ESTRADA vs.

DESIERTO

RULING:

FACTS: It began in October 2000 when

allegations of wrong doings involving bribetaking, illegal gambling, and other forms of
corruption were made against Estrada before the
Senate Blue Ribbon Committee. On November 13,
2000, Estrada was impeached by the Hor and, on
December 7, impeachment proceedings were
begun in the Senate during which more serious
allegations of graft and corruption against
Estrada were made and were only stopped on
January 16, 2001 when 11 senators, sympathetic
to the President, succeeded in suppressing
damaging evidence against Estrada. As a result,
the impeachment trial was thrown into an uproar
as the entire prosecution panel walked out and
Senate President Pimentel resigned after casting
his vote against Estrada.

1. Political questions- "to those questions which,

under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to
which full discretionary authority has been
delegated to the legislative or executive branch
of the government. It is concerned with issues
dependent upon the wisdom, not legality of a
particular measure."

On January 19, PNP and the AFP also withdrew

their support for Estrada and joined the crowd at
EDSA Shrine. Estrada called for a snap
presidential election to be held concurrently with
congressional and local elections on May 14,
2001. He added that he will not run in this
election. On January 20, SC declared that the seat
of presidency was vacant, saying that Estrada
constructively resigned his post. At noon,
Arroyo took her oath of office in the presence of
the crowd at EDSA as the 14th President. Estrada
and his family later left Malacaang Palace. Erap,
after his fall, filed petition for prohibition with
prayer for WPI. It sought to enjoin the respondent
Ombudsman from conducting any further
proceedings in cases filed against him not until
his term as president ends. He also prayed for
judgment confirming Estrada to be the lawful
and incumbent President of the Republic of the
Philippines temporarily unable to discharge the
duties of his office.

exercise of people power of freedom of speech

and freedom of assembly to petition the
government for redress of grievances which only
affected the office of the President.

ISSUE(S):
1. WoN the
controversy.

petition

presents

justiciable

2. WoN Estrada resigned as President.

3. WoN Arroyo is only an acting President.
4. WoN the President enjoys immunity from suit.
5. WoN the prosecution of Estrada should be
enjoined due to prejudicial publicity.

Legal distinction between EDSA People Power I

EDSA People Power II:
EDSA I
EDSA II
exercise of the people power of revolution which
overthrew the whole government.

extra constitutional and the legitimacy of the new

government that resulted from it cannot be the
subject of judicial review

intra constitutional and the resignation of the

sitting President that it caused and the
succession of the Vice President as President are
subject to judicial review.
presented a political question;
involves legal questions.
The cases at bar pose legal and not political
questions. The principal issues for resolution
require the proper interpretation of certain
provisions in the 1987 Constitution: Sec 1 of Art
II, and Sec 8 of Art VII, and the allocation of
governmental powers under Sec 11 of Art VII. The
issues likewise call for a ruling on the scope of
presidential immunity from suit. They also involve
the correct calibration of the right of petitioner
against prejudicial publicity.
2. Elements of valid resignation: (a)an intent to
resign and (b) acts of relinquishment. Both were
present when President Estrada left the Palace.

Totality of prior contemporaneous posterior facts

and circumstantial evidence bearing material
relevant issuesPresident Estrada is deemed to
have resigned constructive resignation.
SC declared that the resignation of President
Estrada could not be doubted as confirmed by his
leaving Malacaan Palace. In the press release
containing his final statement:
1. He acknowledged the oath-taking of the
respondent as President;
2. He emphasized he was leaving the Palace for
the sake of peace and in order to begin the
healing process (he did not say that he was
leaving due to any kind of disability and that he
was going to reassume the Presidency as soon as
the disability disappears);
3. He expressed his gratitude to the people for
the opportunity to serve them as President
(without doubt referring to the past opportunity);
4. He assured that he will not shirk from any
future challenge that may come in the same
service of the country;
5. He called on his supporters to join him in
promotion of a constructive national spirit of
reconciliation and solidarity.
Intent to resignmust be accompanied by act of
relinquishmentact or omission before, during
and after January 20, 2001.
3. The Congress passed House Resolution No. 176
expressly stating its support to Gloria MacapagalArroyo as President of the Republic of the
Philippines and subsequently passed H.R. 178
confirms the nomination of Teofisto T. Guingona Jr.
As Vice President. Senate passed HR No. 83
declaring the Impeachment Courts as Functius
Officio and has been terminated. It is clear is that
both houses of Congress recognized Arroyo as the
President. Implicitly clear in that recognition is
the premise that the inability of Estrada is no
longer temporary as the Congress has clearly
rejected his claim of inability.
The Court therefore cannot exercise its judicial
power for this is political in nature and addressed
solely to Congress by constitutional fiat. In fine,
even if Estrada can prove that he did not resign,
still, he cannot successfully claim that he is a
President on leave on the ground that he is

merely unable to govern temporarily. That claim

has been laid to rest by Congress and the
decision that Arroyo is the de jure, president
made by a co-equal branch of government cannot
be reviewed by this Court.
4. The cases filed against Estrada are criminal in
character. They involve plunder, bribery and graft
and corruption. By no stretch of the imagination
can these crimes, especially plunder which
carries the death penalty, be covered by the
alleged mantle of immunity of a non-sitting
president. He cannot cite any decision of this
Court licensing the President to commit criminal
acts and wrapping him with post-tenure immunity
from liability. The rule is that unlawful acts of
public officials are not acts of the State and the
officer who acts illegally is not acting as such but
stands in the same footing as any trespasser.
5. No. Case law will tell us that a right to a fair
trial and the free press are incompatible. Also,
since our justice system does not use the jury
system, the judge, who is a learned and legally
enlightened
individual,
cannot
be
easily
manipulated by mere publicity. The Court also
said that Estrada did not present enough
evidence to show that the publicity given the trial
has influenced the judge so as to render the
judge unable to perform. Finally, the Court said
that the cases against Estrada were still
undergoing preliminary investigation, so the
publicity of the case would really have no
permanent effect on the judge and that the
prosecutor should be more concerned with justice
and less with prosecution.
ISSUE:
1.)
Whether or not the case at bar a
political or justiciable issue. If justiciable,
whether or not petitioner Estrada was a
president-on-leave or did he truly resign.
2.)
Whether or not petitioner may
invokeimmunity from suits.

HELD:
The Court defines a political issue as those
questions which, under the Constitution, are to be
decided by the people in their sovereign capacity,
or in regard to which full discretionary authority
has been delegated to the legislative or executive

branch of the government. It is concerned with

issues dependent upon the wisdom, not legality
of a particular measure.
The Court made a distinction between the Aquino
presidency and the Arroyo presidency. The Court
said that while the Aquino government was a
government spawned by the direct demand of
the people in defiance to the 1973 Constitution,
overthrowing the old government entirely, the
Arroyo government on the other hand was a
government
exercising
under
the
1987
constitution, wherein only the office of the
president was affected. In the former, it The
question of whether the previous president
(president Estrada) truly resigned subjects it to
judicial review. The Court held that the issue is
legal and not political.

For the president to be deemed as having

resigned, there must be an intent to resign and
the intent must be coupled by acts of
relinquishment.
It is important to follow the
succession of events that struck petitioner prior
his leaving the palace. Furthermore, the quoted
statements extracted from the Angara diaries,
detailed Estradas implied resignation On top of
all these, the press release he issued regarding is
acknowledgement of the oath-taking of Arroyo as
president despite his questioning of its legality
and his emphasis on leaving the presidential seat
for the sake of peace. The Court held that
petitioner Estrada had resigned by the use of the
totality test:
prior, contemporaneous and
posterior facts and circumstantial evidence
bearing a material relevance on the issue.
As to the issue of the peitioners contention that
he is immuned from suits, the Court held that
petitioner is no longer entitled to absolute
immunity from suit. The Court added that, given
the intent of the 1987 Constitution to breathe life
to the policy that a public office is a public trust,
the petitioner, as a non-sitting President, cannot
claim executive immunity for his alleged criminal
acts committed while a sitting President. From
the deliberations, the intent of the framers is
clear that the immunity of the president from suit
is concurrent only with his tenure(the term during
which the incumbent actually holds office) and
not his term (time during which the officer may
claim to hold the office as of right, and fixes the

interval after which the several incumbents shall

succeed one another).
PORMENTO vs. ESTRADA
FACTS: Atty. Pormento filed a petition for
disqualification against former President Joseph
Estrada for being a presidential candidate in the
May 2010 elections. The petition was denied by
COMELEC second division and subsequently by
COMELEC en banc.
ISSUE: Whether or not Joseph Estrada is
disqualified to run for presidency in the May 2010
elections according to the phrase in the
Constitution which states: "[t]he President shall
not be eligible for any reelection."
HELD: There is no actual controversy in the case
at bar. The respondent did not win the second
time he ran. The issue on the proper
interpretation of the phrase "any reelection" will
be premised on a person second election as
President.
Assuming an actual case or controversy existed
prior to the proclamation of a President who has
been duly elected in the May 10, 2010 elections,
the same is no longer true today. Following the
results of that elections, private respondent was
not elected President for the second time. Thus,
any discussion of his "reelection" will simply be
hypothetical and speculative. It will serve no
useful or practical purpose.
NERI vs. SENATE
FACTS: Former NEDA Director General Romulo
Neri testified before the Senate for 11 hours
relating to the ZTE-NBN mess. However, when
probed further on what he and the President
discussed about the NBN Project, he refused to
answer, invoking executive privilege. In
particular, he refused to answer 3 questions:
(a) whether or not President Arroyo followed up
the NBN Project
(b) whether or not she directed him to prioritize it
(c) whether or not she directed him to approve it
Unrelenting, the Senate Committees issued a
Subpoena Ad Testificandum to Neri, requiring him
to appear and testify on November 20, 2007.
However, Executive Secretary Eduardo R. Ermita

requested the Senate Committees to dispense

with Neris testimony on the ground of executive
privilege. In his letter, Ermita said that the
information sought to be disclosed might impair
our diplomatic as well as economic relations with
China. Neri did not appear before the
Committees. As a result, the Senate issued an
Order citing him in contempt and ordered his
arrest and detention until such time that he
would appear and give his testimony.
Are the communications elicited by the
subject three (3) questions covered by
executive privilege?
Yes. The Communications elicited by the 3
Questions are covered by Executive Privilege. xxx
we are convinced that the communications
elicited by the questions are covered by the
presidential communications privilege. First, the
communications relate to a quintessential and
non-delegable power of the President, i.e. the
power to enter into an executive agreement with
other countries. This authority of the President to
enter into executive agreements without the
concurrence of the Legislature has traditionally
been recognized in Philippine jurisprudence.
Second, the communications are received by a
close advisor of the President. Under the
operational proximity test, petitioner can be
considered a close advisor, being a member of
President Arroyos cabinet. And third, there is no
adequate showing of a compelling need that
would justify the limitation of the privilege and of
the unavailability of the information elsewhere by
an appropriate investigating authority.

The Senate contends that the grant of the

executive privilege violates the Right of
the people to information on matters of
public concern. Is the senate correct?
ANSWER: No. While Congress is composed of
representatives elected by the people, it does not
follow, except in a highly qualified sense, that in
every exercise of its power of inquiry, the people
are exercising their right to information. The right
of Congress or any of its Committees to obtain
information in aid of legislation cannot be
equated with the peoples right to public
information. The distinction between such rights
is laid down in Senate v. Ermita: There are clear
distinctions between the right of Congress to

information which underlies the power of inquiry

and the right of people to information on matters
of public concern. For one, the demand of a
citizen for the production of documents pursuant
to his right to information does not have the
same obligatory force as a subpoena duces
tecum issued by Congress. Neither does the right
to information grant a citizen the power to exact
testimony from government officials. These
powers belong only to Congress, not to an
individual citizen.
On March 6, 2008, President Arroyo issued
Memorandum Circular No. 151, revoking
E.O. 464. Is there a recognized claim of
executive privilege despite the revocation
of E.O. 464?
ANSWER: Yes. The revocation of E.O. 464 does
not in any way diminish our concept of executive
privilege. This is because this concept has
Constitutional underpinnings.
In Senate v. Ermita, the executive privilege
should be invoked by the President or
through the Executive Secretary by order
of the President. Did Executive Secretary
Ermita correctly invoke the principle of
executive privilege, by order of the
President?
ANSWER: Yes. The Letter dated November 17,
2007 of Executive Secretary Ermita satisfies the
requirement. It serves as the formal claim of
privilege. There, he expressly states that this
Office is constrained to invoke the settled
doctrine of executive privilege as refined in
Senate v. Ermita, and has advised Secretary Neri
accordingly. Obviously, he is referring to the
Office of the President. That is more than enough
compliance.
May the Congress require the executive to
state the reasons for the claim with
particularity?
ANSWER: No. The Congress must not require the
executive to state the reasons for the claim with
such particularity as to compel disclosure of the
information which the privilege is meant to
protect. This is a matter of respect to a
coordinate and co-equal department. (Senate v.
Ermita)

Is the contempt and arrest Order of Neri

valid?
ANSWER: No. There being a legitimate claim of
executive privilege, the issuance of the contempt
Order suffers from constitutional infirmity. The
respondent Committees did not comply with the
requirement laid down in Senate v. Ermita that
the invitations should contain the possible
needed statute which prompted the need for the
inquiry, along with the usual indication of the
subject of inquiry and the questions relative to
and in furtherance thereof. The SC also find
merit in the argument of the OSG that respondent
Committees violated Section 21 of Article VI of
the Constitution, requiring that the inquiry be in
accordance with the duly published rules of
procedure.
The
respondent
Committees
issuance of the contempt Order is arbitrary and
precipitate. It must be pointed out that
respondent Committees did not first pass upon
the claim of executive privilege and inform
petitioner of their ruling. Instead, they curtly
dismissed his explanation as unsatisfactory and
simultaneously issued the Order citing him in
contempt and ordering his immediate arrest and
detention. (Neri vs. Senate, G.R. No. 180643,
March 25, 2008)
LIBAN vs. GORDON
FACTS: Petitioners are officers of the Board of
Directors of the QC Red Cross Chapter while
Respondent is the Chairman of the Philippine
National Red Cross (PNRC) Board of Governors.
Petitioners allege that by accepting the
chairmanship of the PNRC Board of Governors,
respondent has ceased to be a member of the
Senate - Sec. 13, Art. VI, 1987 Consti: No Senator
or Member of the HoR may hold any other
office/employment in the Govt, or any
subdivision, agency, or instrumentality thereof,
including govt-owned or controlled corporations
or their subsidiaries, during his term w/o forfeiting
his seat. Neither shall he be appointed to any
office which may have been created or the
emoluments thereof increased during the term
for which he was elected).
Petitioners cite Camporedondo v. NLRC which
held that PNRC is a govt-owned or controlled
corporation. Flores v. Drilon held that incumbent
national legislators lose their elective posts upon
their appointment to another government office.

Respondent:

Petitioners have no standing to file petition w/c

appears to be an action for quo warranto
they do not claim to be entitled to the Senate
office of respondent.
Sec. 11, Rule 66, Rules of Civil Procedure:
action should be commenced w/in 1 year after
the cause of public officers forfeiture of office
respondent has been working as a Red Cross
volunteer for 40 yrs
Petitioners cannot raise a constitutional
question as taxpayers no claim that they
suffered some actual damage/threatened
injury or illegal disbursement of public funds
If petition is for declaratory relief, SC has no
jurisdiction original jurisdiction in RTC
PNRC is not a govt owned/controlled
corporation
Sec. 13, Art. VI of Consti does not apply
because volunteer service to PNRC is not an
office/employment

WON petitioners have standing.

SC: NO. The petition is an action for quo warranto
(Sec. 1, Rule 66, Rules of Court an action for the
usurpation of a public office against a public
officer who does or suffers an act which
constitutes a ground for forfeiture of his office).
See facts for petitioners allegations. Petitioners
do not claim to be entitled to the Senate office of
respondent.
WON PNRC is a Private or GovernmentOwned or Controlled Corporation.
SC: PNRC is a Private Corporation.
May 22, 1947 Pres. Manuel Roxas signed RA 95
(PNRC Charter) adhering to the Geneva
Convention of July 27, 1929. PNRC is:
-A

non-profit,
donor-funded,
voluntary,
humanitarian organization whose mission is to
bring timely, effective, and compassionate
humanitarian
assistance
for
the
most
vulnerable w/o consideration of nationality,
race, religion, gender, social status, or political
affiliation.
- A member of National Society of the International
Red Cross and Red Crescent Movement. 7
Fundamental
Principles:
Humanity,
Impartiality,
Neutrality,
Independence,
Voluntary Service, Unity, Universality.
- Must be autonomous, neutral and independent;
not appear to be instrument/agency that
implements govt policy to merit the trust of all

and effectively carry out its mission

therefore, it cannot be owned/controlled by the
govt
The Philippine government does not own the
PNRC does not have govt assets and does not
receive any appropriation from the Congress. It is
financed primarily by contributions from private
individuals/entities obtained through solicitation
campaigns organized by its Board of Governors
(Sec. 11, PNRC Charter).
The government does not control the PNRC. Only
6 of the 30 members of the PNRC Board of
Governors are appointed by the President of the
Philippines (Sec. 6, PNRC Charter). A majority of
4/5 of the PNRC Board are elected/chosen by the
private sector members of the PNRC.
The PNRC Chairman is not appointed by the
President or any subordinate govt official,
therefore, he is not an official/employee of the
Philippine Government. Sec. 16, Art. VII of Consti
President appoints all officials & employees in
the Executive branch whose appointments are
vested in the President by the Consti or by law.
President
also
appoints
those
whose
appointments are not otherwise provided by law.
The law may also authorize the heads of
deparments, agencies, commissions, or boards
to appoint officers lower in rank.
The vast majority of the thousands of PNRC
members are private individuals, including
students and foreigners; those contribute to the
annual fund campaign of the PNRC (Sec. 5, PNRC
Charter amended by PD 1264).
Sec. 2(13) of the Introductory Provisions of the
Administrative Code of 1987: A govt-owned or
controlled corporation must be owned by the
govt, and in case of a stock corporation, at least
a majority of its capital stock must be owned by
the govt. In case of a non-stock corporation, at
least a majority of the members must be govt
officials
holding
such
membership
by
appointment/designation by the govt.
WON the office of the PNRC Chairman is a
govt office or an office in a governmentowned
or
controlled
corporation
for
purposes of the prohibition in Sec. 13, Art.
VI of Consti.

SC: The office of the PNRC Chairman is a

private office. The President cannot review,
reverse or modify the decisions/actions of the
PNRC Board and the PNRC Chairman. Only the
PNRC Board can review, reverse or modify the
decisions/actions of the PNRC Chairman.
*The PNRC Charter is Violative of the
Constitutional Proscription against the
Creation of Private Corporations by Special
Law
1935 (Sec. 7 was in force when PNRC was created
by special character on March 22, 1947), 1973 &
1987 (Sec. 16) Constitutions provide that: The
Congress shall not, except by general law,
provide for the formation, organization, or
regulation of private corporations. Govt-owned or
controlled
corporations
may
be
created/established by special charters in the
interest of the common good and subject to the
test of economic viability.
Feliciano v. CoA Sec. 16 of 1987 Consti bans
private corporations to be created by special
charters, which historically gave individuals,
families or groups special privileges denied to
other citizens.
PNRC was created through a special charter,
however, the elements of govt ownership and
control (e.g. capital assets and operating funds
from govt) are clearly lacking in the PNRC. It
therefore cannot be considered a govt-owned or
controlled corporation.
In creating PNRC as a corporate entity, Congress
was in fact creating a private corporation, which
is not exempt from constitutional prohibition (Sec.
16 above) even as a non-profit/charitable
corporation.
PNRC Charter insofar as it creates the PNRC as a
private corporation and grants it corporate
powers is void for being unconstitutional Sec.
1-13 are void. Other provisions remain valid as
they can be considered as a recognition by the
State that PNRC is the local National Society of
the International Red Cross and Red Crescent
Movement and thus entitled to the benefits,
exemptions and privileges set forth in the PNRC
Charter. They also implement the Phil. Govts
treaty obligations based on the Geneva
Conventions.

Judgment: Office of the PNRC Chairman

declared not a government office.
DISSENTING:
PNRC is a govt-owned or controlled
corporation (GOCC). Its charter does not
violate
the
constitutional
proscription
against creation of private corporations by
special law. PNRC was incorporated under RA
95, a special law. It cannot be anything but a
GOCC. PNRC was not impliedly converted into a
private corporation simply because its charter
was amended to vest in it authority to secure
loans, be exempted from payment of all duties,
tax fees, etc.
The use of Sec. 2(13) of Introductory Provisions of
Administrative Code of 1987 by the ponencia to
define a GOCC does not pronounce a definition of
a GOCC that strays from Sec. 16, Art. XII of
Consti. It merely declares that a GOCC may either
be a stock or non-stock corporation.
Sec. 1 of PNRC Charter PNRC is officially
designated to assist the RP in discharging the
obligations set forth in the Geneva Conventions
therefore, it is engaged in the performance of the
govts public functions.
PNRC is endowed w/ corporate powers. It
administers special funds contributions of
members, aid given by govt, supported by PCSO
and LGUs. It submits annual reports receipts and
disbursement to the President.
ANRC (precursor of PNRC) is considered a federal
instrumentality immunity from state taxation,
subjected to governmental supervision & regular
financial audit, principal officer appointed by the
President but remains an independent,
volunteer-led org. No basis to assume that it
cannot merit the trust of all and cannot
effectively carry out mission as a National Red
Cross Society. Separatists & insurgents do not
consider them as the enemy but as the entity to
turn to in the event of injury.
Considering that PNRC is a GOCC, its charter does
not violate the constitutional provision (Sec. 16,
Art. XII).
To declare Sec. 1 of PNRC Charter (creation and
incorporation of the org) invalid and the rest valid
is to reach an absurd situation in w/c obligations
are imposed on and a framework for its operation

is laid down for a legally non-existing entity. Sec.

2-17 of RA 95 are not separable from Sec. 1
cannot stand independently no separability
clause.
Presumption of constitutionality of law is
presumed. There is no clear showing that the
PNRC Charter runs counter to the consti. All
reasonable doubts should be resolved in favor of
the constitutionality of the statute.
Deleterious effects will result if PNRC is declared
a private corporation employees will no longer
be covered by the GSIS; it can no longer be
extended tax exemptions and official immunity;
and cannot anymore be given support, financial
or otherwise, by the National Govt, LGUs, and
PCSO. The Court must not arbitrarily declare a
law unconstitutional just to save a single
individual from unavoidable consequences of his
transgression of the Consti even if done in good
faith.
Sen. Gordons continuous occupancy of 2
incompatible positions is a clear violation of
the Consti (Sec. 13, Art. VI). The language in
the provision is unambiguous; requires no indepth construction. A position held in an ex officio
capacity (a second post held by virtue of the
functions of the first office) does not violate such
constitutional proscription. The chairmanship of
the PNRC Board is not held in an ex officio
capacity by a member of Congress.
PUBLIC ESTATE vs. ELMA
FACTS: On 30 October 1998, respondent Elma
was appointed and took his oath of office as
Chairman of the PCGG. Thereafter, on 11 January
1999, during his tenure as PCGG Chairman,
respondent Elma was appointed CPLC. He took
his oath of office as CPLC the following day, but
he waived any remuneration that he may receive
as CPLC.

Petitioners, citing the case of Civil Liberties Union

v. Executive Secretary alleged that respondent
Elmas concurrent appointments as PCGG
Chairman and CPLC contravenes Section 13,
Article VII and Section 7, par. 2, Article IX-B of the
1987 Constitution. Petitioners also maintained
that respondent Elma was holding incompatible
offices.

Relying on the Resolution of the same case,

respondents allege that:

primary functions of their positions (Section 7,

Article IX-B); but

a) the strict prohibition against holding multiple

positions provided under Section 13, Article VII of
the 1987 Constitution applies only to heads of
executive departments, their undersecretaries
and assistant secretaries; it does not cover other
public officials given the rank of Secretary,
Undersecretary, or Assistant Secretary;

(b) the President, the Vice-President, Members of

the Cabinet, their deputies and assistants may do
so only when expressly authorized by the
Constitution itself (Section 13, Article VII).

b) it is Section 7, par. 2, Article IX-B of the 1987

Constitution that should be applied in their case.

Test in determining WON incompatibility exists

between two offices: WON one office is
subordinate to the other, in the sense that one
office has the right to interfere with the other
(People v. Green)

This provision, according to the respondents,

would allow a public officer to hold multiple
positions if

Definition/Requisites
of
Incompatibility:
Incompatibility between two offices, is an
inconsistency in the functions of the two.

(1) the law allows the concurrent appointment of

the said official; and

The force of the word, in its application to this

matter is, that from the nature and relations to
each other, of the two places, they ought not to
be held by the same person, from the contrariety
and antagonism which would result in the
attempt by one person to faithfully and
impartially discharge the duties of one, toward
the incumbent of the other.

(2) the primary functions of either position allows

such concurrent appointment;
c) since there exists a close relation between the
two positions and there is no incompatibility
between them, the primary functions of either
position
would
allow
respondent
Elmas
concurrent appointments to both positions; and
d) the appointment of the CPLC among
incumbent public officials is an accepted practice.
In 2001, the appointees of former President
Joseph Estrada were replaced by the appointees
of the incumbent president, Gloria Macapagal
Arroyo.
ISSUE/S: 1) WON Respondent Magdangal B.
Elmas concurrent appointments as PCGG
Chairman and CPLC is unconstitutional for
being the violative of the proscription
against multiple offices imposed by Section
13, Article VII and Section 7, par. 2, Article
IX-B of the 1987 Constitution;
HELD: 1) YES. In harmonizing Section 13, Article
VII and Section 7, par. 2, Article IX-B of the 1987
Constitution, the Court held in Civil Liberties
Union v. Executive Secretary that
(a) all elective and appointive public officials and
employees are allowed to hold other office or
employment in the government during their
tenure when such is allowed by law or by the

What is not incompatibile: Where one office is not

subordinate to the other, nor the relations of the
one to the other such as are inconsistent and
repugnant, there is not that incompatibility from
which the law declares that the acceptance of the
one is the vacation of the other.
Here, an incompatibility exists between the
positions of the PCGG Chairman and the CPLC.
The duties of the CPLC include giving
independent and impartial legal advice on the
actions of the heads of various executive
departments and agencies and to review
investigations involving heads of executive
departments and agencies, as well as other
Presidential appointees.
The PCGG is, without question, an agency under
the Executive Department. Thus, the actions of
the PCGG Chairman are subject to the review of
the CPLC.
In such cases, questions on his
impartiality will inevitably be raised. This is the
situation that the law seeks to avoid in imposing
the prohibition against holding incompatible
offices.

2) Who are deemed covered by the strict

prohibition under Section 13, Article VII of
the 1987 Constitution?
HELD: The persons cited in the constitutional
provision are the Members of the Cabinet, their
deputies and assistants.
These terms must be given their common and
general acceptation as referring to the heads of
the
executive
departments,
their
undersecretaries and assistant secretaries. Public
officials given the rank equivalent to a Secretary,
Undersecretary, or Assistant Secretary are not
covered by the prohibition, nor is the Solicitor
General affected thereby.
The strict prohibition under Section 13, Article VII
of the 1987 Constitution is not applicable to the
PCGG Chairman nor to the CPLC, as neither of
them is a secretary, undersecretary, nor an
assistant secretary, even if the former may have
the same rank as the latter positions. However,
despite the non-applicability of Section 13, Article
VII of the 1987 Constitution to respondent Elma,
he remains covered by the general prohibition
under
Section
7,
Article
IX-B
and
his
appointments must still comply with the standard
of compatibility of officers laid down therein;
failing which, his appointments are hereby
pronounced in violation of the Constitution.
As held in Civil Liberties, there are only two
exceptions to the rule against multiple offices:
(1) those provided for under the Constitution,
such as Section 3, Article VII, authorizing the
Vice-President to become a member of the
Cabinet; or
(2) posts occupied by the Executive
specified in Section 13, Article VII
additional compensation in an ex-officio
as provided by law and as required
primary functions of said officials office.

officials
without
capacity
by the

Further qualification to the exceptions: Additional

duties must not only be closely related to, but
must be required by the officials primary
functions. Moreover, the additional post must be
exercised in an ex-officio capacity, which
denotes an act done in an official character, or
as a consequence of office, and without any other
appointment or authority than that conferred by

the office. It will not suffice that no additional

compensation.
FUNA vs. ERMITA
FACTS: This is a petition for certiorari, prohibition
and mandamus under Rule 65 with prayer for the
issuance of a temporary restraining order and/or
writ of preliminary injunction, to declare as
unconstitutional the designation of respondent
Undersecretary Maria Elena H. Bautista as Officerin-Charge (OIC) of the Maritime Industry Authority
(MARINA).
On October 4, 2006, President Gloria MacapagalArroyo appointed respondent Maria Elena H.
Bautista (Bautista) as Undersecretary of the
Department
of
Transportation
and
Communications (DOTC).
On September 1, 2008, following the resignation
of then MARINA Administrator Vicente T. Suazo,
Jr., Bautista was designated as Officer-in-Charge
(OIC), Office of the Administrator, MARINA, in
concurrent capacity as DOTC Undersecretary.
On October 21, 2008, Dennis A. B. Funa in his
capacity as taxpayer, concerned citizen and
lawyer, filed the instant petition challenging the
constitutionality
of
Bautistas
appointment/designation, which is proscribed by
the prohibition on the President, Vice-President,
the Members of the Cabinet, and their deputies
and assistants to hold any other office or
employment.
On January 5, 2009, during the pendency of this
petition, Bautista was appointed Administrator of
the MARINA and she assumed her duties and
responsibilities as such on February 2, 2009.
Petitioner argues that Bautistas concurrent
positions as DOTC Undersecretary and MARINA
OIC is in violation of Section 13, Article VII of the
1987 Constitution .
On the other hand, the respondents argue that
the requisites of a judicial inquiry are not present
in this case. In fact, there no longer exists an
actual controversy that needs to be resolved in
view of the appointment of respondent Bautista
as MARINA Administrator effective February 2,
2009 and the relinquishment of her post as DOTC
Undersecretary for Maritime Transport, which
rendered the present petition moot and
academic. Petitioners prayer for a temporary

restraining order or writ of preliminary injunction

is likewise moot and academic since, with this
supervening event, there is nothing left to enjoin.
Issue: Whether or not the designation of
respondent Bautista as OIC of MARINA,
concurrent with the position of DOTC
Undersecretary for Maritime Transport to
which she had been appointed, violated the
constitutional proscription against dual or
multiple offices for Cabinet Members and
their deputies and assistants.
Held: Resolution of the present controversy
hinges on the correct application of Section 13,
Article VII of the 1987 Constitution, which
provides:
Sec. 13. The President, Vice-President, the
Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in
this Constitution, hold any other office or
employment during their tenure. They shall not,
during said tenure, directly or indirectly practice
any other profession, participate in any business,
or be financially interested in any contract with,
or in any franchise, or special privilege granted
by the Government or any subdivision, agency, or
instrumentality thereof, including governmentowned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.
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.
On the other hand, Section 7, paragraph (2),
Article IX-B reads:
Sec. 7. x x x Unless otherwise allowed by law or
the primary functions of his position, no
appointive official shall hold any other office or
employment in the Government or any
subdivision, agency or instrumentality thereof,
including
government-owned
or
controlled
corporations or their subsidiaries.

Noting that the prohibition imposed on the

President and his official family is all-embracing,
the disqualification was held to be absolute, as
the holding of "any other office" is not qualified
by the phrase "in the Government" unlike in
Section 13, Article VI prohibiting Senators and
Members of the House of Representatives from
holding "any other office or employment in the
Government"; and when compared with other
officials and employees such as members of the
armed forces and civil service employees, we
concluded thus:
These sweeping, all-embracing prohibitions
imposed on the President and his official
family, which prohibitions are not similarly
imposed on other public officials or
employees such as the Members of
Congress, members of the civil service in
general and members of the armed forces,
are proof of the intent of the 1987
Constitution to treat the President and his
official family as a class by itself and to
impose
upon
said
class
stricter
prohibitions.
Thus, while all other appointive officials in
the civil service are allowed to hold other
office or employment in the government
during their tenure when such is allowed by
law or by the primary functions of their
positions, members of the Cabinet, their
deputies and assistants may do so only
when
expressly
authorized
by
the
Constitution itself. In other words, Section
7, Article IX-B is meant to lay down the
general rule applicable to all elective and
appointive public officials and employees,
while Section 13, Article VII is meant to be
the exception applicable only to the
President, the Vice-President, Members of
the Cabinet, their deputies and assistants.
Since the evident purpose of the framers of the
1987 Constitution is to impose a stricter
prohibition on the President, Vice-President,
members of the Cabinet, their deputies and
assistants with respect to holding multiple offices
or employment in the government during their
tenure, the exception to this prohibition must be
read with equal severity. On its face, the
language of Section 13, Article VII is prohibitory
so that it must be understood as intended to be a
positive and unequivocal negation of the privilege

of holding multiple government offices or

employment. Verily, wherever the language used
in the constitution is prohibitory, it is to be
understood as intended to be a positive and
unequivocal negation. The phrase "unless
otherwise provided in this Constitution" must be
given a literal interpretation to refer only to those
particular instances cited in the Constitution
itself, to wit: the Vice-President being appointed
as a member of the Cabinet under Section 3, par.
(2), Article VII; or acting as President in those
instances provided under Section 7, pars. (2) and
(3), Article VII; and, the Secretary of Justice being
ex-officio member of the Judicial and Bar Council
by virtue of Section 8 (1), Article VIII.
Respondent
Bautista
being
then
the
appointed Undersecretary of DOTC, she was
thus covered by the stricter prohibition
under
Section
13,
Article
VII
and
consequently
she
cannot
invoke
the
exception provided in Section 7, paragraph
2, Article IX-B where holding another office
is allowed by law or the primary functions
of the position. Neither was she designated
OIC of MARINA in an ex-officio capacity,
which is the exception recognized in Civil
Liberties Union.
WHEREFORE, the petition is GRANTED. The
designation of respondent Ma. Elena H. Bautista
as Officer-in-Charge, Office of the Administrator,
Maritime Industry Authority, in a concurrent
capacity
with
her
position
as
DOTC
Undersecretary for Maritime Transport, is hereby
declared UNCONSTITUTIONAL for being violative
of Section 13, Article VII of the 1987 Constitution
and therefore, NULL and VOID.
NOTES: 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. 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, 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. 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.
MATIBAG vs. BENIPAYO
FACTS: COMELEC en banc appointed petitioner
as Acting Director IV of the EID. Such
appointment was renewed in temporary
capacity twice, first by Chairperson Demetrio and
then by Commissioner Javier. Later, PGMA
appointed, ad interim, Benipayo as COMELEC
Chairman, and Borra and Tuason as COMELEC
Commissioners, each for a term of 7 yrs. The
three took their oaths of office and assumed their
positions. However, since the Commission on
Appointments did not act on said appointments,
PGMA renewed the ad interim appointments.

ISSUES: Whether or not the assumption of office

by Benipayo, Borra and Tuason on the basis of the
ad interim appointments issued by the President
amounts to a temporary appointment prohibited
by Sec. 1(2), Art. IX-C?
Assuming that the first ad interim appointments
and the first assumption of office by Benipayo,
Borra and Tuason are legal, whether or not the
renewal of their ad interim appointments and
subsequent assumption of office to the same
positions violate the prohibition on reappointment
under Sec. 1(2), Art. IX-C?
RULING:
Nature of an Ad Interim Appointment
An ad interim appointment is a permanent
appointment because it takes effect immediately
and can no longer be withdrawn by the President

once the appointee has qualified into office. The

fact that is subject to confirmation by the
Commission on Appointments does not alter its
permanent character. The Constitution itself
makes an ad interim appointment permanent in
character by making it effective until disapproved
by the Commission on Appointments or until the
next adjournment of Congress. The second
paragraph of Sec.16, Art.VII of the Constitution
provides as follows:
The President shall have the power to make
appointments during the recess of the Congress,
whether voluntary or compulsory, but such
appointments shall be effective only until
disapproval by the Commission on Appointments
or until the next adjournment of the Congress.
Thus, the ad interim appointment remains
effective until such disapproval or next
adjournment, signifying that it can no longer be
withdrawn or revoked by the President. xxx
...the term ad interim appointment means a
permanent appointment made by the President in
the meantime that Congress is in recess. It does
not mean a temporary appointment that can be
withdrawn or revoked at any time. The term,
although not found in the text of the Constitution,
has acquired a definite legal meaning under
Philippine jurisprudence.
Rights of an Ad Interim Appointee
An ad interim appointee who has qualified and
assumed office becomes at that moment a
government employee and therefore part of the
civil service. He enjoys the constitution protection
that [n]o officer or employee in the civil service
shall be removed or suspended except for cause
provided by law. Thus, an ad interim
appointment becomes complete and irrevocable
once the appointee has qualified into office. The
withdrawal or revocation of an ad interim
appointment
is
possible
only
if
it
is
communicated to the appointee before the
moment he qualifies, and any withdrawal or
revocation thereafter is tantamount to removal
from office. Once an appointee has qualified, he
acquires a legal right to the office which is
protected not only by statute but also by the
Constitution. He can only be removed for cause,
after notice and hearing, consistent with the
requirements of due process.

How Ad Interim Appointment is Terminated

An ad interim appointment can be terminated for
two causes specified in the Constitution. The first
cause is the disapproval of his ad interim
appointment
by
the
Commission
on
Appointments. The second cause is the
adjournment of Congress without the Commission
on Appointments acting on his appointment.
These two causes are resolutory conditions
expressly imposed by the Constitution on all ad
interim
appointments.
These
resolutory
conditions constitute, in effect, a Sword of
Damocles over the heads of ad interim
appointees. No one, however, can complain
because it is the Constitution itself that places
the Sword of Damocles over the heads of the ad
interim appointees.
Ad Interim Appointment
Appointment

vs.

Temporary

While an ad interim appointment is permanent

and irrevocable except as provided by law, an
appointment or designation in a temporary or
acting capacity can be withdrawn or revoked at
the pleasure of the appointing power. A
temporary or acting appointee does not enjoy
any security of tenure, no matter how briefly. This
is the kind of appointment that the Constitution
prohibits the President from making to the three
independent
constitutional
commissions,
including the COMELEC xxx
Was the renewal of appointment valid?
There is no dispute that an ad interim appointee
disapproved by the Commission on Appointments
can no longer be extended a new appointment.
The disapproval is a final decision of the
Commission on Appointments in the exercise of
its checking power on the appointing authority of
the President. The disapproval is a decision on
the merits, being a refusal by the Commission on
Appointments
to
give
its
consent
after
deliberating on the qualifications of the
appointee. Since the Constitution does not
provide for any appeal from such decision, the
disapproval is final and binding on the appointee
as well as on the appointing power. In this
instance, the President can no longer renew the
appointment not because of the constitutional
prohibition on reappointment, but because of a
final
decision
by
the
Commission
on

Appointments to withhold its consent to the

appointment.
An ad interim appointment that is by-passed
because of lack of time or failure of the
Commission on Appointments to organize is
another matter. A by-passed appointment is one
that has not been finally acted upon on the
merits by the Commission on Appointments at
the close of the session of Congress. There is no
final
decision
by
the
Commission
on
Appointments to give or withhold its consent to
the appointment as required by the Constitution.
Absent such decision, the President is free to
renew the ad interim appointment of a by-passed
appointee xxx
The prohibition on reappointment in Section 1 (2),
Article IX-C of the Constitution applies neither to
disapproved
nor
by-passed
ad
interim
appointments.
A
disapproved
ad
interim
appointment cannot be revived by another ad
interim appointment because the disapproval is
final under Section 16, Article VII of the
Constitution, and not because a reappointment is
prohibited under Section 1 (2), Article IX-C of the
Constitution. A by-passed ad interim appointment
can be revived by a new ad interim appointment
because there is no final disapproval under
Section 16, Article VII of the Constitution, and
such new appointment will not result in the
appointee serving beyond the fixed term of seven
years.
RUFINO vs. ENDIGA
FACTS: Petitioners in GR No. 139565, led by
Baltazar N. Endriga (the Endriga group), were
appointed members of the board of trustees of
the Cultural Center of the Philippines (CCP) by
President Fidel V. Ramos in 1995, with the
qualification that their appointments would
extend only until December 31, 1998. On
December 22, 1998, then President Joseph
Estrada advised petitioners that they were being
replaced by seven new appointees to the CCP
board, led by Armita B. Rufino (the Rufino group).
Having been dislodged from the CCP, Endriga
filed quo warranto proceedings questioning the
Presidents authority to appoint new members in
the CCP board.

It was alleged that under Section 6(b)[1] of

Presidential Decree No. 15, vacancies in the
board shall be filled by election by a vote of a
majority of the trustees held at the next regular
meeting x x x. The Endriga group claimed that it
was only when the board was entirely vacant that
the President of the Philippines may fill the
vacancies, in consultation with the ranking
officers of the CCP. The members of the group
believed that since only one seat was vacant,
President Estrada could not appoint a new board.
They averred that presidential appointment was
unjustified, since the CCP board still had 10
incumbent trustees who had the statutory power
to fill any vacancy in the board by election.
On May 14, 1999, the Court of Appeals (CA)
granted the quo warranto Petition.
It declared the Endriga group lawfully entitled to
hold office and ousted respondents from the CCP
board. The CA held that Section 6(b) of
Presidential Decree (PD) 15 had clearly vested in
the remaining members of the board the power
to elect new trustees. It ruled that the President
could exercise the power to appoint only when
the board was entirely vacant.
In its appeal before this Court, the Rufino group
asserted that Section 6(b) of PD 15, which
authorized the CCP trustees to elect their fellow
trustees, should be declared unconstitutional. The
provision was allegedly repugnant to Section 16
of Article VII of the Constitution, which allowed
the appointment only of officers lower in rank
than the appointing power.
ISSUE: Whether Section 6 (b and c) of PD 15
was unconstitutional in the light of Section
16 of Article VII of the Constitution.
HELD: At the outset, the Court recognized the
occurrence of a supervening event that could
have rendered the case moot the resignation of
the Rufino group and the appointment of new
CCP trustees by President Gloria MacapagalArroyo. The Court, however, deemed it best to
pass upon the merits of the case, in order to
prevent a repeat of this regrettable controversy
and to protect the CCP from being periodically
wracked by internecine politics. Moreover, the
Court brushed aside procedural barriers, in view
of the paramount importance of the constitutional
issues involved.

By a vote of 10-3, the Court held that Section 6 (b

and c) of PD 15 was irreconcilable with Section 16
of Article VII of the Constitution.
The clear and categorical language of Section 6
(b) of PD 15 states that vacancies in the CCP
board shall be filled by a majority vote of the
remaining trustees. It is only when the board
becomes entirely vacant that the vacancies shall
be filled by the President of the Philippines, acting
in consultation with the same ranking officers of
the CCP. Thus, Section 6 (b) empowers the
remaining trustees of the board to fill the
vacancies by electing their fellow trustees. Simply
put, this provision authorizes the appointing
officer to appoint an officer who will be equal in
rank to the former.
In its Decision, the Court held that the power
of appointment granted in Section 6 (b) of
PD 15 transgressed Section 16 of Article VII
of the Constitution. It explained that the
power to appoint vested by Section 16 in
the President; or the heads of departments,
agencies, commissions or boards was
restricted only to officers lower in rank. This
constitutional provision clearly excluded a
situation in which the appointing officers
appointed an officer who would be equal to
them in rank.
This latter situation, however, was present in the
CCP, whose trustees were appointing new cotrustees who would be equal in rank to the
former. Thus, Section 6 (b and c) of PD 15 was
found to be unconstitutional, insofar as it violated
the constitutional mandate that the head of the
board may be authorized to appoint lower-ranking
officers only.

Further, Section 16 of Article VII of the

Constitution
authorized
Congress
to
vest
specifically in the heads of departments,
agencies, commissions, or boards and in no
other person the power to appoint lower-ranked
officers. The word heads referred to the
chairpersons of the commissions or boards, not to
their members, for several reasons.
First, the 1935, the 1973, and the 1987
Constitutions made a clear distinction whenever
the power to appoint lower-ranked officers was
granted to the members of or the head of a

collegial body. When conferring the power of

appointment to the members of that collegial
body, our past and present Constitutions used the
phrases in the courts,[4] courts,[5] the
Supreme Court,[6] members of the Cabinet,
4and the Constitutional Commissions.[7]
Thus, if the intention was to grant to members of
a commission or board the power to appoint
lower-ranked officials, Section 16 of Article VII of
the Constitution should have used the phrase in
the commissions or boards. But in sharp
contrast, this provision vested the power in the
heads
of
the
departments,
agencies,
commissions or boards.
Second, the deliberations[8] of the present
Constitution revealed that the framers had
intended the phrase in the heads of
departments, agencies, commissions, or boards
to be an enumeration of offices whose heads may
be vested by law with the power to appoint lowerranked officers. Thus, in the enumeration, what
applied to the first office applied also to the
succeeding offices mentioned.
Third, all commissions or boards had chief
executives who were their heads. Since the
Constitution spoke of heads of office, and all
commissions or boards had chief executives or
heads, that word could have referred only to the
chief executives or heads of the commissions or
boards.
Given that the word heads referred to the
commission or board chairpersons, not members,
the Court ruled that the head of the CCP was the
chairperson of the CCP board of trustees. This
conclusion was further supported by the fact that
Section 8 of PD 15[9] and Section 3 of the
Revised Rules and Regulations[10] of the CCP
recognized that its board chairperson as the
head of the CCP had the power to appoint,
remove, and discipline all officers, staff and
personnel of the CCP.
Pursuant to Section 16 of Article VII of the
Constitution, the chairperson of the CCP board, as
the head of the CCP, was the only officer who
could be vested by law with the power to appoint
lower-ranked officers of the CCP. Section 6 (b) of
PD 15 could not validly grant this power of
appointment to the members of the CCP board,
as they were not the head of the CCP.

Moreover, Section 6 (b and c) of PD 15 was found

to be unconstitutional, because it ran afoul of the
Presidents power of control under Section 17 of
Article VII of the Constitution.[11] It was noted
that the CCP was an agency that fell under the
Executive Branch.
Under the Revised Administrative Code of 1987,
any agency not placed by law or order creating
them under any specific department fell under
the Office of the President.[12] Since the CCP did
not fall under the Legislative or the Judicial
Branch of government and was not an
independent constitutional or quasi-judicial body
or local government unit, then the CCP
necessarily fell under the Executive Branch and
should be subject to the Presidents control.
However, Section 6 (b and c) of PD 15, by
authorizing the trustees of the CCP board to fill its
vacancies, insulated the CCP from political
influence and pressure, specifically from the
President. This authority made the CCP a selfperpetuating entity, virtually outside the control
of the Chief Executive. Such public office or board
could not legally exist under the present
Constitution.
The legislature could not have validly enacted a
law that would put a government office in the
Executive Branch outside the control of the
President.
While the charter of the CCP vested it with
autonomy of policy and operation, this charter did
not free it from the Presidents control. As part of
the Executive Branch, the CCP could not be cut
off from that control in the guise of insulating the
latter from presidential influence.
NOTES:
Appointment Power of President
Under Section 16, Article VII of the 1987
Constitution, the President appoints three groups
of officers. The first group refers to the heads of
the Executive departments, ambassadors, other
public ministers and consuls, officers of the
armed forces from the rank of colonel or naval
captain, and other officers whose appointments
are vested in the President by the Constitution.
The second group refers to those whom the
President may be authorized by law to appoint.
The third group refers to all other officers of the

Government whose appointments

otherwise provided by law.

are

not

Under the same Section 16, there is a fourth

group
of
lower-ranked
officers
whose
appointments Congress may by law vest in the
heads of departments, agencies, commissions, or
boards.
The
present
case
involves
the
interpretation of Section 16, Article VII of the
1987
Constitution
with
respect
to
the
appointment of this fourth group of officers.
The President appoints the first group of officers
with the consent of the Commission on
Appointments. The President appoints the second
and third groups of officers without the consent of
the Commission on Appointments. The President
appoints the third group of officers if the law is
silent on who is the appointing power, or if the
law authorizing the head of a department,
agency, commission, or board to appoint is
declared unconstitutional. Thus, if Section 6(b)
and (c) of PD 15 is found unconstitutional, the
President shall appoint the trustees of the CCP
Board because the trustees fall under the third
group of officers.
Scope of Appointment Power of the Heads
of Departments, Agencies, Commissions or
Boards
The framers of the 1987 Constitution clearly
intended that Congress could by law vest the
appointment of lower-ranked officers in the heads
of departments, agencies, commissions, or
boards.
The
deliberations
of
the
1986
Constitutional Commission explain this intent
beyond any doubt.
The framers of the 1987 Constitution changed the
qualifying word inferior to the less disparaging
phrase lower in rank purely for style. However,
the clear intent remained that these inferior or
lower in rank officers are the subordinates of the
heads of departments, agencies, commissions, or
boards who are vested by law with the power to
appoint. The express language of the Constitution
and the clear intent of its framers point to only
one conclusion the officers whom the heads of
departments, agencies, commissions, or boards
may appoint must be of lower rank than those
vested by law with the power to appoint.
Congress may vest the authority to appoint
only in the heads of the named offices

Further, Section 16, Article VII of the 1987

Constitution authorizes Congress to vest in the
heads of departments, agencies, commissions, or
boards the power to appoint lower-ranked
officers. xxx

Secretary to the lowliest clerk. This constitutional

power of the President is self-executing and does
not require any implementing law. Congress
cannot limit or curtail the Presidents power of
control over the Executive branch.

In a department in the Executive branch, the

head is the Secretary. The law may not authorize
the
Undersecretary,
acting
as
such
Undersecretary, to appoint lower-ranked officers
in the Executive department. In an agency, the
power is vested in the head of the agency for it
would be preposterous to vest it in the agency
itself. In a commission, the head is the
chairperson of the commission. In a board, the
head is also the chairperson of the board. In the
last three situations, the law may not also
authorize officers other than the heads of the
agency, commission, or board to appoint lowerranked officers.

xxx

The grant of the power to appoint to the heads of

agencies, commissions, or boards is a matter of
legislative grace. Congress has the discretion to
grant to, or withhold from, the heads of agencies,
commissions, or boards the power to appoint
lower-ranked officers. If it so grants, Congress
may impose certain conditions for the exercise of
such legislative delegation, like requiring the
recommendation of subordinate officers or the
concurrence of the other members of the
commission or board.
This is in contrast to the Presidents power to
appoint which is a self-executing power vested by
the Constitution itself and thus not subject to
legislative limitations or conditions. The power to
appoint conferred directly by the Constitution on
the Supreme Court en banc and on the
Constitutional Commissions is also self-executing
and not subject to legislative limitations or
conditions.
The Constitution authorizes Congress to vest the
power to appoint lower-ranked officers specifically
in the heads of the specified offices, and in no
other person. The word heads refers to the
chairpersons of the commissions or boards and
not to their members xxx.
Presidents Power of Control
The presidential power of control over the
Executive branch of government extends to all
executive employees from the Department

The CCP does not fall under the Legislative or

Judicial branches of government. The CCP is also
not one of the independent constitutional bodies.
Neither is the CCP a quasi-judicial body nor a
local government unit. Thus, the CCP must fall
under the Executive branch. Under the Revised
Administrative Code of 1987, any agency not
placed by law or order creating them under any
specific department falls under the Office of the
President.
Since the President exercises control over all the
executive departments, bureaus, and offices, the
President necessarily exercises control over the
CCP which is an office in the Executive branch. In
mandating that the President shall have control
of all executive x x x offices, Section 17, Article
VII of the 1987 Constitution does not exempt any
executive office one performing executive
functions
outside
of
the
independent
constitutional bodies from the Presidents
power of control. There is no dispute that the CCP
performs executive, and not legislative, judicial,
or quasi-judicial functions.
The Presidents power of control applies to the
acts or decisions of all officers in the Executive
branch. This is true whether such officers are
appointed by the President or by heads of
departments, agencies, commissions, or boards.
The power of control means the power to revise
or reverse the acts or decisions of a subordinate
officer involving the exercise of discretion.
In short, the President sits at the apex of the
Executive branch, and exercises control of all the
executive departments, bureaus, and offices.
There can be no instance under the Constitution
where an officer of the Executive branch is
outside the control of the President. The
Executive branch is unitary since there is only
one President vested with executive power
exercising control over the entire Executive
branch. Any office in the Executive branch that is
not under the control of the President is a lost
command whose existence is without any legal or
constitutional basis.

The Legislature cannot validly enact a law that

puts a government office in the Executive branch
outside the control of the President in the guise of
insulating that office from politics or making it
independent. If the office is part of the Executive
branch, it must remain subject to the control of
the President. Otherwise, the Legislature can
deprive the President of his constitutional power
of control over all the executive x x x offices. If
the Legislature can do this with the Executive
branch, then the Legislature can also deal a
similar blow to the Judicial branch by enacting a
law putting decisions of certain lower courts
beyond the review power of the Supreme Court.
This will destroy the system of checks and
balances
finely
structured
in
the
1987
Constitution among the Executive, Legislative,
and Judicial branches.
Of course, the Presidents power of control does
not extend to quasi-judicial bodies whose
proceedings and decisions are judicial in nature
and subject to judicial review, even as such quasijudicial bodies may be under the administrative
supervision of the President. It also does not
extend to local government units, which are
merely under the general supervision of the
President.

PIMENTEL vs. ERMITA

FACTS:
This
is
a
petition
to
declare
unconstitutional the appointments issued by
President Gloria Macapagal-Arroyo (President
Arroyo) through Executive Secretary Eduardo R.
Ermita (Secretary Ermita) to Florencio B. Abad,
Avelino J. Cruz, Jr., Michael T. Defensor, Joseph H.
Durano, Raul M. Gonzalez, Alberto G. Romulo,
Rene C. Villa, and Arthur C. Yap (respondents)
as acting secretaries of their respective
departments.
On August 2004, Arroyo issued appointments to
respondents as acting secretaries of their
respective departments.
Congress adjourned on 22 September 2004. On
23 September 2004, President Arroyo issued ad
interim
appointments
to
respondents
as
secretaries of the departments to which they
were previously appointed in an acting capacity.

ISSUE: Is President Arroyos appointment of

respondents as acting secretaries without
the
consent
of
the
Commission
on
Appointments while Congress is in session,
constitutional?
HELD: Yes. The power to appoint is essentially
executive in nature, and the legislature may not
interfere with the exercise of this executive power
except in those instances when the Constitution
expressly allows it to interfere. Limitations on the
executive power to appoint are construed strictly
against the legislature. The scope of the
legislatures interference in the executives power
to appoint is limited to the power to prescribe the
qualifications to an appointive office. Congress
cannot appoint a person to an office in the guise
of prescribing qualifications to that office. Neither
may Congress impose on the President the duty
to appoint any particular person to an office.
However,
even
if
the
Commission
on
Appointments is composed of members of
Congress, the exercise of its powers is executive
and not legislative. The Commission on
Appointments does not legislate when it exercises
its power to give or withhold consent to
presidential appointments.
Petitioners contend that President Arroyo should
not have appointed respondents as acting
secretaries because in case of a vacancy in the
Office of a Secretary, it is only an Undersecretary
who can be designated as Acting Secretary.
The essence of an appointment in an acting
capacity is its temporary nature. It is a stop-gap
measure intended to fill an office for a limited
time until the appointment of a permanent
occupant to the office. In case of vacancy in an
office occupied by an alter ego of the President,
such as the office of a department secretary, the
President must necessarily appoint an alter ego
of her choice as acting secretary before the
permanent appointee of her choice could assume
office.
Congress, through a law, cannot impose on the
President the obligation to appoint automatically
the undersecretary as her temporary alter ego.
An alter ego, whether temporary or permanent,
holds a position of great trust and confidence.
Congress,
in
the
guise
of
prescribing
qualifications to an office, cannot impose on the
President who her alter ego should be.

The office of a department secretary may become

vacant while Congress is in session. Since a
department secretary is the alter ego of the
President, the acting appointee to the office must
necessarily have the Presidents confidence.
Thus, by the very nature of the office of a
department secretary, the President must appoint
in an acting capacity a person of her choice even
while Congress is in session. That person may or
may not be the permanent appointee, but
practical reasons may make it expedient that the
acting appointee will also be the permanent
appointee.
The law expressly allows the President to make
such acting appointment. Section 17, Chapter 5,
Title I, Book III of EO 292 states that [t]he
President may temporarily designate an officer
already in the government service or any other
competent person to perform the functions of an
office in the executive branch. Thus, the
President may even appoint in an acting capacity
a person not yet in the government service, as
long as the President deems that person
competent.
Finally, petitioners claim that the issuance of
appointments in an acting capacity is susceptible
to abuse. Petitioners fail to consider that acting
appointments cannot exceed one year as
expressly provided in Section 17(3), Chapter 5,
Title I, Book III of EO 292. The law has
incorporated this safeguard to prevent abuses,
like the use of acting appointments as a way to
circumvent confirmation by the Commission on
Appointments.
Ad-interim appointments must be distinguished
from appointments in an acting capacity. Both of
them are effective upon acceptance. But adinterim appointments are extended only during a
recess of Congress, whereas acting appointments
may be extended any time there is a vacancy.
Moreover ad-interim appointments are submitted
to the Commission on Appointments for
confirmation or rejection; acting appointments
are not submitted to the Commission on
Appointments. Acting appointments are a way of
temporarily filling important offices but, if
abused, they can also be a way of circumventing
the need for confirmation by the Commission on
Appointments.
However, we find no abuse in the present case.
The absence of abuse is readily apparent from

President Arroyos issuance of ad interim

appointments to respondents immediately upon
the recess of Congress, way before the lapse of
one year.
DE CASTRO vs. JBC
FACTS: The legal debate takes its root from the
anticipated compulsory retirement of the
incumbent Chief Justice. Under the Constitution,
the President is mandated to fill any vacancy in
the Supreme Court within ninety (90) days from
its occurrence from the list of at least three
nominees prepared by the Judicial and Bar
Council (JBC) for every vacancy.
In view of this forthcoming vacancy, the JBC, on
January 18, 2010, meeting en banc, resolved to
commence
the
nomination
process
and
subsequently
announce
the
opening
for
application or recommendation for the position of
Chief Justice of the Supreme Court.
Associate Justice Antonio T. Carpio, Associate
Justice Renato C. Corona, Associate Justice
Conchita Carpio Morales, Associate Justice
Presbitero J. Velasco, Jr., and Associate Justice
Antonio Eduardo B. Nachura were automatically
considered for the position. Others either applied
or were nominated.
The JBC proceeded to the next step by publishing
the names of the candidates in the Philippine
Daily Inquirer and The Philippine Star. In the said
publications, the public was asked to file their
sworn complaints, written report or opposition, if
any, against the candidates not later than
February 22. 2010.
The looming vacancy in the highest court of the
land became an instant headline. The issue as to
whether the incumbent president may appoint
the next chief justice despite the constitutional
ban on appointments two months before the
election elicited conflicting opinions and triggered
an intense debate among legal luminaries. Wary
of the possibility of having judiciary completely
beholden to the incumbent, the public had never
been more vigilant.
Prompted by prudence, the JBC opted to defer its
decision as to whom to send its list of nominees.
From such prudence, however, sprawled several
petitions to the Supreme Court asking the JBC
either to submit its list of nominees to the current

president or to prohibit the Council from

continuing with the selection process and
transmitting the names of the candidate to the
ultimate appointing power.

president to fill up any vacancy therein within

90 days from its occurrence. The use of the
word shall means that such command is
imperative or mandatory. The implication is
that the prohibition in Art VII, Section 15 would
not apply to appointments made in pursuance
of such mandate. The non-applicability of the
prohibition was confirmed by Justice Regalado
to the JBC itself when it met on March 9, 1998
to discuss the question raised by some sectors
about
the
constitutionality
of
xxx
appointments to the Court of Appeals in light
of the forthcoming presidential elections.

Dealing essentially with the same legal questions,

the petitions were consolidated. The JBC and the
Office of the Solicitor General (OSG) were
directed by the Supreme Court to comment.
ISSUE/S:
1) In view of Article VII, Section 15, which
prohibits
the
president
from
making
appointments two months before the
election, except temporary appointments to
executive
positions
when
continued
vacancies therein will endanger public
service or public safety, may the incumbent
president make appointments to the
judiciary, including that for the position of
Chief Justice upon the retirement of
incumbent Chief Justice Reynato Puno,
pursuant to Article VIII Section 4(1) of the
constitution?
HELD: 1) Yes. Appointments in the judiciary is not
covered by the appointment ban during elections.

3.

The Rationale of Art VII, Section 15 and the

Creation of the Judicial and Bar Council. Citing
Valenzuela, the court pointed out that Article
VII, Section 15 of the 1987 Constitution has a
broader scope than the ruling in Aytona vs
Castillo. It contemplates not only midnight
appointments those made obviously for
partisan reasons as shown by their number
and the time of their making but also
appointments presumed made for the purpose
of influencing the outcome of the Presidential
election.

4.

The argument that there will still be 45 days left,

of the 90 days provided in the Constitution, for
the succeeding president, upon assumption of
office, to appoint the next chief justice ignores
the need to apply Section 4(1) to every
situation of a vacancy in the Supreme Court.

5.

Affirming Valenzuela will undermine the intent of

the Constitution of ensuring the independence
of the judicial department from the executive
and legislative departments Should the next
chief justice be appointed by the next
president, whoever the latter might appoint
might become beholden to him thereby
compromising judicial independence. The
same risk, the ponencia explains, is not
present should the incumbent president
appoint the next chief justice. This is precisely
because the incumbent presidents term would
have ended by the 30th of June.

6.

Contention that there is no need for the President

to appoint the next Chief Justice because the
Judiciary Act of 1948 allows the assumption of
an acting Chief Justice is contrary to the intent
of the framers of the present Constitution. The
Court further pointed out the Judiciary Act of
1948 was promulgated under a different

2)
May the JBC be compelled to submit
the list of nominees to the President?
HELD: 2) No. Despite the clear existence of a
duty on the part of the JBC, as enjoined in the
Constitution, the element of neglect to perform
such duty was neither present at the time of the
filing nor at the time of the resolution of the
petitions.
1.

Constitution was meticulously drafted, styled, and

arranged to give effect to the principle of
separation of powers. Placed under Article VII
which is devoted to the Executive branch, the
Court argued that the prohibition on midnight
appointments was intended to apply to
executive appointments only. The fact that
prohibition was not mentioned in Article VIII of
the constitution reveals that it was not meant
to cover appointments to the Judiciary.

2.

Intent of the framers as can be gleaned from the

records. The deliberations of the Constitutional
Commission, as quoted in Valenzuela, do not
support the Courts ruling therein. The records
disclosed the express intent of the framers to
enshrine in the Constitution a command to the

context. At the time of its enactment, the

appointment of the Chief Justice was still
subject to the confirmation of the Commission
on Appointments. The provision allowing an
acting Chief Justice to take over responds to
situations
where,
due
to
delays
in
confirmation, the new chief justice has not yet
been appointed.
7.

In order for mandamus to lie, the following

requisites must be present: (a) the plaintiff has
a clear legal right to the act demanded; (b) it
must be the duty of the defendant to perform
the act, because it is mandated by law; (c) the
defendant unlawfully neglects the performance
of the duty enjoined by law; (d) the act to be
performed is ministerial, not discretionary; and
(e) there is no appeal or any other plain,
speedy and adequate remedy in the ordinary
course of law.
DISSENT

1. Constitutional draftsmanship style is the weakest

aid in arriving at a constitutional construction.
Constitutional draftsmanship style is the
weakest aid in arriving at a constitutional
construction. (Anak Mindanao Party-List Group
vs. Executive Secretary) While it can be
conceded that the allocation of the articles in
the Constitution was consciously adopted in
recognition of the principle of separation of
powers, Carpio-Morales argued that the
equation does not end there. The present
constitution is likewise a system of checks
and balances. That the power of judicial
appointment was lodged in the President is a
recognized measure of limitation on the
power of the judiciary, which measure,
however, is counterbalanced by the election
ban due to the need to insulate the judiciary
from the political climate of presidential
elections.
2. The establishment of the JBC is not sufficient to
curtail the evils of midnight appointments in
the judiciary. The comprehensive ban on
midnight appointments was drafted precisely
because the JBC is not enough to safeguard
or insulate judicial appointments from
politicization. Carpio-Morales concluded that
the second ratiocination in the ponencia could
thus not remove an added constitutional
safeguard by pretending to have examined
and concluded that the establishment of the

JBC had eliminated all encompassing forms of

political maneuverings during elections.
3. All rules of statutory construction revolt against
the interpretation arrived at by the ponencia.
All rules of statutory construction revolt
against the interpretation arrived at by the
ponencia. The general rule as provided in
Article VII, Section 15 is clear. The exception is
likewise clearly stated in the same provision.
There is no clear circumstance that would
indicate that the enumeration in the
exception was not intended to be exclusive.
The fact that Section 15 was couched in
negative language reinforces the exclusivity
of the exception.
4. The 90-day period to fill the vacancy in the
Supreme Court is suspended during the ban
on midnight appointments.The ban on
midnight appointments makes it legally
impossible for the President to comply with
the mandate of Article VIII, Section 4(1)
thereby releasing her from the obligation.
The 90-day period to fill the vacancy in the
Supreme Court is deemed suspended during
the period of the ban which takes effect only
once in 6 years.
5. The Supreme Court can function effectively
during the midnight appointments ban
without an appointed Chief Justice. The
ponencias interpretation of the proviso Any
vacancy shall be filled within ninety days from
the occurrence thereof as pertaining only to
the period within which the President should
appoint is absurd as it takes the application
and nomination stages in isolation from the
whole appointment process. The filling of the
vacancy only involves the President, and the
JBC was not considered when the period was
increased from 60 days to 90 days. The sense
of the Concom is the exact opposite. The flaw
in the reasoning is made more evident when
the vacancy occurs by virtue of death of a
member of the Court. In that instance, the
JBC could never anticipate the vacancy, and
could never submit a list to the President
before the 90-day period. It is ironic for the
ponencia to recognize that the President may
need as much as 90 days of reflection in
appointing a member of the Court, and yet
abhor the idea of an acting Chief Justice in the
interregnum as provided for by law, confirmed
by tradition, and settled by jurisprudence to
be an internal matter.

GUDANI vs. SENGA

FACTS: The Senate invited Gen. Gudani and Lt.
Col. Balutan to clarify allegations of massive
cheating in the 2004 elections and the surfacing
of the Hello Garci controversy. President Arroyo
issued E.O 164 enjoining officials of the executive
department including the military establishment
from appearing in any legislative inquiry without
her approval. However, the two concluded their
testimonies before the Senate in spite the fact
that a directive has been given to them. As a
result, both of them were relieved of their
assignments for allegedly violating the Articles of
War and the time honored principle of the Chain
of Command.
May the President prevent a member of the
armed forces from testifying before a
legislative inquiry?
Yes. Soldiers are constitutionally obliged to obey
the President they may dislike or distrust. The
ability of the President to prevent military officials
from testifying before Congress DOES NOT TURN
ON EXECUTIVE PRIVILEGE BUT ON THE CHIEF
EXECUTIVES POWER AS COMMANDER IN CHIEF
to control the actions and speech of the armed
forces. Under the Commander in Chief Clause
(Art. XVl, section 5), the President has absolute
authority over the persons and actions of the
members of the armed forces. Such authority
includes the ability of the President to restrict
travel, movement and speech of military officers,
activities which may otherwise be sanctioned
under civilian law. (Gudani vs. Senga, GR No.
170165, August 15, 2006)
The President can prevent a member of the
armed forces from testifying before a
legislative inquiry. Is this rule absolute?
ANSWER: No. The rule is not absolute. In as much
as it is ill advised for Congress to interfere with
the Presidents power as Commander-in-Chief, it
is similarly detrimental for the President to unduly
interfere with Congress right to conduct
legislative inquiries. xxx Courts are empowered,
under the principle of JUDICIAL REVIEW, to
arbitrate disputes between the executive and
legislative branches of the government on the
proper parameters of power. By this, if the court
so rule, the duty falls on the shoulders of the
President, as commander-in-chief, to authorize
the appearance of the military officers before

Congress. Even if the President has earlier

disregarded with notion of officers appearing
before the legislature to testify, the Chief
Executive is nonetheless obliged to comply with
the final orders of the court. (Gudani vs. Senga,
GR No. 170165, August 15, 2006)
RATIONALE: Our ruling that the President could,
as a general rule, require military officers to seek
presidential approval before appearing before
Congress is based foremost on the notion that a
contrary rule unduly diminishes the prerogatives
of the President as commander-in-chief. Congress
holds significant control over the armed forces in
matters such as budget appropriations and the
approval of higher-rank promotions, yet it is on
the President that the Constitution vests the title
as commander-in-chief and all the prerogatives
and functions appertaining to the position. Again,
the exigencies of military discipline and the chain
of command mandate that the Presidents ability
to control the individual members of the armed
forces be accorded the utmost respect. Where a
military officer is torn between obeying the
President and obeying the Senate, the Court will
without hesitation affirm that the officer has to
choose the President. After all, the Constitution
prescribes that it is the President, and not the
Senate, who is the commander-in-chief of the
armed forces.
Remedy is judicial relief
At the same time, the refusal of the President to
allow members of the military to appear before
Congress is still subject to judicial relief. The
Constitution itself recognizes as one of the
legislatures functions is the conduct of inquiries
in aid of legislation. Inasmuch as it is ill-advised
for Congress to interfere with the Presidents
power as commander-in-chief, it is similarly
detrimental for the President to unduly interfere
with Congresss right to conduct legislative
inquiries. The impasse did not come to pass in
this petition, since petitioners testified anyway
despite the presidential prohibition. Yet the Court
is aware that with its pronouncement today that
the President has the right to require prior
consent from members of the armed forces, the
clash may soon loom or actualize.
We believe and hold that our constitutional and
legal order sanctions a modality by which
members of the military may be compelled to
attend legislative inquiries even if the President

desires otherwise, a modality which does not

offend the Chief Executives prerogatives as
commander-in-chief. The remedy lies with the
courts.
The fact that the executive branch is an equal,
coordinate branch of government to the
legislative creates a wrinkle to any basic rule that
persons summoned to testify before Congress
must do so. There is considerable interplay
between the legislative and executive branches,
informed by due deference and respect as to
their various constitutional functions. Reciprocal
courtesy idealizes this relationship; hence, it is
only as a last resort that one branch seeks to
compel the other to a particular mode of
behavior. The judiciary, the third coordinate
branch of government, does not enjoy a similar
dynamic with either the legislative or executive
branches. Whatever weakness inheres on judicial
power due to its inability to originate national
policies and legislation, such is balanced by the
fact that it is the branch empowered by the
Constitution to compel obeisance to its rulings by
the other branches of government.
DAVID vs. ERMITA
FACTS: 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. And 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.
GMA declared PP 1017 and is to be implemented
by GO 5. The said law was aimed to suppress
lawlessness and the connivance of extremists to
bring down the government. Pursuant to such PP,
GMA cancelled all plans to celebrate EDSA I and
at the same time revoked all permits issued for
rallies and other public organization/meeting.
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 police arrested (without warrant)
petitioner Randolf S. David, a professor at the
University of the Philippines and newspaper
columnist. Also arrested was his companion,
Ronald Llamas, president of party-list Akbayan.
Operatives of the Criminal Investigation and
Detection Group (CIDG) of the PNP, on the basis
of PP 1017 and G.O. No. 5, raided the Daily
Tribune offices in Manila. 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. Congressman
Crispin Beltran, representing the Anakpawis Party
and Chairman of Kilusang Mayo Uno (KMU), was
arrested on the ground of a warrant for his arrest
dated 1985. 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. Retired Major General Ramon
Montao, former head of the Philippine
Constabulary, was Attempts were made to arrest
Anak pawis 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. In March, GMA issued PP 1021
w/c declared that the state of national emergency
ceased to exist. David and some opposition
Congressmen
averred
that
PP1017
is
unconstitutional for it has no factual basis and it
cannot be validly declared by the president for
such power is reposed in Congress. Also such
declaration is actually a declaration of martial
law. Olivares-Cacho also averred that the
emergency contemplated in the Constitution are
those of natural calamities and that such is an
over breadth. Petitioners claim that PP 1017 is an
over breadth because it encroaches upon
protected and unprotected rights. The Solicitor
General argued that the issue has become moot
and academic by reason of the lifting of PP 1017
by virtue of the declaration of PP 1021. The
Solicitor General averred that PP 1017 is within
the presidents calling out power, take care power
and take over power.

ISSUE: Whether
constitutional

PP 1017 and GO 5 is

RULING: 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 1017's 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 AFP's authority in carrying out
this portion of G.O. No. 5.
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 people's liberty.
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.