. There is no evidence that the framers of the Constitution abhorred the
idea of an Acting Chief Justice in all cases.
Lim
1. There is no justiciable controversy that warrants the Courts exercise of
judicial review.
2. The election ban under Section 15, Article VII applies to appointments to
fill a vacancy in the Court and to other appointments to the Judiciary.
3. The creation of the JBC does not justify the removal of the safeguard
under Section 15 of Article VII against midnight appointments in the
Judiciary.
Corvera
1. The Courts exclusion of appointments to the Judiciary from the
Constitutional ban on midnight appointments is based on an
interpretation beyond the plain and unequivocal language of the
Constitution.
2. The intent of the ban on midnight appointments is to cover
appointments in both the Executive and Judicial Departments. The
application of the principle of verba legis (ordinary meaning) would
have obviated dwelling on the organization and arrangement of the
provisions of the Constitution. If there is any ambiguity in Section 15,
Article VII, the intent behind the provision, which is to prevent political
partisanship in all branches of the Government, should have controlled.
3. A plain reading is preferred to a contorted and strained interpretation
based on compartmentalization and physical arrangement, especially
considering that the Constitution must be interpreted as a whole.
4. Resort to the deliberations or to the personal interpretation of the
framers of the Constitution should yield to the plain and unequivocal
language of the Constitution.
5. There is no sufficient reason for reversing Valenzuela, a ruling that is
reasonable and in accord with the Constitution.
BAYAN, et al.
1. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because
the petition did not present a justiciable controversy. The issues it
raised were not yet ripe for adjudication, considering that the office of
the Chief Justice was not yet vacant and that the JBC itself has yet to
decide whether or not to submit a list of nominees to the President.
2. The collective wisdom of Valenzuela Court is more important and
compelling than the opinion of Justice Regalado.
3. In ruling that Section 15, Article VII is in conflict with Section 4(1), Article
VIII, the Court has violated the principle of ut magis valeat quam
pereat (which mandates that the Constitution should be interpreted as
a whole, such that any conflicting provisions are to be harmonized as
to fully give effect to all). There is no conflict between the provisions;
they complement each other.
4. The form and structure of the Constitutions titles, chapters, sections, and
draftsmanship carry little weight in statutory construction. The clear
and plain language of Section 15, Article VII precludes interpretation.
Tan, Jr.
1. The factual antecedents do not present an actual case or controversy.
The clash of legal rights and interests in the present case are merely
anticipated. Even if it is anticipated with certainty, no actual vacancy in
the position of the Chief Justice has yet occurred.
2. The ruling that Section 15, Article VII does not apply to a vacancy in the
Court and the Judiciary runs in conflict with long standing principles
and doctrines of statutory construction. The provision admits only one
exception, temporary appointments in the Executive Department.
Thus, the Court should not distinguish, because the law itself makes no
distinction.
3. Valenzuela was erroneously reversed. The framers of the Constitution
clearly intended the ban on midnight appointments to cover the
members of the Judiciary. Hence, giving more weight to the opinion of
Justice Regalado to reverse the en banc decision in Valenzuela was
unwarranted.
4. Section 15, Article VII is not incompatible with Section 4(1), Article VIII.
The 90-day mandate to fill any vacancy lasts until August 15, 2010, or a
month and a half after the end of the ban. The next President has
roughly the same time of 45 days as the incumbent President (i.e., 44
days) within which to scrutinize and study the qualifications of the next
Chief Justice. Thus, the JBC has more than enough opportunity to
examine the nominees without haste and political uncertainty.1avvphi1
5. When the constitutional ban is in place, the 90-day period under Section
4(1), Article VIII is suspended.
6. There is no basis to direct the JBC to submit the list of nominees on or
before May 17, 2010. The directive to the JBC sanctions a culpable
violation of the Constitution and constitutes an election offense.
7. There is no pressing necessity for the appointment of a Chief Justice,
because the Court sits en banc, even when it acts as the sole judge of
all contests relative to the election, returns and qualifications of the
President and Vice-President. Fourteen other Members of the Court
can validly comprise the Presidential Electoral Tribunal.
WTLOP
1. The Court exceeded its jurisdiction in ordering the JBC to submit the list
of nominees for Chief Justice to the President on or before May 17,
2010, and to continue its proceedings for the nomination of the
candidates, because it granted a relief not prayed for; imposed on the
JBC a deadline not provided by law or the Constitution; exercised
control instead of mere supervision over the JBC; and lacked sufficient
votes to reverse Valenzuela.
2. In interpreting Section 15, Article VII, the Court has ignored the basic
principle of statutory construction to the effect that the literal meaning
of the law must be applied when it is clear and unambiguous; and that
we should not distinguish where the law does not distinguish.
3. There is no urgency to appoint the next Chief Justice, considering that
the Judiciary Act of 1948 already provides that the power and duties of
the office devolve on the most senior Associate Justice in case of a
vacancy in the office of the Chief Justice.
Ubano
1. The language of Section 15, Article VII, being clear and unequivocal,
needs no interpretation
2. The Constitution must be construed in its entirety, not by resort to the
organization and arrangement of its provisions.
3. The opinion of Justice Regalado is irrelevant, because Section 15, Article
VII and the pertinent records of the Constitutional Commission are
clear and unambiguous.
4. The Court has erred in ordering the JBC to submit the list of nominees to
the President by May 17, 2010 at the latest, because no specific law
requires the JBC to submit the list of nominees even before the
vacancy has occurred.
Boiser
1. Under Section 15, Article VII, the only exemption from the ban on
midnight appointments is the temporary appointment to an executive
position. The limitation is in keeping with the clear intent of the framers
of the Constitution to place a restriction on the power of the outgoing
Chief Executive to make appointments.
2. To exempt the appointment of the next Chief Justice from the ban on
midnight appointments makes the appointee beholden to the
outgoing Chief Executive, and compromises the independence of the
Chief Justice by having the outgoing President be continually
influential.
3. The Courts reversal of Valenzuela without stating the sufficient reason
violates the principle of stare decisis.
Bello, et al.
1. Section 15, Article VII does not distinguish as to the type of
appointments an outgoing President is prohibited from making within
the prescribed period. Plain textual reading and the records of the
Constitutional Commission support the view that the ban on midnight
appointments extends to judicial appointments.
2. Supervision of the JBC by the Court involves oversight. The subordinate
subject to oversight must first act not in accord with prescribed rules
before the act can be redone to conform to the prescribed rules.
3. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because
the petition did not present a justiciable controversy.
Pimentel
1. Any constitutional interpretative changes must be reasonable, rational,
and conformable to the general intent of the Constitution as a
limitation to the powers of Government and as a bastion for the
protection of the rights of the people. Thus, in harmonizing seemingly
conflicting provisions of the Constitution, the interpretation should
always be one that protects the citizenry from an ever expanding grant
of authority to its representatives.
2. The decision expands the constitutional powers of the President in a
manner totally repugnant to republican constitutional democracy, and
is tantamount to a judicial amendment of the Constitution without
proper authority.
Comments
The Office of the Solicitor General (OSG) and the JBC separately represent in
their respective comments, thus:
OSG
1. The JBC may be compelled to submit to the President a short list of its
nominees for the position of Chief Justice.
2. The incumbent President has the power to appoint the next Chief
Justice.
3. Section 15, Article VII does not apply to the Judiciary.
4. The principles of constitutional construction favor the exemption of the
Judiciary from the ban on midnight appointments.1awph!1
5. The Court has the duty to consider and resolve all issues raised by the
parties as well as other related matters.
JBC
1. The consolidated petitions should have been dismissed for prematurity,
because the JBC has not yet decided at the time the petitions were
filed whether the incumbent President has the power to appoint the
new Chief Justice, and because the JBC, having yet to interview the
candidates, has not submitted a short list to the President.
2. The statement in the decision that there is a doubt on whether a JBC
short list is necessary for the President to appoint a Chief Justice
should be struck down as bereft of constitutional and legal basis. The
statement undermines the independence of the JBC.
3. The JBC will abide by the final decision of the Court, but in accord with
its constitutional mandate and its implementing rules and regulations.
For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his
comment even if the OSG and the JBC were the only ones the Court has
required to do so. He states that the motions for reconsideration were directed
at the administrative matter he initiated and which the Court resolved. His
comment asserts:
1. The grounds of the motions for reconsideration were already resolved by
the decision and the separate opinion.
2. The administrative matter he brought invoked the Courts power of
supervision over the JBC as provided by Section 8(1), Article VIII of the
Constitution, as distinguished from the Courts adjudicatory power
under Section 1, Article VIII. In the former, the requisites for judicial
review are not required, which was why Valenzuela was docketed as an
administrative matter. Considering that the JBC itself has yet to take a
position on when to submit the short list to the proper appointing
authority, it has effectively solicited the exercise by the Court of its
power of supervision over the JBC.
3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article VIII
is to amend the Constitution.
4. The portions of the deliberations of the Constitutional Commission
quoted in the dissent of Justice Carpio Morales, as well as in some of
the motions for reconsideration do not refer to either Section 15,
Article VII or Section 4(1), Article VIII, but to Section 13, Article VII (on
nepotism).
Ruling
We deny the motions for reconsideration for lack of merit, for all the matters
being thereby raised and argued, not being new, have all been resolved by the
decision of March 17, 2010.
Nonetheless, the Court opts to dwell on some matters only for the purpose of
clarification and emphasis.
First: Most of the movants contend that the principle of stare decisis is
controlling, and accordingly insist that the Court has erred in disobeying or
abandoning Valenzuela.
1

The contention has no basis.
Stare decisis derives its name from the Latin maxim stare decisis et non quieta
movere, i.e., to adhere to precedent and not to unsettle things that are settled.
It simply means that a principle underlying the decision in one case is deemed
of imperative authority, controlling the decisions of like cases in the same court
and in lower courts within the same jurisdiction, unless and until the decision in
question is reversed or overruled by a court of competent authority. The
decisions relied upon as precedents are commonly those of appellate courts,
because the decisions of the trial courts may be appealed to higher courts and
for that reason are probably not the best evidence of the rules of law laid down.
2

Judicial decisions assume the same authority as a statute itself and, until
authoritatively abandoned, necessarily become, to the extent that they are
applicable, the criteria that must control the actuations, not only of those called
upon to abide by them, but also of those duty-bound to enforce obedience to
them.
3
In a hierarchical judicial system like ours, the decisions of the higher
courts bind the lower courts, but the courts of co-ordinate authority do not bind
each other. The one highest court does not bind itself, being invested with the
innate authority to rule according to its best lights.
4

The Court, as the highest court of the land, may be guided but is not controlled
by precedent. Thus, the Court, especially with a new membership, is not
obliged to follow blindly a particular decision that it determines, after re-
examination, to call for a rectification.
5
The adherence to precedents is strict
and rigid in a common-law setting like the United Kingdom, where judges make
law as binding as an Act of Parliament.
6
But ours is not a common-law system;
hence, judicial precedents are not always strictly and rigidly followed. A judicial
pronouncement in an earlier decision may be followed as a precedent in a
subsequent case only when its reasoning and justification are relevant, and the
court in the latter case accepts such reasoning and justification to be applicable
to the case. The application of the precedent is for the sake of convenience and
stability.
For the intervenors to insist that Valenzuela ought not to be disobeyed, or
abandoned, or reversed, and that its wisdom should guide, if not control, the
Court in this case is, therefore, devoid of rationality and foundation. They seem
to conveniently forget that the Constitution itself recognizes the innate authority
of the Court en banc to modify or reverse a doctrine or principle of law laid
down in any decision rendered en banc or in division.
7

Second: Some intervenors are grossly misleading the public by their insistence
that the Constitutional Commission extended to the Judiciary the ban on
presidential appointments during the period stated in Section 15, Article VII.
The deliberations that the dissent of Justice Carpio Morales quoted from the
records of the Constitutional Commission did not concern either Section 15,
Article VII or Section 4(1), Article VIII, but only Section 13, Article VII, a provision
on nepotism. The records of the Constitutional Commission show that
Commissioner Hilario G. Davide, Jr. had proposed to include judges and
justices related to the President within the fourth civil degree of consanguinity
or affinity among the persons whom the President might not appoint during his
or her tenure. In the end, however, Commissioner Davide, Jr. withdrew the
proposal to include the Judiciary in Section 13, Article VII "(t)o avoid any further
complication,"
8
such that the final version of the second paragraph of Section
13, Article VII even completely omits any reference to the Judiciary, to wit:
Section 13. xxx
The spouse and relatives by consanguinity or affinity within the fourth civil
degree of the President shall not during his tenure be appointed as Members of
the Constitutional Commissions, or the Office of the Ombudsman, or as
Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and their subsidiaries.
Last: The movants take the majority to task for holding that Section 15, Article
VII does not apply to appointments in the Judiciary. They aver that the Court
either ignored or refused to apply many principles of statutory construction.
The movants gravely err in their posture, and are themselves apparently
contravening their avowed reliance on the principles of statutory construction.
For one, the movants, disregarding the absence from Section 15, Article VII of
the express extension of the ban on appointments to the Judiciary, insist that
the ban applied to the Judiciary under the principle of verba legis. That is self-
contradiction at its worst.
Another instance is the movants unhesitating willingness to read into 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.
9
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.
10

Thus, the decision of March 17, 2010 has fittingly observed:
Had the framers intended to extend the prohibition contained in Section 15,
Article VII to the appointment of Members of the Supreme Court, they could
have explicitly done so. They could not have ignored the meticulous ordering of
the provisions. They would have easily and surely written the prohibition made
explicit in Section 15, Article VII as 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 Presidents or Acting Presidents term does not refer to the Members of the
Supreme Court.
We cannot permit the meaning of the Constitution to be stretched to any
unintended point in order to suit the purposes of any quarter.
Final Word
It has been insinuated as part of the polemics attendant to the controversy we
are resolving that because all the Members of the present Court were
appointed by the incumbent President, a majority of them are now granting to
her the authority to appoint the successor of the retiring Chief Justice.
The insinuation is misguided and utterly unfair.
The Members of the Court vote on the sole basis of their conscience and the
merits of the issues. Any claim to the contrary proceeds from malice and
condescension. Neither the outgoing President nor the present Members of the
Court had arranged the current situation to happen and to evolve as it has.
None of the Members of the Court could have prevented the Members
composing the Court when she assumed the Presidency about a decade ago
from retiring during her prolonged term and tenure, for their retirements were
mandatory. Yet, she is now left with an imperative duty under the Constitution to
fill up the vacancies created by such inexorable retirements within 90 days from
their occurrence. Her official duty she must comply with. So must we ours who
are tasked by the Constitution to settle the controversy.
ACCORDINGLY, the motions for reconsideration are denied with finality.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
ANTONIO T. CARPIO
Associate Justice
RENATO C. CORONA
Associate Justice
CONCHITA CARPIO MORALES
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice
ROBERTO A. ABAD
Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice
JOSE CATRAL MENDOZA
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Resolution had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
1
In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and
Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62,
Bago City and of Branch 24, Cabanatuan City, respectively, A.M. No. 98-5-01-
SC, November 9, 1998, 298 SCRA 408.
2
Price & Bitner, Effective Legal Research, Little, Brown & Co., New York (1962),
9.7.
3
Caltex (Phil.), Inc. v. Palomar, No. L-19650, September 29, 1966, 18 SCRA 247
4
E.g., Dias, Jurisprudence, Butterworths, London, 1985, Fifth Edition, p. 127.
5
Limketkai Sons Milling, Inc. v. Court of Appeals, G.R. No. 118509, September
5, 1996, 261 SCRA 464.
6
See Calabresi, A Common Law for the Age of Statutes, Harvard University
Press, p. 4 (1982) and endnote 12 of the page, which essentially recounts that
the strict application of the doctrine of stare decisis is true only in a common-
law jurisdiction like England (citing Wise, The Doctrine of Stare Decisis, 21
Wayne Law Review, 1043, 1046-1047 (1975). Calabresi recalls that the English
House of Lords decided in 1898 (London Tramways Co. v. London County
Council, A.C. 375) that they could not alter precedents laid down by the House
of Lords acting as the supreme court in previous cases, but that such precedents
could only be altered by an Act of Parliament, for to do otherwise would mean
that the courts would usurp legislative function; he mentions that in 1966, Lord
Chancellor Gardiner announced in a Practice Statement a kind of general
memorandum from the court that while: "Their Lordships regard the use of
precedent as an indispensable foundation upon which to decide what is the
law," they "nevertheless recognize that too rigid adherence to precedent may
lead to injustice in a particular case and also unduly restrict the proper
development of the law. They propose, therefore, to modify their present
practice and, while treating former decisions of this House as normally binding,
to depart from a previous decision when it appears right to do so." (Calabresi
cites Leach, Revisionism in the House of Lords: The Bastion of Rigid Stare
Decisis Falls, 80 Harvard Law Review, 797 (1967).
7
Section 4 (2), Article VIII, provides:
xxx
(3) Cases or matters heard by a division shall be decided or resolved with the
concurrence of a majority of the Members who actually took part in the
deliberations on the issues in the case and voted thereon, and in no case,
without the concurrence of at least three of such Members. When the required
number is not obtained, the case shall be decided en banc; Provided, that no
doctrine or principle of law laid down by the court in a decision rendered en
banc or in division may be modified or reversed except by the court sitting en
banc.
8
Record of the 1986 Constitutional Commission, Vol. 2, July 31, 1986, RCC No.
44. pp. 542-543.
9
Smith v. State, 66 Md. 215, 7 Atl. 49.
10
State ex rel Everding v. Simon, 20 Ore. 365, 26 Pac. 170.

DISSENTING OPINION
CARPIO MORALES, J.:
No compelling reason exists for the Court to deny a reconsideration of the
assailed Decision. The various motions for reconsideration raise hollering
substantial arguments and legitimately nagging questions which the Court must
meet head on.
If this Court is to deserve or preserve its revered place not just in the hierarchy
but also in history, passion for reason demands the issuance of an extended and
extensive resolution that confronts the ramifications and repercussions of its
assailed Decision. Only then can it offer an illumination that any self-respecting
student of the law clamors and any adherent of the law deserves. Otherwise, it
takes the risk of reeking of an objectionable air of supreme judicial arrogance.
It is thus imperative to settle the following issues and concerns:
Whether the incumbent President is constitutionally proscribed from
appointing the successor of Chief Justice Reynato S. Puno upon his
retirement on May 17, 2010 until the ban ends at 12:00 noon of June 30,
2010
1. In interpreting the subject constitutional provisions, the Decision disregarded
established canons of statutory construction. Without explaining the
inapplicability of each of the relevant rules, the Decision immediately placed
premium on the arrangement and ordering of provisions, one of the weakest
tools of construction, to arrive at its conclusion.
2. In reversing Valenzuela, the Decision held that the Valenzuela dictum did not
firmly rest on ConCom deliberations, yet it did not offer to cite a material
ConCom deliberation. It instead opted to rely on the memory of Justice Florenz
Regalado which incidentally mentioned only the "Court of Appeals." The
Decisions conclusion must rest on the strength of its own favorable Concom
deliberation, none of which to date has been cited.
3. Instead of choosing which constitutional provision carves out an exception
from the other provision, the most legally feasible interpretation (in the limited
cases of temporary physical or legal impossibility of compliance, as expounded
in my Dissenting Opinion) is to consider the appointments ban or other
substantial obstacle as a temporary impossibility which excuses or releases the
constitutional obligation of the Office of the President for the duration of the
ban or obstacle.
In view of the temporary nature of the circumstance causing the impossibility of
performance, the outgoing President is released from non-fulfillment of the
obligation to appoint, and the duty devolves upon the new President. The delay
in the fulfillment of the obligation becomes excusable, since the law cannot
exact compliance with what is impossible. The 90-day period within which to
appoint a member of the Court is thus suspended and the period could only
start or resume to run when the temporary obstacle disappears (i.e., after the
period of the appointments ban; when there is already a quorum in the JBC; or
when there is already at least three applicants).
Whether the Judicial and Bar Council is obliged to submit to the President
the shortlist of nominees for the position of Chief Justice (or Justice of this
Court) on or before the occurrence of the vacancy.
1. The ruling in the Decision that obligates the JBC to submit the shortlist to the
President on or before the occurrence of the vacancy in the Court runs counter
to the Concom deliberations which explain that the 90-day period is allotted for
both the nomination by the JBC and the appointment by the President. In the
move to increase the period to 90 days, Commissioner Romulo stated that
"[t]he sense of the Committee is that 60 days is awfully short and that the
[Judicial and Bar] Council, as well as the President, may have difficulties with
that."
2. To require the JBC to submit to the President a shortlist of nominees on or
before the occurrence of vacancy in the Court leads to preposterous results. It
bears reiterating that the requirement is absurd when, inter alia, the vacancy is
occasioned by the death of a member of the Court, in which case the JBC could
never anticipate the death of a Justice, and could never submit a list to the
President on or before the occurrence of vacancy.
3. The express allowance in the Constitution of a 90-day period of vacancy in
the membership of the Court rebuts any public policy argument on avoiding a
vacuum of even a single day without a duly appointed Chief Justice. Moreover,
as pointed out in my Dissenting Opinion, the practice of having an acting Chief
Justice in the interregnum is provided for by law, confirmed by tradition, and
settled by jurisprudence to be an internal matter.
The Resolution of the majority, in denying the present Motions for
Reconsideration, failed to rebut the foregoing crucial matters.
I, therefore, maintain my dissent and vote to GRANT the Motions for
Reconsideration of the Decision of March 17, 2010 insofar as it holds that the
incumbent President is not constitutionally proscribed from appointing the
successor of Chief Justice Reynato S. Puno upon his retirement on May 17, 2010
until the ban ends at 12:00 noon of June 30, 2010 and that the Judicial and Bar
Council is obliged to submit to the President the shortlist of nominees for the
position of Chief Justice on or before May 17, 2010.
CONCHITA CARPIO MORALES
Associate Justice

CONCURRING AND DISSENTING OPINION
BRION, J.:
The Motions for Reconsideration
After sifting through the motions for reconsideration, I found that the arguments
are largely the same arguments that we have passed upon, in one form or
another, in the various petitions. Essentially, the issues boil down to justiciability;
the conflict of constitutional provisions; the merits of the cited constitutional
deliberations; and the status and effect of the Valenzuela
1
ruling. Even the
motion for reconsideration of the Philippine Bar Association (G.R. No. 191420),
whose petition I did not expressly touch upon in my Separate Opinion, basically
dwells on these issues.
I have addressed most, if not all, of these issues and I submit my Separate
Opinion
2
as my basic response to the motions for reconsideration,
supplemented by the discussions below.
As I reflected in my Separate Opinion (which three other Justices joined),
3
the
election appointment ban under Article VII, Section 15 of the Constitution
should not apply to the appointment of Members of the Supreme Court whose
period for appointment is separately provided for under Article VIII, Section
4(1). I shared this conclusion with the Courts Decision although our reasons
differed on some points.
I diverged fully from the Decision on the question of whether we should
maintain or reverse our ruling in Valenzuela. I maintained that it is still good law;
no reason exists to touch the ruling as its main focus the application of the
election ban on the appointment of lower court judges under Article VIII,
Section 9 of the Constitution is not even an issue in the present case and was
discussed only because the petitions incorrectly cited the ruling as authority on
the issue of the Chief Justices appointment. The Decision proposed to reverse
Valenzuela but only secured the support of five (5) votes, while my Separate
Opinion in support of Valenzuela had four (4) votes. Thus, on the whole, the
Decision did not prevail in reversing Valenzuela, as it only had five (5) votes in a
field of 12 participating Members of the Court. Valenzuela should therefore
remain, as of the filing of this Opinion, as a valid precedent.
Acting on the present motions for reconsideration, I join the majority in denying
the motions with respect to the Chief Justice issue, although we differ in some
respects on the reasons supporting the denial. I dissent from the conclusion that
the Valenzuela ruling should be reversed. My divergence from the majoritys
reasons and conclusions compels me to write this Concurring and Dissenting
Opinion.
The Basic Requisites / Justiciability
One marked difference between the Decision and my Separate Opinion is our
approach on the basic requisites/justiciability issues. The Decision apparently
glossed over this aspect of the case, while I fully explained why the De Castro
4

and Peralta
5
petitions should be dismissed outright. In my view, these petitions
violated the most basic requirements of their chosen medium for review a
petition for certiorari and mandamus under Rule 65 of the Rules of Court.
The petitions commonly failed to allege that the Judicial and Bar Council (JBC)
performs judicial or quasi-judicial functions, an allegation that the petitions
could not really make, since the JBC does not really undertake these functions
and, for this reason, cannot be the subject of a petition for certiorari; hence, the
petitions should be dismissed outright. They likewise failed to facially show any
failure or refusal by the JBC to undertake a constitutional duty to justify the
issuance of a writ of mandamus; they invoked judicial notice that we could not
give because there was, and is, no JBC refusal to act.
6
Thus, the mandamus
aspects of these petitions should have also been dismissed outright. The
ponencia, unfortunately, failed to fully discuss these legal infirmities.
The motions for reconsideration lay major emphasis on the alleged lack of an
actual case or controversy that made the Chief Justices appointment a
justiciable issue. They claim that the Court cannot exercise the power of judicial
review where there is no clash of legal rights and interests or where this clash is
merely anticipated, although the anticipated event shall come with certainty.
7

What the movants apparently forgot, focused as they were on their respective
petitions, is that the present case is not a single-petition case that rises or falls
on the strength of that single petition. The present case involves various
petitions and interventions,
8
not necessarily pulling towards the same direction,
although each one is focused on the issue of whether the election appointment
ban under Article VII, Section 15 of the Constitution should apply to the
appointment of the next Chief Justice of the Supreme Court.
Among the petitions filed were those of Tolentino (G.R. No. 191342), Soriano
(G.R. No. 191032) and Mendoza (A.M. No. 10-2-5-SC). The first two are
petitions for prohibition under Section 2 of Rule 65 of the Rules of Court.
9
While
they commonly share this medium of review, they differ in their supporting
reasons. The Mendoza petition, on the other hand, is totally different it is a
petition presented as an administrative matter (A.M.) in the manner that the
Valenzuela case was an A.M. case. As I pointed out in the Separate Opinion, the
Court uses the A.M. docket designation on matters relating to its exercise of
supervision over all courts and their personnel.
10
I failed to note then, but I
make of record now, that court rules and regulations the outputs in the Courts
rulemaking function are also docketed as A.M. cases.
That an actual case or controversy involving a clash of rights and interests exists
is immediately and patently obvious in the Tolentino and Soriano petitions. At
the time the petitions were filed, the JBC had started its six-phase nomination
process that would culminate in the submission of a list of nominees to the
President of the Philippines for appointive action. Tolentino and Soriano
lawyers and citizens with interest in the strict observance of the election ban
sought to prohibit the JBC from continuing with this process. The JBC had
started to act, without any prodding from the Court, because of its duty to start
the nomination process but was hampered by the petitions filed and the legal
questions raised that only the Supreme Court can settle with finality.
11
Thus, a
clash of interests based on law existed between the petitioners and the JBC. To
state the obvious, a decision in favor of Tolentino or Soriano would result in a
writ of prohibition that would direct the JBC not to proceed with the nomination
process.
The Mendoza petition cited the effect of a complete election ban on judicial
appointments (in view of the already high level of vacancies and the backlog of
cases) as basis, and submitted the question as an administrative matter that the
Court, in the exercise of its supervisory authority over the Judiciary and the JBC
itself, should act upon. At the same time, it cited the "public discourse and
controversy" now taking place because of the application of the election ban on
the appointment of the Chief Justice, pointing in this regard to the very same
reasons mentioned in Valenzuela about the need to resolve the issue and avoid
the recurrence of conflict between the Executive and the Judiciary, and the
need to "avoid polemics concerning the matter."
12

I recognized in the Separate Opinion that, unlike in Valenzuela where an
outright defiance of the election ban took place, no such obvious triggering
event transpired in the Mendoza petition.
13
Rather, the Mendoza petition
looked to the supervisory power of the Court over judicial personnel and over
the JBC as basis to secure a resolution of the election ban issue. The JBC, at
that time, had indicated its intent to look up to the Courts supervisory power
and role as the final interpreter of the Constitution to guide it in responding to
the challenges it confronts.
14
To me, this was "a point no less critical, from the
point of view of supervision, than the appointment of the two judges during the
election ban period in Valenzuela."
15

In making this conclusion, I pointed out in my Separate Opinion the
unavoidable surrounding realities evident from the confluence of events,
namely: (1) an election to be held on May 10, 2010; (2) the retirement of the
Chief Justice on May 17, 2010; (3) the lapse of the terms of the elective officials
from the President to the congressmen on June 30, 2010; (4) the delay before
the Congress can organize and send its JBC representatives; and (5) the
expiration of the term of a non-elective JBC member in July 2010.
16
All these
juxtaposed with the Courts supervision over the JBC, the latters need for
guidance, and the existence of an actual controversy on the same issues
bedeviling the JBC in my view, were sufficient to save the Mendoza petition
from being a mere request for opinion or a petition for declaratory relief that
falls under the jurisdiction of the lower court. This recognition is beyond the
level of what this Court can do in handling a moot and academic case usually,
one that no longer presents a judiciable controversy but one that can still be
ruled upon at the discretion of the court when the constitutional issue is of
paramount public interest and controlling principles are needed to guide the
bench, the bar and the public.
17

To be sure, this approach in recognizing when a petition is actionable is novel.
An overriding reason for this approach can be traced to the nature of the
petition, as it rests on the Courts supervisory authority and relates to the
exercise of the Courts administrative rather than its judicial functions (other than
these two functions, the Court also has its rulemaking function under Article VIII,
Section 5(5) of the Constitution). Strictly speaking, the Mendoza petition calls for
directions from the Court in the exercise of its power of supervision over the
JBC,
18
not on the basis of the power of judicial review.
19
In this sense, it does
not need the actual clash of interests of the type that a judicial adjudication
requires. All that must be shown is the active need for supervision to justify the
Courts intervention as supervising authority.
Under these circumstances, the Courts recognition of the Mendoza petition was
not an undue stretch of its constitutional powers. If the recognition is unusual at
all, it is so only because of its novelty; to my knowledge, this is the first time
ever in Philippine jurisprudence that the supervisory authority of the Court over
an attached agency has been highlighted in this manner. Novelty, per se,
however, is not a ground for objection nor a mark of infirmity for as long as the
novel move is founded in law. In this case, as in the case of the writ of amparo
and habeas data that were then novel and avowedly activist in character,
sufficient legal basis exists to actively invoke the Courts supervisory authority
granted under the Constitution, no less as basis for action.
To partly quote the wording of the Constitution, Article VIII, Section 8(1) and (5)
provide that "A Judicial and Bar Council is hereby created under the supervision
of the Supreme Court It may exercise such other functions and duties as the
Supreme Court may assign to it." Supervision, as a legal concept, more often
than not, is defined in relation with the concept of control.
20
In Social Justice
Society v. Atienza,
21
we defined "supervision" as follows:
[Supervision] means overseeing or the power or authority of an officer to see
that subordinate officers perform their duties. If the latter fail or neglect to fulfill
them, the former may take such action or step as prescribed by law to make
them perform their duties. Control, on the other hand, means the power of an
officer to alter or modify or nullify or set aside what a subordinate officer ha[s]
done in the performance of his duties and to substitute the judgment of the
former for that of the latter.
Under this definition, the Court cannot dictate on the JBC the results of its
assigned task, i.e., who to recommend or what standards to use to determine
who to recommend. It cannot even direct the JBC on how and when to do its
duty, but it can, under its power of supervision, direct the JBC to "take such
action or step as prescribed by law to make them perform their duties," if the
duties are not being performed because of JBCs fault or inaction, or because of
extraneous factors affecting performance. Note in this regard that,
constitutionally, the Court can also assign the JBC other functions and duties a
power that suggests authority beyond what is purely supervisory.
Where the JBC itself is at a loss on how to proceed in light of disputed
constitutional provisions that require interpretation,
22
the Court is not legally out
of line as the final authority on the interpretation of the Constitution and as
the entity constitutionally-tasked to supervise the JBC in exercising its
oversight function by clarifying the interpretation of the disputed constitutional
provision to guide the JBC. In doing this, the Court is not simply rendering a
general legal advisory; it is providing concrete and specific legal guidance to
the JBC in the exercise of its supervisory authority, after the latter has asked for
assistance in this regard. That the Court does this while concretely resolving
actual controversies (the Tolentino and Soriano petitions) on the same issue
immeasurably strengthens the intrinsic correctness of the Courts action.
It may be asked: why does the Court have to recognize the Mendoza petition
when it can resolve the conflict between Article VII, Section 15 and Article VIII,
Section 4(1) through the Tolentino and Soriano petitions?
The answer is fairly simple and can be read between the lines of the above
explanation on the relationship between the Court and the JBC. First,
administrative is different from judicial function and providing guidance to the
JBC can only be appropriate in the discharge of the Courts administrative
function. Second, the resolution of the Tolentino and Soriano petitions will lead
to rulings directly related to the underlying facts of these petitions, without clear
guidelines to the JBC on the proper parameters to observe vis--vis the
constitutional dispute along the lines the JBC needs. In fact, concrete guidelines
addressed to the JBC in the resolution of the Tolentino/Soriano petitions may
even lead to accusations that the Courts resolution is broader than is required
by the facts of the petitions. The Mendoza petition, because it pertains directly
to the performance of the JBCs duty and the Courts supervisory authority,
allows the issuance of precise guidelines that will enable the JBC to fully and
seasonably comply with its constitutional mandate.
I hasten to add that the JBCs constitutional task is not as simple as some
people think it to be. The process of preparing and submitting a list of
nominees is an arduous and time-consuming task that cannot be done
overnight. It is a six-step process lined with standards requiring the JBC to
attract the best available candidates, to examine and investigate them, to
exhibit transparency in all its actions while ensuring that these actions conform
to constitutional and statutory standards (such as the election ban on
appointments), to submit the required list of nominees on time, and to ensure
as well that all these acts are politically neutral. On the time element, the JBC
list for the Supreme Court has to be submitted on or before the vacancy occurs
given the 90-day deadline that the appointing President is given in making the
appointment. The list will be submitted, not to the President as an outgoing
President, nor to the election winner as an incoming President, but to the
President of the Philippines whoever he or she may be. If the incumbent
President does not act on the JBC list within the time left in her term, the same
list shall be available to the new President for him to act upon. In all these, the
Supreme Court bears the burden of overseeing that the JBCs duty is done,
unerringly and with utmost dispatch; the Court cannot undertake this
supervision in a manner consistent with the Constitutions expectation from the
JBC unless it adopts a pro-active stance within the limits of its supervisory
authority.
The Disputed Provisions
The movants present their arguments on the main issue at several levels. Some
argue that the disputed constitutional provisions Article VII, Section 15 and
Article VIII, Section 4(1) are clear and speak for themselves on what the
Constitution covers in banning appointments during the election period.
23
One
even posits that there is no conflict because both provisions can be given effect
without one detracting against the full effectiveness of the other,
24
although the
effect is to deny the sitting President the option to appoint in favor of a
deferment for the incoming Presidents action. Still others, repeating their
original arguments, appeal to the principles of interpretation and latin maxims
to prove their point.
25

In my discussions in the Separate Opinion, I stated upfront my views on how the
disputed provisions interact with each other. Read singly and in isolation, they
appear clear (this reading applies the "plain meaning rule" that Tolentino
advocates in his motion for reconsideration, as explained below). Arrayed side
by side with each other and considered in relation with the other provisions of
the Constitution, particularly its structure and underlying intents, the conflict
however becomes obvious and unavoidable.
Section 15 on its face disallows any appointment in clear negative terms ("shall
not make") without specifying the appointments covered by the prohibition.
26

From this literal and isolated reading springs the argument that no exception is
provided (except that found in Section 15 itself) so that even the Judiciary is
covered by the ban on appointments.
On the other hand, Section 4(1) is likewise very clear and categorical in its
terms: any vacancy in the Court shall be filled within 90 days from its
occurrence.
27
In the way of Section 15, Section 4(1) is also clear and categorical
and provides no exception; the appointment refers solely to the Members of
the Supreme Court and does not mention any period that would interrupt, hold
or postpone the 90-day requirement.
From this perspective, the view that no conflict exists cannot be seriously made,
unless with the mindset that one provision controls and the other should yield.
Many of the petitions in fact advocate this kind of reading, some of them openly
stating that the power of appointment should be reserved for the incoming
President.
28
The question, however, is whether from the viewpoint of strict law
and devoid of the emotionalism and political partisanship that permeate the
present Philippine political environment this kind of mindset can really be
adopted in reading and applying the Constitution.
In my view, this kind of mindset and the conclusion it inevitably leads to cannot
be adopted; the provisions of the Constitution cannot be read in isolation from
what the whole contains. To be exact, the Constitution must be read and
understood as a whole, reconciling and harmonizing apparently conflicting
provisions so that all of them can be given full force and effect,
29
unless the
Constitution itself expressly states otherwise.
30

Not to be forgotten in reading and understanding the Constitution are the many
established underlying constitutional principles that we have to observe and
respect if we are to be true to the Constitution. These principles among them
the principles of checks and balances and separation of powers are not always
expressly stated in the Constitution, but no one who believes in and who has
studied the Constitution can deny that they are there and deserve utmost
attention, respect, and even priority consideration.
In establishing the structures of government, the ideal that the Constitution
seeks to achieve is one of balance among the three great departments of
government the Executive, the Legislative and the Judiciary, with each
department undertaking its constitutionally-assigned task as a check against the
exercise of power by the others, while all three departments move forward in
working for the progress of the nation. Thus, the Legislature makes the laws and
is supreme in this regard, in the way that the Executive is supreme in enforcing
and administering the law, while the Judiciary interprets both the Constitution
and the law. Any provision in each of the Articles on these three departments
31

that intrudes into the other must be closely examined if the provision affects
and upsets the desired balance.
Under the division of powers, the President as Chief Executive is given the
prerogative of making appointments, subject only to the legal qualification
standards, to the checks provided by the Legislatures Commission on
Appointments (when applicable) and by the JBC for appointments in the
Judiciary, and to the Constitutions own limitations. Conflict comes in when the
Constitution laid down Article VII, Section 15 limiting the Presidents appointing
power during the election period. This limitation of power would have been all-
encompassing and would, thus, have extended to all government positions the
President can fill, had the Constitution not inserted a provision, also on
appointments, in the Article on the Judiciary with respect to appointments to
the Supreme Court. This conflict gives rise to the questions: which provision
should prevail, or should both be given effect? Or should both provisions yield
to a higher concern the need to maintain the integrity of our elections?
A holistic reading of the Constitution a must in constitutional interpretation
dictates as a general rule that the tasks assigned to each department and their
limitations should be given full effect to fulfill the constitutional purposes under
the check and balance principle, unless the Constitution itself expressly
indicates its preference for one task, concern or standard over the others,
32
or
unless this Court, in its role as interpreter of the Constitution, has spoken on the
appropriate interpretation that should be made.
33

In considering the interests of the Executive and the Judiciary, a holistic
approach starts from the premise that the constitutional scheme is to grant the
President the power of appointment, subject to the limitation provided under
Article VII, Section 15. At the same time, the Judiciary is assured, without
qualifications under Article VIII, Section 4(1), of the immediate appointment of
Members of the Supreme Court, i.e., within 90 days from the occurrence of the
vacancy. If both provisions would be allowed to take effect, as I believe they
should, the limitation on the appointment power of the President under Article
VII, Section 15 should itself be limited by the appointment of Members of the
Court pursuant to Article VIII, Section 4(1), so that the provision applicable to
the Judiciary can be given full effect without detriment to the Presidents
appointing authority. This harmonization will result in restoring to the President
the full authority to appoint Members of the Supreme Court pursuant to the
combined operation of Article VII, Section 15 and Article VIII, Section 4(1).
Viewed in this light, there is essentially no conflict, in terms of the authority to
appoint, between the Executive and Judiciary; the President would effectively
be allowed to exercise the Executives traditional presidential power of
appointment while respecting the Judiciarys own prerogative. In other words,
the President retains full powers to appoint Members of the Court during the
election period, and the Judiciary is assured of a full membership within the
time frame given.
Interestingly, the objection to the full application of Article VIII, Section 4(1)
comes, not from the current President, but mainly from petitioners echoing the
present presidential candidates, one of whom shall soon be the incoming
President. They do not, of course, cite reasons of power and the loss of the
opportunity to appoint the Chief Justice; many of the petitioners/intervenors
oppose the full application of Article VIII, Section 4(1) based on the need to
maintain the integrity of the elections through the avoidance of a "midnight
appointment."
This "integrity" reason is a given in a democracy and can hardly be opposed on
the theoretical plane, as the integrity of the elections must indeed prevail in a
true democracy. The statement, however, begs a lot of questions, among them
the question of whether the appointment of a full Court under the terms of
Article VIII, Section 4(1) will adversely affect or enhance the integrity of the
elections.
In my Separate Opinion, I concluded that the appointment of a Member of the
Court even during the election period per se implies no adverse effect on the
integrity of the election; a full Court is ideal during this period in light of the
Courts unique role during elections. I maintain this view and fully concur in this
regard with the majority.
During the election period, the court is not only the interpreter of the
Constitution and the election laws; other than the Commission on Elections and
the lower courts to a limited extent, the Court is likewise the highest impartial
recourse available to decisively address any problem or dispute arising from the
election. It is the leader and the highest court in the Judiciary, the only one of
the three departments of government directly unaffected by the election. The
Court is likewise the entity entrusted by the Constitution, no less, with the
gravest election-related responsibilities. In particular, it is the sole judge of all
contests in the election of the President and the Vice-President, with leadership
and participation as well in the election tribunals that directly address Senate
and House of Representatives electoral disputes. With this grant of
responsibilities, the Constitution itself has spoken on the trust it reposes on the
Court on election matters. This reposed trust, to my mind, renders academic
any question of whether an appointment during the election period will
adversely affect the integrity of the elections it will not, as the maintenance of
a full Court in fact contributes to the enforcement of the constitutional scheme
to foster a free and orderly election.
In reading the motions for reconsideration against the backdrop of the partisan
political noise of the coming elections, one cannot avoid hearing echoes from
some of the arguments that the objection is related, more than anything else, to
their lack of trust in an appointment to be made by the incumbent President
who will soon be bowing out of office. They label the incumbent Presidents act
as a "midnight appointment" a term that has acquired a pejorative meaning in
contemporary society.
As I intimated in my Separate Opinion, the imputation of distrust can be made
against any appointing authority, whether outgoing or incoming. The incoming
President himself will be before this Court if an election contest arises; any
President, past or future, would also naturally wish favorable outcomes in legal
problems that the Court would resolve. These possibilities and the potential for
continuing influence in the Court, however, cannot be active considerations in
resolving the election ban issue as they are, in their present form and
presentation, all speculative. If past record is to be the measure, the record of
past Chief Justices and of this Court speaks for itself with respect to the
Justices relationship with, and deferral to, the appointing authority in their
decisions.
What should not be forgotten in examining the records of the Court, from the
prism of problems an electoral exercise may bring, is the Courts unique and
proven capacity to intervene and diffuse situations that are potentially explosive
for the nation. EDSA II particularly comes to mind in this regard (although it was
an event that was not rooted in election problems) as it is a perfect example of
the potential for damage to the nation that the Court can address and has
addressed. When acting in this role, a vacancy in the Court is not only a vote
less, but a significant contribution less in the Courts deliberations and capacity
for action, especially if the missing voice is the voice of the Chief Justice.
Be it remembered that if any EDSA-type situation arises in the coming elections,
it will be compounded by the lack of leaders because of the lapse of the
Presidents term by June 30, 2010; by a possible failure of succession if for some
reason the election of the new leadership becomes problematic; and by the
similar absence of congressional leadership because Congress has not yet
convened to organize itself.
34
In this scenario, only the Judiciary of the three
great departments of government stands unaffected by the election and should
at least therefore be complete to enable it to discharge its constitutional role to
its fullest potential and capacity. To state the obvious, leaving the Judiciary
without any permanent leader in this scenario may immeasurably complicate the
problem, as all three departments of government will then be leaderless.
To stress what I mentioned on this point in my Separate Opinion, the absence of
a Chief Justice will make a lot of difference in the effectiveness of the Court as
he or she heads the Judiciary, sits as Chair of the JBC and of the Presidential
Electoral Tribunal, presides over impeachment proceedings, and provides the
moral suasion and leadership that only the permanent mantle of the Chief
Justice can bestow. EDSA II is just one of the many lessons from the past when
the weightiest of issues were tackled and promptly resolved by the Court.
Unseen by the general public in all these was the leadership that was there to
ensure that the Court would act as one, in the spirit of harmony and stability
although divergent in their individual views, as the Justices individually make
their contributions to the collegial result. To some, this leadership may only be
symbolic, as the Court has fully functioned in the past even with an incomplete
membership or under an Acting Chief Justice. But as I said before, an
incomplete Court "is not a whole Supreme Court; it will only be a Court with 14
members who would act and vote on all matters before it." To fully recall what I
have said on this matter:
The importance of the presence of one Member of the Court can and should
never be underestimated, particularly on issues that may gravely affect the
nation. Many a case has been won or lost on the basis of one vote. On an issue
of the constitutionality of a law, treaty or statute, a tie vote which is possible in
a 14 member court means that the constitutionality is upheld. This was our
lesson in Isagani Cruz v. DENR Secretary.
More than the vote, Court deliberation is the core of the decision-making
process and one voice is less is not only a vote less but a contributed opinion,
an observation, or a cautionary word less for the Court. One voice can be a big
difference if the missing voice is that of the Chief Justice.
Without meaning to demean the capability of an Acting Chief Justice, the
ascendancy in the Court of a permanent sitting Chief Justice cannot be
equaled. He is the first among equals a primus inter pares who sets the tone
for the Court and the Judiciary, and who is looked up to on all matters, whether
administrative or judicial. To the world outside the Judiciary, he is the
personification of the Court and the whole Judiciary. And this is not surprising
since, as Chief Justice, he not only chairs the Court en banc, but chairs as well
the Presidential Electoral Tribunal that sits in judgment over election disputes
affecting the President and the Vice-President. Outside of his immediate Court
duties, he sits as Chair of the Judicial and Bar Council, the Philippine Judicial
Academy and, by constitutional command, presides over the impeachment of
the President. To be sure, the Acting Chief Justice may be the ablest, but he is
not the Chief Justice without the mantle and permanent title of the Office, and
even his presence as Acting Chief Justice leaves the Court with one member
less. Sadly, this member is the Chief Justice; even with an Acting Chief Justice,
the Judiciary and the Court remains headless.
35

Given these views, I see no point in re-discussing the finer points of technical
interpretation and their supporting latin maxims that I have addressed in my
Separate Opinion and now feel need no further elaboration; maxims can be
found to serve a pleaders every need and in any case are the last interpretative
tools in constitutional interpretation. Nor do I see any point in discussing
arguments based on the intent of the framers of the Constitution now cited by
the parties in the contexts that would serve their own ends. As may be evident
in these discussions, other than the texts of the disputed provisions, I prefer to
examine their purposes and the consequences of their application, understood
within the context of democratic values. Past precedents are equally invaluable
for the lead, order, and stability they contribute, but only if they are in point,
certain, and still alive to current realities, while the history of provisions,
including the intents behind them, are primarily important to ascertain the
purposes the provisions serve.
From these perspectives and without denigrating the framers historical
contributions, I say that it is the Constitution that now primarily speaks to us in
this case and what we hear are its direct words, not merely the recorded
isolated debates reflecting the personal intents of the constitutional
commissioners as cited by the parties to fit their respective theories. The voice
speaking the words of the Constitution is our best guide, as these words will
unalterably be there for us to read in the context of their purposes and the
nations needs and circumstances. This Concurring and Dissenting Opinion
hears and listens to that voice.
The Valenzuela Decision
The ponencias ruling reversing Valenzuela, in my view, is out of place in the
present case, since at issue here is the appointment of the Chief Justice during
the period of the election ban, not the appointment of lower court judges that
Valenzuela resolved. To be perfectly clear, the conflict in the constitutional
provisions is not confined to Article VII, Section 15 and Article VIII, Section 4(1)
with respect to the appointment of Members of the Supreme Court; even
before the Valenzuela ruling, the conflict already existed between Article VII,
Section 15 and Article VIII, Section 9 the provision on the appointment of the
justices and judges of courts lower than the Supreme Court. After this Courts
ruling in Valenzuela, no amount of hairsplitting can result in the conclusion that
Article VII, Section 15 applied the election ban over the whole Judiciary,
including the Supreme Court, as the facts and the fallo of Valenzuela plainly
spoke of the objectionable appointment of two Regional Trial Court judges. To
reiterate, Valenzuela only resolved the conflict between Article VII, Section 15
and appointments to the Judiciary under Article VIII, Section 9.
If Valenzuela did prominently figure at all in the present case, the prominence
can be attributed to the petitioners mistaken reading that this case is primary
authority for the dictum that Article VII, Section 15 completely bans all
appointments to the Judiciary, including appointments to the Supreme Court,
during the election period up to the end of the incumbent Presidents term.
In reality, this mistaken reading is an obiter dictum in Valenzuela, and hence,
cannot be cited for its primary precedential value. This legal situation still holds
true as Valenzuela was not doctrinally reversed as its proposed reversal was
supported only by five (5) out of the 12 participating Members of the Court. In
other words, this ruling on how Article VII, Section 15 is to be interpreted in
relation with Article VIII, Section 9, should continue to stand unless otherwise
expressly reversed by this Court.
But separately from the mistaken use of an obiter ruling as primary authority, I
believe that I should sound the alarm bell about the Valenzuela ruling in light of
a recent vacancy in the position of Presiding Justice of the Sandiganbayan
resulting from Presiding Justice Norberto Geraldezs death soon after we issued
the decision in the present case. Reversing the Valenzuela ruling now, in the
absence of a properly filed case addressing an appointment at this time to the
Sandiganbayan or to any other vacancy in the lower courts, will be an irregular
ruling of the first magnitude by this Court, as it will effectively be a shortcut that
lifts the election ban on appointments to the lower courts without the benefit of
a case whose facts and arguments would directly confront the continued validity
of the Valenzuela ruling. This is especially so after we have placed the Court on
notice that a reversal of Valenzuela is uncalled for because its ruling is not the
litigated issue in this case.
In any case, let me repeat what I stressed in my Separate Opinion about
Valenzuela which rests on the reasoning that the evils Section 15 seeks to
remedy vote buying, midnight appointments and partisan reasons to influence
the elections exist, thus justifying an election appointment ban. In particular,
the "midnight appointment" justification, while fully applicable to the more
numerous vacancies at the lower echelons of the Judiciary (with an alleged
current lower court vacancy level of 537 or a 24.5% vacancy rate), should not
apply to the Supreme Court which has only a total of 15 positions that are not
even vacated at the same time. The most number of vacancies for any one year
occurred only last year (2009) when seven (7) positions were vacated by
retirement, but this vacancy rate is not expected to be replicated at any time
within the next decade. Thus "midnight appointments" to the extent that they
were understood in Aytona
36
will not occur in the vacancies of this Court as
nominations to its vacancies are all processed through the JBC under the
publics close scrutiny. As already discussed above, the institutional integrity of
the Court is hardly an issue. If at all, only objections personal to the individual
Members of the Court or against the individual applicants can be made, but
these are matters addressed in the first place by the JBC before nominees are
submitted. There, too, are specific reasons, likewise discussed above, explaining
why the election ban should not apply to the Supreme Court. These exempting
reasons, of course, have yet to be shown to apply to the lower courts. Thus, on
the whole, the reasons justifying the election ban in Valenzuela still obtain in so
far as the lower courts are concerned, and have yet to be proven otherwise in a
properly filed case. Until then, Valenzuela, except to the extent that it
mentioned Section 4(1), should remain an authoritative ruling of this Court.
CONCLUSION
In light of these considerations, a writ of prohibition cannot issue to prevent the
JBC from performing its principal function, under the Constitution, of
recommending nominees for the position of Chief Justice. Thus, I vote to deny
with finality the Tolentino and Soriano motions for reconsideration.
The other motions for reconsideration in so far as they challenge the conclusion
that the President can appoint the Chief Justice even during the election period
are likewise denied with finality for lack of merit, but are granted in so far as
they support the continued validity of the ruling of this Court in In Re:
Valenzuela and Vallarta, A.M. No. 98-5-01-SC, November 9, 1998.
My opinion on the Mendoza petition stands.
ARTURO D. BRION
Associate Justice

Footnotes
1
A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408. This A.M. involves
the constitutional validity of the appointment of two (2) RTC Judges on March
30, 1998 a date that falls within the supposed ban under Section 15, Article VII
of the Constitution. We nullified the appointments.
2
G.R. No. 191002 and companion cases, promulgated on March 17, 2010.
3
Justices Diosdado M. Peralta, Mariano C. Del Castillo and Jose Catral
Mendoza.
4
G.R. No. 191002, Petition for Certiorari and Mandamus.
5
G.R. No. 191149, Petition for Certiorari and Mandamus.
6
The JBC reiterates its position in its Comment (dated April 12, 2010) on the
motions for reconsideration that it is still acting on the preparation of the list of
nominees and is set to interview the nominees.
7
See, for instance, the motion for reconsideration of intervenor Alfonso Tan, Jr.
8
The docketed petitions were seven; the petitions-in-intervention were ten.
9
A prohibition petition seeks to stop the proceedings of a tribunal, corporation,
board, officer or person exercising judicial, quasi-judicial or ministerial functions
if any of its act is without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction.
10
Separate Opinion, p. 16.
11
The JBC position states:
x x x x
Likewise, the JBC has yet to take a position on when to submit the shortlist to
the proper appointing authority, in light of Section 4(1), Article VIII of the
Constitution, which provides that vacancy in the Supreme Court shall be filled
within ninety (90) days from the occurrence thereof, Section 15, Article VII of the
Constitution concerning the ban on Presidential appointments "two (2) months
immediately before the next presidential elections and up to the end of his
term" and Section 261(g), Article XXIII of the Omnibus Election Code of the
Philippines.
12. Since the Honorable Supreme Court is the final interpreter of the
Constitution, the JBC will be guided by its decision in these consolidated
Petitions and Administrative Matter. [Emphasis supplied.]
12
Mendoza Petition, pp. 5-6.
13
Separate Opinion, pp. 16-17.
14
Supra note 11.
15
Id. at 17.
16
Separate Opinion, pp. 19-22:
A rst reality is that the JBC cannot, on its own due to lack of the proper
authority, determine the appropriate course of action to take under the
Constitution. Its principal function is to recommend appointees to the Judiciary
and it has no authority to interpret constitutional provisions, even those
affecting its principal function; the authority to undertake constitutional
interpretation belongs to the courts alone.
A second reality is that the disputed constitutional provisions do not stand
alone and cannot be read independently of one another; the Constitution and
its various provisions have to be read and interpreted as one seamless whole,
giving sufficient emphasis to every aspect in accordance with the hierarchy of
our constitutional values. The disputed provisions should be read together and,
as reflections of the will of the people, should be given effect to the extent that
they should be reconciled.
The third reality, closely related to the second, is that in resolving the coverage
of the election ban vis--vis the appointment of the Chief Justice and the
Members of the Court, provisions of the Constitution other than the disputed
provisions must be taken into account. In considering when and how to act, the
JBC has to consider that:
1. The President has a term of six years which begins at noon of June 30
following the election, which implies that the outgoing President remains
President up to that time. (Section 4, Article VII). The President assumes office at
the beginning of his or her term, with provision for the situations where the
President fails to qualify or is unavailable at the beginning of his term (Section 7,
Article VII).
2. The Senators and the Congressmen begin their respective terms also at
midday of June 30 (Sections 4 and 7, Article VI). The Congress convenes on
the 4th Monday of July for its regular session, but the President may call a
special session at any time. (Section 15, Article VI)
3. The Valenzuela case cited as authority for the position that the election ban
provision applies to the whole Judiciary, only decided the issue with respect to
lower court judges, specifically, those covered by Section 9, Article VIII of the
Constitution. Any reference to the filling up of vacancies in the Supreme Court
pursuant to Section 4(1), Article VIII constitutes obiter dictum as this issue was
not directly in issue and was not ruled upon.
These provisions and interpretation of the Valenzuela ruling when read
together with disputed provisions, related with one another, and considered
with the May 17, 2010 retirement of the current Chief Justice bring into focus
certain unavoidable realities, as follows:
1. If the election ban would apply fully to the Supreme Court, the incumbent
President cannot appoint a Member of the Court beginning March 10, 2010, all
the way up to June 30, 2010.
2. The retirement of the incumbent Chief Justice May 17, 2010 falls within
the period of the election ban. (In an extreme example where the retirement of
a Member of the Court falls on or very close to the day the election ban starts,
the Office of the Solicitor General calculates in its Comment that the whole 90
days given to the President to make appointment would be covered by the
election ban.)
3. Beginning May 17, 2010, the Chief Justice position would be vacant, giving
rise to the question of whether an Acting Chief Justice can act in his place.
While this is essentially a Supreme Court concern, the Chief Justice is the ex
officio Chair of the JBC; hence it must be concerned and be properly guided.
4. The appointment of the new Chief Justice has to be made within 90 days
from the time the vacancy occurs, which translates to a deadline of August 15,
2010.
5. The deadline for the appointment is fixed (as it is not reckoned from the date
of submission of the JBC list, as in the lower courts) which means that the JBC
ideally will have to make its list available at the start of the 90-day period so that
its process will not eat up the 90-day period granted the President.
6. After noon of June 30, 2010, the JBC representation from Congress would be
vacant; the current representatives mandates to act for their principals extend
only to the end of their present terms; thus, the JBC shall be operating at that
point at less than its full membership.
7. Congress will not convene until the 4th Monday of July, 2010, but would still
need to organize before the two Houses of Congress can send their
representatives to the JBC a process may extend well into August, 2010.
8. By July 5, 2010, one regular member of the JBC would vacate his post. Filling
up this vacancy requires a presidential appointment and the concurrence of the
Commission on Appointments.
9. Last but not the least, the prohibition in Section 15, Article VII is that "a
President or Acting President shall not make appointments." This prohibition is
expressly addressed to the President and covers the act of appointment; the
prohibition is not against the JBC in the performance of its function of
"recommending appointees to the Judiciary" an act that is one step away
from the act of making appointments.
17
The Province of North Cotabato v. Government of the Republic of the
Philippines Peace Panel Ancestral Domain, G.R. Nos. 183591, 183791, 183752,
183893, 183951 and 183962, October 14, 2008.
18
By virtue of its power of administrative supervision, the Supreme Court
oversees the judges and court personnels compliance with the laws, rules and
regulations. It may take the proper administrative action against them if they
commit any violation. See Ampong v. CSC, G.R. No. 107910, August 26, 2008,
563 SCRA 293. The Constitution separately provides for the Supreme Courts
supervision over the JBC. See Article VIII, Section 8 of the CONSTITUTION.
19
Judicial Review is the power of the courts to test the validity of executive and
legislative acts for their conformity with the Constitution, Garcia v. Executive
Secretary, G.R. No. 157584, April 2, 2009.
20
Control is the power of an officer to alter or modify or nullify or set aside what
a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter. It is distinguished
from supervision in that the latter means overseeing, or the power or authority
of an officer to see that subordinate officers perform their duties, and if the
latter fail or neglect to fulfill them, then the former may take such action or
steps as prescribed by law to make them perform these duties. Nachura, J.,
Outline Reviewer in Political Law, 2006 ed., p. 276.
21
G.R. No. 156052, February 13, 2008, 545 SCRA 92.
22
Supra notes 11 and 14.
23
Philippine Bar Association (PBA), Women Trial Lawyers Organization of the
Philippines (WTLOP), Atty. Amador Z. Tolentino, Atty. Roland B. Inting, Peter
Irving Corvera and Alfonso V. Tan, Jr.
24
See PBAs Motion for Reconsideration.
25
See the Motions for Reconsideration for PBA, WTLOP, Atty. Amador Z.
Tolentino, Atty. Roland B. Inting, Peter Irving Corvera and Alfonso V. Tan, Jr.
26
CONSTITUTION, Article VII, 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.
27
CONSTITUTION, Article VIII, Section 4(1):
(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 divisions of three,
five, or seven Members. Any vacancy shall be filled within ninety days from the
occurrence thereof.
x x x x
28
See Petition on Intervention of WTLOP, as cited in the decision in the above-
captioned cases; see also: PBAs motion for reconsideration.
29
Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003,
415 SCRA 44, citing Civil Liberties Union v. Executive Secretary, 194 SCRA 317
(1994); Peralta v. Commission on Elections, G.R. No. 47771, March 11, 1978, 82
SCRA 30 (1978); Ang-Angco v. Castillo, G.R. No. 17169, November 30, 1963, 9
SCRA 619 (1963).
30
Macalintal v. Commission on Elections, G.R. No. 157013, July 10, 2003, 310
SCRA 614, citing Chiongbian v. De Leon, 82 Phil 771 (1949).
31
Article VI for the Legislature, Article VII for the Executive, and Article VIII for
the Judiciary.
32
See Matibag v. Benipayo, G.R. No. 149036, April 2, 2002, 380 SCRA 49;
where the court resolved the clash between the power of the President to
extend ad interim appointments and the power of the Commission on
Appointments to confirm presidential appointments.
33
Ibid.
34
Supra note 13.
35
Separate Opinion, p. 32.
36
Aytona v. Castillo, G.R. No. 19315, January 19, 1962, 4 SCRA 1.



































Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 112497 August 4, 1994
HON. FRANKLIN M. DRILON, in his capacity as SECRETARY OF JUSTICE,
petitioner,
vs.
MAYOR ALFREDO S. LIM, VICE-MAYOR JOSE L. ATIENZA, CITY
TREASURER ANTHONY ACEVEDO, SANGGUNIANG PANGLUNSOD AND
THE CITY OF MANILA, respondents.
The City Legal Officer for petitioner.
Angara, Abello, Concepcion, Regala & Cruz for Caltex (Phils.).
Joseph Lopez for Sangguniang Panglunsod of Manila.
L.A. Maglaya for Petron Corporation.

CRUZ, J.:
The principal issue in this case is the constitutionality of Section 187 of the Local
Government Code reading as follows:
Procedure For Approval And Effectivity Of Tax Ordinances And Revenue
Measures; Mandatory Public Hearings. The procedure for approval of
local tax ordinances and revenue measures shall be in accordance with the
provisions of this Code: Provided, That public hearings shall be conducted
for the purpose prior to the enactment thereof; Provided, further, That any
question on the constitutionality or legality of tax ordinances or revenue
measures may be raised on appeal within thirty (30) days from the effectivity
thereof to the Secretary of Justice who shall render a decision within sixty
(60) days from the date of receipt of the appeal: Provided, however, That
such appeal shall not have the effect of suspending the effectivity of the
ordinance and the accrual and payment of the tax, fee, or charge levied
therein: Provided, finally, That within thirty (30) days after receipt of the
decision or the lapse of the sixty-day period without the Secretary of Justice
acting upon the appeal, the aggrieved party may file appropriate
proceedings with a court of competent jurisdiction.
Pursuant thereto, the Secretary of Justice had, on appeal to him of four oil
companies and a taxpayer, declared Ordinance No. 7794, otherwise known as
the Manila Revenue Code, null and void for non-compliance with the prescribed
procedure in the enactment of tax ordinances and for containing certain
provisions contrary to law and public policy.
1

In a petition for certiorari filed by the City of Manila, the Regional Trial Court of
Manila revoked the Secretary's resolution and sustained the ordinance, holding
inter alia that the procedural requirements had been observed. More
importantly, it declared Section 187 of the Local Government Code as
unconstitutional because of its vesture in the Secretary of Justice of the power
of control over local governments in violation of the policy of local autonomy
mandated in the Constitution and of the specific provision therein conferring on
the President of the Philippines only the power of supervision over local
governments.
2

The present petition would have us reverse that decision. The Secretary argues
that the annulled Section 187 is constitutional and that the procedural
requirements for the enactment of tax ordinances as specified in the Local
Government Code had indeed not been observed.
Parenthetically, this petition was originally dismissed by the Court for non-
compliance with Circular 1-88, the Solicitor General having failed to submit a
certified true copy of the challenged decision.
3
However, on motion for
reconsideration with the required certified true copy of the decision attached,
the petition was reinstated in view of the importance of the issues raised
therein.
We stress at the outset that the lower court had jurisdiction to consider the
constitutionality of Section 187, this authority being embraced in the general
definition of the judicial power to determine what are the valid and binding laws
by the criterion of their conformity to the fundamental law. Specifically, BP 129
vests in the regional trial courts jurisdiction over all civil cases in which the
subject of the litigation is incapable of pecuniary estimation,
4
even as the
accused in a criminal action has the right to question in his defense the
constitutionality of a law he is charged with violating and of the proceedings
taken against him, particularly as they contravene the Bill of Rights. Moreover,
Article X, Section 5(2), of the Constitution vests in the Supreme Court appellate
jurisdiction over final judgments and orders of lower courts in all cases in which
the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance,
or regulation is in question.
In the exercise of this jurisdiction, lower courts are advised to act with the
utmost circumspection, bearing in mind the consequences of a declaration of
unconstitutionality upon the stability of laws, no less than on the doctrine of
separation of powers. As the questioned act is usually the handiwork of the
legislative or the executive departments, or both, it will be prudent for such
courts, if only out of a becoming modesty, to defer to the higher judgment of
this Court in the consideration of its validity, which is better determined after a
thorough deliberation by a collegiate body and with the concurrence of the
majority of those who participated in its discussion.
5

It is also emphasized that every court, including this Court, is charged with the
duty of a purposeful hesitation before declaring a law unconstitutional, on the
theory that the measure was first carefully studied by the executive and the
legislative departments and determined by them to be in accordance with the
fundamental law before it was finally approved. To doubt is to sustain. The
presumption of constitutionality can be overcome only by the clearest showing
that there was indeed an infraction of the Constitution, and only when such a
conclusion is reached by the required majority may the Court pronounce, in the
discharge of the duty it cannot escape, that the challenged act must be struck
down.
In the case before us, Judge Rodolfo C. Palattao declared Section 187 of the
Local Government Code unconstitutional insofar as it empowered the Secretary
of Justice to review tax ordinances and, inferentially, to annul them. He cited the
familiar distinction between control and supervision, the first being "the power
of an officer to alter or modify or set aside what a subordinate officer had done
in the performance of his duties and to substitute the judgment of the former
for the latter," while the second is "the power of a superior officer to see to it
that lower officers perform their functions in accordance with law."
6
His
conclusion was that the challenged section gave to the Secretary the power of
control and not of supervision only as vested by the Constitution in the
President of the Philippines. This was, in his view, a violation not only of Article
X, specifically Section 4 thereof,
7
and of Section 5 on the taxing powers of local
governments,
8
and the policy of local autonomy in general.
We do not share that view. The lower court was rather hasty in invalidating the
provision.
Section 187 authorizes the Secretary of Justice to review only the
constitutionality or legality of the tax ordinance and, if warranted, to revoke it on
either or both of these grounds. When he alters or modifies or sets aside a tax
ordinance, he is not also permitted to substitute his own judgment for the
judgment of the local government that enacted the measure. Secretary Drilon
did set aside the Manila Revenue Code, but he did not replace it with his own
version of what the Code should be. He did not pronounce the ordinance
unwise or unreasonable as a basis for its annulment. He did not say that in his
judgment it was a bad law. What he found only was that it was illegal. All he did
in reviewing the said measure was determine if the petitioners were performing
their functions in accordance with law, that is, with the prescribed procedure for
the enactment of tax ordinances and the grant of powers to the city
government under the Local Government Code. As we see it, that was an act
not of control but of mere supervision.
An officer in control lays down the rules in the doing of an act. If they are not
followed, he may, in his discretion, order the act undone or re-done by his
subordinate or he may even decide to do it himself. Supervision does not cover
such authority. The supervisor or superintendent merely sees to it that the rules
are followed, but he himself does not lay down such rules, nor does he have the
discretion to modify or replace them. If the rules are not observed, he may
order the work done or re-done but only to conform to the prescribed rules. He
may not prescribe his own manner for the doing of the act. He has no judgment
on this matter except to see to it that the rules are followed. In the opinion of
the Court, Secretary Drilon did precisely this, and no more nor less than this,
and so performed an act not of control but of mere supervision.
The case of Taule v. Santos
9
cited in the decision has no application here
because the jurisdiction claimed by the Secretary of Local Governments over
election contests in the Katipunan ng Mga Barangay was held to belong to the
Commission on Elections by constitutional provision. The conflict was over
jurisdiction, not supervision or control.
Significantly, a rule similar to Section 187 appeared in the Local Autonomy Act,
which provided in its Section 2 as follows:
A tax ordinance shall go into effect on the fifteenth day after its passage,
unless the ordinance shall provide otherwise: Provided, however, That the
Secretary of Finance shall have authority to suspend the effectivity of any
ordinance within one hundred and twenty days after receipt by him of a
copy thereof, if, in his opinion, the tax or fee therein levied or imposed is
unjust, excessive, oppressive, or confiscatory, or when it is contrary to
declared national economy policy, and when the said Secretary exercises
this authority the effectivity of such ordinance shall be suspended, either in
part or as a whole, for a period of thirty days within which period the local
legislative body may either modify the tax ordinance to meet the objections
thereto, or file an appeal with a court of competent jurisdiction; otherwise,
the tax ordinance or the part or parts thereof declared suspended, shall be
considered as revoked. Thereafter, the local legislative body may not
reimpose the same tax or fee until such time as the grounds for the
suspension thereof shall have ceased to exist.
That section allowed the Secretary of Finance to suspend the effectivity of a tax
ordinance if, in his opinion, the tax or fee levied was unjust, excessive,
oppressive or confiscatory. Determination of these flaws would involve the
exercise of judgment or discretion and not merely an examination of whether or
not the requirements or limitations of the law had been observed; hence, it
would smack of control rather than mere supervision. That power was never
questioned before this Court but, at any rate, the Secretary of Justice is not
given the same latitude under Section 187. All he is permitted to do is ascertain
the constitutionality or legality of the tax measure, without the right to declare
that, in his opinion, it is unjust, excessive, oppressive or confiscatory. He has no
discretion on this matter. In fact, Secretary Drilon set aside the Manila Revenue
Code only on two grounds, to with, the inclusion therein of certain ultra vires
provisions and non-compliance with the prescribed procedure in its enactment.
These grounds affected the legality, not the wisdom or reasonableness, of the
tax measure.
The issue of non-compliance with the prescribed procedure in the enactment of
the Manila Revenue Code is another matter.
In his resolution, Secretary Drilon declared that there were no written notices of
public hearings on the proposed Manila Revenue Code that were sent to
interested parties as required by Art. 276(b) of the Implementing Rules of the
Local Government Code nor were copies of the proposed ordinance published
in three successive issues of a newspaper of general circulation pursuant to Art.
276(a). No minutes were submitted to show that the obligatory public hearings
had been held. Neither were copies of the measure as approved posted in
prominent places in the city in accordance with Sec. 511(a) of the Local
Government Code. Finally, the Manila Revenue Code was not translated into
Pilipino or Tagalog and disseminated among the people for their information
and guidance, conformably to Sec. 59(b) of the Code.
Judge Palattao found otherwise. He declared that all the procedural
requirements had been observed in the enactment of the Manila Revenue Code
and that the City of Manila had not been able to prove such compliance before
the Secretary only because he had given it only five days within which to gather
and present to him all the evidence (consisting of 25 exhibits) later submitted to
the trial court.
To get to the bottom of this question, the Court acceded to the motion of the
respondents and called for the elevation to it of the said exhibits. We have
carefully examined every one of these exhibits and agree with the trial court that
the procedural requirements have indeed been observed. Notices of the public
hearings were sent to interested parties as evidenced by Exhibits G-1 to 17. The
minutes of the hearings are found in Exhibits M, M-1, M-2, and M-3. Exhibits B
and C show that the proposed ordinances were published in the Balita and the
Manila Standard on April 21 and 25, 1993, respectively, and the approved
ordinance was published in the July 3, 4, 5, 1993 issues of the Manila Standard
and in the July 6, 1993 issue of Balita, as shown by Exhibits Q, Q-1, Q-2, and
Q-3.
The only exceptions are the posting of the ordinance as approved but this
omission does not affect its validity, considering that its publication in three
successive issues of a newspaper of general circulation will satisfy due process.
It has also not been shown that the text of the ordinance has been translated
and disseminated, but this requirement applies to the approval of local
development plans and public investment programs of the local government
unit and not to tax ordinances.
We make no ruling on the substantive provisions of the Manila Revenue Code
as their validity has not been raised in issue in the present petition.
WHEREFORE, the judgment is hereby rendered REVERSING the challenged
decision of the Regional Trial Court insofar as it declared Section 187 of the
Local Government Code unconstitutional but AFFIRMING its finding that the
procedural requirements in the enactment of the Manila Revenue Code have
been observed. No pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo,
Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

#Footnotes
1 Annex "E," rollo, pp. 37-55.
2 Annex "A," rollo, pp. 27-36.
3 Rollo, p. 256.
4 Sec. 19(1).
5 Art. VIII, Sec. 4(2), Constitution.
6 Mondano v. Silvosa, 97 Phil. 143; Hebron v. Reyes, 104 Phil. 175; Tecson v. Salas, 34 SCRA 282.
7 Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces
with respect to component cities and municipalities, and cities and municipalities with respect to component
barangays shall ensure that the acts of their component units are within the scope of their prescribed powers
and functions.
8 Sec. 5. Each local government unit shall have the power to create its own sources of revenues and to levy
taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent
with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local
governments.
9 200 SCRA 512.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 140717 April 16, 2009
ANNIE L. MANUBAY, ANNE MARIE L. MANUBAY, JAMES JOHN L.
MANUBAY, JAMES FRANCIS L. MANUBAY, ANNE MARGARETH L.
MANUBAY and MANUBAY AGRO-INDUSTRIAL DEVELOPMENT CORP.,
INC. represented by ATTY. JAIME A. MANUBAY, Petitioners,
vs.
HON. ERNESTO D. GARILAO, in his capacity as the Secretary of the
Department of Agrarian Reform, Respondent.
R E S O L U T I O N
CORONA, J.:
At the heart of this controversy is a 124-hectare land in Barrio Cadlan, Pili,
Camarines Sur owned by petitioners Annie, Anne Marie, James John, James
Francis and Anne Margareth (all surnamed Manubay)
1
and Manubay Agro-
Industrial Development Corporation.
2

On November 15, 1994, the Municipal Agrarian Reform Officer (MARO) of Pili
issued a notice of coverage placing the property under the comprehensive
agrarian reform program (CARP).
3
Petitioners did not protest the notice.
On July 1, 1996, petitioners filed an application at the Department of Agrarian
Reform (DAR) for conversion of the property from agricultural to residential.
4

On August 26, 1996, the Sangguniang Bayan of Pili passed Resolution No. 145
approving the Comprehensive Zoning Ordinance of 1996 of the Municipality of
Pili, Camarines Sur.
5
The ordinance reclassified the subject property from
agricultural to highly urbanized intended for mixed residential and commercial
use.
6

Thereafter, petitioners requested DAR Regional Director Percival C. Dalugdug
to set aside the November 15, 1994 notice of coverage. They pointed out that
the land had been reclassified and the property was no longer suitable for
agricultural purposes. Director Dalugdug denied their request in a letter dated
November 13, 1996
7
:
Relative to land conversions, we are guided in our actions by [DAR-
Administrative Order (AO)] No. 12, s. 1994 which clearly states that no
application for conversions shall be accepted on lands for compulsory
acquisition already given notices of coverage. Applications may only be
accepted if the notice of coverage has been lifted for one reason or another.
x x x x x x x x x
Please note that your properties have already been issued notices of coverage
by the MARO of Pili last November 15, 1994 which is almost two years prior to
your submission of the application for conversion. To reiterate, for us to
entertain your application, you must rst have these notices lifted whether
because of retention or exemption. Since the basis of your claims of
exemption (i.e., not yet covered per instruction by the Secretary, and
reclassification under the Pili land use plan) are not valid, we are sorry to inform
you that we can no longer entertain your application. (emphasis supplied)
Respondent Ernesto Garilao, then DAR Secretary, upheld Director Dalugdug
and denied petitioners application for conversion, considering that the
property had already been placed under the CARP.
8

Aggrieved, petitioners separately asked respondent to reconsider. They insisted
that, because the MARO issued a notice of coverage, not a notice of
acquisition, their application for conversion should have been approved. The
motions were denied.
9

On April 28, 1998, petitioners filed a petition for certiorari in the Court of
Appeals (CA) assailing the denial of their application for conversion.
10
They
averred that respondent acted with grave abuse of discretion when he denied
their application. According to them, the issuance of a mere notice of coverage
placing agricultural land under the CARP was not a ground for the denial of
such application.
In a resolution dated June 1, 1999, the CA dismissed the petition.
11
DAR-AO
No. 7, s. 1997
12
provides that the decision of the DAR Secretary may be
appealed either to the Office of the President (OP) or to the CA. Considering
that the issue raised by petitioners involved the administrative implementation
of the CARP, the OP was more competent to rule on the issue. Moreover, by
failing to bring the matter to the said office, petitioner did not exhaust all
available administrative remedies before resorting to a petition for certiorari.
Petitioners moved for reconsideration but it was denied.
13
Hence, this recourse.
Petitioners contend that the CA erred in dismissing the petition for certiorari as
they did not violate the rule on exhaustion of administrative remedies. The act
of a department secretary may be directly challenged in a petition for certiorari.
We dismiss the petition.
Under the doctrine of qualified political agency, department secretaries are alter
egos or assistants of the President and their acts are presumed to be those of
the latter unless disapproved or reprobated by him.
14
Thus, as a rule, an
aggrieved party affected by the decision of a cabinet secretary need not appeal
to the OP and may file a petition for certiorari directly in the Court of Appeals
assailing the act of the said secretary.
15

Section 1 of Rule 65 of the Rules of Court provides that, for a petition for
certiorari to prosper, petitioner must show (1) the public respondent acted
without or in excess of his jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction and (2) there is no appeal or a plain,
speedy and adequate remedy in the ordinary course of law.
In a petition for certiorari premised on grave abuse of discretion, it must be
shown that public respondent patently and grossly abused his discretion and
that such abuse amounted to an evasion of positive duty or a virtual refusal to
perform a duty enjoined by law or to act at all in contemplation of law. In other
words, the public respondent exercised his power arbitrarily and despotically by
reason of passion or hostility.
16

Here, inasmuch as respondent had a valid ground to deny petitioners
application, he did not commit grave abuse of discretion.1avvphi1
Furthermore, DAR-AO No. 7, s. 1997 requires an appeal (of the denial of
application of conversion) to the OP. It was the plain, speedy and adequate
remedy contemplated by Section 1 of Rule 65.
Needless to state, elevating the matter to the OP was consistent with the
doctrine of exhaustion of administrative remedies. A party aggrieved by an
order of an administrative official should first appeal to the higher administrative
authority before seeking judicial relief. Otherwise, as in this case, the complaint
will be dismissed for being premature or for having no cause of action.
17

WHEREFORE, the June 1, 1999 and November 4, 1999 resolutions of the
Court of Appeals in CA-G.R. SP No. 47244 are hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.
RENATO C. CORONA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
Chairperson
ANTONIO T. CARPIO
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above resolution had been reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

Footnotes
1
Registered co-owners of lot no. 293, a 99.2559-hectare property, covered by TCT No. 12691.
2
Registered owner of lot nos. 360, 229, 388, 232 and 170 covered by TCT Nos. 12357, 12358,
12359 and 12360 respectively, covering an aggregate area of 25,0651 hectares.
3
Notice of Coverage issued by MARO Nelson S. Tongco. Rollo, p. 142.
4
Id., pp. 54-64.
5
Ordinance No. 40-1, s. 1996.
6
Certificate of Eligibility for Conversion issued by the Sangguniang Bayan of Pili. Dated July 9,
1996. Rollo, p. 95.
7
Id., p. 112. Petitioners subsequently requested Director Dalugdug to reconsider his November
13, 1996 decision but he refused to do so in a letter dated December 6, 1996. Id., pp. 113-114.
8
Order dated September 16, 1996. Id., pp. 116-119.
9
Orders dated January 14, 1998 and February 25, 1998. Id., pp. 144-15 and 165-170,
respectively.
10
Docketed as CA-G.R. SP No. 472244.
11
Penned by Associate Justice Ma. Alicia Austria-Martinez (now a member of this Court) and
concurred in by Associate Justices Salvador J. Valdez, Jr. (retired) and Renato C. Dacudao
(retired) of the Ninth Division of the Court of Appeals. Rollo, pp. 16-18.
12
DAR-A.O. No. 7, s. 1999, par. XIV provides:
XIV. APPEAL FROM THE DECISION OF THE UNDERSECRETARY OR SECRETARY.
Appeal from the Decision of the Undersecretary shall be made to the Secretary and from the
Secretary to the Ofce of the President or the Court of Appeals as the case may be. The
mode of appeal/motion for reconsideration and appeal fee from Undersecretary to the Office of
the Secretary shall be the same as that of the Regional Director to the Office of the Secretary.
13
Dated November 4, 1999. Id., p. 19.
14
See DENR v. DENR Region 12 Employees, 456 Phil. 635, 644 (2003).
15
Ruben E. Agpalo, Philippine Administrative Law 1999 ed., 354.
16
See Aggabao v. Commission on Elections, G.R. No. 163756, 26 January 2005, 449 SCRA 400.
See also Zarate v. Maybank, G.R. No. 160976, 8 June 2005, 459 SCRA 785. See also Agustin v.
Court of Appeals, G.R. No. 162571, 15 June 2005, 460 SCRA 315.
17
See Pangasinan State University v. Court of Appeals, G.R. No. 162321, 29 July 2007, 526
SCRA 92, 99.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 155996 June 27, 2012
PCGG CHAIRMAN MAGDANGAL B. ELMA and PRESIDENTIAL
COMMISSION ON GOOD GOVERNMENT, Petitioners,
vs.
REINER JACOBI, CRISPIN REYES, MA. MERCEDITAS N. GUTIERREZ, in her
capacity as Undersecretary of the Department of Justice, Respondents.
D E C I S I O N
BRION, J.:
Before the Court is a petition for certiorari under Rule 65 filed by the
Presidential Commission on Good Government (PCGG) and its former Chairman
Magdangal Elma
1
(petitioners) questioning the resolutions, dated July 17, 2002
2

and September 20, 2002,
3
of then Undersecretary of Justice Ma. Merceditas N.
Gutierrez. The assailed resolutions dismissed the petitioners petition for review,
denied the petitioners motion for reconsideration and ultimately ruled that no
probable cause for falsification and use of falsified document existed against
Atty. Crispin Reyes and Reiner Jacobi (respondents).
ANTECEDENTS
The records show that on two occasions - evidenced by the December 22, 1988
and May 6, 1991 letters
4
- then PCGG Commissioner, and later Chairman, David
M. Castro, purportedly acting for the PCGG, agreed to pay Jacobi a fee of ten
percent (10%) of any amount actually recovered and legally turned over to the
Republic of the Philippines from the ill-gotten wealth of Ferdinand E. Marcos
and/or his family, associates, subordinates and cronies, based on the
information and evidence that Jacobi would furnish the PCGG. Chairman Castro
sent another letter dated December 19, 1991 to Jacobi confirming "that actual
recovery [of] the Kloten gold account managed by Union Bank of Switzerland
(UBS) subject of [Jacobis] information and other efforts done will be properly
compensated as previously committed."
5
We shall collectively refer to these
letters as "PCGG letters."
A few years later, a similar letter dated August 27, 1998 (De Guzman letter) was
sent by the new PCGG Chairman, Felix M. de Guzman, to Jacobi, confirming
the PCGGs promise (as contained in the PCGG letters) to pay Jacobi and his
intelligence group a 10% fee for the US$13.2 billion ill-gotten wealth of Former
President Ferdinand E. Marcos, his family, trustee or fronts in UBS still/now
being claimed and recovered by the Philippine Government. The De Guzman
letter reads in full:
6

27 August 1998
Mr. Reiner Jacobi
c/o Business Center
JW Marriott Hotel, Hong Kong
Care: Counsel Crispin T. Reyes
Dear Mr. Jacobi:
I refer to the letters dated 22 December 1988, 6 May 1991 and 19
December 1991 addressed to you from Mr. David M. Castro, former
Chairman of the PCGG, copy (sic) for ready reference.
I hereby confirm the agreement of the PCGG to pay you/your group a ten
(10%) percent fee of the US$13.2 Billions ill-gotten wealth, unexplained or
hidden deposits/assets of former President Ferdinand E. Marcos, his family,
trustees or fronts in Union Bank of Switzerland, still/now being claimed and
recovered by the Philippine government which is being assisted/facilitated/
realized by their identification as a result of the findings, information and
evidence supplied by you/your group to the PCGG that is otherwise not
known to the Commission from other sources nor previously and voluntarily
disclosed by the Marcoses, their trustees, associates or cronies.
Very truly yours,
FOR THE COMMISSION:
[Signed]
FELIX M. DE GUZMAN [Countersigned by Director Danilo Daniel]
Chairman
FMG/lai
7

d01
8

a. The Sandiganbayan petition
On March 8, 1999, the respondents filed with the Sandiganbayan a verified
Petition for Mandamus, Prohibition and Certiorari (with Prayer for a Writ of
Preliminary Mandatory and Prohibitory Injunction)
9
(Sandiganbayan petition)
against the petitioners (docketed as Civil Case No. 006). Atty. Reyes acted as
Jacobis counsel. Jacobi did not sign or verify the petition.
The contents of the PCGG letters and the De Guzman letter, among others,
were substantially reproduced in the Sandiganbayan petition and were attached
as annexes. (The De Guzman letter was attached as Annex E). Likewise attached
(as Annex G), was a June 24, 1998 letter from PCGG Chairman Magtanggol
Gunigundo (Gunigundo letter), seeking judicial assistance from the Swiss
Ministry of Justice and the Police of Switzerland regarding Marcos-related
accounts in UBS.
10

The Sandiganbayan petition began with the alleged commitment of the PCGG
to Jacobi (and his group, including Atty. Reyes
11
) - as contained in the PCGG
letters and the De Guzman letter. It also cited the reports
12
submitted by
Jacobis group to the PCGG detailing their ill-gotten- wealth-recovery efforts
and services, as well as their follow-up letters
13
to the government to press for
the UBS account. They alleged that due to their persistence, the PCGG (through
Chairman Gunigundo and Chairman De Guzman) made an official request
14
to
the Swiss Ministry of Justice to freeze the US$13.2 billion UBS account (as of
August 25, 1998
15
) in the name of Irene Marcos Araneta, alias "I. Araneta" (UBS
account).
16
They claimed that the UBS itself admitted the existence of this
account, and only denied that the account is owned in any way by the
Marcoses.
17

The Sandiganbayan petition also strongly questioned
18
Chairman Elmas
appointment and reappointment of two Swiss "Trojan Horses" lawyers (Peter
Cosandey and Martin Kurer) who had been allegedly blocking the governments
efforts to recover the UBS account by secretly working for the UBS.
19
It alleged
that Chairman Elma was working with these Swiss lawyers to frustrate the PCGG
and its recovery efforts. Specifically, it alleged that:
In not revoking the re-appointment of Martin Kurer as PCGG lawyer despite the
honest and sincere suggestions, pleadings and demands by [Atty. Reyes]; in not
pursuing the great efforts of the Philippine government through Ambassador
Tomas T. Syquia to have the account frozen; in appointing, allowing and in fact
abetting Martin Kurer who is associated (sic) and conspiring with Peter
Cosandey in blocking the recovery of said account; [Chairman Elma] has shown
beyond reasonable doubt that he has a personal agenda and is unusually
interested in protecting [the UBS account] for another person or persons, other
than the Filipino people.
20

The Sandiganbayan petition prayed:
AFTER NOTICE AND HEARING, to declare the re-appointment of Swiss lawyer
Martin Kurer and Peter Cosandey as having been issued in grave abuse of
discretion and highly prejudicial to the interests of the Philippine Government
and the Filipino people and therefore null and void; to order [Chairman Elma
and PCGG] to perform their mandated duty to recover [the UBS account] for the
Filipino people; and to sentence [Chairman Elma] to pay [Atty. Reyes and
Jacobi] actual damages that may be proved during the trial; xxx
On March 15, 1999, Atty. Reyes, through the Anti-Graft League of the
Philippines, Inc. (AGLP), filed a complaint with a similar thrust against Chairman
Elma with the Office of the Ombudsman (Ombudsman complaint).
21
Atty. Reyes
attached the Sandiganbayan petition (together with its annexes) to this
complaint.
22
Atty. Reyes alleged that Chairman Elmas (i) reappointment of
Martin Kurer, despite official information that he had been secretly working for
UBS, and (ii) failure to follow-up the PCGGs previous official requests to the
Swiss authorities were obvious violations of the provisions of Republic Act No.
3019.
23

Later, Atty. Reyes filed an Urgent Manifestation
24
with the Sandiganbayan,
withdrawing the De Guzman letter and the Gunigundo letter as annexes of the
Sandiganbayan petition. A similar manifestation was filed with the Office of the
Ombudsman regarding the Ombudsman complaint.
25
Atty. Reyes explained
that he had been prompted to withdraw these letters after he learned of reports
questioning the authenticity of these documents. Atty. Reyes asserted that
Jacobi had nothing to do with the preparation nor with the attachment of these
letters to the Sandiganbayan petition and to the Ombudsman complaint; thus -
Annex "E" of the [Sandiganbayan Petition] is [the De Guzman letter] which was
previously shown to [Chairman de Guzman] by [Atty. Reyes] before it was used
as an annex and he stated that the statements therein appear to be in the
document he has signed. xxx
[Jacobi] had absolutely nothing to do about this Annex "E"
xxx
At any rate, this questionable document is merely a restatement of PCGG
Chairman Castros commitment to Mr. Jacobi which is still perfectly binding and
enforceable xxx and, further, it is absolutely immaterial to the main issue in this
case.
Hence, this document marked Annex "E" of the [Sandiganbayan Petition]
should be withdrawn, as it is now hereby withdrawn xxx, from the records of this
case.
Further, [Atty.] Reyes has also carefully examined Annex "G" of the
[Sandiganbayan] Petition. He asked first for a copy of this document sent to
Ambassador Syquia in Switzerland but he was informed that there is no copy in
PCGG records. Afterwards, a copy of the document was provided by a PCGG
insider and this is now marked as Annex "G" Again, [Jacobi] had nothing to
do with this document marked as Annex "G".
[Atty.] Reyes has also carefully examined this document and found that while the
statements therein appear authentic, however, upon closer examination, it
seems that the signature thereunder is not the signature in the original signed
by [Chairman Gunigundo] xxx.
Hence, this Annex "G" should be likewise withdrawn
xxx
If [respondents], particularly counsel Reyes, had known from the very beginning
that these documents are questionable and not trustworthy, of course, they will
never use them in this case for purposes of recovering Marcos UBS account of
$13.2 Billions (sic) by PCGG for the people of the Philippines.
And whenever there is anything wrong or questionable, [respondents] will not
hesitate to and will immediately inform the [Sandiganbayan] accordingly, as, in
fact, they are doing now, and it is their desire to deal with all candor, fairly and
honestly, with [the Sandiganbayan] and all courts of the land. [italics in the
original]
b. The PCGGs reaction
The attachment, as annexes, of the De Guzman letter to the Sandiganbayan
petition and to the Ombudsman complaint elicited a legal response from the
PCGG. Based on the affidavits executed by Chairman De Guzman, Director
Danilo Daniel
26
of the Finance and Administration Department of the PCGG,
27

and Lilia Yanga,
28
what appears as their signatures and initials at the bottom of
the De Guzman letter actually pertain to their signatures and initials affixed to
another letter (dated August 25, 1998) sent by Chairman De Guzman to the
Philippine Ambassador to Switzerland, Tomas Syquia.
29
This August 25, 1998
letter, however, had nothing to do with any contingency agreement with Jacobi
and/or Atty. Reyes. Lourdes Magno,
30
a Records Officer, and Sisa Lopez
31
also
executed affidavits stating that the PCGG has no record of the De Guzman
letter. All of these affiants were then PCGG employees.
In a March 17, 1999 resolution (PCGG resolution),
32
the PCGG stated that the
De Guzman letter does not exist in its records.
33
Chairman De Guzman himself
denied any participation in the preparation of this letter, and said:
34

In connection with Civil Case No. 006 xxx the declaration of Director Danilo R.B.
Daniel that the contents [of the De Guzman letter] is not authentic is hereby
confirmed it appearing that the records of the PCGG bearing on the alleged
letter indicates that the signature of the undersigned and the initials of Dir.
Daniel written thereof refers to a letter addressed to Ambassador Tomas Syquia
dated August 25, 1998 and not to the [De Guzman letter addressed] to Mr.
Jacobi. [emphasis added]
The PCGG resolution also stated that a Swiss official
35
already denied the
existence of the US$13.2 billion UBS account claimed by Jacobi. Ultimately, the
PCGG resolved to (i) declare Jacobis arrangement with then Chairman Castro
as non-binding and inexistent, and (ii) authorize Chairman Elma to file
appropriate civil and criminal charges against the respondents.
36

In a March 16, 1999 report of the National Bureau of Investigation (NBI), the
latter confirmed that the De Guzman letter was a falsified document as the
questioned signatures and entries therein "were lifted/extracted probably from
the original and/or xerox copy"
37
of the August 25, 1998 letter addressed to
Ambassador Syquia.
c. Criminal Complaint
On March 22, 1999, Chairman Elma filed an affidavit-complaint
38
with the
Department of Justice (DOJ), charging the respondents with falsification and
with use of falsified document (under Article 171, paragraph 2 and Article 172,
paragraphs. 1 and 3 of the Revised Penal Code). The petitioners attached to the
complaint the NBI report and the affidavits of the PCGG employees.
39

On April 5, 1999,
40
Atty. Reyes and the AGLP filed a criminal complaint with the
Office of the Ombudsman against Director Daniel (Daniel Complaint) for his
alleged "traitorous mission for [UBS] and [the] Marcoses against the interest of
the Philippine government."
41
The complaint stated the following particulars
surrounding the Gunigundo letter and the De Guzman letter:
Atty. Reyes also informed [Dir. Daniel] that [Atty. Reyes] requested [the] PCGG
record section for a copy of [the Gunigundo letter] but he was told they had
no copy in their records.
And regarding the missing [De Guzman] letter, the statement in the affidavits of
[the PCGG employees] that there is neither a copy of Chairman de Guzmans
letter is not surprising and confirms [that] important documents are usually
missing.
xxx
Further, about middle of September, 1998, Atty. Reyes again visited [Dir. Daniel]
xxx and xxx inquired about [the] Gunigundo letter and the [De Guzman]
letter to Reiner Jacobi [which] merely restated what former PCGG Chairman
David Castro committed to Reiner Jacobi. The PCGG record section said it has
no copy. And xxx [Dir. Daniel] said that he will check his records and give copies
if available in his file.
Some days thereafter, again [Atty. Reyes] visited [Dir.] Daniel and he gave me
xerox copy of [the] Gunigundo letter (marked Annex "G" [of the
Sandiganbayan] Petition) xxx and [Chairman] De Guzmans letter (marked
Annex "E" [of the Sandiganbayan] Petition...
I never knew then that xxx [Dir.] Daniel has been working for the Marcoses and
UBS in conspiracy with Swiss "Trojan Horse" Martin Kurer
against the Philippine government. And I learned about it only recently. Hence,
before I did not bother to check the trustworthiness of these documents which
he gave me and which I believed all along to be authentic until my attention
was called by negative press reports on this [De Guzman letter].
But, on the very day I read negative press reports on the authenticity of
[Chairman] De Guzmans letter xxx, I realized that the two documents
(Gunigundos letter of June 24th and De Guzmans letter of Aug. 27th) given to
me by [Dir.] Daniel must have been falsified. xxx
Accordingly, on the same day, Atty. Reyes formally withdrew these two
documents marked Annexes "E" and "G" of the PETITION in Sandiganbayan
Case No. 006 xxx from the record of the case.
42

Atty. Reyes imputed the falsification to Director Daniel and claimed good faith
in annexing the De Guzman letter to the Sandiganbayan petition; thus -
[Dir. Daniel] had the means and opportunity to create the [De Guzman letter]
which confirmed PCGGs contingency fee agreement with Jacobi. [Dir.] Daniel
had initialed the letter dated August 25, 1998. It has subsequently been
discovered by the NBI that the signatures and initialing of the genuine letter
dated 25 August 1998 have been transposed onto the forged [De Guzman]
letter.
Because [Dir.] Daniel had access to the letter dated 25 August 1998, he was in
the best position to forge the [De Guzman] letter. The NBI has stated that the
[De Guzman] letter was a very crude forgery. Indeed, it is now clear that this
was such a crude forgery that it was designed to be discovered. Likewise, [Dir.]
Daniel had access to Gunigundos letter of June 19, 1996, hence, he was also in
the best position to forge said [Gunigundo] letter of June 24, 1998 which is also
a crude forgery.
xxxx
In contrast, Jacobi and Reyes have no motive in creating a forged contingency
fee agreement because Jacobi already has a binding agreement with the
Philippine government. Indeed, their subsequent conduct contradicts any
suggestion of guilty knowledge. In good faith, they attached the [De Guzman
letter] in their Petition filed against Chairman Elma and the PCGG with the
Sandiganbayan wherein recovery of $13.2 Billion from UBS is the main issue. It
is ludicrous to suggest that Jacobi and Reyes would create a crude forgery and
then produce it in contentious court proceedings when such a forgery is
unnecessary to their case and is easily discoverable. Verily, the obvious forger is
[Dir.] Daniel of the PCGG.
43

Atty. Reyes filed his counter-affidavit,
44
adopting the explanation and allegations
contained in his Urgent Manifestation and in the Daniel Complaint in pleading
for the dismissal of the criminal case.
For his part, Jacobi, through Atty. Cynthia Pealosa, denied any participation in
the falsification of the De Guzman letter. He explained:
8. I was informed by [Atty. Reyes] at the time that I received a copy of [the De
Guzman letter] that that letter had been given to [him] by [Dir.] Daniel. The
obvious forger is no other than PCGG insider [Dir.] Daniel xxx.
45

Jacobi added that he and Atty. Reyes have no reason or motive to forge the
letter since he already had an existing contingency fee agreement with the
PCGG/Philippine government. Jacobi attached an affidavit of Chairman Castro
confirming the veracity of the PCGG letters.
46
Jacobi stated that the petitioners
complaint ignored his work history with the PCGG and the consistency of his
conduct with the agreement he entered into with the Philippine government.
Chairman Elma and the PCGG countered that the respondents withdrawal of
the falsified letter cannot extinguish the offenses already committed. The
petitioners refuted the respondents allegation that Director Daniel was the
source of the De Guzman letter per Director Daniels affidavit, to wit:
I am not in a position to give [Atty. Reyes] the falsified [De Guzman] letter xxx to
Reiner Jacobi as I do not have a copy of said letter.
I strongly dispute Jacobis statement that "the obvious forger is no other that
(sic) the PCGG insider Danilo Daniel who furnished Attorney Crispin T. Reyes the
letter in question." This is absolutely false and baseless. As I have stated above,
I had no participation at all in this spurious letter. If I participated in this
proceeding, why do I need to falsify it. Why not just give them a genuine copy
of the letter.
47
(underlining added)
d. The DOJs initial finding: existence of probable cause
In a June 25, 1999 resolution (first resolution), Senior State Prosecutor Jude
Romano found probable cause against the respondents on the basis of two
legal presumptions - that (i) the possessor and user of a falsified document is
the forger; and (ii) whoever stands to benefit from the forgery is the author
thereof - which the respondents failed to overthrow. Thus, he recommended the
filing of the corresponding information whose dispositive portion stated;
48
thus -
WHEREFORE, premises considered, it is respectfully recommended that
informations for Falsification and Use of Falsified Documents under Article 172
(1) in relation to Article 171(2) and Article 172 par. 3 of the Revised Penal Code,
respectively, be filed against respondents xxx and another information for Use
of Falsified Document under Article 172 par. 3 xxx be filed against [Atty. Reyes].
Prosecutor Romano rejected Jacobis claim (that he had nothing to do with the
forged letter or with its attachment as annex to the Sandiganbayan petition), on
the ground that the act of Atty. Reyes, as Jacobis counsel in the Sandiganbayan
petition, bound him as client.
49

Atty. Reyes seasonably moved for reconsideration of the first resolution,
50

alleging that neither of the presumptions relied upon by Prosecutor Romano
applies.
51
Jacobi, through Atty. Pealosa, received his copy of the first
resolution on June 30, 1999.
52

d1. The procedural complications.
On July 13, 1999,
53
the Padilla, Jimenez, Kintanar and Asuncion law firm (Padilla
law firm) filed its Entry of Appearance with Omnibus Motion
54
for Jacobi,
requesting for additional time to file an appropriate pleading.
55
The Entry of
Appearance attached the June 29, 1999 letter of Jacobi to Atty. Alexander
Padilla (Padilla letter) of the Padilla law firm, retaining the latter as his "attorney
to deal with the DOJ."
56
The Padilla letter stated that Jacobi has attached a
copy of his June 29, 1999 letter to Atty. Pealosa (Pealosa letter). Jacobi did
not state the contents of the Pealosa letter and neither was a copy of the
Pealosa letter actually attached to the Entry of Appearance.
On July 15, 1999 - the last day to avail of a remedy from the first resolution -
Jacobi, through Atty. Pealosa, filed an unverified petition for review
57
with the
DOJ Secretary. With this development, the petitioners opposed the Padilla law
firms earlier request for additional period (to file appropriate pleading).
58
The
petitioners opposition notwithstanding, Prosecutor Romano granted the Padilla
law firms requests "in the interest of justice" in a July 15, 1999 order.
59

Accordingly, on July 29, 1999,
60
Jacobi (through the Padilla law firm) moved for
the reconsideration of the first resolution (first MR).
61

Meanwhile, in a July 19, 1999 manifestation, Jacobi, through the Padilla law
firm, stated that "only [the Padilla law firm is] authorized to represent [Jacobi]
and that any and all other pleadings and documentations filed or submitted by
any other person and counsel, purportedly in and for his behalf, are manifestly
not authorized."
62

In a January 25, 2000 order (second resolution), Prosecutor Romano resolved
63

to deny Jacobis first MR, reasoning as follows:
Records show that on July 13, 1999, [Atty. Padilla] filed an Entry of Appearance
with Omnibus Motion manifesting that he is entering his appearance as counsel
for [Jacobi]. xxx
Subsequently, on July 29, 1999, Atty. Padilla filed a Motion for Reconsideration.
A perusal of the records however reveal[s] that a Petition for Review was filed
before the Secretary of Justice by Atty. Cynthia Pealosa in behalf of [Jacobi] on
July 15, 1999. It further appears that no withdrawal of appearance as counsel or
a withdrawal of the Petition was ever filed by said counsel. Thus, Atty. Pealosa
remains to be a counsel on record of [Jacobi] with Atty. Padilla as co-counsel.
Considering that the respondent has filed a Petition for Review of the [first
resolution] that is the subject of the Motion for Reconsideration, the
undersigned in deference to the Secretary of Justice is constrained to deny the
Motion for Reconsideration. [emphases added]
Earlier however (or on January 10, 2000), then Secretary of Justice Serafin
Cuevas also resolved to dismiss Jacobis unverified petition for review (Cuevas
resolution) for Jacobis failure to "submit a verification of the petition signed by
[Jacobi] himself."
64

On March 7, 2000,
65
the Sanidad Abaya Te Viterbo Enriquez and Tan law firm
(Sanidad law firm) filed an Entry of Appearance as "sole and principal counsel"
66

for Jacobi. The Sanidad law firm attached two facsimile letters of Jacobi: one is
dated March 3, 2000,
67
addressed to Prosecutor Romano/Chief State Prosecutor
Jovencito Zuo; and the other is dated June 29, 1999
68
(which is actually the
Pealosa letter, supposedly attached to the Padilla law firms Entry of
Appearance) addressed to Atty. Pealosa. Both letters attest to "the lack of
authority of Atty. Pealosa to represent and take action [for Jacobi] as of [June
29, 1999]"
69
or before the unverified petition for review was filed. These
facsimile letters do not bear the actual date of their transmission.
70

The Sanidad law firm moved for the reconsideration
71
(second MR) of the
second resolution, arguing that Prosecutor Romano erred in refusing to
recognize that Atty. Pealosa had already been validly discharged upon the
subsequent unqualified appearance of the Padilla law firm well before the
unverified petition for review was filed. It cites in support the Padilla law firms
July 19, 1999 Manifestation.
72

In a March 6, 2001 resolution (third resolution), Chief State Prosecutor Jovencito
Zuo (i) approved the recommendation of Prosecutor Romano to grant Jacobis
second MR and Atty. Reyes pending motion for reconsideration, and (ii)
dismissed the complaint against the respondents.
73
Since both the second
resolution (denying Jacobis first MR) and the Cuevas resolution (denying
Jacobis unverified petition for review) were not based on the merits, the
prosecutors considered Jacobis second MR "in the interest of justice." The
prosecutors observed:
[The De Guzman letter] merely confirms the agreement between the PCGG and
Jacobis group. The [De Guzman letter] was annexed to [the Sandiganbayan
petition] [which] specifically prayed "for the revocation of the re-appointment of
Swiss lawyers and representatives in Switzerland x x x and to continue, push
through and follow up the previous government efforts and take such
appropriate actions called for. xxx
As can be gleaned from the above, the subject letter is not necessary for the
successful resolution of the case. As explained, its annexation to the petition is a
surplusage for even without it, the action was sufficient. There is no logical
reason for the respondents to falsify the subject letter knowing fully well that no
benefit would accrue in their favor. It would be different if the action filed was
for the collection of the stipulated 10% fee. The subject letter then becomes
very material as it serves as proof of their right to the fees.
74

In the meantime, Atty. Pealosa withdrew
75
as Jacobis counsel. She attached to
her Notice of Withdrawal her letters-explanation to Jacobi, disproving her
alleged lack of authority to file the unverified petition for review. In one of her
letters, Atty. Pealosa explained:
You [referring to Jacobi] know that despite the [Pealosa letter] (which was
faxed to me after I received a copy of the adverse DOJ Resolution) You
repeatedly requested me to proceed and to immediately inform [Atty. Padilla]
that it was [you who gave] me authority to prepare/submit the necessary papers.
I then informed [Atty. Padilla] of your decision. Nevertheless I told [Atty.
Padilla that] I could withdraw from [the] case so he can enter his appearance and
make the necessary legal moves. [Atty. Padilla] said [that] he did not know about
your DOJ case and that he was busy and that I just go ahead with your request
that I proceed with the preparation/submission of the papers.
xxxx
On July 15, 1999 which was the last day for the filing of the petition [for review
with the DOJ], I asked you again if we were to proceed and your decision [was]
that I file it. Even Dr. David Chaikin, your lawyer, who was with you at that time
and whom you consulted, advised me to proceed. So, the petition was filed.
76

(Emphases added)
The petitioners moved for reconsideration
77
of the third resolution but its
motion was denied in a January 9, 2002 resolution.
78
Prosecutors Romano and
Zuo rejected the petitioners argument that the dismissal of Atty. Pealosas
petition for review bars a reconsideration of the second resolution.
It should be noted that the [third resolution] treats, not only of [Jacobis] motion
for reconsideration, but likewise that of [Atty. Reyes] which was [seasonably]
filed. xxx
Therefore, insofar as the Motion for Reconsideration filed by [Atty. Reyes] is
concerned, the same is still pending and had to be resolved. It is of record that
[Atty. Reyes] never filed a petition for review of the [first resolution]. Hence the
[Cuevas petition] dismissing on a mere technicality the Petition for review filed
by Atty. Pealosa, alleged counsel [of Jacobi], did not affect the pending
Motion for Reconsideration filed by [Atty. Reyes] and did not bar the
undersigned from acting thereon.
Insofar as the Motion for Reconsideration filed by [Jacobi] is concerned, the
same had to be resolved principally in the interest of justice xxx.
This case involves the same facts and the same issues for both [Jacobi and Atty.
Reyes] such that injustice could occur should there be two different decisions.
xxx
xxx [the] dismissal [of the petition for review] never affected the Motion for
reconsideration filed by [Atty. Reyes] then pending with the undersigned for
resolution. Certainly, the resolution of this motion was within the jurisdiction/
authority of the undersigned and the Chief State Prosecutor whose resolution is
subject of reconsideration. xxx
79
[emphasis supplied]
e. The DOJs present finding: No probable cause
On April 29, 2002, the PCGG filed a petition for review
80
with the DOJ
Secretary.
81
Usec. Gutierrez, acting "for the Secretary of Justice" Hernando
Perez, denied the petition for review on the ground that no prima facie case
exists against the respondents. With the denial
82
of the petitioners motion for
reconsideration,
83
the petitioners went directly to this Court on a petition for
certiorari.
THE PETITIONERS POSITION
The petitioners claim that Usec. Gutierrez gravely abused her discretion when
she sustained the impropriety of (i) Jacobis simultaneous resort to two different
remedies filing a petition for review and a motion for reconsideration
through two different counsels
84
and (ii) filing a second motion for
reconsideration of an adverse resolution through another counsel.
85
Jacobis first
and second MRs were "purposely devised to make it appear that Atty.
Pealosa was not authorized to file the unverified petition for review."
86

The petitioners also claim that the alleged termination of Atty. Pealosas
services surfaced only when - as late as March 2000 - the Sanidad law firm
attached to Jacobis second MR a copy of the Pealosa letter. The petitioners
argue that nothing in the records of the case would show that Jacobi terminated
Atty. Pealosas services at any time before she filed the unverified petition for
review. The Padilla law firms (i) Entry of Appearance and (ii) July 19, 1999
manifestation, as well as the Padilla letter attached to these, are silent about the
alleged termination of Atty. Pealosa. These documents do not contain the
Pealosa letter which supposedly evidences Jacobis termination of Atty.
Pealosas services.
87
At any rate, the Padilla and the Pealosa letters are of
dubious authenticity because they do not contain the actual date of transmittal
by Jacobi to their addressees, as would normally appear at the top edge of a
faxed document.
88

The petitioners assert that Atty. Pealosa was Jacobis counsel at the time she
filed the unverified petition for review, citing Prosecutor Romanos observation
in the second resolution and Atty. Pealosas letters-explanation, attached to her
Notice of Withdrawal.
89
The petitioners likewise claim that since Atty. Pealosa
remained Jacobis counsel at the time she filed the petition for review, then the
filing of the first and second MRs by the Padilla law firm and by the Sanidad law
firm, respectively, is highly improper.
The petitioners add that Usec. Gutierrez gravely abused her discretion when she
sustained Prosecutor Romano and Prosecutor Zuos grant of Jacobis second
MR, which effectively (albeit without authority) overturned the Cuevas
resolution,
90
instead of maintaining respect to the appellate authority of then
Secretary Cuevas.
On the issue of probable cause, the petitioners reiterate the findings in the first
resolution that the respondents defense of "lack of knowledge [of the forgery]
is self-serving and is better ventilated in a full blown trial."
91
Relying on the
presumption that the holder of a forged document is presumed to be the forger
thereof, the petitioners assert that the respondents failed to rebut this
presumption with credible evidence. Since the Sandiganbayan petition seeks to
compel the petitioners (as respondents in Civil Case No. 006) to recover the
UBS account, the Sandiganbayan petition was actually an action to compel
recognition of the respondents alleged 10% finders fee as confirmed in the De
Guzman letter.
92

Citing Choa v. Judge Chiongson,
93
the petitioners add that the withdrawal of
the` De Guzman letter from the Sandiganbayan petition and the Ombudsman
complaint cannot negate the criminal liability that the respondents had already
incurred. Criminal liability for knowingly introducing a falsified document in
court is incurred once the document is submitted to the court through its
attachment to the complaint.
94
The respondents cannot likewise claim good
faith in withdrawing the De Guzman letter since the withdrawal was made after
Chairman De Guzman denied any participation in the forged letter and after the
NBI confirmed the falsification.
95

THE RESPONDENTS POSITION
The respondents question the propriety of the petitioners resort to a certiorari
petition instead of a petition for review under Rule 43;
96
they posit that even
assuming the remedy of certiorari is proper, the petition is insufficient in form
and substance due to the petitioners failure to (i) implead the DOJ in their
petition
97
and (ii) to observe the doctrine of hierarchy of courts.
98

Contrary to the petitioners remonstration, the assailed resolutions of Usec.
Gutierrez were actually issued for Secretary of Justice Hernando Perez, and
therefore, Usec. Gutierrez did not reverse the Cuevas resolution.
99
The
respondents assert that the petitioners cannot compel the prosecutor to
proceed with the case after finding that no probable cause exists against the
respondents since the determination of probable cause involves an exercise of
discretion.
100

The respondents add that the petitioners failure to present the original of the
allegedly forged document is fatal to their accusations of forgery. At any rate,
the presumption of authorship, relied upon by the petitioners, is inapplicable to
and rebutted by Jacobi and Atty. Reyes, respectively: first, the presumption
cannot apply to Jacobi, who was never in possession of the De Guzman letter;
he had no participation in the preparation of the Sandiganbayan petition and he
did not even verify it; and second, Atty. Reyes sufficiently explained how he
came into possession of the De Guzman letter.
101

ISSUES
1. Whether certiorari under Rule 65 is the proper remedy to question the
DOJs determination of probable cause.
a. If it is, where should the petition be filed.
2. Whether the DOJ committed grave abuse of discretion.
a. In effectively allowing Jacobi to (i) simultaneously avail of the remedy
of a petition for review and a motion for reconsideration, and (ii)
file a second motion for reconsideration.
b. In finding that no probable cause for falsification and use of falsified
document exists against the respondents?
OUR RULING
The petition lacks merit.
Before going into the substance of the petition, we shall first resolve the
procedural questions the respondents raised.
I. Procedural aspects
a. Rule 65 is the proper remedy to assail the DOJs determination of the
presence or absence of probable cause
The respondents claim that a petition for review under Rule 43 is the proper
remedy in questioning the assailed DOJ resolutions.
The respondents are mistaken.
By weighing the evidence submitted by the parties in a preliminary investigation
and by making an independent assessment thereof, an investigating prosecutor
is, to that extent, performing functions of a quasi-judicial nature in the conduct
of a preliminary investigation. However, since he does not make a determination
of the rights of any party in the proceeding, or pronounce the respondents guilt
or innocence (thus limiting his action to the determination of probable cause to
file an information in court),
102
an investigating prosecutors function still lacks
the element of adjudication
103
essential to an appeal under Rule 43.
Additionally, there is a "compelling reason" to conclude that the DOJs
exclusion from the enumeration of quasi-judicial agencies in Rule 43 of the
Rules of Court is deliberate. In Orosa v. Roa,
104
we observed:
There is compelling reason to believe, however, that the exclusion of the DOJ
from the list is deliberate, being in consonance with the constitutional power of
control lodged in the President over executive departments, bureaus and
offices. This power of control, which even Congress cannot limit, let alone
withdraw, means the power of the Chief Executive to review, alter, modify,
nullify, or set aside what a subordinate, e.g., members of the Cabinet and heads
of line agencies, had done in the performance of their duties and to substitute
the judgment of the former for that of the latter.
Being thus under the control of the President, the Secretary of Justice, or, to be
precise, his decision is subject to review of the former. In fine, recourse from the
decision of the Secretary of Justice should be to the President, instead of the
CA, under the established principle of exhaustion of administrative remedies. x
x x. Notably, Section 1 x x x of Rule 43 includes the Office of the President in the
agencies named therein, thereby accentuating the fact that appeals from rulings
of department heads must first be taken to and resolved by that office before
any appellate recourse may be resorted to. [citations omitted, emphasis ours]
However, Memorandum Circular No. 58
105
of the Office of the President bars an
appeal from the decisions/orders/resolutions of the Secretary of Justice on
preliminary investigations of criminal cases via a petition for review, except for
those involving offenses punishable by reclusion perpetua to death.
106

Therefore, a party aggrieved by the DOJs resolution - affirming or reversing the
finding of the investigating prosecutor in a preliminary investigation involving an
offense not punishable by reclusion perpetua to death - cannot appeal to the
Office of the President and is left without any plain, speedy and adequate
remedy in the ordinary course of the law. This leaves a certiorari petition as the
only remedial avenue left.
107
However, the petitioner must allege and show that
the DOJ acted with grave abuse of discretion in granting or denying the
petition for review.
We also reject the respondents allegation that the present petition suffers from
a fatal procedural defect for failure to implead the DOJ (or its appropriate
official) as an indispensable party.
Unlike a Rule 45 petition, one filed under Rule 65 petition requires the
petitioner to implead as public respondent the official or agency
108
whose
exercise of a judicial or quasi-judicial function is allegedly tainted with grave
abuse of discretion.
109
Contrary to the respondents assertion, the petition for
certiorari filed by the petitioners with the Court impleaded Usec. Gutierrez,
who, as then Justice Undersecretary, issued the assailed resolutions "for the
Secretary of Justice." While the DOJ did not formally enter its appearance in
this case, or file any comment or memoranda, the records show that the Court
issued resolutions, addressed to the DOJ as a party, to submit the appropriate
responsive pleadings.
110
As an extraordinary remedy, Rule 65 of the Rules of
Court does not require that summons be issued to the respondent; the service
upon him of an order to file its Comment or Memorandum is sufficient.
111

b. The doctrine of hierarchy of courts not inflexible
Conceding the remedial propriety of the present petition, the respondents
nevertheless assert that under the doctrine of hierarchy of courts, the present
petition should have been filed with the Court of Appeals (CA), which has
concurrent jurisdiction with the Supreme Court to issue the extra-ordinary writ of
certiorari.
We agree with the respondents.
In Vergara, Sr. v. Judge Suelto,
112
the Court laid down the judicial policy
expressly disallowing a direct recourse to this Court because it is a court of last
resort. The Court stressed that "[w]here the issuance of an extraordinary writ is
also within the competence of [another court], it [must be in that court] that the
specific action for the writs procurement must be presented." The rationale
behind the policy arises from the necessity of preventing (i) inordinate demands
upon the Court's time and attention which are better devoted to those matters
within its exclusive jurisdiction, and (ii) further overcrowding of the Court's
docket.
113

People v. Cuaresma
114
and subsequent jurisprudence later reaffirmed this policy,
stating that a direct invocation of the Courts original jurisdiction may be
allowed only if there are special and important reasons clearly and specifically
set out in the petition or where exceptional and compelling circumstances justify
availment of a remedy within and calling for the exercise of our primary
jurisdiction.
115

In the present case, the petitioners have not advanced any special and
important reason or reasons why direct recourse to this Court should be
allowed, considering the availability of a certiorari petition with the CA; nor do
we find exceptional and compelling circumstances in the present petition to
apply the exception to the judicial policy.
116
However, if only to avoid further
delay by leniently reading the petition, and assuming import to, the allegation
that the respondents falsified a document that forms part of the PCGGs official
records of its correspondence with a Philippine diplomatic official we deem it
of practical necessity to resolve the case on its merits.
117

c. Grave abuse of discretion: procedural aspect of the DOJs determination of
lack of probable cause
The petitioners argue that since Atty. Pealosa was still Jacobis counsel of
record at the time she filed the unverified petition for review, Jacobi could not
disown the act of his counsel by simply availing of another remedy through
another counsel. Consequently, the dismissal of Jacobis unverified petition for
review - albeit on a technical ground - rendered the first resolution as the final
determination of the existence of probable cause against the respondents.
The mere filing of a notice of appearance of a new counsel does not
automatically give rise to the presumption that the present counsel of record
has already been substituted or that his authority has been withdrawn.
Therefore, absent a formal withdrawal of appearance filed by Atty. Pealosa, the
Padilla law firm is considered merely as a collaborating counsel and its entry of
appearance does remove from Atty. Pealosa the authority to file, when she did,
the petition for review with the DOJ.
118
Even Jacobi impliedly admitted that
Atty. Pealosa was still his counsel at the time she filed the petition for review by
not addressing the issue of her authority to file it and by conveniently choosing
to keep silent (thus impliedly agreeing with) regarding her account of the filing
of the petition.
Contrary to the petitioners claim, records bear out that the Padilla law firm had
attached the Pealosa letter to its July 19, 1999 manifestation, showing that
Jacobi already terminated Atty. Pealosas services as of June 29, 1999 (or
before the unverified petition for review was filed). However, since this
Manifestation was filed with the DOJ only on July 20, 1999,
119
Atty. Pealosas
earlier filing of the petition for review cannot be considered unauthorized. While
the filing of this July 19, 1999 manifestation would have the effect of
discharging Atty. Pealosa,
120
it cannot undo her act which was valid and
effective at the time it was done.
121

All things considered, the factual peculiarities of this case do not lead us to
adopt the petitioners position.
Under Department Circular No. 70 of the DOJ,
122
an aggrieved party may
appeal the resolution of the city or provincial prosecutor to the Secretary of
Justice upon receipt either of the questioned resolution or of the denial of a
motion for reconsideration of the questioned resolution. Logically, the filing of a
petition for review is deemed a waiver of the more expedient remedy of asking
for reconsideration from the investigating prosecutor.
Notwithstanding the irregularity that would result in availing two remedies in
succession, Prosecutor Romano granted Jacobis request (through the Padilla
law firm) for an additional period within which to file an appropriate pleading,
glossing over the petition for review filed on the same date (July 15, 1999) with
the Secretary of Justice. Accordingly, Jacobi filed his first MR on July 29, 1999,
through the Padilla law firm.
Upon discovery of Jacobis previously filed petition for review, Prosecutor
Romano refused to entertain Jacobis first MR "in deference to the Secretary of
Justice."
123
(Unfortunately, the then Secretary of Justice subsequently denied
Jacobis petition for review based solely on a procedural defect, i.e., Jacobi
failed to verify the petition).
A significant point that should be appreciated at this juncture is that Atty. Reyes
himself had a validly filed motion for reconsideration since he had been alleged
to be not only a lawyer, but a co-conspirator of Jacobi in the offenses sought to
be charged. It must be considered, too, that the petitioners accusations against
the respondents arose from the same set of disputed (and undisputed) facts
whose resolution, for purposes of determination of probable cause, could not
be considered independently of one another. The prosecutors apparently forgot
about Atty. Reyes motion for reconsideration when they recognized the petition
for review Jacobi earlier filed and in ruling on Jacobis first MR.
From this perspective, Prosecutor Zuos March 6, 2001 ruling on Jacobis
second MR and on Atty. Reyes first MR cannot be appreciated as grave abuse
of discretion. While it seemingly violated established rules of procedure, it
provided ample justification therefor the avoidance of possibility of two
conflicting rulings on two motions treating of the same inseparable subject
matter.
We remind the petitioners that when the technical rules of procedure desert its
proper office as an aid to justice and becomes a great hindrance to the
attainment of justice, its invocation deserves the least consideration from this
Court. Rules of procedure must yield, when proper and under justifiable causes
and/or circumstances (as what has been done in the present case), in the
interest of substantial justice.
In these lights, we cannot likewise agree with the petitioners remonstrations
that Usec. Gutierrez improperly overruled the resolution of former Secretary
Cuevas. As the respondents pointedly countered, the assailed resolutions were
issued by Usec. Gutierrez "for the Secretary of Justice," who at the time was no
longer Secretary Cuevas.
124
Absent any allegation and proof of any acquired
vested right, the discretion exercised by a former alter-ego cannot tie the hands
of his successor in office since cabinet secretaries are mere projections of the
Chief Executive himself.
125

With the procedural issues cleared, we now resolve the ultimate issue of
whether probable cause exists to charge the respondents with falsification and
use of falsified documents.
II. Substantive aspect
a. Determination of probable cause, an executive function
The necessary component of the Executives power to faithfully execute the laws
of the land is the States self-preserving power to prosecute violators of its penal
laws. This responsibility is primarily lodged with the DOJ, as the principal law
agency of the government.
126
The prosecutor has the discretionary authority to
determine whether facts and circumstances exist meriting reasonable belief that
a person has committed a crime. The question of whether or not to dismiss a
criminal complaint is necessarily dependent on the sound discretion of the
investigating prosecutor and, ultimately, of the Secretary (or Undersecretary
acting for the Secretary) of Justice.
127
Who to charge with what crime or none at
all is basically the prosecutors call.
Accordingly, the Court has consistently adopted the policy of non-interference
in the conduct of preliminary investigations, and to leave the investigating
prosecutor sufficient latitude of discretion in the determination of what
constitutes sufficient evidence to establish probable cause.
128
Courts cannot
order the prosecution of one against whom the prosecutor has not found a
prima facie case; as a rule, courts, too, cannot substitute their own judgment for
that of the Executive.
129

In fact, the prosecutor may err or may even abuse the discretion lodged in him
by law. This error or abuse alone, however, does not render his act amenable to
correction and annulment by the extraordinary remedy of certiorari. To justify
judicial intrusion into what is fundamentally the domain of the Executive,
130
the
petitioner must clearly show that the prosecutor gravely abused his discretion
amounting to lack or excess of jurisdiction in making his determination and in
arriving at the conclusion he reached. This requires the petitioner to establish
that the prosecutor exercised his power in an arbitrary and despotic manner by
reason of passion or personal hostility; and it must be so patent and gross as to
amount to an evasion or to a unilateral refusal to perform the duty enjoined or
to act in contemplation of law,
131
before judicial relief from a discretionary
prosecutorial action may be obtained. All these, the petitioner failed to
establish.
b. Lack of probable cause for falsication
For purposes of filing an information in court, probable cause refers to facts and
circumstances sufficient to engender a well-founded belief that a crime has
been committed and that the respondents probably committed it. To guide the
prosecutors determination, a finding of probable cause needs only to rest on
evidence showing that, more likely than not, a crime has been committed and
that it was committed by the accused; the quantum of proof to establish its
existence is less than the evidence that would justify conviction, but it demands
more than bare suspicion.
132

No definitive basis to determine probable cause has been established, except
to consider the attendant facts and circumstances according to the prosecutors
best lights.
133
No law or rule states that probable cause requires a specific kind
of evidence. No formula or fixed rule for its determination exists. Probable
cause is determined in the light of conditions obtaining in a given situation.
134
In
going through the process, the prosecutor should carefully calibrate the issues
of facts presented to him to the end that his finding would always be consistent
with the clear dictates of reason.
135

In the present case, the petitioners rely on the jurisprudential presumption that
a holder of a forged document is himself the forger, and should be charged
under Article 171, paragraph 2
136
and Article 172, paragraphs 1 and 3
137
of the
Revised Penal Code.
I. The presumptions roots in jurisprudence
In the 1906 case of U.S. v. Castillo,
138
the Court laid down the rule that the
utterance or use of a forged instrument, when unexplained, is strong evidence
tending to establish that the user himself (or herself) either forged the
instrument or caused it to be forged. In this case, the accused merely denied
ever presenting the forged check to the complainant or receiving the amount it
represented; the Court found no merit in these denials. In People v. De Lara
139

(a 1924 case), the Court again applied the presumption after finding the
explanation of the accused on how he came into possession of checks that
were subsequently encashed to be "unusual and unreasonable as to carry
conviction."
140

In People v. Domingo (1926),
141
the Court applied the presumption because a
few days after the certificate of title (over a property) was loaned to the accused,
a forged deed of sale covering the property was executed by two alleged
vendors. The Court ruled that the failure of the accused to explain what she did
with the certificate of title loaned to her could only lead to the inference that
she placed the certificate of title in the hands of her confederates as without the
certificate, the forgery could not have been accomplished.
In People v. Astudillo (1934),
142
the Court clarified
143
that for the presumption to
apply, the use of the forged document must be accompanied by these
circumstances: the use is so closely connected in time with the forgery,
144
or the
user may be proved to have the capacity to undertake the forgery, or such close
connection with the forgers to create a reasonable link. These additional
circumstances have been loosely applied in subsequent cases.
In Alarcon v. Court of Appeals (1967),
145
the Court applied the presumption
after considering the "patent irregularity in the transaction"
146
and the
"extraordinary interest" of the accused in the property covered by the forged
document/s in holding that "no reasonable and fair[-]minded man" would say
that the accused had no knowledge of the falsification. Sarep v. Sandiganbayan
(1989 case),
147
gave occasion for the ruling that since the accused was the only
person who stood to benefit by the falsification of the document found in his
possession, the presumption of authorship of the falsification applies in the
absence of contrary convincing proof by the accused.
148

In the more recent (1992) Caubang v. People,
149
the accused - who claimed to
have the authority to transact (in behalf of an entity) with a government agency
in Manila - attempted to overthrow the presumption of authorship against him
by alleging intervening circumstances from the time he arrived in Manila until
the transaction with the government agency was made. The accused claimed
the he did not carry the forged document when he arrived in Manila and that
third persons (including a "fixer") actually transacted with the government.
Allegedly, these claims disproved that he had any knowledge or inference in the
making of the submitted forged document. Rejecting this claim, the Court ruled
that:
[U]tilizing a fixer as part of the scenario becomes a convenient ploy to divert the
mind of the court from the more plausible inference that the accused-petitioner
engineered the spurious [document].
x x x x
Even if the allegation that some other person [did the transaction] was true, the
accused-petitioner would still be subjected to the same conclusion.
x x x x
Having been the one responsible for the filing of the registration papers,
including the means he felt necessary to accomplish the registration, the
accused must likewise be accountable therefor. As the authorized
representative, he is deemed to have been the one in custody or possession, or
at least the one who has gotten hold even for a short while, of the papers which
included the [falsified document]. That he knew of the execution of the
statement is a possibility not too difficult to imagine under the circumstances.
x x x x
The [submission] of the previously inexistent document [with the government]
subjects the accused-petitioner to the inference that he used it as part of the
registration papers. In the absence of a credible and satisfactory explanation of
how the document came into being and then filed with the [government
agency], the accused is presumed to be the forger [.]
150
(italics supplied)
In Dava v. People (1991),
151
involving an accused who misrepresented to his
friend that he had no drivers license and thereafter induced his friend to deal
with "fixers" so that he could have a drivers license, the Court ruled that the
"patent irregularity"
152
that attended the procurement of the license cannot
escape the conclusion that the accused knew that the license he obtained was
fake and that he acted as a principal by inducement in the falsification of the
license.
The above case law instructs us that if a person had in his possession (actual or
constructive) a falsified document and made use of it, taking advantage of it
and/or profiting from such use, the presumption that he authored the
falsification also applies.
153

These cited cases, however, already involve a determination of the guilt or
innocence of an accused, requiring the application of the rigid standard of
moral certainty. In a preliminary investigation that merely inquires into the
probability of guilt of a respondent, no reason exists why the same presumption
cannot apply mutatis mutandis, taking into account the different level of
certainty demanded.
Where the evidence before the investigating prosecutor jibes with the factual
premises
154
necessary for the application of the presumption of authorship, a
prima facie
155
case for falsification under Article 171 of the Revised Penal Code
is created. Correspondingly, the legal presumption gives rise to the necessity for
the presentation of contrary evidence by the party (against whom the
presumption applies) to overcome the prima facie case established;
156

otherwise, the existence of probable cause cannot be disputed.
157

Based on these standards, the twin-issue we confront is whether the
presumption applies and whether the facts giving rise to it have been
adequately rebutted by the respondents.
ii. The legal presumption does not apply to Jacobi
Jacobi argues that the presumption of authorship does not apply to him
because he never became a possessor or holder of the De Guzman letter.
The De Guzman letter shows that Jacobi was its intended addressee although it
was sent in "care" of Jacobis then counsel, Atty. Reyes. Unlike the PCGG
letters, whose authenticity the petitioners do not dispute, the De Guzman letter
recognized Atty. Reyes as Jacobis counsel in his dealing with the PCGG. The
petitioners do not dispute, too, Atty. Reyes representation to the PCGG as
Jacobis counsel in several correspondences he had sent, confirming that he had
been acting in such capacity.
The relation of an attorney and a client is in many respects one of agency and
the general rules of ordinary agency apply. The extent of authority of a lawyer,
when acting on behalf of his client outside of court, is measured by the same
test applied to an ordinary agent.
158
Accordingly, even if we go by Atty. Reyes
account of how the De Guzman letter surfaced, Jacobi, at least, had
constructive possession of the De Guzman letter. Being a mere extension of the
personality of the principal (client), the agents (lawyers) possession is
considered that of the principals.
159

However, possession of the falsified letter is not enough to trigger the
application of the presumption of authorship; the use of the document
160
and
the existence of any of the circumstances previously discussed is still necessary.
In the present case, Jacobis use of the De Guzman letter is placed in doubt
considering (i) that he was not in the country when the Sandiganbayan petition -
containing the De Guzman letter - was filed, and (ii) the absence of his signature
in the Sandiganbayan petition and in its verification. There is also a seven-
month interval between the date of the De Guzman letter and the filing of the
Sandiganbayan petition. Cognizant of these facts, the petitioners theorized that
Jacobi and Atty. Reyes acted in conspiracy in coming up with a falsified De
Guzman letter.
161
The petitioners claim that the attachment of the De Guzman
letter to the respondents Sandiganbayan petition was precisely aimed at
compelling the PCGG to recognize Jacobis (and his groups) 10% contingent
fee arrangement with the PCGG and, ultimately, recovering it in the same
action.
The petitioners claim fails to persuade us. The petitioners ignore the
professional relationship existing between Jacobi and Atty. Reyes at the time
the Sandiganbayan petition was filed. The existence of this relationship
necessarily calls for a different appreciation of the facts established during the
preliminary investigation than it would if no such relationship existed. Under
Rule 138
162
of the Rules of Court, matters of ordinary judicial procedure are
within the exclusive authority of the attorney. These include such questions as
what action or pleading to file, what should be the theory of the case, and how
the claim (or defense) may be proved and those affecting the sufficiency,
relevancy and materiality of certain pieces of evidence.
163
The annexation of the
De Guzman letter in the Sandiganbayan petition and the Ombudsman
complaint falls within these matters. Even Atty. Reyes himself explained that
Jacobi had no participation in the preparation of the Sandiganbayan petition,
much less in the attachment as annex of the De Guzman letter.
164

Without determining the validity of Jacobis supposed arrangement with the
PCGG, a reading of the Sandiganbayan petition does not support the
petitioners theory of conspiracy. In filing the Sandiganbayan petition, the
respondents seek to compel the petitioners to perform their duty to recover the
ill-gotten wealth of the Marcoses. With or without the agreement, the
performance of this duty is a tasked imposed by law on the PCGG; the
performance of this duty is what the Sandiganbayan petition speaks of in plain
terms.
Then, too, the DOJ found nothing to support the petitioners allegation of
conspiracy or of inducement on Jacobis part. Likewise, the Court cannot find
any reason why the respondents should file the Sandiganbayan petition to
compel the petitioners to recognize their alleged contingent fee arrangement.
To begin with, the records do not show that the petitioners ever disputed the
validity of this arrangement - as evidenced likewise by the PCGG letters,
which
165
are of similar import as the De Guzman letter and whose authenticity
the petitioners impliedly admitted at the time the respondents filed the
Sandiganbayan petition.
Yet again, the existence of several letters and reports made by the respondents
to the PCGG, regarding the UBS account and the respondents activities in
connection therewith, shows that the PCGG was at least aware of the
respondents efforts to assist in the recovery efforts of the government, in
general, and of the PCGG, in particular. Therefore, forging a letter that would
simply be evidence of an implied agreement for those services hardly makes
any sense.
166

Considering the inapplicability of the presumption of authorship and the dearth
of evidence to support the allegation of conspiracy, much less of evidence
directly imputing the forgery of the De Guzman letter to Jacobi, we find no
grave abuse of discretion on the part of the DOJ in absolving him.
iii. The presumption in forgery was sufficiently explained by Atty. Reyes
Atty. Reyes does not seriously dispute the application of the presumption of
authorship
167
as to him since he was in possession, and made use, of the forged
De Guzman letter, but offers an explanation on the circumstances of such
possession and use. On the other hand, the petitioners dispute the adequacy of
his explanation and impute grave abuse of discretion on the part of Usec.
Gutierrez for surmising that the De Guzman letter "must have been doctored
in the PCGG."
168

What constitutes satisfactory explanation from the possessor and user of a
forged document must be adjudged on a case to case basis, consistent with the
twin-purposes of a preliminary investigation
169
- viz: first, to protect the State
from having to conduct useless and expensive trials; and second, to protect the
respondent from the inconvenience, expense and burden of defending himself
in a formal trial, unless a competent officer shall have first ascertained the
probability of his guilt.
170
Since the determination of probable cause lies within
the prosecutors discretion, the soundness of the explanation (to rebut the prima
facie case created by the presumption of authorship) is likewise left to the
prosecutors discretion. Unless his determination amounted to a capricious and
whimsical exercise of judgment evidencing a clear case of grave abuse of
discretion, courts must defer to the prosecutors finding.
We do not find grave abuse of discretion in the present case. By capitalizing on
Usec. Gutierrezs assumption that the questioned letter must have been
"doctored" in the PCGG, the petitioners turned a blind eye to the assumptions
factual premise. We quote Usec. Gutierrezs discussion on this point, thus -
We have perused the NBI report; and our attention is caught by the statement
therein that the "typewritten name and signature of FELIX M. DE GUZMAN, the
typewritten entries Chairman, FMG/lai, dol, and the handwritten entries 5c
Records, 8/27 were lifted/extracted probably from the original and/or xerox
copy from the original of a typewritten letter addressed to the Hon. Tomas L.
Syquia, Philippine Ambassador to Switzerland dated 25 August 1998."
Since it is the PCGG that has the only copy of Chairman De Guzmans letter to
Ambassador Syquia (except of course the Ambassador) in its files bearing the
same distinguishing entries from where the [De Guzman] letter was "lifted/
extracted", we cannot see our way clear how the falsification can be attributed
to respondent Reyes. It is more credible that the questioned letter must have
been "doctored" in the PCGG, which is the repository of all official
communications of former Chairman De Guzman, and passed to [Atty. Reyes]
who accepted the same not knowing its falsity.
171
(Emphasis added.)
In short, Usec. Gutierrez simply found Atty. Reyes explanation that the De
Guzman letter was handed to him by Director Daniel consistent with the
premise of her assumption and sufficient to disregard the DOJs previous finding
of probable cause.
Additionally, we observe that along with the De Guzman letter, Atty. Reyes also
withdrew the Gunigundo letter from the Sandiganbayan petition because of the
questionable authenticity of the signature it carried. When Atty. Reyes tried to
obtain a copy of this letter from the PCGG, he was informed that the PCGG had
no copy of this letter. Interestingly, the absence of a copy of the De Guzman
letter in the PCGGs records was the core of the statements in the affidavits of
the PCGG employees, attached to support the petitioners complaint.
172

The petitioners place too much reliance on the findings contained in the first
resolution, blurring their view of the function of a motion for reconsideration. It
is precisely the office of a motion for reconsideration
173
to give an agency
making a quasi-judicial determination an opportunity to correct any error it may
have committed through a misapprehension of facts or misappreciation of the
evidence,
174
leading to a reversible conclusion at the administrative level. The
petitioners have not shown that in arriving at the assailed resolutions (which
sustained the prosecutors reversal of the first and second resolutions), Usec.
Gutierrez gravely abused her discretion which would warrant a corrective action
from the Court.
c. Lack of probable cause for knowingly introducing a falsified document
Neither does probable cause exist against the respondents for the crime of
introducing a falsified document in a judicial proceeding, punished under the
last paragraph of Article 172 of the Revised Penal Code.1wphi1 The accuseds
knowledge of the falsity of the document, which he introduced in a judicial
proceeding, is one of the elements
175
of this crime. In the present case, not an
iota of evidence was presented to show the respondents knowledge of the
falsity of the De Guzman letter at the time it was annexed to the Sandiganbayan
petition. On this point alone, the petitioners reliance on Choa v. Judge
Chiongson
176
is misplaced.
Given all the extant circumstances of the case, coupled with the immediate
withdrawal of the De Guzman letter, the resulting credit given by Usec.
Gutierrez to the respondents defense-explanations must be respected.
d. The PCGGs role in the governmental scheme vis--vis the Courts general
policy of non-interference
As a final observation, we draw attention to the fact that the PCGG is a unique
legal creature with a unique mandate. It was created by President Corazon
Aquino pursuant to her extraordinary legislative powers after she declared a
revolutionary government. The PCGGs charter, Executive Order (E.O.) No. 1,
was the very first executive order she issued. E.O. No.1 created the PCGG and
charged it with the task of assisting the President in the "recovery of all ill-
gotten wealth" accumulated by former President Marcos, his relatives and
cronies. To accomplish its "gigantic task of recovering the plundered wealth of
the nation,"
177
E.O. No. 1 granted the PCGG ample powers and authority.
178

In no time, the President issued E.O. No. 2,
179
authorizing the PCGG "to
request and appeal to foreign governments" where the ill-gotten wealth might
be found "to freeze them and otherwise prevent their transfer, conveyance,
encumbrance, concealment or liquidation" in the meantime that the legality of
their acquisition was determined. Indeed, the recovery of this "ill-gotten
wealth" of former President Marcos, his relatives and cronies is not only a matter
of right but the paramount duty of the government.
Viewed from the uniqueness of the PCGGs creation and role, on one hand, and
the general policy of the Courts not to interfere with the prosecutors evaluation
of the sufficiency of evidence that would establish probable cause, on the other
hand, we find it unfortunate, if not disturbing, how the respondents
documented efforts to assist the PCGG in the recovery of the ill-gotten wealth
(given the staggering amount involved particularly in the UBS account) and how
the concerns they raised that allegedly hamper the governments efforts, would
end up as a legal warfare between two camps supposedly on the same side.
The seriousness of Atty. Reyes allegations of irregularities
180
should have served
as a warning signal to the PCGG which carries a critical role in our peoples
remedial efforts in addressing the causes that gave rise to the EDSA revolution.
The PCGGs success, if any and if at all, cannot be downplayed. To be sure, the
PCGGs silence in the face of these accusations (except to characterize the
respondents defensive assaults as an "undeserved gibe"
181
) raises a lot of
unanswered questions and appears to justify the allegations of political
motivation behind the criminal charges against the respondents.
In sum, under the circumstances and the other observations made, the Court
cannot but rule that the petitioners failed to establish the existence of grave
abuse of discretion justifying judicial interference.
WHEREFORE, we hereby DISMISS the petition.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Senior Associate Justice
Chairperson
JOSE PORTUGAL PEREZ
Associate Justice
MARIA LOURDES P. A. SERENO
Associate Justice
BIENVENIDO L. REYES
Associate Justice
C E R T I F I C A T I O N
I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.
ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)
Footnotes
1
Chairman Elma files the present petition in his capacity as former Chairman of the
PCGG. He was appointed as PCGG Chairman on October 30, 1998; rollo, p. 141.
2
Records, pp. 996-1000.
3
Id. at 1109.
4
Rollo, pp. 344-345; Records, pp. 785-786.
5
Rollo, pp. 163, 189; Records, p. 784.
6
Records, p. 779.
7
"lai" is the printed initial of Lilia Yanga, Secretary of Chairman De Guzman; rollo, p.
240.
8
Id. at 194.
9
Id. at 158-185.
10
Id. at 198.
11
Id. at 160.
12
Id. at 190-193, 217-219; Records, pp. 754-756, 780, 783.
13
Rollo, pp. 199, 205-209, 212-213, 232.
14
Through Philippine Ambassador to Switzerland Tomas Syquia.
15
Rollo, p. 166.
16
Pursuant to the International Mutual Assistance in Criminal Matters.
17
Rollo, pp. 167, 192-193, 196-197.
18
Id. at 222-226, 230-231; Records, pp. 742-743, 747-751.
19
Rollo, pp. 217-219.
20
Id. at 181-182.
21
Docketed as Ombudsman Case No. CPL-99-0883. Id. at 251-262; Records, pp.
711-722.
22
Rollo, p. 253.
23
Id. at 251-262.
24
Id. at 274-276.
25
Id. at 278.
26
Id. at 241.
27
Id. at 305.
28
Id. at 240.
29
Id. at 153, 250.
30
Id. at 242.
31
Id. at 243.
32
Id. at 151-156. The PCGG Commissioners who approved the resolution were the
following: Alexander Gesmundo, Antonio Rosales, Antonio Merelos and Jorge
Sarmiento.
33
Id. at 152-153.
34
Id. at 239.
35
Referring to Examining Magistrate Dieter Jann (Office of District Attorney IV for
the Canton of Zurich, in charge of the International Mutual Assistance in Criminal
Matters). Id. at 153.
36
Id. at 154-155.
37
Id. at 248.
38
Docketed as I.S. No. 99-445. Id. at 141-149; Records, pp. 825-832.
39
Rollo, p. 9.
40
Id. at 467.
41
Id. at 286.
42
Id. at 284-286.
43
Id. at 286-288.
44
Id. at 519-520, 452-465.
45
Id. at 271.
46
Id. at 270, 341-344, 462. Jacobi also adopted all the allegations in the Urgent
Manifestation dated March 19, 1999 filed by Atty. Reyes with the Sandiganbayan and
the Office of the Ombudsman. (Id. at 271.)
47
Id. at 409.
48
Id. at 466-470.
49
Id. at 470.
50
On July 12, 1999. Id. at 472-476, 1273; Records, p. 573.
51
Petitioners filed an Opposition to Atty. Reyes Motion for Reconsideration
(Records, pp. 382-395).
52
Rollo, pp. 10, 483.
53
Id. at 10.
54
Dated July 12, 1999. Petitioners filed an Opposition to the Entry of Appearance
(Records, pp. 377-381), calling the attention of the Prosecutor that (i) Jacobi had
already filed an unverified Petition for Review of the first resolution (id. at 379)
through Atty. Pealosa and (ii) since Atty. Pealosa has not withdrawn her
appearance then she is presumed to be the lead counsel for Jacobi whose filing of a
petition for review barred Jacobi from availing a different relief from a different
counsel.
55
Rollo, pp. 480-481.
56
Records, p. 562.
57
Rollo, pp. 483-498.
58
Id. at 662-664.
59
Records, pp. 375-376.
60
Rollo, p. 701.
61
Id. at 668-676.
62
Id. at 645.
63
Id. at 691.
64
Id. at 689.
65
Id. at 70.
66
Id. at 693.
67
Id. at 695.
68
Id. at 696.
69
Id. at 697.
70
The Sanidad law firm also filed a pleading, withdrawing the unverified petition for
review filed by Atty. Pealosa; id. at 687.
71
Dated March 7, 2000.
72
Rollo, pp. 701-704.
73
Id. at 98-103; Records, pp. 870-875.
74
Id. at 101.
75
Through a Notice of Withdrawal/Manifestation dated April 6, 2000; rollo, pp.
706-707.
76
Id. at 708-709.
77
Id. at 111-138; Records, pp. 835-862.
78
Rollo, pp. 105-109; Records, pp. 864-868.
79
Rollo, pp. 106-108.
80
Id. at 56-92; Records, pp. 882-918.
81
Atty. Reyes filed his Comment to the Petition for Review; records, pp. 956-979. In
turn, the petitioners filed their Reply; records, pp. 980-991.
82
Rollo, p. 54.
83
Id. at 713-734; Records, pp. 1085-1107. The petitioners Motion for
Reconsideration was Opposed by Atty. Reyes (Records, pp. 1058-1081).
84
Rollo, p. 1026.
85
Id. at 1018-1019, 1028-1029.
86
Id. at 23.
87
Id. at 1021-1022.
88
Id. at 25-27.
89
Id. at 1019-1021.
90
Id. at 1033.
91
Id. at 36; 469.
92
Id. at 1039.
93
323 Phil. 438 (1996).
94
Rollo, p. 1041.
95
Id. at 1042.
96
Id. at 954-956, 1278.
97
Id. at 952, 1327.
98
Id. at 958, 1289.
99
Id. at 965.
100
Id. at 959-962; 1290.
101
Id. at 792.
102
Bautista v. Court of Appeals, 413 Phil. 159, 168-169 (2001).
103
Santiago, Jr., etc. v. Bautista, et al., 143 Phil. 209, 219 (1970).
104
527 Phil. 347, 353-354 (2006).
105
REITERATING AND CLARIFYING THE GUIDELINES SET FORTH IN
MEMORANDUM CIRCULAR NO. 1266 (4 NOVEMBER 1983) CONCERNING THE
REVIEW BY THE OFFICE OF THE PRESIDENT OF RESOLUTIONS ISSUED BY THE
SECRETARY OF JUSTICE CONCERNING PRELIMINARY INVESTIGATIONS OF
CRIMINAL CASES.
106
The death penalty is abolished by Republic Act No. 9346.
107
Alcaraz v. Gonzalez, G.R. No. 164715, September 20, 2006, 502 SCRA 518, 529.
108
RULES OF COURT, Rule 65, Section 5 reads:
SEC. 5. Respondents and costs in certain cases. When the petition filed relates
to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation,
board, officer or person, the petitioner shall join, as private respondent or
respondents with such public respondent or respondents, the person or persons
interested in sustaining the proceedings in the court; and it shall be the duty of such
private respondents to appear and defend, both in his or their own behalf and in
behalf of the public respondent or respondents affected by the proceedings, and the
costs awarded in such proceedings in favor of the petitioner shall be against the
private respondents only, and not against the judge, court, quasi-judicial agency,
tribunal, corporation, board, officer or person impleaded as public respondent or
respondents. [underscoring supplied]
109
Madrigal Transport, Inc. v. Lapanday Holdings Corp., 479 Phil. 768, 780-781
(2004), compared a Rule 45 petition with a Rule 65 petition as to the manner of
filing, as follows:
As to the Manner of Filing. Over an appeal, the CA exercises its appellate jurisdiction
and power of review. Over a certiorari, the higher court uses its original jurisdiction in
accordance with its power of control and supervision over the proceedings of lower
courts. An appeal is thus a continuation of the original suit, while a petition for
certiorari is an original and independent action that was not part of the trial that had
resulted in the rendition of the judgment or order complained of. The parties to an
appeal are the original parties to the action. In contrast, the parties to a petition for
certiorari are the aggrieved party (who thereby becomes the petitioner) against the
lower court or quasi-judicial agency, and the prevailing parties (the public and the
private respondents, respectively. [underscoring supplied, citations omitted]
110
The Courts January 13, 2003 and March 7, 2005 resolution, requiring the parties
to submit a Comment and Memorandum included the Secretary of Justice; rollo, pp.
738, 932-933.
111
Sections 6 and 8 of Rule 65 of the Rules of Court read:
SEC. 6. Order to comment. If the petition is sufficient in form and substance to
justify such process, the court shall issue an order requiring the respondent or
respondents to comment on the petition within ten (10) days from receipt of a copy
thereof. Such order shall be served on the respondents in such manner as the court
may direct, together with a copy of the petition and any annexes thereto.
In petitions for certiorari before the Supreme Court and the Court of Appeals, the
provisions of section 2, Rule 56, shall be observed. Before giving due course thereto,
the court may require the respondents to file their comment to, and not a motion to
dismiss, the petition. Thereafter, the court may require the filing of a reply and such
other responsive or other pleadings as it may deem necessary and proper.
SEC. 8. Proceedings after comment is led. After the comment or other
pleadings required by the court are filed, or the time for the filing thereof has
expired, the court may hear the case or require the parties to submit memoranda. If,
after such hearing or filing of memoranda or upon the expiration of the period for
filing, the court finds that the allegations of the petition are true, it shall render
judgment for such relief to which the petitioner is entitled.
However, the court may dismiss the petition if it finds the same patently without
merit or prosecuted manifestly for delay, or if the questions raised therein are too
unsubstantial to require consideration. [emphases ours]
112
Gelindon v. De la Rama, G.R. No. 105072, December 9, 1993, 228 SCRA 322;
240 Phil. 719, 733 (1987).
113
Santiago v. Vasquez, G.R. Nos. 99289-90, January 27, 1993, 217 SCRA 633; and
People v. Cuaresma, 254 Phil. 418, 427 (1989).
114
Supra.
115
Santiago v. Vasquez, supra note 113.
116
Lacson Hermanas, Inc. v. Heirs of Ignacio, 500 Phil. 673, 676-677 (2005).
117
Ferdinand A. Cruz v. Judge Henrick E. Gingoyon [Deceased], et al., G.R. No.
170404, September 28, 2011.
118
San Miguel Corporation v. Pontillas, G.R. No. 155178, May 7, 2008, 554 SCRA 50,
58.
119
Records, pp. 322-324.
120
See Bacarro v. CA (Fifth Division), et al., 147 Phil. 35, 41 (1971).
121
In Mobil Oil Philippines, Inc. v. Court of First Instance of Rizal, Branch VI, G.R. No.
40457, May 8, 1992, 208 SCRA 523, 528, the Court ruled that lawyers have "the
exclusive management of the procedural aspect of the litigation including the
enforcement of the rights and remedies of their client." See also Rule 19.03 of the
Code of Professional Responsibility.
As between the Court and the adverse party, the rule is that the severance of the
relation of an attorney and a client is not effective until a notice of discharge by the
client or a manifestation clearly indicating the purpose is filed with the court and a
copy thereof served upon the adverse party (Ruben E. Agpalo, Legal and Judicial
Ethics, p. 352, 2002 ed.).
122
Section 3 of the 2000 National Prosecution Service Rule on Appeal
SECTION 3. Period to appeal. The appeal shall be taken within fifteen (15) days from
receipt of the resolution, or of the denial of the motion for reconsideration/
reinvestigation if one has been filed within fifteen (15) days from receipt of the
assailed resolution. Only one motion for reconsideration shall be allowed.
123
Rollo, p. 691.
124
Id. at 965.
125
See Malayan Integrated Industries Corp. v. Court of Appeals, G.R. No. 101469,
September 4, 1992, 213 SCRA 640, 651.
126
Book IV, Title III, Chapter 1, Section 1, Administrative Code of 1987.
127
D.M. Consunji v. Esguerra, 328 Phil. 1168, 1184 (1996); Aguirre v. Secretary,
Department of Justice, G.R. No. 170723, March 3, 2008, 547 SCRA 431, 452-453;
and First Womens Credit Corporation v. Baybay, G.R. No. 166888, January 31, 2007,
513 SCRA 637, 645-646.
128
First Womens Credit Corporation v. Baybay, supra; and Chan v. Secretary of
Justice, G.R. No. 147065, March 14, 2008, 548 SCRA 337, 349-350.
129
Alcaraz v. Gonzalez, supra note 107, at 529.
130
Aguirre v. Secretary of the Department of Justice, supra note 127, at 453.
131
Marcelo G. Ganaden, et al. v. Honorable Office of the Ombudsman, et al., G.R.
Nos. 169359-61, June 1, 2011.
132
Kalalo v. Office of the Ombudsman, G.R. No. 158189, April 23, 2010, 619 SCRA
141, 148-149.
133
Metropolitan Bank and Trust Co. (Metrobank), represented by Rosella A. Santiago
v. Antonio O. Tobias III, G.R. No. 177780, January 25, 2012.
134
Microsoft Corporation v. Maxicorp, Inc., 481 Phil. 550, 567 (2004).
135
Metropolitan Bank and Trust Co, (Metrobank),represented by Rosella A. Santigo v.
Antonio O. Tobias III, supra note 133.
136
Art. 171. Falsification by public officer, employee or notary or ecclesiastic minister.
The penalty of prision mayor and a fine not to exceed P5,000 xxx shall be
imposed upon any public officer, employee, or notary who, taking advantage of his
official position, shall falsify a document by committing any of the following acts:
x x x x
2. Causing it to appear that persons have participated in any act or proceeding when
they did not in fact so participate[.]
137
Art. 172. Falsification by private individual and use of falsified documents. The
penalty of prision correccional in its medium and maximum periods and a fine of not
more than P5,000 xxx shall be imposed upon:
1. Any private individual who shall commit any of the falsifications enumerated in the
next preceding article in any public or official document or letter of exchange or any
other kind of commercial document; and
x x x x
Any person who shall knowingly introduce in evidence in any judicial proceeding or
to the damage of another or who, with the intent to cause such damage, shall use
any of the false documents embraced in the next preceding article, or in any of the
foregoing subdivisions of this article, shall be punished by the penalty next lower in
degree.
138
6 Phil. 453, 455 (1906).
139
45 Phil. 754, 759 (1924).
140
Ibid.
141
G.R. No. L-24086, March 25, 1926, 49 Phil. 28, 33 (1926).
142
60 Phil. 338, 346 (1934).
143
Citing Whartons Criminal Law as follows:
Does the uttering of a forged instrument by a particular person justify a jury in
convicting such a person of forgery? This question, if nakedly put, must, like the
kindred one as to the proof larceny by evidence of possession of stolen goods, be
answered in the negative. The defendant is presumed to be innocent until otherwise
proved. In larceny this presumption is overcome by proof that the possession is so
recent that it becomes difficult to conceive how the defendant could have [gotten]
the property without being in some way concerned in the stealing. So it is with the
uttering. The uttering may be so closely connected in time with the forging, the
utterer may be proved to have such capacity for forging, or such close connection
with the forgers that it becomes, when so accomplished, probable proof of
complicity in the forgery.
144
See also People v. Sendaydiego, 171 Phil. 114, 134-135 (1978); and People v. De
Lara, supra note 139, at 760.
145
No. L-21846, March 31, 1967, 19 SCRA 688, 690; and Pecho v. Sandiganbayan,
G.R. No. 111399, November 14, 1994, 238 SCRA 116, 138.
146
See also Castillo v. Sandiganbayan, 235 Phil. 428 (1987).
147
258 Phil. 229, 238 (1989).
148
Maliwat v. CA, 326 Phil. 732 (1996); and Recebido v. People, 400 Phil. 752 (2000).
149
G.R. No. 62634, June 26, 1992, 210 SCRA 377.
150
Id. at 389-391.
151
279 Phil. 65 (1991).
152
Id. at 78.
153
See People v. Sendaydiego, supra note 144; People v. Caragao, 141 Phil. 660
(1969); Rural Bank of Silay, Inc. v. Atty. Pilla, 403 Phil. 1 (2001); Serrano v. Court of
Appeals, 452 Phil. 801 (2003); and Pacasum v. People, G.R. No. 180314, April 16,
2009, 585 SCRA 616.
154
Revised Rules on Evidence, Oscar M. Herrera, 1999 ed. p. 39.
155
Prima facie evidence is defined as "Evidence good and sufficient on its face. Such
evidence as, in the judgment of the law, is sufficient to establish a given fact, or the
group or chain of facts constituting the partys claim or defense, and which if not
rebutted or contradicted, will remain sufficient. Evidence which, if unexplained or
uncontradicted, is sufficient to sustain a judgment in favor of the issue it supports,
but which may be contradicted by other evidence." (Wa-acon v. People, G.R. No.
164575, December 6, 2006, 510 SCRA 429, 438, citing H. Black, et al., Blacks Law
Dictionary 1190 (6th ed., 1990).
156
The effect of a presumption upon the burden of proof is to create the need of
presenting evidence to overcome the prima facie case created, thereby which, if no
contrary proof is offered, will prevail. Lastrilla v. Granda, 516 Phil. 667, 668 (2006).
See also Metropolitan Bank and Trust Co, (Metrobank),represented by Rosella A.
Santigo v. Antonio O. Tobias III, supra note 133.
157
Probable cause, however, should not be confused with a prima facie case.
Cometa v. Court of Appeals 378 Phil. 1187, 1196 (1999) teaches:
Prima facie evidence requires a degree or quantum of proof greater than probable
cause. "[It] denotes evidence which, if unexplained or uncontradicted, is sufficient to
sustain a prosecution or establish the facts, as to counterbalance the presumption of
innocence and warrant the conviction of the accused." On the other hand, probable
cause for the filing of an information merely means "reasonable ground for belief in
the existence of facts warranting the proceedings complained of, or an apparent
state of facts found to exist upon reasonable inquiry which would induce a
reasonably intelligent and prudent man to believe that the accused person has
committed the crime." What is needed to bring an action in court is simply probable
cause, not prima facie evidence. In the terminology of the Rules of Criminal
Procedure, what is required for bringing a criminal action is only such evidence as is
sufficient to "engender a well founded belief as to the facts of the commission of a
crime and the respondents probable guilt thereof."
Accordingly, the inapplicability of the presumption of authorship (and, consequently,
the lack of a prima facie case) in the preliminary investigation does not completely
foreclose a finding of probable cause for falsification. However, it may be too difficult
to establish even probable cause because of the secrecy in which the crime is
generally done.
158
Uytengsu III v. Atty. Baduel, 514 Phil. 1, 10 (2005).
159
Doles v. Angeles, 525 Phil. 673, 689 (2006); and Eurotech Industrial Technologies,
Inc. v. Cuizon, G.R. No. 167552, April 23, 2007, 521 SCRA 584, 592-593.
160
See Serrano v. Court of Appeals, supra note 153; and People v. Caragao, supra
note 153.
161
Rollo, p. 39.
162
Section 23.
163
Province of Bulacan v. Court of Appeals, 359 Phil. 779, 791-792.
164
Atty. Reyes Urgent Manifestation; rollo, p. 274.
165
While the petitioners claim that the PCGG letters are unauthorized by the PCGG
en banc, they do not question their authenticity (PCGG Resolution No. 99-E-017); id.
at 152.
166
While motive is not reasonable basis in determining probable cause, the absence
thereof further obviates the probability of guilt for falsification (Torres, Jr. v. Sps. Drs.
Aguinaldo, 500 Phil. 365 (2005). See also Raon v. CA, et al., 220 Phil. 171, 179
(1985).
167
Atty. Reyes raised arguments precluding the application of the presumption - (i)
the De Guzman letter is not a document within the meaning of Article 172 of the
Revised Penal Code; and (ii) there was no counterfeiting or imitating of signature as
the signatures were merely lifted or extracted from another letter, per the NBI report.
Considering the limited scope of a certiorari petition and the fundamentally
executive function of determining probable cause in a preliminary investigation, the
resolution of these arguments is uncalled for in the present case.
168
Rollo, p. 51.
169
Metropolitan Bank and Trust Co, (Metrobank),represented by Rosella A. Santigo v.
Antonio O. Tobias III, supra note 133.
170
Tandoc v. Judge Resultan, 256 Phil. 485, 492 (1989); and Venus v. Hon. Desierto,
358 Phil. 675, 699-700 (1998).
171
Rollo, pp. 48-53.
172
Records, pp. 585, 664.
173
Section 3 of the 2000 National Prosecution Service Rule on Appeal (DOJ Circular
No. 70) provides:
SECTION 3. Period to appeal. The appeal shall be taken within fifteen (15) days from
receipt of the resolution, or of the denial of the motion for reconsideration/
reinvestigation if one has been filed within fifteen (15) days from receipt of the
assailed resolution. Only one motion for reconsideration shall be allowed.
174
Ramientas v. Atty. Reyala, 529 Phil. 128, 133 (2006), citing Halimao v. Villanueva,
323 Phil. 1, 8 (1996); Sony Music Entertainment (Philippines), Inc. v. Judge Espaol,,
493 Phil. 507, 523 (2005).
175
The elements of the crime of knowingly introducing a falsified document in a
judicial proceedings are as follows:
1. That the offender knew that a document was falsified by another person.
2. That the false document is embraced in Article 171 or in any subdivisions Nos. 1
or 2 of Article 172.
3. That he introduced said document in evidence in any judicial proceeding. (Luis B.
Reyes, The Revised Penal Code, Criminal Law, Book II, 2008 ed., p. 232.)
176
Supra note 93.
177
PCGG v. Judge Pea, 243 Phil. 93, 107 (1988).
178
Section 3, EO No. 1 (1986).
179
March 12, 1986. REGARDING THE FUNDS, MONEYS, ASSETS, AND
PROPERTIES ILLEGALLY ACQUIRED OR MISAPPROPRIATED BY FORMER
PRESIDENT FERDINAND MARCOS, MRS. IMELDA ROMUALDEZ MARCOS, THEIR
CLOSE RELATIVES, SUBORDINATES, BUSINESS ASSOCIATES, DUMMIES, AGENTS,
OR NOMINEES.
180
See Atty. Reyes Comment (to the Petition for Review filed by the petitioners with
the DOJ); rollo, pp. 963-972.
181
Records, p. 991.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-54558 May 22, 1987
EDUARDO B. OLAGUER, OTHONIEL V. JIMENEZ, ESTER MISA-JIMENEZ,
CARLOS LAZARO, REYNALDO MACLANG, MAGDALENA DE LOS
SANTOS-MACLANG, TEODORICO N. DIESMOS, RENE J. MARCIANO,
DANILO R. DE OCAMPO, VICTORIANO C. AMADO and MAC ACERON,
petitioners,
vs.
MILITARY COMMISSION NO. 34, THE TRIAL COUNSEL OF MILITARY
COMMISSION NO. 34, and THE MINISTER OF NATIONAL DEFENSE,
respondents.
No. L-69882 May 22, 1987
EDUARDO OLAGUER, OTHONIEL JIMENEZ, REYNALDO MACLANG and
ESTER MISA-JIMENEZ, petitioners,
vs.
THE CHIEF OF STAFF, AFP, MILITARY COMMISSION NO. 34, JUDGE
ADVOCATE GENERAL, AFP, MINISTER OF NATIONAL DEFENSE and THE
DIRECTOR OF PRISONS, respondents.
Sabino Padilla, Jr. and Jose B. Puerto for petitioner Othoniel Jimenez.
Fulgencio Factoran for petitioners Maclang and Magdalena de los Santos-
Maclang
Rene Saguisag for petitioner Mac Aceron.
Joaquin Misa for petitioner Ester Misa-Jimenez.
Jejomar Binay for petitioners Reynaldo Maclang and Magdalena de los Santos-
Maclang.
Jaime Villanueua for petitioner Danilo R. de Ocampo.
Joker P. Arroyo, Lorenzo M. Tanada and Rene Sarmiento for petitioners Eduardo
Olaguer and Othoniel Jimenez.
Wigberto Tanada for petitioners Olaguer and Maclang

GANCAYCO, J.:
Filed with this Court are two Petitions wherein the fundamental question is
whether or not a military tribunal has the jurisdiction to try civilians while the civil
courts are open and functioning. The two Petitions have been consolidated
inasmuch as the issues raised therein are interrelated.
On December 24, 1979, the herein petitioners Eduardo B. Olaguer, Othoniel V.
Jimenez, Ester Misa-Jimenez, Carlos Lazaro, Reynaldo Maclang, Magdalena De
Los Santos Maclang, Teodorico N. Diesmos, Rene J. Marciano, Danilo R. De
Ocampo and Victoriano C. Amado were arrested by the military authorities.
They were all initially detained at Camp Crame in Quezon City. They were
subsequently transferred to the detention center at Camp Bagong Diwa in
Bicutan except for petitioner Olaguer who remained in detention at Camp
Crame. Petitioner Mac Aceron voluntarily surrendered to the authorities
sometime in June, 1980 and was, thereafter, also incarcerated at Camp Bagong
Diwa. All of the petitioners are civilians.
On May 30, 1980, the petitioners were charged for subversion 1 upon the
recommendation of the respondent Judge Advocate General and the approval
of the respondent Minister of National Defense.
2
The case was designated as
Criminal Case No. MC-34-1.
On June 13. 1980, the respondent Chief of Staff of the Armed Forces of the
Philippines
3
created the respondent Military Commission No 34 to try tile
criminal case filed against the petitioners.
4
On July 30, 1980, an amended
charge sheet was filed for seven (7) offenses, namely: (1) unlawful possession of
explosives and incendiary devices; (2) conspiracy to assassinate President, and
Mrs. Marcos; (3) conspiracy to assassinate cabinet members Juan Ponce Enrile,
Francisco Tatad and Vicente Paterno; (4) conspiracy to assassinate Messrs.
Arturo Tangco, Jose Roo and Onofre Corpus; (5) arson of nine buildings; (6)
attempted murder of Messrs. Leonardo Perez, Teodoro Valencia and Generals
Romeo Espino and Fabian Ver; and (7) conspiracy and proposal to commit
rebellion, and inciting to rebellion.
5
Sometime thereafter, trial ensued.
In the course of the proceedings, particularly on August 19, 1980, the
petitioners went to this Court and filed the instant Petition for prohibition and
habeas corpus."
6
They sought to enjoin the respondent Military Commission
No. 34 from proceeding with the trial of their case. They likewise sought their
release from detention by way of a writ of habeas corpus. The thrust of their
arguments is that military commissions have no jurisdiction to try civilians for
offenses alleged to have been committed during the period of martial law. They
also maintain that the proceedings before the respondent Military Commission
No. 34 are in gross violation of their constitutional right to due process of law.
On September 23, 1980, the respondents filed their Answer to the Petition.
7

On November 20, 1980, the petitioners submmitted their reply to the Answer.
8

In a Motion filed with this Court on July 25, 1981, petitioner Olaguer requested
that the Petition be considered withdrawn as far as he is concerned.
9
In the
Resolution of this Court dated July 30, 1981, the said prayer was granted." 10
On August 31, 1984, the respondents filed a Rejoinder to the Reply submitted
by the petitioners. 11
On December 4, 1984, pending the resolution of the Petition, the respondent
Military Commission No. 34 passed sentence convicting the petitioners and
imposed upon them the penalty of death by electrocution. Thus, on February
14, 1985, petitioners Olaguer, Maclang and Othoniel and Ester Jimenez went to
this Court and filed the other instant Petition, this time for habeas corpus,
certiorari, prohibition and mandamus. They also sought the issuance of a writ of
preliminary injunction. 12 The respondents named in the Petition are the Chief
of Staff of the Armed Forces of the Philippines, Military Commission No. 34, the
Judge Advocate General, the Minister of National Defense and the Director of
the Bureau of Prisons.
In sum, the second Petition seeks to enjoin the said respondents from taking
any further action on the case against the petitioners, and from implementing
the judgment of conviction rendered by the respondent Military Commission
No. 34 for the reason that the same is null and void. The petitioners also seek
the return of all property taken from them by the respondents concerned. Their
other arguments in the earlier Petition are stressed anew.
On August 9, 1985, the respondents filed their Answer to the Petition. 13 On
September 12, 1985, this Court issued a temporary restraining order enjoining
the respondents from executing the Decision of the respondent Military
Commission No. 34 14 On February 18, 1986, the petitioners submitted an
extensive Brief. 15 Thereafter, and in due time, the cases were submitted for
decision.
In resolving these two Petitions, We have taken into account several
supervening events which have occurred hitherto, to wit
(1) On January 17, 1981, President Ferdinand E. Marcos issued
Proclamation No. 2045 officially lifting martial law in the Philippines.
The same Proclamation revoked General Order No. 8 (creating military
tribunals) and directed that "the military tribunals created pursuant
thereto are hereby dissolved upon final determination of case's
pending therein which may not be transferred to the civil courts
without irreparable prejudice to the state in view of the rules on double
jeopardy, or other circumstances which render prosecution of the cases
difficult, if not impossible."; and
(2) Petitioner Ester Misa-Jimenez was granted provisional liberty in January,
1981. On the other hand, petitioners Eduardo Olaguer and Othoniel
Jimenez obtained provisional liberty on January 23, 1986. 16 The rest
of the petitioners have been released sometime before or after
President Corazon C. Aquino assumed office in February, 1986.
The sole issue in habeas corpus proceedings is detention. 17 When the release
of the persons in whose behalf the application for a writ of habeas corpus was
filed is effected, the Petition for the issuance of the writ becomes moot and
academic. 18 Inasmuch as the herein petitioners have been released from their
confinement in military detention centers, the instant Petitions for the issuance
of a writ of habeas corpus should be dismissed for having become moot and
academic.
We come now to the other matters raised in the two Petitions. The main issue
raised by the petitioners is whether or not military commissions or tribunals have
the jurisdiction to try civilians for offenses allegedly committed during martial
law when civil courts are open and functioning.
The petitioners maintain that military commissions or tribunals do not have such
jurisdiction and that the proceedings before the respondent Military
Commission No. 34 are in gross violation of their constitutional right to due
process of law. The respondents, however, contend otherwise.
The issue on the jurisdiction of military commissions or tribunals to try civilians
for offenses allegedly committed before, and more particularly during a period
of martial law, as well as the other issues raised by the petitioners, have been
ruled upon by a divided Supreme Court in Aquino, Jr. v. Military Commission
No. 2. 19 The pertinent portions of the main opinion of the Court are as follows

We hold that the respondent Military Commission No. 2 has been lawfully
constituted and validly vested with jurisdiction to hear the cases against
civilians, including the petitioner.
l. The Court has previously declared that the proclamation of Martial Law ...
on September 21, 1972, ... is valid and constitutional and that its
continuance is justified by the danger posed to the public safety.
20

2. To preserve the safety of the nation in times of national peril, the
President of the Philippines necessarily possesses broad authority
compatible with the imperative requirements of the emergency. On the
basis of this, he has authorized in General Order No. 8 . . . the Chief of
Staff, Armed Forces of the Philippines, to create military tribunals to try
and decide cases "of military personnel and such other cases as may
be referred to them." In General Order No. 12 ... , the military tribunals
were vested with jurisdiction "exclusive of the civil courts," among
others, over crimes against public order, violations of the Anti-
Subversion Act, violations of the laws on firearms, and other crimes
which, in the face of the emergency, are directly related to the quelling
of the rebellion and preservation of the safety and security of the
Republic. ... These measures he had the authority to promulgate, since
this Court recognized that the incumbent President (President Marcos),
under paragraphs 1 and 2 of Section 3 of Article XVII of the new (1973)
Constitution, had the authority to "promulgate proclamations, orders
and decrees during the period of martial law essential to the security
and preservation of the Republic, to the defense of the political and
social liberties of the people and to the institution of reforms to
prevent the resurgence of the rebellion or insurrection or secession or
the threat thereof ... "
21

3. Petitioner nevertheless insists that he being a civilian, his trial by military
commission deprives him of his right to due process, since in his view
the due process guaranteed by the Constitution to persons accused of
"ordinary" crimes means judicial process. This argument ignores the
reality of the rebellion and the existence of martial law. It is, of course,
essential that in a martial law situation, the martial law administrator
must have ample and sufficient means to quell the rebellion and
restore civil order. Prompt and effective trial and punishment of
offenders have been considered as necessary in a state of martial law,
as a mere power of detention may be wholly inadequate for the
exigency.
22
" ... martial law ... creates an exception to the general rule
of exclusive subjection to the civil jurisdiction, and renders offenses
against the law of war, as well as those of a civil character, triable, ... by
military tribunals.
23
"Public danger warrants the substitution of
executive process for judicial process."
24
. ... "The immunity of civilians
from military jurisdiction must, however, give way in areas governed by
martial law. When it is absolutely imperative for public safety, legal
processes can be superseded and military tribunals authorized to
exercise the jurisdiction normally vested in courts.
25
. ..."
xxx xxx xxx
5. ... The guarantee of due process is not a guarantee of any particular form
of tribunal in criminal cases. A military tribunal of competent
jurisdiction, accusation in due form, notice and opportunity to defend
and trial before an impartial tribunal, adequately meet the due process
requirement. Due process of law does not necessarily mean a judicial
proceeding in the regular courts.
26
...
This ruling has been affirmed, although not unanimously, in at least six other
cases, to wit: Gumaua v.Espino,
27
Buscayno v. Enrile,
28
Sison v. Enrile,
29
Luneta
v. Special Military Commission No. 1,
30
Ocampo v. Military Commission No. 25,
31
and Buscayno v. Military Commission Nos. 1, 2, 6 and 25.
32

These rulings notwithstanding, the petitioners anchor their argument on their
prayer that the ruling in Aquino, Jr. be appraised anew and abandoned or
modified accordingly. After a thorough deliberation on the matter, We find
cogent basis for re-examining the same.
Some recent pronouncements of this Court could be considered as attempts to
either abandon or modify the ruling in Aquino, Jr.
In De Guzman v. Hon. Leopando, et al.,
33
an officer of the Armed Forces of the
Philippines and several other persons were charged with Serious Illegal
Detention before the Court of First Instance of Maguindanao sometime in
October, 1982. The military officer sought to effect the transfer of the case
against him to the General Court Martial for trial pursuant to the provisions of
Presidential Decree No. 1850. The trial court disallowed such transfer for the
reason that the said Decree is unconstitutional inasmuch as it violates the due
process and equal protection clauses of the Constitution, as well as the
constitutional provisions on social justice, the speedy disposition of cases, the
republican form of government, the integrity and independence of the judiciary,
and the supremacy of civilian authority over the military,
When the matter was elevated to this Court by way of a Petition for certiorari,
prohibition and mandamus, the Court decided that a ruling on the constitutional
issues raised was not necessary. With the view that practical and procedural
difficulties will result from the transfer sought, this Court resolved to dismiss the
Petition for lack of merit.
In Animas v. The Minister of National Defense,
34
a military officer and several
civilians were charged with murder alleged to have been committed sometime
in November, 1971. All of the said accused were recommended for prosecution
before a military tribunal. in the course of the proceedings, the said accused
went to this Court on a Petition for certiorari and challenged the jurisdiction of
the military tribunal over their case. The petitioners contended that General
Order No. 59 upon which the jurisdiction of the military tribunal is anchored
refers only to the crime of illegal possession of firearms and explosives in
relation to other crimes committed with a political complexion. They stressed
that the alleged murder was devoid of any political complexion.
This Court, speaking through Mr. Justice Hugo E. Gutierrez, Jr., ordered the
transfer of the criminal proceedings to the civil courts after noting that with
martial law having been lifted in the country in 1981, all cases pending before
the military tribunals should, as a general rule, be transferred to the civil courts.
The Court was also of the view that the crime alleged to have been committed
did not have any political complexion. We quote the pertinent portions of the
Decision of the Court, to wit
Inspite or because of the ambiguous nature of ... civilian takeover of
jurisdiction was concerned and notwithstanding the shilly-shallying and
vacillation characteristic of its implementation, this Court relied on the
enunciated policy of normalization in upholding the primacy of civil courts.
This policy meant that as many cases as possible involving civilians being
tried by military tribunals as could be transferred to civil courts should be
turned over immediately. In case of doubt, the presumption was in favor of
civil courts always trying civilian accused.
xxx xxx xxx
The crime for which the petitioners were charged was committed ... long
before the proclamation of martial law. ... Now that it is already late 1986,
and martial law is a thing of the past, hopefully never more to return, there
is no more reason why a murder committed in 1971 should still be retained,
at this time, by a military tribunal.
We agree with the dissenting views of then Justice, now Chief Justice Claudio
Teehankee
35
and Madame Justice Cecilia Munoz Palma
36
in Aquino, Jr. in so
far as they hold that military commissions or tribunals have no jurisdiction to try
civilians for alleged offenses when the civil courts are open and functioning.
Due process of law demands that in all criminal prosecutions (where the
accused stands to lose either his life or his liberty), the accused shall be entitled
to, among others, a trial.
37
The trial contemplated by the due process clause of
the Constitution, in relation to the Charter as a whole, is a trial by judicial
process, not by executive or military process. Military commissions or tribunals,
by whatever name they are called, are not courts within the Philippine judicial
system. As explained by Justice Teehankee in his separate dissenting opinion-
... Civilians like (the) petitioner placed on trial for civil offenses under
general law are entitled to trial by judicial process, not by executive or
military process.
Judicial power is vested by the Constitution exclusively in the Supreme
Court and in such inferior courts as are duly established by law. Judicial
power exists only in the courts, which have "exclusive power to hear and
determine those matters which affect the life or liberty or property of a
citizen.
38

Since we are not enemy-occupied territory nor are we under a military
government and even on the premise that martial law continues in force,
the military tribunals cannot try and exercise jurisdiction over civilians for
civil offenses committed by them which are properly cognizable by the civil
courts that have remained open and have been regularly functioning.
39
...
And in Toth v. Quarles,
40
the U.S. Supreme Court furtherstressed that the
assertion of military authority over civilians cannot rest on the President's
power as Commander-in-Chief or on any theory of martial law.
xxx xxx xxx
The U.S. Supreme Court aptly pointed out ... , in ruling that discharged
army veterans (estimated to number more than 22.5 million) could not be
rendered "helpless before some latter-day revival of old military charges"
and subjected to military trials for offenses committed while they were in
the military service prior to their discharge, that "the presiding officer at a
court martial is not a judge whose objectivity and independence are
protected by tenure and undiminished salary and nurtured by the judicial
tradition, but is a military law officer. Substantially different rules of
evidence and procedure apply in military trials. Apart from these
differences, the suggestion of the possibility of influence on the actions of
the court martial by the officer who convenes it, selects its members and
the counsel on both sides, and who usually has direct command authority
over its members is a pervasive one in military law, despite strenuous efforts
to eliminate the danger."
The late Justice Black ... added that (A) Court-Martial is not yet an
independent instrument of justice but remains to a significant degree a
specialized part of the over-all mechanism by which military discipline is
preserved," and that ex-servicemen should be given "the benefits of a
civilian court trial when they are actually civilians ... Free countries of the
world have tried to restrict military tribunals to the narrowest jurisdiction
deemed absolutely essential to maintaining discipline among troops in
active service.
Moreover, military tribunals pertain to the Executive Department of the
Government and are simply instrumentalities of the executive power, provided
by the legislature for the President as Commander-in-Chief to aid him in
properly commanding the army and navy and enforcing discipline therein, and
utilized under his orders or those of his authorized military representatives.
41

Following the principle of separation of powers underlying the existing
constitutional organization of the Government of the Philippines, the power and
the duty of interpreting the laws as when an individual should be considered to
have violated the law) is primarily a function of the judiciary.
42
It is not, and it
cannot be the function of the Executive Department, through the military
authorities. And as long as the civil courts in the land remain open and are
regularly functioning, as they do so today and as they did during the period of
martial law in the country, military tribunals cannot try and exercise jurisdiction
over civilians for offenses committed by them and which are properly cognizable
by the civil courts.
43
To have it otherwise would be a violation of the
constitutional right to due process of the civilian concerned.
In addition to this pronouncement, We take note of the observation made by
the Solicitor General to the effect that the death penalty imposed upon the
petitioners by the respondent Military Commission No. 34 appears to have
been rendered too hastily to the prejudice to the petitioners, and in complete
disregard of their constitutional right to adduce evidence on their behalf. We
quote the pertinent portions of the Manifestation submitted by the Solicitor
General, to wit
Prior to the session of December 4, 1984, when the respondent
Commission rendered its sentence, petitioners have requested the
prosecution to provide them with copies of the complete record of trial,
including the evidences presented against them, but the prosecution
dillydallied and failed to provide them with the document requested.
According to petitioners, they needed the documents to adequately
prepare for their defense.
But a few days before December 4, 1984 the prosecution suddenly
furnished them with certain transcripts of the proceedings which were not
complete. Petitioner Othoniel Jimenez was scheduled to start with the
presentation of his evidence on said date and he requested that his first
witness be served with subpoena. The other petitioners, as agreed upon,
were to present their evidence after the first one, Othoniel Jimenez, has
finished presenting his evidence. But on that fateful day, December 4,
1984, the witness requested to be served with subpoena was not around,
because as shown by the records, he was not even served with the
requested subpoena. But in spite of that, respondent Military Commission
proceeded to ask each one of the petitioners if they are ready to present
their evidence.
Despite their explanation that Othoniel Jimenez cannot proceed because
the prosecution, which performs the duties and functions of clerk of court,
failed to subpoena his witness, and that the other petitioners were not
ready because it was not yet their turn to do so, the Commission abruptly
decided that petitioners are deemed to have waived the presentation of
evidence in their behalf, and considered the case submitted for resolution.
After a recess of only twenty-five (25) minutes, the session was resumed and
the Commission rendered its sentence finding petitioners guilty of all the
charges against them and imposing upon them the penalty of death by
electrocution.
44

Thus, even assuming arguendo that the respondent Military Commission No. 34
does have the jurisdiction to try the petitioners, the Commission should be
deemed ousted of its jurisdiction when, as observed by the Solicitor General,
the said tribunal acted in disregard of the constitutional rights of the accused.
Indeed, it is well-settled that once a deprivation of a constitutional right is
shown to exist, the tribunal that rendered the judgment in question is deemed
ousted of jurisdiction.
45

Moreover, We find that Proclamation No. 2045 (dated January 17, 1981)
officially lifting martial law in the Philippines and abolishing all military tribunals
created pursuant to the national emergency effectively divests the respondent
Military Commission No. 34 (and all military tribunals for that matter) of its
supposed authority to try civilians, including the herein petitioners.
The main opinion in Aquino, Jr. is premised on the theory that military tribunals
have the jurisdiction to try civilians as long as the period of national emergency
(brought about by public disorder and similar causes) lasts. Undoubtedly,
Proclamation No. 2045 is an acknowledgment on the part of the Executive
Department of the Government that the national emergency no longer exists.
Thereafter, following the theory relied upon in the main opinion, all military
tribunals should henceforth be considered functus officio in their relationship
with civilians.
By virtue of the proclamation itself, all cases against civilians pending therein
should eventually be transferred to the civil courts for proper disposition. The
principle of double jeopardy would not be an obstacle to such transfer because
an indispensable element of double jeopardy is that the first tribunal which tried
the case must be of competent jurisdiction.
46
As discussed earlier, the military
tribunals are devoid of the required jurisdiction.
We take this opportunity to reiterate that as long as the civil courts in the land
are open and functioning, military tribunals cannot try and exercise jurisdiction
over civilians for offenses committed by them. Whether or not martial law has
been proclaimed throughout the country or over a part thereof is of no moment.
The imprimatur for this observation is found in Section 18, Article VII of the 1987
Constitution, to wit
A state of martial law, does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies
over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ. (Emphasis supplied.)
This provision in the fundamental law is just one of the many steps taken by the
Filipino people towards the restoration of the vital role of the judiciary in a free
country-that of the guardian of the Constitution and the dispenser of justice
without fear or favor.
No longer should military tribunals or commissions exercise jurisdiction over
civilians for offenses allegedly committed by them when the civil courts are
open and functioning. No longer may the exclusive judicial power of the civil
courts, beginning with the Supreme Court down to the lower courts
47
be
appropriate by any military body or tribunal, or even diluted under the guise of
a state of martial law, national security and other similar labels.
At this juncture, We find it appropriate to quote a few paragraphs from the
ponencia of Mr. Justice Gutierrez in Animas v. The Minister of National
Defense ,
48
viz
The jurisdiction given to military tribunals over common crimes and
civilian(s) accused at a time when all civil courts were fully operational and
freely functioning constitutes one of the saddest chapters in the history of
the Philippine judiciary.
The downgrading of judicial prestige caused by the glorification of military
tribunals, the instability and insecurity felt by many members of the
judiciary due to various causes both real and imagined, and the many
judicial problems spawned by extended authoritarian rule which effectively
eroded judicial independence and self-respect will require plenty of time
and determined efforts to cure.
The immediate return to civil courts of all cases which properly belong to
them is only a beginning.
And in his separate concurring opinion in Animas, Mr. Chief Justice Teehankee
had this to say
I only wish to add that the great significance of our judgment in this case is
that we reestablish and reinstate the fundamental principle based on
civilian supremacy over the military as urged in vain in my dissent in the
case of Benigno S. Aquino, Jr. vs. Military Commission No. 2, et al. that
"Civilians placed on trial for offenses under general law are entitled to trial
by judicial process, not by executive or military process. Judicial power is
vested by the Constitution exclusively in the Supreme Court and in such
inferior courts as are duly established by law. Military commissions, or
tribunals, are not courts and do not form part of the judicial system. Since
we are not enemy-occupied territory nor are we under a military
government and even on the premise that martial law continues in force,
the military tribunals cannot try and exercise jurisdiction over civilians for
civil offenses committed by them which are properly cognizable by the civil
courts that have remained open and have been regularly functioning.
xxx xxx xxx
The terrible consequences of subjecting civilians to trial by military process
is best exemplified in the sham military trial of the martyred former Senator
Benigno S. Aquino, Jr., whereby he was deprived (1) by the summary ex
parte investigation by the Chief prosecution staff of the JAGO of his right
to be informed of the charges against him and of his right to counsel as
expressly recognized by Section 20 of the Bill of Rights of the 1973
Constitution; (2) of his vested statutory right to a preliminary investigation
of the subversion charges against him before the proper court of first
instance as required under Section 5 of the Anti-Subversion Act, R.A. 1700
and of the other charges against him before the proper civilian officials and
to confront and cross-examine the witnesses against him under R.A. 5180;
(3) of the right to be tried by judicial process, by the regular independent
courts of justice, with all the specific constitutional, statutory and procedural
safeguards embodied in the judicial process and presided over not by
military officers; and (4) of the right to appeal to the regular appellate
courts and to judicial review by this Court in the event of conviction and
imposition of a sentence of death or life imprisonment which the charges
carry and wherein a qualified majority of ten (10) votes for affirmance of the
death penalty is required. In fine, he was denied due process of law as
guaranteed under the Bill of Rights which further ordains that "No person
shall be held to answer for a criminal offense without due process of
law."Worse, his trial by a military tribunal created by the then President and
composed of the said President's own military subordinates without tenure
and of non-lawyers (except the law member) and of whose decision the
President is the final reviewing authority as Commander-in-Chief of the
Armed Forces deprived him of a basic constitutional right to be heard by a
fair and impartial tribunal, considering that the said President had publicly
declared the evidence against petitioner "not only strong (but)
overwhelming" and thereby prejudged and predetermined his guilt, and
none of his military subordinates could be expected to go against their
Commander-in-Chief's declaration.
Hopefully, an these aberrations now belong to the dead and nightmarish
past, when time-tested doctrines, to borrow a phrase from the then Chief
Justice, "shrivelled in the effulgence of the overpowering rays of martial
rule.
49

As stated earlier, We have been asked to re-examine a previous ruling of the
Court with a view towards abandoning or modifying the same. We do so now
but not without careful reflection and deliberation on Our part. Certainly, the
rule of stare decisis is entitled to respect because stability in jurisprudence is
desirable. Nonetheless, reverence for precedent, simply as precedent, cannot
prevail when constitutionalism and the public interest demand otherwise. Thus,
a doctrine which should be abandoned or modified should be abandoned or
modified accordingly. After all, more important than anything else is that this
Court should be right.
50

Accordingly, it is Our considered opinion, and We so hold, that a military
commission or tribunal cannot try and exercise jurisdiction, even during the
period of martial law, over civilians for offenses allegedly committed by them as
long as the civil courts are open and functioning, and that any judgment
rendered by such body relating to a civilian is null and void for lack of
jurisdiction on the part of the military tribunal concerned.
51
For the same
reasons, Our pronouncement in Aquino, Jr. v. Military Commission No. 2
52
and
all decided cases affirming the same, in so far as they are inconsistent with this
pronouncement, should be deemed abandoned.
WHEREFORE, in view of the foregoing, the Petitions for habeas corpus are
DISMISSED for having become moot and academic. The Petitions for certiorari
and prohibition are hereby GRANTED. The creation of the respondent Military
Commission No. 34 to try civilians like the petitioners is hereby declared
unconstitutional and all its proceedings are deemed null and void. The
temporary restraining order issued against the respondents enjoining them from
executing the Decision of the respondent Military Commission No. 34 is hereby
made permanent and the said respondents are permanently prohibited from
further pursuing Criminal Case No. MC-34-1 against the petitioners. The
sentence rendered by the respondent Military Commission No. 34 imposing the
death penalty on the petitioners is hereby vacated for being null and void, and
all the items or properties taken from the petitioners in relation to the said
criminal case should be returned to them immediately. No pronouncement as to
costs.
SO ORDERED.
Yap, Fernando, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Bidin, Sarmiento and Cortes, JJ., concur.
Padilla, J., took no part.
Separate Opinions
TEEHANKEE, C. J., concurring:
I hail the Court's unanimous judgment 1 vacating and setting aside the penalty
of death by electrocution summarily imposed by respondent military
commission on December 4, 1984 upon the principal petitioners Eduardo
Olaguer, Othoniel Jimenez, Reynaldo Maclang and Ester Misa Jimenez for lack
of jurisdiction of military commissions over civilians, and expressly overturning
and rejecting the contrary 1975 ruling in Benigno S. Aquino, Jr. vs. Military
Commission No. 2
2
and subsequent cases, issued during the darkest chapter of
our history when time-tested doctrines guaranteeing a person's right to due
process in preservation of his life and liberty, shrivelled in the effulgence of the
overpowering rays of martial rule." We uphold once again the supremacy of the
Constitution and of the Rule of Law and of civilian authority over the military.
1. As petitioners submitted in apparent futility at the time in view of the Aquino
ruling, they were denied from the very beginning elementary due process which
guarantees their constitutional right to an impartial trial because, prescinding
from civilians' right to trial by judicial, not military, process, the President
(Commander-in-Chief) and the Defense Minister who were the supposed targets
of petitioners' conspiracy, were also the very authorities who personally
approved the filing of the charges against them and referred them to the
respondent commission for trial, and as reviewing authorities, had the power to
reverse or modify every judgment of respondent commission, even a judgment
of acquittal; furthermore, the President and the Defense Minister had the power
directly or indirectly to substitute at pleasure the members of respondent
commission, assign them as subordinates to more hazardous or difficult duties
and to promote or prevent their promotion to higher rank. They could hardly be
expected to go against their superiors' declaration of the "overwhelming"
evidence against the accused. As stressed in my dissent in Aquino:
Petitioner's plea that his trial by a military tribunal created by the President
and composed of the President's own military subordinates without tenure
and of non-lawyers (except the law member) and of whose decision the
President is the final reviewing authority as Commander-in-Chief of the
Armed Forces deprives him of a basic constitutional right to be heard by a
fair and impartial tribunal considering that the President has publicly
declared the evidence against petitioner "not only strong (but)
overwhelming" and in petitioner's view thereby prejudged and
predetermined his guilt merits consideration.
In Petitioner's view, he has been publicly indicted and his guilt prejudged
by the President when in a nationwide press conference on August 24,
1971 following the Plaza Miranda bombing three days earlier of the Liberal
Party proclamation meeting, the President charged him and disclosed
evidence in the possession of the government linking petitioner to some
illegal and subversive activities, in 1965-1971, which are virtually the same
charges now filed against him before respondent military commission, and
declared the evidence against petitioner "not only strong (but) over-
whelming The President explained on the same occasion that in not acting
against petitioner, he had erred on the side of generosity as wen as of
liberality hoping that good sense may someday catch up with him" since
petitioner was "the only opposition senator left in the Senate" after the
[Plaza Miranda] bombing, but that he did not know "what will happen later
on, because, of course, the military insist that we must not make any
exceptions to the general rule.
While one may agree that the President as Commander-in-Chief would
discharge his duty as the final reviewing authority with fealty to his oath "to
do justice to every man," particularly because of his renowned legal
sagacity and experience, still under the enviromental facts where the
military appears to have been impressed by the President's appraisal of the
evidence and without casting any reflection on the integrity of the members
of respondent military commission which petitioner himself acknowledges,
the doctrine consistently held by the Court that "elementary due process
requires a hearing before an impartial and disinterested tribunal" and that
"An suitors ... are entitled to nothing short of the cold neutrality of an
independent, wholly free, disinterested and impartial tribunal" cans for
application in the present case.
3

The then President had himself acknowledged the indispensability of the judicial
process, stating in the same nationwide press conference of August 24, 1971
that:
I am a lawyer, my training is oriented towards the protection of the Bin of
Rights, because if you will remember, I have repeatedly said, that if it were
not for the Bill of Rights I would not be here now. If it were not for the
judicial process, I would not be President of the Republic of the Philippines.
...
4

Yet, he denied to Aquino the very self-same right to due process and judicial
process.
2. The total unacceptability of military trials for civilians may be appreciated
from the fate and ordeal of petitioners. Since their arrest on December 24,
1979, they had been continuously confined for over five years (without physical
access to lawyers, witnesses and court records in the case of Eduardo Olaguer
5
) and spent seven Christmases in confinement, before their provisional release
on January 23, 1986 (save petitioner Ester Misa Jimenez whose provisional
release was earlier granted in January, 1981). The extreme difficulties
encountered by civilian counsels in defending them before respondent military
commission can best be seen from their written motions/manifestations of
withdrawal as such counsel. Former Senator Lorenzo M. Tanada and Atty.
Wigberto Tanada had previously withdrawn as civilian counsel for petitioner
Eduardo Olaguer.
Civilian counsel Sabino Padilla, Jr. for petitioner Othoniel Jimenez was likewise
constrained to file on January 10, 1983 his Motion to Withdraw Appearance,
stating the following:
1. In the hearing of March 2, 1982, the prosecution moved for the
discharge of the accused Carlos Lazaro and Teodorico Diesmos The
prosecution alleged that the requirements of Sec. 9, Rule 119 of the Rules
of Court had been complied with. Considering that trial had commenced
one year and a half before the prosecution made this move, the defense
vehemently objected. This Military Commission ruled:
LAW MEMBER:
Please, just listen. We are of the view that this Commission has no
authority to discharge the accused Carlos Lazaro and accused
Teodorico Diesmos from the Charge Sheet to be utilized as state
witnesses. In the same manner that the herein accused have been
included in the Charge Sheet upon the approval of the appointing
authority, the exclusion or discharge of any of them should likewise
carry the approval of the appointing authority. Therefore, the matter of
the discharge of the said two (2) accused should be addressed to the
appointing authority for his consideration. (Tsn, March 2, 1982, pp.
42-43)
xxx xxx xxx
3. At the start of the hearing last December 13, 1982, the prosecution
informed this Military Commission and the defense that on December 11,
1982 (a Saturday), the Minister of National Defense had ordered the
discharge of the accused Lazaro and Diesmos and that the prosecution
would be presenting these accused in that hearing.
In view of the vital implications of such a discharge on the conduct of the
defense of the other accused, all three counsel of choice immediately
moved that the hearing be postponed or that witnesses other than Lazaro
and Diesmos be presented in that hearing, to allow counsel to take to the
Supreme Court the ruling of the Minister of National Defense as well as this
Military Commission's abdication of a trial court's jurisdiction to grant or
deny a prosecution motion to discharge an accused.
To the complete surprise and dismay of defense counsel of choice, the
prosecution insisted on presenting Lazaro and Diesmos before the other
accused could take to the Supreme Court the legality and propriety of their
discharge as accused to be state witnesses. Counsel of choice had no
alternative but to withdraw from the proceedings that day.
Subsequent events disclosed why Lazaro and Diesmos had to be presented
as witnesses on that day, December 13, 1982. They were to recite, as
indeed they recited, a newly fabricated and fantastic story linking (three
years after the fact) the present accused with the accused in the We Forum
case, who were being arraigned that afternoon in the Court of First Instance
of Quezon City. Pursuant to this scenario, all the newspapers the following
day carried the same release that the accused herein and those in the We
Forum were members of one conspiracy.
It has thus become abundantly clear to the undersigned counsel that under
the present circumstances any further participation on his part in the
proceedings before this Military Commission would not only be futile but
also bring disgrace and dishonor to himself and to the legal profession .
6

Civilian counsel Joaquin L. Misa for his close kin, Ester Misa Jimenez, after
prefatory remarks that he "had never appeared before in a military court land]
entertained a degree of confidence in the quality of military justice land] was
reared with a healthy regard for military officers" stated in his written
manifestation dated January 10, 1983 that:
... many events in the course of these proceedings have eroded the
confidence of the undersigned in ultimately obtaining justice from this
Honorable Commission.
The last straws so to speak, were the events of December 13, 1982. Three
hearings of this case prior to the December 13 hearing were cancelled or
postponed upon motion of the Prosecution on the shallow and never
explained excuse that their next supposed witness, Col. Beroya, was not
available. On December 13, the Prosecution read into the record an
alleged resolution on the state witness question by the Minister of National
Defense (Note that up to this writing the undersigned has not been served
with a copy of that alleged resolution perhaps because it was written on
stationery marked CONFIDENTIAL). After the supposed resolution by the
Minister of National Defense was read into the record, the undersigned
moved for a postponement of even one week to afford the undersigned
the opportunity to either ask for a reconsideration by the Minister or raise
the matter to the Supreme Court on Certiorari. The Prosecution's objection
was so vehement that it was incomprehensible to the undersigned why a
simple motion could evoke such a violent reaction from the Prosecution
(Cols. Ridao and Disierto seemed to be outdoing each other in the decibels
of their objections). This was especially baffling to the undersigned because
theretofore in several instances when the undersigned inquired if there had
been a ruling by "the higher authorities" on the question of the state
witnesses, The Prosecution always assured the undersigned and the other
civilian defense counsel that if a ruling is made, and it is adverse to the
defense we will be given enough time to deal with the problem.
As the Commission well knows the defense motion for postponement was
denied and two (2) accused who were released from the case testified in
the absence of all the civilian defense counsel. Only upon reading the
newspaper the next day was the indecent haste of the Prosecution to
present the two (2) witnesses explained. The Prosecution, and the
Commission by going along with the Prosecution, apparently wanted to
time the newly fabricated testimony of Diesmos and Lazaro linking this case
with the We Forum case the arraignment of which was held on December
13, in the afternoon.
The orchestration and synchronization of such testimony in this case (at the
expense of denying the accused recourse against the resolution of the
Minister) with the arraignment in the We Forum case taken together with
the Identically worded newspaper stories appearing in all the dailies now in
publication has made it clear to the undersigned that this case will not be
decided on its merits but on the convenience that it affords to the pursuit of
the government's objectives.
7

Respondent military commission furthermore on December 4, 1984 summarily
called all proceedings to a halt, denied any continuation of the case and
abruptly declared the case submitted without any evidence for the defense,
notwithstanding that it had not subpoenaed the first defense witness for
petitioner Othoniel Jimenez as duly requested, while the other petitioners were
not expected to be ready with their witnesses until later hearings; and after a
mere 25-minute recess, rendered its "judgment" imposing the death penalty by
electrocution on all the above-named petitioners. No objection to this bizzarre
procedure came from military counsels who were assigned to represent
petitioners after their civilian counsels' withdrawal, for as the Solicitor General
now manifested, "the records show, they more often than not practically acted
for the prosecution rather than as defense counsels. "
7
a
3. I hail the Court's reinstatement of the settled ruling in this jurisdiction that
deprivation and disregard of the constitutional rights of an accused ousts the
court or tribunal of jurisdiction, which had been greatly eroded. This reenforces
the 1987 Constitution's reaffirmation of the role of the Supreme Court as the
guarantor of the constitutional and human rights of all persons within its
jurisdiction with the function of seeing to it that these rights are respected and
enforced. As the Court stressed in Gumabon vs. Director of Bureau of Prisons
8

"Once a deprivation of a constitutional right is shown to exist, the court that
rendered the judgment is deemed ousted of jurisdiction and habeas corpus is
the appropriate remedy to assail the legality of the detention.
9
So accused
persons who are deprived of their constitutional right of a speedy trial should be
set at liberty. 10 Likewise persons detained indefinitely without charges so much
so that the detention becomes punitive and not merely preventive in character
are entitled to regain their freedom, for the spirit and the letter of our
Constitution negates as contrary to the precepts of human rights and freedom
that a person be detained indefinitely without any charges.
4. Indeed, Art. VII, section 18 of the 1987 Constitution, drawing upon the sad
lessons of the excessive concentration of powers in the Chief Executive in the
previous Constitutions which enabled him to exercise absolute power to the
point of taking over the entire government, has provided for measures to curtail
such abuse of executive power. The late former Chief Justice Roberto
Concepcion, pillar and champion of the Rule of Law, chairman of the 1986
Constitutional Commission's Judiciary Committee and Chief Justice of the
Supreme Court at the time of the imposition of martial law in 1972, summarized
these salutary changes, in his last public address, as follows:
1. Under the New Constitution, martial law does not suspend the operation
of the New Constitution or supplant the functioning of the civil courts
or legislative assemblies. Neither does it authorize the conferment of
jurisdiction on military courts and agencies over civilians when civil
courts are able to function.
2. Martial law does not supplant the civil courts when the same are able to
function.
3. Martial law does not automatically suspend the privilege of the writ of
habeas corpus.
4. Martial law may not be declared upon the ground of imminent danger of
invasion or rebellion. in the event of such danger, the President may
call the armed forces to prevent or suppress the danger, without
declaring martial law or suspending the privilege of the will it.
5. Within forty-eight (48) hours after the proclamation of martial law, the
President shall report the same to Congress in person or in writing.
6. Congress may, by a majority vote of all its members, revoke the
proclamation of martial law or the suspension of the privilege of the
writ, which action of Congress may not be set aside by the President.
7. The proclamation of martial law or suspension or the privilege of the writ
by the President, may not exceed sixty (60) days without the
concurrence of Congress.
8. The Supreme Court has been expressly authorized to "review in an
appropriate proceeding filed by any citizen the sufficiency of the
factual basis of the proclamation of martial law or of the suspension of
the privilege of the writ or the extension thereof, and must promulgate
its decision thereon within thirty (30) days from its filing."
9. Under the "1973 Constitution," as amended, at least ten (10) votes of
the members of the Supreme Court were necessary to invalidate or
declare a law unconstitutional, regardless of the number of vacancies in
the Supreme Court or the number of its members who participated in
the deliberations on the issues involved in the case, and voted thereon.
Under the New Constitution a simple majority of the members who
took part in such deliberation and cast their votes thereon is sufficient.
10. In the case of suspension of the privilege of the writ, the same does not
apply to persons who have not been placed under the custody of a
court of justice.
11. In case of suspension of the privilege of the writ, the person detained
must be released unless judicially charged within three (3) days. 11
These substantial checks by the legislature as well as by the judiciary on the
Chief Executive's power to proclaim martial law or to suspend the privilege of
the writ of habeas corpus were meant to forestall a recurrence of the long and
horrible nightmare of the past regime when one single clause, the Commander-
in-Chief clause of the Constitution then in force that authorized the President to
declare martial law was held to have nullified the entire Constitution and the Bill
of Rights and justified the then President's taking over "absolute command" of
the nation and that the people could "only trust and pray that, giving him their
own loyalty with utmost patriotism, (he) will not fail them." Thus, persons held
under Presidential Commitment or Detention Orders were detained indefinitely
without charges, yet had no recourse to the courts. Even if they were acquitted
in court, the military would not release them until and unless the then President
lifted the preventive detention order. 12 It was a long and horrible nightmare
when our people's rights, freedoms and liberties were sacrificed at the altar of
"national security" even though it involved nothing more than the President-
dictator's perpetuation in office and the security of his relatives and some
officials in high positions and their protection from public accountability of their
acts of venality and deception in government, many of which were of public
knowledge.
Draconian decrees were issued whereby many were locked up indefinitely for
"rumor-mongering," "unlawful use of means of publication and unlawful
utterances, and alarms and scandals." While the people for the most part
suffered in silence and waited, others never gave up the struggle for truth,
freedom, justice and democracy, a common commitment which is what makes a
people a nation instead of a gathering of self-seeking individuals. The national
will was systematically undermined to the point, of national mockery, that the
day of imposition of martial law was proclaimed as "National Thanksgiving
Day." As the Court observed through Mr. Justice Gutierrez in Animas vs.
Minister of National Defense, 13 the era of martial law when military tribunals,
against all tenets of due process, were conferred jurisdiction over common
crimes and civilians, their glorification with the downgrading of judicial prestige
and "the many judicial problems spawned by extended authoritarian rule which
effectively eroded judicial independence and self-respect will require plenty of
time and determined efforts to cure."
5. The treacherous assassination on August 21, 1983 of the martyred Benigno S.
Aquino, Jr., within minutes of his arrival at the Manila International Airport,
although ringed with 2,000 soldiers, shocked and outraged the conscience of
the nation. After three years of exile following almost eight years of detention
since martial law, Aquino, although facing the military commission's
predetermined death sentence, supra, yet refused proper travel documents,
was returning home "to strive for genuine national reconciliation founded on
justice." The late Senator Jose W. Diokno who passed away this year was
among the first victims of the martial law coup d'etat to be locked up with
Senator Aquino. In March, 1973, all of their personal effects, including their
eyeglasses were ominously returned to their homes. Their wives' visitation
privileges were suspended and they lost all contact for over a month. It turned
out that Aquino had smuggled out of his cell a written statement critical of the
martial law regime. In swift retribution, both of them were flown out blindfolded
to the army camp at Fort Laur in Nueva Ecija and kept in solitary confinement in
dark boarded cells with hardly any ventilation. When their persons were
produced before the Court on habeas corpus proceedings, they were a pitiable
sight having lost about 30 to 40 lbs. in weight. Senator Diokno was to be
released in September, 1974 after almost two years of detention. No charges of
any kind were ever filed against him. His only fault was that he was a possible
rival for the presidency.
Horacio Morales, Jr., 1977 TOYM awardee for government service and then
executive vice-president of the Development Academy of the Philippines, was
among the hard-working government functionaries who had been radicalized
and gave up their government positions. Morales went underground on the
night he was supposed to receive his TOYM award, declaring that "(F)or almost
ten years, I have been an official in the reactionary government, serviced the
Marcos dictatorship and all that it stands for, serving a ruling system that has
brought so much suffering and misery to the broad masses of the Filipino
people. (1) refuse to take any more part of this. I have had enough of this
regime's tyranny and treachery, greed and brutality, exploitation and oppression
of the people," and "(I)n rejecting my position and part in the reactionary
government, I am glad to be finally free of being a servant of foreign and local
vested interest. I am happy to be fighting side by side with the people." He was
apprehended in 1982 and was charged with the capital crime of subversion,
until he was freed in March, 1986 after President Corazon C. Aquino's
assumption of office, together with other political prisoners and detainees and
prisoners of conscience in fulfillment of her campaign pledge.
Countless others forfeited their lives and stand as witnesses to the tyranny and
repression of the past regime. Driven by their dreams to free our motherland
from poverty, oppression, iniquity and injustice, many of our youthful leaders
were to make the supreme sacrifice. To mention a few: U.P. Collegian editor
Abraham Sarmiento, Jr., worthy son of an illustrious member of the Court
pricked the conscience of many as he asked on the front page of the college
paper: Sino ang kikibo kung hindi tayo kikibo? Sino ang kikilos kung hindi tayo
kikilos? Kung hindi ngayon, kailan pa? 13a He was locked up in the military
camp and released only when he was near death from a severe attack of
asthma, to which he succumbed. Another TOYM awardee, Edgar Jopson, an
outstanding honor student at the Ateneo University, instinctively pinpointed the
gut issue in 1971-he pressed for a "non-partisan Constitutional Convention;"
and demanded that the then president-soon-to-turn dictator "put down in
writing" that he was not going to manipulate the Constitution to remove his
disqualification to run for a third term or perpetuate himself in office and was
called down as "son of a grocer." When as he feared, martial law was declared,
Jopson went underground to continue the struggle and was to be waylaid and
killed at the age of 34 by 21 military troops as the reported head of the rebel
movement in Mindanao. 14 Another activist honor student leader, Emmanuel
Yap, son of another eminent member of the Court, was to disappear on
Valentine's Day in 1976 at the young age of 24, reportedly picked up by military
agents in front of Channel 7 in Quezon City, and never to be seen again.
One of our most promising young leaders, Evelio B. Javier, 43, unarmed,
governor of the province of Antique at 28, a Harvard-trained lawyer, was
mercilessly gunned down with impunity in broad daylight at 10 a.m. in front of
the provincial capitol building by six mad-dog killers who riddled his body with
24 bullets fired from M-16 armalite rifles (the standard heavy automatic weapon
of our military). He was just taking a breather and stretching his legs from the
tedious but tense proceedings of the canvassing of the returns of the
presidential snap election in the capitol building. This was to be the last straw
and the bloodless EDSA revolt was soon to unfold. The Court in Javier vs.
Comelec, 15 through Mr. Justice Cruz, "said these meager words in tribute to a
fallen hero who was struck down in the vigor of his youth because he dared to
speak against tyranny. Where many kept a meekly silence for fear of retaliation,
and still others feigned and fawned in hopes of safety and even reward, he
chose to fight. He was not afraid. Money did not tempt him. Threats did not
daunt him. Power did not awe him. His was a singular and all-exacting
obsession: the return of freedom to his country. And though he fought not in
the barricades of war amid the sound and smoke of shot and shell, he was a
soldier nonetheless, fighting valiantly for the liberties of his people against the
enemies of his race, unfortunately of his race too, who would impose upon the
land a perpetual night of dark enslavement. He did not see the breaking of the
dawn, sad to say, but in a very real sense Evelio B. Javier made that dawn draw
nearer because he was, like Saul and Jonathan, "swifter than eagles and
stronger than lions." "
6. The greatest threat to freedom is the shortness of human memory. We must
note here the unforgettable and noble sacrifices of the countless brave and
patriotic men and women who feel as martyrs and victims during the long dark
years of the deposed regime. In vacating the death sentence imposed on the
petitioners who survived the holocaust,, we render them simple justice and we
redeem and honor the memory of those who selflessly offered their lives for the
restoration of truth, decency, justice and freedom in our beloved land. Due
recognition must be given also that 85% of the Armed Forces of the Philippines
readily joined the EDSA revolt and redeemed the honor of the military by
recognizing civilian supremacy and the supreme mandate given by the people
to the true winners of the elections. Witness the testimony of Gen. Fidel V.
Ramos now chief of the new Armed Forces of the Philippines, as he recounted
early last year his breakaway from the past regime:
The Armed Forces of the Philippines had ceased to be the real armed
forces supposed to be the defender of the people. There had developed
an elite group within the AFP . . . and the AFP no longer represented its
rank and file and officers corps.
Mr. Marcos was no longer the same President that we used to know, to
whom we pledged our loyalty and dedicated our services. He was no
longer the able and capable commander-in-chief whom we used to count
on. He had already put his personal interest, his family interest, above the
interest of the people.
The small people in the AFP and the Integrated National Police were now
being pushed around by powerful military officers motivated by very selfish
desires and intentions. Many of those officers were now practically the
servants of powerful politicians. 16
The present PC/INP Chief, Major General Renato de Vina, on the 85th
anniversary of the Philippine Constabulary last August 8th publicly stated that
"for the perfidy of a few, we owe the whole nation a sincere apology and a
commitment to intensively pursue our new program of reforms, to weed out the
misfits who bring discredit to our organization," and solemnly pledged that
"now and forever, your PC/INP stands ready and committed to fight
lawlessness, injustice and oppression, as well as the sinister forces that continue
to threaten our stability and progress as a free country. We make this solemn
pledge here and now, before our entire nation, before our Commander-in-Chief
who is the personification of our national honor and unity, before God who has
always blessed our people ... to consecrate our lives to the protection and
preservation of our national Ideals-of unity, peace, justice and democracy."
7. The people by their overwhelming ratification of the 1987 Constitution at the
plebiscite held last February 2nd unequivocally reaffirmed their collective act of
installing our new government following the bloodless EDSA revolt. They re
fused to be deterred by the last-ditch efforts of the forces of the Right and of
the Left to derail our return to fun normalcy and the restoration of our
democratic institutions. They proclaimed a renewed and vigorous faith in the
democratic process. Among the great changes introduced in the 1987
Constitution to harness the Presidential power to impose martial law and
strengthen the system of checks and balances in our government were those
made by the venerable late Chief Justice Roberto Concepcion and his fellow
members of the 1986 Constitutional Commission, hereinabove enumerated. 17
With their work completed, and the 1987 Constitution decisively approved and
ratified by the people, Chief Justice Concepcion could then claim his eternal
rest on last May 3rd and leave us this legacy and caueat: "One thing," he said,
"I have learned during the martial law regime, and that is-that a Constitution is
as good only as it is enforced. ... the Primacy of the Law depends ultimately
upon the people; upon their awareness of this fact and their willingness and
readiness to assume the corresponding responsibility, in short, upon their
political maturity." 18

Separate Opinions
TEEHANKEE, C. J., concurring:
I hail the Court's unanimous judgment 1 vacating and setting aside the penalty
of death by electrocution summarily imposed by respondent military
commission on December 4, 1984 upon the principal petitioners Eduardo
Olaguer, Othoniel Jimenez, Reynaldo Maclang and Ester Misa Jimenez for lack
of jurisdiction of military commissions over civilians, and expressly overturning
and rejecting the contrary 1975 ruling in Benigno S. Aquino, Jr. vs. Military
Commission No. 2
2
and subsequent cases, issued during the darkest chapter of
our history when time-tested doctrines guaranteeing a person's right to due
process in preservation of his life and liberty, shrivelled in the effulgence of the
overpowering rays of martial rule." We uphold once again the supremacy of the
Constitution and of the Rule of Law and of civilian authority over the military.
1. As petitioners submitted in apparent futility at the time in view of the Aquino
ruling, they were denied from the very beginning elementary due process which
guarantees their constitutional right to an impartial trial because, prescinding
from civilians' right to trial by judicial, not military, process, the President
(Commander-in-Chief) and the Defense Minister who were the supposed targets
of petitioners' conspiracy, were also the very authorities who personally
approved the filing of the charges against them and referred them to the
respondent commission for trial, and as reviewing authorities, had the power to
reverse or modify every judgment of respondent commission, even a judgment
of acquittal; furthermore, the President and the Defense Minister had the power
directly or indirectly to substitute at pleasure the members of respondent
commission, assign them as subordinates to more hazardous or difficult duties
and to promote or prevent their promotion to higher rank. They could hardly be
expected to go against their superiors' declaration of the "overwhelming"
evidence against the accused. As stressed in my dissent in Aquino:
Petitioner's plea that his trial by a military tribunal created by the President
and composed of the President's own military subordinates without tenure
and of non-lawyers (except the law member) and of whose decision the
President is the final reviewing authority as Commander-in-Chief of the
Armed Forces deprives him of a basic constitutional right to be heard by a
fair and impartial tribunal considering that the President has publicly
declared the evidence against petitioner "not only strong (but)
overwhelming" and in petitioner's view thereby prejudged and
predetermined his guilt merits consideration.
In Petitioner's view, he has been publicly indicted and his guilt prejudged
by the President when in a nationwide press conference on August 24,
1971 following the Plaza Miranda bombing three days earlier of the Liberal
Party proclamation meeting, the President charged him and disclosed
evidence in the possession of the government linking petitioner to some
illegal and subversive activities, in 1965-1971, which are virtually the same
charges now filed against him before respondent military commission, and
declared the evidence against petitioner "not only strong (but) over-
whelming The President explained on the same occasion that in not acting
against petitioner, he had erred on the side of generosity as wen as of
liberality hoping that good sense may someday catch up with him" since
petitioner was "the only opposition senator left in the Senate" after the
[Plaza Miranda] bombing, but that he did not know "what will happen later
on, because, of course, the military insist that we must not make any
exceptions to the general rule.
While one may agree that the President as Commander-in-Chief would
discharge his duty as the final reviewing authority with fealty to his oath "to
do justice to every man," particularly because of his renowned legal
sagacity and experience, still under the enviromental facts where the
military appears to have been impressed by the President's appraisal of the
evidence and without casting any reflection on the integrity of the members
of respondent military commission which petitioner himself acknowledges,
the doctrine consistently held by the Court that "elementary due process
requires a hearing before an impartial and disinterested tribunal" and that
"An suitors ... are entitled to nothing short of the cold neutrality of an
independent, wholly free, disinterested and impartial tribunal" cans for
application in the present case.
3

The then President had himself acknowledged the indispensability of the judicial
process, stating in the same nationwide press conference of August 24, 1971
that:
I am a lawyer, my training is oriented towards the protection of the Bin of
Rights, because if you will remember, I have repeatedly said, that if it were
not for the Bill of Rights I would not be here now. If it were not for the
judicial process, I would not be President of the Republic of the Philippines.
. . .
4

Yet, he denied to Aquino the very self-same right to due process and judicial
process.
2. The total unacceptability of military trials for civilians may be appreciated
from the fate and ordeal of petitioners. Since their arrest on December 24,
1979, they had been continuously confined for over five years (without physical
access to lawyers, witnesses and court records in the case of Eduardo Olaguer
5
) and spent seven Christmases in confinement, before their provisional release
on January 23, 1986 (save petitioner Ester Misa Jimenez whose provisional
release was earlier granted in January, 1981). The extreme difficulties
encountered by civilian counsels in defending them before respondent military
commission can best be seen from their written motions/manifestations of
withdrawal as such counsel. Former Senator Lorenzo M. Tanada and Atty.
Wigberto Tanada had previously withdrawn as civilian counsel for petitioner
Eduardo Olaguer.
Civilian counsel Sabino Padilla, Jr. for petitioner Othoniel Jimenez was likewise
constrained to file on January 10, 1983 his Motion to Withdraw Appearance,
stating the following:
1. In the hearing of March 2, 1982, the prosecution moved for the
discharge of the accused Carlos Lazaro and Teodorico Diesmos The
prosecution alleged that the requirements of Sec. 9, Rule 119 of the Rules
of Court had been complied with. Considering that trial had commenced
one year and a half before the prosecution made this move, the defense
vehemently objected. This Military Commission ruled:
LAW MEMBER:
Please, just listen. We are of the view that this Commission has no
authority to discharge the accused Carlos Lazaro and accused
Teodorico Diesmos from the Charge Sheet to be utilized as state
witnesses. In the same manner that the herein accused have been
included in the Charge Sheet upon the approval of the appointing
authority, the exclusion or discharge of any of them should likewise
carry the approval of the appointing authority. Therefore, the matter of
the discharge of the said two (2) accused should be addressed to the
appointing authority for his consideration. (Tsn, March 2, 1982, pp.
42-43)
xxx xxx xxx
3. At the start of the hearing last December 13, 1982, the prosecution
informed this Military Commission and the defense that on December 11,
1982 (a Saturday), the Minister of National Defense had ordered the
discharge of the accused Lazaro and Diesmos and that the prosecution
would be presenting these accused in that hearing.
In view of the vital implications of such a discharge on the conduct of the
defense of the other accused, all three counsel of choice immediately
moved that the hearing be postponed or that witnesses other than Lazaro
and Diesmos be presented in that hearing, to allow counsel to take to the
Supreme Court the ruling of the Minister of National Defense as well as this
Military Commission's abdication of a trial court's jurisdiction to grant or
deny a prosecution motion to discharge an accused.
To the complete surprise and dismay of defense counsel of choice, the
prosecution insisted on presenting Lazaro and Diesmos before the other
accused could take to the Supreme Court the legality and propriety of their
discharge as accused to be state witnesses. Counsel of choice had no
alternative but to withdraw from the proceedings that day.
Subsequent events disclosed why Lazaro and Diesmos had to be presented
as witnesses on that day, December 13, 1982. They were to recite, as
indeed they recited, a newly fabricated and fantastic story linking (three
years after the fact) the present accused with the accused in the We Forum
case, who were being arraigned that afternoon in the Court of First Instance
of Quezon City. Pursuant to this scenario, all the newspapers the following
day carried the same release that the accused herein and those in the We
Forum were members of one conspiracy.
It has thus become abundantly clear to the undersigned counsel that under
the present circumstances any further participation on his part in the
proceedings before this Military Commission would not only be futile but
also bring disgrace and dishonor to himself and to the legal profession .
6

Civilian counsel Joaquin L. Misa for his close kin, Ester Misa Jimenez, after
prefatory remarks that he "had never appeared before in a military court land]
entertained a degree of confidence in the quality of military justice land] was
reared with a healthy regard for military officers" stated in his written
manifestation dated January 10, 1983 that:
... many events in the course of these proceedings have eroded the
confidence of the undersigned in ultimately obtaining justice from this
Honorable Commission.
The last straws so to speak, were the events of December 13, 1982. Three
hearings of this case prior to the December 13 hearing were cancelled or
postponed upon motion of the Prosecution on the shallow and never
explained excuse that their next supposed witness, Col. Beroya, was not
available. On December 13, the Prosecution read into the record an
alleged resolution on the state witness question by the Minister of National
Defense (Note that up to this writing the undersigned has not been served
with a copy of that alleged resolution perhaps because it was written on
stationery marked CONFIDENTIAL). After the supposed resolution by the
Minister of National Defense was read into the record, the undersigned
moved for a postponement of even one week to afford the undersigned
the opportunity to either ask for a reconsideration by the Minister or raise
the matter to the Supreme Court on Certiorari. The Prosecution's objection
was so vehement that it was incomprehensible to the undersigned why a
simple motion could evoke such a violent reaction from the Prosecution
(Cols. Ridao and Disierto seemed to be outdoing each other in the decibels
of their objections). This was especially baffling to the undersigned because
theretofore in several instances when the undersigned inquired if there had
been a ruling by "the higher authorities" on the question of the state
witnesses, The Prosecution always assured the undersigned and the other
civilian defense counsel that if a ruling is made, and it is adverse to the
defense we will be given enough time to deal with the problem.
As the Commission well knows the defense motion for postponement was
denied and two (2) accused who were released from the case testified in
the absence of all the civilian defense counsel. Only upon reading the
newspaper the next day was the indecent haste of the Prosecution to
present the two (2) witnesses explained. The Prosecution, and the
Commission by going along with the Prosecution, apparently wanted to
time the newly fabricated testimony of Diesmos and Lazaro linking this case
with the We Forum case the arraignment of which was held on December
13, in the afternoon.
The orchestration and synchronization of such testimony in this case (at the
expense of denying the accused recourse against the resolution of the
Minister) with the arraignment in the We Forum case taken together with
the Identically worded newspaper stories appearing in all the dailies now in
publication has made it clear to the undersigned that this case will not be
decided on its merits but on the convenience that it affords to the pursuit of
the government's objectives.
7

Respondent military commission furthermore on December 4, 1984 summarily
called all proceedings to a halt, denied any continuation of the case and
abruptly declared the case submitted without any evidence for the defense,
notwithstanding that it had not subpoenaed the first defense witness for
petitioner Othoniel Jimenez as duly requested, while the other petitioners were
not expected to be ready with their witnesses until later hearings; and after a
mere 25-minute recess, rendered its "judgment" imposing the death penalty by
electrocution on all the above-named petitioners. No objection to this bizzarre
procedure came from military counsels who were assigned to represent
petitioners after their civilian counsels' withdrawal, for as the Solicitor General
now manifested, "the records show, they more often than not practically acted
for the prosecution rather than as defense counsels. "
7
a
3. I hail the Court's reinstatement of the settled ruling in this jurisdiction that
deprivation and disregard of the constitutional rights of an accused ousts the
court or tribunal of jurisdiction, which had been greatly eroded. This reenforces
the 1987 Constitution's reaffirmation of the role of the Supreme Court as the
guarantor of the constitutional and human rights of all persons within its
jurisdiction with the function of seeing to it that these rights are respected and
enforced. As the Court stressed in Gumabon vs. Director of Bureau of Prisons
8

"Once a deprivation of a constitutional right is shown to exist, the court that
rendered the judgment is deemed ousted of jurisdiction and habeas corpus is
the appropriate remedy to assail the legality of the detention.
9
So accused
persons who are deprived of their constitutional right of a speedy trial should be
set at liberty. 10 Likewise persons detained indefinitely without charges so much
so that the detention becomes punitive and not merely preventive in character
are entitled to regain their freedom, for the spirit and the letter of our
Constitution negates as contrary to the precepts of human rights and freedom
that a person be detained indefinitely without any charges.
4. Indeed, Art. VII, section 18 of the 1987 Constitution, drawing upon the sad
lessons of the excessive concentration of powers in the Chief Executive in the
previous Constitutions which enabled him to exercise absolute power to the
point of taking over the entire government, has provided for measures to curtail
such abuse of executive power. The late former Chief Justice Roberto
Concepcion, pillar and champion of the Rule of Law, chairman of the 1986
Constitutional Commission's Judiciary Committee and Chief Justice of the
Supreme Court at the time of the imposition of martial law in 1972, summarized
these salutary changes, in his last public address, as follows:
1. Under the New Constitution, martial law does not suspend the operation
of the New Constitution or supplant the functioning of the civil courts or
legislative assemblies. Neither does it authorize the conferment of
jurisdiction on military courts and agencies over civilians when civil courts
are able to function.
2. Martial law does not supplant the civil courts when the same are able to
function.
3. Martial law does not automatically suspend the privilege of the writ of
habeas corpus.
4. Martial law may not be declared upon the ground of imminent danger of
invasion or rebellion. in the event of such danger, the President may call the
armed forces to prevent or suppress the danger, without declaring martial
law or suspending the privilege of the will it.
5. Within forty-eight (48) hours after the proclamation of martial law, the
President shall report the same to Congress in person or in writing.
6. Congress may, by a majority vote of all its members, revoke the
proclamation of martial law or the suspension of the privilege of the writ,
which action of Congress may not be set aside by the President.
7. The proclamation of martial law or suspension or the privilege of the writ
by the President, may not exceed sixty (60) days without the concurrence of
Congress.
8. The Supreme Court has been expressly authorized to "review in an
appropriate proceeding filed by any citizen the sufficiency of the factual
basis of the proclamation of martial law or of the suspension of the
privilege of the writ or the extension thereof, and must promulgate its
decision thereon within thirty (30) days from its filing."
9. Under the "1973 Constitution," as amended, at least ten (10) votes of
the members of the Supreme Court were necessary to invalidate or declare
a law unconstitutional, regardless of the number of vacancies in the
Supreme Court or the number of its members who participated in the
deliberations on the issues involved in the case, and voted thereon. Under
the New Constitution a simple majority of the members who took part in
such deliberation and cast their votes thereon is sufficient.
10. In the case of suspension of the privilege of the writ, the same does not
apply to persons who have not been placed under the custody of a court of
justice.
11. In case of suspension of the privilege of the writ, the person detained
must be released unless judicially charged within three (3) days. 11
These substantial checks by the legislature as well as by the judiciary on the
Chief Executive's power to proclaim martial law or to suspend the privilege of
the writ of habeas corpus were meant to forestall a recurrence of the long and
horrible nightmare of the past regime when one single clause, the Commander-
in-Chief clause of the Constitution then in force that authorized the President to
declare martial law was held to have nullified the entire Constitution and the Bill
of Rights and justified the then President's taking over "absolute command" of
the nation and that the people could "only trust and pray that, giving him their
own loyalty with utmost patriotism, (he) will not fail them." Thus, persons held
under Presidential Commitment or Detention Orders were detained indefinitely
without charges, yet had no recourse to the courts. Even if they were acquitted
in court, the military would not release them until and unless the then President
lifted the preventive detention order. 12 It was a long and horrible nightmare
when our people's rights, freedoms and liberties were sacrificed at the altar of
"national security" even though it involved nothing more than the President-
dictator's perpetuation in office and the security of his relatives and some
officials in high positions and their protection from public accountability of their
acts of venality and deception in government, many of which were of public
knowledge.
Draconian decrees were issued whereby many were locked up indefinitely for
"rumor-mongering," "unlawful use of means of publication and unlawful
utterances, and alarms and scandals." While the people for the most part
suffered in silence and waited, others never gave up the struggle for truth,
freedom, justice and democracy, a common commitment which is what makes a
people a nation instead of a gathering of self-seeking individuals. The national
will was systematically undermined to the point, of national mockery, that the
day of imposition of martial law was proclaimed as "National Thanksgiving
Day." As the Court observed through Mr. Justice Gutierrez in Animas vs.
Minister of National Defense, 13 the era of martial law when military tribunals,
against all tenets of due process, were conferred jurisdiction over common
crimes and civilians, their glorification with the downgrading of judicial prestige
and "the many judicial problems spawned by extended authoritarian rule which
effectively eroded judicial independence and self-respect will require plenty of
time and determined efforts to cure."
5. The treacherous assassination on August 21, 1983 of the martyred Benigno S.
Aquino, Jr., within minutes of his arrival at the Manila International Airport,
although ringed with 2,000 soldiers, shocked and outraged the conscience of
the nation. After three years of exile following almost eight years of detention
since martial law, Aquino, although facing the military commission's
predetermined death sentence, supra, yet refused proper travel documents,
was returning home "to strive for genuine national reconciliation founded on
justice." The late Senator Jose W. Diokno who passed away this year was
among the first victims of the martial law coup d'etat to be locked up with
Senator Aquino. In March, 1973, all of their personal effects, including their
eyeglasses were ominously returned to their homes. Their wives' visitation
privileges were suspended and they lost all contact for over a month. It turned
out that Aquino had smuggled out of his cell a written statement critical of the
martial law regime. In swift retribution, both of them were flown out blindfolded
to the army camp at Fort Laur in Nueva Ecija and kept in solitary confinement in
dark boarded cells with hardly any ventilation. When their persons were
produced before the Court on habeas corpus proceedings, they were a pitiable
sight having lost about 30 to 40 lbs. in weight. Senator Diokno was to be
released in September, 1974 after almost two years of detention. No charges of
any kind were ever filed against him. His only fault was that he was a possible
rival for the presidency.
Horacio Morales, Jr., 1977 TOYM awardee for government service and then
executive vice-president of the Development Academy of the Philippines, was
among the hard-working government functionaries who had been radicalized
and gave up their government positions. Morales went underground on the
night he was supposed to receive his TOYM award, declaring that "(F)or almost
ten years, I have been an official in the reactionary government, serviced the
Marcos dictatorship and all that it stands for, serving a ruling system that has
brought so much suffering and misery to the broad masses of the Filipino
people. (1) refuse to take any more part of this. I have had enough of this
regime's tyranny and treachery, greed and brutality, exploitation and oppression
of the people," and "(I)n rejecting my position and part in the reactionary
government, I am glad to be finally free of being a servant of foreign and local
vested interest. I am happy to be fighting side by side with the people." He was
apprehended in 1982 and was charged with the capital crime of subversion,
until he was freed in March, 1986 after President Corazon C. Aquino's
assumption of office, together with other political prisoners and detainees and
prisoners of conscience in fulfillment of her campaign pledge.
Countless others forfeited their lives and stand as witnesses to the tyranny and
repression of the past regime. Driven by their dreams to free our motherland
from poverty, oppression, iniquity and injustice, many of our youthful leaders
were to make the supreme sacrifice. To mention a few: U.P. Collegian editor
Abraham Sarmiento, Jr., worthy son of an illustrious member of the Court
pricked the conscience of many as he asked on the front page of the college
paper: Sino ang kikibo kung hindi tayo kikibo? Sino ang kikilos kung hindi tayo
kikilos? Kung hindi ngayon, kailan pa? 13a He was locked up in the military
camp and released only when he was near death from a severe attack of
asthma, to which he succumbed. Another TOYM awardee, Edgar Jopson, an
outstanding honor student at the Ateneo University, instinctively pinpointed the
gut issue in 1971-he pressed for a "non-partisan Constitutional Convention;"
and demanded that the then president-soon-to-turn dictator "put down in
writing" that he was not going to manipulate the Constitution to remove his
disqualification to run for a third term or perpetuate himself in office and was
called down as "son of a grocer." When as he feared, martial law was declared,
Jopson went underground to continue the struggle and was to be waylaid and
killed at the age of 34 by 21 military troops as the reported head of the rebel
movement in Mindanao. 14 Another activist honor student leader, Emmanuel
Yap, son of another eminent member of the Court, was to disappear on
Valentine's Day in 1976 at the young age of 24, reportedly picked up by military
agents in front of Channel 7 in Quezon City, and never to be seen again.
One of our most promising young leaders, Evelio B. Javier, 43, unarmed,
governor of the province of Antique at 28, a Harvard-trained lawyer, was
mercilessly gunned down with impunity in broad daylight at 10 a.m. in front of
the provincial capitol building by six mad-dog killers who riddled his body with
24 bullets fired from M-16 armalite rifles (the standard heavy automatic weapon
of our military). He was just taking a breather and stretching his legs from the
tedious but tense proceedings of the canvassing of the returns of the
presidential snap election in the capitol building. This was to be the last straw
and the bloodless EDSA revolt was soon to unfold. The Court in Javier vs.
Comelec, 15 through Mr. Justice Cruz, "said these meager words in tribute to a
fallen hero who was struck down in the vigor of his youth because he dared to
speak against tyranny. Where many kept a meekly silence for fear of retaliation,
and still others feigned and fawned in hopes of safety and even reward, he
chose to fight. He was not afraid. Money did not tempt him. Threats did not
daunt him. Power did not awe him. His was a singular and all-exacting
obsession: the return of freedom to his country. And though he fought not in
the barricades of war amid the sound and smoke of shot and shell, he was a
soldier nonetheless, fighting valiantly for the liberties of his people against the
enemies of his race, unfortunately of his race too, who would impose upon the
land a perpetual night of dark enslavement. He did not see the breaking of the
dawn, sad to say, but in a very real sense Evelio B. Javier made that dawn draw
nearer because he was, like Saul and Jonathan, "swifter than eagles and
stronger than lions." "
6. The greatest threat to freedom is the shortness of human memory. We must
note here the unforgettable and noble sacrifices of the countless brave and
patriotic men and women who feel as martyrs and victims during the long dark
years of the deposed regime. In vacating the death sentence imposed on the
petitioners who survived the holocaust,, we render them simple justice and we
redeem and honor the memory of those who selflessly offered their lives for the
restoration of truth, decency, justice and freedom in our beloved land. Due
recognition must be given also that 85% of the Armed Forces of the Philippines
readily joined the EDSA revolt and redeemed the honor of the military by
recognizing civilian supremacy and the supreme mandate given by the people
to the true winners of the elections. Witness the testimony of Gen. Fidel V.
Ramos now chief of the new Armed Forces of the Philippines, as he recounted
early last year his breakaway from the past regime:
The Armed Forces of the Philippines had ceased to be the real armed
forces supposed to be the defender of the people. There had developed
an elite group within the AFP ... and the AFP no longer represented its rank
and file and officers corps.
Mr. Marcos was no longer the same President that we used to know, to
whom we pledged our loyalty and dedicated our services. He was no
longer the able and capable commander-in-chief whom we used to count
on. He had already put his personal interest, his family interest, above the
interest of the people.
The small people in the AFP and the Integrated National Police were now
being pushed around by powerful military officers motivated by very selfish
desires and intentions. Many of those officers were now practically the
servants of powerful politicians. 16
The present PC/INP Chief, Major General Renato de Vina, on the 85th
anniversary of the Philippine Constabulary last August 8th publicly stated that
"for the perfidy of a few, we owe the whole nation a sincere apology and a
commitment to intensively pursue our new program of reforms, to weed out the
misfits who bring discredit to our organization," and solemnly pledged that
"now and forever, your PC/INP stands ready and committed to fight
lawlessness, injustice and oppression, as well as the sinister forces that continue
to threaten our stability and progress as a free country. We make this solemn
pledge here and now, before our entire nation, before our Commander-in-Chief
who is the personification of our national honor and unity, before God who has
always blessed our people ... to consecrate our lives to the protection and
preservation of our national Ideals-of unity, peace, justice and democracy."
7. The people by their overwhelming ratification of the 1987 Constitution at the
plebiscite held last February 2nd unequivocally reaffirmed their collective act of
installing our new government following the bloodless EDSA revolt. They re
fused to be deterred by the last-ditch efforts of the forces of the Right and of
the Left to derail our return to fun normalcy and the restoration of our
democratic institutions. They proclaimed a renewed and vigorous faith in the
democratic process. Among the great changes introduced in the 1987
Constitution to harness the Presidential power to impose martial law and
strengthen the system of checks and balances in our government were those
made by the venerable late Chief Justice Roberto Concepcion and his fellow
members of the 1986 Constitutional Commission, hereinabove enumerated. 17
With their work completed, and the 1987 Constitution decisively approved and
ratified by the people, Chief Justice Concepcion could then claim his eternal
rest on last May 3rd and leave us this legacy and caueat: "One thing," he said,
"I have learned during the martial law regime, and that is-that a Constitution is
as good only as it is enforced. ... the Primacy of the Law depends ultimately
upon the people; upon their awareness of this fact and their willingness and
readiness to assume the corresponding responsibility, in short, upon their
political maturity." 18
Footnotes
1 For violation of Presidential Decree No. 885 (The Revised Anti-Subversion
Law), as amended by Batas Pambansa Big. 31.
2 At that time, the Judge Advocate General was General Hamilton Dimaya
while the Minister of National Defense was Juan Ponce Enrile.
3 At the time Military Commission No. 34 was created, General Romeo Espino
was the Chief of Staff of the Armed Forces of the Philippines.
4 Military Commission No. 34 is composed of Brigadier General Emilio P.
Melendres as President, Colonel Marciano 1. Bacalla as Law November, and
Colonels Roberto F. Ang, Higino E. Dacanay, Norberto Furagganan Mayo
Domingo and Soliman Gutierrez as Members: Page 95, Rollo.
5 Page 19, Rollo.
6 G.R. No. 54558, pages 2 to 44, Rollo.
7 The respondents were represented by the Office of the Solicitor General.
8 Pages 255 to 268, Rollo.
9 Pages 287 to 291, Rollo.
10 Page 296, Rollo.
11 Pages 333 to 352, Rollo.
12 G. R. No. 69882, pages 2 to 64, Rollo.
13 Pages 243 to 267, Rollo.
14 Page 346, Rollo.
15 Pages 299 to 415, Rollo.
16 Page 308, Rollo, Vol. 11, G.R. No. 69882.
17 Herrera v. Enrile, L-40181, 62 SCRA 547 (1975).
18 Cagaya v. Tangonan, L-40970, 66 SCRA 216, 219 (1975).
19 63 SCPA 546 (1975). Mr. Justice Felix Q. Antonio wrote the main opinion.
The Decision of the Court was not unanimous inasmuch as some Justices had
dissenting views.
20 Citing Benigno S. Aquino, Jr., et al. v. Juan Ponce Enrile, L- 35546, 59 SCRA
183 (1974), and companion cases.
21 Citing Benigno S. Aquino, Jr., et al. v. Commission on Election tions,
L-40004, 62 SCRA 275 (1975).
22 Citing Fairman, The Law of Martial Rule, 1943 Ed., p. 262.
23 Citing Winthrop, Military Law and Precedents, Vols. 1 and 2, p. 830.
24 Citing Moyer v. Peabody, 212 U.S. 78.
25 Citing Schwartz, Constitutional Law, p. 160.
26 Citing Simon v. Craft, 182 U.S. 427 (1901) and Ballard v. Hunter, 204 U.S. 241
(19O7).
27 96 SCRA 402, February 29, 1980.
28 102 SCRA 7, January 15, 1981.
29 102 SCRA 33, January 15, 1981.
30 102 SCRA 56. January 16, 1981.
31 109 SCRA 22, November 6, 1981.
32 109 SCRA 273, November 19, 1981.
33 G. R. No. 62798, December 22, 1983 and March 13, 1984; cited in Rodolfo
Animas v. The Minister of National Defense, G.R. No. 51747, December 29,
1986. See also Sardinia-Linco v. Pineda (104 SCRA 757) where this Court did not
implement the Executive Order to transfer the criminal case from the civil court
to the Sandiganbayan, and Evangelista v. Judge Luis Pena et al. (G.R. No.
62640, July 22, 1983) where a Petition of a member of the Philippine
Constabulary seeking the transfer of the case to a military tribunal was
dismissed for lack of merit.
34 G.R. No. 51747, December 29, 1986.
35 63 SCRA 611 to 648.
36 63 SCRA 665 to 666.
37 In re Oliver, 333 U.S. 257 (1948); Sections 1 and 14(2), Article III, 1987
Constitution. There appears to be no substantial change from the
corresponding provisions of the 1973 Constitution.
38 Citing Lopez v. Roxas, 17 SCRA 756 (1966) and Scoty's Department Store v.
Micaller, 99 Phil. 762 (1956).
39 Citing Ex-parte Milligan, 4 Walace (U.S. 127,18 L. Ed. 297
40 350 U.S. 5, 14 (1955).
41 Ruffy v. Chief of Staff, 75 Phil. 875 (1946).
42 Koppel (Phil.), Inc. v. Yatco, 77 Phil. 496, 515 (1946).
43 Ex-parte Milligan, supra.
44 Manifestation dated February 11, 1987.
45 Gumabon v. Director of the Bureau of Prisons, 37 SCRA 420, 427 (1971),
reiterated in Dacuyan v. Ramos, 85 SCRA 487, 491 (1978).
46 People vs. Ylagan, 58 Phil. 851 (1933).
47 Section 1, Article VIII, 1987 Constitution.
48 Supra.
49 Citations omitted.
50 Phil. Trust Company and Smith, Bell & Co. v. Mitchell, 59 Phil. 30, 36 (1933),
cited with approval in Koppel (Phil.), Inc. v. Yatco, supra, at 515.
51 People v. Navarro,63 SCRA 264, 274 (1975).
52 L-37364, 63 SCRA 546.
Teehankee, C.J.: concurring:
1 Save for Mr. Justice Padilla who inhibited from the case, as his brother was
counsel for petitioner Othoniel Jimenez.
2 63 SCRA 546.
3 Idem at pp. 625-627.
4 Idem at p. 628.
5 Record, Vol. 1, G.R. No. 69882, p. 84.
6 Record, Idem, Annex "E" pp. 71-73; emphasis supplied.
7 Record, idem, Annex "F," pp. 75-76; emphasis supplied.
7-a Solicitor General's Manifestation in lieu of Brief dated February 11, 1987,
Record, Vol. II, p. 528.
8 37 SCRA 420, 427.
9 Cf. Conde v. Rivera, 45 Phil. 650 (1924); Harden v. Director of Prisons, 81 Phil.
741 (1948); Abriol v. Homeres, 84 Phil. 525 (1949); Chavez v. Court of Appeals,
24 SCRA 663 (1968); Celeste v. People, 31 SCRA 391 (1970).
10 Conde v. Diaz, 45 Phil. 173 (1923).
11 Address of Chief Justice Roberto Concepcion on February 10, 1987 on the
eve of the first death anniversary of the Antique martyr Evelio Javier at the
Ateneo Law School.
12 In re: habeas corpus petition for Dr. Aurora Parong, et al., 121 SCRA 472
(1983); see Toyoto vs. Ramos, 139 SCRA 316 (1985); Habeas corpus cases of
Renato Canete (G.R. No. 63776, August 16, 1984) and Aristedes Sarmiento (131
SCRA 405, August 27, 1984).
13 G.R. No. 51747, Dec. 29, 1986.
13-a If we don't protest, who will protest? If we don't move, who Will move? If
not now, when else?
14 Olivares; Babst: Bulletin Today issue of Sept. 29, 1982; Soliven: Mr. & Ms.
issue of Sept. 28, Oct. 4, 1984.
15 144 SCRA 194, 208 (Sept. 22, 1986).
16 Manila Times issue of March 11, 1986.
17 Supra, par. 4 hereof.
18 Supra, see fn. 11.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 78239 February 9, 1989
SALVACION A. MONSANTO, petitioner,
vs.
FULGENCIO S. FACTORAN, JR., respondent.

FERNAN, C.J.:
The principal question raised in this petition for review is whether or not a public
officer, who has been granted an absolute pardon by the Chief Executive, is
entitled to reinstatement to her former position without need of a new
appointment.
In a decision rendered on March 25, 1983, the Sandiganbayan convicted
petitioner Salvacion A. Monsanto (then assistant treasurer of Calbayog City) and
three other accused, of the complex crime of estafa thru falsification of public
documents and sentenced them to imprisonment of four (4) years, two (2)
months and one (1) day of prision correccional as minimum, to ten (10) years
and one (1) day of prision mayor as maximum, and to pay a fine of P3,500. They
were further ordered to jointly and severally indemnify the government in the
sum of P4,892.50 representing the balance of the amount defrauded and to pay
the costs proportionately.
Petitioner Monsanto appealed her conviction to this Court which subsequently
affirmed the same. She then filed a motion for reconsideration but while said
motion was pending, she was extended on December 17, 1984 by then
President Marcos absolute pardon which she accepted on December 21, 1984.
By reason of said pardon, petitioner wrote the Calbayog City treasurer
requesting that she be restored to her former post as assistant city treasurer
since the same was still vacant.
Petitioner's letter-request was referred to the Ministry of Finance for resolution
in view of the provision of the Local Government Code transferring the power of
appointment of treasurers from the city governments to the said Ministry. In its
4th Indorsement dated March 1, 1985, the Finance Ministry ruled that petitioner
may be reinstated to her position without the necessity of a new appointment
not earlier than the date she was extended the absolute pardon. It also directed
the city treasurer to see to it that the amount of P4,892.50 which the
Sandiganbayan had required to be indemnified in favor of the government as
well as the costs of the litigation, be satisfied.
1

Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on
April 17, 1985 stressing that the full pardon bestowed on her has wiped out the
crime which implies that her service in the government has never been
interrupted and therefore the date of her reinstatement should correspond to
the date of her preventive suspension which is August 1, 1982; that she is
entitled to backpay for the entire period of her suspension; and that she should
not be required to pay the proportionate share of the amount of P4,892.50.
2

The Ministry of Finance, however, referred petitioner's letter to the Office of the
President for further review and action. On April 15, 1986, said Office, through
Deputy Executive Secretary Fulgenio S. Factoran, Jr. held:
We disagree with both the Ministry of Finance and the petitioner because,
as borne out by the records, petitioner was convicted of the crime for which
she was accused. In line with the government's crusade to restore absolute
honesty in public service, this Office adopts, as a juridical guide (Miranda v.
Imperial, 77 Phil. 1966), the Resolution of the Sandiganbayan, 2nd Division,
in People v. Lising, Crim. Case No. 6675, October 4, 1985, that acquittal,
not absolute pardon, of a former public officer is the only ground for
reinstatement to his former position and entitlement to payment of his
salaries, benefits and emoluments due to him during the period of his
suspension pendente lite.
In fact, in such a situation, the former public official must secure a
reappointment before he can reassume his former position. ...
Anent the civil liability of Monsanto, the Revised Penal Code expressly
provides that "a pardon shall in no case exempt the culprit from payment of
the civil indemnity imposed upon him by the sentence." (Sec. 36, par. 2).
IN VIEW OF THE FOREGOING, this Office holds that Salvacion A.
Monsanto is not entitled to an automatic reinstatement on the basis of the
absolute pardon granted her but must secure an appointment to her former
position and that, notwithstanding said absolute pardon, she is liable for
the civil liability concomitant to her previous conviction.
3

Her subsequent motion for reconsideration having been denied, petitioner filed
the present petition in her behalf We gave due course on October 13, 1987.
Petitioner's basic theory is that the general rules on pardon cannot apply to her
case by reason of the fact that she was extended executive clemency while her
conviction was still pending appeal in this Court. There having been no final
judgment of conviction, her employment therefore as assistant city treasurer
could not be said to have been terminated or forfeited. In other words, without
that final judgment of conviction, the accessory penalty of forfeiture of office did
not attach and the status of her employment remained "suspended." More
importantly, when pardon was issued before the final verdict of guilt, it was an
acquittal because there was no offense to speak of. In effect, the President has
declared her not guilty of the crime charged and has accordingly dismissed the
same.
4

It is well to remember that petitioner had been convicted of the complex crime
of estafa thru falsification of public documents and sentenced to imprisonment
of four years, two months and one day of prision correccional as minimum, to
ten years and one day of prision mayor as maximum. The penalty of prision
mayor carries the accessory penalties of temporary absolute disqualification and
perpetual special disqualification from the right of suffrage, enforceable during
the term of the principal penalty.
5
Temporary absolute disqualification bars the
convict from public office or employment, such disqualification to last during the
term of the sentence.
6
Even if the offender be pardoned, as to the principal
penalty, the accessory penalties remain unless the same have been expressly
remitted by the pardon.
7
The penalty of prision correccional carries, as one of
its accessory penalties, suspension from public office.
8

The propositions earlier advanced by petitioner reveal her inadequate
understanding of the nature of pardon and its legal consequences. This is not
totally unexpected considering that the authorities on the subject have not
been wholly consistent particularly in describing the effects of pardon.
The benign mercy of pardon is of British origin, conceived to temper the gravity
of the King's wrath. But Philippine jurisprudence on the subject has been largely
influenced by American case law.
Pardon is defined as "an act of grace, proceeding from the power entrusted
with the execution of the laws, which exempts the individual, on whom it is
bestowed, from the punishment the law inflicts for a crime he has committed. It
is the private, though official act of the executive magistrate, delivered to the
individual for whose benefit it is intended, and not communicated officially to
the Court. ... A pardon is a deed, to the validity of which delivery is essential,
and delivery is not complete without acceptance."
8
-a
At the time the antecedents of the present case took place, the pardoning
power was governed by the 1973 Constitution as amended in the April 7, 1981
plebiscite. The pertinent provision reads:
The President may, except in cases of impeachment, grant reprieves,
commutations and pardons, remit fines and forfeitures, and with the
concurrence of the Batasang Pambansa, grant amnesty.
9

The 1981 amendments had deleted the earlier rule that clemency could be
extended only upon final conviction, implying that clemency could be given
even before conviction. Thus, petitioner's unconditional pardon was granted
even as her appeal was pending in the High Court. It is worth mentioning that
under the 1987 Constitution, the former limitation of final conviction was
restored. But be that as it may, it is our view that in the present case, it is not
material when the pardon was bestowed, whether before or after conviction, for
the result would still be the same. Having accepted the pardon, petitioner is
deemed to have abandoned her appeal and her unreversed conviction by the
Sandiganbayan assumed the character of finality.
Having disposed of that preliminary point, we proceed to discuss the effects of
a full and absolute pardon in relation to the decisive question of whether or not
the plenary pardon had the effect of removing the disqualifications prescribed
by the Revised Penal Code.
In Pelobello v. Palatino,
10
We find a reiteration of the stand consistently
adopted by the courts on the various consequences of pardon: "... we adopt
the broad view expressed in Cristobal v. Labrador, G.R. No. 47941, December 7,
1940, that subject to the limitations imposed by the Constitution, the pardoning
power cannot be restricted or controlled by legislative action; that an absolute
pardon not only blots out the crime committed but removes all disabilities
resulting from the conviction. ... (W)e are of the opinion that the better view in
the light of the constitutional grant in this jurisdiction is not to unnecessarily
restrict or impair the power of the Chief Executive who, after an inquiry into the
environmental facts, should be at liberty to atone the rigidity of the law to the
extent of relieving completely the party ... concerned from the accessory and
resultant disabilities of criminal conviction.
The Pelobello v. Palatino and Cristobal v. Labrador cases,
11
and several others
12
show the unmistakable application of the doctrinal case of Ex Parte Garland,
13
whose sweeping generalizations to this day continue to hold sway in our
jurisprudence despite the fact that much of its relevance has been downplayed
by later American decisions.
Consider the following broad statements:
A pardon reaches both the punishment prescribed for the offense and the
guilt of the offender; and when the pardon is full, it releases the
punishment and blots out of existence the guilt, so that in the eye of the
law the offender is as innocent as if he had never committed the offense. If
granted before conviction, it prevents any of the penalties and disabilities,
consequent upon conviction, from attaching; if granted after conviction, it
removes the penalties and disabilities and restores him to all his civil rights;
it makes him, as it were, a new man, and gives him a new credit and
capacity.
14

Such generalities have not been universally accepted, recognized or approved.
15
The modern trend of authorities now rejects the unduly broad language of
the Garland case (reputed to be perhaps the most extreme statement which has
been made on the effects of a pardon). To our mind, this is the more realistic
approach. While a pardon has generally been regarded as blotting out the
existence of guilt so that in the eye of the law the offender is as innocent as
though he never committed the offense, it does not operate for all purposes.
The very essence of a pardon is forgiveness or remission of guilt. Pardon implies
guilt. It does not erase the fact of the commission of the crime and the
conviction thereof. It does not wash out the moral stain. It involves forgiveness
and not forgetfulness.
16

The better considered cases regard full pardon (at least one not based on the
offender's innocence) as relieving the party from all the punitive consequences
of his criminal act, including the disqualifications or disabilities based on the
finding of guilt.
17
But it relieves him from nothing more. "To say, however, that
the offender is a "new man", and "as innocent as if he had never committed the
offense;" is to ignore the difference between the crime and the criminal. A
person adjudged guilty of an offense is a convicted criminal, though pardoned;
he may be deserving of punishment, though left unpunished; and the law may
regard him as more dangerous to society than one never found guilty of crime,
though it places no restraints upon him following his conviction."
18

A pardon looks to the future. It is not retrospective.
19
It makes no amends for
the past. It affords no relief for what has been suffered by the offender. It does
not impose upon the government any obligation to make reparation for what
has been suffered. "Since the offense has been established by judicial
proceedings, that which has been done or suffered while they were in force is
presumed to have been rightfully done and justly suffered, and no satisfaction
for it can be required."
20
This would explain why petitioner, though pardoned,
cannot be entitled to receive backpay for lost earnings and benefits.
Petitioner maintains that when she was issued absolute pardon, the Chief
Executive declared her not guilty of the crime for which she was convicted. In
the case of State v. Hazzard,
21
we find this strong observation: "To assume that
all or even a major number of pardons are issued because of innocence of the
recipients is not only to indict our judicial system, but requires us to assume that
which we all know to be untrue. The very act of forgiveness implies the
commission of wrong, and that wrong has been established by the most
complete method known to modern civilization. Pardons may relieve from the
disability of fines and forfeitures attendant upon a conviction, but they cannot
erase the stain of bad character, which has been definitely fixed.
22

In this ponencia, the Court wishes to stress one vital point: While we are
prepared to concede that pardon may remit all the penal consequences of a
criminal indictment if only to give meaning to the fiat that a pardon, being a
presidential prerogative, should not be circumscribed by legislative action, we
do not subscribe to the fictitious belief that pardon blots out the guilt of an
individual and that once he is absolved, he should be treated as if he were
innocent. For whatever may have been the judicial dicta in the past, we cannot
perceive how pardon can produce such "moral changes" as to equate a
pardoned convict in character and conduct with one who has constantly
maintained the mark of a good, law-abiding citizen.
Pardon cannot mask the acts constituting the crime. These are "historical" facts
which, despite the public manifestation of mercy and forgiveness implicit in
pardon, "ordinary, prudent men will take into account in their subsequent
dealings with the actor."
23

Pardon granted after conviction frees the individual from all the penalties and
legal disabilities and restores him to all his civil rights. But unless expressly
grounded on the person's innocence (which is rare), it cannot bring back lost
reputation for honesty, integrity and fair dealing.
24
This must be constantly kept
in mind lest we lose track of the true character and purpose of the privilege.
Thus, notwithstanding the expansive and effusive language of the Garland case,
we are in full agreement with the commonly-held opinion that pardon does not
ipso facto restore a convicted felon to public office necessarily relinquished or
forfeited by reason of the conviction
25
although such pardon undoubtedly
restores his eligibility for appointment to that office.
26

The rationale is plainly evident Public offices are intended primarily for the
collective protection, safety and benefit of the common good. They cannot be
compromised to favor private interests. To insist on automatic reinstatement
because of a mistaken notion that the pardon virtually acquitted one from the
offense of estafa would be grossly untenable. A pardon, albeit full and plenary,
cannot preclude the appointing power from refusing appointment to anyone
deemed to be of bad character, a poor moral risk, or who is unsuitable by
reason of the pardoned conviction.
For petitioner Monsanto, this is the bottom line: the absolute disqualification or
ineligibility from public office forms part of the punishment prescribed by the
Revised Penal Code for estafa thru falsification of public documents. It is clear
from the authorities referred to that when her guilt and punishment were
expunged by her pardon, this particular disability was likewise removed.
Henceforth, petitioner may apply for reappointment to the office which was
forfeited by reason of her conviction. And in considering her qualifications and
suitability for the public post, the facts constituting her offense must be and
should be evaluated and taken into account to determine ultimately whether
she can once again be entrusted with public funds. Stated differently, the
pardon granted to petitioner has resulted in removing her disqualification from
holding public employment but it cannot go beyond that. To regain her former
post as assistant city treasurer, she must re-apply and undergo the usual
procedure required for a new appointment.
Finally, petitioner has sought exemption from the payment of the civil indemnity
imposed upon her by the sentence. The Court cannot oblige her. Civil liability
arising from crime is governed by the Revised Penal Code. It subsists
notwithstanding service of sentence, or for any reason the sentence is not
served by pardon, amnesty or commutation of sentence. Petitioner's civil
liability may only be extinguished by the same causes recognized in the Civil
Code, namely: payment, loss of the thing due, remission of the debt, merger of
the rights of creditor and debtor, compensation and novation.
27

WHEREFORE, the assailed resolution of former Deputy Executive Secretary
Fulgencio S. Factoran, Jr., dated April 15, 1986, is AFFIRMED. No costs.
SO ORDERED.
Narvasa, Paras, Gancayco, Bidin, Cortes, Grio-Aquino, Medialdea and
Regalado, JJ., concur.
Melencio-Herrera, J., concurs in the result.
Separate Opinions
PADILLA, J.:
I concur in the result but on grounds different from those relied upon by the
majority opinion.
Petitioner Salvacion A Monsanto was Assistant Treasurer of Calbayog City.
Together with three (3) other accused, she was charged before the
Sandiganbayan with the complex crime of Estafa through falsification of public
documents. After trial, the accused were convicted and sentenced to
imprisonment of four (4) years, two (2) months and one (1) day of prision
correccional, as minimum, to ten (10) years and one (1) day of prision
correccional, as maximum, and to pay a fine of P 3,500.00. They were also
ordered to jointly and severally indemnify the government in the sum of P
4,892.50 representing the balance of the amount defrauded and to pay the
costs proportionately.
Petitioner appealed the judgment of conviction to this Court which affirmed the
same. Petitioner then filed a motion for reconsideration but while said motion
was pending, President Ferdinand E. Marcos extended to her on 17 December
1984 an absolute pardon which she accepted on 21 December 1984.
By reason of said absolute pardon, petitioner in representations before the City
Treasurer of Calbayog, the Ministry of Finance and the Office of the President,
asked that she be allowed to re-assume her former office, as of 1 August 1982
(the date of her preventive suspension), that she be paid her back salaries for
the entire period of her suspension, and that she be not required to pay her
proportionate share of the amount of P 4,892.50.
Respondent Assistant Executive Secretary denied petitioner's request for
automatic reinstatement as well as her other claims, because of which denial,
this petition for review on certiorari was filed before the Court seeking the
setting aside and reversal of the decision of the respondent Assistant Executive
Secretary, on the main contention that, as a public officer who has been granted
an absolute pardon by the President, she is entitled to reinstatement to her
former position without need of a new appointment, and to the other reliefs
prayed for.
There can be no dispute that the pardon extinguished petitioner's criminal
liability. At the same time, Art. 36 of the Revised Penal Code categorically
covers the effects of a pardon on the pardoned's right to hold office, suffrage
and on his civil liability. It states:
ART. 36. 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.
A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence. (Emphasis supplied)
Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind,
clear that the pardon extended by the President to the petitioner did not per se
entitle her to again hold public office (including therefore the office of Assistant
Treasurer, Calbayog City) or to suffrage; nor did such pardon extinguish her civil
liability for the criminal conviction, subject matter of the pardon.
An examination of the presidential pardon in question shows that, while
petitioner was granted "an absolute and unconditional pardon and restored to
full civil and political rights", yet, nothing therein expressly provides that the
right to hold public office was thereby restored to the petitioner. In view of the
express exclusion by Art. 36, RPC of the right to hold public office,
notwithstanding a pardon unless the right is expressly restored by the pardon, it
is my considered opinion that, to the extent that the pardon granted to the
petitioner did not expressly restore the right to hold public office as an effect of
such pardon, that right must be kept away from the petitioner.
It is a recognized principle in public law hopefully to be honored more in its
compliance rather than in its breach that a "public office is a public trust."
The restoration of the right to hold public office to one who has lost such right
by reason of conviction in a criminal case, but subsequently pardoned, cannot
be left to inference, no matter how intensely arguable, but must be stated in
express, explicit, positive and specific language. To require this would not be
asking too much.
I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341
and Pelobello vs. Palatino, 72 Phil. 441 which may be understood to mean that
an absolute pardon, without qualification, restores full civil rights which have
been construed, in turn, to include the right to hold public office (Versoza vs.
Fernandez, 55 Phil. 323).
If such be the message of said cases, then I submit that a modification is in
order, so that an absolute pardon to work a restoration of the right to hold
public office must expressly so state, in order to give substance and meaning to
the sound provisions of Article 36 of the Revised Penal Code, particularly in the
light of our times and experience.
ACCORDINGLY, I vote to DENY the petition.
Melencio-Herrera, Sarmiento, JJ., concur.
FELICIANO, J., concurring:
I concur in the result reached in the important and eloquent opinion of the Chief
Justice. I also join in the separate concurring opinion of Mr. Justice Padilla. At
the same time, I would add a few brief statements, basically for my own
clarification. Article 36 of the Revised Penal Code states:
Article 36. Pardon; its effects. - A pardon shall not work the registration of
the right to hold public office, or the right of suffrage, unless such rights be
expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence. (Emphasis supplied)
It is worthy of note that the rule embodied in Article 36 is reiterated four (4)
times by the Revised Penal Code in its following provisions:
Article 40. Death-Its accessory penalties. - The death penalty, when it is not
executed by reason of commutation or pardon shall carry with it that of
perpetual absolute disqualification and that of civil interdiction during thirty
years following the date of sentence, unless such accessory penalties have
been expressly remitted in the pardon.
Article 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.
Article 42. Prision mayor - Its accessory penalties. - The penalty of prision
mayor shall carry with it that of temporary absolute disqualification and that
of perpetual special disqualification from the right of suffrage which the
offender shall suffer although pardoned as to the principal penalty, unless
the same shall have been expressly remitted in the pardon.
Article 43. Prision correccional - Its accessory penalties. - The penalty of
prision correccional shall carry with it that of suspension from public office,
from the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, if the duration of said
imprisonment shall exceed eighteen months. The offender shall suffer the
disqualification provided in this article although pardoned as to the
principal penalty, unless the same shall have been expressly remitted in the
pardon. (Emphasis supplied)
The Chief Justice points out that the penalty imposed upon petitioner for the
complex crime of estafa through falsification of public documents, included the
accessory penalties of temporary absolute disqualification from public office or
employment and perpetual special disqualification from the right of suffrage.
The 17 December 1984 pardon extended to petitioner in the instant case was
written on a standard printed form which states in printed words that it was "an
absolute and unconditional pardon [which] restored [petitioner] to full civil and
political rights."
1
While the right of suffrage and the right to hold public office
or employment are commonly regarded as "political rights,"
2
it must be noted
that there are other "political rights"
3
and that the pardon given to petitioner
did not expressly and in printer's ink restore to petitioner the particular right to
hold public office and the specific right to vote at elections and plebiscites.
I join in the basic point of Mr. Justice Padilla that because of the nature of a
public office as a public trust, Articles 36 and 40-43 appropriately require a very
high degree of explicitness if a pardon is to work the restoration of such right to
petitioner. Exactly the same point may, of course, be made in respect of the
restoration of the right to vote.
Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in
our statute books since 1930. I believe that they have been left intact by the
constitutional provisions on pardon, whether one refers to the 1935 Constitution
or to the 1973 and 1987 Constitutions. I do not believe that Articles 36, et al.
collided with any provision or principle embodied in either of our prior
constitutions. The Chief Justice appears to agree with this position when he
referred to Article 36 of the Revised Penal Code (Opinion, p. 5). He goes on,
however, to say (in page 13) that: "the pardon granted to petitioner has resulted
in removing her disqualification from holding public employment but it cannot
go beyond that."
It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code
have not been shown to be an unconstitutional restriction on the pardoning
power of the President. The limitation on the President's pardoning power, if
limitation it be, does not appear to be an unreasonably onerous one. Articles
36, et al. merely require the President to become completely explicit if the
pardon he extends is intended to wipe out not merely the principal but also the
accessory penalty of disqualification from holding public office and from voting
and to restore the recipient of the pardon to the exercise of such fundamental
political rights. Such requirement of explicitness seems entirely in line with the
fundamental point made by the Chief Justice that a pardon does not blot out
the factual guilt of the recipient of the pardon. In other words, the mere grant of
a pardon to a public officer or employee who has been unfaithful to the public
trust and sentenced to disqualification from voting and from holding such office,
does not create the presumption that the recipient of the pardon has thereby
suddenly become morally eligible once more to exercise the right to vote and
to hold public office.
In my view, the pardon extended to petitioner was ineffective to restore to her
the right to hold public office and on this ground, I vote to DENY the Petition
for Review and to AFFIRM the assailed Resolution of the then Executive
Secretary Fulgencio S. Factoran, Jr.
Melencio-Herrera, Gutierrez, Jr., Cruz, Sarmiento, JJ., concur.

Separate Opinions
PADILLA, J.:
I concur in the result but on grounds different from those relied upon by the
majority opinion.
Petitioner Salvacion A Monsanto was Assistant Treasurer of Calbayog City.
Together with three (3) other accused, she was charged before the
Sandiganbayan with the complex crime of Estafa through falsification of public
documents. After trial, the accused were convicted and sentenced to
imprisonment of four (4) years, two (2) months and one (1) day of prision
correccional, as minimum, to ten (10) years and one (1) day of prision
correccional, as maximum, and to pay a fine of P 3,500.00. They were also
ordered to jointly and severally indemnify the government in the sum of P
4,892.50 representing the balance of the amount defrauded and to pay the
costs proportionately.
Petitioner appealed the judgment of conviction to this Court which affirmed the
same. Petitioner then filed a motion for reconsideration but while said motion
was pending, President Ferdinand E. Marcos extended to her on 17 December
1984 an absolute pardon which she accepted on 21 December 1984.
By reason of said absolute pardon, petitioner in representations before the City
Treasurer of Calbayog, the Ministry of Finance and the Office of the President,
asked that she be allowed to re-assume her former office, as of 1 August 1982
(the date of her preventive suspension), that she be paid her back salaries for
the entire period of her suspension, and that she be not required to pay her
proportionate share of the amount of P 4,892.50.
Respondent Assistant Executive Secretary denied petitioner's request for
automatic reinstatement as well as her other claims, because of which denial,
this petition for review on certiorari was filed before the Court seeking the
setting aside and reversal of the decision of the respondent Assistant Executive
Secretary, on the main contention that, as a public officer who has been granted
an absolute pardon by the President, she is entitled to reinstatement to her
former position without need of a new appointment, and to the other reliefs
prayed for.
There can be no dispute that the pardon extinguished petitioner's criminal
liability. At the same time, Art. 36 of the Revised Penal Code categorically
covers the effects of a pardon on the pardoned's right to hold office, suffrage
and on his civil liability. It states:
ART. 36. 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.
A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence. (Emphasis supplied)
Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind,
clear that the pardon extended by the President to the petitioner did not per se
entitle her to again hold public office (including therefore the office of Assistant
Treasurer, Calbayog City) or to suffrage; nor did such pardon extinguish her civil
liability for the criminal conviction, subject matter of the pardon.
An examination of the presidential pardon in question shows that, while
petitioner was granted "an absolute and unconditional pardon and restored to
full civil and political rights", yet, nothing therein expressly provides that the
right to hold public office was thereby restored to the petitioner. In view of the
express exclusion by Art. 36, RPC of the right to hold public office,
notwithstanding a pardon unless the right is expressly restored by the pardon, it
is my considered opinion that, to the extent that the pardon granted to the
petitioner did not expressly restore the right to hold public office as an effect of
such pardon, that right must be kept away from the petitioner.
It is a recognized principle in public law-hopefully to be honored more in its
compliance rather than in its breach that a "public office is a public trust." The
restoration of the right to hold public office to one who has lost such right by
reason of conviction in a criminal case, but subsequently pardoned, cannot be
left to inference, no matter how intensely arguable, but must be stated in
express, explicit, positive and specific language. To require this would not be
asking too much.
I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341
and Pelobello vs. Palatino, 72 Phil. 441 which may be understood to mean that
an absolute pardon, without qualification, restores full civil rights which have
been construed, in turn, to include the right to hold public office (Versoza vs.
Fernandez, 55 Phil. 323).
If such be the message of said cases, then I submit that a modification is in
order, so that an absolute pardon to work a restoration of the right to hold
public office must expressly so state, in order to give substance and meaning to
the sound provisions of Article 36 of the Revised Penal Code, particularly in the
light of our times and experience.
ACCORDINGLY, I vote to DENY the petition.
Melencio-Herrera, Sarmiento, JJ., concur.
FELICIANO, J., concurring:
I concur in the result reached in the important and eloquent opinion of the Chief
Justice. I also join in the separate concurring opinion of Mr. Justice Padilla. At
the same time, I would add a few brief statements, basically for my own
clarification. Article 36 of the Revised Penal Code states:
Article 36. Pardon; its effects. - A pardon shall not work the registration of
the right to hold public office, or the right of suffrage, unless such rights be
expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence. (Emphasis supplied)
It is worthy of note that the rule embodied in Article 36 is reiterated four (4)
times by the Revised Penal Code in its following provisions:
Article 40. Death-Its accessory penalties. - The death penalty, when it is not
executed by reason of commutation or pardon shall carry with it that of
perpetual absolute disqualification and that of civil interdiction during thirty
years following the date of sentence, unless such accessory penalties have
been expressly remitted in the pardon.
Article 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.
Article 42. Prision mayor - Its accessory penalties. - The penalty of prision
mayor shall carry with it that of temporary absolute disqualification and that
of perpetual special disqualification from the right of suffrage which the
offender shall suffer although pardoned as to the principal penalty, unless
the same shall have been expressly remitted in the pardon.
Article 43. Prision correccional - Its accessory penalties. - The penalty of
prision correccional shall carry with it that of suspension from public office,
from the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, if the duration of said
imprisonment shall exceed eighteen months. The offender shall suffer the
disqualification provided in this article although pardoned as to the
principal penalty, unless the same shall have been expressly remitted in the
pardon. (Emphasis supplied)
The Chief Justice points out that the penalty imposed upon petitioner for the
complex crime of estafa through falsification of public documents, included the
accessory penalties of temporary absolute disqualification from public office or
employment and perpetual special disqualification from the right of suffrage.
The 17 December 1984 pardon extended to petitioner in the instant case was
written on a standard printed form which states in printed words that it was "an
absolute and unconditional pardon [which] restored [petitioner] to full civil and
political rights."
1
While the right of suffrage and the right to hold public office
or employment are commonly regarded as "political rights,"
2
it must be noted
that there are other "political rights"
3
and that the pardon given to petitioner
did not expressly and in printer's ink restore to petitioner the particular right to
hold public office and the specific right to vote at elections and plebiscites.
I join in the basic point of Mr. Justice Padilla that because of the nature of a
public office as a public trust, Articles 36 and 40-43 appropriately require a very
high degree of explicitness if a pardon is to work the restoration of such right to
petitioner. Exactly the same point may, of course, be made in respect of the
restoration of the right to vote.
Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in
our statute books since 1930. I believe that they have been left intact by the
constitutional provisions on pardon, whether one refers to the 1935 Constitution
or to the 1973 and 1987 Constitutions. I do not believe that Articles 36, et al.
collided with any provision or principle embodied in either of our prior
constitutions. The Chief Justice appears to agree with this position when he
referred to Article 36 of the Revised Penal Code (Opinion, p. 5). He goes on,
however, to say (in page 13) that: "the pardon granted to petitioner has resulted
in removing her disqualification from holding public employment but it cannot
go beyond that."
It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code
have not been shown to be an unconstitutional restriction on the pardoning
power of the President. The limitation on the President's pardoning power, if
limitation it be, does not appear to be an unreasonably onerous one. Articles
36, et al. merely require the President to become completely explicit if the
pardon he extends is intended to wipe out not merely the principal but also the
accessory penalty of disqualification from holding public office and from voting
and to restore the recipient of the pardon to the exercise of such fundamental
political rights. Such requirement of explicitness seems entirely in line with the
fundamental point made by the Chief Justice that a pardon does not blot out
the factual guilt of the recipient of the pardon. In other words, the mere grant of
a pardon to a public officer or employee who has been unfaithful to the public
trust and sentenced to disqualification from voting and from holding such office,
does not create the presumption that the recipient of the pardon has thereby
suddenly become morally eligible once more to exercise the right to vote and
to hold public office.
In my view, the pardon extended to petitioner was ineffective to restore to her
the right to hold public office and on this ground, I vote to DENY the Petition
for Review and to AFFIRM the assailed Resolution of the then Executive
Secretary Fulgencio S. Factoran, Jr.
Melencio-Herrera, Gutierrez, Jr., Cruz, Sarmiento, JJ., concur.

Footnotes
1 Rollo at 14-15.
2 Rollo at 18-19.
3 Rollo at 21-22.
4 Rollo at 73.
5 Article 42, Revised Penal Code.
6 Article 30, supra.
7 Article 36, supra.
8 Article 43, supra.
8-a United States v. Wilson, 7 Pet. 160, 160-1, cited in Bernas, The 1973 Philippine
Constitution, Notes and Cases, Part I, 1974 Ed., p. 355.
9 Article VII, Section 11.
10 72 Phil. 441.
11 Supra.
12 In re Lontok, 43 Phil. 293; Pendon v. Diasnes, 91 Phil. 848 and Mijares v. Custorio, 73
Phil. 507.
13 4 Wall. 333, 18 L. Ed. 366.
14 Ex Parte Garland, supra at 367.
15 67 C. J. S. 576-577.
16 67 C. J. S. 576-577; Page vs, Watson, 192 So. 205, 126 A.L.R. 249, 253.
17 Comm. of Met. Dist. Com. v. Director of Civil Service, 203 N.E. 2d 95.
18 State v. Cullen, 127 P. 2d 257, cited in 67 C.J.S. 577, note 18.
19 Morris v. Hartsfield, 197 S.E. 251.
20 Illinois C.R. Co. v. Bosworth, 133 U.S. 92, 33 L Ed. 550, 554-555, citing Knote v. United
States, 95 U.S. 149.
21 247 p. 957.
22 See also State v. Serfling, 230 P. 847.
23 Comm. of Met. Dist. Com. v. Director of Civil Service, 203 N.E. 2d 95.
24 Ibid.
25 Illinois C.R Co. v. Bosworth, 133 U.S. 92, 33 L.E. 550; Page v. Watson, 192 So. 205, 126
ALR, 249; State v. Hazzard, 247 P. 957 and In re Stephenson, 10 So. 2d 1.
26 59 Am. Jur. 2d 40.
27 Articles 36, 112-113, Revised Penal Code.
FELICIANO CONCURRING OPINION
1 Rollo, P. 90.
2 Vera v. Avelino, 77 Phil. 192 (1946).
3 Malcolm and Laurel, The Constitutional Law of the Philippines, p. 378 (1936).