Republic of the Philippines Commenting on the motion for reconsideration, the Solicitor General argued that the motion
Solicitor General argued that the motion for
SUPREME COURT
Manila
EN BANC
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR., IRENE M.
ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E.
MARCOS, NICANOR YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ, MIRIAM
DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary
of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner,
Secretary of National Defense and Chief of Staff, respectively, respondents.
RESOLUTION
EN BANC:
In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven (7),
dismissed the petition, after finding that the President did not act arbitrarily or with grave abuse
of discretion in determining that the return of former President Marcos and his family at the
present time and under present circumstances pose a threat to national interest and welfare and
in prohibiting their return to the Philippines. On September 28, 1989, former President Marcos
died in Honolulu, Hawaii. In a statement, President Aquino said:
In the interest of the safety of those who will take the death of Mr. Marcos in
widely and passionately conflicting ways, and for the tranquility of the state
and order of society, the remains of Ferdinand E. Marcos will not be allowed
to be brought to our country until such time as the government, be it under
this administration or the succeeding one, shall otherwise decide. [Motion
for Reconsideration, p. 1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the following
major arguments:
1. to bar former President Marcos and his family from returning to the Philippines is to deny them
not only the inherent right of citizens to return to their country of birth but also the protection of
the Constitution and all of the rights guaranteed to Filipinos under the Constitution;
2. the President has no power to bar a Filipino from his own country; if she has, she had
exercised it arbitrarily; and
3. there is no basis for barring the return of the family of former President Marcos. Thus,
petitioners prayed that the Court reconsider its decision, order respondents to issue the
necessary travel documents to enable Mrs. Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene
M. Araneta, Imee M. Manotoc, Tommy Manotoc and Gregorio Araneta to return to the
Philippines, and enjoin respondents from implementing President Aquino's decision to bar the
return of the remains of Mr. Marcos, and the other petitioners, to the Philippines.
reconsideration is moot and academic as to the deceased Mr. Marcos. Moreover, he asserts that
"the 'formal' rights being invoked by the Marcoses under the label 'right to return', including the
label 'return of Marcos' remains, is in reality or substance a 'right' to destabilize the country, a
'right' to hide the Marcoses' incessant shadowy orchestrated efforts at destabilization."
[Comment, p. 29.] Thus, he prays that the Motion for Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for reconsideration, the burden is upon the
movants, petitioner herein, to show that there are compelling reasons to reconsider the decision
of the Court.
2. After a thorough consideration of the matters raised in the motion for reconsideration, the
Court is of the view that no compelling reasons have been established by petitioners to warrant
a reconsideration of the Court's decision.
The death of Mr. Marcos, although it may be viewed as a supervening event, has not changed
the factual scenario under which the Court's decision was rendered. The threats to the
government, to which the return of the Marcoses has been viewed to provide a catalytic effect,
have not been shown to have ceased. On the contrary, instead of erasing fears as to the
destabilization that will be caused by the return of the Marcoses, Mrs. Marcos reinforced the
basis for the decision to bar their return when she called President Aquino "illegal," claiming that
it is Mr. Marcos, not Mrs. Aquino, who is the "legal" President of the Philippines, and declared
that the matter "should be brought to all the courts of the world." [Comment, p. 1; Philippine Star,
October 4, 1989.]
3. Contrary to petitioners' view, it cannot be denied that the President, upon whom executive
power is vested, has unstated residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties under the Constitution. The
powers of the President are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding
the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers
of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a
limitation of specific power of the President, particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of executive power.
That the President has powers other than those expressly stated in the Constitution is nothing
new. This is recognized under the U.S. Constitution from which we have patterned the
distribution of governmental powers among three (3) separate branches.
Article II, [section] 1, provides that "The Executive Power shall be vested in
a President of the United States of America." In Alexander Hamilton's widely
accepted view, this statement cannot be read as mere shorthand for the
specific executive authorizations that follow it in [sections] 2 and 3. Hamilton
stressed the difference between the sweeping language of article II, section
1, and the conditional language of article I, [section] 1: "All legislative
Powers herein granted shall be vested in a Congress of the United States . .
." Hamilton submitted that "[t]he [article III enumeration [in sections 2 and 31
ought therefore to be considered, as intended merely to specify the principal
articles implied in the definition of execution power; leaving the rest to flow
from the general grant of that power, interpreted in confomity with other
parts of the Constitution...
 In Myers v. United States, the Supreme Court accepted Hamilton's
proposition, concluding that the federal executive, unlike the Congress,
could exercise power from sources not enumerated, so long as not
forbidden by the constitutional text: the executive power was given in
general terms, strengthened by specific terms where emphasis was
regarded as appropriate, and was limited by direct expressions where
limitation was needed. . ." The language of Chief Justice Taft in Myers
makes clear that the constitutional concept of inherent power is not a
synonym for power without limit; rather, the concept suggests only that not
all powers granted in the Constitution are themselves exhausted by internal
enumeration, so that, within a sphere properly regarded as one of
"executive' power, authority is implied unless there or elsewhere expressly
limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159 (1978).]

And neither can we subscribe to the view that a recognition of the President's implied or residual
powers is tantamount to setting the stage for another dictatorship. Despite petitioners' strained
analogy, the residual powers of the President under the Constitution should not be confused with
the power of the President under the 1973 Constitution to legislate pursuant to Amendment No.
6 which provides:

Whenever in the judgment of the President (Prime Minister), there exists a

grave emergency or a threat or imminence thereof, or whenever
the interim Batasang Pambansa or the regular National Assembly fails or is
unable to act adequately on any matter for any reason that in his judgment
requires immediate action, he may, in order to meet the exigency, issue the
necessary decrees, orders, or letters of instruction, which shall form part of
the law of the land,

There is no similarity between the residual powers of the President under the 1987 Constitution
and the power of the President under the 1973 Constitution pursuant to Amendment No. 6. First
of all, Amendment No. 6 refers to an express grant of power. It is not implied. Then, Amendment
No. 6 refers to a grant to the President of the specific power of legislation.

4. Among the duties of the President under the Constitution, in compliance with his (or her) oath
of office, is to protect and promote the interest and welfare of the people. Her decision to bar the
return of the Marcoses and subsequently, the remains of Mr. Marcos at the present time and
under present circumstances is in compliance with this bounden duty. In the absence of a clear
showing that she had acted with arbitrariness or with grave abuse of discretion in arriving at this
decision, the Court will not enjoin the implementation of this decision.

ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of merit."
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 180643 September 4, 2008
ROMULO L. NERI, petitioner,
vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND
INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE
COMMITTEE ON NATIONAL DEFENSE AND SECURITY, respondents.
RESOLUTION
LEONARDO-DE CASTRO, J.:
Executive privilege is not a personal privilege, but one that adheres to the Office of the
President. It exists to protect public interest, not to benefit a particular public official. Its purpose,
among others, is to assure that the nation will receive the benefit of candid, objective and
untrammeled communication and exchange of information between the President and his/her
advisers in the process of shaping or forming policies and arriving at decisions in the exercise of
the functions of the Presidency under the Constitution. The confidentiality of the Presidents
conversations and correspondence is not unique. It is akin to the confidentiality of judicial
deliberations. It possesses the same value as the right to privacy of all citizens and more,
because it is dictated by public interest and the constitutionally ordained separation of
governmental powers.
In these proceedings, this Court has been called upon to exercise its power of review and
arbitrate a hotly, even acrimoniously, debated dispute between the Courts co-equal branches of
government. In this task, this Court should neither curb the legitimate powers of any of the co-
equal and coordinate branches of government nor allow any of them to overstep the boundaries
set for it by our Constitution. The competing interests in the case at bar are the claim of
executive privilege by the President, on the one hand, and the respondent Senate Committees
assertion of their power to conduct legislative inquiries, on the other. The particular facts and
circumstances of the present case, stripped of the politically and emotionally charged rhetoric
from both sides and viewed in the light of settled constitutional and legal doctrines, plainly lead
to the conclusion that the claim of executive privilege must be upheld.
Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the
"Decision"), granting the petition for certiorari filed by petitioner Romulo L. Neri against the
respondent Senate Committees on Accountability of Public Officers and Investigations, 1 Trade
and Commerce,2 and National Defense and Security (collectively the "respondent
Committees").3
A brief review of the facts is imperative.
On September 26, 2007, petitioner appeared before respondent Committees and testified for
about eleven (11) hours on matters concerning the National Broadband Project (the "NBN
Project"), a project awarded by the Department of Transportation and Communications
("DOTC") to Zhong Xing Telecommunications Equipment ("ZTE"). Petitioner disclosed that then
Commission on Elections ("COMELEC") Chairman Benjamin Abalos offered him P200 Million in
exchange for his approval of the NBN Project. He further narrated that he informed President
Gloria Macapagal Arroyo ("President Arroyo") of the bribery attempt and that she instructed him
not to accept the bribe. However, when probed further on President Arroyo and petitioners
discussions relating to the NBN Project, petitioner refused to answer, invoking "executive
privilege." To be specific, petitioner refused to answer questions on: (a) whether or not President
Arroyo followed up the NBN Project,4 (b) whether or not she directed him to prioritize it, 5 and (c)
whether or not she directed him to approve it.6
Respondent Committees persisted in knowing petitioners answers to these three questions by
requiring him to appear and testify once more on November 20, 2007. On November 15, 2007,
Executive Secretary Eduardo R. Ermita wrote to respondent Committees and requested them to
dispense with petitioners testimony on the ground of executive privilege.7 The letter of Executive
Secretary Ermita pertinently stated:
Following the ruling in Senate v. Ermita, the foregoing questions fall under
conversations and correspondence between the President and public officials which
are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May
1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the confidentiality of
conversations of the President is necessary in the exercise of her executive and policy
decision making process. The expectation of a President to the confidentiality of her
conversations and correspondences, like the value which we accord deference for the
privacy of all citizens, is the necessity for protection of the public interest in candid,
objective, and even blunt or harsh opinions in Presidential decision-making.
Disclosure of conversations of the President will have a chilling effect on the
President, and will hamper her in the effective discharge of her duties and
responsibilities, if she is not protected by the confidentiality of her conversations.
The context in which executive privilege is being invoked is that the information sought
to be disclosed might impair our diplomatic as well as economic relations with the
Peoples Republic of China. Given the confidential nature in which these information
were conveyed to the President, he cannot provide the Committee any further details
of these conversations, without disclosing the very thing the privilege is designed to
protect.
In light of the above considerations, this Office is constrained to invoke the settled
doctrine of executive privilege as refined in Senate v. Ermita, and has advised
Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily interrogated on the subject in an
unprecedented 11-hour hearing, wherein he has answered all questions propounded
to him except the foregoing questions involving executive privilege, we therefore
request that his testimony on 20 November 2007 on the ZTE / NBN project be
dispensed with.
On November 20, 2007, petitioner did not appear before respondent Committees upon orders of
the President invoking executive privilege. On November 22, 2007, the respondent Committees
issued the show-cause letter requiring him to explain why he should not be cited in contempt. On
November 29, 2007, in petitioners reply to respondent Committees, he manifested that it was
not his intention to ignore the Senate hearing and that he thought the only remaining questions
were those he claimed to be covered by executive privilege. He also manifested his willingness
to appear and testify should there be new matters to be taken up. He just requested that he be
furnished "in advance as to what else" he "needs to clarify."
Respondent Committees found petitioners explanations unsatisfactory. Without responding to
his request for advance notice of the matters that he should still clarify, they issued the Order
dated January 30, 2008; In Re: P.S. Res. Nos. 127,129,136 & 144; and privilege speeches of
Senator Lacson and Santiago (all on the ZTE-NBN Project), citing petitioner in contempt of
respondent Committees and ordering his arrest and detention at the Office of the Senate
Sergeant-at-Arms until such time that he would appear and give his testimony.
On the same date, petitioner moved for the reconsideration of the above Order. 8 He insisted that
he had not shown "any contemptible conduct worthy of contempt and arrest." He emphasized
his willingness to testify on new matters, but respondent Committees did not respond to his
request for advance notice of questions. He also mentioned the petition for certiorari he
previously filed with this Court on December 7, 2007. According to him, this should restrain
respondent Committees from enforcing the order dated January 30, 2008 which declared him in
contempt and directed his arrest and detention.
Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for
TRO/Preliminary Injunction) on February 1, 2008. In the Courts Resolution dated February 4,
2008, the parties were required to observe the status quo prevailing prior to the Order dated
January 30, 2008.
On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the
communications elicited by the three (3) questions were covered by executive privilege;
and second, respondent Committees committed grave abuse of discretion in issuing the
contempt order. Anent the first ground, we considered the subject communications as falling
under the presidential communications privilege because (a) they related to a quintessential
and non-delegable power of the President, (b) they were received by a close advisor of the
President, and (c) respondent Committees failed to adequately show a compelling need that
would justify the limitation of the privilege and the unavailability of the information elsewhere by
an appropriate investigating authority. As to the second ground, we found that respondent
Committees committed grave abuse of discretion in issuing the contempt order because (a)
there was a valid claim of executive privilege, (b) their invitations to petitioner did not contain the
questions relevant to the inquiry, (c) there was a cloud of doubt as to the regularity of the
proceeding that led to their issuance of the contempt order, (d) they violated Section 21, Article
VI of the Constitution because their inquiry was not in accordance with the "duly published rules
of procedure," and (e) they issued the contempt order arbitrarily and precipitately.
On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored
on the following grounds:
I Court has the power and duty to annul the Senate Rules; seventh, the Senate is not a
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS NO DOUBT
THAT THE ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES
PURSUANT TO THE EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT
MERELY THEIR OVERSIGHT FUNCTIONS.
II
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE CAN BE NO
PRESUMPTION THAT THE INFORMATION WITHHELD IN THE INSTANT CASE IS
PRIVILEGED.
III
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS NO
FACTUAL OR LEGAL BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED
BY THE SUBJECT THREE (3) QUESTIONS ARE COVERED BY EXECUTIVE
PRIVILEGE, CONSIDERING THAT:
A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE
PRIVILEGE IS CLAIMED CONSTITUTES STATE SECRETS.
B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE
DECISION IS APPLIED, THERE IS NO SHOWING THAT THE ELEMENTS OF
PRESIDENTIAL COMMUNICATIONS PRIVILEGE ARE PRESENT.
C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLING
NEED TO JUSTIFY THE DISCLOSURE OF THE INFORMATION SOUGHT.
D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE
WOULD SERIOUSLY IMPAIR THE RESPONDENTS PERFORMANCE OF THEIR
PRIMARY FUNCTION TO ENACT LAWS.
E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION,
AND THE CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND
TRANSPARENCY OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE.
IV
CONTRARY TO THIS HONORABLE COURTS DECISION, RESPONDENTS DID
NOT COMMIT GRAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED
CONTEMPT ORDER, CONSIDERING THAT:
A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE
INSTANT CASE.
B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID
DOWN IN SENATE V. ERMITA.
C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE
WITH THEIR INTERNAL RULES.
D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE
VI, SECTION 21 OF THE CONSTITUTION REQUIRING THAT ITS RULES OF
PROCEDURE BE DULY PUBLISHED, AND WERE DENIED DUE PROCESS WHEN
THE COURT CONSIDERED THE OSGS INTERVENTION ON THIS ISSUE
WITHOUT GIVING RESPONDENTS THE OPPORTUNITY TO COMMENT.
E. RESPONDENTS ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY
OR PRECIPITATE.
In his Comment, petitioner charges respondent Committees with exaggerating and distorting the
Decision of this Court. He avers that there is nothing in it that prohibits respondent Committees
from investigating the NBN Project or asking him additional questions. According to petitioner,
the Court merely applied the rule on executive privilege to the facts of the case. He further
submits the following contentions: first, the assailed Decision did not reverse the presumption
against executive secrecy laid down in Senate v. Ermita; second, respondent Committees failed
to overcome the presumption of executive privilege because it appears that they could legislate
even without the communications elicited by the three (3) questions, and they admitted that they
could dispense with petitioners testimony if certain NEDA documents would be given to
them; third, the requirement of specificity applies only to the privilege for State, military and
diplomatic secrets, not to the necessarily broad and all-encompassing presidential
communications privilege; fourth, there is no right to pry into the Presidents thought processes
or exploratory exchanges; fifth, petitioner is not covering up or hiding anything illegal; sixth, the
continuing body, thus the failure of the present Senate to publish its Rules of Procedure
Governing Inquiries in Aid of Legislation (Rules) has a vitiating effect on them; eighth, the
requirement for a witness to be furnished advance copy of questions comports with due process
and the constitutional mandate that the rights of witnesses be respected; and ninth, neither
petitioner nor respondent has the final say on the matter of executive privilege, only the Court.
For its part, the Office of the Solicitor General maintains that: (1) there is no categorical
pronouncement from the Court that the assailed Orders were issued by respondent Committees
pursuant to their oversight function; hence, there is no reason for them "to make much" of the
distinction between Sections 21 and 22, Article VI of the Constitution; (2) presidential
communications enjoy a presumptive privilege against disclosure as earlier held in Almonte v.
Vasquez9 and Chavez v. Public Estates Authority (PEA)10; (3) the communications elicited by the
three (3) questions are covered by executive privilege, because all the elements of the
presidential communications privilege are present; (4) the subpoena ad testificandum issued by
respondent Committees to petitioner is fatally defective under existing law and jurisprudence; (5)
the failure of the present Senate to publish its Rules renders the same void; and (6) respondent
Committees arbitrarily issued the contempt order.
Incidentally, respondent Committees objection to the Resolution dated March 18, 2008 (granting
the Office of the Solicitor Generals Motion for Leave to Intervene and to Admit Attached
Memorandum) only after the promulgation of the Decision in this case is foreclosed by its
untimeliness.
The core issues that arise from the foregoing respective contentions of the opposing parties are
as follows:
(1) whether or not there is a recognized presumptive presidential communications
privilege in our legal system;
(2) whether or not there is factual or legal basis to hold that the communications
elicited by the three (3) questions are covered by executive privilege;
(3) whether or not respondent Committees have shown that the communications
elicited by the three (3) questions are critical to the exercise of their functions; and
(4) whether or not respondent Committees committed grave abuse of discretion in
issuing the contempt order.
We shall discuss these issues seriatim.
I Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise:
There Is a Recognized Presumptive
Presidential Communications Privilege
Respondent Committees ardently argue that the Courts declaration that presidential
communications are presumptively privileged reverses the "presumption" laid down in Senate v.
Ermita11 that "inclines heavily against executive secrecy and in favor of disclosure." Respondent
Committees then claim that the Court erred in relying on the doctrine in Nixon.
Respondent Committees argue as if this were the first time the presumption in favor of
the presidential communications privilege is mentioned and adopted in our legal system.
That is far from the truth. The Court, in the earlier case of Almonte v. Vasquez,12 affirmed that
the presidential communications privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the Constitution. Even Senate v.
Ermita,13 the case relied upon by respondent Committees, reiterated this concept. There, the
Court enumerated the cases in which the claim of executive privilege was recognized, among
them Almonte v. Chavez, Chavez v. Presidential Commission on Good Government
(PCGG),14 and Chavez v. PEA.15 The Court articulated in these cases that "there are certain
types of information which the government may withhold from the public, 16" that there is a
"governmental privilege against public disclosure with respect to state secrets regarding military,
diplomatic and other national security matters";17 and that "the right to information does not
extend to matters recognized as privileged information under the separation of powers,
by which the Court meant Presidential conversations, correspondences, and discussions
in closed-door Cabinet meetings."18
Respondent Committees observation that this Courts Decision reversed the "presumption that
inclines heavily against executive secrecy and in favor of disclosure" arises from a piecemeal
interpretation of the said Decision. The Court has repeatedly held that in order to arrive at the
true intent and meaning of a decision, no specific portion thereof should be isolated and resorted
to, but the decision must be considered in its entirety.19
Note that the aforesaid presumption is made in the context of the circumstances obtaining
in Senate v. Ermita, which declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464,
Series of 2005. The pertinent portion of the decision in the said case reads:
From the above discussion on the meaning and scope of executive privilege, both in
the United States and in this jurisprudence, a clear principle emerges. Executive
privilege, whether asserted against Congress, the courts, or the public, is recognized
only in relation to certain types of information of a sensitive character. While executive
privilege is a constitutional concept, a claim thereof may be valid or not depending on
the ground invoked to justify it and the context in which it is made. Noticeably absent
is any recognition that executive officials are exempt from the duty to disclose
information by the mere fact of being executive officials. Indeed, the extraordinary
character of the exemptions indicates that the presumption inclines
heavily against executive secrecy and in favor of disclosure. (Emphasis and
underscoring supplied)
Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the
"exemption" being claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464,
solely by virtue of their positions in the Executive Branch. This means that when an executive
official, who is one of those mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be exempt
from disclosure, there can be no presumption of authorization to invoke executive privilege
given by the President to said executive official, such that the presumption in this situation
inclines heavily against executive secrecy and in favor of disclosure.
Section 2(b) in relation to Section 3 virtually provides that, once the head of office
determines that a certain information is privileged, such determination is presumed to
bear the Presidents authority and has the effect of prohibiting the official from
appearing before Congress, subject only to the express pronouncement of the
President that it is allowing the appearance of such official. These provisions thus
allow the President to authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional nature of the
privilege. Executive privilege, as already discussed, is recognized with respect to
information the confidential nature of which is crucial to the fulfillment of the unique
role and responsibilities of the executive branch, or in those instances where
exemption from disclosure is necessary to the discharge of highly important executive
responsibilities. The doctrine of executive privilege is thus premised on the fact that
certain information must, as a matter of necessity, be kept confidential in pursuit of
the public interest. The privilege being, by definition, an exemption from the obligation
to disclose information, in this case to Congress, the necessity must be of such high
degree as to outweigh the public interest in enforcing that obligation in a particular
case.
In light of this highly exceptional nature of the privilege, the Court finds it essential to
limit to the President the power to invoke the privilege. She may of course authorize
the Executive Secretary to invoke the privilege on her behalf, in which case the
Executive Secretary must state that the authority is "By order of the President", which
means that he personally consulted with her. The privilege being an extraordinary
power, it must be wielded only by the highest official in the executive hierarchy. In
other words, the President may not authorize her subordinates to exercise such
power. There is even less reason to uphold such authorization in the instant case
where the authorization is not explicit but by mere silence. Section 3, in relation to
Section 2(b), is further invalid on this score.
The constitutional infirmity found in the blanket authorization to invoke executive privilege
granted by the President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this
case.
In this case, it was the President herself, through Executive Secretary Ermita, who invoked
executive privilege on a specific matter involving an executive agreement between the
Philippines and China, which was the subject of the three (3) questions propounded to petitioner
Neri in the course of the Senate Committees investigation. Thus, the factual setting of this case
markedly differs from that passed upon in Senate v. Ermita.
Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to
the ruling in Senate v. Ermita,21 to wit:
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been used
even prior to the promulgation of the 1986 Constitution. Being of American origin, it is
best understood in light of how it has been defined and used in the legal literature of
the United States.
Schwart defines executive privilege as "the power of the Government to withhold
information from the public, the courts, and the Congress. Similarly, Rozell
defines it as "the right of the President and high-level executive branch officers to
withhold information from Congress, the courts, and ultimately the public." x x x In this
jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte
v. Vasquez. Almonte used the term in reference to the same privilege subject of
Nixon. It quoted the following portion of the Nixon decision which explains the basis for
the privilege:
"The expectation of a President to the confidentiality of his conversations and
correspondences, like the claim of confidentiality of judicial deliberations, for
example, he has all the values to which we accord deference for the privacy of all
citizens and, added to those values, is the necessity for protection of the public
interest in candid, objective, and even blunt or harsh opinions in Presidential decision-
making. A President and those who assist him must be free to explore alternatives in
the process of shaping policies and making decisions and to do so in a way many
would be unwilling to express except privately. These are the considerations
justifying a presumptive privilege for Presidential communications. The
privilege is fundamental to the operation of government and inextricably rooted
in the separation of powers under the Constitution x x x " (Emphasis and italics
supplied)
Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential
communication," which was recognized early on in Almonte v. Vasquez. To construe the
passage in Senate v. Ermita adverted to in the Motion for Reconsideration of respondent
Committees, referring to the non-existence of a "presumptive authorization" of an executive
official, to mean that the "presumption" in favor of executive privilege "inclines heavily against
executive secrecy and in favor of disclosure" is to distort the ruling in the Senate v. Ermita and
make the same engage in self-contradiction.
Senate v. Ermita22 expounds on the constitutional underpinning of the relationship between the
Executive Department and the Legislative Department to explain why there should be no implied
authorization or presumptive authorization to invoke executive privilege by the Presidents
subordinate officials, as follows:
When Congress exercises its power of inquiry, the only way for department
heads to exempt themselves therefrom is by a valid claim of privilege. They are
not exempt by the mere fact that they are department heads. Only one
executive official may be exempted from this power - the President on whom
executive power is vested, hence, beyond the reach of Congress except through the
power of impeachment. It is based on he being the highest official of the executive
branch, and the due respect accorded to a co-equal branch of governments which is
sanctioned by a long-standing custom. (Underscoring supplied)
Thus, if what is involved is the presumptive privilege of presidential communications when
invoked by the President on a matter clearly within the domain of the Executive, the said
presumption dictates that the same be recognized and be given preference or priority, in the
absence of proof of a compelling or critical need for disclosure by the one assailing such
presumption. Any construction to the contrary will render meaningless the presumption accorded
by settled jurisprudence in favor of executive privilege. In fact, Senate v. Ermita reiterates
jurisprudence citing "the considerations justifying a presumptive privilege for Presidential
communications."23
II
There Are Factual and Legal Bases to
Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege
Respondent Committees claim that the communications elicited by the three (3) questions are
not covered by executive privilege because the elements of the presidential communications
privilegeare not present.
A. The power to enter into an executive agreement is a "quintessential and non-delegable
presidential power."
First, respondent Committees contend that the power to secure a foreign loan does not relate to
a "quintessential and non-delegable presidential power," because the Constitution does not vest
it in the President alone, but also in the Monetary Board which is required to give its prior
concurrence and to report to Congress.
This argument is unpersuasive.
The fact that a power is subject to the concurrence of another entity does not make such power
less executive. "Quintessential" is defined as the most perfect embodiment of something, the
concentrated essence of substance.24 On the other hand, "non-delegable" means that a power
or duty cannot be delegated to another or, even if delegated, the responsibility remains with the
obligor.25 The power to enter into an executive agreement is in essence an executive power.
This authority of the President to enter into executive agreements without the concurrence of the
Legislature has traditionally been recognized in Philippine jurisprudence. 26 Now, the fact that the
President has to secure the prior concurrence of the Monetary Board, which shall submit to
Congress a complete report of its decision before contracting or guaranteeing foreign loans,
does not diminish the executive nature of the power.
The inviolate doctrine of separation of powers among the legislative, executive and judicial
branches of government by no means prescribes absolute autonomy in the discharge by each
branch of that part of the governmental power assigned to it by the sovereign people. There is
the corollary doctrine of checks and balances, which has been carefully calibrated by the
Constitution to temper the official acts of each of these three branches. Thus, by analogy, the
fact that certain legislative acts require action from the President for their validity does not render
such acts less legislative in nature. A good example is the power to pass a law. Article VI,
Section 27 of the Constitution mandates that every bill passed by Congress shall, before it
becomes a law, be presented to the President who shall approve or veto the same. The fact that
the approval or vetoing of the bill is lodged with the President does not render the power to pass C. The Presidents claim of executive privilege is not merely based on a generalized
law executive in nature. This is because the power to pass law is generally a quintessential and interest; and in balancing respondent Committees and the Presidents clashing interests,
non-delegable power of the Legislature. In the same vein, the executive power to enter or not to the Court did not disregard the 1987 Constitutional provisions on government
enter into a contract to secure foreign loans does not become less executive in nature because transparency, accountability and disclosure of information.
of conditions laid down in the Constitution. The final decision in the exercise of the said
executive power is still lodged in the Office of the President.
Third, respondent Committees claim that the Court erred in upholding the Presidents
invocation, through the Executive Secretary, of executive privilege because (a) between
B. The "doctrine of operational proximity" was laid down precisely to limit the scope of respondent Committees specific and demonstrated need and the Presidents generalized
the presidential communications privilege but, in any case, it is not conclusive. interest in confidentiality, there is a need to strike the balance in favor of the former; and (b) in
the balancing of interest, the Court disregarded the provisions of the 1987 Philippine Constitution
on government transparency, accountability and disclosure of information, specifically, Article III,
Second, respondent Committees also seek reconsideration of the application of the "doctrine of
Section 7;29 Article II, Sections 2430 and 28;31 Article XI, Section 1;32 Article XVI, Section
operational proximity" for the reason that "it maybe misconstrued to expand the scope of the
10;33 Article VII, Section 20;34 and Article XII, Sections 9,35 21,36 and 22.37
presidential communications privilege to communications between those who are operationally
proximate to the President but who may have "no direct communications with her."
It must be stressed that the Presidents claim of executive privilege is not merely founded on her
generalized interest in confidentiality. The Letter dated November 15, 2007 of Executive
It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed
Secretary Ermita specified presidential communications privilege in relation to diplomatic
Case27precisely to limit the scope of the presidential communications privilege. The U.S. court
and economic relations with another sovereign nation as the bases for the claim. Thus, the
was aware of the dangers that a limitless extension of the privilege risks and, therefore, carefully
Letter stated:
cabined its reach by explicitly confining it to White House staff, and not to staffs of the agencies,
and then only to White House staff that has "operational proximity" to direct presidential
decision-making, thus: The context in which executive privilege is being invoked is that the information
sought to be disclosed might impair our diplomatic as well as economic
relations with the Peoples Republic of China. Given the confidential nature in
We are aware that such an extension, unless carefully circumscribed to accomplish
which this information were conveyed to the President, he cannot provide the
the purposes of the privilege, could pose a significant risk of expanding to a large
Committee any further details of these conversations, without disclosing the very thing
swath of the executive branch a privilege that is bottomed on a recognition of the
the privilege is designed to protect. (emphasis supplied)
unique role of the President. In order to limit this risk, the presidential communications
privilege should be construed as narrowly as is consistent with ensuring that the
confidentiality of the Presidents decision-making process is adequately protected. Not Even in Senate v. Ermita, it was held that Congress must not require the Executive to state the
every person who plays a role in the development of presidential advice, no reasons for the claim with such particularity as to compel disclosure of the information which the
matter how remote and removed from the President, can qualify for the privilege is meant to protect. This is a matter of respect for a coordinate and co-equal
privilege. In particular, the privilege should not extend to staff outside the White department.
House in executive branch agencies. Instead, the privilege should apply only to
communications authored or solicited and received by those members of an
It is easy to discern the danger that goes with the disclosure of the Presidents communication
immediate White House advisors staff who have broad and significant responsibility
with her advisor. The NBN Project involves a foreign country as a party to the agreement. It was
for investigation and formulating the advice to be given the President on the particular
actually a product of the meeting of minds between officials of the Philippines and China.
matter to which the communications relate. Only communications at that level are
Whatever the President says about the agreement - particularly while official negotiations are
close enough to the President to be revelatory of his deliberations or to pose a
ongoing - are matters which China will surely view with particular interest. There is danger in
risk to the candor of his advisers. See AAPS, 997 F.2d at 910 (it is "operational
such kind of exposure. It could adversely affect our diplomatic as well as economic relations with
proximity" to the President that matters in determining whether "[t]he
the Peoples Republic of China. We reiterate the importance of secrecy in matters involving
Presidents confidentiality interests" is implicated).(Emphasis supplied)
foreign negotiations as stated in United States v. Curtiss-Wright Export Corp., 38 thus:

In the case at bar, the danger of expanding the privilege "to a large swath of the executive
The nature of foreign negotiations requires caution, and their success must often
branch" (a fear apparently entertained by respondents) is absent because the official involved
depend on secrecy, and even when brought to a conclusion, a full disclosure of all the
here is a member of the Cabinet, thus, properly within the term "advisor" of the President; in fact,
measures, demands, or eventual concessions which may have been proposed or
her alter ego and a member of her official family. Nevertheless, in circumstances in which the
contemplated would be extremely impolitic, for this might have a pernicious influence
official involved is far too remote, this Court also mentioned in the Decision the organizational
on future negotiations or produce immediate inconveniences, perhaps danger and
test laid down in Judicial Watch, Inc. v. Department of Justice.28 This goes to show that the
mischief, in relation to other powers. The necessity of such caution and secrecy was
operational proximity test used in the Decision is not considered conclusive in every case. In
one cogent reason for vesting the power of making treaties in the President, with the
determining which test to use, the main consideration is to limit the availability of executive
advice and consent of the Senate, the principle on which the body was formed
privilege only to officials who stand proximate to the President, not only by reason of their
confining it to a small number of members. To admit, then, a right in the House of
function, but also by reason of their positions in the Executives organizational structure. Thus,
Representatives to demand and to have as a matter of course all the papers
respondent Committees fear that the scope of the privilege would be unnecessarily expanded
respecting a negotiation with a foreign power would be to establish a dangerous
with the use of the operational proximity test is unfounded.
precedent.
US jurisprudence clearly guards against the dangers of allowing Congress access to all papers pressure groups attempt to "muscle in." An ill-timed speech by one of
relating to a negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan the parties or a frank declaration of the concession which are
Citizens Action Party, et al. v. Thomas G. Aquino, et al.39 upheld the privileged character of exacted or offered on both sides would quickly lead to a widespread
diplomatic negotiations. In Akbayan, the Court stated: propaganda to block the negotiations. After a treaty has been drafted
and its terms are fully published, there is ample opportunity for
discussion before it is approved. (The New American Government and
Privileged character of diplomatic negotiations
Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and
underscoring supplied)
The privileged character of diplomatic negotiations has been recognized in this
jurisdiction. In discussing valid limitations on the right to information, the Court
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright
in Chavez v. PCGG held that "information on inter-government exchanges prior to the
Export Corp. that the President is the sole organ of the nation in its negotiations with
conclusion of treaties and executive agreements may be subject to reasonable
foreign countries,viz:
safeguards for the sake of national interest." Even earlier, the same privilege was
upheld in Peoples Movement for Press Freedom (PMPF) v. Manglapus wherein the
Court discussed the reasons for the privilege in more precise terms. "x x x In this vast external realm, with its important, complicated, delicate
and manifold problems, the President alone has the power to speak or listen
as a representative of the nation. He makes treaties with the advice and
In PMPF v. Manglapus, the therein petitioners were seeking information from the
consent of the Senate; but he alone negotiates. Into the field of negotiation
Presidents representatives on the state of the then on-going negotiations of the RP-
the Senate cannot intrude; and Congress itself is powerless to invade it. As
US Military Bases Agreement. The Court denied the petition, stressing that "secrecy
Marshall said in his great arguments of March 7, 1800, in the House of
of negotiations with foreign countries is not violative of the constitutional
Representatives, "The President is the sole organ of the nation in its
provisions of freedom of speech or of the press nor of the freedom of access to
external relations, and its sole representative with foreign nations."
information." The Resolution went on to state, thus:
Annals, 6th Cong., col. 613 (Emphasis supplied; underscoring in the
original)
The nature of diplomacy requires centralization of authority and
expedition of decision which are inherent in executive action. Another
Considering that the information sought through the three (3) questions subject of this Petition
essential characteristic of diplomacy is its confidential
involves the Presidents dealings with a foreign nation, with more reason, this Court is wary of
nature. Although much has been said about "open" and "secret" diplomacy,
approving the view that Congress may peremptorily inquire into not only official, documented
with disparagement of the latter, Secretaries of State Hughes and Stimson
acts of the President but even her confidential and informal discussions with her close advisors
have clearly analyzed and justified the practice. In the words of Mr. Stimson:
on the pretext that said questions serve some vague legislative need. Regardless of who is in
office, this Court can easily foresee unwanted consequences of subjecting a Chief Executive to
"A complicated negotiation cannot be carried through unrestricted congressional inquiries done with increased frequency and great publicity. No
without many, many private talks and discussion, man to Executive can effectively discharge constitutional functions in the face of intense and unchecked
man; many tentative suggestions and proposals. Delegates legislative incursion into the core of the Presidents decision-making process, which inevitably
from other countries come and tell you in confidence of their would involve her conversations with a member of her Cabinet.
troubles at home and of their differences with other countries
and with other delegates; they tell you of what they would do
With respect to respondent Committees invocation of constitutional prescriptions regarding the
under certain circumstances and would not do under other
right of the people to information and public accountability and transparency, the Court finds
circumstances If these reports should become public
nothing in these arguments to support respondent Committees case.
who would ever trust American Delegations in another
conference? (United States Department of State, Press
Releases, June 7, 1930, pp. 282-284) There is no debate as to the importance of the constitutional right of the people to information
and the constitutional policies on public accountability and transparency. These are the twin
postulates vital to the effective functioning of a democratic government. The citizenry can
xxxx
become prey to the whims and caprices of those to whom the power has been delegated if they
are denied access to information. And the policies on public accountability and democratic
There is frequent criticism of the secrecy in which negotiation with government would certainly be mere empty words if access to such information of public
foreign powers on nearly all subjects is concerned. This, it is claimed, concern is denied.
is incompatible with the substance of democracy. As expressed by one
writer, "It can be said that there is no more rigid system of silence anywhere
In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific
in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lipincott
questions, did not in any way curb the publics right to information or diminish the importance of
Co., 1938) President Wilson in starting his efforts for the conclusion of the
public accountability and transparency.
World War declared that we must have "open covenants, openly arrived at."
He quickly abandoned his thought.
This Court did not rule that the Senate has no power to investigate the NBN Project in aid of
legislation. There is nothing in the assailed Decision that prohibits respondent Committees from
No one who has studied the question believes that such a method of
inquiring into the NBN Project. They could continue the investigation and even call petitioner
publicity is possible. In the moment that negotiations are started,
Neri to testify again. He himself has repeatedly expressed his willingness to do so. Our Decision
merely excludes from the scope of respondents investigation the three (3) questions that elicit
answers covered by executive privilege and rules that petitioner cannot be compelled to appear
before respondents to answer the said questions. We have discussed the reasons why these
answers are covered by executive privilege. That there is a recognized public interest in the
confidentiality of such information is a recognized principle in other democratic States. To put it
simply, the right to information is not an absolute right.
Indeed, the constitutional provisions cited by respondent Committees do not espouse an
absolute right to information. By their wording, the intention of the Framers to subject such right
to the regulation of the law is unmistakable. The highlighted portions of the following provisions
show the obvious limitations on the right to information, thus:
Article III, Sec. 7. The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents, and papers
pertaining to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may
be provided by law.
Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its transactions involving
public interest. (Emphasis supplied)
In Chavez v. Presidential Commission on Good Government,40 it was stated that there are no
specific laws prescribing the exact limitations within which the right may be exercised or the
correlative state duty may be obliged. Nonetheless, it enumerated the recognized restrictions to
such rights, among them: (1) national security matters, (2) trade secrets and banking
transactions, (3) criminal matters, and (4) other confidential information. National security
matters include state secrets regarding military and diplomatic matters, as well as information on
inter-government exchanges prior to the conclusion of treaties and executive agreements. It was
further held that even where there is no need to protect such state secrets, they must be
"examined in strict confidence and given scrupulous protection."
Incidentally, the right primarily involved here is the right of respondent Committees to obtain
information allegedly in aid of legislation, not the peoples right to public information. This is the
reason why we stressed in the assailed Decision the distinction between these two rights. As
laid down in Senate v. Ermita, "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" and "neither does the right to information grant a citizen the power to
exact testimony from government officials." As pointed out, these rights belong to Congress, not
to the individual citizen. It is worth mentioning at this juncture that the parties here are
respondent Committees and petitioner Neri and that there was no prior request for information
on the part of any individual citizen. This Court will not be swayed by attempts to blur the
distinctions between the Legislature's right to information in a legitimate legislative inquiry and
the public's right to information.
For clarity, it must be emphasized that the assailed Decision did not enjoin respondent
Committees from inquiring into the NBN Project. All that is expected from them is to
respect matters that are covered by executive privilege.
III.
Respondent Committees Failed to Show That
the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions
In their Motion for Reconsideration, respondent Committees devote an unusually lengthy
discussion on the purported legislative nature of their entire inquiry, as opposed to an oversight
inquiry.
At the outset, it must be clarified that the Decision did not pass upon the nature of respondent
Committees inquiry into the NBN Project. To reiterate, this Court recognizes respondent
Committees power to investigate the NBN Project in aid of legislation. However, this Court
cannot uphold the view that when a constitutionally guaranteed privilege or right is validly
invoked by a witness in the course of a legislative investigation, the legislative purpose of
respondent Committees questions can be sufficiently supported by the expedient of mentioning
statutes and/or pending bills to which their inquiry as a whole may have relevance. The
jurisprudential test laid down by this Court in past decisions on executive privilege is that the
presumption of privilege can only be overturned by a showing of compelling need for
disclosure of the information covered by executive privilege.
In the Decision, the majority held that "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." In the Motion for Reconsideration, respondent
Committees argue that the information elicited by the three (3) questions are necessary in the
discharge of their legislative functions, among them, (a) to consider the three (3) pending Senate
Bills, and (b) to curb graft and corruption.
We remain unpersuaded by respondents assertions.
In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other
interests and it is necessary to resolve the competing interests in a manner that would preserve
the essential functions of each branch. There, the Court weighed between presidential privilege
and the legitimate claims of the judicial process. In giving more weight to the latter, the Court
ruled that the President's generalized assertion of privilege must yield to the demonstrated,
specific need for evidence in a pending criminal trial.
The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the
primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said
Court further ratiocinated, through its ruling extensively quoted in the Honorable Chief Justice
Puno's dissenting opinion, as follows:
"... this presumptive privilege must be considered in light of our historic commitment to
the rule of law. This is nowhere more profoundly manifest than in our view that 'the
twofold aim (of criminal justice) is that guild shall not escape or innocence suffer.'
Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We have elected to employ
an adversary system of criminal justice in which the parties contest all issues before a
court of law. The need to develop all relevant facts in the adversary system is
both fundamental and comprehensive. The ends of criminal justice would be
defeated if judgments were to be founded on a partial or speculative
presentation of the facts. The very integrity of the judicial system and public
confidence in the system depend on full disclosure of all the facts, within the
framework of the rules of evidence. To ensure that justice is done, it is
imperative to the function of courts that compulsory process be available for the
production of evidence needed either by the prosecution or by the defense.
xxx xxx xxx
The right to the production of all evidence at a criminal trial similarly has constitutional
dimensions. The Sixth Amendment explicitly confers upon every defendant in a
 criminal trial the right 'to be confronted with the witness against him' and 'to have
compulsory process for obtaining witnesses in his favor.' Moreover, the Fifth
Amendment also guarantees that no person shall be deprived of liberty without
due process of law. It is the manifest duty of the courts to vindicate those
guarantees, and to accomplish that it is essential that all relevant and admissible
evidence be produced.
In this case we must weigh the importance of the general privilege of
confidentiality of Presidential communications in performance of the
President's responsibilities against the inroads of such a privilege on the fair
administration of criminal justice. (emphasis supplied)
xxx xxx xxx
...the allowance of the privilege to withhold evidence that is demonstrably relevant in
a criminal trial would cut deeply into the guarantee of due process of law and
gravely impair the basic function of the courts. A President's acknowledged
need for confidentiality in the communications of his office is general in nature,
whereas the constitutional need for production of relevant evidence in a criminal
proceeding is specific and central to the fair adjudication of a particular criminal
case in the administration of justice. Without access to specific facts a criminal
prosecution may be totally frustrated. The President's broad interest in
confidentiality of communication will not be vitiated by disclosure of a limited
number of conversations preliminarily shown to have some bearing on the
pending criminal cases.
We conclude that when the ground for asserting privilege as to subpoenaed materials
sought for use in a criminal trial is based only on the generalized interest in
confidentiality, it cannot prevail over the fundamental demands of due process
of law in the fair administration of criminal justice. The generalized assertion of
privilege must yield to the demonstrated, specific need for evidence in a
pending criminal trial. (emphasis supplied)
In the case at bar, we are not confronted with a courts need for facts in order to adjudge liability
in a criminal case but rather with the Senates need for information in relation to its legislative
functions. This leads us to consider once again just how critical is the subject information in the
discharge of respondent Committees functions. The burden to show this is on the respondent
Committees, since they seek to intrude into the sphere of competence of the President in order
to gather information which, according to said respondents, would "aid" them in crafting
legislation.
Senate Select Committee on Presidential Campaign Activities v. Nixon41 expounded on the
nature of a legislative inquiry in aid of legislation in this wise:
The sufficiency of the Committee's showing of need has come to depend, therefore,
entirely on whether the subpoenaed materials are critical to the performance of its
legislative functions. There is a clear difference between Congress' legislative tasks
and the responsibility of a grand jury, or any institution engaged in like
functions. While fact-finding by a legislative committee is undeniably a part of its
task, legislative judgments normally depend more on the predicted
consequences of proposed legislative actions and their political acceptability,
than on precise reconstruction of past events; Congress frequently legislates on
the basis of conflicting information provided in its hearings. In contrast, the
responsibility of the grand jury turns entirely on its ability to determine whether there is
probable cause to believe that certain named individuals did or did not commit specific
crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury concerning
the content of certain conversations, the grand jury's need for the most precise
evidence, the exact text of oral statements recorded in their original form, is
undeniable. We see no comparable need in the legislative process, at least not in
the circumstances of this case. Indeed, whatever force there might once have been
in the Committee's argument that the subpoenaed materials are necessary to its
legislative judgments has been substantially undermined by subsequent events.
(Emphasis supplied)
Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or
demonstratively critical and specific need for facts which is so essential to the judicial power to
adjudicate actual controversies. Also, the bare standard of "pertinency" set in Arnault cannot be
lightly applied to the instant case, which unlike Arnault involves a conflict between two (2)
separate, co-equal and coordinate Branches of the Government.
Whatever test we may apply, the starting point in resolving the conflicting claims between the
Executive and the Legislative Branches is the recognized existence of the presumptive
presidential communications privilege. This is conceded even in the Dissenting Opinion of the
Honorable Chief Justice Puno, which states:
A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a
qualified presumption in favor of the Presidential communications privilege. As shown
in the previous discussion, U.S. v. Nixon, as well as the other related Nixon
cases Sirica and Senate Select Committee on Presidential Campaign Activities,
et al., v. Nixon in the D.C. Court of Appeals, as well as subsequent cases all
recognize that there is a presumptive privilege in favor of Presidential
communications. The Almonte case quoted U.S. v. Nixon and recognized a
presumption in favor of confidentiality of Presidential communications.
The presumption in favor of Presidential communications puts the burden on the respondent
Senate Committees to overturn the presumption by demonstrating their specific need for the
information to be elicited by the answers to the three (3) questions subject of this case, to enable
them to craft legislation. Here, there is simply a generalized assertion that the information is
pertinent to the exercise of the power to legislate and a broad and non-specific reference to
pending Senate bills. It is not clear what matters relating to these bills could not be determined
without the said information sought by the three (3) questions. As correctly pointed out by the
Honorable Justice Dante O. Tinga in his Separate Concurring Opinion:
If respondents are operating under the premise that the president and/or her
executive officials have committed wrongdoings that need to be corrected or
prevented from recurring by remedial legislation, the answer to those three
questions will not necessarily bolster or inhibit respondents from proceeding
with such legislation. They could easily presume the worst of the president in
enacting such legislation.
For sure, a factual basis for situations covered by bills is not critically needed before legislatives
bodies can come up with relevant legislation unlike in the adjudication of cases by courts of law.
Interestingly, during the Oral Argument before this Court, the counsel for respondent
Committees impliedly admitted that the Senate could still come up with legislations even without
petitioner answering the three (3) questions. In other words, the information being elicited is not
so critical after all. Thus:
CHIEF JUSTICE PUNO
 So can you tell the Court how critical are these questions to the lawmaking
function of the Senate. For instance, question Number 1 whether the
President followed up the NBN project. According to the other counsel this
question has already been asked, is that correct?
ATTY. AGABIN
Well, the question has been asked but it was not answered, Your Honor.
CHIEF JUSTICE PUNO
Yes. But my question is how critical is this to the lawmaking function of the
Senate?
ATTY. AGABIN
I believe it is critical, Your Honor.
CHIEF JUSTICE PUNO
Why?
ATTY. AGABIN
For instance, with respect to the proposed Bill of Senator Miriam Santiago,
she would like to indorse a Bill to include Executive Agreements had been
used as a device to the circumventing the Procurement Law.
CHIEF JUSTICE PUNO
But the question is just following it up.
ATTY. AGABIN
I believe that may be the initial question, Your Honor, because if we look at
this problem in its factual setting as counsel for petitioner has observed,
there are intimations of a bribery scandal involving high government
officials.
CHIEF JUSTICE PUNO
Again, about the second question, were you dictated to prioritize this ZTE, is
that critical to the lawmaking function of the Senate? Will it result to the
failure of the Senate to cobble a Bill without this question?
ATTY. AGABIN
I think it is critical to lay the factual foundations for a proposed amendment
to the Procurement Law, Your Honor, because the petitioner had already
testified that he was offered a P200 Million bribe, so if he was offered a
P200 Million bribe it is possible that other government officials who had
something to do with the approval of the contract would be offered the same
amount of bribes.
CHIEF JUSTICE PUNO
Again, that is speculative.
ATTY. AGABIN
That is why they want to continue with the investigation, Your Honor.
CHIEF JUSTICE PUNO
How about the third question, whether the President said to go ahead and
approve the project after being told about the alleged bribe. How critical is
that to the lawmaking function of the Senate? And the question is may they
craft a Bill a remedial law without forcing petitioner Neri to answer this
question?
ATTY. AGABIN
Well, they can craft it, Your Honor, based on mere speculation. And sound
legislation requires that a proposed Bill should have some basis in fact. 42
The failure of the counsel for respondent Committees to pinpoint the specific need for the
information sought or how the withholding of the information sought will hinder the
accomplishment of their legislative purpose is very evident in the above oral exchanges. Due to
the failure of the respondent Committees to successfully discharge this burden, the presumption
in favor of confidentiality of presidential communication stands. The implication of the said
presumption, like any other, is to dispense with the burden of proof as to whether the disclosure
will significantly impair the Presidents performance of her function. Needless to state this is
assumed, by virtue of the presumption.
Anent respondent Committees bewailing that they would have to "speculate" regarding the
questions covered by the privilege, this does not evince a compelling need for the information
sought. Indeed, Senate Select Committee on Presidential Campaign Activities v. Nixon43 held
that while fact-finding by a legislative committee is undeniably a part of its task, legislative
judgments normally depend more on the predicted consequences of proposed legislative actions
and their political acceptability than on a precise reconstruction of past events. It added that,
normally, Congress legislates on the basis of conflicting information provided in its hearings. We
cannot subscribe to the respondent Committees self-defeating proposition that without the
answers to the three (3) questions objected to as privileged, the distinguished members of the
respondent Committees cannot intelligently craft legislation.
Anent the function to curb graft and corruption, it must be stressed that respondent Committees
need for information in the exercise of this function is not as compelling as in instances when the
purpose of the inquiry is legislative in nature. This is because curbing graft and corruption is
merely an oversight function of Congress.44 And if this is the primary objective of respondent
Committees in asking the three (3) questions covered by privilege, it may even contradict their
claim that their purpose is legislative in nature and not oversight. In any event, whether or not
investigating graft and corruption is a legislative or oversight function of Congress, respondent
Committees investigation cannot transgress bounds set by the Constitution.
In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:
The "allocation of constitutional boundaries" is a task that this Court must
perform under the Constitution. Moreover, as held in a recent case, "the political
question doctrine neither interposes an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional boundaries has been given to this
Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although
said provision by no means does away with the applicability of the principle in
appropriate cases.46 (Emphasis supplied)
There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee
is not really in aid of legislation because it is not related to a purpose within the jurisdiction
of Congress, since the aim of the investigation is to find out whether or not the relatives
of the President or Mr. Ricardo Lopa had violated Section 5 of R.A. No. 3019, the Anti-
Graft and Corrupt Practices Act, a matter that appears more within the province of the
courts rather than of the Legislature."47 (Emphasis and underscoring supplied)
The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the
Office of the President.48 While it may be a worthy endeavor to investigate the potential
culpability of high government officials, including the President, in a given government
transaction, it is simply not a task for the Senate to perform. The role of the Legislature is to
make laws, not to determine anyones guilt of a crime or wrongdoing. Our Constitution has not
bestowed upon the Legislature the latter role. Just as the Judiciary cannot legislate, neither can
the Legislature adjudicate or prosecute.
Respondent Committees claim that they are conducting an inquiry in aid of legislation and a
"search for truth," which in respondent Committees view appears to be equated with the search
for persons responsible for "anomalies" in government contracts.
No matter how noble the intentions of respondent Committees are, they cannot assume the
power reposed upon our prosecutorial bodies and courts. The determination of who is/are liable
for a crime or illegal activity, the investigation of the role played by each official, the
determination of who should be haled to court for prosecution and the task of coming up with
conclusions and finding of facts regarding anomalies, especially the determination of criminal
guilt, are not functions of the Senate. Congress is neither a law enforcement nor a trial agency.
Moreover, it bears stressing that no inquiry is an end in itself; it must be related to, and in
furtherance of, a legitimate task of the Congress, i.e. legislation. Investigations conducted solely
to gather incriminatory evidence and "punish" those investigated are indefensible. There is no
Congressional power to expose for the sake of exposure. 49In this regard, the pronouncement
in Barenblatt v. United States50 is instructive, thus:
Broad as it is, the power is not, however, without limitations. Since Congress
may only investigate into the areas in which it may potentially legislate or appropriate,
it cannot inquire into matters which are within the exclusive province of one of the
other branches of the government. Lacking the judicial power given to the Judiciary, it
cannot inquire into matters that are exclusively the concern of the Judiciary. Neither
can it supplant the Executive in what exclusively belongs to the Executive. (Emphasis
supplied.)
At this juncture, it is important to stress that complaints relating to the NBN Project have already
been filed against President Arroyo and other personalities before the Office of the Ombudsman.
Under our Constitution, it is the Ombudsman who has the duty "to investigate any act or
omission of any public official, employee, office or agency when such act or omission
appears to be illegal, unjust, improper, or inefficient."51 The Office of the Ombudsman is the
body properly equipped by the Constitution and our laws to preliminarily determine whether or
not the allegations of anomaly are true and who are liable therefor. The same holds true for our
courts upon which the Constitution reposes the duty to determine criminal guilt with finality.
Indeed, the rules of procedure in the Office of the Ombudsman and the courts are well-
defined and ensure that the constitutionally guaranteed rights of all persons, parties and
witnesses alike, are protected and safeguarded.
Should respondent Committees uncover information related to a possible crime in the course of
their investigation, they have the constitutional duty to refer the matter to the appropriate agency
or branch of government. Thus, the Legislatures need for information in an investigation of graft
and corruption cannot be deemed compelling enough to pierce the confidentiality of information
validly covered by executive privilege. As discussed above, the Legislature can still legislate on
graft and corruption even without the information covered by the three (3) questions subject of
the petition.
Corollarily, respondent Committees justify their rejection of petitioners claim of executive
privilege on the ground that there is no privilege when the information sought might involve a
crime or illegal activity, despite the absence of an administrative or judicial determination to
that effect. Significantly, however, in Nixon v. Sirica,52 the showing required to overcome the
presumption favoring confidentiality turned, not on the nature of the presidential conduct that
the subpoenaed material might reveal, but, instead, on the nature and appropriateness of
the function in the performance of which the material was sought, and the degree to
which the material was necessary to its fulfillment.
Respondent Committees assert that Senate Select Committee on Presidential Campaign
Activities v. Nixon does not apply to the case at bar because, unlike in the said case, no
impeachment proceeding has been initiated at present. The Court is not persuaded. While it is
true that no impeachment proceeding has been initiated, however, complaints relating to the
NBN Project have already been filed against President Arroyo and other personalities before the
Office of the Ombudsman. As the Court has said earlier, the prosecutorial and judicial arms of
government are the bodies equipped and mandated by the Constitution and our laws to
determine whether or not the allegations of anomaly in the NBN Project are true and, if so, who
should be prosecuted and penalized for criminal conduct.
Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of
evidence essential to arrive at accurate factual findings to which to apply the law. Hence,
Section 10 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation provides
that "technical rules of evidence applicable to judicial proceedings which do not affect
substantive rights need not be observed by the Committee." Court rules which prohibit leading,
hypothetical, or repetitive questions or questions calling for a hearsay answer, to name a few, do
not apply to a legislative inquiry. Every person, from the highest public official to the most
ordinary citizen, has the right to be presumed innocent until proven guilty in proper proceedings
by a competent court or body.
IV
Respondent Committees Committed Grave
Abuse of Discretion in Issuing the Contempt Order
Respondent Committees insist that they did not commit grave abuse of discretion in issuing the
contempt order because (1) there is no legitimate claim of executive privilege; (2) they did not
violate the requirements laid down in Senate v. Ermita; (3) they issued the contempt order in
accordance with their internal Rules; (4) they did not violate the requirement under Article VI,
Section 21 of the Constitution requiring the publication of their Rules; and (5) their issuance of
the contempt order is not arbitrary or precipitate.
We reaffirm our earlier ruling.
The legitimacy of the claim of executive privilege having been fully discussed in the preceding
pages, we see no reason to discuss it once again.
Respondent Committees second argument rests on the view that the ruling in Senate v. Ermita,
requiring invitations or subpoenas to 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" is not provided for by the Constitution and is merely an
obiter dictum.
On the contrary, the Court sees the rationale and necessity of compliance with these
requirements.
An unconstrained congressional investigative power, like an unchecked Executive, generates its
own abuses. Consequently, claims that the investigative power of Congress has been abused
(or has the potential for abuse) have been raised many times. 53 Constant exposure to
congressional subpoena takes its toll on the ability of the Executive to function effectively. The
requirements set forth in Senate v. Ermita are modest mechanisms that would not unduly limit
Congress power. The legislative inquiry must be confined to permissible areas and thus,
prevent the "roving commissions" referred to in the U.S. case, Kilbourn v. Thompson.54 Likewise,
witnesses have their constitutional right to due process. They should be adequately informed
what matters are to be covered by the inquiry. It will also allow them to prepare the pertinent
information and documents. To our mind, these requirements concede too little political costs or
burdens on the part of Congress when viewed vis--vis the immensity of its power of inquiry.
The logic of these requirements is well articulated in the study conducted by William P.
Marshall,55 to wit:
A second concern that might be addressed is that the current system allows
committees to continually investigate the Executive without constraint. One process
solution addressing this concern is to require each investigation be tied to a
clearly stated purpose. At present, the charters of some congressional committees
are so broad that virtually any matter involving the Executive can be construed to fall
 within their province. Accordingly, investigations can proceed without articulation of
specific need or purpose. A requirement for a more precise charge in order to begin
an inquiry should immediately work to limit the initial scope of the investigation and
should also serve to contain the investigation once it is instituted. Additionally, to the
extent clear statements of rules cause legislatures to pause and seriously
consider the constitutional implications of proposed courses of action in other
areas, they would serve that goal in the context of congressional investigations
as well.
The key to this reform is in its details. A system that allows a standing
committee to simply articulate its reasons to investigate pro forma does no
more than imposes minimal drafting burdens. Rather, the system must be
designed in a manner that imposes actual burdens on the committee to
articulate its need for investigation and allows for meaningful debate about the
merits of proceeding with the investigation.(Emphasis supplied)
Clearly, petitioners request to be furnished an advance copy of questions is a reasonable
demand that should have been granted by respondent Committees.
Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific
reference to any pending Senate bill. It did not also inform petitioner of the questions to be
asked. As it were, the subpoena merely commanded him to "testify on what he knows relative to
the subject matter under inquiry."
Anent the third argument, respondent Committees contend that their Rules of Procedure
Governing Inquiries in Aid of Legislation (the "Rules") are beyond the reach of this Court. While it
is true that this Court must refrain from reviewing the internal processes of Congress, as a co-
equal branch of government, however, when a constitutional requirement exists, the Court has
the duty to look into Congress compliance therewith. We cannot turn a blind eye to possible
violations of the Constitution simply out of courtesy. In this regard, the pronouncement in Arroyo
v. De Venecia56 is enlightening, thus:
"Cases both here and abroad, in varying forms of expression, all deny to the courts
the power to inquire into allegations that, in enacting a law, a House of Congress
failed to comply with its own rules, in the absence of showing that there was a
violation of a constitutional provision or the rights of private individuals.
United States v. Ballin, Joseph & Co., the rule was stated thus: The Constitution
empowers each House to determine its rules of proceedings. It may not by its rules
ignore constitutional restraints or violate fundamental rights, and there should
be a reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be attained."
In the present case, the Courts exercise of its power of judicial review is warranted because
there appears to be a clear abuse of the power of contempt on the part of respondent
Committees. Section 18 of the Rules provides that:
"The Committee, by a vote of majority of all its members, may punish for contempt
any witness before it who disobey any order of the Committee or refuses to be sworn
or to testify or to answer proper questions by the Committee or any of its
members." (Emphasis supplied)
In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt
order because during the deliberation of the three (3) respondent Committees, only seven (7)
Senators were present. This number could hardly fulfill the majority requirement needed by
respondent Committee on Accountability of Public Officers and Investigations which has a
membership of seventeen (17) Senators and respondent Committee on National Defense and
Security which has a membership of eighteen (18) Senators. With respect to
respondent Committee on Trade and Commerce which has a membership of nine (9) Senators,
only three (3) members were present.57These facts prompted us to quote in the Decision the
exchanges between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the
former raised the issue of lack of the required majority to deliberate and vote on the contempt
order.
When asked about such voting during the March 4, 2008 hearing before this Court, Senator
Francis Pangilinan stated that any defect in the committee voting had been cured because two-
thirds of the Senators effectively signed for the Senate in plenary session. 58
Obviously the deliberation of the respondent Committees that led to the issuance of the
contempt order is flawed. Instead of being submitted to a full debate by all the members of the
respondent Committees, the contempt order was prepared and thereafter presented to the other
members for signing. As a result, the contempt order which was issued on January 30, 2008
was not a faithful representation of the proceedings that took place on said date. Records clearly
show that not all of those who signed the contempt order were present during the January 30,
2008 deliberation when the matter was taken up.
Section 21, Article VI of the Constitution states that:
The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of person appearing in or affected by such inquiries shall
be respected. (Emphasis supplied)
All the limitations embodied in the foregoing provision form part of the witness settled
expectation. If the limitations are not observed, the witness settled expectation is shattered.
Here, how could there be a majority vote when the members in attendance are not enough to
arrive at such majority? Petitioner has the right to expect that he can be cited in contempt only
through a majority vote in a proceeding in which the matter has been fully deliberated upon.
There is a greater measure of protection for the witness when the concerns and objections of the
members are fully articulated in such proceeding. We do not believe that respondent
Committees have the discretion to set aside their rules anytime they wish. This is especially true
here where what is involved is the contempt power. It must be stressed that the Rules are not
promulgated for their benefit. More than anybody else, it is the witness who has the highest
stake in the proper observance of the Rules.
Having touched the subject of the Rules, we now proceed to respondent Committees fourth
argument. Respondent Committees argue that the Senate does not have to publish its Rules
because the same was published in 1995 and in 2006. Further, they claim that the Senate is a
continuing body; thus, it is not required to republish the Rules, unless the same is repealed or
amended.
On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification.
Certainly, there is no debate that the Senate as an institution is "continuing", as it is not
dissolved as an entity with each national election or change in the composition of its members.
However, in the conduct of its day-to-day business the Senate of each Congress acts separately
and independently of the Senate of the Congress before it. The Rules of the Senate itself
confirms this when it states:
 RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up at the next
session in the same status.
All pending matters and proceedings shall terminate upon the expiration of one
(1) Congress, but may be taken by the succeeding Congress as if present for the first
time. (emphasis supplied)
Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and
even legislative investigations, of the Senate of a particular Congress are
considered terminated upon the expiration of that Congress and it is merely optional on the
Senate of the succeeding Congress to take up such unfinished matters, not in the same status,
but as if presented for the first time. The logic and practicality of such a rule is readily apparent
considering that the Senate of the succeeding Congress (which will typically have a different
composition as that of the previous Congress) should not be bound by the acts and deliberations
of the Senate of which they had no part. If the Senate is a continuing body even with respect to
the conduct of its business, then pending matters will not be deemed terminated with the
expiration of one Congress but will, as a matter of course, continue into the next Congress with
the same status.
This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the
conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senates main
rules of procedure) states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in which the Senators elected in the preceding
elections shall begin their term of office, the President may endorse the Rules to the
appropriate committee for amendment or revision.
The Rules may also be amended by means of a motion which should be presented at
least one day before its consideration, and the vote of the majority of the Senators
present in the session shall be required for its approval. (emphasis supplied)
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their adoption and shall remain
in force until they are amended or repealed. (emphasis supplied)
Section 136 of the Senate Rules quoted above takes into account the new composition of the
Senate after an election and the possibility of the amendment or revision of the Rules at the start
of eachsession in which the newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are intended to be valid
from the date of their adoption until they are amended or repealed. Such language is
conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect
seven (7) days after publication in two (2) newspapers of general circulation." 59 The latter does
not explicitly provide for the continued effectivity of such rules until they are amended or
repealed. In view of the difference in the language of the two sets of Senate rules, it cannot be
presumed that the Rules (on legislative inquiries) would continue into the next Congress. The
Senate of the next Congress may easily adopt different rules for its legislative inquiries which
come within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted
in accordance with the duly published rules of procedure is categorical. It is incumbent upon
the Senate to publish the rules for its legislative inquiries in each Congress or otherwise make
the published rules clearly state that the same shall be effective in subsequent Congresses or
until they are amended or repealed to sufficiently put public on notice.
If it was the intention of the Senate for its present rules on legislative inquiries to be effective
even in the next Congress, it could have easily adopted the same language it had used in its
main rules regarding effectivity.
Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or
proceedings conducted pursuant to the subject Rules are null and void. Only those that result in
violation of the rights of witnesses should be considered null and void, considering that the
rationale for the publication is to protect the rights of witnesses as expressed in Section 21,
Article VI of the Constitution. Sans such violation, orders and proceedings are considered valid
and effective.
Respondent Committees last argument is that their issuance of the contempt order is not
precipitate or arbitrary. Taking into account the totality of circumstances, we find no merit in their
argument.
As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion
of respondent Committees, petitioner did not assume that they no longer had any other
questions for him. He repeatedly manifested his willingness to attend subsequent hearings and
respond to new matters. His only request was that he be furnished a copy of the new questions
in advance to enable him to adequately prepare as a resource person. He did not attend the
November 20, 2007 hearing because Executive Secretary Ermita requested respondent
Committees to dispense with his testimony on the ground of executive privilege. Note that
petitioner is an executive official under the direct control and supervision of the Chief
Executive. Why punish petitioner for contempt when he was merely directed by his superior?
Besides, save for the three (3) questions, he was very cooperative during the September 26,
2007 hearing.
On the part of respondent Committees, this Court observes their haste and impatience. Instead
of ruling on Executive Secretary Ermitas claim of executive privilege, they curtly dismissed it as
unsatisfactory and ordered the arrest of petitioner. They could have informed petitioner of their
ruling and given him time to decide whether to accede or file a motion for reconsideration. After
all, he is not just an ordinary witness; he is a high- ranking official in a co-equal branch of
government. He is an alter ego of the President. The same haste and impatience marked the
issuance of the contempt order, despite the absence of the majority of the members of the
respondent Committees, and their subsequent disregard of petitioners motion for
reconsideration alleging the pendency of his petition for certiorari before this Court.
On a concluding note, we are not unmindful of the fact that the Executive and the Legislature are
political branches of government. In a free and democratic society, the interests of these
branches inevitably clash, but each must treat the other with official courtesy and respect. This
Court wholeheartedly concurs with the proposition that it is imperative for the continued health of
our democratic institutions that we preserve the constitutionally mandated checks and balances
among the different branches of government.
In the present case, it is respondent Committees contention that their determination on the
validity of executive privilege should be binding on the Executive and the Courts. It is their
assertion that theirinternal procedures and deliberations cannot be inquired into by this Court
supposedly in accordance with the principle of respect between co-equal branches of
government. Interestingly, it is a courtesy that they appear to be unwilling to extend to the
Executive (on the matter of executive privilege) or this Court (on the matter of judicial review). It
moves this Court to wonder: In respondent Committees paradigm of checks and balances, what
are the checks to the Legislatures all-encompassing, awesome power of investigation? It is a
power, like any other, that is susceptible to grave abuse.

While this Court finds laudable the respondent Committees well-intentioned efforts to ferret out
corruption, even in the highest echelons of government, such lofty intentions do not validate or
accord to Congress powers denied to it by the Constitution and granted instead to the other
branches of government.

There is no question that any story of government malfeasance deserves an inquiry into its
veracity. As respondent Committees contend, this is founded on the constitutional command of
transparency and public accountability. The recent clamor for a "search for truth" by the general
public, the religious community and the academe is an indication of a concerned citizenry, a
nation that demands an accounting of an entrusted power. However, the best venue for this
noble undertaking is not in the political branches of government. The customary partisanship
and the absence of generally accepted rules on evidence are too great an obstacle in arriving at
the truth or achieving justice that meets the test of the constitutional guarantee of due process of
law. We believe the people deserve a more exacting "search for truth" than the process here in
question, if that is its objective.

WHEREFORE, respondent Committees Motion for Reconsideration dated April 8, 2008 is

hereby DENIED.

SO ORDERED.
 Republic of the Philippines Petitioner contends that private respondent Capco's service as mayor from September 2, 1989
SUPREME COURT to June 30, 1992 should be considered as service for one full term, and since he thereafter
Manila served from 1992 to 1998 two more terms as mayor, he should be considered to have served
three consecutive terms within the contemplation of Art. X, 8 of the Constitution and 43(b) of
the Local Government Code. Petitioner stresses the fact that, upon the death of Mayor Cesar
EN BANC
Borja on September 2, 1989, private respondent became the mayor and thereafter served the
G.R. No. 133495 September 3, 1998
remainder of the term. Petitioner argues that it is irrelevant that private respondent became
mayor by succession because the purpose of the constitutional provision in limiting the number
BENJAMIN U. BORJA, JR., petitioner, of terms elective local officials may serve is to prevent a monopolization of political power.
vs.
COMMISSION ON ELECTIONS and JOSE T. CAPCO, JR., respondents.
This contention will not bear analysis. Article X, 8 of the Constitution provides:

MENDOZA, J.:
Sec. 8. The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official
This case presents for determination the scope of the constitutional provision barring elective shall serve for more than three consecutive terms. Voluntary renunciation of
local officials, with the exception of barangay officials, from serving more than three consecutive the office for any length of time shall not be considered as an interruption in
terms. In particular, the question is whether a vice-mayor who succeeds to the office of mayor by the continuity of his service for the full term for which he was elected.
operation of law and serves the remainder of the term is considered to have served a term in
that office for the purpose of the three-term limit.
This provision is restated in 43(b) of the Local Government Code (R.A. No. 7160):

Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18, 1988
Sec. 43. Term of Office. . . .
for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law,
upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor
for a term of three years which ended on June 30, 1995. On May 8, 1995, he was reelected (b) No local elective official shall serve for more than three (3) consecutive
mayor for another term of three years ending June 30, 1998.1 terms in the same position. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity of
service for the full term for which the elective official concerned was elected.
On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of
...
Pateros relative to the May 11, 1998 elections. Petitioner Benjamin U. Borja Jr., who was also a
candidate for mayor, sought Capco's disqualification on the theory that the latter would have
already served as mayor for three consecutive terms by June 30, 1998 and would therefore be First, to prevent the establishment of political dynasties is not the only policy embodied in the
ineligible to serve for another term after that. constitutional provision in question. The other policy is that of enhancing the freedom of choice
of the people. To consider, therefore, only stay in office regardless of how the official concerned
came to that office whether by election or by succession by operation of law would be to
On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of
disregard one of the purposes of the constitutional provision in question.
petitioner and declared private respondent Capco disqualified from running for reelection as
mayor of Pateros. 2 However, on motion of private respondent the COMELEC en banc, voting 5-
2, reversed the decision and declared Capco eligible to run for mayor in the May 11, 1998 Thus, a consideration of the historical background of Article X, 8 of the Constitution reveals that
elections. 3 The majority stated in its decision: the members of the Constitutional Commission were as much concerned with preserving the
freedom of choice of the people as they were with preventing the monopolization of political
power. Indeed, they rejected a proposal put forth by Commissioner Edmundo F. Garcia that after
In both the Constitution and the Local Government Code, the three-term
serving three consecutive terms or nine years there should be no further reelection for local and
limitation refers to the term of office for which the local official was elected. It
legislative officials. Instead, they adopted the alternative proposal of Commissioner Christian
made no reference to succession to an office to which he was not elected.
Monsod that such officials be simply barred from running for the same position in the of the
In the case before the Commission, respondent Capco was not elected to
succeeding election following the expiration of the third consecutive term. 4 Monsod warned
the position of Mayor in the January 18, 1988 local elections. He succeeded
against "prescreening candidates [from] whom the people will choose" as a result of the
to such office by operation of law and served for the unexpired term of his
proposed absolute disqualification, considering that the draft constitution contained provisions
predecessor. Consequently, such succession into office is not counted as
"recognizing people's power." 5
one (1) term for purposes of the computation of the three-term limitation
under the Constitution and the Local Government Code.
Commissioner Blas F. Ople, who supported the Monsod proposal, said:
Accordingly, private respondent was voted for in the elections. He received 16,558 votes against
petitioner's 7,773 votes and was proclaimed elected by the Municipal Board of Canvassers. The principle involved is really whether this Commission shall impose a
temporary or a perpetual disqualification on those who have served their
terms in accordance with the limits on consecutive service as decided by
This is a petition for certiorari brought to set aside the resolution, dated My 7, 1998, of the
the Constitutional Commission. I would be very wary about this Commission
COMELEC and to seek a declaration that private respondent is disqualified to serve another
exercising a sort of omnipotent power in order to disqualify those who will
term as mayor of Pateros, Metro Manila.
already have served their terms from perpetuating themselves in office. I
 think the Commission achieves its purpose in establishing safeguards
against the excessive accumulation of power as a result of consecutive
terms. We do put a cap on consecutive service in the case of the
President, six years, in the case of the Vice-President, unlimited; and in the
case of the Senators, one reelection. In the case of the Members of
Congress, both from the legislative districts and from the party list and
sectoral representation, this is now under discussion and later on the policy
concerning local officials will be taken up by the Committee on Local
Governments. The principle remains the same. I think we want to prevent
future situations where, as a result of continuous service and frequent
reelections, officials from the President down to the municipal mayor tend to
develop a proprietary interest in their positions and to accumulate those
powers and perquisites that permit them to stay on indefinitely or to transfer
these posts to members of their families in a subsequent election. I think
that is taken care of because we put a gap on the continuity or the unbroken
service of all of these officials. But where we now decide to put these
prospective servants of the people or politicians, if we want to use the
coarser term, under a perpetual disqualification, I have a feeling that we are
taking away too much from the people, whereas we should be giving as
much to the people as we can in terms of their own freedom of choice. . . . 6
Other commissioners went on record against "perpetually disqualifying" elective officials who
have served a certain number of terms as this would deny the right of the people to choose. As
Commissioner Yusup R. Abubakar asked, "why should we arrogate unto ourselves the right to
decide what the people want?" 7
Commissioner Felicitas S. Aquino spoke in the same vein when she called on her colleagues to
"allow the people to exercise their own sense of proportion and [rely] on their own strength to
curtail power when it overreaches itself." 8
Commissioner Teodoro C. Bacani stressed: "Why should we not leave [perpetual disqualification
after serving a number of terms] to the premise accepted by practically everybody here that our
people are politically mature? Should we use this assumption only when it is convenient for us,
and not when it may also lead to a freedom of choice for the people and for politicians who may
aspire to serve them longer?" 9
Two ideas thus emerge from a consideration of the proceedings of the Constitutional
Commission. The first is the notion of service of term, derived from the concern about the
accumulation of power as a result of a prolonged stay in office. The second is the idea
of election, derived from the concern that the right of the people to choose those whom they
wish to govern them be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on
the assumption that the officials concerned were serving by reason of election. This is clear from
the following exchange in the Constitutional Commission concerning term limits, now embodied
in Art. VI, 4 and 7 of the Constitution, for members of Congress:
MR. GASCON. I would like to ask a question with regard to the issue after
the second term. We will allow the Senator to rest for a period of time before
he can run again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that we left behind before if the
Gentlemen will remember was: How long will that period of rest be? Will
it be one election which is three years or one term which is six years?
MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo
expressed the view that during the election following the expiration of the
first 12 years, whether such election will be on the third year or on the sixth
year thereafter, this particular member of the Senate can run. So, it is not
really a period of hibernation for six years. That was the Committee's
stand. 10
Indeed a fundamental tenet of representative democracy is that the people should be allowed to
choose those whom they please to govern them. 11 To bar the election of a local official because
he has already served three terms, although the first as a result of succession by operation of
law rather than election, would therefore be to violate this principle.
Second, not only historical examination but textual analysis as well supports the ruling of the
COMELEC that Art. X, 8 contemplates service by local officials for three consecutive terms as
a result of election. The first sentence speaks of "the term of office of elective local officials" and
bars "such official[s]" from serving for more than three consecutive terms. The second sentence,
in explaining when an elective local official may be deemed to have served his full term of office,
states that "voluntary renunciation of the office for any length of time shall not be considered as
an interruption in the continuity of his service for the full term for which he was elected." The
term served must therefore be one "for which [the official concerned] was elected." The purpose
of this provision is to prevent a circumvention of the limitation on the number of terms an elective
local official may serve. Conversely, if he is not serving a term for which he was elected because
he is simply continuing the service of the official he succeeds, such official cannot be considered
to have fully served the term notwithstanding his voluntary renunciation of office prior to its
expiration.
Reference is made to Commissioner Bernas' comment on Art. VI, 7, which similarly bars
members of the House of Representatives from serving for more than three terms.
Commissioner Bernas states that "if one is elected Representative to serve the unexpired term
of another, that unexpired term, no matter how short, will be considered one term for the
purpose of computing the number of successive terms allowed." 12
This is actually based on the opinion expressed by Commissioner Davide in answer to a query
of Commissioner Suarez: "For example, a special election is called for a Senator, and the
Senator newly elected would have to serve the unexpired portion of the term. Would that mean
that serving the unexpired portion of the term is already considered one term? So, half a term,
which is actually the correct statement, plus one term would disqualify the Senator concerned
from running? Is that the meaning of this provision on disqualification, Madam President?"
Commissioner Davide said: "Yes, because we speak of "term," and if there is a special election,
he will serve only for the unexpired portion of that particular term plus one more term for the
Senator and two more terms for the Members of the Lower House." 13
There is a difference, however, between the case of a vice-mayor and that of a member of the
House of Representatives who succeeds another who dies, resigns, becomes incapacitated, or
is removed from office. The vice-mayor succeeds to the mayorship by operation of law. 14 On the
other hand, the Representative is elected to fill the vacancy. 15 In a real sense, therefore, such
Representative serves a term for which he was elected. As the purpose of the constitutional
provision is to limit the right to be elected and to serve in Congress, his service of the unexpired
term is rightly counted as his first term. Rather than refute what we believe to be the intendment
of Art. X, 8 with regard to elective local officials, the case of a Representative who succeeds
another confirms the theory.
Petitioner also cites Art. VII, 4 of the Constitution which provides for succession of the Vice- Case No. 2. Suppose B is elected mayor and, during his first term, he is
President to the Presidency in case of vacancy in that office. After stating that "The President twice suspended for misconduct for a total of 1 year. If he is twice reelected
shall not be eligible for any reelection," this provision says that "No person who has succeeded after that, can he run for one more term in the next election?
as President and has served as such for more than four years shall be qualified for election to
the same office at any time." Petitioner contends that, by analogy, the vice-mayor should
Yes, because he has served only two full terms successively.
likewise be considered to have served a full term as mayor if he succeeds to the latter's office
and serves for the remainder of the term.
In both cases, the mayor is entitled to run for reelection because the two conditions for the
application of the disqualification provisions have not concurred, namely, that the local official
The framers of the Constitution included such a provision because, without it, the Vice-
concerned has been elected three consecutive times and that he has fully served three
President, who simply steps into the Presidency by succession, would be qualified to run
consecutive terms. In the first case, even if the local official is considered to have served three
President even if he has occupied that office for more than four years. The absence of a similar
full terms notwithstanding his resignation before the end of the first term, the fact remains that he
provision in Art. X, 8 on elective local officials throws in bold relief the difference between the
has not been elected three times. In the second case, the local official has been elected three
two cases. It underscores the constitutional intent to cover only the terms of office to which one
consecutive times, but he has not fully served three consecutive terms.
may have been elected for purposes of the three-term limit on local elective officials,
disregarding for this purpose service by automatic succession.
Case No. 3. The case of vice-mayor C who becomes mayor by succession
involves a total failure of the two conditions to concur for the purpose of
There is another reason why the Vice-President who succeeds to the Presidency and serves in
applying Art. X, 8. Suppose he is twice elected after that term, is he
that office for more than four years is ineligible for election as President. The Vice-President is
qualified to run again in the next election?
elected primarily to succeed the President in the event of the latter's death, permanent disability,
removal, or resignation. While he may be appointed to the cabinet, his becoming, so is entirely
dependent on the good graces of the President. In running for Vice-President, he may thus be Yes, because he was not elected to the office of mayor in the first term but
said to also seek the Presidency. For their part, the electors likewise choose as Vice-President simply found himself thrust into it by operation of law. Neither had he served
the candidate who they think can fill the Presidency in the event it becomes vacant. Hence, the full term because he only continued the service, interrupted by the
service in the Presidency for more than four years may rightly be considered as service for a full death, of the deceased mayor.
term.
To consider C in the third case to have served the first term in full and therefore ineligible to run
This is not so in the case of the vice-mayor. Under the Local Government Code, he is the a third time for reelection would be not only to falsify reality but also to unduly restrict the right of
presiding officer of the sanggunian and he appoints all officials and employees of such local the people to choose whom they wish to govern them. If the vice-mayor turns out to be a bad
assembly. He has distinct powers and functions, succession to mayorship in the event of mayor, the people can remedy the situation by simply not reelecting him for another term. But if,
vacancy therein being only one of on the other hand, he proves to be a good mayor, there will be no way the people can return him
them. 16 It cannot be said of him, as much as of the Vice-President in the event of a vacancy in to office (even if it is just the third time he is standing for reelection) if his service of the first term
the Presidency, that, in running for vice-mayor, he also seeks the mayorship. His assumption of is counted as one for the purpose of applying the term limit.
the mayorship in the event of vacancy is more a matter of chance than of design. Hence, his
service in that office should not be counted in the application of any term limit.
To consider C as eligible for reelection would be in accord with the understanding of the
Constitutional Commission that while the people should be protected from the evils that a
To recapitulate, the term limit for elective local officials must be taken to refer to the right to be monopoly of political power may bring about, care should be taken that their freedom of choice is
elected as well as the right to serve in the same elective position. Consequently, it is not enough not unduly curtailed.
that an individual has served three consecutive terms in an elective local office, he must also
have been elected to the same position for the same number of times before the disqualification
WHEREFORE, the petition is DISMISSED.
can apply. This point can be made clearer by considering the following cases or situations:

Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of SO ORDERED.

the death of the incumbent. Six months before the next election, he resigns
and is twice elected thereafter. Can he run again for mayor in the next
election?

Yes, because although he has already first served as mayor by succession

and subsequently resigned from office before the full term expired, he has
not actually served three full terms in all for the purpose of applying the term
limit. Under Art. X, 8, voluntary renunciation of the office is not considered
as an interruption in the continuity of his service for the full term only if the
term is one "for which he was elected." Since A is only completing the
service of the term for which the deceased and not he was
elected, A cannot be considered to have completed one term. His
resignation constitutes an interruption of the full term.
 EN BANC
[G.R. No. 157013. July 10, 2003]
ATTY. ROMULO B. MACALINTAL, petitioner, vs. COMMISSION ON ELECTIONS, HON.
ALBERTO ROMULO, in his official capacity as Executive Secretary, and HON.
EMILIA T. BONCODIN, Secretary of the Department of Budget and
Management, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal, a
member of the Philippine Bar, seeking a declaration that certain provisions of Republic Act No.
9189 (The Overseas Absentee Voting Act of 2003)[1] suffer from constitutional infirmity. Claiming
that he has actual and material legal interest in the subject matter of this case in seeing to it that
public funds are properly and lawfully used and appropriated, petitioner filed the instant petition
as a taxpayer and as a lawyer.
The Court upholds the right of petitioner to file the present petition.
R.A. No. 9189, entitled, An Act Providing for A System of Overseas Absentee Voting by
Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for Other
Purposes, appropriates funds under Section 29 thereof which provides that a supplemental
budget on the General Appropriations Act of the year of its enactment into law shall provide for
the necessary amount to carry out its provisions. Taxpayers, such as herein petitioner, have the
right to restrain officials from wasting public funds through the enforcement of an unconstitutional
statute.[2] The Court has held that they may assail the validity of a law appropriating public
funds[3]because expenditure of public funds by an officer of the State for the purpose of
executing an unconstitutional act constitutes a misapplication of such funds. [4]
The challenged provision of law involves a public right that affects a great number of
citizens. The Court has adopted the policy of taking jurisdiction over cases whenever the
petitioner has seriously and convincingly presented an issue of transcendental significance to
the Filipino people. This has been explicitly pronounced in Kapatiran ng mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. vs. Tan,[5] where the Court held:
Objections to taxpayers suit for lack of sufficient personality standing, or interest are, however, in
the main procedural matters. Considering the importance to the public of the cases at bar, and in
keeping with the Courts duty, under the 1987 Constitution, to determine whether or not the other
branches of government have kept themselves within the limits of the Constitution and the laws
and that they have not abused the discretion given to them, the Court has brushed aside
technicalities of procedure and has taken cognizance of these petitions. [6]
Indeed, in this case, the Court may set aside procedural rules as the constitutional right of
suffrage of a considerable number of Filipinos is involved.
The question of propriety of the instant petition which may appear to be visited by the vice
of prematurity as there are no ongoing proceedings in any tribunal, board or before a
government official exercising judicial, quasi-judicial or ministerial functions as required by Rule
65 of the Rules of Court, dims in light of the importance of the constitutional issues raised by the
petitioner. In Taada vs. Angara,[7] the Court held:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the dispute. The question thus posed is judicial
rather than political. The duty (to adjudicate) remains to assure that the supremacy of the
Constitution is upheld. Once a controversy as to the application or interpretation of constitutional
provision is raised before this Court (as in the instant case), it becomes a legal issue which the
Court is bound by constitutional mandate to decide.
In another case of paramount impact to the Filipino people, it has been expressed that it is
illogical to await the adverse consequences of the law in order to consider the controversy actual
and ripe for judicial resolution.[8]In yet another case, the Court said that:
. . . despite the inhibitions pressing upon the Court when confronted with constitutional issues, it
will not hesitate to declare a law or act invalid when it is convinced that this must be done. In
arriving at this conclusion, its only criterion will be the Constitution and God as its conscience
gives it in the light to probe its meaning and discover its purpose. Personal motives and political
considerations are irrelevancies that cannot influence its decisions. Blandishment is as
ineffectual as intimidation, for all the awesome power of the Congress and Executive, the Court
will not hesitate to make the hammer fall heavily, where the acts of these departments, or of any
official, betray the peoples will as expressed in the Constitution . . . [9]
The need to consider the constitutional issues raised before the Court is further buttressed
by the fact that it is now more than fifteen years since the ratification of the 1987 Constitution
requiring Congress to provide a system for absentee voting by qualified Filipinos abroad. Thus,
strong reasons of public policy demand that the Court resolves the instant petition [10] and
determine whether Congress has acted within the limits of the Constitution or if it had gravely
abused the discretion entrusted to it.[11]
The petitioner raises three principal questions:
A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who
are immigrants or permanent residents in other countries by their mere act of
executing an affidavit expressing their intention to return to the Philippines, violate
the residency requirement in Section 1 of Article V of the Constitution?
B. Does Section 18.5 of the same law empowering the COMELEC to proclaim the
winning candidates for national offices and party list representatives including the
President and the Vice-President violate the constitutional mandate under Section
4, Article VII of the Constitution that the winning candidates for President and the
Vice-President shall be proclaimed as winners by Congress?
C. May Congress, through the Joint Congressional Oversight Committee created in
Section 25 of Rep. Act No. 9189, exercise the power to review, revise, amend, and
approve the Implementing Rules and Regulations that the Commission on Elections
shall promulgate without violating the independence of the COMELEC under
Section 1, Article IX-A of the Constitution?
The Court will resolve the questions in seriatim.
A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987
Constitution of the Republic of the Philippines?
Section 5(d) provides:
Sec. 5. Disqualifications. The following shall be disqualified from voting under this Act:
.........
d) An immigrant or a permanent resident who is recognized as such in the host country, unless
he/she executes, upon registration, an affidavit prepared for the purpose by the Commission
declaring that he/she shall resume actual physical permanent residence in the Philippines not
later than three (3) years from approval of his/her registration under this Act. Such affidavit shall
also state that he/she has not applied for citizenship in another country. Failure to return shall be
cause for the removal of the name of the immigrant or permanent resident from the National
Registry of Absentee Voters and his/her permanent disqualification to vote in absentia.
Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of
the 1987 Constitution which requires that the voter must be a resident in the Philippines for at
least one year and in the place where he proposes to vote for at least six months immediately
preceding an election. Petitioner cites the ruling of the Court in Caasi vs. Court of Appeals[12] to
support his claim. In that case, the Court held that a green card holder immigrant to the United
States is deemed to have abandoned his domicile and residence in the Philippines.
Petitioner further argues that Section 1, Article V of the Constitution does not allow
provisional registration or a promise by a voter to perform a condition to be qualified to vote in a
political exercise;[13] that the legislature should not be allowed to circumvent the requirement of
the Constitution on the right of suffrage by providing a condition thereon which in effect amends
or alters the aforesaid residence requirement to qualify a Filipino abroad to vote.[14] He claims
that the right of suffrage should not be granted to anyone who, on the date of the election, does
not possess the qualifications provided for by Section 1, Article V of the Constitution.
Respondent COMELEC refrained from commenting on this issue.[15]
In compliance with the Resolution of the Court, the Solicitor General filed his comment for
all public respondents. He contraposes that the constitutional challenge to Section 5(d) must fail
because of the absence of clear and unmistakable showing that said provision of law is
repugnant to the Constitution. He stresses: All laws are presumed to be constitutional; by the
doctrine of separation of powers, a department of government owes a becoming respect for the
acts of the other two departments; all laws are presumed to have adhered to constitutional
limitations; the legislature intended to enact a valid, sensible, and just law.
In addition, the Solicitor General points out that Section 1, Article V of the Constitution is
a verbatim reproduction of those provided for in the 1935 and the 1973 Constitutions. Thus, he
cites Co vs. Electoral Tribunal of the House of Representatives[16] wherein the Court held that
the term residence has been understood to be synonymous with domicile under both
Constitutions. He further argues that a person can have only one domicile but he can have two
residences, one permanent (the domicile) and the other temporary; [17] and that the definition and
meaning given to the term residence likewise applies to absentee voters. Invoking Romualdez-
Marcos vs. COMELEC[18] which reiterates the Courts ruling in Faypon vs. Quirino,[19] the Solicitor
General maintains that Filipinos who are immigrants or permanent residents abroad may have in
fact never abandoned their Philippine domicile.[20]
Taking issue with the petitioners contention that green card holders are considered to
have abandoned their Philippine domicile, the Solicitor General suggests that the Court may
have to discard its ruling in Caasi vs. Court of Appeals[21] in so far as it relates to immigrants and
permanent residents in foreign countries who have executed and submitted their affidavits
conformably with Section 5(d) of R.A. No. 9189. He maintains that through the execution of the
requisite affidavits, the Congress of the Philippines with the concurrence of the President of the
Republic had in fact given these immigrants and permanent residents the opportunity, pursuant
to Section 2, Article V of the Constitution, to manifest that they had in fact never abandoned their
Philippine domicile; that indubitably, they would have formally and categorically expressed the
requisite intentions, i.e., animus manendi and animus revertendi; that Filipino immigrants and
permanent residents abroad possess the unquestionable right to exercise the right of suffrage
under Section 1, Article V of the Constitution upon approval of their registration, conformably
with R.A. No. 9189.[22]
The seed of the present controversy is the interpretation that is given to the phrase,
qualified citizens of the Philippines abroad as it appears in R.A. No. 9189, to wit:
SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a system of honest and
orderly overseas absentee voting that upholds the secrecy and sanctity of the ballot. Towards
this end, the State ensures equal opportunity to all qualified citizens of the Philippines
abroad in the exercise of this fundamental right.
SEC. 3. Definition of Terms. For purposes of this Act:
a) Absentee Voting refers to the process by which qualified citizens of the Philippines
abroad, exercise their right to vote;
f) Overseas Absentee Voter refers to a citizen of the Philippines who is qualified to register
and vote under this Act, not otherwise disqualified by law, who is abroad on the day of
elections. (Emphasis supplied)
SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise
disqualified by law, at least eighteen (18) years of age on the day of elections, may vote for
president, vice-president, senators and party-list representatives.(Emphasis supplied)
in relation to Sections 1 and 2, Article V of the Constitution which read:
SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by
law, who are at least eighteen years of age, and who shall have resided in the Philippines for at
least one year and in the place wherein they propose to vote for at least six months immediately
preceding the election. No literacy, property, or other substantive requirement shall be imposed
on the exercise of suffrage.
SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the
ballot as well as a system for absentee voting by qualified Filipinos abroad.
Section 1, Article V of the Constitution specifically provides that suffrage may be exercised
by (1) all citizens of the Philippines, (2) not otherwise disqualified by law, (3) at least eighteen
years of age, (4) who are residents in the Philippines for at least one year and in the place where
they propose to vote for at least six months immediately preceding the election. Under Section
5(d) of R.A. No. 9189, one of those disqualified from voting is an immigrant or permanent
resident who is recognized as such in the host country unless he/she executes an affidavit
declaring that he/she shall resume actual physical permanent residence in the Philippines not
later than three years from approval of his/her registration under said Act.
Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the
Filipinos abroad who are immigrants or permanent residents, to vote. He focuses solely on
Section 1, Article V of the Constitution in ascribing constitutional infirmity to Section 5(d) of R.A.
No. 9189, totally ignoring the provisions of Section 2 empowering Congress to provide a system
for absentee voting by qualified Filipinos abroad.
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the
impression that it contravenes Section 1, Article V of the Constitution. Filipino immigrants and
permanent residents overseas are perceived as having left and abandoned the Philippines to
live permanently in their host countries and therefore, a provision in the law enfranchising those
who do not possess the residency requirement of the Constitution by the mere act of executing
an affidavit expressing their intent to return to the Philippines within a given period, risks a
declaration of unconstitutionality. However, the risk is more apparent than real.
 The Constitution is the fundamental and paramount law of the nation to which all other
laws must conform and in accordance with which all private rights must be determined and all
public authority administered.[23]Laws that do not conform to the Constitution shall be stricken
down for being unconstitutional.
Generally, however, all laws are presumed to be constitutional. In Peralta vs. COMELEC,
the Court said:
. . . An act of the legislature, approved by the executive, is presumed to be within constitutional
limitations. The responsibility of upholding the Constitution rests not on the courts alone but on
the legislature as well. The question of the validity of every statute is first determined by the
legislative department of the government itself.[24]
Thus, presumption of constitutionality of a law must be overcome convincingly:
. . . To declare a law unconstitutional, the repugnancy of that law to the Constitution must be
clear and unequivocal, for even if a law is aimed at the attainment of some public good, no
infringement of constitutional rights is allowed. To strike down a law there must be a clear
showing that what the fundamental law condemns or prohibits, the statute allows it to be done.[25]
As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves
the Court to take a holistic view of the pertinent provisions of both the Constitution and R.A. No.
9189. It is a basic rule in constitutional construction that the Constitution should be construed as
a whole. In Chiongbian vs. De Leon,[26] the Court held that a constitutional provision should
function to the full extent of its substance and its terms, not by itself alone, but in conjunction
with all other provisions of that great document. Constitutional provisions are mandatory in
character unless, either by express statement or by necessary implication, a different intention is
manifest.[27] The intent of the Constitution may be drawn primarily from the language of the
document itself. Should it be ambiguous, the Court may consider the intent of its framers through
their debates in the constitutional convention.[28]
R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section
2, Article V of the Constitution that Congress shall provide a system for voting by qualified
Filipinos abroad. It must be stressed that Section 2 does not provide for the parameters of the
exercise of legislative authority in enacting said law. Hence, in the absence of restrictions,
Congress is presumed to have duly exercised its function as defined in Article VI (The
Legislative Department) of the Constitution.
To put matters in their right perspective, it is necessary to dwell first on the significance of
absentee voting. The concept of absentee voting is relatively new. It is viewed thus:
The method of absentee voting has been said to be completely separable and distinct from the
regular system of voting, and to be a new and different manner of voting from that previously
known, and an exception to the customary and usual manner of voting. The right of absentee
and disabled voters to cast their ballots at an election is purely statutory; absentee voting was
unknown to, and not recognized at, the common law.
Absentee voting is an outgrowth of modern social and economic conditions devised to
accommodate those engaged in military or civil life whose duties make it impracticable for them
to attend their polling places on the day of election, and the privilege of absentee voting may
flow from constitutional provisions or be conferred by statutes, existing in some jurisdictions,
which provide in varying terms for the casting and reception of ballots by soldiers and sailors or
other qualified voters absent on election day from the district or precinct of their residence.
Such statutes are regarded as conferring a privilege and not a right, or an absolute right. When
the legislature chooses to grant the right by statute, it must operate with equality among
all the class to which it is granted; but statutes of this nature may be limited in their
application to particular types of elections. The statutes should be construed in the light
of any constitutional provisions affecting registration and elections, and with due regard to
their texts prior to amendment and to predecessor statutes and the decisions thereunder; they
should also be construed in the light of the circumstances under which they were
enacted; and so as to carry out the objects thereof, if this can be done without doing violence to
their provisions and mandates. Further, in passing on statutes regulating absentee voting,
the court should look to the whole and every part of the election laws, the intent of the
entire plan, and reasons and spirit of their adoption, and try to give effect to every portion
thereof.[29] (Emphasis supplied)
Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same
time, both a resident and an absentee.[30] However, under our election laws and the countless
pronouncements of the Court pertaining to elections, an absentee remains attached to
his residence in the Philippines as residence is considered synonymous with domicile.
In Romualdez-Marcos,[31] the Court enunciated:
Article 50 of the Civil Code decrees that [f]or the exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is their place of habitual residence. In Ong vs.
Republic, this court took the concept of domicile to mean an individuals permanent home, a
place to which, whenever absent for business or for pleasure, one intends to return, and
depends on facts and circumstances in the sense that they disclose intent. Based on the
foregoing, domicile includes the twin elements of the fact of residing or physical presence in a
fixed place and animus manendi, or the intention of returning there permanently.
Residence, in its ordinary conception, implies the factual relationship of an individual to a certain
place. It is the physical presence of a person in a given area, community or country. The
essential distinction between residence and domicile in law is that residence involves the intent
to leave when the purpose for which the resident has taken up his abode ends. One may seek a
place for purposes such as pleasure, business, or health. If a persons intent be to remain, it
becomes his domicile; if his intent is to leave as soon as his purpose is established it is
residence. It is thus, quite perfectly normal for an individual to have different residences in
various places. However, a person can only have a single domicile, unless, for various reasons,
he successfully abandons his domicile in favor of another domicile of choice. In Uytengsu vs.
Republic, we laid this distinction quite clearly:
There is a difference between domicile and residence. Residence is used to indicate a place of
abode, whether permanent or temporary; domicile denotes a fixed permanent residence to
which, when absent, one has the intention of returning. A man may have a residence in one
place and a domicile in another. Residence is not domicile, but domicile is residence coupled
with the intention to remain for an unlimited time. A man can have but one domicile for the same
purpose at any time, but he may have numerous places of residence. His place of residence is
generally his place of domicile, but it is not by any means necessarily so since no length of
residence without intention of remaining will constitute domicile.
For political purposes the concepts of residence and domicile are dictated by the peculiar criteria
of political laws. As these concepts have evolved in our election law, what has clearly and
unequivocally emerged is the fact that residence for election purposes is used
synonymously with domicile.[32] (Emphasis supplied)
 Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this
country, the framers of the Constitution considered the circumstances that impelled them to
require Congress to establish a system for overseas absentee voting, thus:
MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, which here has
a residential restriction, is not denied to citizens temporarily residing or working abroad. Based
on the statistics of several government agencies, there ought to be about two million such
Filipinos at this time. Commissioner Bernas had earlier pointed out that these provisions are
really lifted from the two previous Constitutions of 1935 and 1973, with the exception of the last
paragraph. They could not therefore have foreseen at that time the phenomenon now described
as the Filipino labor force explosion overseas.
According to government data, there are now about 600,000 contract workers and employees,
and although the major portions of these expatriate communities of workers are to be found in
the Middle East, they are scattered in 177 countries in the world.
In a previous hearing of the Committee on Constitutional Commissions and Agencies, the
Chairman of the Commission on Elections, Ramon Felipe, said that there was no insuperable
obstacle to making effective the right of suffrage for Filipinos overseas. Those who have
adhered to their Filipino citizenship notwithstanding strong temptations are exposed to embrace
a more convenient foreign citizenship. And those who on their own or under pressure of
economic necessity here, find that they have to detach themselves from their families to work in
other countries with definite tenures of employment. Many of them are on contract employment
for one, two, or three years. They have no intention of changing their residence on a permanent
basis, but are technically disqualified from exercising the right of suffrage in their countries of
destination by the residential requirement in Section 1 which says:
Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by law,
who are eighteen years of age or over, and who shall have resided in the Philippines for at least
one year and in the place wherein they propose to vote for at least six months preceding the
election.
I, therefore, ask the Committee whether at the proper time they might entertain an amendment
that will make this exercise of the right to vote abroad for Filipino citizens an effective, rather
than merely a nominal right under this proposed Constitution.
FR. BERNAS. Certainly, the Committee will consider that. But more than just saying that, I would
like to make a comment on the meaning of residence in the Constitution because I think it is a
concept that has been discussed in various decisions of the Supreme Court, particularly in the
case of Faypon vs. Quirino, a 1954 case which dealt precisely with the meaning of residence in
the Election Law. Allow me to quote:
A citizen may leave the place of his birth to look for greener pastures, as the saying goes, to
improve his lot and that, of course, includes study in other places, practice of his avocation,
reengaging in business. When an election is to be held, the citizen who left his birthplace to
improve his lot may decide to return to his native town, to cast his ballot, but for professional or
business reasons, or for any other reason, he may not absent himself from the place of his
professional or business activities.
So, they are here registered as voters as he has the qualifications to be one, and is not willing to
give up or lose the opportunity to choose the officials who are to run the government especially
in national elections. Despite such registration, the animus revertendi to his home, to his
domicile or residence of origin has not forsaken him.
This may be the explanation why the registration of a voter in a place other than his residence of
origin has not been deemed sufficient to consider abandonment or loss of such residence of
origin.
In other words, residence in this provision refers to two residence qualifications: residence in the
Philippines and residence in the place where he will vote. As far as residence in the Philippines
is concerned, the word residence means domicile, but as far as residence in the place where he
will actually cast his ballot is concerned, the meaning seems to be different. He could have a
domicile somewhere else and yet he is a resident of a place for six months and he is allowed to
vote there. So that there may be serious constitutional obstacles to absentee voting, unless the
vote of the person who is absent is a vote which will be considered as cast in the place of
his domicile.
MR. OPLE. Thank you for citing the jurisprudence.
It gives me scant comfort thinking of about two million Filipinos who should enjoy the right of
suffrage, at least a substantial segment of these overseas Filipino communities. The Committee,
of course, is aware that when this Article of the Constitution explicitly and unequivocally extends
the right of effective suffrage to Filipinos abroad, this will call for a logistical exercise of global
proportions. In effect, this will require budgetary and administrative commitments on the part of
the Philippine government, mainly through the COMELEC and the Ministry of Foreign Affairs,
and perhaps, a more extensive elaboration of this mechanism that will be put in place to make
effective the right to vote. Therefore, seeking shelter in some wise jurisprudence of the past
may not be sufficient to meet the demands of the right of suffrage for Filipinos
abroad that I have mentioned. But I want to thank the Committee for saying that an amendment
to this effect may be entertained at the proper time. . . . . . . . . .
[33]
(Emphasis supplied)
Thus, the Constitutional Commission recognized the fact that while millions of Filipinos
reside abroad principally for economic reasons and hence they contribute in no small measure
to the economic uplift of this country, their voices are marginal insofar as the choice of this
countrys leaders is concerned.
The Constitutional Commission realized that under the laws then existing and considering
the novelty of the system of absentee voting in this jurisdiction, vesting overseas Filipinos with
the right to vote would spawn constitutional problems especially because the Constitution itself
provides for the residency requirement of voters:
MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod if the term
absentee voting also includes transient voting; meaning, those who are, let us say, studying in
Manila need not go back to their places of registration, for instance, in Mindanao, to cast their
votes.
MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad.
MR. REGALADO. How about those people who cannot go back to the places where they are
registered?
MR. MONSOD. Under the present Election Code, there are provisions for allowing students and
military people who are temporarily in another place to register and vote. I believe that those
situations can be covered by the Omnibus Election Code. The reason we want absentee
voting to be in the Constitution as a mandate to the legislature is that there could be
inconsistency on the residence rule if it is just a question of legislation by Congress. So,
by allowing it and saying that this is possible, then legislation can take care of the
rest.[34] (Emphasis supplied)
Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the
inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems that
could impede the implementation of its pursuit to enfranchise the largest number of qualified
Filipinos who are not in the Philippines that the Constitutional Commission explicitly mandated
Congress to provide a system for overseas absentee voting.
The discussion of the Constitutional Commission on the effect of the residency
requirement prescribed by Section 1, Article V of the Constitution on the proposed system of
absentee voting for qualified Filipinos abroad is enlightening:
MR. SUAREZ. May I just be recognized for a clarification. There are certain qualifications for the
exercise of the right of suffrage like having resided in the Philippines for at least one year and in
the place where they propose to vote for at least six months preceding the elections. What is the
effect of these mandatory requirements on the matter of the exercise of the right of suffrage by
the absentee voters like Filipinos abroad?
THE PRESIDENT. Would Commissioner Monsod care to answer?
MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that the
domicile requirements as well as the qualifications and disqualifications would be the same.
THE PRESIDENT. Are we leaving it to the legislature to devise the system?
FR. BERNAS. I think there is a very legitimate problem raised there.
THE PRESIDENT. Yes.
MR. BENGZON. I believe Commissioner Suarez is clarified.
FR. BERNAS. But I think it should be further clarified with regard to the residence requirement or
the place where they vote in practice; the understanding is that it is flexible. For instance, one
might be a resident of Naga or domiciled therein, but he satisfies the requirement of residence in
Manila, so he is able to vote in Manila.
MR. TINGSON. Madam President, may I then suggest to the Committee to change the word
Filipinos to QUALIFIED FILIPINO VOTERS. Instead of VOTING BY FILIPINOS ABROAD, it
should be QUALIFIED FILIPINO VOTERS. If the Committee wants QUALIFIED VOTERS
LIVING ABROAD, would that not satisfy the requirement?
THE PRESIDENT. What does Commissioner Monsod say?
MR. MONSOD. Madam President, I think I would accept the phrase QUALIFIED FILIPINOS
ABROAD because QUALIFIED would assume that he has the qualifications and none of the
disqualifications to vote.
MR. TINGSON. That is right. So does the Committee accept?
FR. BERNAS. QUALIFIED FILIPINOS ABROAD?
THE PRESIDENT. Does the Committee accept the amendment?
MR. REGALADO. Madam President.
THE PRESIDENT. Commissioner Regalado is recognized.
MR. REGALADO. When Commissioner Bengzon asked me to read my proposed amendment, I
specifically stated that the National Assembly shall prescribe a system which will enable
qualified citizens, temporarily absent from the Philippines, to vote. According to Commissioner
Monsod, the use of the phrase absentee voting already took that into account as its
meaning. That is referring to qualified Filipino citizens temporarily abroad.
MR. MONSOD. Yes, we accepted that. I would like to say that with respect to registration we will
leave it up to the legislative assembly, for example, to require where the registration is. If it is,
say, members of the diplomatic corps who may be continuously abroad for a long time, perhaps,
there can be a system of registration in the embassies. However, we do not like to preempt the
legislative assembly.
THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is only to provide a
system.
MR. MONSOD. Yes.
THE PRESIDENT. The Commissioner is not stating here that he wants new qualifications for
these absentee voters.
MR. MONSOD. That is right. They must have the qualifications and none of the disqualifications.
THE PRESIDENT. It is just to devise a system by which they can vote.
MR. MONSOD. That is right, Madam President.[35] (Emphasis supplied)
Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the
responsibility of devising a system of absentee voting. The qualifications of voters as stated in
Section 1 shall remain except for the residency requirement. This is in fact the reason why the
Constitutional Commission opted for the term qualified Filipinos abroad with respect to the
system of absentee voting that Congress should draw up. As stressed by Commissioner
Monsod, by the use of the adjective qualified with respect to Filipinos abroad, the assumption is
that they have the qualifications and none of the disqualifications to vote. In fine-tuning the
provision on absentee voting, the Constitutional Commission discussed how the system should
work:
MR. SUAREZ. For clarification purposes, we just want to state for the record that in the case of
qualified Filipino citizens residing abroad and exercising their right of suffrage, they can cast
their votes for the candidates in the place where they were registered to vote in the
Philippines. So as to avoid any complications, for example, if they are registered in Angeles City,
they could not vote for a mayor in Naga City.
In other words, if that qualified voter is registered in Angeles City, then he can vote only for the
local and national candidates in Angeles City. I just want to make that clear for the record.
MR. REGALADO. Madam President.
THE PRESIDENT. What does Commissioner Regalado say?
MR. REGALADO. I just want to make a note on the statement of Commissioner
Suarez that this envisions Filipinos residing abroad. The understanding in the
amendment is that the Filipino is temporarily abroad. He may not be actually
residing abroad; he may just be there on a business trip. It just so happens
that the day before the elections he has to fly to the United States, so he could
not cast his vote. He is temporarily abroad, but not residing there.He stays in
a hotel for two days and comes back. This is not limited only to Filipinos
temporarily residing abroad. But as long as he is temporarily abroad on
the date of the elections, then he can fall within the prescription of
Congress in that situation.
MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we
need this clarification on record.
MR. MONSOD. Madam President, to clarify what we mean by temporarily
abroad, it need not be on very short trips. One can be abroad on a treaty
traders visa. Therefore, when we talk about registration, it is possible that his
residence is in Angeles and he would be able to vote for the candidates in
Angeles, but Congress or the Assembly may provide the procedure for
registration, like listing ones name, in a registry list in the embassy
abroad. That is still possible under the system.
FR. BERNAS. Madam President, just one clarification if Commissioner Monsod
agrees with this.
Suppose we have a situation of a child of a diplomatic officer who reaches the
voting age while living abroad and he has never registered here. Where will
he register? Will he be a registered voter of a certain locality in the
Philippines?
MR. MONSOD. Yes, it is possible that the system will enable that child to comply
with the registration requirements in an embassy in the United States and his
name is then entered in the official registration book in Angeles City, for
instance.
FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a
registered voter of a locality here.
MR. MONSOD. That is right. He does not have to come home to the Philippines to
comply with the registration procedure here.
FR. BERNAS. So, he does not have to come home.
MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are
more clarifications needed from the body.
Also, the Floor Leader is happy to announce that there are no more registered
Commissioners to propose amendments. So I move that we close the period of amendments.
[36]
(Emphasis supplied)
It is clear from these discussions of the members of the Constitutional Commission that
they intended to enfranchise as much as possible all Filipino citizens abroad who have not
abandoned their domicile of origin.The Commission even intended to extend to young Filipinos
who reach voting age abroad whose parents domicile of origin is in the Philippines, and consider
them qualified as voters for the first time.
It is in pursuance of that intention that the Commission provided for Section 2 immediately
after the residency requirement of Section 1. By the doctrine of necessary implication in statutory
construction, which may be applied in construing constitutional provisions,[37] the strategic
location of Section 2 indicates that the Constitutional Commission provided for an exception to
the actual residency requirement of Section 1 with respect to qualified Filipinos abroad. The
same Commission has in effect declared that qualified Filipinos who are not in the Philippines
may be allowed to vote even though they do not satisfy the residency requirement in Section 1,
Article V of the Constitution.
That Section 2 of Article V of the Constitution is an exception to the residency requirement
found in Section 1 of the same Article was in fact the subject of debate when Senate Bill No.
2104, which became R.A. No. 9189, was deliberated upon on the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked into in relation to the
constitutional provisions. I think the sponsor and I would agree that the
Constitution is supreme in any statute that we may enact.
Let me read Section 1, Article V, of the Constitution entitled, Suffrage. It says:
Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified
by law, who are at least eighteen years of age, and who shall have resided in the Philippines for
at least one year and in the place wherein they propose to vote for at least six months
immediately preceding the election.
Now, Mr. President, the Constitution says, who shall have resided in the
Philippines. They are permanent immigrants. They have changed residence
so they are barred under the Constitution. This is why I asked whether this
committee amendment which in fact does not alter the original text of the bill
will have any effect on this?
Senator Angara. Good question, Mr. President. And this has been asked in various
fora. This is in compliance with the Constitution. One, the interpretation here
of residence is synonymous with domicile.
As the gentleman and I know, Mr. President, domicile is the intent to return to ones
home. And the fact that a Filipino may have been physically absent from
the Philippines and may be physically a resident of the United States, for
example, but has a clear intent to return to the Philippines, will make him
qualified as a resident of the Philippines under this law.
This is consistent, Mr. President, with the constitutional mandate that we that
Congress must provide a franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle literally as demanding
physical presence, then there is no way we can provide for offshore
voting to our offshore kababayan, Mr. President.
Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article
V, it reads: The Congress shall provide a system for securing the secrecy and
sanctity of the ballot as well as a system for absentee voting by qualified
Filipinos abroad.
The key to this whole exercise, Mr. President, is qualified. In other words,
anything that we may do or say in granting our compatriots abroad must
be anchored on the proposition that they are qualified. Absent the
qualification, they cannot vote. And residents (sic) is a qualification.
I will lose votes here from permanent residents so-called green-card holders, but the
Constitution is the Constitution. We cannot compromise on this. The Senate
cannot be a party to something that would affect or impair the Constitution.
Look at what the Constitution says In the place wherein they propose to vote for at
least six months immediately preceding the election.
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are
separated only by a creek. But one who votes in Makati cannot vote in
Pateros unless he resides in Pateros for six months. That is how restrictive
our Constitution is. I am not talking even about the Election Code. I am talking
about the Constitution.
As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so.
But he must do so, make the transfer six months before the election,
otherwise, he is not qualified to vote.
That is why I am raising this point because I think we have a fundamental difference
here.
Senator Angara. It is a good point to raise, Mr. President. But it is a point already
well-debated even in the constitutional commission of 1986. And the reason
Section 2 of Article V was placed immediately after the six-month/one-
year residency requirement is to demonstrate unmistakably that Section
2 which authorizes absentee voting is an exception to the six-
month/one-year residency requirement. That is the first principle, Mr.
President, that one must remember.
The second reason, Mr. President, is that under our jurisprudence and I think this is
so well-entrenched that one need not argue about it residency has been
interpreted as synonymous with domicile.
But the third more practical reason, Mr. President, is, if we follow the
interpretation of the gentleman, then it is legally and constitutionally
impossible to give a franchise to vote to overseas Filipinos who do not
physically live in the country, which is quite ridiculous because that is
exactly the whole point of this exercise to enfranchise them and
empower them to vote.
[38]
(Emphasis supplied)
Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting
process, to wit:
SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by
law, at least eighteen (18) years of age on the day of elections, may vote for president, vice-
president, senators and party-list representatives.
which does not require physical residency in the Philippines; and Section 5 of the assailed law
which enumerates those who are disqualified, to wit:
SEC. 5. Disqualifications. The following shall be disqualified from voting under this Act:
a) Those who have lost their Filipino citizenship in accordance with Philippine laws;
b) Those who have expressly renounced their Philippine citizenship and who have pledged
allegiance to a foreign country;
c) Those who have committed and are convicted in a final judgment by a court or tribunal of an
offense punishable by imprisonment of not less than one (1) year, including those who have
committed and been found guilty of Disloyalty as defined under Article 137 of the Revised Penal
Code, such disability not having been removed by plenary pardon or
amnesty: Provided, however, That any person disqualified to vote under this subsection shall
automatically acquire the right to vote upon expiration of five (5) years after service of
sentence; Provided, further, That the Commission may take cognizance of final judgments
issued by foreign courts or tribunals only on the basis of reciprocity and subject to the formalities
and processes prescribed by the Rules of Court on execution of judgments;
d) An immigrant or a permanent resident who is recognized as such in the host country, unless
he/she executes, upon registration, an affidavit prepared for the purpose by the Commission
declaring that he/she shall resume actual physical permanent residence in the Philippines not
later than three (3) years from approval of his/her registration under this Act. Such affidavit shall
also state that he/she has not applied for citizenship in another country. Failure to return shall be
cause for the removal of the name of the immigrant or permanent resident from the National
Registry of Absentee Voters and his/her permanent disqualification to vote in absentia.
e) Any citizen of the Philippines abroad previously declared insane or incompetent by competent
authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or
foreign service establishments concerned, unless such competent authority subsequently
certifies that such person is no longer insane or incompetent.
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies
an immigrant or permanent resident who is recognized as such in the host country because
immigration or permanent residence in another country implies renunciation of ones residence in
his country of origin. However, same Section allows an immigrant and permanent resident
abroad to register as voter for as long as he/she executes an affidavit to show that he/she has
not abandoned his domicile in pursuance of the constitutional intent expressed in Sections 1 and
2 of Article V that all citizens of the Philippines not otherwise disqualified by law must be entitled
to exercise the right of suffrage and, that Congress must establish a system for absentee voting;
for otherwise, if actual, physical residence in the Philippines is required, there is no sense for the
framers of the Constitution to mandate Congress to establish a system for absentee voting.
Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or
enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the
immigrant or permanent resident to go back and resume residency in the Philippines, but more
significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of
origin. Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates
the Constitution that proscribes provisional registration or a promise by a voter to perform a
condition to be qualified to vote in a political exercise.
To repeat, the affidavit is required of immigrants and permanent residents abroad because
by their status in their host countries, they are presumed to have relinquished their intent to
return to this country; thus, without the affidavit, the presumption of abandonment of Philippine
domicile shall remain.
Further perusal of the transcripts of the Senate proceedings discloses another reason why
the Senate required the execution of said affidavit. It wanted the affiant to exercise the option to
return or to express his intention to return to his domicile of origin and not to preempt that choice
by legislation. Thus:
Senator Villar. Yes, we are going back.
It states that: For Filipino immigrants and those who have acquired permanent
resident status abroad, a requirement for the registration is the submission of
a Sworn Declaration of Intent to Return duly sworn before any Philippine
embassy or consulate official authorized to administer oath
Mr. President, may we know the rationale of this provision? Is the purpose of this
Sworn Declaration to include only those who have the intention of returning to
be qualified to exercise the right of suffrage? What if the Filipino immigrant
has no purpose of returning? Is he automatically disbarred from exercising
this right to suffrage?
Senator Angara. The rationale for this, Mr. President, is that we want to be
expansive and all-inclusive in this law. That as long as he is a Filipino,
no matter whether he is a green-card holder in the U.S. or not, he will be
authorized to vote. But if he is already a green-card holder, that means
he has acquired permanent residency in the United States, then he must
indicate an intention to return. This is what makes for the definition of
domicile. And to acquire the vote, we thought that we would require the
immigrants and the green-card holders . . . Mr. President, the three
administration senators are leaving, maybe we may ask for a vote [Laughter].
Senator Villar. For a merienda, Mr. President.
Senator Angara. Mr. President, going back to the business at hand. The rationale
for the requirement that an immigrant or a green-card holder should file an
affidavit that he will go back to the Philippines is that, if he is already an
immigrant or a green-card holder, that means he may not return to the country
any more and that contradicts the definition of domicile under the law.
But what we are trying to do here, Mr. President, is really provide the choice to
the voter. The voter, after consulting his lawyer or after deliberation within the
family, may decide No, I think we are risking our permanent status in the
United States if we file an affidavit that we want to go back. But we want to
give him the opportunity to make that decision. We do not want to make
that decision for him. [39] (Emphasis supplied)
The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are
disqualified to run for any elective office finds no application to the present case because
the Caasi case did not, for obvious reasons, consider the absentee voting rights of Filipinos who
are immigrants and permanent residents in their host countries.
In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still be
considered as a qualified citizen of the Philippines abroad upon fulfillment of the requirements of
registration under the new law for the purpose of exercising their right of suffrage.
It must be emphasized that Section 5(d) does not only require an affidavit or a promise to
resume actual physical permanent residence in the Philippines not later than three years from
approval of his/her registration, the Filipinos abroad must also declare that they have not applied
for citizenship in another country. Thus, they must return to the Philippines; otherwise, their
failure to return shall be cause for the removal of their names from the National Registry of
Absentee Voters and his/her permanent disqualification to vote in absentia.
Thus, Congress crafted a process of registration by which a Filipino voter permanently
residing abroad who is at least eighteen years old, not otherwise disqualified by law, who has
not relinquished Philippine citizenship and who has not actually abandoned his/her intentions to
return to his/her domicile of origin, the Philippines, is allowed to register and vote in the
Philippine embassy, consulate or other foreign service establishments of the place which has
jurisdiction over the country where he/she has indicated his/her address for purposes of the
elections, while providing for safeguards to a clean election.
Thus, Section 11 of R.A. No. 9189 provides:
SEC. 11. Procedure for Application to Vote in Absentia.
11.1. Every qualified citizen of the Philippines abroad whose application for registration has been
approved, including those previously registered under Republic Act No. 8189, shall, in every
national election, file with the officer of the embassy, consulate or other foreign service
establishment authorized by the Commission, a sworn written application to vote in a form
prescribed by the Commission. The authorized officer of such embassy, consulate or other
foreign service establishment shall transmit to the Commission the said application to vote within
five (5) days from receipt thereof. The application form shall be accomplished in triplicate and
submitted together with the photocopy of his/her overseas absentee voter certificate of
registration.
11.2. Every application to vote in absentia may be done personally at, or by mail to, the
embassy, consulate or foreign service establishment, which has jurisdiction over the country
where he/she has indicated his/her address for purposes of the elections.
11.3. Consular and diplomatic services rendered in connection with the overseas absentee
voting processes shall be made available at no cost to the overseas absentee voter.
Contrary to petitioners claim that Section 5(d) circumvents the Constitution, Congress
enacted the law prescribing a system of overseas absentee voting in compliance with the
constitutional mandate. Such mandate expressly requires that Congress provide a system
of absentee voting that necessarily presupposes that the qualified citizen of the Philippines
abroad is not physically present in the country. The provisions of Sections 5(d) and 11 are
components of the system of overseas absentee voting established by R.A. No. 9189. The
qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in
the Philippines. He is presumed not to have lost his domicile by his physical absence from this
country. His having become an immigrant or permanent resident of his host country does not
necessarily imply an abandonment of his intention to return to his domicile of origin, the
Philippines. Therefore, under the law, he must be given the opportunity to express that he has
not actually abandoned his domicile in the Philippines by executing the affidavit required by
Sections 5(d) and 8(c) of the law.
Petitioners speculative apprehension that the implementation of Section 5(d) would affect
the credibility of the elections is insignificant as what is important is to ensure that all those who
possess the qualifications to vote on the date of the election are given the opportunity and
permitted to freely do so. The COMELEC and the Department of Foreign Affairs have enough
resources and talents to ensure the integrity and credibility of any election conducted pursuant to
R.A. No. 9189.
As to the eventuality that the Filipino abroad would renege on his undertaking to return to
the Philippines, the penalty of perpetual disenfranchisement provided for by Section 5(d) would
suffice to serve as deterrence to non-compliance with his/her undertaking under the affidavit.
Petitioner argues that should a sizable number of immigrants renege on their promise to
return, the result of the elections would be affected and could even be a ground to contest the
proclamation of the winning candidates and cause further confusion and doubt on the integrity of
the results of the election. Indeed, the probability that after an immigrant has exercised the right
to vote, he shall opt to remain in his host country beyond the third year from the execution of the
affidavit, is not farfetched. However, it is not for this Court to determine the wisdom of a
legislative exercise. As expressed in Taada vs. Tuvera,[40] the Court is not called upon to rule on
the wisdom of the law or to repeal it or modify it if we find it impractical.
Congress itself was conscious of said probability and in fact, it has addressed the
expected problem. Section 5(d) itself provides for a deterrence which is that the Filipino who fails
to return as promised stands to lose his right of suffrage. Under Section 9, should a registered
overseas absentee voter fail to vote for two consecutive national elections, his name may be
ordered removed from the National Registry of Overseas Absentee Voters.
Other serious legal questions that may be raised would be: what happens to the votes
cast by the qualified voters abroad who were not able to return within three years as
promised? What is the effect on the votes cast by the non-returnees in favor of the winning
candidates? The votes cast by qualified Filipinos abroad who failed to return within three years
shall not be invalidated because they were qualified to vote on the date of the elections, but their
failure to return shall be cause for the removal of the names of the immigrants or permanent
residents from the National Registry of Absentee Voters and their permanent disqualification to
vote in absentia.
In fine, considering the underlying intent of the Constitution, the Court does not find
Section 5(d) of R.A. No. 9189 as constitutionally defective.
B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in
contravention of Section 4, Article VII of the Constitution?
Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for
president, vice-president, senators and party-list representatives.
Section 18.5 of the same Act provides:
SEC. 18. On-Site Counting and Canvassing.
18. 5 The canvass of votes shall not cause the delay of the proclamation of a winning candidate
if the outcome of the election will not be affected by the results thereof. Notwithstanding the
foregoing, the Commission is empowered to order the proclamation of winning
candidates despite the fact that the scheduled election has not taken place in a particular
country or countries, if the holding of elections therein has been rendered impossible by events,
factors and circumstances peculiar to such country or countries, in which events, factors and
circumstances are beyond the control or influence of the Commission. (Emphasis supplied)
Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the
COMELEC to order the proclamation of winning candidates insofar as it affects the canvass of
votes and proclamation of winning candidates for president and vice-president, is
unconstitutional because it violates the following provisions of paragraph 4, Section 4 of Article
VII of the Constitution:
SEC. 4 . . .
The returns of every election for President and Vice-President, duly certified by the board of
canvassers of each province or city, shall be transmitted to the Congress, directed to the
President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate
shall, not later than thirty days after the day of the election, open all the certificates in the
presence of the Senate and the House of Representatives in joint public session, and the
Congress, upon determination of the authenticity and due execution thereof in the manner
provided by law, canvass the votes.
The person having the highest number of votes shall be proclaimed elected, but in case two or
more shall have an equal and highest number of votes, one of them shall forthwith be chosen by
the vote of a majority of all the Members of both Houses of the Congress, voting separately.
The Congress shall promulgate its rules for the canvassing of the certificates.
which gives to Congress the duty to canvass the votes and proclaim the winning candidates for
president and vice-president.
The Solicitor General asserts that this provision must be harmonized with paragraph 4,
Section 4, Article VII of the Constitution and should be taken to mean that COMELEC can only
proclaim the winning Senators and party-list representatives but not the President and Vice-
President.[41]
Respondent COMELEC has no comment on the matter.
Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189
is far too sweeping that it necessarily includes the proclamation of the winning candidates for the
presidency and the vice-presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the
Constitution only insofar as said Section totally disregarded the authority given to Congress by
the Constitution to proclaim the winning candidates for the positions of president and vice-
president.
In addition, the Court notes that Section 18.4 of the law, to wit:
18.4. . . . Immediately upon the completion of the canvass, the chairman of the Special Board of
Canvassers shall transmit via facsimile, electronic mail, or any other means of transmission
equally safe and reliable the Certificates of Canvass and the Statements of Votes to the
Commission, . . . [Emphasis supplied]
clashes with paragraph 4, Section 4, Article VII of the Constitution which provides that the
returns of every election for President and Vice-President shall be certified by the board of
canvassers to Congress.
Congress could not have allowed the COMELEC to usurp a power that constitutionally
belongs to it or, as aptly stated by petitioner, to encroach on the power of Congress to canvass
the votes for president and vice-president and the power to proclaim the winners for the said
positions. The provisions of the Constitution as the fundamental law of the land should be read
as part of The Overseas Absentee Voting Act of 2003 and hence, the canvassing of the votes
and the proclamation of the winning candidates for president and vice-president for the entire
nation must remain in the hands of Congress.
C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IX-A of the
Constitution?
Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A (Common
Provisions) of the Constitution, to wit:
Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service
Commission, the Commission on Elections, and the Commission on Audit. (Emphasis supplied)
He submits that the creation of the Joint Congressional Oversight Committee with the power to
review, revise, amend and approve the Implementing Rules and Regulations promulgated by the
COMELEC, R.A. No. 9189 intrudes into the independence of the COMELEC which, as a
constitutional body, is not under the control of either the executive or legislative departments of
government; that only the COMELEC itself can promulgate rules and regulations which may be
changed or revised only by the majority of its members; and that should the rules promulgated
by the COMELEC violate any law, it is the Court that has the power to review the same via the
petition of any interested party, including the legislators.
It is only on this question that respondent COMELEC submitted its Comment. It agrees
with the petitioner that Sections 19 and 25 of R.A. No. 9189 are unconstitutional. Like the
petitioner, respondent COMELEC anchors its claim of unconstitutionality of said Sections upon
Section 1, Article IX-A of the Constitution providing for the independence of the constitutional
commissions such as the COMELEC. It asserts that its power to formulate rules and regulations
has been upheld in Gallardo vs. Tabamo, Jr.[42] where this Court held that the power of the
COMELEC to formulate rules and regulations is implicit in its power to implement regulations
under Section 2(1) of Article IX-C[43] of the Constitution. COMELEC joins the petitioner in
asserting that as an independent constitutional body, it may not be subject to interference by any
government instrumentality and that only this Court may review COMELEC rules and only in
cases of grave abuse of discretion.
The COMELEC adds, however, that another provision, vis--vis its rule-making power, to
wit:
SEC. 17. Voting by Mail.
17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not more
than three (3) countries, subject to the approval of the Congressional Oversight
Committee. Voting by mail may be allowed in countries that satisfy the following conditions:
a) Where the mailing system is fairly well-developed and secure to prevent occasion for fraud;
b) Where there exists a technically established identification system that would preclude multiple
or proxy voting; and
c) Where the system of reception and custody of mailed ballots in the embassies, consulates
and other foreign service establishments concerned are adequate and well-secured.
Thereafter, voting by mail in any country shall be allowed only upon review and approval of the
Joint Congressional Oversight Committee.
. . . . . . . . . (Emphasis supplied)
is likewise unconstitutional as it violates Section 1, Article IX-A mandating the independence of
constitutional commissions.
The Solicitor General takes exception to his prefatory statement that the constitutional
challenge must fail and agrees with the petitioner that Sections 19 and 25 are invalid and
unconstitutional on the ground that there is nothing in Article VI of the Constitution on Legislative
Department that would as much as imply that Congress has concurrent power to enforce and
administer election laws with the COMELEC; and by the principles of exclusio unius est exclusio
alterius and expressum facit cessare tacitum, the constitutionally enumerated powers of
Congress circumscribe its authority to the exclusion of all others.
The parties are unanimous in claiming that Sections 19, 25 and portions of Section 17.1
are unconstitutional. Thus, there is no actual issue forged on this question raised by petitioner.
 However, the Court finds it expedient to expound on the role of Congress through the Joint
Congressional Oversight Committee (JCOC) vis--vis the independence of the COMELEC, as a
constitutional body.
R.A. No. 9189 created the JCOC, as follows:
SEC. 25. Joint Congressional Oversight Committee. A Joint Congressional Oversight Committee
is hereby created, composed of the Chairman of the Senate Committee on Constitutional
Amendments, Revision of Codes and Laws, and seven (7) other Senators designated by the
Senate President, and the Chairman of the House Committee on Suffrage and Electoral
Reforms, and seven (7) other Members of the House of Representatives designated by the
Speaker of the House of Representatives: Provided, That, of the seven (7) members to be
designated by each House of Congress, four (4) should come from the majority and the
remaining three (3) from the minority.
The Joint Congressional Oversight Committee shall have the power to monitor and
evaluate the implementation of this Act. It shall review, revise, amend and approve the
Implementing Rules and Regulations promulgated by the Commission. (Emphasis
supplied)
SEC. 19. Authority of the Commission to Promulgate Rules. The Commission shall issue the
necessary rules and regulations to effectively implement the provisions of this Act within sixty
(60) days from the effectivity of this Act. The Implementing Rules and Regulations shall be
submitted to the Joint Congressional Oversight Committee created by virtue of this Act
for prior approval.
Composed of Senators and Members of the House of Representatives, the Joint Congressional
Oversight Committee (JCOC) is a purely legislative body. There is no question that the authority
of Congress to monitor and evaluate the implementation of R.A. No. 9189 is geared towards
possible amendments or revision of the law itself and thus, may be performed in aid of its
legislation.
However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to the
JCOC the following functions: (a) to review, revise, amend and approve the Implementing Rules
and Regulations (IRR) promulgated by the COMELEC [Sections 25 and 19]; and (b) subject to
the approval of the JCOC [Section 17.1], the voting by mail in not more than three countries for
the May 2004 elections and in any country determined by COMELEC.
The ambit of legislative power under Article VI of the Constitution is circumscribed by other
constitutional provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution
ordaining that constitutional commissions such as the COMELEC shall be independent.
Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be
an independent COMELEC, the Court has held that [w]hatever may be the nature of the
functions of the Commission on Elections, the fact is that the framers of the Constitution wanted
it to be independent from the other departments of the Government.[44] In an earlier case, the
Court elucidated:
The Commission on Elections is a constitutional body. It is intended to play a distinct and
important part in our scheme of government. In the discharge of its functions, it should not be
hampered with restrictions that would be fully warranted in the case of a less responsible
organization. The Commission may err, so may this court also. It should be allowed considerable
latitude in devising means and methods that will insure the accomplishment of the great
objective for which it was created free, orderly and honest elections. We may not agree fully with
its choice of means, but unless these are clearly illegal or constitute gross abuse of discretion,
this court should not interfere. Politics is a practical matter, and political questions must be dealt
with realistically not from the standpoint of pure theory. The Commission on Elections, because
of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from
actual experience in dealing with political controversies, is in a peculiarly advantageous position
to decide complex political questions.
[45]
(Emphasis supplied)
The Court has no general powers of supervision over COMELEC which is an independent
body except those specifically granted by the Constitution, that is, to review its decisions, orders
and rulings.[46] In the same vein, it is not correct to hold that because of its recognized extensive
legislative power to enact election laws, Congress may intrude into the independence of the
COMELEC by exercising supervisory powers over its rule-making authority.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to
issue the necessary rules and regulations to effectively implement the provisions of this Act
within sixty days from the effectivity of this Act. This provision of law follows the usual procedure
in drafting rules and regulations to implement a law the legislature grants an administrative
agency the authority to craft the rules and regulations implementing the law it has enacted, in
recognition of the administrative expertise of that agency in its particular field of
operation.[47] Once a law is enacted and approved, the legislative function is deemed
accomplished and complete. The legislative function may spring back to Congress relative to the
same law only if that body deems it proper to review, amend and revise the law, but certainly not
to approve, review, revise and amend the IRR of the COMELEC.
By vesting itself with the powers to approve, review, amend, and revise the IRR
for The Overseas Absentee Voting Act of 2003, Congress went beyond the scope of its
constitutional authority. Congress trampled upon the constitutional mandate of independence of
the COMELEC. Under such a situation, the Court is left with no option but to withdraw from its
usual reticence in declaring a provision of law unconstitutional.
The second sentence of the first paragraph of Section 19 stating that [t]he Implementing
Rules and Regulations shall be submitted to the Joint Congressional Oversight Committee
created by virtue of this Act for prior approval, and the second sentence of the second paragraph
of Section 25 stating that [i]t shall review, revise, amend and approve the Implementing Rules
and Regulations promulgated by the Commission, whereby Congress, in both provisions,
arrogates unto itself a function not specifically vested by the Constitution, should be stricken out
of the subject statute for constitutional infirmity. Both provisions brazenly violate the mandate on
the independence of the COMELEC.
Similarly, the phrase, subject to the approval of the Congressional Oversight Committee in
the first sentence of Section 17.1 which empowers the Commission to authorize voting by mail in
not more than three countries for the May, 2004 elections; and the phrase, only upon review and
approval of the Joint Congressional Oversight Committee found in the second paragraph of the
same section are unconstitutional as they require review and approval of voting by mail in any
country after the 2004 elections. Congress may not confer upon itself the authority to approve or
disapprove the countries wherein voting by mail shall be allowed, as determined by the
COMELEC pursuant to the conditions provided for in Section 17.1 of R.A. No.
9189.[48] Otherwise, Congress would overstep the bounds of its constitutional mandate and
intrude into the independence of the COMELEC.
During the deliberations, all the members of the Court agreed to adopt the separate
opinion of Justice Reynato S. Puno as part of the ponencia on the unconstitutionality of Sections
17.1, 19 and 25 of R.A. No. 9189 insofar as they relate to the creation of and the powers given
to the Joint Congressional Oversight Committee.
WHEREFORE, the petition is partly GRANTED. The following portions of R.A. No. 9189
are declared VOID for being UNCONSTITUTIONAL:
 a) The phrase in the first sentence of the first paragraph of Section 17.1, to
wit: subject to the approval of the Joint Congressional Oversight Committee;

b) The portion of the last paragraph of Section 17.1, to wit: only upon review and
approval of the Joint Congressional Oversight Committee;

c) The second sentence of the first paragraph of Section 19, to wit: The
Implementing Rules and Regulations shall be submitted to the Joint
Congressional Oversight Committee created by virtue of this Act for prior
approval; and

d) The second sentence in the second paragraph of Section 25, to wit: It shall review, revise,
amend and approve the Implementing Rules and Regulations promulgated by the
Commission of the same law;

for being repugnant to Section 1, Article IX-A of the Constitution mandating the
independence of constitutional commission, such as COMELEC.

The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect only to the
authority given to the COMELEC to proclaim the winning candidates for the Senators and party-
list representatives but not as to the power to canvass the votes and proclaim the winning
candidates for President and Vice-President which is lodged with Congress under Section 4,
Article VII of the Constitution.

The constitutionality of Section 5(d) is UPHELD.

Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law continues to
be in full force and effect.

SO ORDERED.
Republic of the Philippines (3) Rule 9 which provides for a separate Administrative Staff of the Tribunal with the
Supreme Court appointment of a Clerk and a Deputy Clerk of the Tribunal who, at the discretion of the PET, may
Manila designate the Clerk of Court (en banc) as the Clerk of the Tribunal; and

EN BANC (4) Rule 11 which provides for a seal separate and distinct from the Supreme Court
seal.
ATTY. ROMULO B. MACALINTAL, G.R. No. 191618
Petitioner, Grudgingly, petitioner throws us a bone by acknowledging that the invoked
Present: constitutional provision does allow the appointment of additional personnel.
CORONA, C.J.,
CARPIO,
Further, petitioner highlights our decision in Buac v. COMELEC[4] which peripherally declared
CARPIO MORALES,
that contests involving the President and the Vice-President fall within the exclusive original
VELASCO, JR.,
jurisdiction of the PET, x x x in the exercise of quasi-judicial power. On this point, petitioner
NACHURA,
reiterates that the constitution of the PET, with the designation of the Members of the Court as
LEONARDO-DE CASTRO,
Chairman and Members thereof, contravenes Section 12, Article VIII of the Constitution, which
BRION,
prohibits the designation of Members of the Supreme Court and of other courts established by
- versus - PERALTA,
law to any agency performing quasi-judicial or administrative functions.
BERSAMIN,
DEL CASTILLO,*
The Office of the Solicitor General (OSG), as directed in our Resolution dated April 6, 2010, filed
ABAD,
a Comment[5] thereon. At the outset, the OSG points out that the petition filed by Atty. Macalintal
VILLARAMA, JR.,
is unspecified and without statutory basis; the liberal approach in its preparation x x x is a
PEREZ,
violation of the well known rules of practice and pleading in this jurisdiction.
MENDOZA, and
SERENO, JJ.
In all, the OSG crystallizes the following issues for resolution of the Court:
PRESIDENTIAL ELECTORAL TRIBUNAL, Promulgated:
I
Respondent.
November 23, 2010
WHETHER x x x PETITIONER HAS LOCUS STANDI TO FILE THE
INSTANT PETITION.
x-----------------------------------------------------------------------------------------x

DECISION
II
NACHURA, J.:
WHETHER x x x THE CREATION OF THE PRESIDENTIAL ELECTORAL
TRIBUNAL IS UNCONSTITUTIONAL FOR BEING A VIOLATION OF
PARAGRAPH 7, SECTION 4 OF ARTICLE VII OF THE 1987
Confronting us is an undesignated petition[1] filed by Atty. Romulo B. Macalintal (Atty.
CONSTITUTION.
Macalintal), that questions the constitution of the Presidential Electoral Tribunal (PET) as an
illegal and unauthorized progeny of Section 4,[2] Article VII of the Constitution:
III
The Supreme Court, sitting en banc, shall be the sole judge of all
WHETHER x x x THE DESIGNATION OF MEMBERS OF THE SUPREME
contests relating to the election, returns, and qualifications of the President
COURT AS MEMBERS OF THE PRESIDENTIAL ELECTORAL TRIBUNAL
or Vice-President, and may promulgate its rules for the purpose.
IS UNCONSTITUTIONAL FOR BEING A VIOLATION OF SECTION 12,
ARTICLE VIII OF THE 1987 CONSTITUTION.[6]
While petitioner concedes that the Supreme Court is authorized to promulgate its rules
for the purpose, he chafes at the creation of a purportedly separate tribunal complemented by a
budget allocation, a seal, a set of personnel and confidential employees, to effect the
In his Reply,[7] petitioner maintains that:
constitutional mandate. Petitioners averment is supposedly supported by the provisions of the
2005 Rules of the Presidential Electoral Tribunal (2005 PET Rules),[3] specifically:
1. He has legal standing to file the petition given his averment of transcendental
importance of the issues raised therein;
(1) Rule 3 which provides for membership of the PET wherein the Chief Justice and
2. The creation of the PET, a separate tribunal from the Supreme Court, violates Section 4,
the Associate Justices are designated as Chairman and Members, respectively;
Article VII of the Constitution; and
(2) Rule 8(e) which authorizes the Chairman of the PET to appoint employees and
confidential employees of every member thereof;
3. The PET, being a separate tribunal, exercises quasi-judicial functions contrary to Section 12,
Article VIII of the Constitution.
We winnow the meanderings of petitioner into the singular issue of whether the constitution of
the PET, composed of the Members of this Court, is unconstitutional, and violates Section 4,
Article VII and Section 12, Article VIII of the Constitution.
But first, we dispose of the procedural issue of whether petitioner has standing to file the present
petition.
The issue of locus standi is derived from the following requisites of a judicial inquiry:
1. There must be an actual case or controversy;
2. The question of constitutionality must be raised by the proper
party;
3. The constitutional question must be raised at the earliest
possible opportunity; and
4. The decision of the constitutional question must be necessary
to the determination of the case itself.[8]
On more than one occasion we have characterized a proper party as one who has
sustained or is in immediate danger of sustaining an injury as a result of the act complained
of.[9] The dust has long settled on the test laid down in Baker v. Carr:[10] whether the party has
alleged such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely depends
for illumination of difficult questions.[11] Until and unless such actual or threatened injury is
established, the complainant is not clothed with legal personality to raise the constitutional
question.
Our pronouncements in David v. Macapagal-Arroyo[12] illuminate:
The difficulty of determining locus standi arises in public
suits. Here, the plaintiff who asserts a public right in assailing an allegedly
illegal official action, does so as a representative of the general public. He
may be a person who is affected no differently from any other person. He
could be suing as a stranger, or in the category of a citizen, or taxpayer. In
either case, he has to adequately show that he is entitled to seek judicial
protection. In other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a citizen or
taxpayer.
xxxx
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed with, and
thus hinders the activities of governmental agencies engaged in public
service, the United States Supreme Court laid down the more
stringent direct injury test in Ex Parte Levitt, later reaffirmed in Tileston v.
Ullman. The same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or legislative
action, he must show that he has sustained a direct injury as a result of
that action, and it is not sufficient that he has a general interest
common to all members of the public.
This Court adopted the direct injury test in our
jurisdiction. In People v. Vera, it held that the person who impugns the
validity of a statute must have a personal and substantial interest in the
case such that he has sustained, or will sustain direct injury as a
result. The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate, Manila Race Horse Trainers
Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-
Chinese League of the Philippines v. Felix.
However, being a mere procedural technicality, the requirement
of locus standi may be waived by the Court in the exercise of its discretion.
This was done in the 1949 Emergency Powers Cases, Araneta v.
Dinglasan, where the transcendental importance of the cases prompted
the Court to act liberally. Such liberality was neither a rarity nor
accidental. In Aquino v. Comelec, this Court resolved to pass upon the
issues raised due to the far-reaching implications of the petition
notwithstanding its categorical statement that petitioner therein had no
personality to file the suit. Indeed, there is a chain of cases where this
liberal policy has been observed, allowing ordinary citizens, members of
Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.
xxxx
By way of summary, the following rules may be culled from
the cases decided by this Court. Taxpayers, voters, concerned citizens,
and legislators may be accorded standing to sue, provided that the following
requirements are met:
(1) cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of
public funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the
validity of the election law in question;
(4) for concerned citizens, there must be a showing that the
issues raised are of transcendental importance which must be
settled early; and
(5) for legislators, there must be a claim that the official
action complained of infringes upon their prerogatives
as legislators.
Contrary to the well-settled actual and direct injury test, petitioner has simply alleged a
generalized interest in the outcome of this case, and succeeds only in muddling the issues.
Paragraph 2 of the petition reads:
2. x x x Since the creation and continued operation of the PET involves the
use of public funds and the issue raised herein is of transcendental
importance, it is petitioners humble submission that, as a citizen, a taxpayer
and a member of the BAR, he has the legal standing to file this petition.
But even if his submission is valid, petitioners standing is still imperiled by the white
elephant in the petition, i.e., his appearance as counsel for former President Gloria Macapagal-
Arroyo (Macapagal-Arroyo) in the election protest filed by 2004 presidential candidate Fernando
Poe, Jr. before the Presidential Electoral Tribunal,[13] because judicial inquiry, as mentioned
above, requires that the constitutional question be raised at the earliest possible
opportunity.[14] Such appearance as counsel before the Tribunal, to our mind, would have been
the first opportunity to challenge the constitutionality of the Tribunals constitution.
Although there are recognized exceptions to this requisite, we find none in this
instance. Petitioner is unmistakably estopped from assailing the jurisdiction of the PET before
which tribunal he had ubiquitously appeared and had acknowledged its jurisdiction in 2004. His
failure to raise a seasonable constitutional challenge at that time, coupled with his unconditional
acceptance of the Tribunals authority over the case he was defending, translates to the clear
absence of an indispensable requisite for the proper invocation of this Courts power of judicial
review. Even on this score alone, the petition ought to be dismissed outright.
Prior to petitioners appearance as counsel for then protestee Macapagal-Arroyo, we had
occasion to affirm the grant of original jurisdiction to this Court as a Presidential Electoral
Tribunal in the auspicious case of Tecson v. Commission on Elections.[15] Thus -
Petitioners Tecson, et al., in G.R. No. 161434, and Velez, in G.R.
No. 161634, invoke the provisions of Article VII, Section 4, paragraph 7, of
the 1987 Constitution in assailing the jurisdiction of the COMELEC when it
took cognizance of SPA No. 04-003 and in urging the Supreme Court to
instead take on the petitions they directly instituted before it. The
Constitutional provision cited reads:
"The Supreme Court, sitting en banc, shall be
the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-
President, and may promulgate its rules for the
purpose."
The provision is an innovation of the 1987 Constitution. The omission in the
1935 and the 1973 Constitution to designate any tribunal to be the sole
judge of presidential and vice-presidential contests, has constrained this
Court to declare, in Lopez vs. Roxas, as not (being) justiciable controversies
or disputes involving contests on the elections, returns and qualifications of
the President or Vice-President. The constitutional lapse prompted
Congress, on 21 June 1957, to enact Republic Act No. 1793, "An Act
Constituting an Independent Presidential Electoral Tribunal to Try, Hear and
Decide Protests Contesting the Election of the President-Elect and the Vice-
President-Elect of the Philippines and Providing for the Manner of Hearing
the Same." Republic Act 1793 designated the Chief Justice and the
Associate Justices of the Supreme Court to be the members of the
tribunal. Although the subsequent adoption of the parliamentary form
of government under the 1973 Constitution might have implicitly
affected Republic Act No. 1793, the statutory set-up, nonetheless,
would now be deemed revived under the present Section 4, paragraph
7, of the 1987 Constitution.
Former Chief Justice Reynato S. Puno, in his separate opinion, was even more categorical:
The Court is unanimous on the issue of jurisdiction. It has no
jurisdiction on the Tecson and Valdez petitions. Petitioners cannot invoke
Article VII, Section 4, par. 7 of the Constitution which provides:
The Supreme Court, sitting en banc shall be
the sole judge of all contests relating to the election,
returns and qualifications of the President or Vice
President and may promulgate its rules for the purpose.
The word contest in the provision means that the jurisdiction of this Court
can only be invoked after the election and proclamation of a President or
Vice President. There can be no contest before a winner is proclaimed.[16]
Similarly, in her separate opinion, Justice Alicia Austria-Martinez declared:
G.R. Nos. 161434 and 161634 invoke the Courts exclusive
jurisdiction under the last paragraph of Section 4, Article VII of the 1987
Constitution. I agree with the majority opinion that these petitions should be
dismissed outright for prematurity. The Court has no jurisdiction at this point
of time to entertain said petitions.
The Supreme Court, as a Presidential Electoral Tribunal (PET),
the Senate Electoral Tribunal (SET) and House of Representatives Electoral
Tribunal (HRET) are electoral tribunals, each specifically and exclusively
clothed with jurisdiction by the Constitution to act respectively as sole judge
of all contests relating to the election, returns, and qualifications of the
President and Vice-President, Senators, and Representatives. In a litany of
cases, this Court has long recognized that these electoral tribunals exercise
jurisdiction over election contests only after a candidate has already been
proclaimed winner in an election. Rules 14 and 15 of the Rules of the
Presidential Electoral Tribunal provide that, for President or Vice-President,
election protest or quo warranto may be filed after the proclamation of the
winner.[17]
Petitioner, a prominent election lawyer who has filed several cases before this Court
involving constitutional and election law issues, including, among others, the constitutionality of
certain provisions of Republic Act (R.A.) No. 9189 (The Overseas Absentee Voting Act of
2003),[18] cannot claim ignorance of: (1) the invocation of our jurisdiction under Section 4, Article
VII of the Constitution; and (2) the unanimous holding thereon. Unquestionably, the overarching
framework affirmed in Tecson v. Commission on Elections[19] is that the Supreme Court has
original jurisdiction to decide presidential and vice-presidential election protests while
concurrently acting as an independent Electoral Tribunal.
Despite the foregoing, petitioner is adamant on his contention that the provision, as
worded, does not authorize the constitution of the PET. And although he concedes that the
Supreme Court may promulgate its rules for this purpose, petitioner is insistent that the
constitution of the PET is unconstitutional. However, petitioner avers that it allows the Court to
appoint additional personnel for the purpose, notwithstanding the silence of the constitutional
provision.
Petitioners pastiche arguments are all hurled at the Court, hopeful that at least one
might possibly stick. But these arguments fail to elucidate on the scope of the rules the Supreme
Court is allowed to promulgate. Apparently, petitioners concept of this adjunct of judicial power is
very restrictive. Fortunately, thanks in no part to petitioners opinion, we are guided by well-
settled principles of constitutional construction.
Verba legis dictates that wherever possible, the words used in the Constitution must
be given their ordinary meaning except where technical terms are employed, in which case the
significance thus attached to them prevails. This Court, speaking through former Chief Justice
Enrique Fernando, in J.M. Tuason & Co., Inc. v. Land Tenure Administration[20] instructs:
As the Constitution is not primarily a lawyers document, it being essential for
the rule of law to obtain that it should ever be present in the peoples
consciousness, its language as much as possible should be understood in
the sense they have in common use. What it says according to the text of
the provision to be construed compels acceptance and negates the power
 of the courts to alter it, based on the postulate that the framers and the
people mean what they say. Thus these are cases where the need for
construction is reduced to a minimum.
However, where there is ambiguity or doubt, the words of the Constitution should be interpreted
in accordance with the intent of its framers or ratio legis et anima. A doubtful provision must be
examined in light of the history of the times, and the condition and circumstances surrounding
the framing of the Constitution.[21] In following this guideline, courts should bear in mind the
object sought to be accomplished in adopting a doubtful constitutional provision, and the evils
sought to be prevented or remedied.[22] Consequently, the intent of the framers and the people
ratifying the constitution, and not the panderings of self-indulgent men, should be given effect.
Last, ut magis valeat quam pereat the Constitution is to be interpreted as a whole. We intoned
thus in the landmark case of Civil Liberties Union v. Executive Secretary:[23]
It is a well-established rule in constitutional construction that no one
provision of the Constitution is to be separated from all the others, to be
considered alone, but that all the provisions bearing upon a particular
subject are to be brought into view and to be so interpreted as to effectuate
the great purposes of the instrument. Sections bearing on a particular
subject should be considered and interpreted together as to effectuate the
whole purpose of the Constitution and one section is not to be allowed to
defeat another, if by any reasonable construction, the two can be made to
stand together.
In other words, the court must harmonize them, if practicable, and
must lean in favor of a construction which will render every word operative,
rather than one which may make the words idle and nugatory.
We had earlier expounded on this rule of construction in Chiongbian v. De Leon, et al., [24] to wit:
[T]he members of the Constitutional Convention could not have dedicated a
provision of our Constitution merely for the benefit of one person without
considering that it could also affect others. When they adopted subsection
2, they permitted, if not willed, that said provision should function to the full
extent of its substance and its terms, not by itself alone, but in conjunction
with all other provisions of that great document.
On its face, the contentious constitutional provision does not specify the establishment
of the PET. But neither does it preclude, much less prohibit, otherwise. It entertains divergent
interpretations which, though unacceptable to petitioner, do not include his restrictive view one
which really does not offer a solution.
Section 4, Article VII of the Constitution, the provision under scrutiny, should be read
with other related provisions of the Constitution such as the parallel provisions on the Electoral
Tribunals of the Senate and the House of Representatives.
Before we resort to the records of the Constitutional Commission, we discuss the
framework of judicial power mapped out in the Constitution. Contrary to petitioners assertion, the
Supreme Courts constitutional mandate to act as sole judge of election contests involving our
countrys highest public officials, and its rule-making authority in connection therewith, is not
restricted; it includes all necessary powers implicit in the exercise thereof.
We recall the unprecedented and trailblazing case of Marcos v. Manglapus:[25]
The 1987 Constitution has fully restored the separation of powers
of the three great branches of government. To recall the words of Justice
Laurel in Angara v. Electoral Commission, the Constitution has blocked but
with deft strokes and in bold lines, allotment of power to the executive, the
legislative and the judicial departments of the government. Thus, the 1987
Constitution explicitly provides that [t]he legislative power shall be vested in
the Congress of the Philippines [Art. VI, Sec. 1], [t]he executive power shall
be vested in the President of the Philippines [Art. VII, Sec. 1], and [t]he
judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law [Art. VIII, Sec. 1]. These provisions not
only establish a separation of powers by actual division but also confer
plenary legislative, executive and judicial powers subject only to limitations
provided in the Constitution. For as the Supreme Court in Ocampo v.
Cabangis pointed out a grant of the legislative power means a grant of
all legislative power; and a grant of the judicial power means a grant of
all the judicial power which may be exercised under the government.
The Court could not have been more explicit then on the plenary grant and exercise of judicial
power. Plainly, the abstraction of the Supreme Court acting as a Presidential Electoral
Tribunal from the unequivocal grant of jurisdiction in the last paragraph of Section 4, Article VII of
the Constitution is sound and tenable.
The mirabile dictu of the grant of jurisdiction to this Court, albeit found in the Article on
the executive branch of government, and the constitution of the PET, is evident in the
discussions of the Constitutional Commission. On the exercise of this Courts judicial power as
sole judge of presidential and vice-presidential election contests, and to promulgate its rules for
this purpose, we find the proceedings in the Constitutional Commission most instructive:
MR. DAVIDE. On line 25, after the words Vice-President, I
propose to add AND MAY PROMULGATE ITS RULES FOR THE
PURPOSE. This refers to the Supreme Court sitting en banc. This is also
to confer on the Supreme Court exclusive authority to enact the
necessary rules while acting as sole judge of all contests relating to
the election, returns and qualifications of the President or Vice-
President.
MR. REGALADO. My personal position is that the rule-making
power of the Supreme Court with respect to its internal procedure is
already implicit under the Article on the Judiciary; considering,
however, that according to the Commissioner, the purpose of this is to
indicate the sole power of the Supreme Court without intervention by
the legislature in the promulgation of its rules on this particular point, I
think I will personally recommend its acceptance to the Committee.[26]
xxxx
MR. NOLLEDO. x x x.
With respect to Sections 10 and 11 on page 8, I understand that the
Committee has also created an Electoral Tribunal in the Senate and a
Commission on Appointments which may cover membership from both
Houses. But my question is: It seems to me that the committee report does
not indicate which body should promulgate the rules that shall govern the
Electoral Tribunal and the Commission on Appointments. Who shall then
promulgate the rules of these bodies?
 MR. DAVIDE. The Electoral Tribunal itself will establish and
promulgate its rules because it is a body distinct and independent
already from the House, and so with the Commission on Appointments
also. It will have the authority to promulgate its own rules.[27]
On another point of discussion relative to the grant of judicial power, but equally
cogent, we listen to former Chief Justice Roberto Concepcion:
MR. SUAREZ. Thank you.
Would the Commissioner not consider that violative of the doctrine of
separation of powers?
MR. CONCEPCION. I think Commissioner Bernas explained
that this is a contest between two parties. This is a judicial power.
MR. SUAREZ. We know, but practically the Committee is giving
to the judiciary the right to declare who will be the President of our country,
which to me is a political action.
MR. CONCEPCION. There are legal rights which are
enforceable under the law, and these are essentially justiciable
questions.
MR. SUAREZ. If the election contest proved to be long,
burdensome and tedious, practically all the time of the Supreme Court
sitting en banc would be occupied with it considering that they will be
going over millions and millions of ballots or election returns, Madam
President.[28]
Echoing the same sentiment and affirming the grant of judicial power to the Supreme Court,
Justice Florenz D. Regalado[29] and Fr. Joaquin Bernas[30] both opined:
MR. VILLACORTA. Thank you very much, Madam President.
I am not sure whether Commissioner Suarez has expressed his point. On
page 2, the fourth paragraph of Section 4 provides:
The Supreme Court, sitting en banc, shall be the sole judge of all contests
relating to the election, returns and qualifications of the President or Vice-
President.
May I seek clarification as to whether or not the matter of determining
the outcome of the contests relating to the election returns and
qualifications of the President or Vice-President is purely a political
matter and, therefore, should not be left entirely to the judiciary. Will
the above-quoted provision not impinge on the doctrine of separation
of powers between the executive and the judicial departments of the
government?
MR. REGALADO. No, I really do not feel that would be a
problem. This is a new provision incidentally. It was not in the 1935
Constitution nor in the 1973 Constitution.
MR. VILLACORTA. That is right.
MR. REGALADO. We feel that it will not be an intrusion into
the separation of powers guaranteed to the judiciary because this is
strictly an adversarial and judicial proceeding.
MR. VILLACORTA. May I know the rationale of the Committee
because this supersedes Republic Act 7950 which provides for the
Presidential Electoral Tribunal?
FR. BERNAS. Precisely, this is necessary. Election contests
are, by their nature, judicial. Therefore, they are cognizable only by
courts. If, for instance, we did not have a constitutional provision on
an electoral tribunal for the Senate or an electoral tribunal for the
House, normally, as composed, that cannot be given jurisdiction over
contests.
So, the background of this is really the case of Roxas v. Lopez.
The Gentleman will remember that in that election, Lopez was declared
winner. He filed a protest before the Supreme Court because there was a
republic act which created the Supreme Court as the Presidential Electoral
Tribunal. The question in this case was whether new powers could be given
the Supreme Court by law. In effect, the conflict was actually whether there
was an attempt to create two Supreme Courts and the answer of the
Supreme Court was: No, this did not involve the creation of two Supreme
Courts, but precisely we are giving new jurisdiction to the Supreme Court,
as it is allowed by the Constitution. Congress may allocate various
jurisdictions.
Before the passage of that republic act, in case there was any contest
between two presidential candidates or two vice-presidential candidates, no
one had jurisdiction over it. So, it became necessary to create a
Presidential Electoral Tribunal. What we have done is to
constitutionalize what was statutory but it is not an infringement on
the separation of powers because the power being given to the
Supreme Court is a judicial power.[31]
Unmistakable from the foregoing is that the exercise of our power to judge presidential
and vice-presidential election contests, as well as the rule-making power adjunct thereto, is
plenary; it is not as restrictive as petitioner would interpret it. In fact, former Chief Justice Hilario
G. Davide, Jr., who proposed the insertion of the phrase, intended the Supreme Court to
exercise exclusive authority to promulgate its rules of procedure for that purpose. To this, Justice
Regalado forthwith assented and then emphasized that the sole power ought to be without
intervention by the legislative department. Evidently, even the legislature cannot limit the judicial
power to resolve presidential and vice-presidential election contests and our rule-making power
connected thereto.
To foreclose all arguments of petitioner, we reiterate that the establishment of the PET simply
constitutionalized what was statutory before the 1987 Constitution. The experiential context of
the PET in our country cannot be denied.[32]
Consequently, we find it imperative to trace the historical antecedents of the PET.
Article VII, Section 4, paragraph 7 of the 1987 Constitution is an innovation. The precursors of
the present Constitution did not contain similar provisions and instead vested upon the
legislature all phases of presidential and vice-presidential elections from the canvassing of
election returns, to the proclamation of the president-elect and the vice-president elect, and even
the determination, by ordinary legislation, of whether such proclamations may be contested.
Unless the legislature enacted a law creating an institution that would hear election contests in
the Presidential and Vice-Presidential race, a defeated candidate had no legal right to demand a
recount of the votes cast for the office involved or to challenge the ineligibility of the proclaimed
candidate. Effectively, presidential and vice-presidential contests were non-justiciable in the then
prevailing milieu.
The omission in the 1935 Constitution was intentional. It was mainly influenced by the absence
of a similar provision in its pattern, the Federal Constitution of the United States. Rather, the
creation of such tribunal was left to the determination of the National Assembly. The journal of
the 1935 Constitutional Convention is crystal clear on this point:
Delegate Saguin. For an information. It seems that this Constitution does
not contain any provision with respect to the entity or body which will look
into the protests for the positions of the President and Vice-President.
President Recto. Neither does the American constitution contain a provision
over the subject.
Delegate Saguin. But then, who will decide these protests?
President Recto. I suppose that the National Assembly will decide on that. [33]
To fill the void in the 1935 Constitution, the National Assembly enacted R.A. No. 1793,
establishing an independent PET to try, hear, and decide protests contesting the election of
President and Vice-President. The Chief Justice and the Associate Justices of the Supreme
Court were tasked to sit as its Chairman and Members, respectively. Its composition was
extended to retired Supreme Court Justices and incumbent Court of Appeals Justices who may
be appointed as substitutes for ill, absent, or temporarily incapacitated regular members.
The eleven-member tribunal was empowered to promulgate rules for the conduct of its
proceedings. It was mandated to sit en banc in deciding presidential and vice-presidential
contests and authorized to exercise powers similar to those conferred upon courts of justice,
including the issuance of subpoena, taking of depositions, arrest of witnesses to compel their
appearance, production of documents and other evidence, and the power to punish
contemptuous acts and bearings. The tribunal was assigned a Clerk, subordinate officers, and
employees necessary for the efficient performance of its functions.
R.A. No. 1793 was implicitly repealed and superseded by the 1973 Constitution which
replaced the bicameral legislature under the 1935 Constitution with the unicameral body of a
parliamentary government.
With the 1973 Constitution, a PET was rendered irrelevant, considering that the
President was not directly chosen by the people but elected from among the members of the
National Assembly, while the position of Vice-President was constitutionally non-existent.
In 1981, several modifications were introduced to the parliamentary system. Executive
power was restored to the President who was elected directly by the people. An Executive
Committee was formed to assist the President in the performance of his functions and duties.
Eventually, the Executive Committee was abolished and the Office of Vice-President was
installed anew.
These changes prompted the National Assembly to revive the PET by enacting, on
December 3, 1985, Batas Pambansa Bilang (B.P. Blg.) 884, entitled An Act Constituting an
Independent Presidential Electoral Tribunal to Try, Hear and Decide Election Contests in the
Office of the President and Vice-President of the Philippines, Appropriating Funds Therefor and
For Other Purposes. This tribunal was composed of nine members, three of whom were the
Chief Justice of the Supreme Court and two Associate Justices designated by him, while the six
were divided equally between representatives of the majority and minority parties in the
Batasang Pambansa.
Aside from the license to wield powers akin to those of a court of justice, the PET was
permitted to recommend the prosecution of persons, whether public officers or private
individuals, who in its opinion had participated in any irregularity connected with the canvassing
and/or accomplishing of election returns.
The independence of the tribunal was highlighted by a provision allocating a specific
budget from the national treasury or Special Activities Fund for its operational expenses. It was
empowered to appoint its own clerk in accordance with its rules. However, the subordinate
officers were strictly employees of the judiciary or other officers of the government who were
merely designated to the tribunal.
After the historic People Power Revolution that ended the martial law era and installed
Corazon Aquino as President, civil liberties were restored and a new constitution was formed.
With R.A. No. 1793 as framework, the 1986 Constitutional Commission transformed
the then statutory PET into a constitutional institution, albeit without its traditional nomenclature:
FR. BERNAS. x x x.
x x x. So it became necessary to create a Presidential Electoral Tribunal.
What we have done is to constitutionalize what was statutory but it is not an
infringement on the separation of powers because the power being given to
the Supreme Court is a judicial power.[34]
Clearly, petitioners bete noire of the PET and the exercise of its power are unwarranted. His
arguments that: (1) the Chief Justice and Associate Justices are referred to as Chairman and
Members, respectively; (2) the PET uses a different seal; (3) the Chairman is authorized to
appoint personnel; and (4) additional compensation is allocated to the Members, in order to
bolster his claim of infirmity in the establishment of the PET, are too superficial to merit further
attention by the Court.
Be that as it may, we hasten to clarify the structure of the PET as a legitimate progeny of Section
4, Article VII of the Constitution, composed of members of the Supreme Court, sitting en banc.
The following exchange in the 1986 Constitutional Commission should provide enlightenment:
MR. SUAREZ. Thank you. Let me proceed to line 23, page 2,
wherein it is provided, and I quote:
The Supreme Court, sitting en banc[,] shall be the sole judge of all contests
relating to the election, returns and qualifications of the President or Vice-
President.
Are we not giving enormous work to the Supreme Court especially
when it is directed to sit en banc as the sole judge of all presidential
and vice-presidential election contests?
MR. SUMULONG. That question will be referred to Commissioner
Concepcion.
MR. CONCEPCION. This function was discharged by the
Supreme Court twice and the Supreme Court was able to dispose of
each case in a period of one year as provided by law. Of course, that
was probably during the late 1960s and early 1970s. I do not know how
the present Supreme Court would react to such circumstances, but
there is also the question of who else would hear the election protests.
MR. SUAREZ. We are asking this question because between
lines 23 to 25, there are no rules provided for the hearings and there is not
time limit or duration for the election contest to be decided by the Supreme
Court. Also, we will have to consider the historical background that when
R.A. 1793, which organized the Presidential Electoral Tribunal, was
promulgated on June 21, 1957, at least three famous election contests were
presented and two of them ended up in withdrawal by the protestants out of
sheer frustration because of the delay in the resolution of the cases. I am
referring to the electoral protest that was lodged by former President Carlos
P. Garcia against our kabalen former President Diosdado Macapagal in
1961 and the vice-presidential election contest filed by the late Senator
Gerardo Roxas against Vice-President Fernando Lopez in 1965.
MR. CONCEPCION. I cannot answer for what the protestants had
in mind. But when that protest of Senator Roxas was withdrawn, the results
were already available. Senator Roxas did not want to have a decision
adverse to him. The votes were being counted already, and he did not get
what he expected so rather than have a decision adverse to his protest, he
withdrew the case.
xxxx
MR. SUAREZ. I see. So the Commission would not have any
objection to vesting in the Supreme Court this matter of resolving
presidential and vice-presidential contests?
MR. CONCEPCION. Personally, I would not have any
objection.
MR. SUAREZ. Thank you.
Would the Commissioner not consider that violative of the doctrine of
separation of powers?
MR. CONCEPCION. I think Commissioner Bernas explained that
this is a contest between two parties. This is a judicial power.
MR. SUAREZ. We know, but practically the Committee is giving
to the judiciary the right to declare who will be the President of our country,
which to me is a political action.
MR. CONCEPCION. There are legal rights which are enforceable
under the law, and these are essentially justiciable questions.
MR. SUAREZ. If the election contest proved to be long,
burdensome and tedious, practically all the time of the Supreme Court
sitting en banc would be occupied with it considering that they will be
going over millions and millions of ballots or election returns, Madam
President.
MR. CONCEPCION. The time consumed or to be consumed in
this contest for President is dependent upon they key number of teams of
revisors. I have no experience insofar as contests in other offices are
concerned.
MR. SUAREZ. Although there is a requirement here that the
Supreme Court is mandated to sit en banc?
MR. CONCEPCION. Yes.
MR. SUAREZ. I see.
MR. CONCEPCION. The steps involved in this contest are:
First, the ballot boxes are opened before teams of three, generally, a
representative each of the court, of the protestant and of the protestee.
It is all a questions of how many teams are organized. Of course, that
can be expensive, but it would be expensive whatever court one would
choose. There were times that the Supreme Court, with sometimes 50
teams at the same time working, would classify the objections, the
kind of problems, and the court would only go over the objected votes
on which the parties could not agree. So it is not as awesome as it
would appear insofar as the Court is concerned. What is awesome is
the cost of the revision of the ballots because each party would have
to appoint one representative for every team, and that may take quite a
big amount.
MR. SUAREZ. If we draw from the Commissioners experience
which he is sharing with us, what would be the reasonable period for the
election contest to be decided?
MR. CONCEPCION. Insofar as the Supreme Court is concerned,
the Supreme Court always manages to dispose of the case in one year.
MR. SUAREZ. In one year. Thank you for the clarification.[35]
Obvious from the foregoing is the intent to bestow independence to the Supreme
Court as the PET, to undertake the Herculean task of deciding election protests involving
presidential and vice-presidential candidates in accordance with the process outlined by former
Chief Justice Roberto Concepcion. It was made in response to the concern aired by delegate
Jose E. Suarez that the additional duty may prove too burdensome for the Supreme Court. This
explicit grant of independence and of the plenary powers needed to discharge this burden
justifies the budget allocation of the PET.
The conferment of additional jurisdiction to the Supreme Court, with the duty
characterized as an awesome task, includes the means necessary to carry it into effect under
the doctrine of necessary implication.[36] We cannot overemphasize that the abstraction of the
PET from the explicit grant of power to the Supreme Court, given our abundant experience, is
not unwarranted.
A plain reading of Article VII, Section 4, paragraph 7, readily reveals a grant of
authority to the Supreme Court sitting en banc. In the same vein, although the method by which
the Supreme Court exercises this authority is not specified in the provision, the grant of power
does not contain any limitation on the Supreme Courts exercise thereof. The Supreme
Courts method of deciding presidential and vice-presidential election contests, through the PET,
is actually a derivative of the exercise of the prerogative conferred by the aforequoted
constitutional provision. Thus, the subsequent directive in the provision for the Supreme Court to
promulgate its rules for the purpose.
The conferment of full authority to the Supreme Court, as a PET, is equivalent to the
full authority conferred upon the electoral tribunals of the Senate and the House of
Representatives, i.e., the Senate Electoral Tribunal (SET) and the House of Representatives
Electoral Tribunal (HRET),[37] which we have affirmed on numerous occasions.[38]
Particularly cogent are the discussions of the Constitutional Commission on the
parallel provisions of the SET and the HRET. The discussions point to the inevitable conclusion
that the different electoral tribunals, with the Supreme Court functioning as the PET, are
constitutional bodies, independent of the three departments of government Executive,
Legislative, and Judiciary but not separate therefrom.

MR. MAAMBONG. x x x.
My questions will be very basic so we can go as fast as we can. In the case
of the electoral tribunal, either of the House or of the Senate, is it correct to
say that these tribunals are constitutional creations? I will distinguish these
with the case of the Tanodbayan and the Sandiganbayan which are created
by mandate of the Constitution but they are not constitutional creations. Is
that a good distinction?
xxxx
MR. MAAMBONG. Could we, therefore, say that either the
Senate Electoral Tribunal or the House Electoral Tribunal is a constitutional
body?
MR. AZCUNA. It is, Madam President.
MR. MAAMBONG. If it is a constitutional body, is it then subject to
constitutional restrictions?
MR. AZCUNA. It would be subject to constitutional restrictions
intended for that body.
MR. MAAMBONG. I see. But I want to find out if the ruling in the
case of Vera v. Avelino, 77 Phil. 192, will still be applicable to the present
bodies we are creating since it ruled that the electoral tribunals are not
separate departments of the government. Would that ruling still be valid?
MR. AZCUNA. Yes, they are not separate departments
because the separate departments are the legislative, the executive
and the judiciary; but they are constitutional bodies.[39]
The view taken by Justices Adolfo S. Azcuna[40] and Regalado E. Maambong[41] is schooled by
our holding in Lopez v. Roxas, et al.:[42]
Section 1 of Republic Act No. 1793, which provides that:
There shall be an independent Presidential Electoral
Tribunal x x x which shall be the sole judge of all
contests relating to the election, returns, and
qualifications of the president-elect and the vice-
president-elect of the Philippines.
has the effect of giving said defeated candidate the legal right to contest
judicially the election of the President-elect of Vice-President-elect and to
demand a recount of the votes case for the office involved in the litigation,
as well as to secure a judgment declaring that he is the one elected
president or vice-president, as the case may be, and that, as such, he is
entitled to assume the duties attached to said office. And by providing,
further, that the Presidential Electoral Tribunal shall be composed of the
Chief Justice and the other ten Members of the Supreme Court, said
legislation has conferred upon such Court an additional original jurisdiction
of an exclusive character.
Republic Act No. 1793 has not created a new or separate court. It
has merely conferred upon the Supreme Court the functions of a
Presidential Electoral Tribunal. The result of the enactment may be likened
to the fact that courts of first instance perform the functions of such ordinary
courts of first instance, those of court of land registration, those of probate
courts, and those of courts of juvenile and domestic relations. It is, also,
comparable to the situation obtaining when the municipal court of a
provincial capital exercises its authority, pursuant to law, over a limited
number of cases which were previously within the exclusive jurisdiction of
courts of first instance.
In all of these instances, the court (court of first instance or
municipal court) is only one, although the functions may
be distinct and, even, separate. Thus the powers of a court of first
instance, in the exercise of its jurisdiction over ordinary civil cases, are
broader than, as well as distinct and separate from, those of the same court
acting as a court of land registration or a probate court, or as a court of
juvenile and domestic relations. So too, the authority of the municipal court
of a provincial capital, when acting as such municipal court, is, territorially
more limited than that of the same court when hearing the aforementioned
cases which are primary within the jurisdiction of courts of first instance. In
other words, there is only one court, although it may perform
the functions pertaining to several types of courts, each having some
characteristics different from those of the others.
Indeed, the Supreme Court, the Court of Appeals and courts of
first instance, are vested with original jurisdiction, as well as with appellate
jurisdiction, in consequence of which they are both trial courts and,
appellate courts, without detracting from the fact that there is
only one Supreme Court, one Court of Appeals, and one court of first
instance, clothed with authority to discharge said dual functions. A court of
first instance, when performing the functions of a probate court or a court of
land registration, or a court of juvenile and domestic relations, although with
powers less broad than those of a court of first instance, hearing ordinary
actions, is not inferior to the latter, for one cannot be inferior to itself. So too,
the Presidential Electoral Tribunal is not inferior to the Supreme Court, since
it is the same Court although the functions peculiar to said Tribunal
are more limited in scope than those of the Supreme Court in the exercise
of its ordinary functions. Hence, the enactment of Republic Act No. 1793,
does not entail an assumption by Congress of the power of appointment
vested by the Constitution in the President. It merely connotes the
imposition of additional duties upon the Members of the Supreme Court.
By the same token, the PET is not a separate and distinct entity from the Supreme Court, albeit
it has functions peculiar only to the Tribunal. It is obvious that the PET was constituted in
implementation of Section 4, Article VII of the Constitution, and it faithfully complies not
unlawfully defies the constitutional directive. The adoption of a separate seal, as well as the
change in the nomenclature of the Chief Justice and the Associate Justices into Chairman and
Members of the Tribunal, respectively, was designed simply to highlight the singularity and
exclusivity of the Tribunals functions as a special electoral court.
As regards petitioners claim that the PET exercises quasi-judicial functions in
contravention of Section 12, Article VIII of the Constitution, we point out that the issue in Buac v.
COMELEC[43] involved the characterization of the enforcement and administration of a law
relative to the conduct of a plebiscite which falls under the jurisdiction of the Commission on
Elections. However, petitioner latches on to the enumeration in Buac which declared, in
an obiter, that contests involving the President and the Vice-President fall within the exclusive
original jurisdiction of the PET, also in the exercise of quasi-judicial power.
The issue raised by petitioner is more imagined than real. Section 12, Article VIII of the
Constitution reads:
SEC. 12. The Members of the Supreme Court and of other courts
established by law shall not be designated to any agency performing quasi-
judicial or administrative functions.
The traditional grant of judicial power is found in Section 1, Article VIII of the
Constitution which provides that the power shall be vested in one Supreme Court and in such
lower courts as may be established by law. Consistent with our presidential system of
government, the function of dealing with the settlement of disputes, controversies or conflicts
involving rights, duties or prerogatives that are legally demandable and enforceable [44] is
apportioned to courts of justice. With the advent of the 1987 Constitution, judicial power was
expanded to include the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government.[45] The power was expanded, but it remained absolute.
The set up embodied in the Constitution and statutes characterizes the resolution of
electoral contests as essentially an exercise of judicial power.
Court Justices shall sit in the Senate and House Electoral Tribunals, respectively, effectively
exempts the Justices-Members thereof from the prohibition in Section 12, Article VIII. In the
same vein, it is the Constitution itself, in Section 4, Article VII, which exempts the Members of
the Court, constituting the PET, from the same prohibition.
We have previously declared that the PET is not simply an agency to which Members
of the Court were designated. Once again, the PET, as intended by the framers of the
Constitution, is to be an institution independent, but not separate, from the judicial
department, i.e., the Supreme Court. McCulloch v. State of Maryland[49] proclaimed that [a]
power without the means to use it, is a nullity. The vehicle for the exercise of this power, as
intended by the Constitution and specifically mentioned by the Constitutional Commissioners
during the discussions on the grant of power to this Court, is the PET. Thus, a microscopic view,
like the petitioners, should not constrict an absolute and constitutional grant of judicial power.
One final note. Although this Court has no control over contrary people and
naysayers, we reiterate a word of caution against the filing of baseless petitions which only clog
the Courts docket. The petition in the instant case belongs to that classification.
WHEREFORE, the petition is DISMISSED. Costs against petitioner.
SO ORDERED.

At the barangay and municipal levels, original and exclusive jurisdiction over election
contests is vested in the municipal or metropolitan trial courts and the regional trial courts,
respectively.

At the higher levels city, provincial, and regional, as well as congressional and
senatorial exclusive and original jurisdiction is lodged in the COMELEC and in the House of
Representatives and Senate Electoral Tribunals, which are not, strictly and literally speaking,
courts of law. Although not courts of law, they are, nonetheless, empowered to resolve election
contests which involve, in essence, an exercise of judicial power, because of the explicit
constitutional empowerment found in Section 2(2), Article IX-C (for the COMELEC) and Section
17, Article VI (for the Senate and House Electoral Tribunals) of the Constitution. Besides, when
the COMELEC, the HRET, and the SET decide election contests, their decisions are still subject
to judicial review via a petition for certiorari filed by the proper party if there is a showing that the
decision was rendered with grave abuse of discretion tantamount to lack or excess of
jurisdiction.[46]

It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential
or vice-presidential election contest, it performs what is essentially a judicial power. In the
landmark case of Angara v. Electoral Commission,[47] Justice Jose P. Laurel enucleated that it
would be inconceivable if the Constitution had not provided for a mechanism by which to direct
the course of government along constitutional channels. In fact, Angara pointed out that [t]he
Constitution is a definition of the powers of government. And yet, at that time, the 1935
Constitution did not contain the expanded definition of judicial power found in Article VIII, Section
1, paragraph 2 of the present Constitution.

With the explicit provision, the present Constitution has allocated to the Supreme
Court, in conjunction with latters exercise of judicial power inherent in all courts, [48] the task of
deciding presidential and vice-presidential election contests, with full authority in the exercise
thereof. The power wielded by PET is a derivative of the plenary judicial power allocated to
courts of law, expressly provided in the Constitution. On the whole, the Constitution draws a thin,
but, nevertheless, distinct line between the PET and the Supreme Court.

If the logic of petitioner is to be followed, all Members of the Court, sitting in the
Senate and House Electoral Tribunals would violate the constitutional proscription found in
Section 12, Article VIII. Surely, the petitioner will be among the first to acknowledge that this is
not so. The Constitution which, in Section 17, Article VI, explicitly provides that three Supreme
 [G.R. No. 163783. June 22, 2004]
PIMENTEL vs. CONGRESS
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated JUN 22 2004.
G. R. No. 163783 (Aquilino Q. Pimentel, Jr. vs. Joint Committee of Congress to Canvass the
Votes Cast for President and Vice-President in the May 10, 2004 Elections.)
RESOLUTION
By the present Petition for Prohibition, petitioner Senator Aquilino Q. Pimentel, Jr. seeks a
judgment declaring null and void the continued existence of the Joint Committee of Congress
(Joint Committee) to determine the authenticity and due execution of the certificates of canvass
and preliminarily canvass the votes cast for Presidential and Vice-Presidential candidates in the
May 10, 2004 elections following the adjournment of Congress sine die on June 11, 2004. The
petition corollarily prays for the issuance of a writ of prohibition directing the Joint Committee to
cease and desist from conducting any further proceedings pursuant to the Rules of the Joint
Public Session of Congress on Canvassing.
Petitioner posits that with "the adjournment sine die on June 11, 2004 by the Twelfth Congress
of its last regular session, [its] term ... terminated and expired on the said day and the said
Twelfth Congress serving the term 2001 to 2004 passed out of legal existence." Henceforth,
petitioner goes on, "all pending matters and proceedings terminate upon the expiration of ...
Congress." To advance this view, he relies on "legislative procedure, precedent or practice [as]
borne [out] by the rules of both Houses of Congress."
Given the importance of the constitutional issue raised and to put to rest all questions regarding
the regularity, validity or constitutionality of the canvassing of votes fro President and Vice-
President in the recently concluded national elections, this Court assumes jurisdiction over the
instant petition pursuant to its power and duty "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government" under Section 1 of Article VIII of the Constitution and its
original jurisdiction over petitions for prohibition under Section 5 of the same Article.
After a considered and judicious examination of the arguments raised by petitioner as well as
those presented in the Comments filed by the Solicitor General and respondent Joint
Committee, this Court finds that the petition has absolutely no basis under the Constitution and
must, therefore, be dismissed.
Petitioner's claim that his arguments are buttressed by "legislative procedure, precedent or
practice [as] borne [out] by the rules of both Houses of Congress" is directly contradicted by
Section 42 of Rule XIV of the Rules adopted by the Senate, of which he is an incumbent
member. This section clearly provides that the Senate shall convene in joint session during
any voluntary or compulsory recess to canvass the votes for President and Vice-
President not later than thirty days after the day of the elections in accordance with Section 4,
Article VII of the Constitution.
Moreover, as pointed out in the Comment filed by the Senate Panel for respondent Joint
Committee and that of the Office of the Solicitor General, the precedents set by the 1992 and
1998 Presidential Elections do not support the move to stop the ongoing canvassing by the Joint
Committee, they citing the observations of former Senate President Jovito Salonga.
Thus, during the 1992 Presidential elections, both Houses of Congress adjourned sine die on
May 25, 1992. On June 16, 1992, the Joint Committee finished tallying the votes for President
and Vice-President.[1]cralaw Thereafter, on June 22, 1992, the Eighth Congress convened in
joint public session as the National Board of Canvassers, and on even date proclaimed Fidel V.
Ramos and Joseph Ejercito Estrada as President and Vice-President, respectively.[2]cralaw
Upon the other hand, during the 1998 Presidential elections, both Houses of Congress
adjourned sine dieon May 25, 1998. The Joint Committee completed the counting of the votes
for President and Vice-President on May 27, 1998.[3]cralaw The Tenth Congress then convened
in joint public session on May 29, 1998 as the National Board of Canvassers and proclaimed
Joseph Ejercito Estrada as President and Gloria Macapagal-Arroyo as President and Vice-
President, respectively.[4]cralaw
As for petitioner's argument that "the [e]xistence and [p]roceedings [o]f the Joint Committee of
Congress [a]re [i]nvalid, [i]llegal and [u]nconstitutional [f]ollowing the [a]djournment
[s]ine [d]ie [o]f [b]oth Houses of Congress [o]f [t]heir [r]egular [s]essions on June 11, 2004," he
cites in support thereof Section 15, Article VI of the Constitution which reads:
Sec. 15. The Congress shall convene once every year on the fourth Monday of July for its
regular session, unless a different date is fixed by law, and shall continue to be in session for
such number of days as it may determine until thirty days before the opening of its next regular
session, exclusive of Saturdays, Sundays, and legal holidays. The President may call a special
session at any time.
Contrary to petitioner's argument, however, the term of the present Twelfth Congress did not
terminate and expire upon the adjournment sine die of the regular session of both Houses on
June 11, 2004.
Section 15, Article VI of the Constitution cited by petitioner does not pertain to the term of
Congress, but to its regular annual legislative sessions and the mandatory 30-day recess
before the opening of its next regular session (subject to the power of the President to call a
special session at any time).
Section 4 of Article VIII also of the Constitution clearly provides that "[t]he term of office of the
Senators shall be six years and shall commence, unless otherwise provided by law, at noon on
the thirtieth day of June next following their election." Similarly, Section 7 of the same Article
provides that "[t]he Members of the House of Representatives shall be elected for
a term of three years which shall begin, unless otherwise provided by law, at noon on the
thirtieth day of June next following their election." Consequently, there being no law to the
contrary, until June 30, 2004, the present Twelfth Congress to which the present legislators
belong cannot be said to have "passed out of legal existence."
The legislative functions of the Twelfth Congress may have come to a close upon the final
adjournment of its regular sessions on June 11, 2004, but this does not affect its non-
legislative functions, such as that of being the National Board of Canvassers. In fact, the joint
public session of both Houses of Congress convened by express directive of Section 4, Article
VII of the Constitution to canvass the votes for and to proclaim the newly elected President and
Vice-President has not, and cannot, adjourn sine dieuntil it has accomplished its constitutionally
mandated tasks. For only when a board of canvassers has completed its functions is it
rendered functus officio. Its membership may change, but it retains its authority as a board until
it has accomplished its purposes. (Pelayo v. Commission on Elections, 23 SCRA 1374, 1385
[1968], citing Bautista v. Fugoso, 60 Phil. 383, 389 [1934] and Aquino v. Commission on
Elections, L-28392, January 29 1968)

Since the Twelfth Congress has not yet completed its non-legislative duty to canvass the votes
and proclaim the duly elected President and Vice-President, its existence as the National Board
of Canvassers, as well as that of the Joint Committee to which it referred the preliminary tasks of
authenticating and canvassing the certificates of canvass, has not become functus officio.

In sum, despite the adjournment sine die of Congress, there is no legal impediment to the Joint
Committee completing the tasks assigned to it and transmitting its report for the approval of the
joint public session of both Houses of Congress, which may reconvene without need of call by
the President to a special session.

WHEREFORE, the instant Petition is hereby DISMISSED.

 G.R. No. 146710-15 March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS
AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC.,
LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.
----------------------------------------
G.R. No. 146738 March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, respondent.
PUNO, J.:
On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada
alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she
is the President. The warring personalities are important enough but more transcendental are
the constitutional issues embedded on the parties' dispute. While the significant issues are
many, the jugular issue involves the relationship between the ruler and the ruled in a democracy,
Philippine style.
First, we take a view of the panorama of events that precipitated the crisis in the office of the
President.
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while
respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos
voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and
the respondent were to serve a six-year term commencing on June 30, 1998.
From the beginning of his term, however, petitioner was plagued by a plethora of problems that
slowly but surely eroded his popularity. His sharp descent from power started on October 4,
2000. Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air
and accused the petitioner, his family and friends of receiving millions of pesos
from jueteng lords.1
The expos immediately ignited reactions of rage. The next day, October 5, 2000, Senator
Teofisto Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery
privilege speech entitled "I Accuse." He accused the petitioner of receiving some P220 million
in jueteng money from Governor Singson from November 1998 to August 2000. He also charged
that the petitioner took from Governor Singson P70 million on excise tax on cigarettes intended
for Ilocos Sur. The privilege speech was referred by then Senate President Franklin Drilon, to
the Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on
Justice (then headed by Senator Renato Cayetano) for joint investigation. 2
The House of Representatives did no less. The House Committee on Public Order and Security,
then headed by Representative Roilo Golez, decided to investigate the expos of Governor
Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael
Defensor spearheaded the move to impeach the petitioner.
Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal
Sin issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of
Manila, asking petitioner to step down from the presidency as he had lost the moral authority to
govern.3 Two days later or on October 13, the Catholic Bishops Conference of the Philippines
joined the cry for the resignation of the petitioner.4 Four days later, or on October 17, former
President Corazon C. Aquino also demanded that the petitioner take the "supreme self-sacrifice"
of resignation.5 Former President Fidel Ramos also joined the chorus. Early on, or on October
12, respondent Arroyo resigned as Secretary of the Department of Social Welfare and
Services6 and later asked for petitioner's resignation.7 However, petitioner strenuously held on to
his office and refused to resign.
The heat was on. On November 1, four (4) senior economic advisers, members of the Council of
Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime
Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip. 8 On November 2,
Secretary Mar Roxas II also resigned from the Department of Trade and Industry.9 On
November 3, Senate President Franklin Drilon, and House Speaker Manuel Villar, together with
some 47 representatives defected from the ruling coalition, Lapian ng Masang Pilipino. 10
The month of November ended with a big bang. In a tumultuous session on November 13,
House Speaker Villar transmitted the Articles of Impeachment 11 signed by 115 representatives,
or more than 1/3 of all the members of the House of Representatives to the Senate. This caused
political convulsions in both houses of Congress. Senator Drilon was replaced by Senator
Pimentel as Senate President. Speaker Villar was unseated by Representative
Fuentebella.12 On November 20, the Senate formally opened the impeachment trial of the
petitioner. Twenty-one (21) senators took their oath as judges with Supreme Court Chief Justice
Hilario G. Davide, Jr., presiding.13
The political temperature rose despite the cold December. On December 7, the impeachment
trial started.14 The battle royale was fought by some of the marquee names in the legal
profession. Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte
and Representatives Joker Arroyo, Wigberto Taada, Sergio Apostol, Raul Gonzales, Oscar
Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio
Nachura. They were assisted by a battery of private prosecutors led by now Secretary of Justice
Hernando Perez and now Solicitor General Simeon Marcelo. Serving as defense counsel were
former Chief Justice Andres Narvasa, former Solicitor General and Secretary of Justice Estelito
P. Mendoza, former City Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House
Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to day trial
was covered by live TV and during its course enjoyed the highest viewing rating. Its high and low
points were the constant conversational piece of the chattering classes. The dramatic point of
the December hearings was the testimony of Clarissa Ocampo, senior vice president of
Equitable-PCI Bank. She testified that she was one foot away from petitioner Estrada when he
affixed the signature "Jose Velarde" on documents involving a P500 million investment
agreement with their bank on February 4, 2000.15
After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas.
When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On
January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the
witness stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr.
Dante Tan who was facing charges of insider trading.16 Then came the fateful day of January 16,
when by a vote of 11-1017 the senator-judges ruled against the opening of the second envelope
which allegedly contained evidence showing that petitioner held P3.3 billion in a secret bank
account under the name "Jose Velarde." The public and private prosecutors walked out in
protest of the ruling. In disgust, Senator Pimentel resigned as Senate President.18 The ruling
made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets of the
metropolis. By midnight, thousands had assembled at the EDSA Shrine and speeches full of
sulphur were delivered against the petitioner and the eleven (11) senators.
On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their
collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.19Senator Raul Roco quickly moved for the indefinite postponement of the
impeachment proceedings until the House of Representatives shall have resolved the issue of
resignation of the public prosecutors. Chief Justice Davide granted the motion. 20
January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-
kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino
Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's
solidarity in demanding petitioner's resignation. Students and teachers walked out of their
classes in Metro Manila to show their concordance. Speakers in the continuing rallies at the
EDSA Shrine, all masters of the physics of persuasion, attracted more and more people.21
On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the
petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of
Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the
holding of a snap election for President where he would not be a candidate. It did not diffuse the
growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and General
Reyes, together with the chiefs of all the armed services went to the EDSA Shrine. 22 In the
presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering
demonstrators, General Reyes declared that "on behalf of Your Armed Forces, the 130,000
strong members of the Armed Forces, we wish to announce that we are withdrawing our support
to this government."23 A little later, PNP Chief, Director General Panfilo Lacson and the major
service commanders gave a similar stunning announcement. 24 Some Cabinet secretaries,
undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their
posts.25 Rallies for the resignation of the petitioner exploded in various parts of the country. To
stem the tide of rage, petitioner announced he was ordering his lawyers to agree to the opening
of the highly controversial second envelope.26There was no turning back the tide. The tide had
become a tsunami.
January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for
the peaceful and orderly transfer of power started at Malacaang'' Mabini Hall, Office of the
Executive Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon
Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel
Fernandez, head of the Presidential Management Staff, negotiated for the petitioner.
Respondent Arroyo was represented by now Executive Secretary Renato de Villa, now
Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando Perez. 27 Outside
the palace, there was a brief encounter at Mendiola between pro and anti-Estrada protesters
which resulted in stone-throwing and caused minor injuries. The negotiations consumed all
morning until the news broke out that Chief Justice Davide would administer the oath to
respondent Arroyo at high noon at the EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as
President of the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacaang
Palace.29 He issued the following press statement:30
"20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath
as President of the Republic of the Philippines. While along with many other legal
minds of our country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as President, I do not wish to be a factor that will
prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of the presidency of
this country, for the sake of peace and in order to begin the healing process of our
nation. I leave the Palace of our people with gratitude for the opportunities given to me
for service to our people. I will not shirk from any future challenges that may come
ahead in the same service of our country.
I call on all my supporters and followers to join me in to promotion of a constructive
national spirit of reconciliation and solidarity.
May the Almighty bless our country and beloved people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA"
It also appears that on the same day, January 20, 2001, he signed the following letter: 31
"Sir:
By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my
office. By operation of law and the Constitution, the Vice-President shall be the Acting
President.
(Sgd.) JOSEPH EJERCITO ESTRADA"
A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January
20.23 Another copy was transmitted to Senate President Pimentel on the same day although it
was received only at 9:00 p.m.33
On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the
powers the duties of the Presidency. On the same day, this Court issued the following
Resolution in Administrative Matter No. 01-1-05-SC, to wit:
"A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-Arroyo to
Take her Oath of Office as President of the Republic of the Philippines before the
Chief Justice Acting on the urgent request of Vice President Gloria Macapagal-
Arroyo to be sworn in as President of the Republic of the Philippines, addressed to the
Chief Justice and confirmed by a letter to the Court, dated January 20, 2001, which
request was treated as an administrative matter, the court Resolve unanimously to
confirm the authority given by the twelve (12) members of the Court then present to
the Chief Justice on January 20, 2001 to administer the oath of office of Vice
 President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January
20, 2001.
This resolution is without prejudice to the disposition of any justiciable case that may
be filed by a proper party."
Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.34 Recognition of respondent Arroyo's government by foreign governments swiftly
followed. On January 23, in a reception or vin d' honneur at Malacaang, led by the Dean of the
Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats
recognized the government of respondent Arroyo.35 US President George W. Bush gave the
respondent a telephone call from the White House conveying US recognition of her
government.36
On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37The House then passed Resolution No. 175 "expressing the full support of the
House of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo,
President of the Philippines."38 It also approved Resolution No. 176 "expressing the support of
the House of Representatives to the assumption into office by Vice President Gloria Macapagal-
Arroyo as President of the Republic of the Philippines, extending its congratulations and
expressing its support for her administration as a partner in the attainment of the nation's goals
under the Constitution."39
On January 26, the respondent signed into law the Solid Waste Management Act. 40 A few days
later, she also signed into law the Political Advertising ban and Fair Election Practices Act. 41
On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile,
and John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge
on the legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa
Aquino-Oreta and Robert Barbers were absent.44 The House of Representatives also approved
Senator Guingona's nomination in Resolution No. 178.45 Senator Guingona, Jr. took his oath as
Vice President two (2) days later.46
On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court
is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the
record" that she voted against the closure of the impeachment court on the grounds that the
Senate had failed to decide on the impeachment case and that the resolution left open the
question of whether Estrada was still qualified to run for another elective post.48
Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating
jacked up from 16% on January 20, 2001 to 38% on January 26, 2001. 49 In another survey
conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the
Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada. The survey
also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60% in the
balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased to
52%. Her presidency is accepted by majorities in all social classes: 58% in the ABC or middle-
to-upper classes, 64% in the D or mass class, and 54% among the E's or very poor class.50
After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters.
Several cases previously filed against him in the Office of the Ombudsman were set in motion.
These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for
bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against
Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery,
perjury, serious misconduct, violation of the Code of Conduct for Government Employees, etc;
(3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines Foundation, Inc. on November
24, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4)
OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on November 28, 2000 for
malversation of public funds, illegal use of public funds and property, plunder, etc.; (5) OMB
Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for bribery, plunder,
indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case No. 0-
00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft and
corruption.
A special panel of investigators was forthwith created by the respondent Ombudsman to
investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman
Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan,
Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22,
the panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits of
his witnesses as well as other supporting documents in answer to the aforementioned
complaints against him.
Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR
No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It
sought to enjoin the respondent Ombudsman from "conducting any further proceedings in Case
Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that
may be filed in his office, until after the term of petitioner as President is over and only if legally
warranted." Thru another counsel, petitioner, on February 6, filed GR No. 146738 for Quo
Warranto. He prayed for judgment "confirming petitioner to be the lawful and incumbent
President of the Republic of the Philippines temporarily unable to discharge the duties of his
office, and declaring respondent to have taken her oath as and to be holding the Office of the
President, only in an acting capacity pursuant to the provisions of the Constitution." Acting on
GR Nos. 146710-15, the Court, on the same day, February 6, required the respondents "to
comment thereon within a non-extendible period expiring on 12 February 2001." On February
13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the filing
of the respondents' comments "on or before 8:00 a.m. of February 15."
On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the
hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused
themselves on motion of petitioner's counsel, former Senator Rene A. Saguisag. They debunked
the charge of counsel Saguisag that they have "compromised themselves by indicating that they
have thrown their weight on one side" but nonetheless inhibited themselves. Thereafter, the
parties were given the short period of five (5) days to file their memoranda and two (2) days to
submit their simultaneous replies.
In a resolution dated February 20, acting on the urgent motion for copies of resolution and press
statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:
"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue
a press statement justifying the alleged resolution;
(2) to order the parties and especially their counsel who are officers of the Court under
pain of being cited for contempt to refrain from making any comment or discussing in
public the merits of the cases at bar while they are still pending decision by the Court,
and
 (3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his
office against petitioner, Joseph E. Estrada and subject of the cases at bar, it
appearing from news reports that the respondent Ombudsman may immediately
resolve the cases against petitioner Joseph E. Estrada seven (7) days after the
hearing held on February 15, 2001, which action will make the cases at bar moot and
academic."53
The parties filed their replies on February 24. On this date, the cases at bar were deemed
submitted for decision.
The bedrock issues for resolution of this Court are:
I concerned with issues dependent upon the wisdom, not legality of a particular measure." To a
Whether the petitions present a justiciable controversy.
II
Assuming that the petitions present a justiciable controversy, whether petitioner
Estrada is a President on leave while respondent Arroyo is an Acting President.
III
Whether conviction in the impeachment proceedings is a condition precedent for the
criminal prosecution of petitioner Estrada. In the negative and on the assumption that
petitioner is still President, whether he is immune from criminal prosecution.
IV
Whether the prosecution of petitioner Estrada should be enjoined on the ground of
prejudicial publicity.
We shall discuss the issues in seriatim.
I
Whether or not the cases
At bar involve a political question
Private respondents54 raise the threshold issue that the cases at bar pose a political question,
and hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress
that respondent Arroyo ascended the presidency through people power; that she has already
taken her oath as the 14th President of the Republic; that she has exercised the powers of the
presidency and that she has been recognized by foreign governments. They submit that these
realities on ground constitute the political thicket, which the Court cannot enter.
We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift
the shroud on political question but its exact latitude still splits the best of legal minds.
Developed by the courts in the 20th century, the political question doctrine which rests on the
principle of separation of powers and on prudential considerations, continue to be refined in the
mills of constitutional law.55 In the United States, the most authoritative guidelines to determine
whether a question is political were spelled out by Mr. Justice Brennan in the 1962 case
or Baker v. Carr,56 viz:
"x x x Prominent on the surface of any case held to involve a political question is found
a textually demonstrable constitutional commitment of the issue to a coordinate
political department or a lack of judicially discoverable and manageable standards for
resolving it, or the impossibility of deciding without an initial policy determination of a
kind clearly for non-judicial discretion; or the impossibility of a court's undertaking
independent resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of embarrassment from multifarious
pronouncements by various departments on question. Unless one of these
formulations is inextricable from the case at bar, there should be no dismissal for non
justiciability on the ground of a political question's presence. The doctrine of which we
treat is one of 'political questions', not of 'political cases'."
In the Philippine setting, this Court has been continuously confronted with cases calling for a
firmer delineation of the inner and outer perimeters of a political question. 57 Our leading case
is Tanada v. Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion,
held that political questions refer "to those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the government. It is
great degree, the 1987 Constitution has narrowed the reach of the political question doctrine
when it expanded the power of judicial review of this court not only to settle actual controversies
involving rights which are legally demandable and enforceable but also to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of government.59 Heretofore, the
judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise of
its jurisdiction.60With the new provision, however, courts are given a greater prerogative to
determine what it can do to prevent grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of government. Clearly, the new
provision did not just grant the Court power of doing nothing. In sync and symmetry with
this intent are other provisions of the 1987 Constitution trimming the so called political thicket.
Prominent of these provisions is section 18 of Article VII which empowers this Court in limpid
language to "x x x review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the suspension of the privilege of the writ (of
habeas corpus) or the extension thereof x x x."
Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A.
Lozano v. President Corazon C. Aquino, et al.61 and related cases62 to support their thesis
that since the cases at bar involve the legitimacy of the government of respondent Arroyo,
ergo, they present a political question. A more cerebral reading of the cited cases will show that
they are inapplicable. In the cited cases, we held that the government of former President
Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful
one. No less than the Freedom Constitution63 declared that the Aquino government was
installed through a direct exercise of the power of the Filipino people "in defiance of the
provisions of the 1973 Constitution, as amended." In is familiar learning that the legitimacy of
a government sired by a successful revolution by people power is beyond judicial scrutiny for
that government automatically orbits out of the constitutional loop. In checkered contrast, the
government of respondent Arroyo is not revolutionary in character. The oath that she took
at the EDSA Shrine is the oath under the 1987 Constitution. 64 In her oath, she categorically
swore to preserve and defend the 1987 Constitution. Indeed, she has stressed that she is
discharging the powers of the presidency under the authority of the 1987
Constitution.1wphi1.nt
In fine, the legal distinction between EDSA People Power I EDSA People Power II is
clear. EDSA I involves the exercise of the people power of revolution which overthrew the
whole government. EDSA II is an 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. EDSA I is extra constitutional and the legitimacy of the
new government that resulted from it cannot be the subject of judicial review, but EDSA II is
intra constitutional and the resignation of the sitting President that it caused and the
succession of the Vice President as President are subject to judicial review. EDSA I presented
a political question; EDSA II involves legal questions. A brief discourse on freedom of
speech and of the freedom of assembly to petition the government for redress of grievance
which are the cutting edge of EDSA People Power II is not inappropriate.
Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights
was one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal,
raised the clarion call for the recognition of freedom of the press of the Filipinos and included it
as among "the reforms sine quibus non."65 The Malolos Constitution, which is the work of the
revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived
(1) of the right to freely express his ideas or opinions, orally or in writing, through the use of the
press or other similar means; (2) of the right of association for purposes of human life and which
are not contrary to public means; and (3) of the right to send petitions to the authorities,
individually or collectively." These fundamental rights were preserved when the United
States acquired jurisdiction over the Philippines. In the Instruction to the Second Philippine
Commission of April 7, 1900 issued by President McKinley, it is specifically provided "that no law
shall be passed abridging the freedom of speech or of the press or of the rights of the people to
peaceably assemble and petition the Government for redress of grievances." The guaranty was
carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act
of Congress of August 29, 1966.66
Thence on, the guaranty was set in stone in our 1935 Constitution,67 and
the 197368 Constitution. These rights are now safely ensconced in section 4, Article III of the
1987 Constitution, viz:
"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances."
The indispensability of the people's freedom of speech and of assembly to democracy is now
self-evident. The reasons are well put by Emerson: first, freedom of expression is essential as a
means of assuring individual fulfillment; second, it is an essential process for advancing
knowledge and discovering truth; third, it is essential to provide for participation in decision-
making by all members of society; and fourth, it is a method of achieving a more adaptable and
hence, a more stable community of maintaining the precarious balance between healthy
cleavage and necessary consensus."69 In this sense, freedom of speech and of assembly
provides a framework in which the "conflict necessary to the progress of a society can
take place without destroying the society."70In Hague v. Committee for Industrial
Organization,71 this function of free speech and assembly was echoed in the amicus curiae filed
by the Bill of Rights Committee of the American Bar Association which emphasized that "the
basis of the right of assembly is the substitution of the expression of opinion and belief by talk
rather than force; and this means talk for all and by all."72 In the relatively recent case
of Subayco v. Sandiganbayan,73 this Court similar stressed that " it should be clear even to
those with intellectual deficits that when the sovereign people assemble to petition for redress of
grievances, all should listen. For in a democracy, it is the people who count; those who are
deaf to their grievances are ciphers."
Needless to state, the cases at bar pose legal and not political questions. The principal issues
for resolution require the proper interpretation of certain provisions in the 1987 Constitution,
notably section 1 of Article II,74 and section 875 of Article VII, and the allocation of governmental
powers under section 1176 of Article VII. The issues likewise call for a ruling on the scope of
presidential immunity from suit. They also involve the correct calibration of the right of petitioner
against prejudicial publicity. As early as the 1803 case of Marbury v. Madison,77 the doctrine
has been laid down that "it is emphatically the province and duty of the judicial department
to say what the law is . . ." Thus, respondent's in vocation of the doctrine of political question is
but a foray in the dark.
II
Whether or not the petitioner
Resigned as President
We now slide to the second issue. None of the parties considered this issue as posing a political
question. Indeed, it involves a legal question whose factual ingredient is determinable from the
records of the case and by resort to judicial notice. Petitioner denies he resigned as President or
that he suffers from a permanent disability. Hence, he submits that the office of the President
was not vacant when respondent Arroyo took her oath as President.
The issue brings under the microscope the meaning of section 8, Article VII of the Constitution
which provides:
"Sec. 8. In case of death, permanent disability, removal from office or resignation of
the President, the Vice President shall become the President to serve the unexpired
term. In case of death, permanent disability, removal from office, or resignation of both
the President and Vice President, the President of the Senate or, in case of his
inability, the Speaker of the House of Representatives, shall then act as President until
the President or Vice President shall have been elected and qualified.
x x x."
The issue then is whether the petitioner resigned as President or should be considered resigned
as of January 20, 2001 when respondent took her oath as the 14th President of the Public.
Resignation is not a high level legal abstraction. It is a factual question and its elements are
beyond quibble: there must be an intent to resign and the intent must be coupled by acts
of relinquishment.78 The validity of a resignation is not government by any formal requirement
as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the
resignation is clear, it must be given legal effect.
In the cases at bar, the facts show that petitioner did not write any formal letter of resignation
before he evacuated Malacaang Palace in the afternoon of January 20, 2001 after the oath-
taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be
determined from his act and omissions before, during and after January 20, 2001 or by
the totality of prior, contemporaneous and posterior facts and circumstantial evidence
bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned as President.
To appreciate the public pressure that led to the resignation of the petitioner, it is important to
follow the succession of events after the expos of Governor Singson. The Senate Blue Ribbon
Committee investigated. The more detailed revelations of petitioner's alleged misgovernance in
the Blue Ribbon investigation spiked the hate against him. The Articles of Impeachment filed in
the House of Representatives which initially was given a near cipher chance of succeeding
snowballed. In express speed, it gained the signatures of 115 representatives or more than 1/3
of the House of Representatives. Soon, petitioner's powerful political allies began deserting him.
Respondent Arroyo quit as Secretary of Social Welfare. Senate President Drilon and former
Speaker Villar defected with 47 representatives in tow. Then, his respected senior economic
advisers resigned together with his Secretary of Trade and Industry.
As the political isolation of the petitioner worsened, the people's call for his resignation
intensified. The call reached a new crescendo when the eleven (11) members of the
impeachment tribunal refused to open the second envelope. It sent the people to paroxysms of
outrage. Before the night of January 16 was over, the EDSA Shrine was swarming with people
crying for redress of their grievance. Their number grew exponentially. Rallies and
demonstration quickly spread to the countryside like a brush fire.
As events approached January 20, we can have an authoritative window on the state of mind of
the petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary
reveals that in the morning of January 19, petitioner's loyal advisers were worried about the
swelling of the crowd at EDSA, hence, they decided to create an ad hoc committee to handle it.
Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office
at the presidential residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes)
(Ed, this is serious. Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided
to call for a snap presidential election and stressed he would not be a candidate. The
proposal for a snap election for president in May where he would not be a candidate is an
indicium that petitioner had intended to give up the presidency even at that time. At 3:00
p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation of the
petitioner and dramatically announced the AFP's withdrawal of support from the petitioner and
their pledge of support to respondent Arroyo. The seismic shift of support left petitioner weak as
a president. According to Secretary Angara, he asked Senator Pimentel to advise petitioner to
consider the option of "dignified exit or resignation."81 Petitioner did not disagree but
listened intently.82 The sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel
repeated to the petitioner the urgency of making a graceful and dignified exit. He gave the
proposal a sweetener by saying that petitioner would be allowed to go abroad with enough funds
to support him and his family.83 Significantly, the petitioner expressed no objection to the
suggestion for a graceful and dignified exit but said he would never leave the
country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie (Reyes)
guaranteed that I would have five days to a week in the palace."85 This is proof that petitioner
had reconciled himself to the reality that he had to resign. His mind was already
concerned with the five-day grace period he could stay in the palace. It was a matter of
time.
The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary
Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to
ensure a) peaceful and orderly transfer of power."86 There was no defiance to the request.
Secretary Angara readily agreed. Again, we note that at this stage, the problem was already
about a peaceful and orderly transfer of power. The resignation of the petitioner was
implied.
The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20
a.m. of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1)
the transition period of five days after the petitioner's resignation; (2) the guarantee of the safety
of the petitioner and his family, and (3) the agreement to open the second envelope to vindicate
the name of the petitioner.87 Again, we note that the resignation of petitioner was not a
disputed point. The petitioner cannot feign ignorance of this fact. According to Secretary
Angara, at 2:30 a.m., he briefed the petitioner on the three points and the following entry in
the Angara Diary shows the reaction of the petitioner, viz:
"x x x
I explain what happened during the first round of negotiations.
The President immediately stresses that he just wants the five-day period promised
by Reyes, as well as to open the second envelope to clear his name.
If the envelope is opened, on Monday, he says, he will leave by Monday.
The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit.
Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any
more of this it's too painful. I'm tired of the red tape, the bureaucracy, the
intrigue.)
I just want to clear my name, then I will go."88
Again, this is high grade evidence that the petitioner has resigned. The intent to resign is
clear when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of
resignation.
The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the
following happened:
"Opposition's deal
7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson)
Rene Corona. For this round, I am accompanied by Dondon Bagatsing and Macel.
Rene pulls out a document titled "Negotiating Points." It reads:
'1. The President shall sign a resignation document within the day, 20 January 2001,
that will be effective on Wednesday, 24 January 2001, on which day the Vice
President will assume the Presidency of the Republic of the Philippines.
2. Beginning to day, 20 January 2001, the transition process for the assumption of the
new administration shall commence, and persons designated by the Vice President to
various positions and offices of the government shall start their orientation activities in
coordination with the incumbent officials concerned.
3. The Armed Forces of the Philippines and the Philippine National Police shall
function under the Vice President as national military and police authority effective
immediately.
4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the
security of the President and his family as approved by the national military and police
authority (Vice President).
5. It is to be noted that the Senate will open the second envelope in connection with
the alleged savings account of the President in the Equitable PCI Bank in accordance
with the rules of the Senate, pursuant to the request to the Senate President.
Our deal
We bring out, too, our discussion draft which reads:
The undersigned parties, for and in behalf of their respective principals, agree and
undertake as follows:
'1. A transition will occur and take place on Wednesday, 24 January 2001, at which
time President Joseph Ejercito Estrada will turn over the presidency to Vice President
Gloria Macapagal-Arroyo.
'2. In return, President Estrada and his families are guaranteed security and safety of
their person and property throughout their natural lifetimes. Likewise, President
Estrada and his families are guarantee freedom from persecution or retaliation from
government and the private sector throughout their natural lifetimes.
 This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP)
through the Chief of Staff, as approved by the national military and police authorities
Vice President (Macapagal).
'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment
court will authorize the opening of the second envelope in the impeachment trial as
proof that the subject savings account does not belong to President Estrada.
'4. During the five-day transition period between 20 January 2001 and 24 January
2001 (the 'Transition Period"), the incoming Cabinet members shall receive an
appropriate briefing from the outgoing Cabinet officials as part of the orientation
program.
During the Transition Period, the AFP and the Philippine National Police (PNP) shall
function Vice President (Macapagal) as national military and police authorities.
Both parties hereto agree that the AFP chief of staff and PNP director general shall
obtain all the necessary signatures as affixed to this agreement and insure faithful
implementation and observance thereof.
Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and
tenor provided for in "Annex A" heretofore attached to this agreement."89
The second round of negotiation cements the reading that the petitioner has resigned. It will be
noted that during this second round of negotiation, the resignation of the petitioner was again
treated as a given fact. The only unsettled points at that time were the measures to be
undertaken by the parties during and after the transition period.
According to Secretary Angara, the draft agreement, which was premised on the resignation of
the petitioner was further refined. It was then, signed by their side and he was ready to fax it to
General Reyes and Senator Pimentel to await the signature of the United Opposition. However,
the signing by the party of the respondent Arroyo was aborted by her oath-taking. The Angara
diary narrates the fateful events, viz;90
"xxx
11:00 a.m. Between General Reyes and myself, there is a firm agreement on the
five points to effect a peaceful transition. I can hear the general clearing all these
points with a group he is with. I hear voices in the background.
Agreement.
The agreement starts: 1. The President shall resign today, 20 January 2001, which
resignation shall be effective on 24 January 2001, on which day the Vice President will
assume the presidency of the Republic of the Philippines.
xxx
The rest of the agreement follows:
2. The transition process for the assumption of the new administration shall
commence on 20 January 2001, wherein persons designated by the Vice President to
various government positions shall start orientation activities with incumbent officials.
'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the
safety and security of the President and his families throughout their natural lifetimes
as approved by the national military and police authority Vice President.
'4. The AFP and the Philippine National Police (PNP) shall function under the Vice
President as national military and police authorities.
'5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject
savings account does not belong to the President.
The Vice President shall issue a public statement in the form and tenor provided for in
Annex "B" heretofore attached to this agreement.
11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement,
signed by our side and awaiting the signature of the United opposition.
And then it happens. General Reyes calls me to say that the Supreme Court has
decided that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.
'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you
wait? What about the agreement)?' I asked.
Reyes answered: 'Wala na, sir (it's over, sir).'
I ask him: Di yung transition period, moot and academic na?'
And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the
part).'
Contrary to subsequent reports, I do not react and say that there was a double cross.
But I immediately instruct Macel to delete the first provision on resignation since this
matter is already moot and academic. Within moments, Macel erases the first
provision and faxes the documents, which have been signed by myself, Dondon and
Macel, to Nene Pimentel and General Reyes.
I direct Demaree Ravel to rush the original document to General Reyes for the
signatures of the other side, as it is important that the provisions on security, at least,
should be respected.
I then advise the President that the Supreme Court has ruled that Chief Justice Davide
will administer the oath to Gloria at 12 noon.
The President is too stunned for words:
Final meal
12 noon Gloria takes her oath as president of the Republic of the Philippines.
12:20 p.m. The PSG distributes firearms to some people inside the compound.
 The president is having his final meal at the presidential Residence with the few
friends and Cabinet members who have gathered.
By this time, demonstrators have already broken down the first line of defense at
Mendiola. Only the PSG is there to protect the Palace, since the police and military
have already withdrawn their support for the President.
1 p.m. The President's personal staff is rushing to pack as many of the Estrada
family's personal possessions as they can.
During lunch, Ronnie Puno mentions that the president needs to release a final
statement before leaving Malacaang.
The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-
Arroyo took her oath as President of the Republic of the Philippines. While along with
many other legal minds of our country, I have strong and serious doubts about the
legality and constitutionality of her proclamation as President, I do not wish to be a
factor that will prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of the presidency of
this country, for the sake of peace and in order to begin the healing process of our
nation. I leave the Palace of our people with gratitude for the opportunities given to me
for service to our people. I will not shirk from any future challenges that may come
ahead in the same service of our country.
I call on all my supporters and followers to join me in the promotion of a constructive
national spirit of reconciliation and solidarity.
May the Almighty bless our country and our beloved people.
MABUHAY!"'
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his
leaving Malacaang. In the press release containing his final statement, (1) he acknowledged
the oath-taking of the respondent as President of the Republic albeit with reservation about its
legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of
peace and in order to begin the healing process of our nation. He did not say he was leaving the
Palace due to any kind inability and that he was going to re-assume the presidency as soon as
the disability disappears: (3) he expressed his gratitude to the people for the opportunity to serve
them. Without doubt, he was referring to the past opportunity given him to serve the people as
President (4) he assured that he will not shirk from any future challenge that may come ahead in
the same service of our country. Petitioner's reference is to a future challenge after occupying
the office of the president which he has given up; and (5) he called on his supporters to join him
in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the
national spirit of reconciliation and solidarity could not be attained if he did not give up the
presidency. The press release was petitioner's valedictory, his final act of farewell. His
presidency is now in the part tense.
It is, however, urged that the petitioner did not resign but only took a temporary leave dated
January 20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is
cited. Again, we refer to the said letter, viz:
"Sir.
By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my
office. By operation of law and the Constitution, the Vice President shall be the Acting
president.
(Sgd.) Joseph Ejercito Estrada"
To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in
the cases at bar did not discuss, may even intimate, the circumstances that led to its
preparation. Neither did the counsel of the petitioner reveal to the Court these circumstances
during the oral argument. It strikes the Court as strange that the letter, despite its legal value,
was never referred to by the petitioner during the week-long crisis. To be sure, there was not the
slightest hint of its existence when he issued his final press release. It was all too easy for him to
tell the Filipino people in his press release that he was temporarily unable to govern and that he
was leaving the reins of government to respondent Arroyo for the time bearing. Under any
circumstance, however, the mysterious letter cannot negate the resignation of the petitioner. If it
was prepared before the press release of the petitioner clearly as a later act. If, however, it was
prepared after the press released, still, it commands scant legal significance. Petitioner's
resignation from the presidency cannot be the subject of a changing caprice nor of a whimsical
will especially if the resignation is the result of his reputation by the people. There is another
reason why this Court cannot given any legal significance to petitioner's letter and this shall be
discussed in issue number III of this Decision.
After petitioner contended that as a matter of fact he did not resign, he also argues that he could
not resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the
Anti-graft and Corrupt Practices Act, which allegedly prohibits his resignation, viz:
"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation,
criminals or administrative, or pending a prosecution against him, for any offense
under this Act or under the provisions of the Revised Penal Code on bribery."
A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the
petitioner. RA No. 3019 originated form Senate Bill No. 293. The original draft of the bill, when it
was submitted to the Senate, did not contain a provision similar to section 12 of the law as it now
stands. However, in his sponsorship speech, Senator Arturo Tolentino, the author of the bill,
"reserved to propose during the period of amendments the inclusion of a provision to the effect
that no public official who is under prosecution for any act of graft or corruption, or is under
administrative investigation, shall be allowed to voluntarily resign or retire."92 During the period of
amendments, the following provision was inserted as section 15:
"Sec. 15. Termination of office No public official shall be allowed to resign or retire
pending an investigation, criminal or administrative, or pending a prosecution against
him, for any offense under the Act or under the provisions of the Revised Penal Code
on bribery.
The separation or cessation of a public official form office shall not be a bar to his
prosecution under this Act for an offense committed during his incumbency." 93
The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the
second paragraph of the provision and insisted that the President's immunity should extend after
his tenure.
Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed.
Section 15 above became section 13 under the new bill, but the deliberations on this particular
provision mainly focused on the immunity of the President, which was one of the reasons for the
veto of the original bill. There was hardly any debate on the prohibition against the resignation or
retirement of a public official with pending criminal and administrative cases against him. Be that
as it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or
retirement from being used by a public official as a protective shield to stop the investigation of a
pending criminal or administrative case against him and to prevent his prosecution under the
Anti-Graft Law or prosecution for bribery under the Revised Penal Code. To be sure, no person
can be compelled to render service for that would be a violation of his constitutional right. 94 A
public official has the right not to serve if he really wants to retire or resign. Nevertheless, if at
the time he resigns or retires, a public official is facing administrative or criminal investigation or
prosecution, such resignation or retirement will not cause the dismissal of the criminal or
administrative proceedings against him. He cannot use his resignation or retirement to avoid
prosecution.
There is another reason why petitioner's contention should be rejected. In the cases at bar, the
records show that when petitioner resigned on January 20, 2001, the cases filed against him
before the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and
0-00-1758. While these cases have been filed, the respondent Ombudsman refrained from
conducting the preliminary investigation of the petitioner for the reason that as the sitting
President then, petitioner was immune from suit. Technically, the said cases cannot be
considered as pending for the Ombudsman lacked jurisdiction to act on them. Section 12 of RA
No. 3019 cannot therefore be invoked by the petitioner for it contemplates of cases whose
investigation or prosecution do not suffer from any insuperable legal obstacle like the immunity
from suit of a sitting President.
Petitioner contends that the impeachment proceeding is an administrative investigation that,
under section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of
an impeachment proceeding is debatable. But even assuming arguendo that it is an
administrative proceeding, it can not be considered pending at the time petitioner resigned
because the process already broke down when a majority of the senator-judges voted against
the opening of the second envelope, the public and private prosecutors walked out, the public
prosecutors filed their Manifestation of Withdrawal of Appearance, and the proceedings were
postponed indefinitely. There was, in effect, no impeachment case pending against petitioner
when he resigned.
III
Whether or not the petitioner Is only temporarily unable to Act as President.
We shall now tackle the contention of the petitioner that he is merely temporarily unable to
perform the powers and duties of the presidency, and hence is a President on leave. As
aforestated, the inability claim is contained in the January 20, 2001 letter of petitioner sent on the
same day to Senate President Pimentel and Speaker Fuentebella.
Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the
inability of the petitioner to discharge the powers and duties of the presidency. His significant
submittal is that "Congress has the ultimate authority under the Constitution to determine
whether the President is incapable of performing his functions in the manner provided for in
section 11 of article VII."95 This contention is the centerpiece of petitioner's stance that he is a
President on leave and respondent Arroyo is only an Acting President.
An examination of section 11, Article VII is in order. It provides:
"SEC. 11. Whenever the President transmits to the President of the Senate and the
Speaker of the House of Representatives his written declaration that he is unable to
discharge the powers and duties of his office, and until he transmits to them a written
declaration to the contrary, such powers and duties shall be discharged by the Vice-
President as Acting President.
Whenever a majority of all the Members of the Cabinet transmit to the President of the
Senate and to the Speaker of the House of Representatives their written declaration
that the President is unable to discharge the powers and duties of his office, the Vice-
President shall immediately assume the powers and duties of the office as Acting
President.
Thereafter, when the President transmits to the President of the Senate and to the
Speaker of the House of Representatives his written declaration that no inability
exists, he shall reassume the powers and duties of his office. Meanwhile, should a
majority of all the Members of the Cabinet transmit within five days to the President of
the Senate and to the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and duties of his
office, the Congress shall decide the issue. For that purpose, the Congress shall
convene, if it is not in session, within forty-eight hours, in accordance with its rules and
without need of call.
If the Congress, within ten days after receipt of the last written declaration, or, if not in
session, within twelve days after it is required to assemble, determines by a two-thirds
vote of both Houses, voting separately, that the President is unable to discharge the
powers and duties of his office, the Vice-President shall act as President; otherwise,
the President shall continue exercising the powers and duties of his office."
That is the law. Now, the operative facts:
1. Petitioner, on January 20, 2001, sent the above letter claiming inability to
the Senate President and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as
President on January 20, 2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on
January 24, 2001 House Resolution No. 175;96
On the same date, the House of the Representatives passed House Resolution No.
17697 which states:
"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT
GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS
SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF
THE NATION'S GOALS UNDER THE CONSTITUTION
WHEREAS, as a consequence of the people's loss of confidence on the ability of
former President Joseph Ejercito Estrada to effectively govern, the Armed Forces of
the Philippines, the Philippine National Police and majority of his cabinet had
withdrawn support from him;
 WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice
President Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20
January 2001 before Chief Justice Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of the international community had
extended their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of
the Republic of the Philippines;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a
policy of national healing and reconciliation with justice for the purpose of national
unity and development;
WHEREAS, it is axiomatic that the obligations of the government cannot be achieved
if it is divided, thus by reason of the constitutional duty of the House of
Representatives as an institution and that of the individual members thereof of fealty
to the supreme will of the people, the House of Representatives must ensure to the
people a stable, continuing government and therefore must remove all obstacles to
the attainment thereof;
WHEREAS, it is a concomitant duty of the House of Representatives to exert all
efforts to unify the nation, to eliminate fractious tension, to heal social and political
wounds, and to be an instrument of national reconciliation and solidarity as it is a
direct representative of the various segments of the whole nation;
WHEREAS, without surrending its independence, it is vital for the attainment of all the
foregoing, for the House of Representatives to extend its support and collaboration to
the administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest demanding no less: Now,
therefore, be it
Resolved by the House of Representatives, To express its support to the assumption
into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of
the Philippines, to extend its congratulations and to express its support for her
administration as a partner in the attainment of the Nation's goals under the
Constitution.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on January 24, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
On February 7, 2001, the House of the Representatives passed House Resolution No.
17898 which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S
NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT
OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is a vacancy in the Office of the Vice President due to the
assumption to the Presidency of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the
event of such vacancy shall nominate a Vice President from among the members of
the Senate and the House of Representatives who shall assume office upon
confirmation by a majority vote of all members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated
Senate Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of
the Republic of the Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with
integrity, competence and courage; who has served the Filipino people with dedicated
responsibility and patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true
statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit,
Executive Secretary, Secretary of Justice, Senator of the Philippines qualities which
merit his nomination to the position of Vice President of the Republic: Now, therefore,
be it
Resolved as it is hereby resolved by the House of Representatives, That the House of
Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the
Vice President of the Republic of the Philippines.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on February 7, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12)
members of the Senate signed the following:
"RESOLUTION
WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;
WHEREAS, to attain desired changes and overcome awesome challenges the nation
needs unity of purpose and resolve cohesive resolute (sic) will;
WHEREAS, the Senate of the Philippines has been the forum for vital legislative
measures in unity despite diversities in perspectives;
WHEREFORE, we recognize and express support to the new government of
President Gloria Macapagal-Arroyo and resolve to discharge and overcome the
nation's challenges." 99
On February 7, the Senate also passed Senate Resolution No. 82100 which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S
NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is vacancy in the Office of the Vice President due to the assumption
to the Presidency of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the
event of such vacancy shall nominate a Vice President from among the members of
the Senate and the House of Representatives who shall assume office upon
confirmation by a majority vote of all members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated
Senate Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of
the Republic of the Philippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated
responsibility and patriotism;
WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true
statemanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit,
Executive Secretary, Secretary of Justice, Senator of the land - which qualities merit
his nomination to the position of Vice President of the Republic: Now, therefore, be it
Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen.
Teofisto T. Guingona, Jr. as Vice President of the Republic of the Philippines.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
On the same date, February 7, the Senate likewise passed Senate Resolution No.
83101 which states:
"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS
OFFICIO
Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment
Court is functus officioand has been terminated.
Resolved, further, That the Journals of the Impeachment Court on Monday, January
15, Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.
Resolved, further, That the records of the Impeachment Court including the "second
envelope" be transferred to the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate. Disposition and retrieval
thereof shall be made only upon written approval of the Senate president.
Resolved, finally. That all parties concerned be furnished copies of this Resolution.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL, JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to
be held simultaneously with the regular election on May 14, 2001 and the Senatorial candidate
garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of
Senator Teofisto T. Guingona, Jr.'
(6) Both houses of Congress started sending bills to be signed into law by
respondent Arroyo as President.
(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition
from any sector of government, and without any support from the Armed Forces of the
Philippines and the Philippine National Police, the petitioner continues to claim that his inability
to govern is only momentary.
What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the
premise that the inability of petitioner Estrada. Is no longer temporary. Congress has
clearly rejected petitioner's claim of inability.
The question is whether this Court has jurisdiction to review the claim of temporary
inability of petitioner Estrada and thereafter revise the decision of both Houses of
Congress recognizing respondent Arroyo as president of the Philippines. Following Taada v.
Cuenco,102 we hold that this Court cannot exercise its judicial power or this is an issue "in regard
to which full discretionary authority has been delegated to the Legislative xxx branch of the
government." Or to use the language in Baker vs. Carr,103 there is a "textually demonstrable or
a lack of judicially discoverable and manageable standards for resolving it." Clearly, the Court
cannot pass upon petitioner's claim of inability to discharge the power and duties of the
presidency. The question is political in nature and addressed solely to Congress by
constitutional fiat. It is a political issue, which cannot be decided by this Court without
transgressing the principle of separation of powers.
In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully
claim that he is a President on leave on the ground that he is merely unable to govern
temporarily. That claim has been laid to rest by Congress and the decision that
respondent Arroyo is the de jure, president made by a co-equal branch of government
cannot be reviewed by this Court.
IV
Whether or not the petitioner enjoys immunity from suit.
Assuming he enjoys immunity, the extent of the immunity
Petitioner Estrada makes two submissions: first, the cases filed against him before the
respondent Ombudsman should be prohibited because he has not been convicted in the
impeachment proceedings against him; and second, he enjoys immunity from all kinds of suit,
whether criminal or civil.
Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be
most enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case
law. In the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent
Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the
Philippine Islands. J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret
Service of the City of Manila, respectively, for damages for allegedly conspiring to deport him to
China. In granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held:
" The principle of nonliability, as herein enunciated, does not mean that the judiciary
has no authority to touch the acts of the Governor-General; that he may, under cover
of his office, do what he will, unimpeded and unrestrained. Such a construction would
mean that tyranny, under the guise of the execution of the law, could walk defiantly
abroad, destroying rights of person and of property, wholly free from interference of
courts or legislatures. This does not mean, either that a person injured by the
executive authority by an act unjustifiable under the law has n remedy, but must
submit in silence. On the contrary, it means, simply, that the governors-general, like
the judges if the courts and the members of the Legislature, may not be personally
mulcted in civil damages for the consequences of an act executed in the performance
of his official duties. The judiciary has full power to, and will, when the mater is
properly presented to it and the occasion justly warrants it, declare an act of the
Governor-General illegal and void and place as nearly as possible in status quo any
person who has been deprived his liberty or his property by such act. This remedy is
assured to every person, however humble or of whatever country, when his personal
or property rights have been invaded, even by the highest authority of the state. The
thing which the judiciary can not do is mulct the Governor-General personally in
damages which result from the performance of his official duty, any more than it can a
member of the Philippine Commission of the Philippine Assembly. Public policy forbids
it.
Neither does this principle of nonliability mean that the chief executive may not be
personally sued at all in relation to acts which he claims to perform as such official. On
the contrary, it clearly appears from the discussion heretofore had, particularly that
portion which touched the liability of judges and drew an analogy between such
liability and that of the Governor-General, that the latter is liable when he acts in a
case so plainly outside of his power and authority that he can not be said to have
exercised discretion in determining whether or not he had the right to act. What is held
here is that he will be protected from personal liability for damages not only when he
acts within his authority, but also when he is without authority, provided he actually
used discretion and judgement, that is, the judicial faculty, in determining whether he
had authority to act or not. In other words, in determining the question of his authority.
If he decide wrongly, he is still protected provided the question of his authority was
one over which two men, reasonably qualified for that position, might honestly differ;
but he s not protected if the lack of authority to act is so plain that two such men could
not honestly differ over its determination. In such case, be acts, not as Governor-
General but as a private individual, and as such must answer for the consequences of
his act."
Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted
immunity from suit, viz"xxx. Action upon important matters of state delayed; the time and
substance of the chief executive spent in wrangling litigation; disrespect engendered for the
person of one of the highest officials of the state and for the office he occupies; a tendency to
unrest and disorder resulting in a way, in distrust as to the integrity of government itself." 105
Our 1935 Constitution took effect but it did not contain any specific provision on executive
immunity. Then came the tumult of the martial law years under the late President Ferdinand E.
Marcos and the 1973 Constitution was born. In 1981, it was amended and one of the
amendments involved executive immunity. Section 17, Article VII stated:
"The President shall be immune from suit during his tenure. Thereafter, no suit
whatsoever shall lie for official acts done by him or by others pursuant to his specific
orders during his tenure.
The immunities herein provided shall apply to the incumbent President referred to in
Article XVII of this Constitution.
In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All
The King's Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's
learned counsel, former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the
modifications effected by this constitutional amendment on the existing law on executive
privilege. To quote his disquisition:
"In the Philippines, though, we sought to do the Americans one better by enlarging
and fortifying the absolute immunity concept. First, we extended it to shield the
President not only form civil claims but also from criminal cases and other claims.
Second, we enlarged its scope so that it would cover even acts of the President
outside the scope of official duties. And third, we broadened its coverage so as to
include not only the President but also other persons, be they government officials or
private individuals, who acted upon orders of the President. It can be said that at that
point most of us were suffering from AIDS (or absolute immunity defense syndrome)."
The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of
executive immunity in the 1973 Constitution. The move was led by them Member of Parliament,
now Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity
granted to President Marcos violated the principle that a public office is a public trust. He
denounced the immunity as a return to the anachronism "the king can do no wrong." 107 The
effort failed.
The 1973 Constitution ceased to exist when President Marcos was ousted from office by the
People Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not
reenact the executive immunity provision of the 1973 Constitution. The following explanation
was given by delegate J. Bernas vis:108
"Mr. Suarez. Thank you.
The last question is with reference to the Committee's omitting in the draft proposal
the immunity provision for the President. I agree with Commissioner Nolledo that the
Committee did very well in striking out second sentence, at the very least, of the
original provision on immunity from suit under the 1973 Constitution. But would the
Committee members not agree to a restoration of at least the first sentence that the
President shall be immune from suit during his tenure, considering that if we do not
provide him that kind of an immunity, he might be spending all his time facing
litigation's, as the President-in-exile in Hawaii is now facing litigation's almost daily?
Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.
Mr. Suarez. So there is no need to express it here.
Fr. Bernas. There is no need. It was that way before. The only innovation made by the
1973 Constitution was to make that explicit and to add other things.
Mr. Suarez. On that understanding, I will not press for any more query, Madam
President.
I think the Commissioner for the clarifications."
We shall now rule on the contentions of petitioner in the light of this history. We reject his
argument that he cannot be prosecuted for the reason that he must first be convicted in the
impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the
walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on
February 7, 2001, the Senate passed Senate Resolution No. 83 "Recognizing that the
Impeachment Court is Functus Officio."109 Since, the Impeachment Court is now functus officio, it
is untenable for petitioner to demand that he should first be impeached and then convicted
before he can be prosecuted. The plea if granted, would put a perpetual bar against his
prosecution. Such a submission has nothing to commend itself for it will place him in a better
situation than a non-sitting President who has not been subjected to impeachment proceedings
and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional
Commission make it clear that when impeachment proceedings have become moot due to the
resignation of the President, the proper criminal and civil cases may already be filed against him,
viz:110
"xxx
Mr. Aquino. On another point, if an impeachment proceeding has been filed against
the President, for example, and the President resigns before judgement of conviction
has been rendered by the impeachment court or by the body, how does it affect the
impeachment proceeding? Will it be necessarily dropped?
Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then
his resignation would render the case moot and academic. However, as the provision
says, the criminal and civil aspects of it may continue in the ordinary courts."
This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and
tenure" but not beyond. Considering the peculiar circumstance that the impeachment process
against the petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada
cannot demand as a condition sine qua non to his criminal prosecution before the Ombudsman
that he be convicted in the impeachment proceedings. His reliance on the case of Lecaroz vs.
Sandiganbayan112 and related cases113 are inapropos for they have a different factual milieu.
We now come to the scope of immunity that can be claimed by petitioner as a non-sitting
President. The cases filed against petitioner 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. Petitioner cannot cite any decision of this Court licensing the President
to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be
anomalous to hold that immunity is an inoculation from liability for unlawful acts and conditions.
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. 114
Indeed, critical reading of current literature on executive immunity will reveal a judicial
disinclination to expand the privilege especially when it impedes the search for truth or impairs
the vindication of a right. In the 1974 case of US v. Nixon, 115 US President Richard Nixon, a
sitting President, was subpoenaed to produce certain recordings and documents relating to his
conversations with aids and advisers. Seven advisers of President Nixon's associates were
facing charges of conspiracy to obstruct Justice and other offenses, which were committed in a
burglary of the Democratic National Headquarters in Washington's Watergate Hotel during the
972 presidential campaign. President Nixon himself was named an unindicted co-conspirator.
President Nixon moved to quash the subpoena on the ground, among others, that the President
was not subject to judicial process and that he should first be impeached and removed from
office before he could be made amenable to judicial proceedings. The claim was rejected by the
US Supreme Court. It concluded that "when the ground for asserting privilege as to subpoenaed
materials sought for use in a criminal trial is based only on the generalized interest in
confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair
administration of criminal justice." In the 1982 case of Nixon v. Fitzgerald, 116 the US Supreme
Court further held that the immunity of the president from civil damages covers only "official
acts." Recently, the US Supreme Court had the occasion to reiterate this doctrine in the case of
Clinton v. Jones117 where it held that the US President's immunity from suits for money damages
arising out of their official acts is inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to appeals to stretch the scope of executive
immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public
office is a public trust.118 It declared as a state policy that "the State shall maintain honesty and
integrity in the public service and take positive and effective measures against graft and
corruptio."119 it ordained that "public officers and employees must at all times be accountable to
the people, serve them with utmost responsibility, integrity, loyalty, and efficiency act with
patriotism and justice, and lead modest lives."120 It set the rule that 'the right of the State to
recover properties unlawfully acquired by public officials or employees, from them or from their
nominees or transferees, shall not be barred by prescription, latches or estoppel." 121 It
maintained the Sandiganbayan as an anti-graft court.122 It created the office of the Ombudsman
and endowed it with enormous powers, among which is to "investigate on its own, or on
complaint by any person, any act or omission of any public official, employee, office or agency,
when such act or omission appears to be illegal, unjust improper or inefficient." 123 The Office of
the Ombudsman was also given fiscal autonomy.124 These constitutional policies will be
devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity from suit for
criminal acts committed during his incumbency.
V
Whether or not the prosecution of petitioner
Estrada should be enjoined due to prejudicial publicity
Petitioner also contends that the respondent Ombudsman should be stopped from conducting
the investigation of the cases filed against him due to the barrage of prejudicial publicity on his
guilt. He submits that the respondent Ombudsman has developed bias and is all set file the
criminal cases violation of his right to due process.
There are two (2) principal legal and philosophical schools of thought on how to deal with the
rain of unrestrained publicity during the investigation and trial of high profile cases. 125 The British
approach the problem with the presumption that publicity will prejudice a jury. Thus, English
courts readily stay and stop criminal trials when the right of an accused to fair trial suffers a
threat.126 The American approach is different. US courts assume a skeptical approach about the
potential effect of pervasive publicity on the right of an accused to a fair trial. They have
developed different strains of tests to resolve this issue, i.e., substantial; probability of
irreparable harm, strong likelihood, clear and present danger, etc.
This is not the first time the issue of trial by publicity has been raised in this Court to stop the
trials or annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later
reiterated in the case of Larranaga vs. court of Appeals, et al., 129 we laid down the doctrine that:
"We cannot sustain appellant's claim that he was denied the right to impartial trial due
to prejudicial publicity. It is true that the print and broadcast media gave the case at
bar pervasive publicity, just like all high profile and high stake criminal trials. Then and
now, we rule that the right of an accused to a fair trial is not incompatible to a free
press. To be sure, responsible reporting enhances accused's right to a fair trial for, as
well pointed out, a responsible press has always been regarded as the criminal field
xxx. The press does not simply publish information about trials but guards against the
miscarriage of justice by subjecting the police, prosecutors, and judicial processes to
extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The
mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage
does not by itself prove that the publicity so permeated the mind of the trial judge and
impaired his impartiality. For one, it is impossible to seal the minds of members of the
bench from pre-trial and other off-court publicity of sensational criminal cases. The
state of the art of our communication system brings news as they happen straight to
our breakfast tables and right to our bedrooms. These news form part of our everyday
menu of the facts and fictions of life. For another, our idea of a fair and impartial judge
is not that of a hermit who is out of touch with the world. We have not installed the jury
system whose members are overly protected from publicity lest they lose there
impartially. xxx xxx xxx. Our judges are learned in the law and trained to disregard off-
court evidence and on-camera performances of parties to litigation. Their mere
exposure to publications and publicity stunts does not per se fatally infect their
impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial judge
due to the barrage of publicity that characterized the investigation and trial of the case.
In Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of
prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding
of prejudicial publicity, there must be allegation and proof that the judges have been
unduly influenced, not simply that they might be, by the barrage of publicity. In the
case at a bar, the records do not show that the trial judge developed actual bias
against appellants as a consequence of the extensive media coverage of the pre-trial
and trial of his case. The totality of circumstances of the case does not prove that the
trial judge acquired a fixed opinion as a result of prejudicial publicity, which is
incapable of change even by evidence presented during the trial. Appellant has the
burden to prove this actual bias and he has not discharged the burden.'
We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon,
etc.130 and its companion cases, viz:
"Again petitioners raise the effect of prejudicial publicity on their right to due process
while undergoing preliminary investigation. We find no procedural impediment to its
early invocation considering the substantial risk to their liberty while undergoing a
preliminary investigation.
xxx
The democratic settings, media coverage of trials of sensational cases cannot be
avoided and oftentimes, its excessiveness has been aggravated by kinetic
developments in the telecommunications industry. For sure, few cases can match the
high volume and high velocity of publicity that attended the preliminary investigation of
the case at bar. Our daily diet of facts and fiction about the case continues unabated
even today. Commentators still bombard the public with views not too many of which
are sober and sublime. Indeed, even the principal actors in the case the NBI, the
respondents, their lawyers and their sympathizers have participated in this media blitz.
The possibility of media abuses and their threat to a fair trial notwithstanding, criminal
trials cannot be completely closed to the press and public. In the seminal case of
Richmond Newspapers, Inc. v. Virginia, it was
xxx
a. The historical evidence of the evolution of the criminal trial in Anglo-
American justice demonstrates conclusively that at the time this Nation's
organic laws were adopted, criminal trials both here and in England had
long been presumptively open, thus giving assurance that the proceedings
were conducted fairly to all concerned and discouraging perjury, the
misconduct of participants, or decisions based on secret bias or partiality. In
addition, the significant community therapeutic value of public trials was
recognized when a shocking crime occurs a community reaction of outrage
and public protest often follows, and thereafter the open processes of justice
serve an important prophylactic purpose, providing an outlet for community
concern, hostility and emotion. To work effectively, it is important that
society's criminal process satisfy the appearance of justice,' Offutt v. United
States, 348 US 11, 14, 99 L ED 11, 75 S Ct 11, which can best be provided
by allowing people to observe such process. From this unbroken,
uncontradicted history, supported by reasons as valid today as in centuries
past, it must be concluded that a presumption of openness inheres in the
very nature of a criminal trial under this Nation's system of justice, Cf., e,g.,
Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly guaranteed by the
First Amendment, share a common core purpose of assuring freedom of
communication on matters relating to the functioning of government. In
guaranteeing freedom such as those of speech and press, the First
Amendment can be read as protecting the right of everyone to attend trials
so as give meaning to those explicit guarantees; the First Amendment right
to receive information and ideas means, in the context of trials, that the
guarantees of speech and press, standing alone, prohibit government from
summarily closing courtroom doors which had long been open to the public
at the time the First Amendment was adopted. Moreover, the right of
assembly is also relevant, having been regarded not only as an independent
right but also as a catalyst to augment the free exercise of the other First
Amendment rights with which the draftsmen deliberately linked it. A trial
courtroom is a public place where the people generally and representatives
 of the media have a right to be present, and where their presence
historically has been thought to enhance the integrity and quality of what
takes place.
c. Even though the Constitution contains no provision which be its terms
guarantees to the public the right to attend criminal trials, various
fundamental rights, not expressly guaranteed, have been recognized as
indispensable to the enjoyment of enumerated rights. The right to attend
criminal trial is implicit in the guarantees of the First Amendment: without the
freedom to attend such trials, which people have exercised for centuries,
important aspects of freedom of speech and of the press be eviscerated.
prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules
of Criminal Procedure, give investigation prosecutors the independence to make their own
findings and recommendations albeit they are reviewable by their superiors. 134 They can be
reversed but they can not be compelled cases which they believe deserve dismissal. In other
words, investigating prosecutors should not be treated like unthinking slot machines. Moreover,
if the respondent Ombudsman resolves to file the cases against the petitioner and the latter
believes that the findings of probable cause against him is the result of bias, he still has the
remedy of assailing it before the proper court.
VI.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage of publicity. In the case at
bar, we find nothing in the records that will prove that the tone and content of the
publicity that attended the investigation of petitioners fatally infected the fairness and
impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of
publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown
and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief
State Prosecutor and Senior State Prosecutors. Their long experience in criminal
investigation is a factor to consider in determining whether they can easily be blinded
by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable
indicia of bias for it does not appear that they considered any extra-record evidence
except evidence properly adduced by the parties. The length of time the investigation
was conducted despite its summary nature and the generosity with which they
accommodated the discovery motions of petitioners speak well of their fairness. At no
instance, we note, did petitioners seek the disqualification of any member of the DOJ
Panel on the ground of bias resulting from their bombardment of prejudicial publicity."
(emphasis supplied)
Epilogue
A word of caution to the "hooting throng." The cases against the petitioner will now acquire a
different dimension and then move to a new stage - - - the Office of the Ombudsman.
Predictably, the call from the majority for instant justice will hit a higher decibel while the
gnashing of teeth of the minority will be more threatening. It is the sacred duty of the respondent
Ombudsman to balance the right of the State to prosecute the guilty and the right of an accused
to a fair investigation and trial which has been categorized as the "most fundamental of all
freedoms."135To be sure, the duty of a prosecutor is more to do justice and less to prosecute. His
is the obligation to insure that the preliminary investigation of the petitioner shall have a circus-
free atmosphere. He has to provide the restraint against what Lord Bryce calls "the impatient
vehemence of the majority." Rights in a democracy are not decided by the mob whose judgment
is dictated by rage and not by reason. Nor are rights necessarily resolved by the power of
number for in a democracy, the dogmatism of the majority is not and should never be the
definition of the rule of law. If democracy has proved to be the best form of government, it is
because it has respected the right of the minority to convince the majority that it is wrong.
Tolerance of multiformity of thoughts, however offensive they may be, is the key to man's
progress from the cave to civilization. Let us not throw away that key just to pander to some
people's prejudice.

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria
enjoin the preliminary investigation of the petitioner by the respondent Ombudsman. Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.
Petitioner needs to offer more than hostile headlines to discharge his burden of proof. 131 He
needs to show more weighty social science evidence to successfully prove the impaired capacity
SO ORDERED.
of a judge to render a bias-free decision. Well to note, the cases against the petitioner are still
undergoing preliminary investigation by a special panel of prosecutors in the office of the
respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the
minds of the members of this special panel have already been infected by bias because of the
pervasive prejudicial publicity against him. Indeed, the special panel has yet to come out with its
findings and the Court cannot second guess whether its recommendation will be unfavorable to
the petitioner.

The records show that petitioner has instead charged respondent Ombudsman himself with bias.
To quote petitioner's submission, the respondent Ombudsman "has been influenced by the
barrage of slanted news reports, and he has buckled to the threats and pressures directed at
him by the mobs."132 News reports have also been quoted to establish that the respondent
Ombudsman has already prejudged the cases of the petitioner133 and it is postulated that the
prosecutors investigating the petitioner will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of
the news reports referred to by the petitioner cannot be the subject of judicial notice by this Court
especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and
the presumption of good faith and regularity in the performance of official duty to which he is
entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the
 G.R. No. 83896 February 22, 1991
CIVIL LIBERTIES UNION, petitioner,
vs.
THE EXECUTIVE SECRETARY, respondent.
G.R. No. 83815 February 22, 1991
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,
vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as
Secretary of Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture and
Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment and Natural
Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY ORDOEZ, as
Secretary of Justice; FRANKLIN N. DRILON, as Secretary of Labor and Employment; LUIS
SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as Secretary of National
Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO FERRER, as Secretary of
Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of Science and
Technology; JOSE CONCEPCION, as Secretary of Trade and Industry; JOSE ANTONIO
GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of Health;
REINERIO D. REYES, as Secretary of Transportation and Communication; GUILLERMO
CARAGUE, as Commissioner of the Budget; and SOLITA MONSOD, as Head of the
National Economic Development Authority, respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in
83896.
Antonio P. Coronel for petitioners in 83815.
FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and are being
resolved jointly as both seek a declaration of the unconstitutionality of Executive Order No. 284
issued by President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the
assailed Executive Order are:
Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of
the Cabinet, undersecretary or assistant secretary or other appointive officials of the
Executive Department may, in addition to his primary position, hold not more than two
positions in the government and government corporations and receive the
corresponding compensation therefor; Provided, that this limitation shall not apply to
ad hoc bodies or committees, or to boards, councils or bodies of which the President
is the Chairman.
Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other
appointive official of the Executive Department holds more positions than what is
allowed in Section 1 hereof, they (sic) must relinquish the excess position in favor of
the subordinate official who is next in rank, but in no case shall any official hold more
than two positions other than his primary position.
Sec. 3. In order to fully protect the interest of the government in government-owned or
controlled corporations, at least one-third (1/3) of the members of the boards of such
corporation should either be a secretary, or undersecretary, or assistant secretary.
Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet,
their undersecretaries and assistant secretaries to hold other government offices or positions in
addition to their primary positions, albeit subject to the limitation therein imposed, runs counter to
Section 13, Article VII of the 1987 Constitution,2 which provides as follows:
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 government-owned or controlled corporations or their subsidiaries. They
shall strictly avoid conflict of interest in the conduct of their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as
members of the Cabinet, along with the other public officials enumerated in the list attached to
the petitions as Annex "C" in G.R. No.
838153 and as Annex "B" in G.R. No. 838964 from holding any other office or employment during
their tenure. In addition to seeking a declaration of the unconstitutionality of Executive Order No.
284, petitioner Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance
of the extraordinary writs of prohibition and mandamus, as well as a temporary restraining order
directing public respondents therein to cease and desist from holding, in addition to their primary
positions, dual or multiple positions other than those authorized by the 1987 Constitution and
from receiving any salaries, allowances, per diems and other forms of privileges and the like
appurtenant to their questioned positions, and compelling public respondents to return,
reimburse or refund any and all amounts or benefits that they may have received from such
positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the
aforequoted "absolute and self-executing" provision of the 1987 Constitution, then Secretary of
Justice Sedfrey Ordoez, construing Section 13, Article VII in relation to Section 7, par. (2),
Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987, 5 declaring that Cabinet
members, their deputies (undersecretaries) and assistant secretaries may hold other public
office, including membership in the boards of government corporations: (a) when directly
provided for in the Constitution as in the case of the Secretary of Justice who is made an ex-
officio member of the Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if
allowed by law; or (c) if allowed by the primary functions of their respective positions; and that on
the basis of this Opinion, the President of the Philippines, on July 25, 1987 or two (2) days
before Congress convened on July 27, 1987: promulgated Executive Order No. 284. 6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and
Executive Order No. 284 as they allegedly "lumped together" Section 13, Article VII and the
general provision in another article, Section 7, par. (2), Article I-XB. This "strained linkage"
between the two provisions, each addressed to a distinct and separate group of public officers
one, the President and her official family, and the other, public servants in general allegedly
"abolished the clearly separate, higher, exclusive, and mandatory constitutional rank assigned to
the prohibition against multiple jobs for the President, the Vice-President, the members of the
Cabinet, and their deputies and subalterns, who are the leaders of government expected to lead
by example."7 Article IX-B, Section 7, par. (2)8 provides:
Sec. 7. . . . . .
 Unless otherwise allowed by law or by 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.
The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987,
as further elucidated and clarified by DOJ Opinion No. 129, series of 19879 and DOJ Opinion
No. 155, series of 1988,10 being the first official construction and interpretation by the Secretary
of Justice of Section 13, Article VII and par. (2) of Section 7, Article I-XB of the Constitution,
involving the same subject of appointments or designations of an appointive executive official to
positions other than his primary position, is "reasonably valid and constitutionally firm," and that
Executive Order No. 284, promulgated pursuant to DOJ Opinion No. 73, series of 1987 is
consequently constitutional. It is worth noting that DOJ Opinion No. 129, series of 1987 and DOJ
Opinion No. 155, series of 1988 construed the limitation imposed by E.O. No. 284 as not
applying to ex-officio positions or to positions which, although not so designated as ex-officio are
allowed by the primary functions of the public official, but only to the holding of multiple positions
which are not related to or necessarily included in the position of the public official concerned
(disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the
principal submission that it adds exceptions to Section 13, Article VII other than those provided
in the Constitution. According to petitioners, by virtue of the phrase "unless otherwise provided in
this Constitution," the only exceptions against holding any other office or employment in
Government are those provided in the Constitution, namely: (1) The Vice-President may be
appointed as a Member of the Cabinet under Section 3, par. (2), Article VII thereof; and (2) the
Secretary of Justice is an ex-officio member of the Judicial and Bar Council by virtue of Section
8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB
on the Civil Service Commission applies to officers and employees of the Civil Service in general
and that said exceptions do not apply and cannot be extended to Section 13, Article VII which
applies specifically to the President, Vice-President, Members of the Cabinet and their deputies
or assistants.
There is no dispute that the prohibition against the President, Vice-President, the members of
the Cabinet and their deputies or assistants from holding dual or multiple positions in the
Government admits of certain exceptions. The disagreement between petitioners and public
respondents lies on the constitutional basis of the exception. Petitioners insist that because of
the phrase "unless otherwise provided in this Constitution" used in Section 13 of Article VII, the
exception must be expressly provided in the Constitution, as in the case of the Vice-President
being allowed to become a Member of the Cabinet under the second paragraph of Section 3,
Article VII or the Secretary of Justice being designated an ex-officio member of the Judicial and
Bar Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand, maintain that
the phrase "unless otherwise provided in the Constitution" in Section 13, Article VII makes
reference to Section 7, par. (2), Article I-XB insofar as the appointive officials mentioned therein
are concerned.
The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987
Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the
broad exceptions made for appointive officials in general under Section 7, par. (2), Article I-XB
which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by the
primary functions of his position, no appointive official shall hold any other office or employment
in the Government or any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporation or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in
mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be
prevented or remedied. A doubtful provision will be examined in the light of the history of the
times, and the condition and circumstances under which the Constitution was framed. The object
is to ascertain the reason which induced the framers of the Constitution to enact the particular
provision and the purpose sought to be accomplished thereby, in order to construe the whole as
to make the words consonant to that reason and calculated to effect that purpose. 11
The practice of designating members of the Cabinet, their deputies and assistants as members
of the governing bodies or boards of various government agencies and instrumentalities,
including government-owned and controlled corporations, became prevalent during the time
legislative powers in this country were exercised by former President Ferdinand E. Marcos
pursuant to his martial law authority. There was a proliferation of newly-created agencies,
instrumentalities and government-owned and controlled corporations created by presidential
decrees and other modes of presidential issuances where Cabinet members, their deputies or
assistants were designated to head or sit as members of the board with the corresponding
salaries, emoluments, per diems, allowances and other perquisites of office. Most of these
instrumentalities have remained up to the present time.
This practice of holding multiple offices or positions in the government soon led to abuses by
unscrupulous public officials who took advantage of this scheme for purposes of self-enrichment.
In fact, the holding of multiple offices in government was strongly denounced on the floor of the
Batasang Pambansa.12 This condemnation came in reaction to the published report of the
Commission on Audit, entitled "1983 Summary Annual Audit Report on: Government-Owned
and Controlled Corporations, Self-Governing Boards and Commissions" which carried as its
Figure No. 4 a "Roaster of Membership in Governing Boards of Government-Owned and
Controlled Corporations as of December 31, 1983."
Particularly odious and revolting to the people's sense of propriety and morality in government
service were the data contained therein that Roberto V. Ongpin was a member of the governing
boards of twenty-nine (29) governmental agencies, instrumentalities and corporations; Imelda R.
Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen
(15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of
thirteen (13); Ruben B. Ancheta and Jose A. Roo of twelve (12) each; Manuel P. Alba, Gilberto
O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q.
Pea of ten (10) each.13
The blatant betrayal of public trust evolved into one of the serious causes of discontent with the
Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming
sentiment of the people that the 1986 Constitutional Commission, convened as it was after the
people successfully unseated former President Marcos, should draft into its proposed
Constitution the provisions under consideration which are envisioned to remedy, if not correct,
the evils that flow from the holding of multiple governmental offices and employment. In fact, as
keenly observed by Mr. Justice Isagani A. Cruz during the deliberations in these cases, one of
the strongest selling points of the 1987 Constitution during the campaign for its ratification was
the assurance given by its proponents that the scandalous practice of Cabinet members holding
multiple positions in the government and collecting unconscionably excessive compensation
therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7, Article I-XB already contains a
blanket prohibition against the holding of multiple offices or employment in the government
subsuming both elective and appointive public officials, the Constitutional Commission should
see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President,
Vice-President, members of the Cabinet, their deputies and assistants from holding any other
office or employment during their tenure, unless otherwise provided in the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the constitutional provisions
in question, the intent of the framers of the Constitution was to impose a stricter prohibition on
the President and his official family in so far as holding other offices or employment in the
government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with other
provisions of the Constitution on the disqualifications of certain public officials or employees from
holding other offices or employment. Under Section 13, Article VI, "(N)o Senator or Member of
the House of Representatives may hold any other office or employment in the Government . . .".
Under Section 5(4), Article XVI, "(N)o member of the armed forces in the active service shall, at
any time, be appointed in any capacity to a civilian position in the Government,including
government-owned or controlled corporations or any of their subsidiaries." Even Section 7 (2),
Article IX-B, relied upon by respondents provides "(U)nless otherwise allowed by law or by the
primary functions of his position, no appointive official shall hold any other office or
employment in the Government."
It is quite notable that in all these provisions on disqualifications to hold other office or
employment, the prohibition pertains to an office or employment in the government and
government-owned or controlled corporations or their subsidiaries. In striking contrast is the
wording of Section 13, Article VII which states that "(T)he President, Vice-President, the
Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in
this Constitution, hold any other office or employment during their tenure." In the latter provision,
the disqualification is absolute, not being qualified by the phrase "in the Government." The
prohibition imposed on the President and his official family is therefore all-embracing and covers
both public and private office or employment.
Going further into Section 13, Article VII, the second sentence provides: "They shall not, during
said tenure, directly or indirectly, practice any other profession, participate in any business, or be
financially interested in any contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency or instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries." These sweeping, all-embracing prohibitions
imposed on the President and his official family, which prohibitions are not similarly imposed on
other public officials or employees such as the Members of Congress, members of the civil
service in general and members of the armed forces, are proof of the intent of the 1987
Constitution to treat the President and his official family as a class by itself and to impose upon
said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the President and his
official family was also succinctly articulated by Commissioner Vicente Foz after Commissioner
Regalado Maambong noted during the floor deliberations and debate that there was no
symmetry between the Civil Service prohibitions, originally found in the General Provisions and
the anticipated report on the Executive Department. Commissioner Foz Commented, "We
actually have to be stricter with the President and the members of the Cabinet because they
exercise more powers and, therefore, more cheeks and restraints on them are called for
because there is more possibility of abuse in their case."14
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 I-XB
is meant to lay down the general rule applicable to all elective and appointive public officials and
employees, while Section 13, Article VII is meant to be the exception applicable only to the
President, the Vice- President, Members of the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in
Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7,
Article I-XB of the 1987 Constitution. To construe said qualifying phrase as respondents would
have us do, would render nugatory and meaningless the manifest intent and purpose of the
framers of the Constitution to impose a stricter prohibition on the President, Vice-President,
Members of the Cabinet, their deputies and assistants with respect to holding other offices or
employment in the government during their tenure. Respondents' interpretation that Section 13
of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate
the distinction so carefully set by the framers of the Constitution as to when the high-ranking
officials of the Executive Branch from the President to Assistant Secretary, on the one hand, and
the generality of civil servants from the rank immediately below Assistant Secretary downwards,
on the other, may hold any other office or position in the government during their tenure.
Moreover, respondents' reading of the provisions in question would render certain parts of the
Constitution inoperative. This observation applies particularly to the Vice-President who, under
Section 13 of Article VII is allowed to hold other office or employment when so authorized by the
Constitution, but who as an elective public official under Sec. 7, par. (1) of Article I-XB is
absolutely ineligible "for appointment or designation in any capacity to any public office or
position during his tenure." Surely, to say that the phrase "unless otherwise provided in this
Constitution" found in Section 13, Article VII has reference to Section 7, par. (1) of Article I-XB
would render meaningless the specific provisions of the Constitution authorizing the Vice-
President to become a member of the Cabinet,15 and to act as President without relinquishing
the Vice-Presidency where the President shall not nave been chosen or fails to qualify. 16 Such
absurd consequence can be avoided only by interpreting the two provisions under consideration
as one, i.e., Section 7, par. (1) of Article I-XB providing the general rule and the other, i.e.,
Section 13, Article VII as constituting the exception thereto. In the same manner must Section 7,
par. (2) of Article I-XB be construed vis-a-vis Section 13, Article VII.
It is a well-established rule in Constitutional construction that no one provision of the Constitution
is to be separated from all the others, to be considered alone, but that all the provisions bearing
upon a particular subject are to be brought into view and to be so interpreted as to effectuate the
great purposes of the instrument.17 Sections bearing on a particular subject should be
considered and interpreted together as to effectuate the whole purpose of the Constitution 18 and
one section is not to be allowed to defeat another, if by any reasonable construction, the two can
be made to stand together.19
In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the words
idle and nugatory.20
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter
prohibition on the President, Vice-President, members of the Cabinet, their deputies and
assistants with respect to holding multiple offices or employment in the government during their
tenure, the exception to this prohibition must be read with equal severity. On its face, the
language of Section 13, Article VII is prohibitory so that it must be understood as intended to be
a positive and unequivocal negation of the privilege of holding multiple government offices or
employment. Verily, wherever the language used in the constitution is prohibitory, it is to be
understood as intended to be a positive and unequivocal negation. 21 The phrase "unless
otherwise provided in this Constitution" must be given a literal interpretation to refer only to those
particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as
a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those
instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice
being ex-officiomember of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or employment under Section 13, Article
VII of the Constitution must not, however, be construed as applying to posts occupied by the
Executive officials specified therein without additional compensation in an ex-officio capacity as
provided by law and as required22 by the primary functions of said officials' office. The reason is
that these posts do no comprise "any other office" within the contemplation of the constitutional
prohibition but are properly an imposition of additional duties and functions on said officials. 23 To
characterize these posts otherwise would lead to absurd consequences, among which are: The
President of the Philippines cannot chair the National Security Council reorganized under
Executive Order No. 115 (December 24, 1986). Neither can the Vice-President, the Executive
Secretary, and the Secretaries of National Defense, Justice, Labor and Employment and Local
Government sit in this Council, which would then have no reason to exist for lack of a
chairperson and members. The respective undersecretaries and assistant secretaries, would
also be prohibited.
The Secretary of Labor and Employment cannot chair the Board of Trustees of the National
Manpower and Youth Council (NMYC) or the Philippine Overseas Employment Administration
(POEA), both of which are attached to his department for policy coordination and guidance.
Neither can his Undersecretaries and Assistant Secretaries chair these agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary Board. 24 Neither can their
respective undersecretaries and assistant secretaries. The Central Bank Governor would then
be assisted by lower ranking employees in providing policy direction in the areas of money,
banking and credit.25
Indeed, the framers of our Constitution could not have intended such absurd consequences. A
Constitution, viewed as a continuously operative charter of government, is not to be interpreted
as demanding the impossible or the impracticable; and unreasonable or absurd consequences,
if possible, should be avoided.26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering
positions held without additional compensation in ex-officio capacities as provided by law and as
required by the primary functions of the concerned official's office. The term ex-officio means
"from office; by virtue of office." It refers to an "authority derived from official character merely,
not expressly conferred upon the individual character, but rather annexed to the official
position." Ex-officio likewise denotes an "act done in an official character, or as a consequence
of office, and without any other appointment or authority than that conferred by the
office."27 An ex-officio member of a board is one who is a member by virtue of his title to a
certain office, and without further warrant or appointment. 28 To illustrate, by express provision of
law, the Secretary of Transportation and Communications is the ex-officioChairman of the Board
of the Philippine Ports Authority,29 and the Light Rail Transit Authority.30
The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery
and Apparel Control and Inspection Board,31 thus: "An examination of section 2 of the
questioned statute (R.A. 3137) reveals that for the chairman and members of the Board to
qualify they need only be designated by the respective department heads. With the exception of
the representative from the private sector, they sit ex-officio. In order to be designated they must
already be holding positions in the offices mentioned in the law. Thus, for instance, one who
does not hold a previous appointment in the Bureau of Customs, cannot, under the act, be
designated a representative from that office. The same is true with respect to the representatives
from the other offices. No new appointments are necessary. This is as it should be, because the
representatives so designated merely perform duties in the Board in addition to those already
performed under their original appointments."32
The term "primary" used to describe "functions" refers to the order of importance and thus
means chief or principal function. The term is not restricted to the singular but may refer to the
plural.33 The additional duties must not only be closely related to, but must be required by the
official's primary functions. Examples of designations to positions by virtue of one's primary
functions are the Secretaries of Finance and Budget sitting as members of the Monetary Board,
and the Secretary of Transportation and Communications acting as Chairman of the Maritime
Industry Authority34 and the Civil Aeronautics Board.
If the functions required to be performed are merely incidental, remotely related, inconsistent,
incompatible, or otherwise alien to the primary function of a cabinet official, such additional
functions would fall under the purview of "any other office" prohibited by the Constitution. An
example would be the Press Undersecretary sitting as a member of the Board of the Philippine
Amusement and Gaming Corporation. The same rule applies to such positions which confer on
the cabinet official management functions and/or monetary compensation, such as but not
limited to chairmanships or directorships in government-owned or controlled corporations and
their subsidiaries.
Mandating additional duties and functions to the President, Vice-President, Cabinet Members,
their deputies or assistants which are not inconsistent with those already prescribed by their
offices or appointments by virtue of their special knowledge, expertise and skill in their
respective executive offices is a practice long-recognized in many jurisdictions. It is a practice
justified by the demands of efficiency, policy direction, continuity and coordination among the
different offices in the Executive Branch in the discharge of its multifarious tasks of executing
and implementing laws affecting national interest and general welfare and delivering basic
services to the people. It is consistent with the power vested on the President and his alter egos,
the Cabinet members, to have control of all the executive departments, bureaus and offices and
to ensure that the laws are faithfully executed.35 Without these additional duties and functions
being assigned to the President and his official family to sit in the governing bodies or boards of
governmental agencies or instrumentalities in an ex-officio capacity as provided by law and as
required by their primary functions, they would be supervision, thereby deprived of the means for
control and resulting in an unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties or functions may not
transgress the prohibition embodied in Section 13, Article VII of the 1987 Constitution, such
additional duties or functions must be required by the primary functions of the official concerned,
who is to perform the same in an ex-officio capacity as provided by law, without receiving any
additional compensation therefor.
The ex-officio position being actually and in legal contemplation part of the principal office, it
follows that the official concerned has no right to receive additional compensation for his
services in the said position. The reason is that these services are already paid for and covered
by the compensation attached to his principal office. It should be obvious that if, say, the
Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof,
he is actually and in legal contemplation performing the primary function of his principal office in
defining policy in monetary and banking matters, which come under the jurisdiction of his
department. For such attendance, therefore, he is not entitled to collect any extra compensation,
whether it be in the form of a per them or an honorarium or an allowance, or some other such
euphemism. By whatever name it is designated, such additional compensation is prohibited by
the Constitution.
It is interesting to note that during the floor deliberations on the proposal of Commissioner
Christian Monsod to add to Section 7, par. (2), Article IX-B, originally found as Section 3 of the
General Provisions, the exception "unless required by the functions of his position," 36 express
reference to certain high-ranking appointive public officials like members of the Cabinet were
made.37 Responding to a query of Commissioner Blas Ople, Commissioner Monsod pointed out
that there are instances when although not required by current law, membership of certain high-
ranking executive officials in other offices and corporations is necessary by reason of said
officials' primary functions. The example given by Commissioner Monsod was the Minister of
Trade and Industry.38
While this exchange between Commissioners Monsod and Ople may be used as authority for
saying that additional functions and duties flowing from the primary functions of the official may
be imposed upon him without offending the constitutional prohibition under consideration, it
cannot, however, be taken as authority for saying that this exception is by virtue of Section 7,
par. (2) of Article I-XB. This colloquy between the two Commissioners took place in the plenary
session of September 27, 1986. Under consideration then was Section 3 of Committee
Resolution No. 531 which was the proposed article on General Provisions. 39 At that time, the
article on the Civil Service Commission had been approved on third reading on July 22,
1986,40 while the article on the Executive Department, containing the more specific prohibition in
Section 13, had also been earlier approved on third reading on August 26, 1986. 41 It was only
after the draft Constitution had undergone reformatting and "styling" by the Committee on Style
that said Section 3 of the General Provisions became Section 7, par. (2) of Article IX-B and
reworded "Unless otherwise allowed by law or by the primary functions of his position. . . ."
What was clearly being discussed then were general principles which would serve as
constitutional guidelines in the absence of specific constitutional provisions on the matter. What
was primarily at issue and approved on that occasion was the adoption of the qualified and
delimited phrase "primary functions" as the basis of an exception to the general rule covering all
appointive public officials. Had the Constitutional Commission intended to dilute the specific
prohibition in said Section 13 of Article VII, it could have re-worded said Section 13 to conform to
the wider exceptions provided in then Section 3 of the proposed general Provisions, later placed
as Section 7, par. (2) of Article IX-B on the Civil Service Commission.
That this exception would in the final analysis apply also to the President and his official family is
by reason of the legal principles governing additional functions and duties of public officials
rather than by virtue of Section 7, par. 2, Article IX-B At any rate, we have made it clear that only
the additional functions and duties "required," as opposed to "allowed," by the primary functions
may be considered as not constituting "any other office."
While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail 42 as said proceedings are
powerless to vary the terms of the Constitution when the meaning is clear.1wphi1Debates in
the constitutional convention "are of value as showing the views of the individual members, and
as indicating the reasons for their votes, but they give us no light as to the views of the large
majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls
gave that instrument the force of fundamental law. We think it safer to construe the constitution
from what appears upon its face."43 The proper interpretation therefore depends more on how it
was understood by the people adopting it than in the framers's understanding thereof. 44
It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to
prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants from
holding during their tenure multiple offices or employment in the government, except in those
cases specified in the Constitution itself and as above clarified with respect to posts held without
additional compensation in an ex-officio capacity as provided by law and as required by the
primary functions of their office, the citation of Cabinet members (then called Ministers) as
examples during the debate and deliberation on the general rule laid down for all appointive
officials should be considered as mere personal opinions which cannot override the
constitution's manifest intent and the people' understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2),
Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is
unconstitutional. Ostensibly restricting the number of positions that Cabinet members,
undersecretaries or assistant secretaries may hold in addition to their primary position to not
more than two (2) positions in the government and government corporations, Executive Order
No. 284 actually allows them to hold multiple offices or employment in direct contravention of the
express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing
so, unless otherwise provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that will result from a strict
application of the prohibition mandated under Section 13, Article VII on the operations of the
Government, considering that Cabinet members would be stripped of their offices held in an ex-
officio capacity, by reason of their primary positions or by virtue of legislation. As earlier clarified
in this decision, ex-officio posts held by the executive official concerned without additional
compensation as provided by law and as required by the primary functions of his office do not
fall under the definition of "any other office" within the contemplation of the constitutional
prohibition. With respect to other offices or employment held by virtue of legislation, including
chairmanships or directorships in government-owned or controlled corporations and their
subsidiaries, suffice it to say that the feared impractical consequences are more apparent than
real. Being head of an executive department is no mean job. It is more than a full-time job,
requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to
be derived from a department head's ability and expertise, he should be allowed to attend to his
duties and responsibilities without the distraction of other governmental offices or employment.
He should be precluded from dissipating his efforts, attention and energy among too many
positions of responsibility, which may result in haphazardness and inefficiency. Surely the
advantages to be derived from this concentration of attention, knowledge and expertise,
particularly at this stage of our national and economic development, far outweigh the benefits, if
any, that may be gained from a department head spreading himself too thin and taking in more
than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders
respondents Secretary of Environment and Natural Resources Fulgencio Factoran, Jr.,
Secretary of Local Government45 Luis Santos, Secretary of National Defense Fidel V. Ramos,
Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to
immediately relinquish their other offices or employment, as herein defined, in the government,
including government-owned or controlled corporations and their subsidiaries. With respect to
the other named respondents, the petitions have become moot and academic as they are no
longer occupying the positions complained of.
During their tenure in the questioned positions, respondents may be considered de facto officers
and as such entitled to emoluments for actual services rendered.46 It has been held that "in
cases where there is no de jure,officer, a de facto officer, who, in good faith has had possession
of the office and has discharged the duties pertaining thereto, is legally entitled to the
emoluments of the office, and may in an appropriate action recover the salary, fees and other
compensations attached to the office. This doctrine is, undoubtedly, supported on equitable
grounds since it seems unjust that the public should benefit by the services of an officer de
facto and then be freed from all liability to pay any one for such services. 47 Any per diem,
allowances or other emoluments received by the respondents by virtue of actual services
rendered in the questioned positions may therefore be retained by them.
WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive
Order No. 284 is hereby declared null and void and is accordingly set aside.
SO ORDERED.
 EN BANC
G.R. No. 184740
February 11, 2010
DENNIS A. B. FUNA,
Petitioner,
- versus -
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Office of the President, SEC. LEANDRO
R. MENDOZA, in his official capacity as Secretary of the Department of Transportation
and Communications, USEC. MARIA ELENA H. BAUTISTA, in her official capacities as
Undersecretary of the Department of Transportation and Communications and as Officer-
in-Charge of the Maritime Industry Authority (MARINA),
Respondents.
x-----------------------------------------------------------------------------------------x
DECISION
VILLARAMA, JR., J.:
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
Officer-in-Charge (OIC) of the Maritime Industry Authority (MARINA).
The Antecedents
On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent Maria Elena
H. Bautista (Bautista) as Undersecretary of the Department of Transportation and
Communications (DOTC), vice Agustin R. Bengzon. Bautista was designated as
Undersecretary for Maritime Transport of the department under Special Order No. 2006-171
dated October 23, 2006. [1]
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. [2]
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 vice Vicente T. Suazo, Jr.[3] and she assumed her duties and responsibilities as
such on February 2, 2009.[4]
The Case
Petitioner argues that Bautistas concurrent positions as DOTC Undersecretary and MARINA OIC is in
violation of Section 13, Article VII of the 1987 Constitution, as interpreted and explained by this Court
in Civil Liberties
Union v. Executive Secretary,[5] and reiterated in Public Interest Center, Inc. v. Elma.[6] He points
out that while it was clarified in Civil Liberties Union that the prohibition does not apply to those
positions held in ex-officio capacities, the position of MARINA Administrator is not ex-officio to the
post of DOTC Undersecretary, as can be gleaned from the provisions of its charter, Presidential
Decree (P.D.) No. 474,[7] as amended by Executive Order (EO) No. 125-A.[8] Moreover, the
provisions on the DOTC in the Administrative Code of 1987, specifically Sections 23 and 24,
Chapter 6, Title XV, Book IV do not provide any ex-officio role for the undersecretaries in any of the
departments attached agencies. The fact that Bautista was extended an appointment naming her
as OIC of MARINA shows that she does not occupy it in an ex-officio capacity since an ex-
officio position does not require any further warrant or appoint.[9]
Petitioner further contends that even if Bautistas appointment or designation as OIC of MARINA
was intended to be merely temporary, still, such designation must not violate a standing
constitutional prohibition, citing the rationale in Achacoso v. Macaraig.[10] Section 13, Article VII
of the 1987 Constitution does not enumerate temporariness as one (1) of the exceptions
thereto. And since a temporary designation does not have a maximum duration, it can go on for
months or years. In effect, the temporary appointment/designation can effectively circumvent the
prohibition. Allowing undersecretaries or assistant secretaries to occupy other government posts
would open a Pandoras Box as to let them feast on choice government positions. Thus, in case
of vacancy where no permanent appointment could as yet be made, the remedy would be to
designate one (1) of the two (2) Deputy Administrators as the Acting Administrator. Such would
be the logical course, the said officers being in a better position in terms of knowledge and
experience to run the agency in a temporary capacity. Should none of them merit the Presidents
confidence, then the practical remedy would be for Undersecretary Bautista to first resign as
Undersecretary in order to qualify her as Administrator of MARINA. As to whether she in fact
does not receive or has waived any remuneration, the same does not matter because
remuneration is not an element in determining whether there has been a violation of Section 13,
Article VII of the 1987 Constitution.[11]
Petitioner likewise asserts the incompatibility between the posts of DOTC Undersecretary and
MARINA Administrator. The reason is that with respect to the affairs in the maritime industry, the
recommendations of the MARINA may be the subject of counter or opposing recommendations
from the Undersecretary for Maritime Transport. In this case, the DOTC Undersecretary for
Maritime Transport and the OIC of MARINA have become one (1) and the same person. There
is no more checking and counter-checking of powers and functions, and therein lies the danger
to the maritime industry. There is no longer a person above the Administrator of MARINA who
will be reviewing the acts of said agency because the person who should be overseeing
MARINA, the Undersecretary for Maritime Transport, has effectively been compromised. [12]
Finally, petitioner contends that there is a strong possibility in this case that the challenge herein
can be rendered moot through the expediency of simply revoking the temporary
appointment/designation. But since a similar violation can be committed in the future, there
exists a possibility of evading review, and hence supervening events should not prevent the
Court from deciding cases involving grave violation of the 1987 Constitution, as this Court ruled
in Public Interest Center. Notwithstanding its mootness therefore, should it occur, there is a
compelling reason for this case to be decided: the issue raised being capable of repetition, yet
evading review.[13]
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.[14]
Respondents also raise the lack of legal standing of petitioner to bring this suit. Clear from the
standard set in Public Interest Center is the requirement that the party suing as a taxpayer must
prove that he has sufficient interest in preventing illegal expenditure of public funds, and more
particularly, his personal and substantial interest in the case. Petitioner, however, has not
alleged any personal or substantial interest in this case. Neither has he claimed that public funds
were actually disbursed in connection with respondent Bautistas designation as MARINA OIC. It
is to be noted that respondent Bautista did not receive any salary while she was MARINA
OIC. As to the alleged transcendental importance of an issue, this should not automatically
confer legal standing on a party.[15]
Assuming for the sake of argument that the legal question raised herein needs to be resolved,
respondents submit that the petition should still be dismissed for being unmeritorious
considering that Bautistas concurrent designation as MARINA OIC and DOTC Undersecretary
was constitutional. There was no violation of Section 13, Article VII of the 1987
Constitution because respondent Bautista was merely designated acting head
of MARINA on September 1, 2008. She was designated MARINA OIC, not appointed MARINA
Administrator. With the resignation of Vicente T. Suazo, Jr., the position of MARINA
Administrator was left vacant, and pending the appointment of permanent Administrator,
respondent Bautista was designated OIC in a temporary capacity for the purpose of preventing a
hiatus in the discharge of official functions. Her case thus falls under the recognized exceptions
to the rule against multiple offices, i.e., without additional compensation (she did not receive any
emolument as MARINA OIC) and as required by the primary functions of the office. Besides,
Bautista held the position for four (4) months only, as in fact when she was appointed MARINA
Administrator on February 2, 2009, she relinquished her post as DOTC Undersecretary for
Maritime Transport, in acknowledgment of the proscription on the holding of multiple offices. [16]
As to petitioners argument that the DOTC Undersecretary for Maritime Transport and MARINA
Administrator are incompatible offices, respondents cite the test laid down in People v.
Green,[17] which held that [T]he offices must subordinate, one [over] the other, and they
must, per se, have the right to interfere, one with the other, before they are compatible at
common law. Thus, respondents point out that any recommendation by the MARINA
Administrator concerning issues of policy and administration go to the MARINA Board and not
the Undersecretary for Maritime Transport. The Undersecretary for Maritime Transport is, in turn,
under the direct supervision of the DOTC Secretary. Petitioners fear that there is no longer a
person above the Administrator of MARINA who will be reviewing the acts of said agency (the
Undersecretary for Maritime Transport) is, therefore, clearly unfounded. [18]
In his Reply, petitioner contends that respondents argument on the incompatibility of positions
was made on the mere assumption that the positions of DOTC Undersecretary for Maritime
Transport and the administratorship of MARINA are closely related and is governed by Section
7, paragraph 2, Article IX-B of the 1987 Constitution rather than by Section 13, Article VII. In
other words, it was a mere secondary argument. The fact remains that, incompatible or not,
Section 13, Article VII still does not allow the herein challenged designation. [19]
The sole issue to be resolved is 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.
Our Ruling
The petition is meritorious.
Requisites for Judicial Review
The courts power of judicial review, like almost all other powers conferred by the Constitution, is
subject to several limitations, namely: (1) there must be an actual case or controversy calling for
the exercise of judicial power; (2) the person challenging the act must have standing to
challenge; he must have a personal and substantial interest in the case, such that he has
sustained or will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest possible opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.[20] Respondents assert that the second
requisite is absent in this case.
Generally, a party will be allowed to litigate only when (1) he can show that he has personally
suffered some actual or threatened injury because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to
be redressed by a favorable action.[21] The question on standing is whether such parties have
alleged such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely depends
for illumination of difficult constitutional questions.[22]
In David v. Macapagal-Arroyo,[23] summarizing the rules culled from jurisprudence, we held that
taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue,
provided that the following requirements are met:
(1) cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public
funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of
the election law in question;
(4) for concerned citizens, there must be a showing that the issues raised
are of transcendental importance which must be settled
early; and
(5) for legislators, there must be a claim that the official action complained of
infringes upon their prerogatives as legislators. [EMPHASIS
SUPPLIED.]
Petitioner having alleged a grave violation of the constitutional prohibition against Members of
the Cabinet, their deputies and assistants holding two (2) or more positions in government, the
fact that he filed this suit as a concerned citizen sufficiently confers him with standing to sue for
redress of such illegal act by public officials.
The other objection raised by the respondent is that the resolution of this case had been
overtaken by events considering the effectivity of respondent Bautistas appointment as MARINA
Administrator effective February 2, 2009 and her relinquishment of her former position as DOTC
Undersecretary for Maritime Transport.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value.
Generally, courts decline jurisdiction over such case or dismiss it on ground of
mootness.[24] However, as we held in Public Interest Center, Inc. v. Elma,[25] supervening events,
whether intended or accidental, cannot prevent the Court from rendering a decision if there is a
grave violation of the Constitution. Even in cases where supervening events had made the
cases moot, this Court did not hesitate to resolve the legal or constitutional issues raised to
formulate controlling principles to guide the bench, bar, and public. [26]
As a rule, the writ of prohibition will not lie to enjoin acts already done. However, as an
exception to the rule on mootness, courts will decide a question otherwise moot if it is capable of
repetition yet evading review.[27] In the present case, the mootness of the petition does not bar
its resolution. The question of the constitutionality of the Presidents appointment or designation
of a Department Undersecretary as officer-in-charge of an attached agency will arise in every
such appointment.[28]
Undersecretar
Bautistas
designation as
MARINA OIC
falls
under the stricte
r prohibition
under Section
13, Article VII of
the 1987
Constitution.
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 government-owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office.
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.
In Civil Liberties Union, a constitutional challenge was brought before this Court to nullify EO No.
284 issued by then President Corazon C. Aquino on July 25, 1987, which included Members of
the Cabinet, undersecretaries and assistant secretaries in its provisions limiting to two (2) the
positions that appointive officials of the Executive Department may hold in government and
government corporations. Interpreting the above provisions in the light of the history and times
and the conditions and circumstances under which the Constitution was framed, this Court
struck down as unconstitutional said executive issuance, saying that it actually allows them to
hold multiple offices or employment in direct contravention of the express mandate of Section
13, Article VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided
in the 1987 Constitution itself.
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.
Such intent of the 1986 Constitutional Commission to be stricter
with the President and his official family was also succinctly articulated by
Commissioner Vicente Foz after Commissioner Regalado Maambong noted
during the floor deliberations and debate that there was no symmetry
between the Civil Service prohibitions, originally found in the General
Provisions and the anticipated report on the Executive Department.
Commissioner Foz Commented, We actually have to be stricter with the
President and the members of the Cabinet because they exercise more
powers and, therefore, more checks and restraints on them are called for
because there is more possibility of abuse in their case.
Thus, while all other appointive officials in the civil service
are allowed to hold other office or employment in the government
during their tenure when such is allowed by law or by the primary
functions of their positions, members of the Cabinet, their deputies
and assistants may do so only when expressly authorized by the
Constitution itself. In other words, Section 7, Article IX-B is meant to lay
down the general rule applicable to all elective and appointive public officials
and employees, while Section 13, Article VII is meant to be the
exception applicable only to the President, the Vice-President,
Members of the Cabinet, their deputies and assistants.
xxxx
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.[29] [EMPHASIS SUPPLIED.]
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.
The prohibition against holding dual or multiple offices or employment under Section 13, Article
VII of the 1987 Constitution was held inapplicable to posts occupied by the Executive officials
specified therein, without additional compensation in an ex-officio capacity as provided by law
and as required by the primary functions of said office. The reason is that these posts do not
comprise any other office within the contemplation of the constitutional prohibition but are
properly an imposition of additional duties and functions on said officials.[30] Apart from their bare
assertion that respondent Bautista did not receive any compensation when she was OIC of
MARINA, respondents failed to demonstrate clearly that her designation as such OIC was in
an ex-officio capacity as required by the primary functions of her office as DOTC Undersecretary
for Maritime Transport.
MARINA was created by virtue of P.D. No. 474 issued by President Ferdinand E. Marcos
on June 1, 1974. It is mandated to undertake the following:
(a) Adopt and implement a practicable and coordinated Maritime Industry
Development Program which shall include, among others, the early
replacement of obsolescent and uneconomic vessels; modernization
and expansion of the Philippine merchant fleet, enhancement of
domestic capability for shipbuilding, repair and maintenance; and the
development of reservoir of trained manpower;
 (b) Provide and help provide the necessary; (i) financial assistance to the
industry through public and private financing institutions and
instrumentalities; (ii) technological assistance; and (iii) in general, a
favorable climate for expansion of domestic and foreign investments
in shipping enterprises; and
(c) Provide for the effective supervision, regulation and rationalization of the
organizational management, ownership and operations of all water
transport utilities, and other maritime enterprises.[31]
The management of MARINA is vested in the Maritime Administrator, who shall be directly assisted
by the Deputy Administrator for Planning and a Deputy Administrator for Operations, who shall be
appointed by the President for a term of six (6) years. The law likewise prescribes the qualifications
for the office, including such adequate training and experience in economics, technology, finance,
law, management, public utility, or in other phases or aspects of the maritime industry, and he or
she is entitled to receive a fixed annual salary.[32] The Administrator shall be directly responsible to
the Maritime Industry Board, MARINAs governing body, and shall have powers, functions and
duties as provided in P.D. No. 474, which provides, under Sections 11 and 12, for his or her
general and specific functions, respectively, as follows:
SEC. 11. General Powers and Functions of the Administrator.
Subject to the general supervision and control of the Board, the
Administrators shall have the following general powers, functions and
duties;
a. To implement, enforce and apply the policies, programs, standards,
guidelines, procedures, decisions and rules and regulations
issued, prescribed or adopted by the Board pursuant to this
Decree;
b. To undertake researches, studies, investigations and other activities and
projects, on his own initiative or upon instructions of the Board,
and to submit comprehensive reports and appropriate
recommendations to the Board for its information and action;
c. To undertake studies to determine present and future requirements for
port development including navigational aids, and improvement of
waterways and navigable waters in consultation with appropriate
agencies;
d. To pursue continuing research and developmental programs on
expansion and modernization of the merchant fleet and
supporting facilities taking into consideration the needs of the
domestic trade and the need of regional economic cooperation
schemes; and
e. To manage the affairs of the Authority subject to the provisions of this
Decree and applicable laws, orders, rules and regulations of other
appropriate government entities.
SEC. 12. Specific Powers and Functions of the Administrator. In
addition to his general powers and functions, the Administrator shall;
a. Issue Certificate of Philippine Registry for all vessels being used in Philippine
waters, including fishing vessels covered by Presidential Decree No.
43 except transient civilian vessels of foreign registry, vessels owned
and/or operated by the Armed Forces of the Philippines or by foreign
governments for military purposes, and bancas, sailboats and other
watercraft which are not motorized, of less than three gross tons;
b. Provide a system of assisting various officers, professionals, technicians,
skilled workers and seamen to be gainfully employed in shipping
enterprises, priority being given to domestic needs;
c. In collaboration and coordination with the Department of Labor, to look
into, and promote improvements in the working conditions and
terms of employment of the officers and crew of vessels of
Philippine registry, and of such officers and crew members who
are Philippine citizens and employed by foreign flag vessels, as
well as of personnel of other shipping enterprises, and to assist in
the settlement of disputes between the shipowners and ship
operators and such officers and crew members and between the
owner or manager of other shipping enterprises and their
personnel;
d. To require any public water transport utility or Philippine flag vessels to
provide shipping services to any coastal areas in the country
where such services are necessary for the development of the
area, to meet emergency sealift requirements, or when public
interest so requires;
e. Investigate by itself or with the assistance of other appropriate
government agencies or officials, or experts from the private
sector, any matter within its jurisdiction, except marine casualties
or accidents which shall be undertaken by the Philippine Coast
Guard;
f. Impose, fix, collect and receive in accordance with the schedules
approved by the Board, from any shipping enterprise or other
persons concerned, such fees and other charges for the payment
of its services;
g. Inspect, at least annually, the facilities of port and cargo operators and
recommend measures for adherence to prescribed standards of
safety, quality and operations;
h. Approve the sale, lease or transfer of management of vessels owned by
Philippine Nationals to foreign owned or controlled enterprises;
i. Prescribe and enforce rules and regulations for the prevention of marine
pollution in bays, harbors and other navigable waters of
the Philippines, in coordination with the government authorities
concerned;
j. Establish and maintain, in coordination with the appropriate government
offices and agencies, a system of regularly and promptly
producing, collating, analyzing and disseminating traffic flows,
port operations, marine insurance services and other information
on maritime matters;
k. Recommend such measures as may be necessary for the regulation of
the importation into and exportation from the Philippines of
vessels, their equipment and spare parts;
l. Implement the rules and regulations issued by the Board of
Transportation;
m. Compile and codify all maritime laws, orders, rules and regulations,
decisions in leasing cases of courts and the Authoritys
procedures and other requirements relative to shipping and other
shipping enterprises, make them available to the public, and,
whenever practicable to publish such materials;
n. Delegate his powers in writing to either of the Deputy Administrators or
any other ranking officials of the Authority; Provided, That he
informs the Board of such delegation promptly; and
o. Perform such other duties as the Board may assign, and such acts as
may be necessary and proper to implement this Decree.
With the creation of the Ministry (now Department) of Transportation and Communications by
virtue of EO No. 546, MARINA was attached to the DOTC for policy and program coordination
on July 23, 1979. Its regulatory function was likewise increased with the issuance of EO No.
1011 which abolished the Board of Transportation and transferred the quasi-judicial functions
pertaining to water transportation to MARINA. On January 30, 1987, EO No. 125 (amended by
EO No. 125-A) was issued reorganizing the DOTC. The powers and functions of the department
and the agencies under its umbrella were defined, further increasing the responsibility
of MARINA to the industry. Republic Act No. 9295, otherwise known as the The Domestic
Shipping Development Act of 2004,[33] further strengthened MARINAs regulatory powers and
functions in the shipping sector.
Given the vast responsibilities and scope of administration of the Authority, we are hardly
persuaded by respondents submission that respondent Bautistas designation as OIC of MARINA
was merely an imposition of additional duties related to her primary position as DOTC
Undersecretary for Maritime Transport. It appears that the DOTC Undersecretary for Maritime
Transport is not even a member of the Maritime Industry Board, which includes the DOTC
Secretary as Chairman, the MARINA Administrator as Vice-Chairman, and the following as
members: Executive Secretary (Office of the President), Philippine Ports Authority General
Manager, Department of National Defense Secretary, Development Bank of the Philippines
General Manager, and the Department of Trade and Industry Secretary.[34]
Finally, the Court similarly finds respondents theory that being just a designation, and temporary
at that, respondent Bautista was never really appointed as OIC Administrator of MARINA,
untenable. In Binamira v. Garrucho, Jr.,[35] we distinguished between the
terms appointment and designation, as follows:
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.[36] [EMPHASIS
SUPPLIED.]
Clearly, respondents reliance on the foregoing definitions is misplaced considering that the above-
cited case addressed the issue of whether petitioner therein acquired valid title to the disputed position
and so had the right to security of tenure. It must be stressed though that while the designation was in
the nature of an acting and temporary capacity, the words hold the office were employed. Such
holding of office pertains to both appointment and designation because the appointee or
designate performs the duties and functions of the office. The 1987 Constitution in prohibiting dual or
multiple offices, as well as incompatible offices, refers to the holding of the office, and not to the nature
of the appointment or designation, words which were not even found in Section 13, Article VII nor in
Section 7, paragraph 2, Article IX-B. To hold an office means to possess or occupy the same, or to be
in possession and administration,[37] which implies nothing less than the actual discharge of the
functions and duties of the office.
The disqualification laid down in Section 13, Article VII is aimed at preventing the concentration
of powers in the Executive Department officials, specifically the President, Vice-President,
Members of the Cabinet and their deputies and assistants. Civil Liberties Union traced the
history of the times and the conditions under which the Constitution was framed, and construed
the Constitution consistent with the object sought to be accomplished by adoption of such
provision, and the evils sought to be avoided or remedied. We recalled the practice, during the
Marcos regime, of designating members of the Cabinet, their deputies and assistants as
members of the governing bodies or boards of various government agencies and
instrumentalities, including government-owned or controlled corporations. This practice of
holding multiple offices or positions in the government led to abuses by unscrupulous public
officials, who took advantage of this scheme for purposes of self-enrichment. The blatant
betrayal of public trust evolved into one of the serious causes of discontent with the Marcos
regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of
the people that the 1986 Constitutional Commission would draft into the proposed Constitution
the provisions under consideration, which were envisioned to remedy, if not correct, the evils
that flow from the holding of multiple governmental offices and employment.[38] Our declaration in
that case cannot be more explicit:
But what is indeed significant is the fact that although Section 7,
Article IX-B already contains a blanket prohibition against the holding of
multiple offices or employment in the government subsuming both elective
and appointive public officials, the Constitutional Commission should see it
fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting
the President, Vice-President, members of the Cabinet, their deputies and
assistants from holding any other office or employment during their tenure,
unless otherwise provided in the Constitution itself.
Evidently, from this move as well as in the different phraseologies
of the constitutional provisions in question, the intent of the framers of the
Constitution was to impose a stricter prohibition on the President and
his official family in so far as holding other offices or employment in
the government or elsewhere is concerned.[39] [EMPHASIS SUPPLIED.]
Such laudable intent of the law will be defeated and rendered sterile if we are to adopt the
semantics of respondents. It would open the veritable floodgates of circumvention of an important
constitutional disqualification of officials in the Executive Department and of limitations on the
Presidents power of appointment in the guise of temporary designations of Cabinet Members,
undersecretaries and assistant secretaries as officers-in-charge of government agencies,
instrumentalities, or government-owned or controlled corporations.
As to respondents contention that the concurrent positions of DOTC Undersecretary
for Maritime Transport and MARINA OIC Administrator are not incompatible offices, we find no
necessity for delving into this matter. Incompatibility of offices is irrelevant in this case, unlike in
the case of PCGG Chairman Magdangal Elma in Public Interest Center, Inc. v. Elma.[40] Therein
we held that Section 13, Article VII is not applicable to the PCGG Chairman or to the Chief
Presidential Legal Counsel, as he is not a cabinet member, undersecretary or assistant
secretary.[41]
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.
No costs.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 191644 February 19, 2013
DENNIS A.B. FUNA, Petitioner,
vs.
CTING SECRETARY OF JUSTICE ALBERTO C. AGRA, IN HIS OFFICIAL CONCURRENT
CAPACITIES AS ACTING SECRETARY OF THE DEPARTMENT OF JUSTICE AND AS
ACTING SOLICITOR GENERAL, EXECUTIVE SECRETARY LEANDRO R. MENDOZA,
OFFICE OF THE PRESIDENT, Respondents.
DECISION
BERSAMIN, J.:
Section 13, Article VII of the 1987 Constitution expressly prohibits the President, Vice-President,
the Members of the Cabinet, and their deputies or assistants from holding any other office or
employment during their tenure unless otherwise provided in the Constitution. Complementing
the prohibition is Section 7, paragraph (2), Article IX-B of the 1987 Constitution, which bans any
appointive official from holding any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries, unless otherwise allowed by law or the primary functions of his
position.
These prohibitions under the Constitution are at the core of this special civil action
for certiorari and prohibition commenced on April 7, 2010 to assail the designation of respondent
Hon. Alberto C. Agra, then the Acting Secretary of Justice, as concurrently the Acting Solicitor
General.
Antecedents
The petitioner alleges that on March 1, 2010, President Gloria M. Macapagal-Arroyo appointed
Agra as the Acting Secretary of Justice following the resignation of Secretary Agnes VST
Devanadera in order to vie for a congressional seat in Quezon Province; that on March 5, 2010,
President Arroyo designated Agra as the Acting Solicitor General in a concurrent capacity; 1 that
on April 7, 2010, the petitioner, in his capacity as a taxpayer, a concerned citizen and a lawyer,
commenced this suit to challenge the constitutionality of Agras concurrent appointments or
designations, claiming it to be prohibited under Section 13, Article VII of the 1987 Constitution;
that during the pendency of the suit, President Benigno S. Aquino III appointed Atty. Jose
Anselmo I. Cadiz as the Solicitor General; and that Cadiz assumed as the Solicitor General and
commenced his duties as such on August 5, 2010.2
Agra renders a different version of the antecedents. He represents that on January 12, 2010, he
was then the Government Corporate Counsel when President Arroyo designated him as the
Acting Solicitor General in place of Solicitor General Devanadera who had been appointed as
the Secretary of Justice;3 that on March 5, 2010, President Arroyo designated him also as the
Acting Secretary of Justice vice Secretary Devanadera who had meanwhile tendered her
resignation in order to run for Congress representing a district in Quezon Province in the May
2010 elections; that he then relinquished his position as the Government Corporate Counsel;
and that pending the appointment of his successor, Agra continued to perform his duties as the
Acting Solicitor General.4
Notwithstanding the conflict in the versions of the parties, the fact that Agra has admitted to
holding the two offices concurrently in acting capacities is settled, which is sufficient for purposes
of resolving the constitutional question that petitioner raises herein.
The Case
In Funa v. Ermita,5 the Court resolved a petition for certiorari, prohibition and mandamus brought
by herein petitioner assailing the constitutionality of the designation of then Undersecretary of
the Department of Transportation and Communications (DOTC) Maria Elena H. Bautista as
concurrently the Officer-in-Charge of the Maritime Industry Authority. The petitioner has adopted
here the arguments he advanced in Funa v. Ermita, and he has rested his grounds of challenge
mainly on the pronouncements in Civil Liberties Union v. Executive Secretary6and Public Interest
Center, Inc. v. Elma.7
What may differentiate this challenge from those in the others is that the appointments being
hereby challenged were in acting or temporary capacities. Still, the petitioner submits that the
prohibition under Section 13, Article VII of the 1987 Constitution does not distinguish between an
appointment or designation of a Member of the Cabinet in an acting or temporary capacity, on
the one hand, and one in a permanent capacity, on the other hand; and that Acting Secretaries,
being nonetheless Members of the Cabinet, are not exempt from the constitutional ban. He
emphasizes that the position of the Solicitor General is not an ex officio position in relation to the
position of the Secretary of Justice, considering that the Office of the Solicitor General (OSG) is
an independent and autonomous office attached to the Department of Justice (DOJ). 8 He insists
that the fact that Agra was extended an appointment as the Acting Solicitor General shows that
he did not occupy that office in an ex officio capacity because an ex officio position does not
require any further warrant or appointment.
Respondents contend, in contrast, that Agras concurrent designations as the Acting Secretary
of Justice and Acting Solicitor General were only in a temporary capacity, the only effect of
which was to confer additional duties to him. Thus, as the Acting Solicitor General and Acting
Secretary of Justice, Agra was not "holding" both offices in the strict constitutional sense. 9 They
argue that an appointment, to be covered by the constitutional prohibition, must be regular and
permanent, instead of a mere designation.
Respondents further contend that, even on the assumption that Agras concurrent designation
constituted "holding of multiple offices," his continued service as the Acting Solicitor General was
akin to a hold-over; that upon Agras designation as the Acting Secretary of Justice, his term as
the Acting Solicitor General expired in view of the constitutional prohibition against holding of
multiple offices by the Members of the Cabinet; that under the principle of hold-over, Agra
continued his service as the Acting Solicitor General "until his successor is elected and
qualified"10 to "prevent a hiatus in the government pending the time when a successor may be
chosen and inducted into office;"11 and that during his continued service as the Acting Solicitor
General, he did not receive any salaries and emoluments from the OSG after becoming the
Acting Secretary of Justice on March 5, 2010.12
Respondents point out that the OSGs independence and autonomy are defined by the powers
and functions conferred to that office by law, not by the person appointed to head such
office;13 and that although the OSG is attached to the DOJ, the DOJs authority, control and
supervision over the OSG are limited only to budgetary purposes.14
In his reply, petitioner counters that there was no "prevailing special circumstance" that justified
the non-application to Agra of Section 13, Article VII of the 1987 Constitution; 15 that the
temporariness of the appointment or designation is not an excuse to disregard the constitutional
ban against holding of multiple offices by the Members of the Cabinet;16 that Agras invocation of
the principle of hold-over is misplaced for being predicated upon an erroneous presentation of a
material fact as to the time of his designation as the Acting Solicitor General and Acting
Secretary of Justice; that Agras concurrent designations further violated the Administrative
Code of 1987 which mandates that the OSG shall be autonomous and independent.17
Issue
Did the designation of Agra as the Acting Secretary of Justice, concurrently with his position of
Acting Solicitor General, violate the constitutional prohibition against dual or multiple offices for
the Members of the Cabinet and their deputies and assistants?
Ruling
The petition is meritorious.
The designation of Agra as Acting Secretary of Justice concurrently with his position of Acting
Solicitor General was unconstitutional and void for being in violation of the constitutional
prohibition under Section 13, Article VII of the 1987 Constitution.
1.
Requisites of judicial review not in issue
The power of judicial review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person challenging the act must
have the standing to assail the validity of the subject act or issuance, that is, he must have a
personal and substantial interest in the case such that he has sustained, or will sustain, direct
injury as a result of its enforcement; (3) the question of constitutionality must be raised at the
earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.18
Here, the OSG does not dispute the justiciability and ripeness for consideration and resolution
by the Court of the matter raised by the petitioner. Also, the locus standi of the petitioner as a
taxpayer, a concerned citizen and a lawyer to bring a suit of this nature has already been settled
in his favor in rulings by the Court on several other public law litigations he brought. In Funa v.
Villar,19 for one, the Court has held:
To have legal standing, therefore, a suitor must show that he has sustained or will sustain a
"direct injury" as a result of a government action, or have a "material interest" in the issue
affected by the challenged official act. However, the Court has time and again acted liberally
on the locus standi requirements and has accorded certain individuals, not otherwise
directly injured, or with material interest affected, by a Government act, standing to sue
provided a constitutional issue of critical significance is at stake. The rule on locus
standi is after all a mere procedural technicality in relation to which the Court, in
a catena of cases involving a subject of transcendental import, has waived, or relaxed,
thus allowing non-traditional plaintiffs, such as concerned citizens, taxpayers, voters or
legislators, to sue in the public interest, albeit they may not have been personally injured
by the operation of a law or any other government act. In David, the Court laid out the
bare minimum norm before the so-called "non-traditional suitors" may be extended
standing to sue, thusly:
1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that
the tax measure is unconstitutional;
2.) For voters, there must be a showing of obvious interest in the validity of the
election law in question;
3.) For concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
4.) For legislators, there must be a claim that the official action complained of infringes
their prerogatives as legislators.
This case before Us is of transcendental importance, since it obviously has "far-reaching
implications," and there is a need to promulgate rules that will guide the bench, bar, and
the public in future analogous cases. We, thus, assume a liberal stance and allow
petitioner to institute the instant petition.20 (Bold emphasis supplied)
In Funa v. Ermita,21 the Court recognized the locus standi of the petitioner as a taxpayer, a
concerned citizen and a lawyer because the issue raised therein involved a subject of
transcendental importance whose resolution was necessary to promulgate rules to guide the
Bench, Bar, and the public in similar cases.
But, it is next posed, did not the intervening appointment of and assumption by Cadiz as the
Solicitor General during the pendency of this suit render this suit and the issue tendered herein
moot and academic?
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or
value.22 Although the controversy could have ceased due to the intervening appointment of and
assumption by Cadiz as the Solicitor General during the pendency of this suit, and such
cessation of the controversy seemingly rendered moot and academic the resolution of the issue
of the constitutionality of the concurrent holding of the two positions by Agra, the Court should
still go forward and resolve the issue and not abstain from exercising its power of judicial review
because this case comes under several of the well-recognized exceptions established in
jurisprudence. Verily, the Court did not desist from resolving an issue that a supervening event
meanwhile rendered moot and academic if any of the following recognized exceptions obtained,
namely: (1) there was a grave violation of the Constitution; (2) the case involved a situation of
exceptional character and was of paramount public interest; (3) the constitutional issue raised
required the formulation of controlling principles to guide the Bench, the Bar and the public; and
(4) the case was capable of repetition, yet evading review.23
It is the same here. The constitutionality of the concurrent holding by Agra of the two positions in
the Cabinet, albeit in acting capacities, was an issue that comes under all the recognized
exceptions. The issue involves a probable violation of the Constitution, and relates to a situation
of exceptional character and of paramount public interest by reason of its transcendental
importance to the people. The resolution of the issue will also be of the greatest value to the
Bench and the Bar in view of the broad powers wielded through said positions. The situation
further calls for the review because the situation is capable of repetition, yet evading review.24 In
other words, many important and practical benefits are still to be gained were the Court to
proceed to the ultimate resolution of the constitutional issue posed.
2.
Unconstitutionality of Agras concurrent designation as Acting Secretary of Justice and
Acting Solicitor General
At the center of the controversy is the correct application of Section 13, Article VII of the 1987
Constitution, viz:
Section 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 government-owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
A relevant and complementing provision is Section 7, paragraph (2), Article IX-B of the 1987
Constitution, to wit:
Section 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.
The differentiation of the two constitutional provisions was well stated in Funa v. Ermita,25 a case
in which the petitioner herein also assailed the designation of DOTC Undersecretary as
concurrent Officer-in-Charge of the Maritime Industry Authority, with the Court reiterating its
pronouncement in Civil Liberties Union v. The Executive Secretary 26 on the intent of the Framers
behind these provisions of the Constitution, viz:
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.
xxxx
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. (Bold emphasis supplied.)
Being designated as the Acting Secretary of Justice concurrently with his position of Acting
Solicitor General, therefore, Agra was undoubtedly covered by Section 13, Article VII, supra,
whose text and spirit were too clear to be differently read. Hence, Agra could not validly hold any
other office or employment during his tenure as the Acting Solicitor General, because the
Constitution has not otherwise so provided.27
It was of no moment that Agras designation was in an acting or temporary capacity. The text of
Section 13, supra, plainly indicates that the intent of the Framers of the Constitution was to
impose a stricter prohibition on the President and the Members of his Cabinet in so far as
holding other offices or employments in the Government or in government-owned or government
controlled-corporations was concerned.28 In this regard, to hold an office means to possess or to
occupy the office, or to be in possession and administration of the office, which implies nothing
less than the actual discharge of the functions and duties of the office. 29 Indeed, in the language
of Section 13 itself, supra, the Constitution makes no reference to the nature of the appointment
or designation. The prohibition against dual or multiple offices being held by one official must be
construed as to apply to all appointments or designations, whether permanent or temporary, for
it is without question that the avowed objective of Section 13, supra, is to prevent the
concentration of powers in the Executive Department officials, specifically the President, the
Vice-President, the Members of the Cabinet and their deputies and assistants.30 To construe
differently is to "open the veritable floodgates of circumvention of an important constitutional
disqualification of officials in the Executive Department and of limitations on the Presidents
power of appointment in the guise of temporary designations of Cabinet Members,
undersecretaries and assistant secretaries as officers-in-charge of government agencies,
instrumentalities, or government-owned or controlled corporations."31
According to Public Interest Center, Inc. v. Elma,32 the only two exceptions against the holding of
multiple offices are: (1) those provided for under the Constitution, such as Section 3, Article VII,
authorizing the Vice President to become a member of the Cabinet; and (2) posts occupied by
Executive officials specified in Section 13, Article VII without additional compensation in ex
officio capacities as provided by law and as required by the primary functions of the officials
offices. In this regard, the decision in Public Interest Center, Inc. v. Elma adverted to the
resolution issued on August 1, 1991 in Civil Liberties Union v. The Executive Secretary, whereby
the Court held that the phrase "the Members of the Cabinet, and their deputies or assistants"
found in Section 13, supra, referred only to the heads of the various executive departments, their
undersecretaries and assistant secretaries, and did not extend to other public officials given the
rank of Secretary, Undersecretary or Assistant Secretary. 33 Hence, in Public Interest Center, Inc.
v. Elma, the Court opined that the prohibition under Section 13 did not cover Elma, a
Presidential Assistant with the rank of Undersecretary.34
It is equally remarkable, therefore, that Agras designation as the Acting Secretary of Justice was
not in an ex officio capacity, by which he would have been validly authorized to concurrently hold
the two positions due to the holding of one office being the consequence of holding the other.
Being included in the stricter prohibition embodied in Section 13, supra, Agra cannot liberally
apply in his favor the broad exceptions provided in Section 7, paragraph 2, Article IX-B of the
Constitution ("Unless otherwise allowed by law or the primary functions of his position") to justify
his designation as Acting Secretary of Justice concurrently with his designation as Acting
Solicitor General, or vice versa. Thus, the Court has said
[T]he qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII
cannot possibly refer to the broad exceptions provided under Section 7, Article IX-B of the 1987
Constitution. To construe said qualifying phrase as respondents would have us do, would render
nugatory and meaningless the manifest intent and purpose of the framers of the Constitution to
impose a stricter prohibition on the President, Vice-President, Members of the Cabinet, their
deputies and assistants with respect to holding other offices or employment in the government
during their tenure. Respondents interpretation that Section 13 of Article VII admits of the
exceptions found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully
set by the framers of the Constitution as to when the highranking officials of the Executive
Branch from the President to Assistant Secretary, on the one hand, and the generality of civil
servants from the rank immediately below Assistant Secretary downwards, on the other, may
hold any other office or position in the government during their tenure.35
To underscore the obvious, it is not sufficient for Agra to show that his holding of the other office
was "allowed by law or the primary functions of his position." To claim the exemption of his
concurrent designations from the coverage of the stricter prohibition under Section 13, supra, he
needed to establish herein that his concurrent designation was expressly allowed by the
Constitution. But, alas, he did not do so.
To be sure, Agras concurrent designations as Acting Secretary of Justice and Acting Solicitor
General did not come within the definition of an ex officio capacity. Had either of his concurrent
designations been in an ex officio capacity in relation to the other, the Court might now be ruling
in his favor.
The import of an ex officio capacity has been fittingly explained in Civil Liberties Union v.
Executive Secretary,36 as follows:
x x x. The term ex officio means "from office; by virtue of office." It refers to an "authority derived
from official character merely, not expressly conferred upon the individual character, but rather
annexed to the official position." Ex officio likewise denotes an "act done in an official character,
or as a consequence of office, and without any other appointment or authority other than that
conferred by the office." An ex officio member of a board is one who is a member by virtue of his
title to a certain office, and without further warrant or appointment. x x x.
xxxx
The ex officio position being actually and in legal contemplation part of the principal office, it
follows that the official concerned has no right to receive additional compensation for his
services in the said position. The reason is that these services are already paid for and covered
by the compensation attached to his principal office. x x x.
Under the Administrative Code of 1987, the DOJ is mandated to "provide the government with a
principal law agency which shall be both its legal counsel and prosecution arm; administer the
criminal justice system in accordance with the accepted processes thereof consisting in the
investigation of the crimes, prosecution of offenders and administration of the correctional
system; implement the laws on the admission and stay of aliens, citizenship, land titling system,
and settlement of land problems involving small landowners and members of indigenous cultural
minorities; and provide free legal services to indigent members of the society." 37 The DOJs
specific powers and functions are as follows:
(1) Act as principal law agency of the government and as legal counsel and
representative thereof, whenever so required;
(2) Investigate the commission of crimes, prosecute offenders and administer the
probation and correction system;
(3) Extend free legal assistance/representation to indigents and poor litigants in
criminal cases and non-commercial civil disputes;
(4) Preserve the integrity of land titles through proper registration;
(5) Investigate and arbitrate untitled land disputes involving small landowners and
members of indigenous cultural communities;
(6) Provide immigration and naturalization regulatory services and implement the laws
governing citizenship and the admission and stay of aliens;
(7) Provide legal services to the national government and its functionaries, including
government-owned or controlled corporations and their subsidiaries; and
(8) Perform such other functions as may be provided by law. 38
On the other hand, the Administrative Code of 1987 confers upon the Office of the Solicitor
General the following powers and functions, to wit:
The Office of the Solicitor General shall represent the Government of the Philippines, its
agencies and instrumentalities and its officials and agents in any litigation, proceeding,
investigation or matter requiring the services of lawyers. When authorized by the President or
head of the office concerned, it shall also represent government owned or controlled
corporations. The Office of the Solicitor General shall discharge duties requiring the services of
lawyers. It shall have the following specific powers and functions:
1. Represent the Government in the Supreme Court and the Court of Appeals in all
criminal proceedings; represent the Government and its officers in the Supreme Court,
the Court of Appeals, and all other courts or tribunals in all civil actions and special
proceedings in which the Government or any officer thereof in his official capacity is a
party.
2. Investigate, initiate court action, or in any manner proceed against any person,
corporation or firm for the enforcement of any contract, bond, guarantee, mortgage,
pledge or other collateral executed in favor of the Government. Where proceedings
are to be conducted outside of the Philippines the Solicitor General may employ
counsel to assist in the discharge of the aforementioned responsibilities.
3. Appear in any court in any action involving the validity of any treaty, law, executive
order or proclamation, rule or regulation when in his judgment his intervention is
necessary or when requested by the Court.
4. Appear in all proceedings involving the acquisition or loss of Philippine citizenship.
5. Represent the Government in all land registration and related proceedings. Institute
actions for the reversion to the Government of lands of the public domain and
improvements thereon as well as lands held in violation of the Constitution.
6. Prepare, upon request of the President or other proper officer of the National
Government, rules and guidelines for government entities governing the preparation of
contracts, making investments, undertaking of transactions, and drafting of forms or
other writings needed for official use, with the end in view of facilitating their
enforcement and insuring that they are entered into or prepared conformably with law
and for the best interests of the public.
7. Deputize, whenever in the opinion of the Solicitor General the public interest
requires, any provincial or city fiscal to assist him in the performance of any function or
discharge of any duty incumbent upon him, within the jurisdiction of the aforesaid
provincial or city fiscal. When so deputized, the fiscal shall be under the control and
supervision of the Solicitor General with regard to the conduct of the proceedings
assigned to the fiscal, and he may be required to render reports or furnish information
regarding the assignment.
8. Deputize legal officers of government departments, bureaus, agencies and offices
to assist the Solicitor General and appear or represent the Government in cased
involving their respective offices, brought before the courts and exercise supervision
and control over such legal Officers with respect to such cases.
9. Call on any department, bureau, office, agency or instrumentality of the
Government for such service, assistance and cooperation as may be necessary in
fulfilling its functions and responsibilities and for this purpose enlist the services of any
government official or employee in the pursuit of his tasks.
10. Departments, bureaus, agencies, offices, instrumentalities and corporations to
whom the Office of the Solicitor General renders legal services are authorized to
disburse funds from their sundry operating and other funds for the latter Office. For
this purpose, the Solicitor General and his staff are specifically authorized to receive
allowances as may be provided by the Government offices, instrumentalities and
corporations concerned, in addition to their regular compensation.
11. Represent, upon the instructions of the President, the Republic of the Philippines
in international litigations, negotiations or conferences where the legal position of the
Republic must be defended or presented.
 12. Act and represent the Republic and/or the people before any court, tribunal, body
or commission in any matter, action or proceedings which, in his opinion affects the
welfare of the people as the ends of justice may require; and
13. Perform such other functions as may be provided by law.39
The foregoing provisions of the applicable laws show that one position was not derived from the
other. Indeed, the powers and functions of the OSG are neither required by the primary functions
nor included by the powers of the DOJ, and vice versa. The OSG, while attached to the
DOJ,40 is not a constituent unit of the latter,41 as, in fact, the Administrative Code of
1987 decrees that the OSG is independent and autonomous.42 With the enactment of Republic
Act No. 9417,43 the Solicitor General is now vested with a cabinet rank, and has the same
qualifications for appointment, rank, prerogatives, salaries, allowances, benefits and privileges
as those of the Presiding Justice of the Court of Appeals.44
Moreover, the magnitude of the scope of work of the Solicitor General, if added to the equally
demanding tasks of the Secretary of Justice, is obviously too much for any one official to bear.
Apart from the sure peril of political pressure, the concurrent holding of the two positions, even if
they are not entirely incompatible, may affect sound government operations and the proper
performance of duties. Heed should be paid to what the Court has pointedly observed in Civil
Liberties Union v. Executive Secretary: 45
Being head of an executive department is no mean job. It is more than a full-time job, requiring
full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived
from a department heads ability and expertise, he should be allowed to attend to his duties and
responsibilities without the distraction of other governmental offices or employment. He should
be precluded from dissipating his efforts, attention and energy among too many positions of
responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be
derived from this concentration of attention, knowledge and expertise, particularly at this stage of
our national and economic development, far outweigh the benefits, if any, that may be gained
from a department head spreading himself too thin and taking in more than what he can handle.
xxxx
While Section 7, Article IX-B of the 1987 Constitution applies in general to all elective and
appointive officials, Section 13, Article VII, thereof applies in particular to Cabinet secretaries,
undersecretaries and assistant secretaries. In the Resolution in Civil Liberties Union v. Executive
Secretary, this Court already clarified the scope of the prohibition provided in Section 13, Article
VII of the 1987 Constitution. Citing the case of US v. Mouat, it specifically identified the persons
who are affected by this prohibition as secretaries, undersecretaries and assistant secretaries;
and categorically excluded public officers who merely have the rank of secretary, undersecretary
or assistant secretary.
Another point of clarification raised by the Solicitor General refers to the persons affected by the
constitutional prohibition. 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. (Italics supplied).
It is clear from the foregoing that 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.
It must be emphasized, however, that 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.47

Clearly, the primary functions of the Office of the Solicitor General are not related or necessary
It is not amiss to observe, lastly, that assuming that Agra, as the Acting Solicitor General, was
to the primary functions of the Department of Justice. Considering that the nature and duties of
not covered by the stricter prohibition under Section 13, supra, due to such position being merely
the two offices are such as to render it improper, from considerations of public policy, for one
vested with a cabinet rank under Section 3, Republic Act No. 9417, he nonetheless remained
person to retain both,48 an incompatibility between the offices exists, further warranting the
covered by the general prohibition under Section 7, supra. Hence, his concurrent designations
declaration of Agras designation as the Acting Secretary of Justice, concurrently with his
were still subject to the conditions under the latter constitutional provision. In this regard, the
designation as the Acting Solicitor General, to be void for being in violation of the express
Court aptly pointed out in Public Interest Center, Inc. v. Elma:46
provisions of the Constitution.

The general rule contained in Article IX-B of the 1987 Constitution permits an appointive official
3.
to hold more than one office only if "allowed by law or by the primary functions of his position." In
Effect of declaration of unconstitutionality of Agras concurrent appointment; the de
the case of Quimson v. Ozaeta, this Court ruled that, "[t]here is no legal objection to a
facto officer doctrine
government official occupying two government offices and performing the functions of both as
long as there is no incompatibility." The crucial test in determining whether incompatibility exists
between two offices was laid out in People v. Green - whether one office is subordinate to the In view of the application of the stricter prohibition under Section 13, supra, Agra did not validly
other, in the sense that one office has the right to interfere with the other. hold the position of Acting Secretary of Justice concurrently with his holding of the position of
Acting Solicitor General. Accordingly, he was not to be considered as a de jure officer for the
entire period of his tenure as the Acting Secretary of Justice. A de jure officer is one who is
[I]ncompatibility between two offices, is an inconsistency in the functions of the two; x x x Where
deemed, in all respects, legally appointed and qualified and whose term of office has not
one office is not subordinate to the other, nor the relations of the one to the other such as are
expired.49
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. 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 That notwithstanding, Agra was a de facto officer during his tenure as Acting Secretary of
held by the same person, from the contrariety and antagonism which would result in the attempt Justice. In Civil Liberties Union v. Executive Secretary,50 the Court said:
by one person to faithfully and impartially discharge the duties of one, toward the incumbent of
the other. X x x The offices must subordinate, one [over] the other, and they must, per se, have
During their tenure in the questioned positions, respondents may be considered de facto officers
the right to interfere, one with the other, before they are incompatible at common law. x x x.
and as such entitled to emoluments for actual services rendered. It has been held that "in cases
where there is no de jure, officer, a de facto officer, who, in good faith has had possession of the
office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of
the office, and may in an appropriate action recover the salary, fees and other compensations
attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it
seems unjust that the public should benefit by the services of an officer de facto and then be
freed from all liability to pay any one for such services. Any per diem, allowances or other
emoluments received by the respondents by virtue of actual services rendered in the questioned
positions may therefore be retained by them.

A de facto officer is one who derives his appointment from one having colorable authority to
appoint, if the office is an appointive office, and whose appointment is valid on its face. 51 He may
also be one who is in possession of an office, and is discharging its duties under color of
authority, by which is meant authority derived from an appointment, however irregular or
informal, so that the incumbent is not a mere volunteer. 52 Consequently, the acts of the de
facto officer are just as valid for all purposes as those of a de jure officer, in so far as the public
or third persons who are interested therein are concerned. 53

In order to be clear, therefore, the Court holds that all official actions of Agra as a de facto Acting
Secretary of Justice, assuming that was his later designation, were presumed valid, binding and
effective as if he was the officer legally appointed and qualified for the office. 54 This clarification
is necessary in order to protect the sanctity of the dealings by the public with persons whose
ostensible authority emanates from the State. 55 Agra's official actions covered by this
claritlcation extend to but are not limited to the promulgation of resolutions on petitions for review
filed in the Department of Justice, and the issuance of department orders, memoranda and
circulars relative to the prosecution of criminal cases.

WHEREFORE, the Comi GRANTS the petition for certiorari and prohibition; ANNULS AND
VOIDS the designation of Hon. Alberto C. Agra as the Acting Secretary of Justice in a
concurrent capacity with his position as the Acting Solicitor General for being unconstitutional
and violative of Section 13, Article VII of the 1987 Constitution; and DECLARES that l-Ion.
Alberto C. Agra was a de facto officer during his tenure as Acting Secretary of Justice.

No pronouncement on costs of suit.

SO ORDERED
 EN BANC
[G.R. No. 147392. March 12, 2004]
BENEDICTO ERNESTO R. BITONIO, JR., petitioner, vs. COMMISSION ON AUDIT and
CELSO D. GANGAN, CHAIRMAN OF THE COMMISSION ON AUDIT, respondents.
DECISION
CALLEJO, SR., J.:
The instant petition filed under Rule 64 of the Revised Rules of Court seeks the annulment
of the Decision[1] of the Commission on Audit (COA) dated January 30, 2001 denying the
petitioners motion for the reconsideration of the COA Notices of Disallowance Nos. 98-008-101
(95) and 98-017-101 (97) dated July 31, 1998 and October 9, 1998, respectively, involving
the per diems the petitioner received from the Philippine Economic Zone Authority (PEZA). In
order to avoid multiplicity of suits, an Amended Petition[2] dated August 16, 2002 was later filed
to include in the resolution of the instant petition Notice of Disallowance No. 98-003-101 (96)
dated July 31, 1998 which was belatedly received by the petitioner on August 13, 2002.
The antecedent facts are as follows:
In 1994, petitioner Benedicto Ernesto R. Bitonio, Jr. was appointed Director IV of the
Bureau of Labor Relations in the Department of Labor and Employment.
In a Letter dated May 11, 1995 addressed to Honorable Rizalino S. Navarro, then
Secretary of the Department of Trade and Industry, Acting Secretary Jose S. Brilliantes of the
Department of Labor and Employment designated the petitioner to be the DOLE representative
to the Board of Directors of PEZA.[3] Such designation was in pursuance to Section 11 of
Republic Act No. 7916, otherwise known as the Special Economic Zone Act of 1995, which
provides:
Section 11. The Philippine Economic Zone Authority (PEZA) Board. There is hereby created a
body corporate to be known as the Philippine Economic Zone Authority (PEZA)
The Board shall be composed of the Director General as ex officio chairman with eight (8)
members as follows: the Secretaries or their representatives of the Department of Trade and
Industry, the Department of Finance, the Department of Labor and Employment, the Department
of [the] Interior and Local Government, the National Economic and Development Authority, and
the Bangko Sentral ng Pilipinas, one (1) representative from the labor sector, and one (1)
representative from the investor/business sector in the ECOZONE.
Members of the Board shall receive a per diem of not less than the amount equivalent to the
representation and transportation allowances of the members of the Board and/or as may be
determined by the Department of Budget and Management: Provided, however, That the per
diem collected per month does not exceed the equivalent of four (4) meetings.
As representative of the Secretary of Labor to the PEZA, the petitioner was receiving a per
diem for every board meeting he attended during the years 1995 to 1997.
After a post audit of the PEZAs disbursement transactions, the COA disallowed the
payment of per diems to the petitioner and thus issued the following:
(a) Notice of Disallowance No. 98-008-101 (95) dated July 31, 1998 for the total sum
of P24,500 covering the period of July-December 1995;
(b) Notice of Disallowance No. 98-003-101 (96) also dated July 31, 1998 for a total
amount of P100,000 covering the period of January 1996 to January 1997;[4]
(c) Notice of Disallowance No. 98-017-101 (97) dated October 9, 1998 for the total amount
of P210,000 covering the period of February 1997 to January 1998.
The uniform reason for the disallowance was stated in the Notices, as follows:
Cabinet members, their deputies and assistants holding other offices in addition to their primary
office and to receive compensation therefore was declared unconstitutional by the Supreme
Court in the Civil Liberties Union vs. Executive Secretary. Disallowance is in pursuance to COA
Memorandum No. 97-038 dated September 19, 1997 implementing Senate Committee Report
No. 509.[5]
On November 24, 1998, the petitioner filed his motion for reconsideration to the COA on
the following grounds:
1. The Supreme Court in its Resolution dated August 2, 1991 on the motion for
clarification filed by the Solicitor General modified its earlier ruling in the Civil
Liberties Union case which limits the prohibition to Cabinet Secretaries,
Undersecretaries and their Assistants. Officials given the rank equivalent to a
Secretary, Undersecretary or Assistant Secretary and other appointive officials below
the rank of Assistant Secretary are not covered by the prohibition.
2. Section 11 of R.A. No. 7916 provides the legal basis for the movant to receive per
diem. Said law was enacted in 1995, four years after the Civil Liberties Union case
became final. In expressly authorizing per diems, Congress should be conclusively
presumed to have been aware of the parameters of the constitutional prohibition as
interpreted in the Civil Liberties Union case.[6]
On January 30, 2001, the COA rendered the assailed decision denying petitioners motion
for reconsideration.
Hence, this petition.
The issue in this case is whether or not the COA correctly disallowed the per
diems received by the petitioner for his attendance in the PEZA Board of Directors meetings as
representative of the Secretary of Labor.
We rule in the affirmative.
The COA anchors the disallowance of per diems in the case of Civil Liberties Union
v. Executive Secretary[7] where the Court declared Executive Order No. 284[8] allowing
government officials to hold multiple positions in government, unconstitutional. Thus, Cabinet
Secretaries, Undersecretaries, and their Assistant Secretaries, are prohibited to hold other
government offices or positions in addition to their primary positions and to receive
compensation therefor, except in cases where the Constitution expressly provides. The Courts
ruling was in conformity with Section 13, Article VII of the 1987 Constitution which reads:
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 their tenure, directly or indirectly, practice
any other profession, participate in any business or be financially interested in any other contract
with, or in any franchise, or special privilege granted by the Government or any subdivision,
agency or instrumentality thereof, including any government-owned 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
subsidiaries.
 Pursuant to the Courts ruling in this case and the Senate Committee Report on the
Accountability of Public Officers and Investigations (Blue Ribbon),[9] the COA issued
Memorandum No. 97-038 which authorized the issuance of the Notices of Disallowances for
the per diems received by the petitioner. It states:
The Commission received a copy of Senate Committee Report No. 509 urging the Commission
on Audit to immediately cause the disallowance of any payment of any form of additional
compensation or remuneration to cabinet secretaries, their deputies and assistants, or their
representatives in violation of the rule on multiple positions and to effect the refund of any and all
such additional compensation given to and received by the officials concerned, or their
representatives, from the time of the finality of the Supreme Court ruling in Civil Liberties Union
vs. Executive Secretary to the present. In the Civil Liberties Union case, the Supreme Court
ruled that Cabinet Secretaries, their deputies and assistants may not hold any other office or
employment. It declared Executive Order No. 284 unconstitutional insofar as it allows Cabinet
members, their deputies and assistants to hold other offices in addition to their primary office
and to receive compensation therefor.The said decision became final and executory on August
19, 1991.
In view thereof, all unit heads/auditors/team leaders of the national government agencies and
government-owned or controlled corporations which have effected payment of subject
allowances are directed to implement the recommendation contained in the subject Senate
Committee Report by undertaking the following audit action: [10]
The petitioner maintains that he is entitled to the payment of per diems, as R.A. No. 7916
specifically and categorically provides for the payment of a per diem for the attendance of the
members of the Board of Directors at board meetings of PEZA. The petitioner contends that this
law is presumed to be valid; unless and until the law is declared unconstitutional, it remains in
effect and binding for all intents and purposes. Neither can this law be rendered nugatory on the
basis of a mere memorandum circular COA Memorandum No. 97-038 issued by the COA. The
petitioner stresses that R.A. No. 7916 is a statute more superior than an administrative directive
and the former cannot just be repealed or amended by the latter.
The petitioner also posits that R.A. No. 7916 was enacted four (4) years after the case
of Civil Liberties Union was promulgated. It is, therefore, assumed that the legislature, before
enacting a law, was aware of the prior holdings of the courts. Since the constitutionality or the
validity of R.A. No. 7916 was never challenged, the provision on the payment of per
diems remains in force notwithstanding the Civil Liberties Union case.Nonetheless, the
petitioners position as Director IV is not included in the enumeration of officials prohibited to
receive additional compensation as clarified in the Resolution of the Court dated August 1, 1991;
thus, he is still entitled to receive the per diems.
The petitioners contentions are untenable.
It must be noted that the petitioners presence in the PEZA Board meetings is solely by
virtue of his capacity as representative of the Secretary of Labor. As the petitioner himself
admitted, there was no separate or special appointment for such position.[11] Since the Secretary
of Labor is prohibited from receiving compensation for his additional office or employment, such
prohibition likewise applies to the petitioner who sat in the Board only in behalf of the Secretary
of Labor.
The petitioners case stands on all fours with the case of Dela Cruz v. Commission on
Audit.[12] Here, the Court upheld the COA in disallowing the payment of honoraria and per
diems to the officers concerned who sat as members of the Board of Directors of the National
Housing Authority. The officers concerned sat as alternates of their superiors in an ex
officio capacity. Citing also the Civil Liberties Union case, the Court explained thus:
The ex-officio position being actually and in legal contemplation part of the principal office, it
follows that the official concerned has no right to receive additional compensation for his
services in the said position. The reason is that these services are already paid for and covered
by the compensation attached to his principal office. It should be obvious that if, say, the
Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof,
he is actually and in legal contemplation performing the primary function of his principal office in
defining policy in monetary banking matters, which come under the jurisdiction of his
department. For such attendance, therefore, he is not entitled to collect any extra compensation,
whether it be in the form of a per diem or an honorarium or an allowance, or some other such
euphemism. By whatever name it is designated, such additional compensation is prohibited by
the Constitution.
Since the Executive Department Secretaries, as ex-officio members of the NHA Board, are
prohibited from receiving extra (additional) compensation, whether it be in the form of a per
diem or an honorarium or an allowance, or some other such euphemism, it follows that
petitioners who sit as their alternates cannot likewise be entitled to receive such
compensation. A contrary rule would give petitioners a better right than their principals.[13]
Similarly in the case at bar, we cannot allow the petitioner who sat as representative of the
Secretary of Labor in the PEZA Board to have a better right than his principal. As the
representative of the Secretary of Labor, the petitioner sat in the Board in the same capacity as
his principal. Whatever laws and rules the member in the Board is covered, so is the
representative; and whatever prohibitions or restrictions the member is subjected, the
representative is, likewise, not exempted. Thus, his position as Director IV of the DOLE which
the petitioner claims is not covered by the constitutional prohibition set by the Civil Liberties
Union case is of no moment.The petitioner attended the board meetings by the authority given to
him by the Secretary of Labor to sit as his representative. If it were not for such designation, the
petitioner would not have been in the Board at all.
There is also no merit in the allegation that the legislature was certainly aware of the
parameters set by the Court when it enacted R.A. No. 7916, four (4) years after the finality of
the Civil Liberties Union case. The payment of per diems was clearly an express grant in favor of
the members of the Board of Directors which the petitioner is entitled to receive.
It is a basic tenet that any legislative enactment must not be repugnant to the highest law
of the land which is the Constitution. No law can render nugatory the Constitution because the
Constitution is more superior to a statute.[14] If a law happens to infringe upon or violate the
fundamental law, courts of justice may step in to nullify its effectiveness. [15] It is the task of the
Court to see to it that the law must conform to the Constitution. In the clarificatory resolution
issued by the Court in the Civil Liberties Union case on August 1, 1991, the Court addressed the
issue as to the extent of the exercise of legislative prerogative, to wit:
The Solicitor General next asks: x x x may the Decision then control or otherwise encroach on
the exclusive competence of the legislature to provide funds for a public purpose, in terms of
compensation or honoraria under existing laws, where in the absence of such provision said
laws would otherwise meet the terms of the exception by law? Again, the question is anchored
on a misperception. It must be stressed that the so-called exclusive competence of the
legislature to provide funds for a public purpose or to enact all types of laws, for that matter, is
not unlimited. Such competence must be exercised within the framework of the
fundamental law from which the Legislature draws its power and with which the resulting
legislation or statute must conform. When the Court sets aside legislation for being
violative of the Constitution, it is not thereby substituting its wisdom for that of the
Legislature or encroaching upon the latters prerogative, but again simply discharging its
sacred task of safeguarding and upholding the paramount law.
The framers of R.A. No. 7916 must have realized the flaw in the law which is the reason why the
law was later amended by R.A. No. 8748[16] to cure such defect. In particular, Section 11 of R.A.
No. 7916 was amended to read:

SECTION 11. The Philippine Economic Zone Authority (PEZA) Board. There is hereby created a
body corporate to be known as the Philippine Economic Zone Authority (PEZA) attached to the
Department of Trade and Industry. The Board shall have a director general with the rank of
department undersecretary who shall be appointed by the President. The director general shall
be at least forty (40) years of age, of proven probity and integrity, and a degree holder in any of
the following fields: economics, business, public administration, law, management or their
equivalent, and with at least ten (10) years relevant working experience preferably in the field of
management or public administration.

The director general shall be assisted by three (3) deputy directors general each for policy and
planning, administration and operations, who shall be appointed by the PEZA Board, upon the
recommendation of the director general. The deputy directors general shall be at least thirty-five
(35) years old, with proven probity and integrity and a degree holder in any of the following
fields: economics, business, public administration, law, management or their equivalent.

The Board shall be composed of thirteen (13) members as follows: the Secretary of the
Department of Trade and Industry as Chairman, the Director General of the Philippine Economic
Zone Authority as Vice-chairman, the undersecretaries of the Department of Finance, the
Department of Labor and Employment, the Department of [the] Interior and Local Government,
the Department of Environment and Natural Resources, the Department of Agriculture, the
Department of Public Works and Highways, the Department of Science and Technology, the
Department of Energy, the Deputy Director General of the National Economic and Development
Authority, one (1) representative from the labor sector, and one (1) representative from the
investors/business sector in the ECOZONE. In case of the unavailability of the Secretary of the
Department of Trade and Industry to attend a particular board meeting, the Director General of
PEZA shall act as Chairman.[17]

As can be gleaned from above, the members of the Board of Directors was increased from
8 to 13, specifying therein that it is the undersecretaries of the different Departments who should
sit as board members of the PEZA. The option of designating his representative to the Board by
the different Cabinet Secretaries was deleted. Likewise, the last paragraph as to the payment
of per diems to the members of the Board of Directors was also deleted, considering that such
stipulation was clearly in conflict with the proscription set by the Constitution.

Prescinding from the above, the petitioner is, indeed, not entitled to receive a per diem for
his attendance at board meetings during his tenure as member of the Board of Director of the
PEZA.

IN LIGHT OF THE FOREGOING, the petition is DISMISSED. The assailed decision of the
COA is AFFIRMED.

SO ORDERED.
 FIRST DIVISION would allow respondent Elmas concurrent appointments to both positions. Respondents further
G. R. No. 138965 add that the appointment of the CPLC among incumbent public officials is an accepted practice.

PUBLIC INTEREST CENTER INC., LAUREANO T. ANGELES, and JOCELYN P. The resolution of this case had already been overtaken by supervening events. In
CELESTINO, 2001, the appointees of former President Joseph Estrada were replaced by the appointees of
the incumbent president, Gloria Macapagal Arroyo. The present PCGG Chairman
Petitioners,
is Camilo Sabio, while the position vacated by the last CPLC, now Solicitor General
Antonio Nachura, has not yet been filled. There no longer exists an actual controversy that
needs to be resolved. However, this case raises a significant legal question as yet unresolved -
- versus -
whether the PCGG Chairman can concurrently hold the position of CPLC. The resolution of this
question requires the exercise of the Courts judicial power, more specifically its exclusive and
final authority to interpret laws. Moreover, the likelihood that the same substantive issue raised
MAGDANGAL B. ELMA, as Chief Presidential Legal Counsel and as Chairman of the
Presidential Commission on Good Government, and RONALDO ZAMORA, as Executive in this case will be raised again compels this Court to resolve it.[8] The rule is that courts will
Secretary, decide a question otherwise moot and academic if it is capable of repetition, yet evading
review.[9]
Respondents.

x--------------------------------------------------x Supervening events, whether intended or accidental, cannot prevent the Court from
rendering a decision if there is a grave violation of the Constitution. Even in cases where
supervening events had made the cases moot, this Court did not hesitate to resolve the legal or
constitutional issues raised to formulate controlling principles to guide the bench, bar, and
DECISION
public.[10]
CHICO-NAZARIO, J.:
The merits of this case may now be discussed.
This is an original action for Certiorari, Prohibition, and Mandamus, with a Prayer
The issue in this case is whether the position of the PCGG Chairman or that of
for Temporary Restraining Order/Writ of Preliminary Injunction filed on 30 June 1999.[1] This
the CPLC falls under the prohibition against multiple offices imposed by Section 13, Article
action seeks to declare as null and void the concurrent appointments of
VII and Section 7, par. 2, Article IX-B of the 1987 Constitution, which provide that:
respondent Magdangal B. Elma as Chairman of the Presidential Commission on Good
Government (PCGG) and as Chief Presidential Legal Counsel (CPLC) for being contrary to
Art. VII .
Section 13,[2] Article VII and Section 7, par. 2,[3] Article IX-B of the 1987 Constitution. In
addition, the petitioners further seek the issuance of the extraordinary writs of prohibition
xxxx
and mandamus, as well as a temporary restraining order to enjoin respondent Elma from
holding and discharging the duties of both positions and from receiving any salaries,
Section 13. The President, Vice-President, the Members of the Cabinet, and
compensation or benefits from such positions during the pendency of this
their deputies or assistants shall not, unless otherwise provided in this
petition.[4] Respondent Ronaldo Zamora was sued in his official capacity as Executive
Constitution, hold any other office or employment during their tenure. x x x
Secretary.
Art. IX-B.
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,
xxxx
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.[5]
Section 7. No elective official shall be eligible for appointment or designation
[6] in any capacity to any public office or position during his tenure.
Petitioners cited the case of Civil Liberties Union v. Executive Secretary to support
their position that respondent Elmas concurrent appointments as PCGG Chairman and CPLC
Unless otherwise allowed by law or by the primary functions of his position,
contravenes Section 13, Article VII and Section 7, par. 2, Article IX-B of the 1987 Constitution.
no appointive official shall hold any other office or employment in the
Petitioners also maintained that respondent Elma was holding incompatible offices.
Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries.
Citing the Resolution[7] in Civil Liberties Union v. Executive Secretary, respondents
allege that 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
To harmonize these two provisions, this Court, in the case of Civil Liberties Union v.
undersecretaries and assistant secretaries; it does not cover other public officials given the rank
Executive Secretary,[11] construed the prohibition against multiple offices contained in Section 7,
of Secretary, Undersecretary, or Assistant Secretary.
Article IX-B andSection 13, Article VII in this manner:
Respondents claim that it is Section 7, par. 2, Article IX-B of the 1987 Constitution that
should be applied in their case. This provision, according to the respondents, would allow a
[T]hus, while all other appointive officials in the civil service are allowed to
public officer to hold multiple positions if (1) the law allows the concurrent appointment of the
hold other office or employment in the government during their tenure when
said official; and (2) the primary functions of either position allows such concurrent
such is allowed by law or by the primary functions of their positions,
appointment. Respondents also alleged that since there exists a close relation between the two
members of the Cabinet, their deputies and assistants may do so only when
positions and there is no incompatibility between them, the primary functions of either position
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.
The general rule contained in Article IX-B of the 1987 Constitution permits an
appointive official to hold more than one office only if allowed by law or by the primary functions
of his position. In the case of Quimson v. Ozaeta,[12] this Court ruled that, [t]here is no legal
objection to a government official occupying two government offices and performing the
functions of both as long as there is no incompatibility. The crucial test in determining
whether incompatibility exists between two offices was laid out in People v. Green[13] - whether
one office is subordinate to the other, in the sense that one office has the right to interfere with
the other.
[I]ncompatibility between two offices, is an inconsistency in
the functions of the two; x x x W here 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. 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
d i s c h a r g e t h e d u t i e s o f o n e , t o wa r d t h e i n c u m b e n t o f t h e
other. x x x The offices must subordinate, one [over] t he
other, and they must, per se, have the right to interfere,
one with the other, before they are incompatible at common
l a w. x x x
I n t h i s c a s e , a n i n c o m p a t i b i l i t y e xi s t s b e t w e e n t h e p o s i t i o n s o f t h e
PCGG Chairman and the CPLC. The duties of the CPLC include giving
independent and impartial legal advice on the actions of the heads of
v a r i o u s e xe c u t i v e d e p a r t m e n t s a n d a g e n c i e s a n d t o r e v i e w i n v e s t i g a t i o n s
i n v o l v i n g h e a d s o f e x e c u t i v e d e p a r t m e n t s a n d a g e n c i e s , a s we l l a s o t h e r
P r e s i d e n t i a l a p p o i n t e e s . T h e P C G G i s , wi t h o u t q u e s t i o n , a n a g e n c y u n d e r
t h e E xe c u t i v e D e p a r t m e n t . T h u s , t h e a c t i o n s o f t h e P C G G C h a i r m a n a r e
subject to the review of the CPLC. In Memorandum Order No. 152, issued
on 9 July 2004, the Office of the President, in an effort to promote
efficiency and effective coordination, clearly delineated and specified the
functions and duties of its senior officers as such:
SECTION 1. The Chief Presidential Legal Counsel (CPLC) shall advise and
provide the President with legal assistance on matters requiring her action,
including matters pertaining to legislation.
The CPLC shall have the following duties and functions:
a. Exercise administrative supervision over the Office of the CPLC;
b. Review and/or draft legal orders referred to her by the President on the
following matters that are subject of decisions of the President;
1. Executive Orders, proclamations, administrative
orders, memorandum orders, and other legal
documents initiated by the President;
2. Decision on investigation involving Cabinet
Secretaries, agency heads, or Presidential
appointees with the rank of Secretary conducted
by the Presidential Anti-Graft Commission
(PAGC);[14]
As CPLC, respondent Elma will be required to give his legal opinion on his own actions as
PCGG Chairman and review any investigation conducted by the Presidential Anti-Graft
Commission, which may involve himself as PCGG Chairman. 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.
Having thus ruled that Section 7, Article IX-B of the 1987 Constitution enjoins the
concurrent appointments of respondent Elma as PCGG Chairman and CPLC inasmuch as they
are incompatible offices, this Court will proceed to determine whether such appointments violate
the other constitutional provision regarding multiple offices, Section 13, Article VII of the 1987
Constitution.
While Section 7, Article IX-B of the 1987 Constitution applies in general to all elective
and appointive officials, Section 13, Article VII, thereof applies in particular to Cabinet
secretaries, undersecretaries and assistant secretaries. In the Resolution in Civil Liberties Union
v. Executive Secretary,[15] this Court already clarified the scope of the prohibition provided in
Section 13, Article VII of the 1987 Constitution. Citing the case of US v. Mouat[16], it specifically
identified the persons who are affected by this prohibition as secretaries, undersecretaries and
assistant secretaries; and categorically excluded public officers who merely have the rank of
secretary, undersecretary or assistant secretary.
Another point of clarification raised by the Solicitor General refers to the
persons affected by the constitutional prohibition. 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. (Underscoring supplied.)
It is clear from the foregoing that 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.
It must be emphasized, however, that 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.
Granting that the prohibition under Section 13, Article VII of the 1987 Constitution is
applicable to the present case, the defect in respondent Elmas concurrent appointments to the
incompatible offices of the PCGG Chairman and the CPLC would even be magnified when seen
through the more stringent requirements imposed by the said constitutional provision. In
the aforecited case Civil Liberties Union v. Executive Secretary,[17] the Court stressed that the
language of Section 13, Article VII is a definite and unequivocal negation of the privilege of
holding multiple offices or employment. The Court cautiously allowed 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 officials specified in Section 13, Article VII without additional
compensation in an ex-officio capacity as provided by law and as required by the primary
functions of said officials office. The Court further qualified that 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.[18] Thus, it will not suffice that no additional compensation shall
be received by virtue of the second appointment, it is mandatory that the second post is required
by the primary functions of the first appointment and is exercised in an ex-officio capacity.

With its forgoing qualifications, it is evident that even Section 13, Article VII does
not sanction this dual appointment. Appointment to the position of PCGG Chairman is not
required by the primary functions of the CPLC, and vice versa. The primary functions of the
PCGG Chairman involve the recovery of ill-gotten wealth accumulated by former President
Ferdinand E. Marcos, his family and associates, the investigation of graft and corruption
cases assigned to him by the President, and the adoption of measures to prevent the
occurrence of corruption.[19] On the other hand, the primary functions of the CPLC
encompass a different matter, that is, the review and/or drafting of legal orders referred to
him by the President.[20] And while respondent Elma did not receive additional
compensation in connection with his position as CPLC, he did not act as either CPLC or
PGCC Chairman in an ex-officio capacity. The fact that a separate appointment had to be
made for respondent Elma to qualify as CPLC negates the premise that he is acting in
an ex-officio capacity.

In sum, the prohibition in Section 13, Article VII of the 1987

Constitution does not apply to respondent Elma since neither the PCGG
Chairman nor the CPLC is a Cabinet secretary, undersecretary, or
assistant secretary. Even if this Court assumes, arguendo, that Section 13,
Article VII is applicable to respondent Elma, he still could not be appointed
concurrently to the offices of the PCGG Chairman and CPLC
because neither office was occupied by him in an ex-officio capacity,
and the primary functions of one office do not require an appointment to
the other post. Moreover, even if the appointment s in question are not
covered by Section 13, Article VII of the 1987 Constitution, said
a p p o i n t m e n t s a r e s t i l l p r o h i b i t e d u n d e r S e c t i o n 7 , A r t i c l e I X - B , wh i c h
covers all appointive and elective officials, due to the incompatibility
between the primary functions of the offices of the PCGG Chairman and the
CPLC.

WHEREFORE, premises considered, this Court partly GRANTS this petition and
declares respondent Magdangal B. Elmas concurrent appointments as PCGG Chairman and
CPLC as UNCONSTITUTIONAL. No costs.

SO ORDERED.
 Republic of the Philippines CHAIRMAN FERDINAND GAITE; KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY)
Supreme Court SECRETARY GENERAL GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG
Manila KABATAAN NG SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN
EN BANC LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE OF
ARTURO M. DE CASTRO, FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY LACUANAN RIDON;
Petitioner, NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP) CHAIRMAN EINSTEIN
RECEDES; COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VIJAE
- versus - ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP)
CHAIRMAN MA. CRISTINA ANGELA GUEVARRA;
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL ARROYO,
Respondents. WALDEN F. BELLO and LORETTA ANN P. ROSALES;
x-----------------------x
JAIME N. SORIANO, WOMEN TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by
Petitioner, YOLANDA QUISUMBING-
JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA.
- versus - VERENA KASILAG-VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and
GUINEVERE DE LEON.
JUDICIAL AND BAR COUNCIL (JBC), Intervenors.
Respondent. x - - - - - - - - - - - - - - - - - - - - - - - -x
x-----------------------x ATTY. AMADOR Z. TOLENTINO, JR., (IBP
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), GovernorSouthern Luzon), and ATTY. ROLAND B. INTING
Petitioner, (IBP GovernorEastern Visayas),
Petitioners,
- versus -
- versus -
JUDICIAL AND BAR COUNCIL (JBC),
Respondent.
x-----------------------x JUDICIAL AND BAR COUNCIL (JBC),
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO Respondent.
APPOINTMENTS TO THE JUDICIARY, x-----------------------x
ESTELITO P. MENDOZA, PHILIPPINE BAR ASSOCIATION, INC.,
Petitioner, Petitioner,
x-----------------------x - versus -
JOHN G. PERALTA,
Petitioner, JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO,
- versus - Respondents.

JUDICIAL AND BAR COUNCIL (JBC). x-----------------------------------------------------------------------------------------x

Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - -x
PETER IRVING CORVERA;
CHRISTIAN ROBERT S. LIM;
ALFONSO V. TAN, JR.;
NATIONAL UNION OF PEOPLES LAWYERS;
MARLOU B. UBANO;
INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its
Immediate Past President, ATTY. ISRAELITO P. TORREON, and the latter in his own
personal capacity as a MEMBER of the PHILIPPINE BAR;
MITCHELL JOHN L. BOISER;
BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO;
BAYAN SECRETARY GENERAL RENATO M. REYES, JR.; CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCE-MENT OF GOVERNMENT EMPLOYEES (COURAGE)
DECISION
BERSAMIN, J.:
The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days
after the coming presidential elections on May 10, 2010. Even before the event actually
happens, it is giving rise to many legal dilemmas. May the incumbent President appoint his
successor, considering that Section 15, Article VII (Executive Department) of the Constitution
prohibits the President or Acting President from making appointments within two months
immediately before the next presidential elections and up to the end of his term, except
temporary appointments to executive positions when continued vacancies therein will prejudice
public service or endanger public safety? What is the relevance of Section 4 (1), Article VIII
(Judicial Department) of the Constitution, which provides that any vacancy in the Supreme Court
shall be filled within 90 days from the occurrence thereof, to the matter of the appointment of his
successor? May the Judicial and Bar Council (JBC) resume the process of screening the
candidates nominated or being considered to succeed Chief Justice Puno, and submit the list of
nominees to the incumbent President even during the period of the prohibition under Section 15,
Article VII? Does mandamus lie to compel the submission of the shortlist of nominees by the
JBC?

Precs of the Consolidated Cases
Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R.
No. 191002[1] and G.R. No. 191149[2] as special civil actions for certiorari and mandamus,
praying that the JBC be compelled to submit to the incumbent President the list of at least three
nominees for the position of the next Chief Justice.
In G.R. No. 191032,[3] Jaime N. Soriano, via his petition for prohibition, proposes to
prevent the JBC from conducting its search, selection and nomination proceedings for the
position of Chief Justice.
In G.R. No. 191057, a special civil action for mandamus,[4] the Philippine Constitution
Association (PHILCONSA) wants the JBC to submit its list of nominees for the position of Chief
Justice to be vacated by Chief Justice Puno upon his retirement on May 17, 2010, because the
incumbent President is not covered by the prohibition that applies only to appointments in the
Executive Department.
In Administrative Matter No. 10-2-5-SC,[5] petitioner Estelito M. Mendoza, a former Solicitor
General, seeks a ruling from the Court for the guidance of the JBC on whether Section 15,
Article VII applies to appointments to the Judiciary.
In G.R. No. 191342,[6] which the Court consolidated on March 9, 2010 with the petitions earlier
filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated Bar of the Philippines
(IBP) Governors for Southern Luzon and Eastern Visayas, respectively, want to enjoin and
restrain the JBC from submitting a list of nominees for the position of Chief Justice to the
President for appointment during the period provided for in Section 15, Article VII.
All the petitions now before the Court pose as the principal legal question whether the incumbent
President can appoint the successor of Chief Justice Puno upon his retirement. That question is
undoubtedly impressed with transcendental importance to the Nation, because the appointment
of the Chief Justice is any Presidents most important appointment.
A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon.
Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of
Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively (Valenzuela),[7] by which
the Court held that Section 15, Article VII prohibited the exercise by the President of the power
to appoint to judicial positions during the period therein fixed.
In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue
expressed by legal luminaries one side holds that the incumbent President is prohibited from
making appointments within two months immediately before the coming presidential elections
and until the end of her term of office as President on June 30, 2010, while the other insists that
the prohibition applies only to appointments to executive positions that may influence the
election and, anyway, paramount national interest justifies the appointment of a Chief Justice
during the election ban has impelled the JBC to defer the decision to whom to send its list of at
least three nominees, whether to the incumbent President or to her successor. [8] He opines that
the JBC is thereby arrogating unto itself the judicial function that is not conferred upon it by the
Constitution, which has limited it to the task of recommending appointees to the Judiciary, but
has not empowered it to finally resolve constitutional questions, which is the power vested only
in the Supreme Court under the Constitution. As such, he contends that the JBC acted with
grave abuse of discretion in deferring the submission of the list of nominees to the President;
and that a final and definitive resolution of the constitutional questions raised above would
diffuse (sic) the tension in the legal community that would go a long way to keep and maintain
stability in the judiciary and the political system.[9]
In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse of
discretion amounting to lack or excess of its jurisdiction when it resolved unanimously on
January 18, 2010 to open the search, nomination, and selection process for the position of Chief
Justice to succeed Chief Justice Puno, because the appointing authority for the position of Chief
Justice is the Supreme Court itself, the Presidents authority being limited to the appointment of
the Members of the Supreme Court. Hence, the JBC should not intervene in the process, unless
a nominee is not yet a Member of the Supreme Court.[10]
For its part, PHILCONSA observes in its petition in G.R. No. 191057 that unorthodox
and exceptional circumstances spawned by the discordant interpretations, due perhaps to a
perfunctory understanding, of Sec. 15, Art. VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII of the
Constitution have bred a frenzied inflammatory legal debate on the constitutional provisions
mentioned that has divided the bench and the bar and the general public as well, because of its
dimensional impact to the nation and the people, thereby fashioning transcendental questions or
issues affecting the JBCs proper exercise of its principal function of recommending appointees
to the Judiciary by submitting only to the President (not to the next President) a list of at least
three nominees prepared by the Judicial and Bar Council for every vacancy from which the
members of the Supreme Court and judges of the lower courts may be
appointed.[11] PHILCONSA further believes and submits that now is the time to revisit and
review Valenzuela, the strange and exotic Decision of the Court en banc.[12]
Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC
to immediately transmit to the President, within a reasonable time, its nomination list for the
position of chief justice upon the mandatory retirement of Chief Justice Reynato S. Puno, in
compliance with its mandated duty under the Constitution in the event that the Court resolves
that the President can appoint a Chief Justice even during the election ban under Section 15,
Article VII of the Constitution.[13]
The petitioners in G.R. No. 191342 insist that there is an actual controversy,
considering that the JBC has initiated the process of receiving applications for the position of
Chief Justice and has in fact begun the evaluation process for the applications to the position,
and is perilously near completing the nomination process and coming up with a list of nominees
for submission to the President, entering into the period of the ban on midnight appointments on
March 10, 2010, which only highlights the pressing and compelling need for a writ of prohibition
to enjoin such alleged ministerial function of submitting the list, especially if it will be cone within
the period of the ban on midnight appointments.[14]
Antecedents
These cases trace their genesis to the controversy that has arisen from the
forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after
the presidential election. Under Section 4(1), in relation to Section 9, Article VIII, that vacancy
shall be filled within ninety days from the occurrence thereof from a list of at least three
nominees prepared by the Judicial and Bar Council for every vacancy.
On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of
the JBC, addressed a letter to the JBC, requesting that the process for nominations to the office
of the Chief Justice be commenced immediately.
In its January 18, 2010 meeting en banc, therefore, the JBC passed a
resolution,[15] which reads:
The JBC, in its en banc meeting of January 18, 2010, unanimously
agreed to start the process of filling up the position of Chief Justice to be
vacated on May 17, 2010 upon the retirement of the incumbent Chief
Justice Honorable Reynato S. Puno.
It will publish the opening of the position for applications or
recommendations; deliberate on the list of candidates; publish the names of
 candidates; accept comments on or opposition to the applications; conduct
public interviews of candidates; and prepare the shortlist of candidates.
As to the time to submit this shortlist to the proper appointing
authority, in the light of the Constitution, existing laws and jurisprudence, the
JBC welcomes and will consider all views on the matter.
18 January 2010.
(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council
As a result, the JBC opened the position of Chief Justice for application or recommendation, and
published for that purpose its announcement dated January 20, 2010,[16] viz:
The Judicial and Bar Council (JBC) announces the opening for
application or recommendation, of the position of CHIEF JUSTICE OF THE
SUPREME COURT, which will be vacated on 17 May 2010 upon the
retirement of the incumbent Chief Justice, HON. REYNATO S. PUNO.
Applications or recommendations for this position must be submitted
not later than 4 February 2010 (Thursday) to the JBC Secretariat xxx:
The announcement was published on January 20, 2010 in the Philippine Daily
Inquirer and The Philippine Star.[17]
Conformably with its existing practice, the JBC automatically considered for the position of Chief
Justice the five most senior of the Associate Justices of the Court, namely: 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. However, the last two declined their nomination through letters dated January 18,
2010 and January 25, 2010, respectively.[18]
Others either applied or were nominated. Victor Fernandez, the retired Deputy Ombudsman
for Luzon, applied, but later formally withdrew his name from consideration through his letter
dated February 8, 2010. Candidates who accepted their nominations without conditions were
Associate Justice Renato C. Corona; Associate Justice Teresita J. Leonardo-De Castro;
Associate Justice Arturo D. Brion; and Associate Justice Edilberto G. Sandoval
(Sandiganbayan). Candidates who accepted their nominations with conditions were Associate
Justice Antonio T. Carpio and Associate Justice Conchita Carpio Morales. [19] Declining their
nominations were Atty. Henry Villarica (via telephone conversation with the Executive Officer of
the JBC on February 5, 2010) and Atty. Gregorio M. Batiller, Jr. (via telephone conversation with
the Executive Officer of the JBC on February 8, 2010).[20]
The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to meet the
standards set by the JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the Office of the
Ombudsman (due to cases pending in the Office of the Ombudsman). [21]
In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing
the names of the following candidates to invite the public to file their sworn complaint, written
report, or opposition, if any, not later than February 22, 2010, to wit: Associate Justice Carpio,
Associate Justice Corona, Associate Justice Carpio Morales, Associate Justice Leonardo-De
Castro, Associate Justice Brion, and Associate Justice Sandoval. The announcement came out
in the Philippine Daily Inquirer and The Philippine Star issues of February 13, 2010.[22]
Issues
Although it has already begun the process for the filling of the position of Chief Justice
Puno in accordance with its rules, the JBC is not yet decided on when to submit to the President
its list of nominees for the position due to the controversy now before us being yet unresolved. In
the meanwhile, time is marching in quick step towards May 17, 2010 when the vacancy occurs
upon the retirement of Chief Justice Puno.
The actions of the JBC have sparked a vigorous debate not only among legal
luminaries, but also among non-legal quarters, and brought out highly disparate opinions on
whether the incumbent President can appoint the next Chief Justice or not. Petitioner Mendoza
notes that in Valenzuela, which involved the appointments of two judges of the Regional Trial
Court, the Court addressed this issue now before us as an administrative matter to avoid any
possible polemics concerning the matter, but he opines that the polemics leading
to Valenzuela would be miniscule [sic] compared to the polemics that have now erupted in
regard to the current controversy, and that unless put to a halt, and this may only be achieved by
a ruling from the Court, the integrity of the process and the credibility of whoever is appointed to
the position of Chief Justice, may irreparably be impaired.[23]
Accordingly, we reframe the issues as submitted by each petitioner in the order of the
chronological filing of their petitions.
G.R. No. 191002
a. Does the JBC have the power and authority to resolve the constitutional
question of whether the incumbent President can appoint a Chief
Justice during the election ban period?
b. Does the incumbent President have the power and authority to appoint
during the election ban the successor of Chief Justice Puno when he
vacates the position of Chief Justice on his retirement on May 17,
2010?
G.R. No. 191032
a. Is the power to appoint the Chief Justice vested in the Supreme Court en
banc?
G.R. No. 191057
a. Is the constitutional prohibition against appointment under Section 15,
Article VII of the Constitution applicable only to positions in the
Executive Department?
b. Assuming that the prohibition under Section 15, Article VII of the
Constitution also applies to members of the Judiciary, may such
appointments be excepted because they are impressed with public
interest or are demanded by the exigencies of public service, thereby
justifying these appointments during the period of prohibition?
c. Does the JBC have the authority to decide whether or not to include and
submit the names of nominees who manifested interest to be
nominated for the position of Chief Justice on the understanding that
 his/her nomination will be submitted to the next President in view of the
prohibition against presidential appointments from March 11, 2010 until
June 30, 2010?
A. M. No. 10-2-5-SC
a. Does Section 15, Article VII of the Constitution apply to appointments to
positions in the Judiciary under Section 9, Article VIII of the
Constitution?
b. May President Gloria Macapagal-Arroyo make appointments to the
Judiciary after March 10, 2010, including that for the position of Chief
Justice after Chief Justice Puno retires on May 17, 2010?
G.R. No. 191149
a. Does the JBC have the discretion to withhold the submission of the short
list to President Gloria Macapagal-Arroyo?
G.R. No. 191342
a. Does the JBC have the authority to submit the list of nominees to the
incumbent President without committing a grave violation of the
Constitution and jurisprudence prohibiting the incumbent President
from making midnight appointments two months immediately
preceding the next presidential elections until the end of her term?
b. Is any act performed by the JBC, including the vetting of the
candidates for the position of Chief Justice, constitutionally invalid in
view of the JBCs illegal composition allowing each member from the
Senate and the House of Representatives to have one vote each?
On February 16, 2010, the Court directed the JBC and the Office of the Solicitor
General (OSG) to comment on the consolidated petitions, except that filed in G.R. No. 191342.
On February 26, 2010, the JBC submitted its comment, reporting therein that the next
stage of the process for the selection of the nominees for the position of Chief Justice would be
the public interview of the candidates and the preparation of the short list of candidates,
including the interview of the constitutional experts, as may be needed. [24] It stated:[25]
Likewise, the JBC has yet to take a position on when to submit
the shortlist to the proper appointing authority, in light of Section
4 (1), Article VIII of the Constitution, which provides that vacancy
in the Supreme Court shall be filled within ninety (90) days from
the occurrence thereof, Section 15, Article VII of the Constitution
concerning the ban on Presidential appointments two (2) months
immediately before the next presidential elections and up to the
end of his term and Section 261 (g), Article XXII of the Omnibus
Election Code of the Philippines.
12. Since the Honorable Supreme Court is the final interpreter of the
Constitution, the JBC will be guided by its decision in these
consolidated Petitions and Administrative Matter.
On February 26, 2010, the OSG also submitted its comment, essentially stating that
the incumbent President can appoint the successor of Chief Justice Puno upon his retirement
by May 17, 2010.
The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from
performing its principal function under the Constitution to recommend appointees in the
Judiciary; (b) the JBCs function to recommend is a continuing process, which does not begin
with each vacancy or end with each nomination, because the goal is to submit the list of
nominees to Malacaang on the very day the vacancy arises;[26] the JBC was thus acting within its
jurisdiction when it commenced and set in motion the process of selecting the nominees to be
submitted to the President for the position of Chief Justice to be vacated by Chief Justice
Puno;[27] (c) petitioner Sorianos theory that it is the Supreme Court, not the President, who has
the power to appoint the Chief Justice, is incorrect, and proceeds from his misinterpretation of
the phrase members of the Supreme Court found in Section 9, Article VIII of the Constitution as
referring only to the Associate Justices, to the exclusion of the Chief Justice; [28] (d) a writ
of mandamus can issue to compel the JBC to submit the list of nominees to the President,
considering that its duty to prepare the list of at least three nominees is unqualified, and the
submission of the list is a ministerial act that the JBC is mandated to perform under the
Constitution; as such, the JBC, the nature of whose principal function is executive, is not vested
with the power to resolve who has the authority to appoint the next Chief Justice and, therefore,
has no discretion to withhold the list from the President; [29] and (e) a writ of mandamus cannot
issue to compel the JBC to include or exclude particular candidates as nominees, considering
that there is no imperative duty on its part to include in or exclude from the list particular
individuals, but, on the contrary, the JBCs determination of who it nominates to the President is
an exercise of a discretionary duty.[30]
The OSG contends that the incumbent President may appoint the next Chief Justice,
because the prohibition under Section 15, Article VII of the Constitution does not apply to
appointments in the Supreme Court. It argues that any vacancy in the Supreme Court must be
filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the
Constitution; [31] that in their deliberations on the mandatory period for the appointment of
Supreme Court Justices, the framers neither mentioned nor referred to the ban against midnight
appointments, or its effects on such period, or vice versa;[32] that had the framers intended the
prohibition to apply to Supreme Court appointments, they could have easily expressly stated so
in the Constitution, which explains why the prohibition found in Article VII (Executive
Department) was not written in Article VIII (Judicial Department); and that the framers also
incorporated in Article VIII ample restrictions or limitations on the Presidents power to appoint
members of the Supreme Court to ensure its independence from political vicissitudes and its
insulation from political pressures,[33] such as stringent qualifications for the positions, the
establishment of the JBC, the specified period within which the President shall appoint a
Supreme Court Justice.
The OSG posits that although Valenzuela involved the appointment of RTC Judges,
the situation now refers to the appointment of the next Chief Justice to which the prohibition
does not apply; that, at any rate, Valenzuela even recognized that there might be the imperative
need for an appointment during the period of the ban, like when the membership of the Supreme
Court should be so reduced that it will have no quorum, or should the voting on a particular
important question requiring expeditious resolution be divided;[34] and that Valenzuela also
recognized that the filling of vacancies in the Judiciary is undoubtedly in the public interest, most
especially if there is any compelling reason to justify the making of the appointments during the
period of the prohibition.[35]
Lastly, the OSG urges that there are now undeniably compelling reasons for the
incumbent President to appoint the next Chief Justice, to wit: (a) a deluge of cases involving
sensitive political issues is quite expected;[36] (b) the Court acts as the Presidential Electoral
Tribunal (PET), which, sitting en banc, is the sole judge of all contests relating to the election,
returns, and qualifications of the President and Vice President and, as such, has the power to
correct manifest errors on the statement of votes (SOV) and certificates of canvass (COC);[37] (c)
if history has shown that during ordinary times the Chief Justice was appointed immediately
upon the occurrence of the vacancy, from the time of the effectivity of the Constitution, there is
now even more reason to appoint the next Chief Justice immediately upon the retirement of
Chief Justice Puno;[38] and (d) should the next Chief Justice come from among the incumbent
Associate Justices of the Supreme Court, thereby causing a vacancy, it also becomes
incumbent upon the JBC to start the selection process for the filling up of the vacancy in
accordance with the constitutional mandate.[39]
On March 9, 2010, the Court admitted the following comments/oppositions-in-
intervention, to wit:
(a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter
Irving Corvera (Corvera);[40]
(b) The opposition-in-intervention dated February 22, 2010 of Atty.
Christian Robert S. Lim (Lim);
(c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso
V. Tan, Jr. (Tan);
(d) The comment/opposition-in-intervention dated March 1, 2010 of the
National Union of Peoples Lawyers (NUPL);
(e) The opposition-in-intervention dated February 25, 2010 of Atty. Marlou
B. Ubano (Ubano);
(f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar
of the Philippines-Davao del Sur Chapter and its Immediate Past
President, Atty. Israelito P. Torreon (IBP- Davao del Sur);
(g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell
John L. Boiser (Boiser);
(h)The consolidated comment/opposition-in-intervention dated February 26,
2010 of BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary
General Renato M. Reyes, Jr.; Confederation for Unity, Recognition
and Advancement of Government Employees (COURAGE) Chairman
Ferdinand Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY)
Secretary General Gloria Arellano; Alyansa ng Nagkakaisang
Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN)
Chairman Ken Leonard Ramos; Tayo ang Pag-asa Convenor Alvin
Peters; League of Filipino Students (LFS) Chairman James Mark Terry
Lacuanan Ridon; National Union of Students of the Philippines (NUSP)
Chairman Einstein Recedes, College Editors Guild of the Philippines
(CEGP) Chairman Vijae Alquisola; and Student Christian Movement of
the Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra
(BAYAN et al.);
(i) The opposition-in-intervention dated March 3, 2010 of Walden F. Bello
and Loretta Ann P. Rosales (Bello et al.); and
(j) The consolidated comment/opposition-in-intervention dated March 4,
2010 of the Women Trial Lawyers Organization of the Philippines
(WTLOP), represented by Atty. Yolanda Quisumbing-Javellana; Atty.
Belleza Alojado Demaisip; Atty. Teresita Gandionco-Oledan; Atty. Ma.
Verena Kasilag-Villanueva; Atty. Marilyn Sta. Romana; Atty. Leonila de
Jesus; and Atty. Guinevere de Leon (WTLOP).
Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL take the
position that De Castros petition was bereft of any basis, because under Section 15, Article VII,
the outgoing President is constitutionally banned from making any appointments from March 10,
2010 until June 30, 2010, including the appointment of the successor of Chief Justice Puno.
Hence, mandamus does not lie to compel the JBC to submit the list of nominees to the outgoing
President if the constitutional prohibition is already in effect. Tan adds that the prohibition against
midnight appointments was applied by the Court to the appointments to the Judiciary made by
then President Ramos, with the Court holding that the duty of the President to fill the vacancies
within 90 days from occurrence of the vacancies (for the Supreme Court) or from the submission
of the list (for all other courts) was not an excuse to violate the constitutional prohibition.
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al.
oppose the insistence that Valenzuela recognizes the possibility that the President may appoint
the next Chief Justice if exigent circumstances warrant the appointment, because that
recognition is obiter dictum; and aver that the absence of a Chief Justice or even an Associate
Justice does not cause epic damage or absolute disruption or paralysis in the operations of the
Judiciary. They insist that even without the successor of Chief Justice Puno being appointed by
the incumbent President, the Court is allowed to sit and adjudge en banc or in divisions of three,
five or seven members at its discretion; that a full membership of the Court is not necessary; that
petitioner De Castros fears are unfounded and baseless, being based on a mere possibility, the
occurrence of which is entirely unsure; that it is not in the national interest to have a Chief
Justice whose appointment is unconstitutional and, therefore, void; and that such a situation will
create a crisis in the judicial system and will worsen an already vulnerable political situation.
ice is imperative for the stability of the judicial system and the political situation in the country
when the election-related questions reach the Court as false, because there is an existing law on
filling the void brought about by a vacancy in the office of Chief Justice; that the law is Section
12 of the Judiciary Act of 1948, which has not been repealed by Batas Pambansa Blg. 129 or
any other law; that a temporary or an acting Chief Justice is not anathema to judicial
independence; that the designation of an acting Chief Justice is not only provided for by law, but
is also dictated by practical necessity; that the practice was intended to be enshrined in the 1987
Constitution, but the Commissioners decided not to write it in the Constitution on account of the
settled practice; that the practice was followed under the 1987 Constitution, when, in 1992, at
the end of the term of Chief Justice Marcelo B. Fernan, Associate Justice Andres Narvasa
assumed the position as Acting Chief Justice prior to his official appointment as Chief Justice;
that said filling up of a vacancy in the office of the Chief Justice was acknowledged and even
used by analogy in the case of the vacancy of the Chairman of the Commission on Elections,
per Brillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme Court has shown
that this rule of succession has been repeatedly observed and has become a part of its tradition.
Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus
Election Code penalizes as an election offense the act of any government official who appoints,
promotes, or gives any increase in salary or remuneration or privilege to any government official
or employee during the period of 45 days before a regular election; that the provision covers all
appointing heads, officials, and officers of a government office, agency or instrumentality,
including the President; that for the incumbent President to appoint the next Chief Justice upon
the retirement of Chief Justice Puno, or during the period of the ban under the Omnibus Election
Code, constitutes an election offense; that even an appointment of the next Chief Justice prior to
the election ban is fundamentally invalid and without effect because there can be no
appointment until a vacancy occurs; and that the vacancy for the position can occur only by May
17, 2010.
Intervenor Boiser adds that De Castros prayer to compel the submission of nominees
by the JBC to the incumbent President is off-tangent because the position of Chief Justice is still
not vacant; that to speak of a list, much more a submission of such list, before a vacancy occurs
is glaringly premature; that the proposed advance appointment by the incumbent President of
the next Chief Justice will be unconstitutional; and that no list of nominees can be submitted by
the JBC if there is no vacancy.
All the intervenors-oppositors submit that Section 15, Article VII makes no distinction between
the kinds of appointments made by the President; and that the Court, in Valenzuela, ruled that
the appointments by the President of the two judges during the prohibition period were void.
Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not
apply only to the appointments in the Executive Department, but also to judicial appointments,
contrary to the submission of PHILCONSA; that Section 15 does not distinguish; and
that Valenzuela already interpreted the prohibition as applicable to judicial appointments.
Intervenor WTLOP further posits that petitioner Sorianos contention that the power to
appoint the Chief Justice is vested, not in the President, but in the Supreme Court, is utterly
baseless, because the Chief Justice is also a Member of the Supreme Court as contemplated
under Section 9, Article VIII; and that, at any rate, the term members was interpreted in Vargas
v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to the Chief Justice and the Associate
Justices of the Supreme Court; that PHILCONSAs prayer that the Court pass a resolution
declaring that persons who manifest their interest as nominees, but with conditions, shall not be
considered nominees by the JBC is diametrically opposed to the arguments in the body of its
petition; that such glaring inconsistency between the allegations in the body and the relief prayed
for highlights the lack of merit of PHILCONSAs petition; that the role of the JBC cannot be
separated from the constitutional prohibition on the President; and that the Court must direct the
JBC to follow the rule of law, that is, to submit the list of nominees only to the next duly elected
President after the period of the constitutional ban against midnight appointments has expired.
Oppositor IBP Davao del Sur opines that the JBC because it is neither a judicial nor a
quasi-judicial body has no duty under the Constitution to resolve the question of whether the
incumbent President can appoint a Chief Justice during the period of prohibition; that even if the
JBC has already come up with a short list, it still has to bow to the strict limitations under Section
15, Article VII; that should the JBC defer submission of the list, it is not arrogating unto itself a
judicial function, but simply respecting the clear mandate of the Constitution; and that the
application of the general rule in Section 15, Article VII to the Judiciary does not violate the
principle of separation of powers, because said provision is an exception.
Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBCs act of
nominating appointees to the Supreme Court is purely ministerial and does not involve the
exercise of judgment; that there can be no default on the part of the JBC in submitting the list of
nominees to the President, considering that the call for applications only begins from the
occurrence of the vacancy in the Supreme Court; and that the commencement of the process of
screening of applicants to fill the vacancy in the office of the Chief Justice only begins from the
retirement on May 17, 2010, for, prior to this date, there is no definite legal basis for any party to
claim that the submission or non-submission of the list of nominees to the President by the JBC
is a matter of right under law.
The main question presented in all the filings herein because it involves two seemingly
conflicting provisions of the Constitution imperatively demands the attention and resolution of
this Court, the only authority that can resolve the question definitively and finally. The imperative
demand rests on the ever-present need, first, to safeguard the independence, reputation, and
integrity of the entire Judiciary, particularly this Court, an institution that has been unnecessarily
dragged into the harsh polemics brought on by the controversy; second, to settle once and for all
the doubt about an outgoing Presidents power to appoint to the Judiciary within the long period
starting two months before the presidential elections until the end of the presidential term;
and third, to set a definite guideline for the JBC to follow in the discharge of its primary office of
screening and nominating qualified persons for appointment to the Judiciary.
Thus, we resolve.
Ruling of the Court
Locus Standi of Petitioners
The preliminary issue to be settled is whether or not the petitioners have locus standi.
Black defines locus standi as a right of appearance in a court of justice on a given
question.[41] In public or constitutional litigations, the Court is often burdened with the
determination of the locus standi of the petitioners due to the ever-present need to regulate the
invocation of the intervention of the Court to correct any official action or policy in order to avoid
obstructing the efficient functioning of public officials and offices involved in public service. It is
required, therefore, that the petitioner must have a personal stake in the outcome of the
controversy, for, as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:[42]
The question on legal standing is whether such parties have
alleged such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of
difficult constitutional questions.[43] Accordingly, it has been held that
the interest of a person assailing the constitutionality of a statute must
be direct and personal. He must be able to show, not only that the law
or any government act is invalid, but also that he sustained or is in
imminent danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about
to be denied some right or privilege to which he is lawfully entitled or
that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.[44]
It is true that as early as in 1937, in People v. Vera,[45] the Court adopted the direct
injury test for determining whether a petitioner in a public action had locus standi. There, the
Court held that the person who would assail the validity of a statute must have a personal and
substantial interest in the case such that he has sustained, or will sustain direct injury as a
result. Vera was followed in Custodio v. President of the Senate,[46] Manila Race Horse Trainers
Association v. De la Fuente,[47] Anti-Chinese League of the Philippines v. Felix,[48] and Pascual v.
Secretary of Public Works.[49]
Yet, the Court has also held that the requirement of locus standi, being a mere
procedural technicality, can be waived by the Court in the exercise of its discretion. For instance,
in 1949, in Araneta v. Dinglasan,[50] the Court liberalized the approach when the cases
had transcendental importance. Some notable controversies whose petitioners did not pass
the direct injury test were allowed to be treated in the same way as in Araneta v. Dinglasan.[51]
In the 1975 decision in Aquino v. Commission on Elections,[52] this Court decided to resolve the
issues raised by the petition due to their far-reaching implications, even if the petitioner had no
personality to file the suit. The liberal approach of Aquino v. Commission on Elections has been
adopted in several notable cases, permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or validity of laws, regulations, and
rulings.[53]
However, the assertion of a public right as a predicate for challenging a supposedly
illegal or unconstitutional executive or legislative action rests on the theory that the petitioner
represents the public in general. Although such petitioner may not be as adversely affected by
the action complained against as are others, it is enough that he sufficiently demonstrates in his
petition that he is entitled to protection or relief from the Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to
gain locus standi. That is not surprising, for even if the issue may appear to concern only the
public in general, such capacities nonetheless equip the petitioner with adequate interest to
sue. In David v. Macapagal-Arroyo,[54] the Court aptly explains why:
Case law in most jurisdictions now allows both citizen and taxpayer
standing in public actions. The distinction was first laid down in Beauchamp
[55]
v. Silk, where it was held that the plaintiff in a taxpayers suit is in a
different category from the plaintiff in a citizens suit. In the former, the
plaintiff is affected by the expenditure of public funds, while in the
latter, he is but the mere instrument of the public concern. As held by
the New York Supreme Court in People ex rel Case v. Collins:[56] In matter
 of mere public right, howeverthe people are the real partiesIt is at least
the right, if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a public
grievance be remedied. With respect to taxpayers suits, Terr v.
Jordan[57] held that the right of a citizen and a taxpayer to maintain an
action in courts to restrain the unlawful use of public funds to his
injury cannot be denied.[58]
Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta
(G.R. No. 191149) all assert their right as citizens filing their petitions on behalf of the public who
are directly affected by the issue of the appointment of the next Chief Justice. De Castro and
Soriano further claim standing as taxpayers, with Soriano averring that he is affected by the
continuing proceedings in the JBC, which involve unnecessary, if not, illegal disbursement of
public funds.[59]
PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the
law for the purpose of defending, protecting, and preserving the Constitution and promoting its
growth and flowering. It also alleges that the Court has recognized its legal standing to file cases
on constitutional issues in several cases.[60]
In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a
member of the Philippine Bar engaged in the active practice of law, and a former Solicitor
General, former Minister of Justice, former Member of the Interim Batasang Pambansa and the
Regular Batasang Pambansa, and former member of the Faculty of the College of Law of the
University of the Philippines.
The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the
Philippines (IBP) for Southern Luzon and Eastern Visayas. They allege that they have the legal
standing to enjoin the submission of the list of nominees by the JBC to the President, for [a]n
adjudication of the proper interpretation and application of the constitutional ban on midnight
appointments with regard to respondent JBCs function in submitting the list of nominees is well
within the concern of petitioners, who are duty bound to ensure that obedience and respect for
the Constitution is upheld, most especially by government offices, such as respondent JBC, who
are specifically tasked to perform crucial functions in the whole scheme of our democratic
institution. They further allege that, reposed in them as members of the Bar, is a clear legal
interest in the process of selecting the members of the Supreme Court, and in the selection of
the Chief Justice, considering that the person appointed becomes a member of the body that
has constitutional supervision and authority over them and other members of the legal
profession.[61]
The Court rules that the petitioners have each demonstrated adequate interest in the
outcome of the controversy as to vest them with the requisite locus standi. The issues before us
are of transcendental importance to the people as a whole, and to the petitioners in particular.
Indeed, the issues affect everyone (including the petitioners), regardless of ones personal
interest in life, because they concern that great doubt about the authority of the incumbent
President to appoint not only the successor of the retiring incumbent Chief Justice, but also
others who may serve in the Judiciary, which already suffers from a far too great number of
vacancies in the ranks of trial judges throughout the country.
In any event, the Court retains the broad discretion to waive the requirement of legal
standing in favor of any petitioner when the matter involved has transcendental importance, or
otherwise requires a liberalization of the requirement.[62]
Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the
doubt now in order to remove any obstacle or obstruction to the resolution of the essential issue
squarely presented herein. We are not to shirk from discharging our solemn duty by reason
alone of an obstacle more technical than otherwise. In Agan, Jr. v. Philippine International Air
Terminals Co., Inc.,[63] we pointed out: Standing is a peculiar concept in constitutional law
because in some cases, suits are not brought by parties who have been personally injured by
the operation of a law or any other government act but by concerned citizens, taxpayers or
voters who actually sue in the public interest. But even if, strictly speaking, the petitioners are not
covered by the definition, it is still within the wide discretion of the Court to waive the requirement
and so remove the impediment to its addressing and resolving the serious constitutional
questions raised.[64]
Justiciability
Intervenor NUPL maintains that there is no actual case or controversy that is
appropriate or ripe for adjudication, considering that although the selection process commenced
by the JBC is going on, there is yet no final list of nominees; hence, there is no imminent
controversy as to whether such list must be submitted to the incumbent President, or reserved
for submission to the incoming President.
Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for
judicial determination, pointing out that petitioner De Castro has not even shown that the JBC
has already completed its selection process and is now ready to submit the list to the incumbent
President; and that petitioner De Castro is merely presenting a hypothetical scenario that is
clearly not sufficient for the Court to exercise its power of judicial review.
Intervenors Corvera and Lim separately opine that De Castros petition rests on an
overbroad and vague allegation of political tension, which is insufficient basis for the Court to
exercise its power of judicial review.
Intervenor BAYAN et al. contend that the petitioners are seeking a mere advisory
opinion on what the JBC and the President should do, and are not invoking any issues that are
justiciable in nature.
Intervenors Bello et al. submit that there exist no conflict of legal rights and no
assertion of opposite legal claims in any of the petitions; that PHILCONSA does not allege any
action taken by the JBC, but simply avers that the conditional manifestations of two Members of
the Court, accented by the divided opinions and interpretations of legal experts, or associations
of lawyers and law students on the issues published in the daily newspapers are matters of
paramount and transcendental importance to the bench, bar and general public; that
PHILCONSA fails not only to cite any legal duty or allege any failure to perform the duty, but also
to indicate what specific action should be done by the JBC; that Mendoza does not even attempt
to portray the matter as a controversy or conflict of rights, but, instead, prays that the Court
should rule for the guidance of the JBC; that the fact that the Court supervises the JBC does not
automatically imply that the Court can rule on the issues presented in the Mendoza petition,
because supervision involves oversight, which means that the subordinate officer or body must
first act, and if such action is not in accordance with prescribed rules, then, and only then, may
the person exercising oversight order the action to be redone to conform to the prescribed rules;
that the Mendoza petition does not allege that the JBC has performed a specific act susceptible
to correction for being illegal or unconstitutional; and that the Mendoza petition asks the Court to
issue an advisory ruling, not to exercise its power of supervision to correct a wrong act by the
JBC, but to declare the state of the law in the absence of an actual case or controversy.
We hold that the petitions set forth an actual case or controversy that is ripe for judicial
determination. The reality is that the JBC already commenced the proceedings for the selection
of the nominees to be included in a short list to be submitted to the President for consideration of
which of them will succeed Chief Justice Puno as the next Chief Justice. Although the position is
not yet vacant, the fact that the JBC began the process of nomination pursuant to its rules and
practices, although it has yet to decide whether to submit the list of nominees to the incumbent
outgoing President or to the next President, makes the situation ripe for judicial determination,
because the next steps are the public interview of the candidates, the preparation of the short list
of candidates, and the interview of constitutional experts, as may be needed.
 A part of the question to be reviewed by the Court is whether the JBC properly
initiated the process, there being an insistence from some of the oppositors-intervenors that the
JBC could only do so once the vacancy has occurred (that is, after May 17, 2010). Another part
is, of course, whether the JBC may resume its process until the short list is prepared, in view of
the provision of Section 4(1), Article VIII, which unqualifiedly requires the President to appoint
one from the short list to fill the vacancy in the Supreme Court (be it the Chief Justice or an
Associate Justice) within 90 days from the occurrence of the vacancy.
The ripeness of the controversy for judicial determination may not be doubted. The
challenges to the authority of the JBC to open the process of nomination and to continue the
process until the submission of the list of nominees; the insistence of some of the petitioners to
compel the JBC through mandamus to submit the short list to the incumbent President; the
counter-insistence of the intervenors to prohibit the JBC from submitting the short list to the
incumbent President on the ground that said list should be submitted instead to the next
President; the strong position that the incumbent President is already prohibited under Section
15, Article VII from making any appointments, including those to the Judiciary, starting on May
10, 2010 until June 30, 2010; and the contrary position that the incumbent President is not so
prohibited are only some of the real issues for determination. All such issues establish the
ripeness of the controversy, considering that for some the short list must be submitted before the
vacancy actually occurs by May 17, 2010. The outcome will not be an abstraction, or a merely
hypothetical exercise. The resolution of the controversy will surely settle with finality the nagging
questions that are preventing the JBC from moving on with the process that it already began, or
that are reasons persuading the JBC to desist from the rest of the process.
We need not await the occurrence of the vacancy by May 17, 2010 in order for the
principal issue to ripe for judicial determination by the Court. It is enough that one alleges
conduct arguably affected with a constitutional interest, but seemingly proscribed by the
Constitution. A reasonable certainty of the occurrence of the perceived threat to a constitutional
interest is sufficient to afford a basis for bringing a challenge, provided the Court has sufficient
facts before it to enable it to intelligently adjudicate the issues.[65] Herein, the facts are not in
doubt, for only legal issues remain.
Substantive Merits
I qualifications of Members of the Supreme Court, among others. Section 4(1) and Section 9 of
Prohibition under Section 15, Article VII does not apply
to appointments to fill a vacancy in the Supreme Court
or to other appointments to the Judiciary
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department), provides:
Section 15. Two months immediately before the next presidential
elections and up to the end of his term, a President or Acting President shall
not make appointments, except temporary appointments to executive
positions when continued vacancies therein will prejudice public service or
endanger public safety.
The other, Section 4 (1), Article VIII (Judicial Department), states:
Section 4. (1). The Supreme Court shall be composed of a Chief
Justice and fourteen Associate Justices. It may sit en banc or in its
discretion, in division of three, five, or seven Members. Any vacancy shall
be filled within ninety days from the occurrence thereof.
In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino
and Inting, submit that the incumbent President can appoint the successor of Chief Justice Puno
upon his retirement on May 17, 2010, on the ground that the prohibition against presidential
appointments under Section 15, Article VII does not extend to appointments in the Judiciary.
The Court agrees with the submission.
First. The records of the deliberations of the Constitutional Commission reveal that the
framers devoted time to meticulously drafting, styling, and arranging the Constitution. Such
meticulousness indicates that the organization and arrangement of the provisions of the
Constitution were not arbitrarily or whimsically done by the framers, but purposely made to
reflect their intention and manifest their vision of what the Constitution should contain.
The Constitution consists of 18 Articles, three of which embody the allocation of the
awesome powers of government among the three great departments, the Legislative (Article VI),
the Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a
true recognition of the principle of separation of powers that underlies the political structure, as
Constitutional Commissioner Adolfo S. Azcuna (later a worthy member of the Court) explained in
his sponsorship speech:
We have in the political part of this Constitution opted for the
separation of powers in government because we believe that the only way
to protect freedom and liberty is to separate and divide the awesome
powers of government. Hence, we return to the separation of powers
doctrine and the legislative, executive and judicial departments.[66]
As can be seen, Article VII is devoted to the Executive Department, and, among
others, it lists the powers vested by the Constitution in the President. The presidential power of
appointment is dealt with in Sections 14, 15 and 16 of the Article.
Article VIII is dedicated to the Judicial Department and defines the duties and
this Article are the provisions specifically providing for the appointment of Supreme Court
Justices. In particular, Section 9 states that the appointment of Supreme Court Justices can only
be made by the President upon the submission of a list of at least three nominees by the JBC;
Section 4(1) of the Article mandates the President to fill the vacancy within 90 days from the
occurrence of the vacancy.
Had the framers intended to extend the prohibition contained in Section 15, Article VII
to the appointment of Members of the Supreme Court, they could have explicitly done so. They
could not have ignored the meticulous ordering of the provisions. They would
have easily and surely written the prohibition made explicit in Section 15, Article VII as being
equally applicable to the appointment of Members of the Supreme Court in Article VIII itself,
most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that
the prohibition against the President or Acting President making appointments within two months
before the next presidential elections and up to the end of the Presidents or Acting Presidents
term does not refer to the Members of the Supreme Court.
Although Valenzuela[67] came to hold that the prohibition covered even judicial
appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the
deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC by
then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the
Constitutional Commission, about the prohibition not being intended to apply to the
appointments to the Judiciary, which confirmation Valenzuela even expressly mentioned, should
prevail.
Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4 (1),
Article VIII, viz:
V . Intent of the Constitutional Commission
The journal of the Commission which drew up the present
Constitution discloses that the original proposal was to have an eleven-
member Supreme Court. Commissioner Eulogio Lerum wanted to increase
the number of Justices to fifteen. He also wished to ensure that that number
would not be reduced for any appreciable length of time (even only
temporarily), and to this end proposed that any vacancy must be filled within
two months from the date that the vacancy occurs. His proposal to have a
15-member Court was not initially adopted. Persisting however in his desire
to make certain that the size of the Court would not be decreased for any
substantial period as a result of vacancies, Lerum proposed the insertion in
the provision (anent the Courts membership) of the same mandate that IN
CASE OF ANY VACANCY, THE SAME SHALL BE FILLED WITHIN TWO
MONTHS FROM OCCURRENCE THEREOF. He later agreed to
suggestions to make the period three, instead of two, months. As thus
amended, the proposal was approved. As it turned out, however, the
Commission ultimately agreed on a fifteen-member Court. Thus it was that
the section fixing the composition of the Supreme Court came to
include a command to fill up any vacancy therein within 90 days from
its occurrence.
In this connection, it may be pointed out that that instruction that any
vacancy shall be filled within ninety days (in the last sentence of Section 4
(1) of Article VIII) contrasts with the prohibition in Section 15, Article VII,
which is couched in stronger negative language - that a President or Acting
President shall not make appointments
The commission later approved a proposal of Commissioner Hilario
G. Davide, Jr. (now a Member of this Court) to add to what is now Section 9
of Article VIII, the following paragraph: WITH RESPECT TO LOWER
COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN
NINETY DAYS FROM THE SUBMISSION OF THE LIST (of nominees by
the Judicial and Bar Council to the President). Davide stated that his
purpose was to provide a uniform rule for lower courts. According to him,
the 90-day period should be counted from submission of the list of
nominees to the President in view of the possibility that the President might
reject the list submitted to him and the JBC thus need more time to submit a
new one.
On the other hand, Section 15, Article VII - which in effect deprives
the President of his appointing power two months immediately before the
next presidential elections up to the end of his term - was approved without
discussion.[68]
However, the reference to the records of the Constitutional Commission did not advance or
support the result in Valenzuela. Far to the contrary, the records disclosed the express intent of
the framers to enshrine in the Constitution, upon the initiative of Commissioner Eulogio Lerum, a
command [to the President] to fill up any vacancy therein within 90 days from its occurrence,
which even Valenzuela conceded.[69]The exchanges during deliberations of the Constitutional
Commission on October 8, 1986 further show that the filling of a vacancy in the Supreme Court
within the 90-day period was a true mandate for the President, viz:
MR. DE CASTRO. I understand that our justices now in the Supreme
Court, together with the Chief Justice, are only 11.
MR. CONCEPCION. Yes.
MR. DE CASTRO. And the second sentence of this subsection
reads: Any vacancy shall be filled within ninety days from the
occurrence thereof.
MR. CONCEPCION. That is right.
MR. DE CASTRO. Is this now a mandate to the executive to fill the
vacancy?
MR. CONCEPCION. That is right. That is borne out of the fact that
in the past 30 years, seldom has the Court had a complete
complement.[70]
Moreover, the usage in Section 4(1), Article VIII of the word shall an imperative,
operating to impose a duty that may be enforced[71] should not be disregarded. Thereby,
Sections 4(1) imposes on the President the imperative duty to make an appointment of a
Member of the Supreme Court within 90 days from the occurrence of the vacancy. The failure by
the President to do so will be a clear disobedience to the Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the
vacancy in the Supreme Court was undoubtedly a special provision to establish a definite
mandate for the President as the appointing power, and cannot be defeated by mere judicial
interpretation in Valenzuela to the effect that Section 15, Article VII prevailed because it was
couched in stronger negative language. Such interpretation even turned out to be conjectural, in
light of the records of the Constitutional Commissions deliberations on Section 4 (1), Article VIII.
How Valenzuela justified its pronouncement and result is hardly warranted. According
to an authority on statutory construction:[72]
xxx the court should seek to avoid any conflict in the provisions of
the statute by endeavoring to harmonize and reconcile every part so that
each shall be effective. It is not easy to draft a statute, or any other writing
for that matter, which may not in some manner contain conflicting
provisions. But what appears to the reader to be a conflict may not have
seemed so to the drafter. Undoubtedly, each provision was inserted for a
definite reason. Often by considering the enactment in its entirety, what
appears to be on its face a conflict may be cleared up and the provisions
reconciled.
Consequently, that construction which will leave every word
operative will be favored over one which leaves some word or provision
meaningless because of inconsistency. But a word should not be given
effect, if to do so gives the statute a meaning contrary to the intent of the
legislature. On the other hand, if full effect cannot be given to the words of a
statute, they must be made effective as far as possible. Nor should the
provisions of a statute which are inconsistent be harmonized at a sacrifice of
the legislative intention. It may be that two provisions are irreconcilable; if
so, the one which expresses the intent of the law-makers should control.
And the arbitrary rule has been frequently announced that where there is an
irreconcilable conflict between the different provisions of a statute, the
provision last in order of position will prevail, since it is the latest expression
of the legislative will. Obviously, the rule is subject to deserved criticism. It is
seldom applied, and probably then only where an irreconcilable conflict
exists between different sections of the same act, and after all other means
 of ascertaining the meaning of the legislature have been exhausted. Where
the conflict is between two statutes, more may be said in favor of the rules
application, largely because of the principle of implied repeal.
In this connection, PHILCONSAs urging of a revisit and a review of Valenzuela is
timely and appropriate. Valenzuela arbitrarily ignored the express intent of the Constitutional
Commission to have Section 4 (1), Article VIII stand independently of any other provision, least
of all one found in Article VII. It further ignored that the two provisions had no irreconcilable
conflict, regardless of Section 15, Article VII being couched in the negative. As judges, we are
not to unduly interpret, and should not accept an interpretation that defeats the intent of the
framers.[73]
Consequently, prohibiting the incumbent President from appointing a Chief Justice on the
premise that Section 15, Article VII extends to appointments in the Judiciary cannot be
sustained. A misinterpretation like Valenzuela should not be allowed to last after its false
premises have been exposed.[74] It will not do to merely distinguish Valenzuela from these cases,
for the result to be reached herein is entirely incompatible with
what Valenzuela decreed. Consequently, Valenzuela now deserves to be quickly sent to the
dustbin of the unworthy and forgettable.
We reverse Valenzuela.
Second. Section 15, Article VII does not apply as well to all other appointments in the
Judiciary.
There is no question that one of the reasons underlying the adoption of Section 15 as
part of Article VII was to eliminate midnight appointments from being made by an outgoing Chief
Executive in the mold of the appointments dealt with in the leading case of Aytona v.
Castillo.[75] In fact, in Valenzuela, the Court so observed, stating that:
xxx it appears that Section 15, Article VII is directed against two
types of appointments: (1) those made for buying votes and (2) those made
for partisan considerations. The first refers to those appointments made
within the two months preceding a Presidential election and are similar to
those which are declared election offenses in the Omnibus Election
Code, viz.:
xxx
The second type of appointments prohibited by Section 15, Article
VII consists of the so-called midnight appointments. In Aytona v. Castillo, it
was held that after the proclamation of Diosdado Macapagal as duly elected
President, President Carlos P. Garcia, who was defeated in his bid for
reelection, became no more than a caretaker administrator whose duty was
to prepare for the orderly transfer of authority to the incoming
President. Said the Court:
The filling up of vacancies in important positions, if
few, and so spaced as to afford some assurance of
deliberate action and careful consideration of the need for
the appointment and appointee's qualifications may
undoubtedly be permitted. But the issuance of 350
appointments in one night and the planned induction of
almost all of them in a few hours before the inauguration
of the new President may, with some reason, be regarded
by the latter as an abuse of Presidential prerogatives, the
steps taken being apparently a mere partisan effort to fill
all vacant positions irrespective of fitness and other
conditions, and thereby to deprive the new administration
of an opportunity to make the corresponding
appointments.
As indicated, the Court recognized that there may well be
appointments to important positions which have to be made even after the
proclamation of the new President. Such appointments, so long as they
are few and so spaced as to afford some assurance of deliberate
action and careful consideration of the need for the appointment and
the appointees qualifications, can be made by the outgoing
President. Accordingly, several appointments made by President Garcia,
which were shown to have been well considered, were upheld.
Section 15, Article VII has a broader scope than
the Aytona ruling. It may not unreasonably be deemed to contemplate
not only midnight appointments those made obviously for partisan
reasons as shown by their number and the time of their making but
also appointments presumed made for the purpose of influencing the
outcome of the Presidential election.
On the other hand, the exception in the same Section 15 of Article
VII allowing appointments to be made during the period of the ban therein
provided is much narrower than that recognized in Aytona. The exception
allows only the making of temporary appointments to executive positions
when continued vacancies will prejudice public service or endanger public
safety. Obviously, the article greatly restricts the appointing power of the
President during the period of the ban.
Considering the respective reasons for the time frames for filling
vacancies in the courts and the restriction on the President's power of
appointment, it is this Courts view that, as a general proposition, in case of
conflict, the former should yield to the latter. Surely, the prevention of vote-
buying and similar evils outweighs the need for avoiding delays in filling up
of court vacancies or the disposition of some cases. Temporary vacancies
can abide the period of the ban which, incidentally and as
earlier pointed out, comes to exist only once in every six years. Moreover,
those occurring in the lower courts can be filled temporarily by
designation. But prohibited appointments are long-lasting and permanent in
their effects. They may, as earlier pointed out, in fact influence the results of
elections and, for that reason, their making is considered an election
offense.[76]
Given the background and rationale for the prohibition in Section 15, Article VII, we
have no doubt that the Constitutional Commission confined the prohibition to appointments
made in the Executive Department. The framers did not need to extend the prohibition to
appointments in the Judiciary, because their establishment of the JBC and their subjecting the
nomination and screening of candidates for judicial positions to the unhurried and
deliberate prior process of the JBC ensured that there would no longer
be midnight appointments to the Judiciary. If midnight appointments in the mold of Aytona were
made in haste and with irregularities, or made by an outgoing Chief Executive in the last days of
his administration out of a desire to subvert the policies of the incoming President or for
partisanship,[77] the appointments to the Judiciary made after the establishment of the JBC would
not be suffering from such defects because of the JBCs prior processing of candidates. Indeed,
it is axiomatic in statutory construction that the ascertainment of the purpose of the enactment is
a step in the process of ascertaining the intent or meaning of the enactment, because the reason
for the enactment must necessarily shed considerable light on the law of the statute, i.e., the
intent; hence, the enactment should be construed with reference to its intended scope and
purpose, and the court should seek to carry out this purpose rather than to defeat it.[78]
Also, the intervention of the JBC eliminates the danger that appointments to the
Judiciary can be made for the purpose of buying votes in a coming presidential election, or of
satisfying partisan considerations. The experience from the time of the establishment of the JBC
shows that even candidates for judicial positions at any level backed by people influential with
the President could not always be assured of being recommended for the consideration of the
President, because they first had to undergo the vetting of the JBC and pass muster
there. Indeed, the creation of the JBC was precisely intended to de-politicize the Judiciary by
doing away with the intervention of the Commission on Appointments. This insulating process
was absent from the Aytona midnight appointment.
Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments
in the Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC itself when
it met on March 9, 1998 to discuss the question raised by some sectors about the
constitutionality of xxx appointments to the Court of Appeals in light of the forthcoming
presidential elections. He assured that on the basis of the (Constitutional) Commissions records,
the election ban had no application to appointments to the Court of Appeals. [79] This confirmation
was accepted by the JBC, which then submitted to the President for consideration the
nominations for the eight vacancies in the Court of Appeals.[80]
The fault of Valenzuela was that it accorded no weight and due consideration to the
confirmation of Justice Regalado. Valenzuela was weak, because it relied on interpretation to
determine the intent of the framers rather than on the deliberations of the Constitutional
Commission. Much of the unfounded doubt about the Presidents power to appoint during the
period of prohibition in Section 15, Article VII could have been dispelled since its promulgation
on November 9, 1998, had Valenzuela properly acknowledged and relied on the confirmation of
a distinguished member of the Constitutional Commission like Justice Regalado.
Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section
16) concern the appointing powers of the President.
Section 14 speaks of the power of the succeeding President to revoke appointments
made by an Acting President,[81] and evidently refers only to appointments in the Executive
Department. It has no application to appointments in the Judiciary,
because temporary or acting appointments can only undermine the independence of the
Judiciary due to their being revocable at will.[82] The letter and spirit of the Constitution safeguard
that independence. Also, there is no law in the books that authorizes the revocation of
appointments in the Judiciary. Prior to their mandatory retirement or resignation, judges of the
first and second level courts and the Justices of the third level courts may only be removed for
cause, but the Members of the Supreme Court may be removed only by impeachment.
Section 16 covers only the presidential appointments that require confirmation by the
Commission on Appointments. Thereby, the Constitutional Commission restored the
requirement of confirmation by the Commission on Appointments after the requirement was
removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the restored
requirement did not include appointments to the Judiciary.[83]
Section 14, Section 15, and Section 16 are obviously of the same character, in that
they affect the power of the President to appoint. The fact that Section 14 and Section 16 refer
only to appointments within the Executive Department renders conclusive that Section 15 also
applies only to the Executive Department. This conclusion is consistent with the rule that every
part of the statute must be interpreted with reference to the context, i.e. that every part must be
considered together with the other parts, and kept subservient to the general intent of the whole
enactment.[84] It is absurd to assume that the framers deliberately situated Section
15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds of
presidential appointments. If that was their intention in respect of appointments to the Judiciary,
the framers, if only to be clear, would have easily and surely inserted a similar prohibition in
Article VIII, most likely within Section 4 (1) thereof.
Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments
to the Judiciary further undermines the intent of the Constitution of ensuring the independence of
the Judicial Department from the Executive and Legislative Departments. Such a holding will tie
the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying for
the Presidency in a presidential election. Consequently, the wisdom of having the new
President, instead of the current incumbent President, appoint the next Chief Justice is itself
suspect, and cannot ensure judicial independence, because the appointee can also become
beholden to the appointing authority. In contrast, the appointment by the incumbent President
does not run the same risk of compromising judicial independence, precisely because her term
will end by June 30, 2010.
Sixth. The argument has been raised to the effect that there will be no need for the
incumbent President to appoint during the prohibition period the successor of Chief Justice Puno
within the context of Section 4 (1), Article VIII, because anyway there will still be about 45 days
of the 90 days mandated in Section 4(1), Article VIII remaining.
The argument is flawed, because it is focused only on the coming vacancy occurring
from Chief Justice Punos retirement by May 17, 2010. It ignores the need to apply Section 4(1)
to every situation of a vacancy in the Supreme Court.
The argument also rests on the fallacious assumption that there will still be time
remaining in the 90-day period under Section 4(1), Article VIII. The fallacy is easily
demonstrable, as the OSG has shown in its comment.
Section 4 (3), Article VII requires the regular elections to be held on the second
Monday of May, letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the
regular presidential elections are held on May 8, the period of the prohibition is 115 days. If such
elections are held on May 14, the period of the prohibition is 109 days. Either period of the
prohibition is longer than the full mandatory 90-day period to fill the vacancy in the Supreme
Court. The result is that there are at least 19 occasions (i.e., the difference between the shortest
possible period of the ban of 109 days and the 90-day mandatory period for appointments) in
which the outgoing President would be in no position to comply with the constitutional duty to fill
up a vacancy in the Supreme Court. It is safe to assume that the framers of the Constitution
could not have intended such an absurdity. In fact, in their deliberations on the mandatory period
for the appointment of Supreme Court Justices under Section 4 (1), Article VIII, the framers
neither discussed, nor mentioned, nor referred to the ban against midnight appointments under
Section 15, Article VII, or its effects on the 90-day period, or vice versa. They did not need to,
because they never intended Section 15, Article VII to apply to a vacancy in the Supreme Court,
or in any of the lower courts.
Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on
whether a JBC list is necessary at all for the President any President to appoint a Chief Justice if
the appointee is to come from the ranks of the sitting justices of the Supreme Court.
Sec. 9, Article VIII says:
xxx. The Members of the Supreme Court xxx shall be appointed by
the President from a list of at least three nominees prepared by the Judicial
and Bar Council for any vacancy. Such appointments need no confirmation.
xxx
The provision clearly refers to an appointee coming into the Supreme Court from the
outside, that is, a non-member of the Court aspiring to become one. It speaks of candidates for
the Supreme Court, not of those who are already members or sitting justices of the Court, all of
whom have previously been vetted by the JBC.

Can the President, therefore, appoint any of the incumbent Justices of the Court as
Chief Justice?
The question is not squarely before us at the moment, but it should lend itself to a
deeper analysis if and when circumstances permit. It should be a good issue for the proposed
Constitutional Convention to consider in the light of Senate President Juan Ponce Enriles
statement that the President can appoint the Chief Justice from among the sitting justices of the
Court even without a JBC list.
II
The Judiciary Act of 1948
The posture has been taken that no urgency exists for the President to appoint the successor of
Chief Justice Puno, considering that the Judiciary Act of 1948 can still address the situation of
having the next President appoint the successor.
Section 12 of the Judiciary Act of 1948 states:
the confirmation of the Commission on Appointments, and the confirmation process might take
longer than expected.
The appointment of the next Chief Justice by the incumbent President is preferable to
having the Associate Justice who is first in precedence take over. Under the Constitution, the
heads of the Legislative and Executive Departments are popularly elected, and whoever are
elected and proclaimed at once become the leaders of their respective Departments. However,
the lack of any appointed occupant of the office of Chief Justice harms the independence of the
Judiciary, because the Chief Justice is the head of the entire Judiciary. The Chief Justice
performs functions absolutely significant to the life of the nation. With the entire Supreme Court
being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There
being no obstacle to the appointment of the next Chief Justice, aside from its being mandatory
for the incumbent President to make within the 90-day period from May 17, 2010, there is no
justification to insist that the successor of Chief Justice Puno be appointed by the next President.
Historically, under the present Constitution, there has been no wide gap between the
retirement and the resignation of an incumbent Chief Justice, on one hand, and the appointment
to and assumption of office of his successor, on the other hand. As summarized in the comment
of the OSG, the chronology of succession is as follows:

Section 12. Vacancy in Office of Chief Justice. In case of a vacancy 1.
in the office of Chief Justice of the Supreme Court or of his inability to
perform the duties and powers of his office, they shall devolve upon the 2.
Associate Justice who is first in precedence, until such disability is removed,
or another Chief Justice is appointed and duly qualified. This provision shall 3.
apply to every Associate Justice who succeeds to the office of Chief Justice.
4.
The provision calls for an Acting Chief Justice in the event of a vacancy in the office of
the Chief Justice, or in the event that the Chief Justice is unable to perform his duties and
powers. In either of such circumstances, the duties and powers of the office of the Chief Justice 5.
shall devolve upon the Associate Justice who is first in precedence until a new Chief Justice is
appointed or until the disability is removed.
6.
Notwithstanding that there is no pressing need to dwell on this peripheral matter after the Court
has hereby resolved the question of consequence, we do not find it amiss to confront the matter
now.
We cannot agree with the posture.
When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief
Justice Pedro Yap was appointed on the same day;
When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo
Fernan was appointed on the same day;
When Chief Justice Fernan resigned on December 7, 1991, Chief
Justice Andres Narvasa was appointed the following day, December 8,
1991;
When Chief Justice Narvasa retired on November 29, 1998, Chief
Justice Hilario Davide, Jr. was sworn into office the following early
morning of November 30, 1998;
When Chief Justice Davide retired on December 19, 2005, Chief
Justice Artemio Panganiban was appointed the next day, December
20, 2005; and
When Chief Justice Panganiban retired on December 6, 2006, Chief
Justice Reynato S. Puno took his oath as Chief Justice
at midnight of December 6, 2006.[85]
III
Writ of mandamus does not lie against the JBC

A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is composed of a
Chief Justice and 14 Associate Justices, who all shall be appointed by the President from a list
of at least three nominees prepared by the JBC for every vacancy, which appointments require
no confirmation by the Commission on Appointments. With reference to the Chief Justice, he or
she is appointed by the President as Chief Justice, and the appointment is never in an acting
capacity. The express reference to a Chief Justice abhors the idea that the framers
contemplated an Acting Chief Justice to head the membership of the Supreme Court. Otherwise,
they would have simply written so in the Constitution. Consequently, to rely on Section 12 of the
Judiciary Act of 1948 in order to forestall the imperative need to appoint the next Chief Justice
soonest is to defy the plain intent of the Constitution.
For sure, the framers intended the position of Chief Justice to be permanent, not one
to be occupied in an acting or temporary capacity. In relation to the scheme of things under the
present Constitution, Section 12 of the Judiciary Act of 1948 only responds to a rare situation in
which the new Chief Justice is not yet appointed, or in which the incumbent Chief Justice is
unable to perform the duties and powers of the office. It ought to be remembered, however, that
it was enacted because the Chief Justice appointed under the 1935 Constitution was subject to
May the JBC be compelled to submit the list of nominees to the President?
Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act that the law specifically enjoins as a duty resulting from an
office, trust, or station.[86] It is proper when the act against which it is directed is one addressed
to the discretion of the tribunal or officer. Mandamus is not available to direct the exercise of a
judgment or discretion in a particular way.[87]
For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear
legal right to the act demanded; (b) it must be the duty of the defendant to perform the act,
because it is mandated by law; (c) the defendant unlawfully neglects the performance of the
duty enjoined by law; (d) the act to be performed is ministerial, not discretionary; and (e) there
is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law.
Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least
three nominees to the President for every vacancy in the Judiciary:
Section 8. xxx
 (5) The Council shall have the principal function of
recommending appointees to the Judiciary. xxx
Section 9. The Members of the Supreme Court and judges of lower
courts shall be appointed by the President from a list of at least three
nominees prepared by the Judicial and Bar Council for every
vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments
within ninety days from the submission of the list.
However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the
vacancy in the Supreme Court within 90 days from the occurrence of the vacancy, and within 90
days from the submission of the list, in the case of the lower courts. The 90-day period is
directed at the President, not at the JBC. Thus, the JBC should start the process of selecting the
candidates to fill the vacancy in the Supreme Court before the occurrence of the vacancy.
Under the Constitution, it is mandatory for the JBC to submit to the President the list of
nominees to fill a vacancy in the Supreme Court in order to enable the President to appoint one
of them within the 90-day period from the occurrence of the vacancy. The JBC has no discretion
to submit the list to the President after the vacancy occurs, because that shortens the 90-day
period allowed by the Constitution for the President to make the appointment. For the JBC to do
so will be unconscionable on its part, considering that it will
thereby effectively and illegally deprive the President of the ample time granted under the
Constitution to reflect on the qualifications of the nominees named in the list of the JBC before
making the appointment.
IV
Writ of prohibition does not lie against the JBC
In light of the foregoing disquisitions, the conclusion is ineluctable that only the
President can appoint the Chief Justice. Hence, Sorianos petition for prohibition in G.R. No.
191032, which proposes to prevent the JBC from intervening in the process of nominating the
successor of Chief Justice Puno, lacks merit.
On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of
merit. The challenge mounted against the composition of the JBC based on the allegedly
unconstitutional allocation of a vote each to the ex officio members from the Senate and the
House of Representatives, thereby prejudicing the chances of some candidates for nomination
by raising the minimum number of votes required in accordance with the rules of the JBC, is not
based on the petitioners actual interest, because they have not alleged in their petition that they
were nominated to the JBC to fill some vacancies in the Judiciary. Thus, the petitioners
lack locus standi on that issue.
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and
G.R. No. 191149, and the petition for mandamus in G.R. No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342
for lack of merit; and

The duty of the JBC to submit a list of nominees before the start of the Presidents 3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial
mandatory 90-day period to appoint is ministerial, but its selection of the candidates whose and Bar Council:
names will be in the list to be submitted to the President lies within the discretion of the JBC. The
object of the petitions for mandamus herein should only refer to the duty to submit to the (a) To resume its proceedings for the nomination of candidates to fill the
President the list of nominees for every vacancy in the Judiciary, because in order to constitute vacancy to be created by the compulsory retirement of Chief Justice
unlawful neglect of duty, there must be an unjustified delay in performing that Reynato S. Puno by May 17, 2010;
duty.[88] For mandamus to lie against the JBC, therefore, there should be an unexplained delay
on its part in recommending nominees to the Judiciary, that is, in submitting the list to the (b) To prepare the short list of nominees for the position of Chief Justice;
President.
(c) To submit to the incumbent President the short list of nominees for the
The distinction between a ministerial act and a discretionary one has been delineated position of Chief Justice on or before May 17, 2010; and
in the following manner:
(d) To continue its proceedings for the nomination of candidates to fill other
The distinction between a ministerial and discretionary act is well vacancies in the Judiciary and submit to the President the short list of
delineated. A purely ministerial act or duty is one which an officer or nominees corresponding thereto in accordance with this decision.
tribunal performs in a given state of facts, in a prescribed manner, in
obedience to the mandate of a legal authority, without regard to or the SO ORDERED.
exercise of his own judgment upon the propriety or impropriety of the
act done. If the law imposes a duty upon a public officer and gives him
the right to decide how or when the duty shall be performed, such duty
is discretionary and not ministerial. The duty is ministerial only when
the discharge of the same requires neither the exercise of official
discretion or judgment.[89]

Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a writ
of mandamus against the JBC. The actions for that purpose are premature, because it is clear
that the JBC still has until May 17, 2010, at the latest, within which to submit the list of nominees
to the President to fill the vacancy created by the compulsory retirement of Chief Justice Puno.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 79974 December 17, 1987
ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners,
vs.
SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF CUSTOMS,
AND GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE DEPARTMENT OF
BUDGET, respondents, COMMISSION ON APPOINTMENTS, intervenor.
PADILLA, J.:
Once more the Court is called upon to delineate constitutional boundaries. In this petition for
prohibition, the petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the
Philippines and professors of Constitutional Law, seek to enjoin the respondent Salvador Mison
from performing the functions of the Office of Commissioner of the Bureau of Customs and the
respondent Guillermo Carague, as Secretary of the Department of Budget, from effecting
disbursements in payment of Mison's salaries and emoluments, on the ground that Mison's
appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of its not
having been confirmed by the Commission on Appointments. The respondents, on the other
hand, maintain the constitutionality of respondent Mison's appointment without the confirmation
of the Commission on Appointments.
Because of the demands of public interest, including the need for stability in the public service,
the Court resolved to give due course to the petition and decide, setting aside the finer
procedural questions of whether prohibition is the proper remedy to test respondent Mison's right
to the Office of Commissioner of the Bureau of Customs and of whether the petitioners have a
standing to bring this suit.
By the same token, and for the same purpose, the Court allowed the Commission on
Appointments to intervene and file a petition in intervention. Comment was required of
respondents on said petition. The comment was filed, followed by intervenor's reply thereto. The
parties were also heard in oral argument on 8 December 1987.
This case assumes added significance because, at bottom line, it involves a conflict between
two (2) great departments of government, the Executive and Legislative Departments. It also
occurs early in the life of the 1987 Constitution.
The task of the Court is rendered lighter by the existence of relatively clear provisions in the
Constitution. In cases like this, we follow what the Court, speaking through Mr. Justice (later,
Chief Justice) Jose Abad Santos stated in Gold Creek Mining Corp. vs. Rodriguez, 1 that:
The fundamental principle of constitutional construction is to give effect to
the intent of the framers of the organic law and of the people adopting it.
The intention to which force is to be given is that which is embodied and
expressed in the constitutional provisions themselves.
The Court will thus construe the applicable constitutional provisions, not in accordance with how
the executive or the legislative department may want them construed, but in accordance with
what they say and provide.
Section 16, Article VII of the 1987 Constitution says:
The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or officers of the armed
forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all
other officers of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by law to
appoint. The Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the heads of the
departments, agencies, commissions or boards.
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.
It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are
four (4) groups of officers whom the President shall appoint. These four (4) groups, to which we
will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other public
ministers and consuls, officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are vested in him in
this Constitution; 2
Second, all other officers of the Government whose appointments are not
otherwise provided for by law; 3
Third, those whom the President may be authorized by law to appoint;
Fourth, officers lower in rank 4 whose appointments the Congress may by
law vest in the President alone.
The first group of officers is clearly appointed with the consent of the Commission on
Appointments. Appointments of such officers are initiated by nomination and, if the nomination is
confirmed by the Commission on Appointments, the President appoints. 5
The second, third and fourth groups of officers are the present bone of contention. Should they
be appointed by the President with or without the consent (confirmation) of the Commission on
Appointments? By following the accepted rule in constitutional and statutory construction that an
express enumeration of subjects excludes others not enumerated, it would follow that only those
appointments to positions expressly stated in the first group require the consent (confirmation) of
the Commission on Appointments. But we need not rely solely on this basic rule of constitutional
construction. We can refer to historical background as well as to the records of the 1986
Constitutional Commission to determine, with more accuracy, if not precision, the intention of the
framers of the 1987 Constitution and the people adopting it, on whether the appointments by the
President, under the second, third and fourth groups, require the consent (confirmation) of the
Commission on Appointments. Again, in this task, the following advice of Mr. Chief Justice J.
Abad Santos in Gold Creek is apropos:
In deciding this point, it should be borne in mind that a constitutional
provision must be presumed to have been framed and adopted in the light
and understanding of prior and existing laws and with reference to them.
"Courts are bound to presume that the people adopting a constitution are
familiar with the previous and existing laws upon the subjects to which its
provisions relate, and upon which they express their judgment and opinion
in its adoption." (Barry vs. Truax 13 N.D., 131; 99 N.W., 769,65 L. R. A.,
762.) 6
It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that
xxx xxx xxx
(3) The President shall nominate and with the consent of the Commission
on Appointments, shall appoint the heads of the executive departments and
bureaus, officers of the army from the rank of colonel, of the Navy and Air
Forces from the rank of captain or commander, and all other officers of the
Government whose appointments are not herein otherwise provided for, and
those whom he may be authorized by law to appoint; but the Congress may
by law vest the appointment of inferior officers, in the President alone, in the
courts, or in the heads of departments.
(4) The President shall havethe power to make appointments during the
recess of the Congress, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
xxx xxx xxx
(7) ..., and with the consent of the Commission on Appointments, shall
appoint ambassadors, other public ministers and consuls ...
Upon the other hand, the 1973 Constitution provides that-
Section 10. The President shall appoint the heads of bureaus and offices,
the officers of the Armed Forces of the Philippines from the rank of Brigadier
General or Commodore, and all other officers of The government whose
appointments are not herein otherwise provided for, and those whom he
may be authorized by law to appoint. However, the Batasang Pambansa
may by law vest in the Prime Minister, members of the Cabinet, the
Executive Committee, Courts, Heads of Agencies, Commissions, and
Boards the power to appoint inferior officers in their respective offices.
Thus, in the 1935 Constitution, almost all presidential appointments required the consent
(confirmation) of the Commission on Appointments. It is now a sad part of our political history
that the power of confirmation by the Commission on Appointments, under the 1935
Constitution, transformed that commission, many times, into a venue of "horse-trading" and
similar malpractices.
On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it
was molded and remolded by successive amendments, placed the absolute power of
appointment in the President with hardly any check on the part of the legislature.
Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973
Constitution, it is not difficult for the Court to state that the framers of the 1987 Constitution and
the people adopting it, struck a "middle ground" by requiring the consent (confirmation) of the
Commission on Appointments for the first group of appointments and leaving to the President,
without such confirmation, the appointment of other officers, i.e., those in the second and third
groups as well as those in the fourth group, i.e., officers of lower rank.
The proceedings in the 1986 Constitutional Commission support this conclusion. The original
text of Section 16, Article VII, as proposed by the Committee on the Executive of the 1986
Constitutional Commission, read as follows:
Section 16. The president shall nominate and, with the consent of a
Commission on Appointment, shall appoint the heads of the executive
departments and bureaus, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or naval
captain and all other officers of the Government whose appointments are
not otherwise provided for by law, and those whom he may be authorized by
law to appoint. The Congress may by law vest the appointment of inferior
officers in the President alone, in the courts, or in the heads of
departments 7 [Emphasis supplied].
The above text is almost a verbatim copy of its counterpart provision in the 1935 Constitution.
When the frames discussed on the floor of the Commission the proposed text of Section 16,
Article VII, a feeling was manifestly expressed to make the power of the Commission on
Appointments over presidential appointments more limited than that held by the Commission in
the 1935 Constitution. Thus-
Mr. Rama: ... May I ask that Commissioner Monsod be
recognized
The President: We will call Commissioner Davide later.
Mr. Monsod: With the Chair's indulgence, I just want to
take a few minutes of our time to lay the basis for some
of the amendments that I would like to propose to the
Committee this morning.
xxx xxx xxx
On Section 16, I would like to suggest that the power of the Commission on
Appointments be limited to the department heads, ambassadors, generals
and so on but not to the levels of bureau heads and colonels.
xxx xxx xxx 8 (Emphasis supplied.)
In the course of the debates on the text of Section 16, there were two (2) major changes
proposed and approved by the Commission. These were (1) the exclusion of the appointments
of heads of bureaus from the requirement of confirmation by the Commission on Appointments;
and (2) the exclusion of appointments made under the second sentence 9 of the section from the
same requirement. The records of the deliberations of the Constitutional Commission show the
following:
 MR. ROMULO: I ask that Commissioner Foz be
recognized
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, my proposed amendment
Section 16, therefore, would read: 'The President shall nominate, and with
is on page 7, Section 16, line 26 which is to delete the
the consent of a Commission on Appointments, shall appoint the heads of
words "and bureaus," and on line 28 of the same page,
the executive departments, ambassadors. . . .
to change the phrase 'colonel or naval captain to
MAJOR GENERAL OR REAR ADMIRAL. This last
amendment which is co-authored by Commissioner de
Castro is to put a period (.) after the word ADMIRAL,
and on line 29 of the same page, start a new sentence
with: HE SHALL ALSO APPOINT, et cetera.
MR. REGALADO: May we have the amendments one
xxx xxx xxx
by one. The first proposed amendment is to delete the
words "and bureaus" on line 26.
MR. FOZ: That is correct.
MR. REGALADO: For the benefit of the other
Commissioners, what would be the justification of the
proponent for such a deletion?
MR. FOZ: The position of bureau director is actually
quite low in the executive department, and to require
further confirmation of presidential appointment of
heads of bureaus would subject them to political
influence.
MR. REGALADO: The Commissioner's proposed
amendment by deletion also includes regional directors
as distinguished from merely staff directors, because
the regional directors have quite a plenitude of powers
within the regions as distinguished from staff directors
who only stay in the office.
MR. FOZ: Yes, but the regional directors are under the
supervisiopn of the staff bureau directors.
xxx xxx xxx
xxx xxx xxx
MR. MAAMBONG: May I direct a question to
Commissioner Foz? The Commissioner proposed an
amendment to delete 'and bureaus on Section 16. Who
will then appoint the bureau directors if it is not the
President?
MR. FOZ: It is still the President who will appoint them
but their appointment shall no longer be subject to
confirmation by the Commission on Appointments.
MR. MAAMBONG: In other words, it is in line with the
same answer of Commissioner de Castro?
MR. FOZ: Yes.
MR. MAAMBONG: Thank you.
THE PRESIDENT: Is this clear now? What is the
reaction of the Committee?
xxx xxx xxx
MR. REGALADO: Madam President, the Committee
feels that this matter should be submitted to the body
for a vote.
MR. DE CASTRO: Thank you.
MR. REGALADO: We will take the amendments one by
one. We will first vote on the deletion of the phrase 'and
bureaus on line 26, such that appointments of bureau
directors no longer need confirmation by the
Commission on Appointment.
THE PRESIDENT: Is there any objection to delete the
phrase 'and bureaus' on page 7, line 26? (Silence) The
Chair hears none; the amendments is approved.
MR. ROMULO: Madam President.
THE PRESIDENT: The Acting Floor Leader is
recognized.
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, this is the third proposed
amendment on page 7, line 28. 1 propose to put a
period (.) after 'captain' and on line 29, delete 'and all'
and substitute it with HE SHALL ALSO APPOINT ANY.
MR. REGALADO: Madam President, the Committee
accepts the proposed amendment because it makes it
clear that those other officers mentioned therein do not
have to be confirmed by the Commission on
Appointments.
MR. DAVIDE: Madam President.
THE PRESIDENT: Commissioner Davide is
recognized.
MR. DAVIDE: So would the proponent accept an
amendment to his amendment, so that after "captain"
we insert the following words: AND OTHER OFFICERS
WHOSE APPOINTMENTS ARE VESTED IN HIM IN
THIS CONSTITUTION?
FR. BERNAS: It is a little vague.
MR. DAVIDE: In other words, there are positions
provided for in the Constitution whose appointments are
vested in the President, as a matter of fact like those of
the different constitutional commissions.
FR. BERNAS: That is correct. This list of officials found
in Section 16 is not an exclusive list of those
appointments which constitutionally require
confirmation of the Commission on Appointments,
MR. DAVIDE: That is the reason I seek the
incorporation of the words I proposed.
FR. BERNAS: Will Commissioner Davide restate his
proposed amendment?
MR. DAVIDE: After 'captain,' add the following: AND
OTHER OFFICERS WHOSE APPOINTMENTS ARE
VESTED IN HIM IN THIS CONSTITUTION.
 FR. BERNAS: How about:"AND OTHER OFFICERS
WHOSE APPOINTMENTS REQUIRE
CONFIRMATION UNDER THIS CONSTITUTION"?
MR. DAVIDE: Yes, Madam President, that is modified
by the Committee.
FR. BERNAS: That will clarify things.
THE PRESIDENT: Does the Committee accept?
MR. REGALADO: Just for the record, of course, that
excludes those officers which the Constitution does not
require confirmation by the Commission on
Appointments, like the members of the judiciary and the
Ombudsman.
MR. DAVIDE: That is correct. That is very clear from
the modification made by Commissioner Bernas.
THE PRESIDENT: So we have now this proposed
amendment of Commissioners Foz and Davide.
xxx xxx xxx
THE PRESIDENT: Is there any objection to this
proposed amendment of Commissioners Foz and
Davide as accepted by the Committee? (Silence) The
Chair hears none; the amendment, as amended, is
approved 10 (Emphasis supplied).
It is, therefore, clear that appointments to the second and third groups of
officers can be made by the President without the consent (confirmation) of
the Commission on Appointments.
It is contended by amicus curiae, Senator Neptali Gonzales, that the second
sentence of Sec. 16, Article VII reading-
He (the President) shall also appoint all other officers of the Government
whose appointments are not otherwise provided for by law and those whom
he may be authorized by law to appoint . . . . (Emphasis supplied)
with particular reference to the word "also," implies that the President shall "in like manner"
appoint the officers mentioned in said second sentence. In other words, the President shall
appoint the officers mentioned in said second sentence in the same manner as he appoints
officers mentioned in the first sentence, that is, by nomination and with the consent
(confirmation) of the Commission on Appointments.
Amicus curiae's reliance on the word "also" in said second sentence is not necessarily
supportive of the conclusion he arrives at. For, as the Solicitor General argues, the word "also"
could mean "in addition; as well; besides, too" (Webster's International Dictionary, p. 62, 1981
edition) which meanings could, on the contrary, stress that the word "also" in said second
sentence means that the President, in addition to nominating and, with the consent of the
Commission on Appointments, appointing the officers enumerated in the first sentence, can
appoint (without such consent (confirmation) the officers mentioned in the second sentence-
Rather than limit the area of consideration to the possible meanings of the word "also" as used
in the context of said second sentence, the Court has chosen to derive significance from the fact
that the first sentence speaks of nomination by the President and appointment by the President
with the consent of the Commission on Appointments, whereas, the second sentence speaks
only of appointment by the President. And, this use of different language in two (2) sentences
proximate to each other underscores a difference in message conveyed and perceptions
established, in line with Judge Learned Hand's observation that "words are not pebbles in alien
juxtaposition" but, more so, because the recorded proceedings of the 1986 Constitutional
Commission clearly and expressly justify such differences.
As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there are
officers whose appointments require no confirmation of the Commission on Appointments, even
if such officers may be higher in rank, compared to some officers whose appointments have to
be confirmed by the Commission on Appointments under the first sentence of the same Sec. 16,
Art. VII. Thus, to illustrate, the appointment of the Central Bank Governor requires no
confirmation by the Commission on Appointments, even if he is higher in rank than a colonel in
the Armed Forces of the Philippines or a consul in the Consular Service.
But these contrasts, while initially impressive, merely underscore the purposive intention and
deliberate judgment of the framers of the 1987 Constitution that, except as to those officers
whose appointments require the consent of the Commission on Appointments by express
mandate of the first sentence in Sec. 16, Art. VII, appointments of other officers are left to the
President without need of confirmation by the Commission on Appointments. This conclusion is
inevitable, if we are to presume, as we must, that the framers of the 1987 Constitution were
knowledgeable of what they were doing and of the foreseable effects thereof.
Besides, the power to appoint is fundamentally executive or presidential in character. Limitations
on or qualifications of such power should be strictly construed against them. Such limitations or
qualifications must be clearly stated in order to be recognized. But, it is only in the first sentence
of Sec. 16, Art. VII where it is clearly stated that appointments by the President to the positions
therein enumerated require the consent of the Commission on Appointments.
As to the fourth group of officers whom the President can appoint, the intervenor Commission on
Appointments underscores the third sentence in Sec. 16, Article VII of the 1987 Constitution,
which reads:
The Congress may, by law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the heads of departments,
agencies, commissions, or boards. [Emphasis supplied].
and argues that, since a law is needed to vest the appointment of lower-ranked officers in the
President alone, this implies that, in the absence of such a law, lower-ranked officers have to be
appointed by the President subject to confirmation by the Commission on Appointments; and, if
this is so, as to lower-ranked officers, it follows that higher-ranked officers should be appointed
by the President, subject also to confirmation by the Commission on Appointments.
The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII,
abovequoted, merely declares that, as to lower-ranked officers, the Congress may by law vest
their appointment in the President, in the courts, or in the heads of the various departments,
agencies, commissions, or boards in the government. No reason however is submitted for the
use of the word "alone" in said third sentence.
The Court is not impressed by both arguments. It is of the considered opinion, after a careful
study of the deliberations of the 1986 Constitutional Commission, that the use of the word alone"
after the word "President" in said third sentence of Sec. 16, Article VII is, more than anything
else, a slip or lapsus in draftmanship. It will be recalled that, in the 1935 Constitution, the
following provision appears at the end of par. 3, section 1 0, Article VII thereof
 ...; but the Congress may by law vest the appointment of inferior officers, in
the President alone, in the courts, or in the heads of departments.
[Emphasis supplied].
The above provision in the 1935 Constitution appears immediately after the provision which
makes practically all presidential appointments subject to confirmation by the Commission on
Appointments, thus-
601. Chief Officials of the Bureau.-The Bureau of Customs shall have one
chief and one assistant chief, to be known respectively as the
Commissioner (hereinafter known as the 'Commissioner') and Assistant
Commissioner of Customs, who shall each receive an annual compensation
in accordance with the rates prescribed by existing laws. The Assistant
Commissioner of Customs shall be appointed by the proper department
head.

Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential Decree
3. The President shall nominate and with the consent of the Commission on
No. 34, amending the Tariff and Customs Code of the Philippines. Sec. 601, as thus amended,
Appointments, shall appoint the heads of the executive departments and
now reads as follows:
bureaus, officers of the Army from the rank of colonel, of the Navy and Air
Forces from the rank of captain or commander, and all other officers of the
Government whose appointments are not herein provided for, and those Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs
whom he may be authorized by law to appoint; ... shall have one chief and one assistant chief, to be known respectively as
the Commissioner (hereinafter known as Commissioner) and Deputy
Commissioner of Customs, who shall each receive an annual compensation
In other words, since the 1935 Constitution subjects, as a general rule, presidential
in accordance with the rates prescribed by existing law. The Commissioner
appointments to confirmation by the Commission on Appointments, the same 1935 Constitution
and the Deputy Commissioner of Customs shall be appointed by the
saw fit, by way of an exception to such rule, to provide that Congress may, however, by law vest
President of the Philippines (Emphasis supplied.)
the appointment of inferior officers (equivalent to 11 officers lower in rank" referred to in the 1987
Constitution) in the President alone, in the courts, or in the heads of departments,
Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the effectivity of
the 1935 Constitution, under which the President may nominate and, with the consent of the
In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its
Commission on Appointments, appoint the heads of bureaus, like the Commissioner of the
framers was to exclude presidential appointments from confirmation by the Commission on
Bureau of Customs.
Appointments, except appointments to offices expressly mentioned in the first sentence of Sec.
16, Article VII. Consequently, there was no reason to use in the third sentence of Sec. 16, Article
VII the word "alone" after the word "President" in providing that Congress may by law vest the After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34 have to
appointment of lower-ranked officers in the President alone, or in the courts, or in the heads of be read in harmony with Sec. 16, Art. VII, with the result that, while the appointment of the
departments, because the power to appoint officers whom he (the President) may be authorized Commissioner of the Bureau of Customs is one that devolves on the President, as an
by law to appoint is already vested in the President, without need of confirmation by the appointment he is authorizedby law to make, such appointment, however, no longer needs the
Commission on Appointments, in the second sentence of the same Sec. 16, Article VII. confirmation of the Commission on Appointments.

Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case of
lower-ranked officers, the Congress may by law vest their appointment in the President, in the
courts, or in the heads of various departments of the government. In short, the word "alone" in
the third sentence of Sec. 16, Article VII of the 1987 Constitution, as a literal import from the last
part of par. 3, section 10, Article VII of the 1935 Constitution, appears to be redundant in the light
of the second sentence of Sec. 16, Article VII. And, this redundancy cannot prevail over the clear
and positive intent of the framers of the 1987 Constitution that presidential appointments, except
those mentioned in the first sentence of Sec. 16, Article VII, are not subject to confirmation by
the Commission on Appointments.
Consequently, we rule that the President of the Philippines acted within her constitutional
authority and power in appointing respondent Salvador Mison, Commissioner of the Bureau of
Customs, without submitting his nomination to the Commission on Appointments for
confirmation. He is thus entitled to exercise the full authority and functions of the office and to
receive all the salaries and emoluments pertaining thereto.
WHEREFORE, the petition and petition in intervention should be, as they are, hereby
DISMISSED. Without costs.

SO ORDERED.
Coming now to the immediate question before the Court, it is evident that the position of
Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first
group of appointments where the consent of the Commission on Appointments is required. As a
matter of fact, as already pointed out, while the 1935 Constitution includes "heads of bureaus"
among those officers whose appointments need the consent of the Commission on
Appointments, the 1987 Constitution on the other hand, deliberately excluded the position of
"heads of bureaus" from appointments that need the consent (confirmation) of the Commission
on Appointments.

Moreover, the President is expressly authorized by law to appoint the Commissioner of the
Bureau of Customs. The original text of Sec. 601 of Republic Act No. 1937, otherwise known as
the Tariff and Customs Code of the Philippines, which was enacted by the Congress of the
Philippines on 22 June 1957, reads as follows:
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 91636 April 23, 1992
PETER JOHN D. CALDERON, petitioner,
vs.
BARTOLOME CARALE, in his capacity as Chairman of the National Labor Relations
Commission, EDNA BONTO PEREZ, LOURDES C. JAVIER, ERNESTO G. LADRIDO III,
MUSIB M. BUAT, DOMINGO H. ZAPANTA, VICENTE S.E. VELOSO III, IRENEO B.
BERNARDO, IRENEA E. CENIZA, LEON G. GONZAGA, JR., ROMEO B. PUTONG,
ROGELIO I. RAYALA, RUSTICO L. DIOKNO, BERNABE S. BATUHAN and OSCAR N.
ABELLA, in their capacity as Commissioners of the National Labor Relations
Commission, and GUILLERMO CARAGUE, in his capacity as Secretary of Budget and
Management, respondents.
PADILLA, J.:
Controversy is focused anew on Sec. 16, Art. VII of the 1987 Constitution which provides:
Sec. 16. The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or officers
of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution. He shall
also appoint all other officers of the Government whose appointments are
not otherwise provided for by law, and those whom he may be authorized by
law to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
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. 1
The power of the Commission on Appointments (CA for brevity) to confirm appointments,
contained in the aforequoted paragraph 1 of Sec. 16, Art. VII, was first construed in Sarmiento III
vs. Mison 2 as follows:
. . . it is evident that the position of Commissioner of the Bureau of Customs
(a bureau head) is not one of those within the first group of appointments
where the consent of the Commission on Appointments is required. As a
matter of fact, as already pointed out, while the 1935 Constitution includes
"heads of bureaus" among those officers whose appointments need the
consent of the Commission on Appointments, the 1987 Constitution, on the
other hand, deliberately excluded the position of "heads of bureaus" from
appointments that need the consent (confirmation) of the Commission on
Appointments.
. . . Consequently, we rule that the President of the Philippines acted within
her constitutional authority and power in appointing respondent Salvador
Mison, Commissioner of the Bureau of Customs, without submitting his
nomination to the Commission on Appointments for confirmation. . . .
. . . In the 1987 Constitution, however, as already pointed out, the clear and
expressed intent of its framers was to exclude presidential appointments
from confirmation by the Commission on Appointments, except
appointments to offices expressly mentioned in the first sentence of Sec. 16,
Art.VII. Consequently, there was no reason to use in the third sentence of
Sec. 16, Article VII the word "alone" after the word "President" in providing
that Congress may by law vest the appointment of lower-ranked officers in
the President alone, or in the courts, or in the heads of departments,
because the power to appoint officers whom he (the president) may be
authorized by law to appoint is already vested in the President, without need
of confirmation by the Commission on Appointments, in the second
sentence of the same Sec. 16, Article VII." (emphasis supplied)
Next came Mary Concepcion Bautista v. Salonga, 3 this time involving the appointment of the
Chairman of the Commission on Human Rights. Adhering to the doctrine in Mison, the Court
explained:
. . . Since the position of Chairman of the Commission on Human Rights is
not among the positions mentioned in the first sentence of Sec. 16, Art. VII
of the 1987 Constitution, appointments to which are to be made with the
confirmation of the Commission on Appointments, it follows that the
appointment by the President of the Chairman of the CHR is to be made
without the review or participation of the Commission on Appointments. To
be more precise, the appointment of the Chairman and Members of the
Commission on Human Rights is not specifically provided for in the
Constitution itself, unlike the Chairmen and Members of the Civil Service
Commission, the Commission on Elections and the Commission on Audit,
whose appointments are expressly vested by the Constitution in the
president with the consent of the Commission on Appointments. The
president appoints the Chairman and Members of The Commission on
Human Rights pursuant to the second sentence in Section 16, Art. VII, that
is, without the confirmation of the Commission on Appointments because
they are among the officers of government "whom he (the President) may
be authorized by law to appoint." And Section 2(c), Executive Order No.
163, 5 May 1987, authorizes the President to appoint the Chairman and
Members of the Commission on Human Rights.
Consistent with its rulings in Mison and Bautista, in Teresita Quintos Deles, et al. v. The
Commission on Constitutional Commissions, et al.,4 the power of confirmation of the
Commission on Appointments over appointments by the President of sectoral representatives in
Congress was upheld because:
. . . Since the seats reserved for sectoral representatives in paragraph 2,
Section 5, Art. VI may be filled by appointment by the President by express
provision of Section 7, Art. XVIII of the Constitution, it is indubitable that
sectoral representatives to the House of Representatives are among the
"other officers whose appointments are vested in the President in this
 Constitution," referred to in the first sentence of Section 16, Art. VII whose
appointments are subject to confirmation by the Commission on
Appointments.
From the three (3) cases above-mentioned, these doctrines are deducible:
1. Confirmation by the Commission on Appointments is required only for presidential appointees
mentioned in the first sentence of Section 16, Article VII, including, those officers whose
appointments are expressly vested by the Constitution itself in the president (like sectoral
representatives to Congress and members of the constitutional commissions of Audit, Civil
Service and Election).
2. Confirmation is not required when the President appoints other government officers whose
appointments are not otherwise provided for by law or those officers whom he may be
authorized by law to appoint (like the Chairman and Members of the Commission on Human
Rights). Also, as observed in Mison, when Congress creates inferior offices but omits to provide
for appointment thereto, or provides in an unconstitutional manner for such appointments, the
officers are considered as among those whose appointments are not otherwise provided for by
law.
Sometime in March 1989, RA 6715 (Herrera-Veloso Law), amending the Labor Code (PD 442)
was approved. It provides in Section 13 thereof as follows:
xxx xxx xxx
The Chairman, the Division Presiding Commissioners and other
Commissioners shall all be appointed by the President, subject to
confirmation by the Commission on Appointments. Appointments to any
vacancy shall come from the nominees of the sector which nominated the
predecessor. The Executive Labor Arbiters and Labor Arbiters shall also be
appointed by the President, upon recommendation of the Secretary of Labor
and Employment, and shall be subject to the Civil Service Law, rules and
regulations. 5
Pursuant to said law (RA 6715), President Aquino appointed the Chairman and Commissioners
of the NLRC representing the public, workers and employers sectors. The appointments stated
that the appointees may qualify and enter upon the performance of the duties of the office. After
said appointments, then Labor Secretary Franklin Drilon issued Administrative Order No. 161,
series of 1989, designating the places of assignment of the newly appointed commissioners.
This petition for prohibition questions the constitutionality and legality of the permanent
appointments extended by the President of the Philippines to the respondents Chairman and
Members of the National Labor Relations Commission (NLRC), without submitting the same to
the Commission on Appointments for confirmation pursuant to Art. 215 of the Labor Code as
amended by said RA 6715.
Petitioner insists on a mandatory compliance with RA 6715 which has in its favor the
presumption of validity. RA 6715 is not, according to petitioner, an encroachment on the
appointing power of the executive contained in Section 16, Art. VII, of the Constitution, as
Congress may, by law, require confirmation by the Commission on Appointments of other
officers appointed by the President additional to those mentioned in the first sentence of Section
16 of Article VII of the Constitution. Petitioner claims that the Mison and Bautista rulings are not
decisive of the issue in this case for in the case at bar, the President issued permanent
appointments to the respondents without submitting them to the CA for confirmation despite
passage of a law (RA 6715) which requires the confirmation by the Commission on
Appointments of such appointments.
The Solicitor General, on the other hand, contends that RA 6715 which amended the Labor
Code transgressesSection 16, Article VII by expanding the confirmation powers of the
Commission on Appointments without constitutional basis. Mison and Bautista laid the issue to
rest, says the Solicitor General, with the following exposition:
As interpreted by this Honorable Court in the Mison case, confirmation by
the Commission on Appointments is required exclusively for the heads of
executive departments, ambassadors, public ministers, 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,
such as the members of the various Constitutional Commissions. With
respect to the other officers whose appointments are not otherwise provided
for by the law and to those whom the President may be authorized by law to
appoint, no confirmation by the Commission on Appointments is required.
Had it been the intention to allow Congress to expand the list of officers
whose appointments must be confirmed by the Commission on
Appointments, the Constitution would have said so by adding the phrase
"and other officers required by law" at the end of the first sentence, or the
phrase, "with the consent of the Commission on Appointments" at the end of
the second sentence. Evidently, our Constitution has significantly omitted to
provide for such additions.
The original text of Section 16 of Article VII of the present Constitution as
embodied in Resolution No. 517 of the Constitutional Commission reads as
follows:
"The President shall nominate and, with the consent of
the Commission on Appointments, shall appoint the
heads of the executive departments and bureaus,
ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of captain or
commander, and all other officers of the Government
whose appointments are not herein otherwise provided
for by law, and those whom he may be authorized by
law to appoint. The Congress may by law vest the
appointment of inferior officers in the President alone, in
the courts or in the heads of the department."
Three points should be noted regarding sub-section 3 of Section 10 of
Article VII of the 1935 Constitution and in the original text of Section 16 of
Article VII of the present Constitution as proposed in Resolution No. 517.
First, in both of them, the appointments of heads of bureaus were required
to be confirmed by the Commission on Appointments.
Second, in both of them, the appointments of other officers, "whose
appointments are not otherwise provided for by law to appoint" are
expressly made subject to confirmation by the Commission on
Appointments. However, in the final version of Resolution No. 517, as
embodied in Section 16 of Article VII of the present Constitution, the
 appointment of the above mentioned officers (heads of bureaus; other
officers whose appointments are not provided for by law; and those whom
he may be authorized by law to appoint) are excluded from the list of those
officers whose appointments are to be confirmed by the Commission on
Appointments. This amendment, reflected in Section 16 of Article VII of the
Constitution, clearly shows the intent of the framers to exclude such
appointments from the requirement of confirmation by the Commission on
Appointments.
Third, under the 1935 Constitution the word "nominate" qualifies the entire
Subsection 3 of Section 10 of Article VII thereof.
Respondent reiterates that if confirmation is required, the three (3) stage
process of nomination, confirmation and appointment operates. This is only
true of the first group enumerated in Section 16, but the word nominate
does not any more appear in the 2nd and 3rd sentences. Therefore, the
president's appointment pursuant to the 2nd and 3rd sentences needs no
confirmation. 6
The only issue to be resolved by the Court in the present case is whether or not Congress
may, by law, require confirmation by the Commission on Appointments of appointments
extended by the president to government officers additional to those expressly mentioned in the
first sentence of Sec. 16, Art. VII of the Constitution whose appointments require confirmation by
the Commission on Appointments.
To resolve the issue, we go back to Mison where the Court stated:
. . . there are four (4) groups of officers whom the President shall appoint.
These four (4) groups, to which we will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other public ministers and consuls,
officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution;
Second, all other officers of the Government whose appointments are not otherwise provided for
by law;
Third, those whom the president may be authorized by law to appoint;
Fourth, officers lower in rank whose appointments the Congress may by law vest in the
President alone. 7
Mison also opined:
In the course of the debates on the text of Section 16, there were two (2)
major changes proposed and approved by the Commission. These were (1)
the exclusion of the appointments of heads of bureaus from the requirement
of confirmation by the Commission on Appointments; and (2) the exclusion
of appointments made under the second sentence of the section from the
same requirement. . . .
The second sentence of Sec. 16, Art. VII refers to all other officers of the government whose
appointments are not otherwise provided for by law and those whom the President may be
authorized by law to appoint.
Indubitably, the NLRC Chairman and Commissioners fall within the second sentence of Section
16, Article VII of the Constitution, more specifically under the "third groups" of appointees
referred to in Mison, i.e. those whom the President may be authorized by law to appoint.
Undeniably, the Chairman and Members of the NLRC are not among the officers mentioned in
the first sentence of Section 16, Article VII whose appointments requires confirmation by the
Commission on Appointments. To the extent that RA 6715 requires confirmation by the
Commission on Appointments of the appointments of respondents Chairman and Members of
the National Labor Relations Commission, it is unconstitutional because:
1) it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding
thereto appointments requiring confirmation by the Commission on Appointments; and
2) it amends by legislation the second sentence of Sec. 16, Art. VII of the Constitution, by
imposing the confirmation of the Commission on Appointments on appointments which are
otherwise entrusted only with the President.
Deciding on what laws to pass is a legislative prerogative. Determining their constitutionality is a
judicial function. The Court respects the laudable intention of the legislature. Regretfully,
however, the constitutional infirmity of Sec. 13 of RA 6715 amending Art. 215 of the Labor Code,
insofar as it requires confirmation of the Commission on Appointments over appointments of the
Chairman and Member of the National Labor Relations Commission (NLRC) is, as we see it,
beyond redemption if we are to render fealty to the mandate of the Constitution in Sec. 16, Art.
VII thereof.
Supreme Court decisions applying or interpreting the Constitution shall form part of the legal
system of the Philippines.8 No doctrine or principle of law laid down by the Court in a decision
rendered en banc or in division may be modified or reversed except by the Court sitting en
banc.9
. . . The interpretation upon a law by this Court constitutes, in a way, a part
of the law as of the date that law was originally passed, since this Court's
construction merely establishes the contemporaneous legislative intent that
the law thus construed intends to effectuate. The settled rule supported by
numerous authorities is a restatement of the legal maxim "legis interpretado
legis vim obtinent" the interpretation placed upon the written law by a
competent court has the force of law. 10
The rulings in Mison, Bautista and Quintos-Deles have interpreted Art. VII, Sec. 16 consistently
in one manner. Can legislation expand a constitutional provision after the Supreme Court has
interpreted it?
In Endencia and Jugo vs. David, 11 the Court held:
By legislative fiat as enunciated in Section 13, Republic Act No. 590,
Congress says that taxing the salary of a judicial officer is not a decrease of
compensation. This is a clear example of interpretation or ascertainment of
the meaning of the phrase "which shall not be diminished during their
continuance in office," found in Section 9, Article VIII of the Constitution,
referring to the salaries of judicial officers.
 xxx xxx xxx Forces from the rank of captain or commander, and all other officers of the
Government whose appointments are not herein otherwise provided for, and
those whom he may be authorized by law to appoint; . . .
The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or act
declaratory of what the law was before its passage, so as to give it any binding weight with the
courts. A legislative definition of a word as used in a statute is not conclusive of its meaning as The deliberate limitation on the power of confirmation of the Commission on Appointments over
used elsewhere; otherwise, the legislature would be usurping a judicial function in defining a presidential appointments, embodied in Sec. 16, Art. VII of the 1987 Constitution, has
term. (11 Am. Jur., 914, emphasis supplied). undoubtedly evoked the displeasure and disapproval of members of Congress. The solution to
the apparent problem, if indeed a problem, is not judicial or legislative but constitutional. A future
constitutional convention or Congress sitting as a constituent (constitutional) assembly may then
The legislature cannot, upon passing law which violates a constitutional provision, validate it so
consider either a return to the 1935 Constitutional provisions or the adoption of a hybrid system
as to prevent an attack thereon in the courts, by a declaration that it shall be so construed as not
between the 1935 and 1987 constitutional provisions. Until then, it is the duty of the Court to
to violate the constitutional inhibition. (11 Am., Jur., 919, emphasis supplied).
apply the 1987 Constitution in accordance with what it says and not in accordance with how the
legislature or the executive would want it interpreted.
We have already said that the Legislature under our form of government is
assigned the task and the power to make and enact laws, but not to
WHEREFORE, the petition is DISMISSED. Art. 215 of the Labor Code as amended by RA 6715
interpret them. This is more true with regard to the interpretation of the basic
insofar as it requires the confirmation of the Commission on Appointments of appointments of
law, the Constitution, which is not within the sphere of the Legislative
the Chairman and Members of the National Labor Relations Commission (NLRC) is hereby
department. If the Legislature may declare what a law means, or what a
declared unconstitutional and of no legal force and effect.
specific portion of the Constitution means, especially after the courts have in
actual case ascertained its meaning by interpretation and applied it in a
decision, this would surely cause confusion and instability in judicial SO ORDERED.
processes and court decisions. Under such a system, a final court
determination of a case based on a judicial interpretation of the law or of the
Constitution may be undermined or even annulled by a subsequent and
different interpretation of the law or of the Constitution by the Legislative
department that would be neither wise nor desirable, being clearly violative
of the fundamental principles of our constitutional system of government,
particularly those governing the separation of powers. 14(Emphasis
supplied)

Congress, of course, must interpret the Constitution, must estimate the scope of its constitutional
powers when it sets out to enact legislation and it must take into account the relevant
constitutional prohibitions. 15

. . . The Constitution did not change with public opinion.

It is not only the same words, but the same in meaning . . . and as long as it
it speaks not only in the same words, but with the same meaning and intent
with which it spoke when it came from the hands of its framers, and was
voted and adopted by the people . . . 16

The function of the Court in passing upon an act of Congress is to "lay the article of the
Constitution which is invoked beside the statute which is challenged and to decide whether the
latter squares with the former" and to "announce its considered judgment upon the question." 17

It can not be overlooked that Sec. 16, Art. VII of the 1987 Constitution was deliberately, not
unconsciously, intended by the framers of the 1987 Constitution to be a departure from the
system embodied in the 1935 Constitution where the Commission on Appointments exercised
the power of confirmation over almost all presidential appointments, leading to many cases of
abuse of such power of confirmation. Subsection 3, Section 10, Art. VII of the 1935 Constitution
provided:

3. The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and
bureaus, officers of the Army from the rank of colonel, of the Navy and Air
 Republic of the Philippines of the armed forces from the rank of colonel or naval captain, and other
SUPREME COURT officers whose appointments are vested in him in this Constitution. He shall
Manila also appoint all other officers of the Government whose appointments are
EN BANC not otherwise provided for by law, and those whom he may be authorized by
G.R. No. 111243 May 25, 1994 law to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads of
department, agencies, commissions, or boards . . . (Emphasis supplied).
JESUS ARMANDO A.R. TARROSA, petitioner,
vs.
GABRIEL C. SINGSON and HON. SALVADOR M. ENRIQUEZ III, respondents Respondents also aver that the Bangko Sentral has its own budget and accordingly, its
budgetary requirements are not subject to the provisions of the General Appropriations Act.
Marlon B. Llaunder for petitioner.
We dismiss the petition.
QUIASON, J.:
II
The instant petition is in the nature of a quo warranto proceeding as it seeks the ouster of
This is a petition for prohibition filed by petitioner as a "taxpayer," questioning the appointment of
respondent Singson and alleges that the latter is unlawfully holding or exercising the powers of
respondent Gabriel Singson as Governor of the Bangko Sentral Ng Pilipinas for not having been
Governor of the Bangko Sentral (Cf. Castro v. Del Rosario, 19 SCRA 196 [1967]). Such a
confirmed by the Commission on Appointments. The petition seeks to enjoin respondent
special civil action can only be commenced by the Solicitor General or by a "person claiming to
Singson from the performance of his functions as such official until his appointment is confirmed
be entitled to a public office or position unlawfully held or exercised by another" (Revised Rules
by the Commission on Appointments and respondent Salvador M. Enriquez, Secretary of Budget
of Court, Rule 66, Sec. 6; Acosta v. Flor, 5 Phil. 18 [1905]).
and Management, from disbursing public funds in payment of the salaries and emoluments of
respondent Singson.
In Sevilla v. Court of Appeals, 209 SCRA 637 (1992), we held that the petitioner therein, who did
not aver that he was entitled to the office of the City Engineer of Cabanatuan City, could not
I
bring the action for quo warranto to oust the respondent from said office as a mere usurper.
Respondent Singson was appointed Governor of the Bangko Sentral by President Fidel V.
Ramos on July 2, 1993, effective on July 6, 1993 (Rollo, p. 10).
Likewise in Greene v. Knox, 175 N.Y. 432 (1903), 67 N.E. 910, it was held that the question of
title to an office, which must be resolved in a quo warranto proceeding, may not be determined
Petitioner argues that respondent Singson's appointment is null and void since it was not
in a suit to restrain the payment of salary to the person holding such office, brought by someone
submitted for confirmation to the Commission on Appointments. The petition is anchored on the
who does not claim to be the one entitled to occupy the said office.
provisions of Section 6 of R.A. No. 7653, which established the Bangko Sentral as the Central
Monetary Authority of the Philippines. Section 6, Article II of R.A. No. 7653 provides:
It is obvious that the instant action was improvidently brought by petitioner. To uphold the action
would encourage every disgruntled citizen to resort to the courts, thereby causing incalculable
Sec. 6. Composition of the Monetary Board. The powers and functions of
mischief and hindrance to the efficient operation of the governmental machinery (See Roosevelt
the Bangko Sentral shall be exercised by the Bangko Sentral Monetary
v. Draper, 7 Abb. Pr. 108, 23 N.Y. 218).
Board, hereafter referred to as the Monetary Board, composed of seven (7)
members appointed by the President of the Philippines for a term of six (6)
years. Its capstone having been removed, the whole case of petitioner collapses. Hence, there is no
The seven (7) members are: need to resolve the question of whether the disbursement of public funds to pay the salaries and
(a) The Governor of the Bangko Sentral, who shall be the Chairman of the emoluments of respondent Singson can be enjoined. Likewise, the Court refrains from passing
Monetary Board. The Governor of the Bangko Sentral shall be head of a upon the constitutionality of Section 6, R.A. No. 7653 in deference to the principle that bars a
department and his appointment shall be subject to confirmation by the judicial inquiry into a constitutional question unless the resolution thereof is indispensable for the
Commission on Appointments. Whenever the Governor is unable to attend determination of the case (Fernandez v. Torres, 215 SCRA 489 [1992]).
a meeting of the Board, he shall designate a Deputy Governor to act as his
alternate: Provided, That in such event, the Monetary Board shall designate
However for the information of all concerned, we call attention to our decision in Calderon v.
one of its members as acting Chairman . . . (Emphasis supplied).
Carale, 208 SCRA 254 (1992), with Justice Isagani A. Cruz dissenting, where we ruled that
Congress cannot by law expand the confirmation powers of the Commission on Appointments
In their comment, respondents claim that Congress exceeded its legislative powers in requiring and require confirmation of appointment of other government officials not expressly mentioned in
the confirmation by the Commission on Appointments of the appointment of the Governor of the the first sentence of Section 16 of Article VII of the Constitution.
Bangko Sentral. They contend that an appointment to the said position is not among the
appointments which have to be confirmed by the Commission on Appointments, citing Section
WHEREFORE, the petition is DENIED. No pronouncement as to costs.
16 of Article VII of the Constitution which provides that:

SO ORDERED.
Sec. 16. The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or officers
 G.R. No. 153881 March 24, 2003
ELPIDIO G. SORIANO III, petitioner,
vs.
REUBEN S. LISTA, DOMINGO T. ESTERA, ELPIDIO B. PADAMA, MIGUEL C. TABARES,
ARTHUR N. GOSINGAN, EFREN L. TADURAN, CESAR A. SARILE, DANILO M. VILDA and
HONORABLE EMILIA T. BONCODIN, in her capacity as Secretary of Budget and
Management, respondents.
CORONA, J.:
Before us is a Petition for Prohibition under Rule 65 of the Rules of Court questioning the
constitutionality and legality of the permanent appointments, made by President Gloria
Macapagal-Arroyo, of public respondents to different positions in the Philippine Coast Guard and
their subsequent assumption of office without confirmation by the Commission on Appointments
under the 1987 Constitution.
The petition impleads Hon. Emilia T. Boncodin in her capacity as Secretary of the Department of
Budget and Management (DBM). Petitioner, Elpidio G. Soriano, filed the instant petition as
member of the Integrated Bar of the Philippines and as a taxpayer.
Public respondents were promoted to different ranks in the Philippine Coast Guard (PCG) on
different dates as follows:
Reuben S. Lista Vice Admiral, Philippine Coast Guard
Domingo T. Estera Rear Admiral, Philippine Coast Guard
Miguel C. Tabares Commodore, Philippine Coast Guard
Arthur N. Gosingan Commodore, Philippine Coast Guard
Efren L. Taduran Naval Captain, Philippine Coast Guard
Cesar A. Sarile Naval Captain, Philippine Coast Guard
Danilo M. Vilda Naval Captain, Philippine Coast Guard
Elpidio B. Padama Commodore, Philippine Coast Guard
Petitioner bewails the fact that despite the non-submission of their names to the Commission on
Appointments (CA) for confirmation, all of the said respondent officers of the PCG had assumed
their duties and functions. According to petitioner, their respective appointments are illegal and
unconstitutional for failure to undergo the confirmation process in the CA. Thus, they should be
prohibited from discharging their duties and functions as such officers of the PCG.
In the same vein, petitioner opines that there is no legal basis for the DBM to allow the
disbursement of the salaries and emoluments of respondent officers of the PCG. Accordingly, he
prays that respondent Secretary Boncodin be ordered to desist from allowing such
disbursements until the confirmation of their respective appointments by the CA.
At the outset, the Court finds petitioner to be without any legal personality to file the instant
petition. We have ruled that a private citizen is allowed to raise constitutional questions only if he
can show that he has personally suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government, the injury is fairly traceable to the challenged action
and the injury is likely to be redressed by a favorable action. 1 In the case at bar, petitioner has
failed to clearly demonstrate that he has personally suffered actual or threatened injury. It should
be emphasized that a party bringing a suit challenging the constitutionality of an act or statute
must show "not only that the law or act is invalid, but also that he has sustained or is in
immediate, or imminent danger of sustaining some direct injury as a result of its enforcement
and not merely that he suffers thereby in some indefinite way."2
The instant petition cannot even be classified as a taxpayers suit because petitioner has no
interest as such and this case does not involve the exercise by Congress of its taxing power.
Assuming arguendo that petitioner has the legal personality to question the subject
appointments, the petition will nevertheless fail. As aptly pointed out by the Solicitor General, the
PCG used to be administered and maintained as a separate unit of the Philippine Navy under
Section 4 of RA 5173. It was subsequently placed under the direct supervision and control of the
Secretary of the Department of National Defense (DND) pursuant to Section 4 of PD 601.
Eventually, it was integrated into the Armed Forces of the Philippines (AFP) as a major
subordinate unit of the Philippine Navy under Section 54 of Chapter 8, Sub-title II, Title VIII,
Book IV of EO 292, as amended.
However, on March 30, 1998, after the aforesaid changes in the charter of the PCG, then
President Fidel V. Ramos, in the exercise of his statutory authority to reorganize the Office of the
President, issued EO 475 transferring the PCG from the DND to the Office of the President. He
later on again transferred the PCG from the Office of the President to the Department of
Transportation and Communications (DOTC).
Now that the PCG is under the DOTC and no longer part of the Philippine Navy or the Armed
Forces of the Philippines, the promotions and appointments of respondent officers of the PCG,
or any PCG officer from the rank of captain and higher for that matter, do not require
confirmation by the CA.
Section 16, Article VII of the 1987 Constitution provides:
Section 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of
other officers lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
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.
It is clear from the foregoing provision of the Constitution that only appointed officers from the
rank of colonel or naval captain in the armed forces require confirmation by the CA. The rule is
that the plain, clear and unambiguous language of the Constitution should be construed as such
and should not be given a construction that changes its meaning.3
The enumeration of appointments subject to confirmation by the CA under Section 16, Article VII
of the 1987 Constitution is exclusive. The clause "officers of the armed forces from the rank of
colonel or naval captain" refers to military officers alone. This is clear from the deliberations of
the Constitutional Commission on the proposed text of said Section 16, Article VII of the
Constitution. Since the promotions and appointments of respondent officers are not covered by
the above-cited provision of the Constitution, the same need not be confirmed by the CA. 4
Accordingly, the Court declares that no grave abuse of discretion amounting to lack or excess of
jurisdiction was committed by respondent officers of the PCG. Their assumption to office as well
as the disbursement of their respective salaries and other emoluments by the respondent
Secretary of the DBM are hereby declared valid and legal.
WHEREFORE, the petition is hereby DISMISSED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 86439 April 13, 1989
MARY CONCEPCION BAUTISTA, petitioner,
vs.
SENATOR JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS COMMITTEE ON
JUSTICE, JUDICIAL AND BAR COUNCIL AND HUMAN RIGHTS AND HESIQUIO R.
MALLILLIN, respondents.
PADILLA, J.:
The Court had hoped that its decision in Sarmiento III vs. Mison, 1 would have settled the
question of which appointments by the President, under the 1987 Constitution, are to be made
with and without the review of the Commission on Appointments. The Mison case was the first
major case under the 1987 Constitution and in construing Sec. 16, Art. VII of the 1987
Constitution which provides:
The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or officers of the armed
forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all
other officers of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by law to
appoint. The Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the heads of the
departments, agencies, commissions or boards.
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.
this Court, drawing extensively from the proceedings of the 1986 Constitutional Commission and
the country's experience under the 1935 and 1973 Constitutions, held that only those
appointments expressly mentioned in the first sentence of Sec. 16, Art. VII are to be reviewed by
the Commission on Appointments, namely, "the heads of the executive department,
ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of
colonel or naval captain, and other officers whose appointments are vested in him in this
Constitution." All other appointments by the President are to be made without the participation of
the Commission on Appointments. Accordingly, in the Mison case, the appointment of therein
respondent Salvador M. Mison as head of the Bureau of Customs, without the confirmation of
the Commission on Appointments, was held valid and in accordance with the Constitution.
The Mison case doctrine did not foreclose contrary opinions. So with the very provisions of Sec.
16, Art. VII as designed by the framers of the 1987 Constitution. But the Constitution, as
construed by this Court in appropriate cases, is the supreme law of the land. And it cannot be
over-stressed that the strength of the Constitution, with all its imperfections, lies in the respect
and obedience accorded to it by the people, especially the officials of government, who are the
subjects of its commands.
Barely a year after Mison, the Court is again confronted with a similar question, this time,
whether or not the appointment by the President of the Chairman of the Commission on Human
Rights (CHR), an "independent office" created by the 1987 Constitution, is to be made with or
without the confirmation of the Commission on Appointments (CA, for brevity). Once more, as
in Mison, the Court will resolve the issue irrespective of the parties involved in the litigation,
mindful that what really matters are the principles that will guide this Administration and others in
the years to come.
Since the position of Chairman of the Commission on Human Rights is not among the positions
mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to
which are to be made with the confirmation of the Commission on Appointments, it follows that
the appointment by the President of the Chairman of the (CHR), is to be made without the
review or participation of the Commission on Appointments.
To be more precise, the appointment of the Chairman and Members of the Commission on
Human Rights is not specifically provided for in the Constitution itself, unlike the Chairmen and
Members of the Civil Service Commission, the Commission on Elections and the Commission on
Audit, whose appointments are expressly vested by the Constitution in the President with the
consent of the Commission on Appointments. 2
The President appoints the Chairman and Members of the Commission on Human Rights
pursuant to the second sentence in Section 16, Art. VII, that is, without the confirmation of the
Commission on Appointments because they are among the officers of government "whom he
(the President) may be authorized by law to appoint." And Section 2(c), Executive Order No.
163, 5 May 1987, authorizes the President to appoint the Chairman and Members of the
Commission on Human Rights. It provides:
(c) The Chairman and the Members of the Commission on Human Rights
shall be appointed by the President for a term of seven years without
reappointment. Appointment to any vacancy shall be only for the unexpired
term of the predecessor.
The above conclusions appear to be plainly evident and, therefore, irresistible. However, the
presence in this case of certain elements absent in the Mison case makes necessary a
closer scrutiny. The facts are therefore essential.
On 27 August 1987, the President of the Philippines designated herein petitioner Mary
Concepcion Bautista as "Acting Chairman, Commission on Human Rights." The letter of
designation reads:
27 August 1987
M a d a m:
You are hereby designated ACTING CHAIRMAN, COMMISSION ON
HUMAN RIGHTS, to succeed the late Senator Jose W. Diokno and Justice
J. B. L. Reyes.
HON. MARY CONCEPCION BAUTISTA 3
Realizing perhaps the need for a permanent chairman and members of the Commission on of the Commission on Human Rights which, as previously stated, she had originally held merely
Human Rights, befitting an independent office, as mandated by the Constitution, 4 the President in an acting capacity beginning 27 August 1987.
of the Philippines on 17 December 1988 extended to petitioner Bautista a permanent
appointment as Chairman of the Commission. The appointment letter is as follows:
On 9 January 1989, petitioner Bautista received a letter from the Secretary of the Commission
on Appointments requesting her to submit to the Commission certain information and documents
The Honorable as required by its rules in connection with the confirmation of her appointment as Chairman of
The Chairman the Commission on Human Rights. 7 On 10 January 1989, the Commission on Appointments'
Commission on Human Rights Secretary again wrote petitioner Bautista requesting her presence at a meeting of the
Pasig, Metro Manila Commission on Appointments Committee on Justice, Judicial and Bar Council and Human
Rights set for 19 January 1989 at 9 A.M. at the Conference Room, 8th Floor, Kanlaon Tower I,
Roxas Boulevard, Pasay City that would deliberate on her appointment as Chairman of the
M a d a m:
Commission on Human Rights. 8

Pursuant to the provisions of existing laws, the following are hereby

On 13 January 1989, petitioner Bautista wrote to the Chairman of the Commission on
appointed to the positions indicated opposite their respective names in the
Appointments stating, for the reasons therein given, why she considered the Commission on
Commission on Human Rights:
Appointments as having no jurisdiction to review her appointment as Chairman of the
Commission on Human Rights. The petitioner's letter to the Commission on Appointments'
MARY CONCEPCION BAUTISTA Chairman Chairman reads:
ABELARDO L. APORTADERA, JR Member
SAMUEL SORIANO Member
SENATE PRESIDENT JOVITO R. SALONGA
HESIQUIO R. MALLILLIN Member
Chairman
NARCISO C. MONTEIRO Member
Commission on Appointments
Senate, Manila
By virtue hereof, they may qualify and enter upon the performance of the
duties of the office furnishing this Office and the Civil Service Commission
S i r:
with copies of their oath of office

We acknowledge receipt of the communication from the Commission on

It is to be noted that by virtue of such appointment, petitioner Bautista was
Appointments requesting our appearance on January 19, 1989 for
advised by the President that she could qualify and enter upon the
deliberation on our appointments.
performance of the duties of the office of Chairman of the Commission on
Human Rights, requiring her to furnish the office of the President and the
Civil Service Commission with copies of her oath of office. We respectfully submit that the appointments of the Commission
commissioners of the Human Rights Commission are not subject to
confirmation by the Commission on Appointments.
On 22 December 1988, before the Chief Justice of this Court, Hon. Marcelo B. Fernan, petitioner
Bautista took her oath of office by virtue of her appointment as Chairman of the Commission on
Human Rights. The full text of the oath of office is as follows: The Constitution, in Article VII Section 16 which expressly vested on the
President the appointing power, has expressly mentioned the government
officials whose appointments are subject to the confirmation of the
OATH OF OFFICE
Commission on Appointments of Congress. The Commissioners of the
Commission on Human Rights are not included among those.
I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street,
Bangkal, Makati, Metro Manila having been appointed to the position
Where the confirmation of the Commission on Appointments is required, as
of CHAIRMAN of the Commission on Human Rights, do solemnly swear
in the case of the Constitutional Commissions such as the Commission on
that I will discharge to the best of my ability all the duties and responsibilities
Audit, Civil Service Commission and the Commission on Elections, it was
of the office to which I have been appointed; uphold the Constitution of the
expressly provided that the nominations will be subject to confirmation of
Republic of the Philippines, and obey all the laws of the land without mental
Commission on Appointments. The exclusion again of the Commission on
reservation or purpose of evasion.
Human Rights, a constitutional office, from this enumeration is a clear denial
of authority to the Commission on Appointments to review our appointments
SO HELP ME GOD. to the Commission on Human Rights.

SUBSCRIBED AND SWORN TO before me this 22nd day of December in the year of Our Lord, Furthermore, the Constitution specifically provides that this Commission is
1988 in Manila. Immediately, after taking her oath of office as Chairman of the Commission on an independent office which:
Human Rights, petitioner Bautista discharged the functions and duties of the Office of Chairman
 a. must investigate all forms of human rights violations
involving civil and political rights;
b. shall monitor the government's compliance in all our
treaty obligations on human rights. We submit that, the
monitoring of all agencies of government, includes even
Congress itself, in the performance of its functions
which may affect human rights;
c. may call on all agencies of government for the
implementation of its mandate.
The powers of the Commission on Appointments is in fact a derogation of
the Chief Executive's appointing power and therefore the grant of that
authority to review a valid exercise of the executive power can never be
presumed. It must be expressly granted.
The Commission on Appointments has no jurisdiction under the Constitution
to review appointments by the President of Commissioners of the
Commission on Human Rights.
In view of the foregoing considerations, as Chairman of an independent
constitutional office. I cannot submit myself to the Commission on
Appointments for the purpose of confirming or rejecting my appointment.
In respondent Commission's comment (in this case), dated 3 February 1989, there is attached
as Annex 1 a letter of the Commission on Appointments' Secretary to the Executive Secretary,
Hon. Catalino Macaraig, Jr. making reference to the "ad interim appointment which Her
Excellency extended to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of
the Commission on Human Rights" 10 and informing Secretary Macaraig that, as previously
conveyed to him in a letter of 25 January 1989, the Commission on Appointments disapproved
petitioner Bautista's "ad interim appointment' as Chairperson of the Commission on Human
Rights in view of her refusal to submit to the jurisdiction of the Commission on Appointments.
The letter reads:
HON. CATALINO MACARAIG, JR.
Executive Secretary
Malacanang, Manila
S i r:
This refers to the ad interim appointment which Her Excellency extended to
Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of the
Commission on Human Rights.
As we conveyed to you in our letter of 25 January 1989, the Commission on
Appointments, assembled in plenary (session) on the same day,
disapproved Atty. Bautista's ad interim appointment as Chairperson of the
Commission on Human Rights in view of her refusal to submit to the
jurisdiction of the Commission on Appointments.
This is to inform you that the Commission on Appointments, likewise
assembled in plenary (session) earlier today, denied Senator Mamintal A. J.
Tamano's motion for reconsideration of the disapproval of Atty. Bautista's ad
interim appointment as Chairperson of the Commission on Human Rights.
On the same date (1 February 1989), the Commission on Appointments' Secretary informed
petitioner Bautista that the motion for reconsideration of the disapproval of her "ad
interim appointment as Chairman of the Commission on Human Rights" was denied by the
Commission on Appointments. The letter reads as follows:
ATTY. MARY CONCEPCION BAUTISTA
Commission on Human Rights
Integrated Bar of the Philippines
Bldg. Pasig, Metro Manila
Dear Atty. Bautista:
Pursuant to Sec. 6 (a), Chapter II of the Rules of the Commission on
Appointments, the denial by the Commission on Appointments, assembled
in plenary (session) earlier today, of Senator Mamintal A.J. Tamano's
motion for reconsideration of the disapproval of your ad interim appointment
as Chairperson of the Commission on Human Rights is respectfully
conveyed.
Thank you for your attention.
In Annex 3 of respondent Commission's same comment, dated 3 February 1989, is a news item
appearinginthe3February1989issueof"ManilaStandard"reportingthatthePresidenthaddesignateoc
asewhich had been elevated to the Supreme Court. The news item is here quoted in full, thus
Aquino names replacement for MaryCon
President Aquino has named replacement for Presidential Commission on
Human Rights Chairman Mary Concepcion Bautista whose appointment
was rejected anew by the Congressional commission on appointments.
The President designated PCHR commissioner Hesiquio R. Mallillin as
acting chairman of the Commission pending the resolution of Bautista's
case which had been elevated to the Supreme Court.
The President's action followed after Congressional Commission on
Appointments Chairman, Senate President Jovito Salonga declared
Bautista can no longer hold on to her position after her appointment was not
confirmed for the second time.
For all practical purposes, Salonga said Bautista can be accused of
usurpation of authority if she insists to stay on her office.
In effect, the President had asked Bautista to vacate her office and give way
to Mallillin (Mari Villa) 13
On 20 January 1989, or even before the respondent Commission on Appointments had acted on
her "ad interimappointment as Chairman of the Commission on Human Rights" petitioner
Bautista filed with this Court the present petition for certiorari with a prayer for the immediate
issuance of a restraining order, to declare "as unlawful and unconstitutional and without any
legal force and effect any action of the Commission on Appointments as well as of the
Committee on Justice, Judicial and Bar Council and Human Rights, on the lawfully extended
appointment of the petitioner as Chairman of the Commission on Human Rights, on the ground
that they have no lawful and constitutional authority to confirm and to review her appointment." 14
The prayer for temporary restraining order was "to enjoin the respondent Commission on
Appointments not to proceed further with their deliberation and/or proceedings on the
appointment of the petitioner ... nor to enforce, implement or act on any order, resolution, etc.
issued in the course of their deliberations." 15
Respondents were required to file comment within ten (10) days. 16 On 7 February 1989,
petitioner filed an amended petition, with urgent motion for restraining order, impleading
Commissioner Hesiquio R. Mallillin the designated acting chairman as party respondent and
praying for the nullification of his appointment. The succeeding day, a supplemental urgent ex-
parte motion was filed by petitioner seeking to restrain respondent Mallillin from continuing to
exercise the functions of chairman and to refrain from demanding courtesy resignations from
officers or separating or dismissing employees of the Commission.
Acting on petitioner's amended petition and supplemental urgent ex-parte motion, the Court
resolved to issue a temporary restraining order directing respondent Mallillin to cease and desist
from effecting the dismissal, courtesy resignation, i removal and reorganization and other similar
personnel actions. 17 Respondents were likewise required to comment on said amended petition
with allowance for petitioner to file a reply within two (2) days from receipt of a copy thereof.
Respondents Senator Salonga, the Commission on Appointments the Committee on J & BC and
Human Rights filed a comment to the amended petition on 21 February 1989. 18 Petitioner filed
her reply. 19 On 24 February 1989, respondent Mallillin filed a separate comment. 20 The Court
required petitioner to reply to respondent Mallillin's comment . 21 Petitioner filed her reply. 22
In deference to the Commission on Appointments, an instrumentality of a co-ordinate and co-
equal branch of government, the Court did not issue a temporary restraining order directed
against it. However, this does not mean that the issues raised by the petition, as met by the
respondents' comments, will not be resolved in this case. The Court will not shirk from its duty as
the final arbiter of constitutional issues, in the same way that it did not in Mison.
As disclosed by the records, and as previously adverted to, it is clear that petitioner Bautista was
extended by Her Excellency, the President a permanent appointment as Chairman of the
Commission on Human Rights on 17 December 1988. Before this date, she was merely the
"Acting Chairman" of the Commission. Bautista's appointment on 17 December 1988 is an
appointment that was for the President solely to make, i.e., not an appointment to be submitted
for review and confirmation (or rejection) by the Commission on Appointments. This is in
accordance with Sec. 16, Art. VII of the 1987 Constitution and the doctrine in Mison which is
here reiterated.
The threshold question that has really come to the fore is whether the President, subsequent to
her act of 17 December 1988, and after petitioner Bautista had qualified for the office to which
she had been appointed, by taking the oath of office and actually assuming and discharging the
functions and duties thereof, could extend another appointment to the petitioner on 14
January 1989, an "ad interim appointment" as termed by the respondent Commission on
Appointments or any other kind of appointment to the same office of Chairman of the
Commission on Human Rights that called for confirmation by the Commission on Appointments.
The Court, with all due respect to both the Executive and Legislative Departments of
government, and after careful deliberation, is constrained to hold and rule in the negative. When
Her Excellency, the President converted petitioner Bautista's designation as Acting Chairman to
a permanent appointment as Chairman of the Commission on Human Rights on 17 December
1988, significantly she advised Bautista (in the same appointment letter) that, by virtue of such
appointment, she could qualify and enter upon the performance of the duties of the office (of
Chairman of the Commission on Human Rights). All that remained for Bautista to do was to
reject or accept the appointment. Obviously, she accepted the appointment by taking her oath of
office before the Chief Justice of the Supreme Court, Hon. Marcelo B. Fernan and assuming
immediately thereafter the functions and duties of the Chairman of the Commission on Human
Rights. Bautista's appointment therefore on 17 December 1988 as Chairman of the Commission
on Human Rights was a completed act on the part of the President. To paraphrase the great
jurist, Mr. Chief Justice Marshall, in the celebrated case of Marbury vs. Madison. 23
xxx xxx xxx
The answer to this question seems an obvious one. The appointment being
the sole act of the President, must be completely evidenced, when it is
shown that he has done everything to be performed by him.
xxx xxx xxx
Some point of time must be taken when the power of the executive over an
officer, not removable at his will must cease. That point of time must be
when the constitutional power of appointment has been exercised. And this
power has been exercised when the last act, required from the person
possessing the power, has been performed. ....
xxx xxx xxx
But having once made the appointment, his (the President's) power over the
office is terminated in all cases, where by law the officer is not removable by
him. The right to the office is then in the person appointed, and he has the
absolute, unconditional power of accepting or rejecting it.
xxx xxx xxx
THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989
It is respondent Commission's submission that the President, after the appointment of 17
December 1988 extended to petitioner Bautista, decided to extend another appointment (14
January 1989) to petitioner Bautista, this time, submitting such appointment (more accurately,
nomination) to the Commission on Appointments for confirmation. And yet, it seems obvious
enough, both in logic and in fact, that no new or further appointment could be made to a position
already filled by a previously completed appointment which had been accepted by the
appointee, through a valid qualification and assumption of its duties.
Respondent Commission vigorously contends that, granting that petitioner's appointment as
Chairman of the Commission on Human Rights is one that, under Sec. 16, Art. VII of the
Constitution, as interpreted in the Mison case, is solely for the President to make, yet, it is within
the president's prerogative to voluntarily submit such appointment to the Commission on
Appointment for confirmation. The mischief in this contention, as the Court perceives it, lies in
the suggestion that the President (with Congress agreeing) may, from time to time move power
boundaries, in the Constitution differently from where they are placed by the Constitution.
The Court really finds the above contention difficult of acceptance. Constitutional Law, to begin
with, is concerned with power not political convenience, wisdom, exigency, or even necessity.
Neither the Executive nor the Legislative (Commission on Appointments) can create power
where the Constitution confers none. The evident constitutional intent is to strike a careful and
delicate balance, in the matter of appointments to public office, between the President and
Congress (the latter acting through the Commission on Appointments). To tilt one side or the
other of the scale is to disrupt or alter such balance of power. In other words, to the extent that
the Constitution has blocked off certain appointments for the President to make with the
participation of the Commission on Appointments, so also has the Constitution mandated that
the President can confer no power of participation in the Commission on Appointments over
other appointments exclusively reserved for her by the Constitution. The exercise of political
options that finds no support in the Constitution cannot be sustained.
Nor can the Commission on Appointments, by the actual exercise of its constitutionally delimited
power to review presidential appointments, create power to confirm appointments that the
Constitution has reserved to the President alone. Stated differently, when the appointment is one
that the Constitution mandates is for the President to make without the participation of the
Commission on Appointments, the executive's voluntary act of submitting such appointment to
the Commission on Appointments and the latter's act of confirming or rejecting the same, are
done without or in excess of jurisdiction.
EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE COMMISSION ON
APPOINTMENTS AN APPOINTMENT THAT UNDER THE CONSTITUTION SOLELY
BELONGS TO HER, STILL, THERE WAS NO VACANCY TO WHICH AN APPOINTMENT
COULD BE MADE ON 14 JANUARY 1989
Under this heading, we will assume, ex gratia argumenti, that the Executive may voluntarily
allow the Commission on Appointments to exercise the power of review over an appointment
otherwise solely vested by the Constitution in the President. Yet, as already noted, when the
President appointed petitioner Bautista on 17 December 1988 to the position of Chairman of the
Commission on Human Rights with the advice to her that by virtue of such appointment (not,
until confirmed by the Commission on Appointments), she could qualify and enter upon the
performance of her duties after taking her oath of office, the presidential act of appointment to
the subject position which, under the Constitution, is to be made, in the first place, without the
participation of the Commission on Appointments, was then and there a complete and finished
act, which, upon the acceptance by Bautista, as shown by her taking of the oath of office and
actual assumption of the duties of said office, installed her, indubitably and unequivocally, as the
lawful Chairman of the Commission on Human Rights for a term of seven (7) years. There was
thus no vacancy in the subject office on 14 January 1989 to which an appointment could be
validly made. In fact, there is no vacancy in said office to this day.
Nor can respondents impressively contend that the new appointment or re-appointment on 14
January 1989 was an ad interim appointment, because, under the Constitutional design, ad
interim appointments do not apply to appointments solely for the President to make, i.e., without
the participation of the Commission on Appointments. Ad interim appointments, by their very
nature under the 1987 Constitution, extend only to appointments where the review of the
Commission on Appointments is needed. That is why ad interim appointments are to remain
valid until disapproval by the Commission on Appointments or until the next adjournment of
Congress; but appointments that are for the President solely to make, that is, without the
participation of the Commission on Appointments, can not be ad interim appointments.
EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING THAT THE TENURE OF THE
CHAIRMAN AND MEMBERS OF THE COMMISSION ON HUMAN RIGHTS SHALL BE AT THE
PLEASURE OF THE PRESIDENT IS UNCONSTITUTIONAL.
Respondent Mallillin contends that with or without confirmation by the Commission on
Appointments, petitioner Bautista, as Chairman of the Commission on Human Rights, can be
removed from said office at anytime, at the pleasure of the President; and that with the
disapproval of Bautista's appointment (nomination) by the Commission on Appointments, there
was greater reason for her removal by the President and her replacement with respondent
Mallillin Thus, according to respondent Mallillin the petition at bar has become moot and
academic.
We do not agree that the petition has become moot and academic. To insist on such a posture is
akin to deluding oneself that day is night just because the drapes are drawn and the lights are
on. For, aside from the substantive questions of constitutional law raised by petitioner, the
records clearly show that petitioner came to this Court in timely manner and has not shown any
indication of abandoning her petition.
Reliance is placed by respondent Mallillin on Executive Order No. 163-A, 30 June 1987, full text
of which is as follows:
WHEREAS, the Constitution does not prescribe the term of office of the
Chairman and Members of the Commission on Human Rights unlike those
of other Constitutional Commissions;
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the
Philippines, do hereby order:
SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is
hereby amended to read as follows:
The Chairman and Members of the Commission on Human Rights shall be
appointed by the President. Their tenure in office shall be at the pleasure of
the President.
SEC. 2. This Executive Order shall take effect immediately. DONE in the
City of Manila, this 30th day of June, in the year of Our Lord, nineteen
hundred and eighty-seven.
By the President:
(Sgd.) JOKER P. ARROYO
Executive Secretary 24
Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No. 163 25 was
issued by the President, Sec. 2(c) of which provides:
Sec. 2(c). The Chairman and the Members of the Commission on Human
Rights shall be appointed by the President for a term of seven years without
reappointment. Appointments to any vacancy shall be only for the unexpired
term of the predecessor.
It is to be noted that, while the earlier executive order (No. 163) speaks of a term of office of the
Chairman and Members of the Commission on Human Rights which is seven (7) years
without reappointment the later executive order (163-A) speaks of the tenure in office of the
Chairman and Members of the Commission on Human Rights, which is "at the pleasure of the
President."
Tenure in office should not be confused with term of office. As Mr. Justice (later, Chief Justice)
Concepcion in his concurring opinion in Alba vs. Evangelista, 26 stated:
The distinction between "term" and "tenure" is important, for, pursuant to the
Constitution, "no officer or employee in the Civil Service may be removed or
suspended except for cause, as provided by law" (Art. XII, section 4), and
this fundamental principle would be defeated if Congress could legally make
the tenure of some officials dependent upon the pleasure of the President,
by clothing the latter with blanket authority to replace a public officer before
the expiration of his term. 27
When Executive Order No. 163 was issued, the evident purpose was to comply with the
constitutional provision that "the term of office and other qualifications and disabilities of the
Members of the Commission (on Human Rights) shall be provided by law" (Sec. 17(2), Art. XIII,
1987 Constitution).
As the term of office of the Chairman (and Members) of the Commission on Human Rights, is
seven (7) years, without reappointment, as provided by Executive Order No. 163, and consistent
with the constitutional design to give the Commission the needed independence to perform and
accomplish its functions and duties, the tenure in office of said Chairman (and Members) cannot
be later made dependent on the pleasure of the President.
Nor can respondent Mallillin find support in the majority opinion in the Alba case, supra, because
the power of the President, sustained therein, to replace a previously appointed vice-mayor of
Roxas City given the express provision in Sec. 8, Rep. Act No. 603 (creating the City of Roxas)
stating that the vice-mayor shall serve at the pleasure of the President, can find no application to
the Chairman of an INDEPENDENT OFFICE, created not by statute but by the Constitution
itself. Besides, unlike in the Alba case, here the Constitution has decreed that the Chairman and
Members of the Commission on Human Rights shall have a "term of office."
Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and
created by the Constitution to be independent as the Commission on Human Rights-and vested
with the delicate and vital functions of investigating violations of human rights, pinpointing
responsibility and recommending sanctions as well as remedial measures therefor, can truly
function with independence and effectiveness, when the tenure in office of its Chairman and
Members is made dependent on the pleasure of the President. Executive Order No. 163-A,
being antithetical to the constitutional mandate of independence for the Commission on Human
Rights has to be declared unconstitutional.
The Court is not alone in viewing Executive Order No. 163-A as containing the seeds of its
constitutional destruction. The proceedings in the 1986 Constitutional Commission clearly point
to its being plainly at war with the constitutional intent of independence for the Commission.
Thus
MR. GARCIA (sponsor). Precisely, one of the reasons why it is important for
this body to be constitutionalized is the fact that regardless of who is the
President or who holds the executive power, the human rights issue is of
such importance that it should be safeguarded and it should be independent
of political parties or powers that are actually holding the reins of
government. Our experience during the martial law period made us realize
how precious those rights are and, therefore, these must be safeguarded at
all times.
xxx xxx xxx
MR. GARCIA. I would like to state this fact: Precisely we do not want the
term or the power of the Commission on Human Rights to be coterminous
with the president, because the President's power is such that if he appoints
a certain commissioner and that commissioner is subject to the President,
therefore, any human rights violations committed under the person's
administration will be subject to presidential pressure. That is what we
would like to avoid to make the protection of human rights go beyond the
fortunes of different political parties or administrations in power. 28
xxx xxx xxx
MR. SARMIENTO (sponsor). Yes, Madam President. I conferred with the
honorable Chief Justice Concepcion and retired Justice J.B.L. Reyes and
they believe that there should be an independent Commission on Human
Rights free from executive influence because many of the irregularities on
human rights violations are committed by members of the armed forces and
members of the executive branch of the government. So as to insulate this
body from political interference, there is a need to constitutionalize it. 29
xxx xxx xxx
MR. SARMIENTO: On the inquiry on whether there is a need for this to be
constitutionalized, I would refer to a previous inquiry that there is still a need
for making this a constitutional body free or insulated from interference. I
conferred with former Chief Justice Concepcion and the acting chairman of
the Presidential Committee on Human Rights, retired Justice J.B.L. Reyes,
and they are one in saying that this body should be constitutionalized so
that it will be free from executive control or interferences, since many of the
abuses are committed by the members of the military or the armed forces. 30
xxx xxx xxx
MR. SARMIENTO. Yes, Congress can create this body, but as I have said,
if we leave it to Congress, this commission will be within the reach of
politicians and of public officers and that to me is dangerous. We should
insulate this body from political control and political interference because of
the nature of its functions to investigate all forms of human rights violations
which are principally committed by members of the military, by the Armed
Forces of the Philippines. 31
xxx xxx xxx
MR. GARCIA. The critical factor here is political control, and normally, when
a body is appointed by Presidents who may change, the commission must
remain above these changes in political control. Secondly, the other
important factor to consider are the armed forces, the police forces which
 have tremendous power at their command and, therefore, we would need a Commission on Human Rights (pending decision in this case) instead of appointing another
commission composed of men who also are beyond the reach of these permanent Chairman. The latter course would have added only more legal difficulties to an
forces and the changes in political administration. 32 already difficult situation.

xxx xxx xxx WHEREFORE, the petition is GRANTED. Petitioner Bautista is declared to be, as she is, the
duly appointed Chairman of the Commission on Human Rights and the lawful incumbent thereof,
entitled to all the benefits, privileges and emoluments of said office. The temporary restraining
MR MONSOD. Yes, It is the committee's position that this proposed special
order heretofore issued by the Court against respondent Mallillin enjoining him from dismissing
body, in order to function effectively, must be invested with an
or terminating personnel of the Commission on Human Rights is made permanent.
independence that is necessary not only for its credibility but also for the
effectiveness of its work. However, we want to make a distinction in this
Constitution. May be what happened was that it was referred to the wrong SO ORDERED.
committee. In the opinion of the committee, this need not be a commission
that is similar to the three constitutional commissions like the COA, the
COMELEC, and the Civil Service. It need not be in that article. 33

xxx xxx xxx

MR. COLAYCO. The Commissioners earlier objection was that the Office of
the President is not involved in the project. How sure are we that the next
President of the Philippines will be somebody we can trust? Remember,
even now there is a growing concern about some of the bodies, agencies
and commission created by President Aquino. 34

xxx xxx xxx

.... Leaving to Congress the creation of the Commission on Human Rights is

giving less importance to a truly fundamental need to set up a body that will
effectively enforce the rules designed to uphold human rights. 35

PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE

To hold, as the Court holds, that petitioner Bautista is the lawful incumbent of the office of
Chairman of the Commission on Human Rights by virtue of her appointment, as such, by the
President on 17 December 1988, and her acceptance thereof, is not to say that she cannot be
removed from office before the expiration of her seven (7) year term. She certainly can be
removed but her removal must be for cause and with her right to due process properly
safeguarded. In the case of NASECO vs. NLRC, 36 this Court held that before a rank-and-file
employee of the NASECO, a government-owned corporation, could be dismissed, she was
entitled to a hearing and due process. How much more, in the case of the Chairman of
a constitutionally mandated INDEPENDENT OFFICE, like the Commission on Human Rights.

If there are charges against Bautista for misfeasance or malfeasance in office, charges may be
filed against her with the Ombudsman. If he finds a prima facie case against her, the
corresponding information or informations can be filed with the Sandiganbayan which may in
turn order her suspension from office while the case or cases against her are pending before
said court. 37 This is due process in action. This is the way of a government of laws and not of
men.

A FINAL WORD

It is to the credit of the President that, in deference to the rule of law, after petitioner Bautista had
elevated her case to this Tribunal, Her Excellency merely designated an Acting Chairman for the
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 92008 July 30, 1990
RAMON P. BINAMIRA, petitioner,
vs.
PETER D. GARRUCHO, JR., respondent.
CRUZ, J.:
In this petition for quo warranto, Ramon P. Binamira seeks reinstatement to the office of General
Manager of the Philippine Tourism Authority from which he claims to have been removed without
just cause in violation of his security of tenure.
The petitioner bases his claim on the following communication addressed to him by the Minister
of Tourism on April 7, 1986:
MEMORANDUM TO: MR. RAMON P. BINAMIRA
You are hereby designated General Manager of the Philippine Tourism
Authority, effective immediately.
By virtue hereof, you may qualify and enter upon the performance of the
duties of the office.
(Sgd.) JOSE ANTONIO GONZALES Minister of Tourism and Chairman,
P.T.A. Board
Pursuant thereto, the petitioner assumed office on the same date.
On April 10, 1986, Minister Gonzales sought approval from President Aquino of the composition
of the Board of Directors of the PTA, which included Binamira as Vice-Chairman in his capacity
as General Manager. This approval was given by the President on the same date. 1
Binamira claims that since assuming office, he had discharged the duties of PTA General
Manager and Vice-Chairman of its Board of Directors and had been acknowledged as such by
various government offices, including the Office of the President.
He complains, though, that on January 2, 1990, his resignation was demanded by respondent
Garrucho as the new Secretary of Tourism. Binamira's demurrer led to an unpleasant exchange
that led to his filing of a complaint against the Secretary with the Commission on Human Rights.
But that is another matter that does not concern us here.
What does is that on January 4, 1990, President Aquino sent respondent Garrucho the following
memorandum, 2copy furnished Binamira:
4 January 1990
MEMORANDUM TO: Hon. Peter D. Garrucho, Jr.. Secretary of Tourism
It appearing from the records you have submitted to this Office that the
present General Manager of the Philippine Tourism Authority was
designated not by the President, as required by P.D. No. 564, as amended,
but only by the Secretary of Tourism, such designation is invalid.
Accordingly, you are hereby designated concurrently as General Manager,
effective immediately, until I can appoint a person to serve in the said office
in a permanent capacity.
Please be guided accordingly.
(Sgd.) CORAZON C. AQUINO
cc: Mr. Ramon P. Binamira Philippine Tourism Authority Manila
Garrucho having taken over as General Manager of the PTA in accordance with this
memorandum, the petitioner filed this action against him to question his title. Subsequently,
while his original petition was pending, Binamira filed a supplemental petition alleging that on
April 6, 1990, the President of the Philippines appointed Jose A. Capistrano as General Manager
of the Philippine Tourism Authority. Capistrano was impleaded as additional respondent.
The issue presented in this case is starkly simple.
Section 23-A of P.D. 564, which created the Philippine Tourism Authority, provides as follows:
SECTION 23-A. General Manager-Appointment and Tenure. The
General Manager shall be appointed by the President of the Philippines and
shall serve for a term of six (6) years unless sooner removed for
cause; Provided, That upon the expiration of his term, he shall serve as
such until his successor shall have been appointed and qualified. (As
amended by P.D. 1400)
It is not disputed that the petitioner was not appointed by the President of the Philippines but
only designated by the Minister of Tourism. There is a clear distinction between appointment and
designation that the petitioner has failed to consider.
Appointment may be defined as the selection, by the authority vested with the power, of an
individual who is to exercise the functions of a given office. 3 When completed, usually with its
confirmation, the appointment results in security of tenure for the person chosen unless he is
replaceable at pleasure because of the nature of his office. Designation, on the other hand,
connotes merely the imposition by law of additional duties on an incumbent official, 4as where, in
the case before us, the Secretary of Tourism is designated Chairman of the Board of Directors of
the Philippine Tourism Authority, or where, under the Constitution, three Justices of the Supreme
Court are designated by the Chief Justice to sit in the Electoral Tribunal of the Senate or the
House of Representatives. 5 It is said that appointment is essentially executive while designation
is legislative in nature.
Designation may also be loosely defined as an appointment because it likewise involves the
naming of a particular person to a specified public office. That is the common understanding of
the term. However, where the person is merely designated and not appointed, the implication is persuasive. It must be remembered that Binamira was included therein as Vice- Chairman only
that he shall hold the office only in a temporary capacity and may be replaced at will by the because of his designation as PTA General Manager by Minister Gonzales. Such designation
appointing authority. In this sense, the designation is considered only an acting or temporary being merely provisional, it could be recalled at will, as in fact it was recalled by the President
appointment, which does not confer security of tenure on the person named. herself, through the memorandum she addressed to Secretary Garrucho on January 4, 1990.

Even if so understood, that is, as an appointment, the designation of the petitioner cannot
sustain his claim that he has been illegally removed. The reason is that the decree clearly
provides that the appointment of the General Manager of the Philippine Tourism Authority shall
be made by the President of the Philippines, not by any other officer. Appointment involves the
exercise of discretion, which because of its nature cannot be delegated. Legally speaking, it was
not possible for Minister Gonzales to assume the exercise of that discretion as an alter ego of
the President. The appointment (or designation) of the petitioner was not a merely mechanical or
ministerial act that could be validly performed by a subordinate even if he happened as in this
case to be a member of the Cabinet.
An officer to whom a discretion is entrusted cannot delegate it to another,
the presumption being that he was chosen because he was deemed fit and
competent to exercise that judgment and discretion, and unless the power
to substitute another in his place has been given to him, he cannot delegate
his duties to another. 6
In those cases in which the proper execution of the office requires, on the
part of the officer, the exercise of judgment or discretion, the presumption is
that he was chosen because he was deemed fit and competent to exercise
that judgment and discretion, and, unless power to substitute another in his
place has been given to him, he cannot delegate his duties to another. 7
With these rulings, the petitioner's claim of security of tenure must perforce fall to the ground.
His designation being an unlawful encroachment on a presidential prerogative, he did not
acquire valid title thereunder to the position in question. Even if it be assumed that it could be
and was authorized, the designation signified merely a temporary or acting appointment that
could be legally withdrawn at pleasure, as in fact it was (albeit for a different reason).itc-asl In
either case, the petitioner's claim of security of tenure must be rejected.
The Court sympathizes with the petitioner, who apparently believed in good faith that he was
being extended a permanent appointment by the Minister of Tourism. After all, Minister
Gonzales had the ostensible authority to do so at the time the designation was made. This belief
seemed strengthened when President Aquino later approved the composition of the PTA Board
of Directors where the petitioner was designated Vice-Chairman because of his position as
General Manager of the PTA. However, such circumstances fall short of the categorical
appointment required to be made by the President herself, and not the Minister of Tourism,
under Sec. 23 of P.D. No. 564. We must rule therefore that the petitioner never acquired valid
title to the disputed position and so has no right to be reinstated as General Manager of the
Philippine Tourism Authority.
WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.

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

... all executive and administrative organizations are adjuncts of the

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

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

The argument that the designation made by Minister Gonzales was approved by President
Aquino through her approval of the composition of the Board of Directors of the PTA is not
 G.R. No. 149036 April 2, 2002
MA. J. ANGELINA G. MATIBAG, petitioner,
vs.
ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.,
VELMA J. CINCO, and GIDEON C. DE GUZMAN in his capacity as Officer-In-Charge,
Finance Services Department of the Commission on Elections, respondents.
CARPIO, J.:
The Case
Before us is an original Petition for Prohibition with prayer for the issuance of a writ of
preliminary injunction and a temporary restraining order under Rule 65 of the 1997 Rules of Civil
Procedure. Petitioner Ma. J. Angelina G. Matibag ("Petitioner" for brevity) questions the
constitutionality of the appointment and the right to hold office of the following: (1) Alfredo L.
Benipayo ("Benipayo" for brevity) as Chairman of the Commission on Elections ("COMELEC" for
brevity); and (2) Resurreccion Z. Borra ("Borra" for brevity) and Florentino A. Tuason, Jr.
("Tuason" for brevity) as COMELEC Commissioners. Petitioner also questions the legality of the
appointment of Velma J. Cinco1 ("Cinco" for brevity) as Director IV of the COMELECs Education
and Information Department ("EID" for brevity).
The Facts
On February 2, 1999, the COMELEC en banc appointed petitioner as "Acting Director IV" of the
EID. On February 15, 2000, then Chairperson Harriet O. Demetriou renewed the appointment of
petitioner as Director IV of EID in a "Temporary" capacity. On February 15, 2001, Commissioner
Rufino S.B. Javier renewed again the appointment of petitioner to the same position in a
"Temporary" capacity.2
On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as
COMELEC Chairman,3and Borra4 and Tuason5 as COMELEC Commissioners, each for a term of
seven years and all expiring on February 2, 2008. Benipayo took his oath of office and assumed
the position of COMELEC Chairman. Borra and Tuason likewise took their oaths of office and
assumed their positions as COMELEC Commissioners. The Office of the President submitted to
the Commission on Appointments on May 22, 2001 the ad interim appointments of Benipayo,
Borra and Tuason for confirmation.6 However, the Commission on Appointments did not act on
said appointments.
On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra and
Tuason to the same positions and for the same term of seven years, expiring on February 2,
2008.7 They took their oaths of office for a second time. The Office of the President transmitted
on June 5, 2001 their appointments to the Commission on Appointments for confirmation. 8
Congress adjourned before the Commission on Appointments could act on their appointments.
Thus, on June 8, 2001, President Macapagal Arroyo renewed again the ad interim appointments
of Benipayo, Borra and Tuason to the same positions.9 The Office of the President submitted
their appointments for confirmation to the Commission on Appointments. 10 They took their oaths
of office anew.
In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11,
200111 addressed to petitioner as Director IV of the EID and to Cinco as Director III also of the
EID, designating Cinco Officer-in-Charge of the EID and reassigning petitioner to the Law
Department. COMELEC EID Commissioner-in-Charge Mehol K. Sadain objected to petitioners
reassignment in a Memorandum dated April 14, 200112 addressed to the COMELEC en banc.
Specifically, Commissioner Sadain questioned Benipayos failure to consult the Commissioner-
in-Charge of the EID in the reassignment of petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the
EID and her reassignment to the Law Department.13 Petitioner cited Civil Service Commission
Memorandum Circular No. 7 dated April 10, 2001, reminding heads of government offices that
"transfer and detail of employees are prohibited during the election period beginning January 2
until June 13, 2001." Benipayo denied her request for reconsideration on April 18, 2001, 14 citing
COMELEC Resolution No. 3300 dated November 6, 2000, which states in part:
"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred
upon it by the Constitution, the Omnibus Election Code and other election laws, as an
exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED,
to appoint, hire new employees or fill new positions and transfer or reassign its
personnel, when necessary in the effective performance of its mandated functions
during the prohibited period, provided that the changes in the assignment of its field
personnel within the thirty-day period before election day shall be effected after due
notice and hearing."
Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a
Memorandum dated April 23, 2001.15 Petitioner also filed an administrative and criminal
complaint16 with the Law Department17 against Benipayo, alleging that her reassignment violated
Section 261 (h) of the Omnibus Election Code, COMELEC Resolution No. 3258, Civil Service
Memorandum Circular No. 07, s. 001, and other pertinent administrative and civil service laws,
rules and regulations.
During the pendency of her complaint before the Law Department, petitioner filed the instant
petition questioning the appointment and the right to remain in office of Benipayo, Borra and
Tuason, as Chairman and Commissioners of the COMELEC, respectively. Petitioner claims that
the ad interim appointments of Benipayo, Borra and Tuason violate the constitutional provisions
on the independence of the COMELEC, as well as on the prohibitions on temporary
appointments and reappointments of its Chairman and members. Petitioner also assails as
illegal her removal as Director IV of the EID and her reassignment to the Law Department.
Simultaneously, petitioner challenges the designation of Cinco as Officer-in-Charge of the EID.
Petitioner, moreover, questions the legality of the disbursements made by COMELEC Finance
Services Department Officer-in-Charge Gideon C. De Guzman to Benipayo, Borra and Tuason
by way of salaries and other emoluments.
In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again
the ad interimappointments of Benipayo as COMELEC Chairman and Borra and Tuason as
Commissioners, respectively, for a term of seven years expiring on February 2, 2008. 18 They all
took their oaths of office anew.
The Issues
The issues for resolution of this Court are as follows:
1. Whether or not the instant petition satisfies all the requirements before this Court may
exercise its power of judicial review in constitutional cases;
2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad
interimappointments issued by the President amounts to a temporary appointment prohibited by
Section 1 (2), Article IX-C of the Constitution;
3. Assuming that the first ad interim appointments and the first assumption of office by Benipayo,
Borra and Tuason are legal, whether or not the renewal of their ad interim appointments and
subsequent assumption of office to the same positions violate the prohibition on reappointment
under Section 1 (2), Article IX-C of the Constitution;
4. Whether or not Benipayos removal of petitioner from her position as Director IV of the EID
and her reassignment to the Law Department is illegal and without authority, having been done
without the approval of the COMELEC as a collegial body;
5. Whether or not the Officer-in-Charge of the COMELECs Finance Services Department, in
continuing to make disbursements in favor of Benipayo, Borra, Tuason and Cinco, is acting in
excess of jurisdiction.
First Issue: Propriety of Judicial Review
Respondents assert that the petition fails to satisfy all the four requisites before this Court may
exercise its power of judicial review in constitutional cases. Out of respect for the acts of the
Executive department, which is co-equal with this Court, respondents urge this Court to refrain
from reviewing the constitutionality of the ad interim appointments issued by the President to
Benipayo, Borra and Tuason unless all the four requisites are present. These are: (1) the
existence of an actual and appropriate controversy; (2) a personal and substantial interest of the
party raising the constitutional issue; (3) the exercise of the judicial review is pleaded at the
earliest opportunity; and (4) the constitutional issue is the lis mota of the case.19 Respondents
argue that the second, third and fourth requisites are absent in this case. Respondents maintain
that petitioner does not have a personal and substantial interest in the case because she has
not sustained a direct injury as a result of the ad interim appointments of Benipayo, Borra and
Tuason and their assumption of office. Respondents point out that petitioner does not claim to
be lawfully entitled to any of the positions assumed by Benipayo, Borra or Tuason. Neither does
petitioner claim to be directly injured by the appointments of these three respondents.
Respondents also contend that petitioner failed to question the constitutionality of the ad
interim appointments at the earliest opportunity. Petitioner filed the petition only on August 3,
2001 despite the fact that the ad interimappointments of Benipayo, Borra and Tuason were
issued as early as March 22, 2001. Moreover, the petition was filed after the third time that these
three respondents were issued ad interim appointments.
Respondents insist that the real issue in this case is the legality of petitioners reassignment from
the EID to the Law Department. Consequently, the constitutionality of the ad
interim appointments is not the lis mota of this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law
Department, where she was placed on detail service.20 Respondents claim that the reassignment
was "pursuant to x x x Benipayos authority as Chairman of the Commission on Elections, and
as the Commissions Chief Executive Officer."21 Evidently, respondents anchor the legality of
petitioners reassignment on Benipayos authority as Chairman of the COMELEC. The real issue
then turns on whether or not Benipayo is the lawful Chairman of the COMELEC. Even if
petitioner is only an Acting Director of the EID, her reassignment is without legal basis if
Benipayo is not the lawful COMELEC Chairman, an office created by the Constitution.
On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in
accordance with the Constitution, then petitioners reassignment is legal and she has no cause
to complain provided the reassignment is in accordance with the Civil Service Law. Clearly,
petitioner has a personal and material stake in the resolution of the constitutionality of
Benipayos assumption of office. Petitioners personal and substantial injury, if Benipayo is not
the lawful COMELEC Chairman, clothes her with the requisite locus standi to raise the
constitutional issue in this petition.
Respondents harp on petitioners belated act of questioning the constitutionality of the ad
interim appointments of Benipayo, Borra and Tuason. Petitioner filed the instant petition only on
August 3, 2001, when the first ad interimappointments were issued as early as March 22, 2001.
However, it is not the date of filing of the petition that determines whether the constitutional issue
was raised at the earliest opportunity. The earliest opportunity to raise a constitutional issue is to
raise it in the pleadings before a competent court that can resolve the same, such that, "if it is
not raised in the pleadings, it cannot be considered at the trial, and, if not considered at the trial,
it cannot be considered on appeal."22 Petitioner questioned the constitutionality of the ad
interim appointments of Benipayo, Borra and Tuason when she filed her petition before this
Court, which is the earliest opportunity for pleading the constitutional issue before a competent
body. Furthermore, this Court may determine, in the exercise of sound discretion, the time when
a constitutional issue may be passed upon.23 There is no doubt petitioner raised the
constitutional issue on time.
Moreover, the legality of petitioners reassignment hinges on the constitutionality of
Benipayos ad interimappointment and assumption of office. Unless the constitutionality of
Benipayos ad interim appointment and assumption of office is resolved, the legality of
petitioners reassignment from the EID to the Law Department cannot be determined. Clearly,
the lis mota of this case is the very constitutional issue raised by petitioner.
In any event, the issue raised by petitioner is of paramount importance to the public. The legality
of the directives and decisions made by the COMELEC in the conduct of the May 14, 2001
national elections may be put in doubt if the constitutional issue raised by petitioner is left
unresolved. In keeping with this Courts duty to determine whether other agencies of government
have remained within the limits of the Constitution and have not abused the discretion given
them, this Court may even brush aside technicalities of procedure and resolve any constitutional
issue raised.24 Here the petitioner has complied with all the requisite technicalities. Moreover,
public interest requires the resolution of the constitutional issue raised by petitioner.
Second Issue: The Nature of an Ad Interim Appointment
Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment
that is prohibited by Section 1 (2), Article IX-C of the Constitution, which provides as follows:
"The Chairman and the Commissioners shall be appointed by the President with the consent of
the Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, three Members shall hold office for seven years, two Members for five years, and the
last Members for three years, without reappointment. Appointment to any vacancy shall be only
for the unexpired term of the predecessor. In no case shall any Member be appointed or
designated in a temporary or acting capacity." (Emphasis supplied)
Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the
President at her pleasure, and can even be disapproved or simply by-passed by the
Commission on Appointments. For this reason, petitioner claims that an ad interim appointment
is temporary in character and consequently prohibited by the last sentence of Section 1 (2),
Article IX-C of the Constitution.
Based on petitioners theory, there can be no ad interim appointment to the COMELEC or to the
other two constitutional commissions, namely the Civil Service Commission and the Commission
on Audit. The last sentence of Section 1 (2), Article IX-C of the Constitution is also found in
Article IX-B and Article IX-D providing for the creation of the Civil Service Commission and the
Commission on Audit, respectively. Petitioner interprets the last sentence of Section 1 (2) of
Article IX-C to mean that the ad interim appointee cannot assume office until his appointment is
confirmed by the Commission on Appointments for only then does his appointment become
permanent and no longer temporary in character.
The rationale behind petitioners theory is that only an appointee who is confirmed by the
Commission on Appointments can guarantee the independence of the COMELEC. A confirmed
appointee is beyond the influence of the President or members of the Commission on
Appointments since his appointment can no longer be recalled or disapproved. Prior to his
confirmation, the appointee is at the mercy of both the appointing and confirming powers since
his appointment can be terminated at any time for any cause. In the words of petitioner, a Sword
of Damocles hangs over the head of every appointee whose confirmation is pending with the
Commission on Appointments.
We find petitioners argument without merit.
An ad interim appointment is a permanent appointment because it takes effect immediately and
can no longer be withdrawn by the President once the appointee has qualified into office. The
fact that it is subject to confirmation by the Commission on Appointments does not alter its
permanent character. The Constitution itself makes an ad interim appointment permanent in
character by making it effective until disapproved by the Commission on Appointments or until
the next adjournment of Congress. The second paragraph of Section 16, Article VII of the
Constitution provides as follows:
"The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress." (Emphasis supplied)
Thus, the ad interim appointment remains effective until such disapproval or next adjournment,
signifying that it can no longer be withdrawn or revoked by the President. The fear that the
President can withdraw or revoke at any time and for any reason an ad interim appointment is
utterly without basis.
More than half a century ago, this Court had already ruled that an ad interim appointment is
permanent in character. In Summers vs. Ozaeta,25 decided on October 25, 1948, we held that:
"x x x an ad interim appointment is one made in pursuance of paragraph (4), Section
10, Article VII of the Constitution, which provides that the President shall have the
power to make appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress. It is an appointment
permanent in nature, and the circumstance that it is subject to confirmation by the
Commission on Appointments does not alter its permanent character. An ad
interim appointment is disapproved certainly for a reason other than that its provisional
period has expired. Said appointment is of course distinguishable from an acting
appointment which is merely temporary, good until another permanent appointment is
issued." (Emphasis supplied)
The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus
an ad interimappointment takes effect immediately. The appointee can at once assume office
and exercise, as a de jure officer, all the powers pertaining to the office. In Pacete vs. Secretary
of the Commission on Appointments,26 this Court elaborated on the nature of an ad
interim appointment as follows:
"A distinction is thus made between the exercise of such presidential prerogative
requiring confirmation by the Commission on Appointments when Congress is in
session and when it is in recess. In the former, the President nominates, and only
upon the consent of the Commission on Appointments may the person thus named
assume office. It is not so with reference to ad interim appointments. It takes effect at
once. The individual chosen may thus qualify and perform his function without loss of
time. His title to such office is complete. In the language of the Constitution, the
appointment is effective until disapproval by the Commission on Appointments or until
the next adjournment of the Congress."
Petitioner cites Blacks Law Dictionary which defines the term "ad interim" to mean "in the
meantime" or "for the time being." Hence, petitioner argues that an ad interim appointment is
undoubtedly temporary in character. This argument is not new and was answered by this Court
in Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court,27 where we explained
that:
"x x x From the arguments, it is easy to see why the petitioner should experience difficulty in
understanding the situation. Private respondent had been extended several ad interim
appointments which petitioner mistakenly understands as appointments temporary in nature.
Perhaps, it is the literal translation of the word ad interim which creates such belief. The term is
defined by Black to mean "in the meantime" or "for the time being". Thus, an officer ad interim is
one appointed to fill a vacancy, or to discharge the duties of the office during the absence or
temporary incapacity of its regular incumbent (Blacks Law Dictionary, Revised Fourth Edition,
1978). But such is not the meaning nor the use intended in the context of Philippine law. In
referring to Dr. Estebans appointments, the term is not descriptive of the nature of the
appointments given to him. Rather, it is used to denote the manner in which said appointments
were made, that is, done by the President of the Pamantasan in the meantime, while the Board
of Regents, which is originally vested by the University Charter with the power of appointment, is
unable to act. x x x." (Emphasis supplied)
Thus, the term "ad interim appointment", as used in letters of appointment signed by the
President, means a permanent appointment made by the President in the meantime that
Congress is in recess. It does not mean a temporary appointment that can be withdrawn or
revoked at any time. The term, although not found in the text of the Constitution, has acquired a
definite legal meaning under Philippine jurisprudence. The Court had again occasion to explain
the nature of an ad interim appointment in the more recent case of Marohombsar vs. Court of
Appeals,28where the Court stated:
"We have already mentioned that an ad interim appointment is not descriptive of the
nature of the appointment, that is, it is not indicative of whether the appointment is
temporary or in an acting capacity, rather it denotes the manner in which the
appointment was made. In the instant case, the appointment extended to private
respondent by then MSU President Alonto, Jr. was issued without condition nor
limitation as to tenure. The permanent status of private respondents appointment as
Executive Assistant II was recognized and attested to by the Civil Service Commission
Regional Office No. 12. Petitioners submission that private respondents ad interim
appointment is synonymous with a temporary appointment which could be validly
terminated at any time is clearly untenable. Ad interim appointments are permanent
but their terms are only until the Board disapproves them." (Emphasis supplied)
An ad interim appointee who has qualified and assumed office becomes at that moment a
government employee and therefore part of the civil service. He enjoys the constitutional
protection that "[n]o officer or employee in the civil service shall be removed or suspended
except for cause provided by law."29 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.30 Once an appointee has qualified, he acquires a legal right to the office which is
protected not only by statute but also by the Constitution. He can only be removed for cause,
after notice and hearing, consistent with the requirements of due process.
An ad interim appointment can be terminated for two causes specified in the Constitution. The
first cause is the disapproval of his ad interim appointment by the 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
interimappointees.
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.31A temporary or acting appointee does not enjoy any security
of tenure, no matter how briefly. This is the kind of appointment that the Constitution prohibits
the President from making to the three independent constitutional commissions, including the
COMELEC. Thus, in Brillantes vs. Yorac,32 this Court struck down as unconstitutional the
designation by then President Corazon Aquino of Associate Commissioner Haydee Yorac as
Acting Chairperson of the COMELEC. This Court ruled that:
"A designation as Acting Chairman is by its very terms essentially temporary and
therefore revocable at will. No cause need be established to justify its revocation.
Assuming its validity, the designation of the respondent as Acting Chairman of the
Commission on Elections may be withdrawn by the President of the Philippines at any
time and for whatever reason she sees fit. It is doubtful if the respondent, having
accepted such designation, will not be estopped from challenging its withdrawal.
xxx
The Constitution provides for many safeguards to the independence of the
Commission on Elections, foremost among which is the security of tenure of its
members. That guarantee is not available to the respondent as Acting Chairman of the
Commission on Elections by designation of the President of the Philippines."
Earlier, in Nacionalista Party vs. Bautista,33 a case decided under the 1935 Constitution, which
did not have a provision prohibiting temporary or acting appointments to the COMELEC, this
Court nevertheless declared unconstitutional the designation of the Solicitor General as acting
member of the COMELEC. This Court ruled that the designation of an acting Commissioner
would undermine the independence of the COMELEC and hence violate the Constitution. We
declared then: "It would be more in keeping with the intent, purpose and aim of the framers of
the Constitution to appoint a permanent Commissioner than to designate one to act temporarily."
(Emphasis supplied)
In the instant case, the President did in fact appoint permanent Commissioners to fill the
vacancies in the COMELEC, subject only to confirmation by the Commission on Appointments.
Benipayo, Borra and Tuason were extended permanent appointments during the recess of
Congress. They were not appointed or designated in a temporary or acting capacity, unlike
Commissioner Haydee Yorac in Brillantes vs. Yorac34 and Solicitor General Felix Bautista
in Nacionalista Party vs. Bautista.35 The ad interim appointments of Benipayo, Borra and Tuason
are expressly allowed by the Constitution which authorizes the President, during the recess of
Congress, to make appointments that take effect immediately.
While the Constitution mandates that the COMELEC "shall be independent" 36 , this provision
should be harmonized with the Presidents power to extend ad interim appointments. To hold
that the independence of the COMELEC requires the Commission on Appointments to first
confirm ad interim appointees before the appointees can assume office will negate the
Presidents power to make ad interim appointments. This is contrary to the rule on statutory
construction to give meaning and effect to every provision of the law. It will also run counter to
the clear intent of the framers of the Constitution.
The original draft of Section 16, Article VII of the Constitution - on the nomination of officers
subject to confirmation by the Commission on Appointments - did not provide for ad interim
appointments. The original intention of the framers of the Constitution was to do away with ad
interim appointments because the plan was for Congress to remain in session throughout the
year except for a brief 30-day compulsory recess. However, because of the need to avoid
disruptions in essential government services, the framers of the Constitution thought it wise to
reinstate the provisions of the 1935 Constitution on ad interim appointments. The following
discussion during the deliberations of the Constitutional Commission elucidates this:
"FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such
circumstances, is it necessary to provide for ad interim appointments? Perhaps there
should be a little discussion on that.
xxx
MS. AQUINO: My concern is that unless this problem is addressed, this might present
problems in terms of anticipating interruption of government business, considering that
we are not certain of the length of involuntary recess or adjournment of the Congress.
We are certain, however, of the involuntary adjournment of the Congress which is 30
days, but we cannot leave to conjecture the matter of involuntary recess.
FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the
Commissioner has a formula x x x.
xxx
MR. BENGZON: Madam President, apropos of the matter raised by Commissioner
Aquino and after conferring with the Committee, Commissioner Aquino and I propose
the following amendment as the last paragraph of Section 16, the wordings of which
are in the 1935 Constitution: THE PRESIDENT SHALL HAVE THE POWER TO
MAKE APPOINTMENTS DURING THE RECESS OF CONGRESS WHETHER IT BE
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.
This is otherwise called the ad interim appointments.
xxx
 THE PRESIDENT: Is there any objection to the proposed amendment of
Commissioners Aquino and Bengzon, adding a paragraph to the last paragraph of
Section 16? (Silence) The Chair hears none; the amendment is
approved."37 (Emphasis supplied)
Clearly, the reinstatement in the present Constitution of the ad interim appointing power of the
President was for the purpose of avoiding interruptions in vital government services that
otherwise would result from prolonged vacancies in government offices, including the three
constitutional commissions. In his concurring opinion in Guevara vs. Inocentes,38 decided under
the 1935 Constitution, Justice Roberto Concepcion, Jr. explained the rationale behind ad
interim appointments in this manner:
If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three
vacancies in the COMELEC, there would only have been one division functioning in the
COMELEC instead of two during the May 2001 elections. Considering that the Constitution
requires that "all x x x election cases shall be heard and decided in division", 46 the remaining one
division would have been swamped with election cases. Moreover, since under the Constitution
motions for reconsideration "shall be decided by the Commission en banc", the mere absence of
one of the four remaining members would have prevented a quorum, a less than ideal situation
considering that the Commissioners are expected to travel around the country before, during
and after the elections. There was a great probability that disruptions in the conduct of the May
2001 elections could occur because of the three vacancies in the COMELEC. The successful
conduct of the May 2001 national elections, right after the tumultuous EDSA II and EDSA III
events, was certainly essential in safeguarding and strengthening our democracy.

"Now, why is the lifetime of ad interim appointments so limited? Because, if they

Evidently, the exercise by the President in the instant case of her constitutional power to
expired before the session of Congress, the evil sought to be avoided interruption in
make ad interimappointments prevented the occurrence of the very evil sought to be avoided by
the discharge of essential functions may take place. Because the same evil would
the second paragraph of Section 16, Article VII of the Constitution. This power to make ad
result if the appointments ceased to be effective during the session of Congress and
interim appointments is lodged in the President to be exercised by her in her sound judgment.
before its adjournment. Upon the other hand, once Congress has adjourned, the evil
Under the second paragraph of Section 16, Article VII of the Constitution, the President can
aforementioned may easily be conjured by the issuance of other ad
choose either of two modes in appointing officials who are subject to confirmation by the
interim appointments or reappointments." (Emphasis supplied)
Commission on Appointments. First, while Congress is in session, the President may nominate
the prospective appointee, and pending consent of the Commission on Appointments, the
Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution nominee cannot qualify and assume office. Second, during the recess of Congress, the
barely avoided the interruption of essential government services in the May 2001 national President may extend an ad interim appointment which allows the appointee to immediately
elections. Following the decision of this Court in Gaminde vs. Commission on qualify and assume office.
Appointments,39 promulgated on December 13, 2000, the terms of office of constitutional officers
first appointed under the Constitution would have to be counted starting February 2, 1987, the
Whether the President chooses to nominate the prospective appointee or extend an ad
date of ratification of the Constitution, regardless of the date of their actual appointment. By this
interim appointment is a matter within the prerogative of the President because the Constitution
reckoning, the terms of office of three Commissioners of the COMELEC, including the Chairman,
grants her that power. This Court cannot inquire into the propriety of the choice made by the
would end on February 2, 2001.40
President in the exercise of her constitutional power, absent grave abuse of discretion
amounting to lack or excess of jurisdiction on her part, which has not been shown in the instant
Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000 to case.
serve, pursuant to her appointment papers, until February 15, 2002,41 the original expiry date of
the term of her predecessor, Justice Bernardo P. Pardo, who was elevated to this Court. The
The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing
original expiry date of the term of Commissioner Teresita Dy-Liacco Flores was also February
practice. Former President Corazon Aquino issued an ad interim appointment to Commissioner
15, 2002, while that of Commissioner Julio F. Desamito was November 3, 2001. 42 The original
Alfredo E. Abueg.47 Former President Fidel V. Ramos extended ad interim appointments to
expiry dates of the terms of office of Chairperson Demetriou and Commissioners Flores and
Commissioners Julio F. Desamito, Japal M. Guiani, Graduacion A. Reyes-Claravall and Manolo
Desamito were therefore supposed to fall after the May 2001 elections. Suddenly and
F. Gorospe.48 Former President Joseph Estrada also extended ad interim appointments to
unexpectedly, because of the Gaminde ruling, there were three vacancies in the seven-person
Commissioners Abdul Gani M. Marohombsar, Luzviminda Tancangco, Mehol K. Sadain and
COMELEC, with national elections looming less than three and one-half months away. To their
Ralph C. Lantion.49
credit, Chairperson Demetriou and Commissioner Flores vacated their offices on February 2,
2001 and did not question any more before this Court the applicability of the Gaminderuling to
their own situation. The Presidents power to extend ad interim appointments may indeed briefly put the appointee
at the mercy of both the appointing and confirming powers. This situation, however, is only for a
short period - from the time of issuance of the ad interim appointment until the Commission on
In a Manifestation43 dated December 28, 2000 filed with this Court in the Gaminde case,
Appointments gives or withholds its consent. The Constitution itself sanctions this situation, as a
Chairperson Demetriou stated that she was vacating her office on February 2, 2001, as she
trade-off against the evil of disruptions in vital government services. This is also part of the
believed any delay in choosing her successor might create a "constitutional crisis" in view of the
check-and-balance under the separation of powers, as a trade-off against the evil of granting the
proximity of the May 2001 national elections. Commissioner Desamito chose to file a petition for
President absolute and sole power to appoint. The Constitution has wisely subjected the
intervention44 in the Gaminde case but this Court denied the intervention. Thus, Commissioner
Presidents appointing power to the checking power of the legislature.
Desamito also vacated his office on February 2, 2001.

This situation, however, does not compromise the independence of the COMELEC as a
During an election year, Congress normally goes on voluntary recess between February and
constitutional body. The vacancies in the COMELEC are precisely staggered to insure that the
June considering that many of the members of the House of Representatives and the Senate
majority of its members hold confirmed appointments, and not one President will appoint all the
run for re-election. In 2001, the Eleventh Congress adjourned from January 9, 2001 to June 3,
COMELEC members.50 In the instant case, the Commission on Appointments had long
2001.45 Concededly, there was no more time for Benipayo, Borra and Tuason, who were
confirmed four51 of the incumbent COMELEC members, comprising a majority, who could now
originally extended ad interim appointments only on March 22, 2001, to be confirmed by the
be removed from office only by impeachment. The special constitutional safeguards that insure
Commission on Appointments before the May 14, 2001 elections.
the independence of the COMELEC remain in place.52 The COMELEC enjoys fiscal autonomy,
appoints its own officials and employees, and promulgates its own rules on pleadings and
practice. Moreover, the salaries of COMELEC members cannot be decreased during their
tenure.
In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra
and Tuason, as COMELEC Chairman and Commissioners, respectively, do not constitute
temporary or acting appointments prohibited by Section 1 (2), Article IX-C of the Constitution.
Third Issue: The Constitutionality of Renewals of Appointments
Petitioner also agues that assuming the first ad interim appointments and the first assumption of
office by Benipayo, Borra and Tuason are constitutional, the renewal of the their ad interim
appointments and their subsequent assumption of office to the same positions violate the
prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution, which provides
as follows:
"The Chairman and the Commissioners shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall hold office for seven
years, two Members for five years, and the last members for three years, without
reappointment. X x x." (Emphasis supplied)
Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on
Appointments, his ad interim appointment can no longer be renewed because this will violate
Section 1 (2), Article IX-C of the Constitution which prohibits reappointments. Petitioner asserts
that this is particularly true to permanent appointees who have assumed office, which is the
situation of Benipayo, Borra and Tuason if their ad interim appointments are deemed permanent
in character.
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. This is
recognized in Section 17 of the Rules of the Commission on Appointments, which provides as
follows:
"Section 17. Unacted Nominations or Appointments Returned to the President.
Nominations or appointments submitted by the President of the Philippines which are
not finally acted upon at the close of the session of Congress shall be returned to the
President and, unless new nominations or appointments are made, shall not again be
considered by the Commission." (Emphasis supplied)
Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be
considered again if the President renews the appointment.
It is well settled in this jurisdiction that the President can renew the ad interim appointments of
by-passed appointees. Justice Roberto Concepcion, Jr. lucidly explained in his concurring
opinion in Guevara vs. Inocentes53why by-passed ad interim appointees could be extended new
appointments, thus:
"In short, an ad interim appointment ceases to be effective upon disapproval by the
Commission, because the incumbent can not continue holding office over the positive
objection of the Commission. It ceases, also, upon "the next adjournment of the
Congress", simply because the President may then issue new appointments - not
because of implied disapproval of the Commission deduced from its inaction during
the session of Congress, for, under the Constitution, the Commission may affect
adversely the interim appointments only by action, never by omission. If the
adjournment of Congress were an implied disapproval of ad interimappointments
made prior thereto, then the President could no longer appoint those so by-passed by
the Commission. But, the fact is that the President may reappoint them, thus clearly
indicating that the reason for said termination of the ad interim appointments is not the
disapproval thereof allegedly inferred from said omission of the Commission, but the
circumstance that upon said adjournment of the Congress, the President is free to
make ad interim appointments or reappointments." (Emphasis supplied)
Guevara was decided under the 1935 Constitution from where the second paragraph of Section
16, Article VII of the present Constitution on ad interim appointments was lifted verbatim.54 The
jurisprudence under the 1935 Constitution governing ad interim appointments by the President is
doubtless applicable to the present Constitution. The established practice under the present
Constitution is that the President can renew the appointments of by-passed ad
interim appointees. This is a continuation of the well-recognized practice under the 1935
Constitution, interrupted only by the 1973 Constitution which did not provide for a Commission
on Appointments but vested sole appointing power in the President.
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 interimappointment because the disapproval is final under
Section 16, Article VII of the Constitution, and not because a reappointment is prohibited under
Section 1 (2), Article IX-C of the Constitution. A by-passed ad interim appointment can be
revived by a new ad interim appointment because there is no final disapproval under Section 16,
Article VII of the Constitution, and such new appointment will not result in the appointee serving
beyond the fixed term of seven years.
Section 1 (2), Article IX-C of the Constitution provides that "[t]he Chairman and the
Commissioners shall be appointed x x x for a term of seven years without reappointment."
(Emphasis supplied) There are four situations where this provision will apply. The first situation
is where an ad interim appointee to the COMELEC, after confirmation by the Commission on
Appointments, serves his full seven-year term. Such person cannot be reappointed to the
COMELEC, whether as a member or as a chairman, because he will then be actually serving
more than seven years. The second situation is where the appointee, after confirmation, serves
a part of his term and then resigns before his seven-year term of office ends. Such person
cannot be reappointed, whether as a member or as a chair, to a vacancy arising from retirement
because a reappointment will result in the appointee also serving more than seven years. The
third situation is where the appointee is confirmed to serve the unexpired term of someone who
died or resigned, and the appointee completes the unexpired term. Such person cannot be
reappointed, whether as a member or chair, to a vacancy arising from retirement because a
reappointment will result in the appointee also serving more than seven years.
The fourth situation is where the appointee has previously served a term of less than seven
years, and a vacancy arises from death or resignation. Even if it will not result in his serving
more than seven years, a reappointment of such person to serve an unexpired term is also
prohibited because his situation will be similar to those appointed under the second sentence of
Section 1 (2), Article IX-C of the Constitution. This provision refers to the first appointees under
the Constitution whose terms of office are less than seven years, but are barred from ever being
reappointed under any situation. Not one of these four situations applies to the case of
Benipayo, Borra or Tuason.
The framers of the Constitution made it quite clear that any person who has served any term of
office as COMELEC member whether for a full term of seven years, a truncated term of five or
three years, or even for an unexpired term of any length of time can no longer be reappointed
to the COMELEC. Commissioner Foz succinctly explained this intent in this manner:
"MR. FOZ. But there is the argument made in the concurring opinion of Justice Angelo
Bautista in the case of Visarra vs. Miraflor, to the effect that the prohibition on
reappointment applies only when the term or tenure is for seven years. But in cases
where the appointee serves only for less than seven years, he would be entitled to
reappointment. Unless we put the qualifying words "without reappointment" in the
case of those appointed, then it is possible that an interpretation could be made later
on their case, they can still be reappointed to serve for a total of seven years.
Precisely, we are foreclosing that possibility by making it clear that even in the case of
those first appointed under the Constitution, no reappointment can be
made."55 (Emphasis supplied)
In Visarra vs. Miraflor,56 Justice Angelo Bautista, in his concurring opinion, quoted
Nacionalista vs. De Vera57that a "[r]eappointment is not prohibited when a
Commissioner has held office only for, say, three or six years, provided his term will
not exceed nine years in all." This was the interpretation despite the express provision
in the 1935 Constitution that a COMELEC member "shall hold office for a term of nine
years and may not be reappointed."
To foreclose this interpretation, the phrase "without reappointment" appears twice in Section 1
(2), Article IX-C of the present Constitution. The first phrase prohibits reappointment of any
person previously appointed for a term of seven years. The second phrase prohibits
reappointment of any person previously appointed for a term of five or three years pursuant to
the first set of appointees under the Constitution. In either case, it does not matter if the person
previously appointed completes his term of office for the intention is to prohibit any
reappointment of any kind.
However, an ad interim appointment that has lapsed by inaction of the Commission on
Appointments does not constitute a term of office. The period from the time the ad
interim appointment is made to the time it lapses is neither a fixed term nor an unexpired term.
To hold otherwise would mean that the President by his unilateral action could start and
complete the running of a term of office in the COMELEC without the consent of the Commission
on Appointments. This interpretation renders inutile the confirming power of the Commission on
Appointments.
The phrase "without reappointment" applies only to one who has been appointed by the
President and confirmed by the Commission on Appointments, whether or not such person
completes his term of office. There must be a confirmation by the Commission on Appointments
of the previous appointment before the prohibition on reappointment can apply. To hold
otherwise will lead to absurdities and negate the Presidents power to make ad
interim appointments.
In the great majority of cases, the Commission on Appointments usually fails to act, for lack of
time, on the ad interim appointments first issued to appointees. If such ad interim appointments
can no longer be renewed, the President will certainly hesitate to make ad interim appointments
because most of her appointees will effectively be disapproved by mere inaction of the
Commission on Appointments. This will nullify the constitutional power of the President to
make ad interim appointments, a power intended to avoid disruptions in vital government
services. This Court cannot subscribe to a proposition that will wreak havoc on vital government
services.
The prohibition on reappointment is common to the three constitutional commissions. The
framers of the present Constitution prohibited reappointments for two reasons. The first is to
prevent a second appointment for those who have been previously appointed and confirmed
even if they served for less than seven years. The second is to insure that the members of the
three constitutional commissions do not serve beyond the fixed term of seven years. As reported
in the Journal of the Constitutional Commission, Commissioner Vicente B. Foz, who
sponsored58 the proposed articles on the three constitutional commissions, outlined the four
important features of the proposed articles, to wit:
"Mr. Foz stated that the Committee had introduced basic changes in the common
provision affecting the three Constitutional Commissions, and which are: 1) fiscal
autonomy which provides (that) appropriations shall be automatically and regularly
released to the Commission in the same manner (as) provided for the Judiciary;
2) fixed term of office without reappointment on a staggered basis to ensure continuity
of functions and to minimize the opportunity of the President to appoint all the
members during his incumbency; 3) prohibition to decrease salaries of the members
of the Commissions during their term of office; and 4) appointments of members would
not require confirmation."59 (Emphasis supplied)
There were two important amendments subsequently made by the Constitutional Commission to
these four features. First, as discussed earlier, the framers of the Constitution decided to require
confirmation by the Commission on Appointments of all appointments to the constitutional
commissions. Second, the framers decided to strengthen further the prohibition on serving
beyond the fixed seven-year term, in the light of a former chair of the Commission on Audit
remaining in office for 12 years despite his fixed term of seven years. The following exchange in
the deliberations of the Constitutional Commission is instructive:
"MR. SUAREZ: These are only clarificatory questions, Madam President. May I call
the sponsors attention, first of all, to Section 2 (2) on the Civil Service Commission
wherein it is stated: "In no case shall any Member be appointed in a temporary or
acting capacity." I detect in the Committees proposed resolutions a constitutional
hangover, if I may use the term, from the past administration. Am I correct in
concluding that the reason the Committee introduced this particular provision is to
avoid an incident similar to the case of the Honorable Francisco Tantuico who was
appointed in an acting capacity as Chairman of the Commission on Audit for about 5
years from 1975 until 1980, and then in 1980, was appointed as Chairman with a
tenure of another 7 years. So, if we follow that appointment to (its) logical conclusion,
he occupied that position for about 12 years in violation of the Constitution?
MR. FOZ: It is only one of the considerations. Another is really to make sure that any
member who is appointed to any of the commissions does not serve beyond 7
years."60 (Emphasis supplied)
Commissioner Christian Monsod further clarified the prohibition on reappointment in this
manner:
 "MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice
that there is no reappointment of any kind and, therefore as a whole there is no way
that somebody can serve for more than seven years. The purpose of the last sentence
is to make sure that this does not happen by including in the appointment both
temporary and acting capacities."61 (Emphasis supplied)
Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment
of any kind. On the other hand, the prohibition on temporary or acting appointments is intended
to prevent any circumvention of the prohibition on reappointment that may result in an
appointees total term of office exceeding seven years. The evils sought to be avoided by the
twin prohibitions are very specific - reappointment of any kind and exceeding ones term in office
beyond the maximum period of seven years.
Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened
even further the screws on those who might wish to extend their terms of office. Thus, the word
"designated" was inserted to plug any loophole that might be exploited by violators of the
Constitution, as shown in the following discussion in the Constitutional Commission:
"MR. DE LOS REYES: On line 32, between the words "appointed" and "in", I propose
to insert the words OR DESIGNATED so that the whole sentence will read: "In no
case shall any Member be appointed OR DESIGNATED in a temporary or acting
capacity."
THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?
MR. FOZ: But it changes the meaning of this sentence. The sentence reads: "In no
case shall any Member be appointed in a temporary or acting capacity."
MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that
some lawyers make a distinction between an appointment and a designation. The
Gentleman will recall that in the case of Commissioner on Audit Tantuico, I think his
term exceeded the constitutional limit but the Minister of Justice opined that it did not
because he was only designated during the time that he acted as Commissioner on
Audit. So, in order to erase that distinction between appointment and designation, we
should specifically place the word so that there will be no more ambiguity. "In no case
shall any Member be appointed OR DESIGNATED in a temporary or acting capacity."
MR. FOZ: The amendment is accepted, Mr. Presiding Officer.
MR. DE LOS REYES: Thank you.
THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair
hears none; the amendment is approved."62
The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and
Tuason do not violate the prohibition on reappointments because there were no previous
appointments that were confirmed by the Commission on Appointments. A reappointment
presupposes a previous confirmed appointment. The same ad interim appointments and
renewals of appointments will also not breach the seven-year term limit because all the
appointments and renewals of appointments of Benipayo, Borra and Tuason are for a fixed term
expiring on February 2, 2008.63 Any delay in their confirmation will not extend the expiry date of
their terms of office. Consequently, there is no danger whatsoever that the renewal of the ad
interim appointments of these three respondents will result in any of the evils intended to be
exorcised by the twin prohibitions in the Constitution. The continuing renewal of the ad
interim appointment of these three respondents, for so long as their terms of office expire on
February 2, 2008, does not violate the prohibition on reappointments in Section 1 (2), Article IX-
C of the Constitution.
Fourth Issue: Respondent Benipayos Authority to Reassign Petitioner
Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and
reassign her to the Law Department. Petitioner further argues that only the COMELEC, acting as
a collegial body, can authorize such reassignment. Moreover, petitioner maintains that a
reassignment without her consent amounts to removal from office without due process and
therefore illegal.
Petitioners posturing will hold water if Benipayo does not possess any color of title to the office
of Chairman of the COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC
Chairman, and consequently he has full authority to exercise all the powers of that office for so
long as his ad interim appointment remains effective. Under Section 7 (4), Chapter 2, Subtitle C,
Book V of the Revised Administrative Code, the Chairman of the COMELEC is vested with the
following power:
"Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who
shall be the Chief Executive Officer of the Commission, shall:
xxx
(4) Make temporary assignments, rotate and transfer personnel in accordance with the
provisions of the Civil Service Law." (Emphasis supplied)
The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own
authority to transfer or reassign COMELEC personnel in accordance with the Civil Service Law.
In the exercise of this power, the Chairman is not required by law to secure the approval of the
COMELEC en banc.
Petitioners appointment papers dated February 2, 1999, February 15, 2000 and February 15,
2001, attached as Annexes "X", "Y" and "Z" to her Petition, indisputably show that she held her
Director IV position in the EID only in an acting or temporary capacity.64 Petitioner is not a Career
Executive Service (CES) officer, and neither does she hold Career Executive Service Eligibility,
which are necessary qualifications for holding the position of Director IV as prescribed in the
Qualifications Standards (Revised 1987) issued by the Civil Service Commission.65 Obviously,
petitioner does not enjoy security of tenure as Director IV. In Secretary of Justice Serafin Cuevas
vs. Atty. Josefina G. Bacal,66 this Court held that:
"As respondent does not have the rank appropriate for the position of Chief Public
Attorney, her appointment to that position cannot be considered permanent, and she
can claim no security of tenure in respect of that position. As held in Achacoso v.
Macaraig:
It is settled that a permanent appointment can be issued only to a person
who meets all the requirements for the position to which he is being
appointed, including the appropriate eligibility prescribed. Achacoso did not.
At best, therefore, his appointment could be regarded only as temporary.
And being so, it could be withdrawn at will by the appointing authority and
at a moments notice, conformably to established jurisprudence x x x.
 The mere fact that a position belongs to the Career Service does not
automatically confer security of tenure on its occupant even if he does not
possess the required qualifications. Such right will have to depend on the
nature of his appointment, which in turn depends on his eligibility or lack of
it. A person who does not have the requisite qualifications for the position
cannot be appointed to it in the first place, or as an exception to the rule,
may be appointed to it merely in an acting capacity in the absence of
appropriate eligibles. The appointment extended to him cannot be regarded
as permanent even if it may be so designated x x x."
Having been appointed merely in a temporary or acting capacity, and not possessed of the
necessary qualifications to hold the position of Director IV, petitioner has no legal basis in
claiming that her reassignment was contrary to the Civil Service Law. This time, the vigorous
argument of petitioner that a temporary or acting appointment can be withdrawn or revoked at
the pleasure of the appointing power happens to apply squarely to her situation.
Still, petitioner assails her reassignment, carried out during the election period, as a prohibited
act under Section 261 (h) of the Omnibus Election Code, which provides as follows:
"Section 261. Prohibited Acts. The following shall be guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil service - Any public official who
makes or causes any transfer or detail whatever of any officer or employee in the civil
service including public school teachers, within the election period except upon prior
approval of the Commission."
Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect
transfers or reassignments of COMELEC personnel during the election period. 67 Moreover,
petitioner insists that the COMELEC en banc must concur to every transfer or reassignment of
COMELEC personnel during the election period.
Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No.
3300 dated November 6, 2000,68 exempting the COMELEC from Section 261 (h) of the Omnibus
Election Code. The resolution states in part:
"WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election
Code provides as follows:
xxx
Sec. 261. Prohibited Acts. The following shall be guilty of an election
offense:
xxx
(h) Transfer of officers and employees in the civil service Any public
official who makes or causes any transfer or detail whatever of any officer or
employee in the civil service including public school teachers, within the
election period except upon approval of the Commission.
WHEREAS, the aforequoted provisions are applicable to the national and local
elections on May 14, 2001;
WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the
Commission on Elections during the prohibited period in order that it can carry out its
constitutional duty to conduct free, orderly, honest, peaceful and credible elections;
"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred
upon it by the Constitution, the Omnibus Election Code and other election laws, as an
exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED,
to appoint, hire new employees or fill new positions and transfer or reassign its
personnel, when necessary in the effective performance of its mandated functions
during the prohibited period, provided that the changes in the assignment of its field
personnel within the thirty-day period before election day shall be effected after due
notice and hearing." (Emphasis supplied)
The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any
transfer or reassignment can be made within thirty days prior to election day, refers only to
COMELEC field personnel and not to head office personnel like the petitioner. Under the
Revised Administrative Code,69 the COMELEC Chairman is the sole officer specifically vested
with the power to transfer or reassign COMELEC personnel. The COMELEC Chairman will
logically exercise the authority to transfer or reassign COMELEC personnel pursuant to
COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this power
because that will mean amending the Revised Administrative Code, an act the COMELEC en
banc cannot legally do.
COMELEC Resolution No. 3300 does not require that every transfer or reassignment of
COMELEC personnel should carry the concurrence of the COMELEC as a collegial body.
Interpreting Resolution No. 3300 to require such concurrence will render the resolution
meaningless since the COMELEC en banc will have to approve every personnel transfer or
reassignment, making the resolution utterly useless. Resolution No. 3300 should be interpreted
for what it is, an approval to effect transfers and reassignments of personnel, without need of
securing a second approval from the COMELEC en banc to actually implement such transfer or
reassignment.
The COMELEC Chairman is the official expressly authorized by law to transfer or reassign
COMELEC personnel. The person holding that office, in a de jure capacity, is Benipayo. The
COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment
of COMELEC personnel during the election period. Thus, Benipayos order reassigning
petitioner from the EID to the Law Department does not violate Section 261 (h) of the Omnibus
Election Code. For the same reason, Benipayos order designating Cinco Officer-in-Charge of
the EID is legally unassailable.
Fifth Issue: Legality of Disbursements to Respondents
Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-Charge of the
Finance Services Department of the Commission on Elections, did not act in excess of
jurisdiction in paying the salaries and other emoluments of Benipayo, Borra, Tuason and Cinco.
WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner.
SO ORDERED.
 EN BANC
G.R. No. 164978 Appointee Department Date of Appointment

Arthur C. Yap Agriculture 15 August 2004

AQUILINO Q. PIMENTEL, JR.,
EDGARDO J. ANGARA,
JUAN PONCE ENRILE, Alberto G. Romulo Foreign Affairs 23 August 2004
LUISA P. EJERCITO-ESTRADA,
JINGGOY E. ESTRADA, Raul M. Gonzalez Justice 23 August 2004
PANFILO M. LACSON,
ALFREDO S. LIM, Florencio B. Abad Education 23 August 2004
JAMBY A.S. MADRIGAL, and
SERGIO R. OSMEA III,
Petitioners, Avelino J. Cruz, Jr. National Defense 23 August 2004

- versus Rene C. Villa Agrarian Reform 23 August 2004

EXEC. SECRETARY EDUARDO R. ERMITA, FLORENCIO B. ABAD, AVELINO J. CRUZ, JR., Joseph H. Durano Tourism 23 August 2004
MICHAEL T. DEFENSOR, Chico-Nazario, and
Michael T. Defensor Environment and Natural Resources 23 August 2004
JOSEPH H. DURANO, Garcia, JJ.
RAUL M. GONZALEZ,
ALBERTO G. ROMULO,
RENE C. VILLA, and Promulgated: The appointment papers are uniformly worded as follows:
ARTHUR C. YAP,
Respondents. October 13, 2005
x-----------------------------------------------------x Sir:

Pursuant to the provisions of existing laws, you are hereby

DECISION appointed ACTING SECRETARY, DEPARTMENT OF (appropriate
department) vice (name of person replaced).
CARPIO, J.:
By virtue hereof, you may qualify and enter upon the performance
of the duties and functions of the office, furnishing this Office and the Civil
The Case Service Commission with copies of your Oath of Office.

This is a petition for certiorari and prohibition[1] with a prayer for the issuance of a writ
of preliminary injunction 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. The petition also seeks to prohibit
respondents from performing the duties of department secretaries.
Antecedent Facts
(signed)
Gloria Arroyo
Respondents took their oath of office and assumed duties as acting secretaries.
On 8 September 2004, Aquilino Q. Pimentel, Jr. (Senator Pimentel), Edgardo J. Angara (Senator
Angara), Juan Ponce Enrile (Senator Enrile), Luisa P. Ejercito-Estrada (Senator Ejercito-
Estrada), Jinggoy E. Estrada (Senator Estrada), Panfilo M. Lacson (Senator Lacson), Alfredo S.
Lim (Senator Lim), Jamby A.S. Madrigal (Senator Madrigal), and Sergio R. Osmea, III (Senator
Osmea) (petitioners) filed the present petition as Senators of the Republic of the Philippines.

The Senate and the House of Representatives (Congress) commenced their
regular session on 26 July 2004. The Commission on Appointments, composed of
Senators and Representatives, was constituted on 25 August 2004.
Meanwhile, President Arroyo issued appointments[2] 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[3] to respondents as secretaries of the departments to
which they were previously appointed in an acting capacity. The appointment papers are
uniformly worded as follows:
Sir:
 Pursuant to the provisions of existing laws, you are hereby
appointed SECRETARY [AD INTERIM], DEPARTMENT OF (appropriate
department).
By virtue hereof, you may qualify and enter upon the performance
of the duties and functions of the office, furnishing this Office and the Civil
Service Commission with copies of your oath of office.
(signed)
Gloria Arroyo
Issue
The petition questions the constitutionality of President Arroyos appointment of
respondents as acting secretaries without the consent of the Commission on Appointments
while Congress is in session.
The Courts Ruling
The petition has no merit.
Preliminary Matters
On the Mootness of the Petition
The Solicitor General argues that the petition is moot because President Arroyo had extended to
respondents ad interim appointments on 23 September 2004 immediately after the recess of
Congress.
As a rule, the writ of prohibition will not lie to enjoin acts already done. [4] However, as
an exception to the rule on mootness, courts will decide a question otherwise moot if it is
capable of repetition yet evading review.[5]
In the present case, the mootness of the petition does not bar its resolution. The question of the
constitutionality of the Presidents appointment of department secretaries in an acting capacity
while Congress is in session will arise in every such appointment.
On the Nature of the Power to Appoint
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.[6] Limitations on the executive power to appoint are construed strictly
against the legislature.[7] 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.[8]
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.
Thus:
xxx The Commission on Appointments is a creature of the Constitution.
Although its membership is confined to members of Congress, said
Commission is independent of Congress. The powers of the Commission do
not come from Congress, but emanate directly from the Constitution. Hence,
it is not an agent of Congress. In fact, the functions of the Commissioner are
purely executive in nature. xxx[9]
On Petitioners Standing
The Solicitor General states that the present petition is a quo warranto proceeding because, with
the exception of Secretary Ermita, petitioners effectively seek to oust respondents for unlawfully
exercising the powers of department secretaries. The Solicitor General further states that
petitioners may not claim standing as Senators because no power of the Commission on
Appointments has been infringed upon or violated by the President. xxx If at all, the Commission
on Appointments as a body (rather than individual members of the Congress) may possess
standing in this case.[10]
Petitioners, on the other hand, state that the Court can exercise its certiorari jurisdiction over
unconstitutional acts of the President.[11] Petitioners further contend that they possess standing
because President Arroyos appointment of department secretaries in an acting capacity while
Congress is in session impairs the powers of Congress. Petitioners cite Sanlakas v. Executive
Secretary[12] as basis, thus:
To the extent that the powers of Congress are impaired, so is the
power of each member thereof, since his office confers a right to participate
in the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress
causes a derivative but nonetheless substantial injury, which can be
questioned by a member of Congress. In such a case, any member of
Congress can have a resort to the courts.
Considering the independence of the Commission on Appointments from Congress, it is error for
petitioners to claim standing in the present case as members of Congress. President Arroyos
issuance of acting appointments while Congress is in session impairs no power of Congress.
Among the petitioners, only the following are members of the Commission on Appointments of
the 13th Congress: Senator Enrile as Minority Floor Leader, Senator Lacson as Assistant
Minority Floor Leader, and Senator Angara, Senator Ejercito-Estrada, and Senator Osmea as
members.
Thus, on the impairment of the prerogatives of members of the Commission on
Appointments, only Senators Enrile, Lacson, Angara, Ejercito-Estrada, and Osmea have
standing in the present petition. This is in contrast to Senators Pimentel, Estrada, Lim, and
Madrigal, who, though vigilant in protecting their perceived prerogatives as members of
Congress, possess no standing in the present petition.

The Constitutionality of President Arroyos Issuance
of Appointments to Respondents as Acting Secretaries
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. [13] Petitioners base their argument
on Section 10, Chapter 2, Book IV of Executive Order No. 292 (EO 292), [14] which enumerates
the powers and duties of the undersecretary. Paragraph 5 of Section 10 reads:
SEC. 10. Powers and Duties of the Undersecretary. - The
Undersecretary shall:
xxx
(5) Temporarily discharge the duties of the Secretary in the latters
absence or inability to discharge his duties for any cause or in case of
vacancy of the said office, unless otherwise provided by law. Where there
are more than one Undersecretary, the Secretary shall allocate the
foregoing powers and duties among them. The President shall likewise
make the temporary designation of Acting Secretary from among them; and
xxx
Petitioners further assert that while Congress is in session, there can be no appointments,
whether regular or acting, to a vacant position of an office needing confirmation by the
Commission on Appointments, without first having obtained its consent. [15]
In sharp contrast, respondents maintain that the President can issue appointments in an acting
capacity to department secretaries without the consent of the Commission on Appointments
even while Congress is in session. Respondents point to Section 16, Article VII of the 1987
Constitution. Section 16 reads:
SEC. 16. The President shall nominate and, with the consent of
the Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or officers
of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution. He shall
also appoint all other officers of the Government whose appointments are
not otherwise provided for by law, and those whom he may be authorized by
law to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
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.
Respondents also rely on EO 292, which devotes a chapter to the Presidents power of
appointment. Sections 16 and 17, Chapter 5, Title I, Book III of EO 292 read:
SEC. 16. Power of Appointment. The President shall exercise
the power to appoint such officials as provided for in the Constitution
and laws.
SEC. 17. Power to Issue Temporary Designation. (1) The
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, appointment to which is
vested in him by law, when: (a) the officer regularly appointed to the
office is unable to perform his duties by reason of illness, absence or
any other cause; or (b) there exists a vacancy[.]
(2) The person designated shall receive the compensation
attached to the position, unless he is already in the government service in
which case he shall receive only such additional compensation as, with his
existing salary, shall not exceed the salary authorized by law for the position
filled. The compensation hereby authorized shall be paid out of the funds
appropriated for the office or agency concerned.
(3) In no case shall a temporary designation exceed one (1)
year. (Emphasis supplied)
Petitioners and respondents maintain two diametrically opposed lines of thought. Petitioners
assert that the President cannot issue appointments in an acting capacity to department
secretaries while Congress is in session because the law does not give the President such
power. In contrast, respondents insist that the President can issue such appointments because
no law prohibits such appointments.
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.[16]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.
Petitioners assert that Section 17 does not apply to appointments vested in the President by the
Constitution, because it only applies to appointments vested in the President by law. Petitioners
forget that Congress is not the only source of law. Law refers to the Constitution, statutes or acts
of Congress, municipal ordinances, implementing rules issued pursuant to law, and judicial
decisions.[17]

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.

In distinguishing ad interim appointments from appointments in an acting capacity, a

noted textbook writer on constitutional law has observed:

Ad-interim appointments must be distinguished from

appointments in an acting capacity. Both of them are effective upon
acceptance. But ad-interim 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.[18]

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.

WHEREFORE, we DISMISS the present petition for certiorari and prohibition.

SO ORDERED.