Petitioner Vs Vs Respondent: en Banc

EN BANC
[G.R. No. 191618. November 23, 2010.]
ATTY. ROMULO B. MACALINTAL , petitioner, vs . PRESIDENTIAL

TRIBUNAL respondent.
ELECTORAL TRIBUNAL,
DECISION
NACHURA J :
NACHURA, p
Confronting us is an undesignated petition 1 led by Atty. Romulo B. Macalintal

(Atty. 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:
The Supreme Court, sitting en banc, shall be the sole judge of all contests
relating to the election, returns, and quali cations of the President or Vice-
President, and may promulgate its rules for the purpose.
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 con dential
employees, to effect the constitutional mandate. Petitioner's averment is supposedly
supported by the provisions of the 2005 Rules of the Presidential Electoral Tribunal
(2005 PET Rules), 3 specifically:
(1) Rule 3 which provides for membership of the PET wherein the Chief
Justice and the Associate Justices are designated as "Chairman and Members,"
respectively;
(2) Rule 8 (e) which authorizes the Chairman of the PET to appoint
employees and confidential employees of every member thereof;
(3) Rule 9 which provides for a separate "Administrative Staff of the Tribunal"
with the appointment of a Clerk and a Deputy Clerk of the Tribunal who, at the
discretion of the PET, may designate the Clerk of Court (en banc) as the Clerk of the
Tribunal; and
(4) Rule 11 which provides for a "seal" separate and distinct from the
Supreme Court seal. AHCTEa
Grudgingly, petitioner throws us a bone by acknowledging that the invoked

constitutional provision does allow the "appointment of additional personnel."
Further, petitioner highlights our decision in Buac v. COMELEC 4 which
peripherally declared that "contests involving the President and the Vice-President fall
within the exclusive original jurisdiction of the PET, . . . in the exercise of quasi-judicial
power." On this point, petitioner reiterates that the constitution of the PET, with the
designation of the Members of the Court as Chairman and Members thereof,
contravenes Section 12, Article VIII of the Constitution, which prohibits the designation
of Members of the Supreme Court and of other courts established by law to any agency
performing quasi-judicial or administrative functions.
CD Technologies Asia, Inc. © 2018 cdasiaonline.com
The O ce of the Solicitor General (OSG), as directed in our Resolution dated
April 6, 2010, led a Comment 5 thereon. At the outset, the OSG points out that the
petition led by Atty. Macalintal is unspeci ed and without statutory basis; "the liberal
approach in its preparation . . . is a violation of the well known rules of practice and
pleading in this jurisdiction."
In all, the OSG crystallizes the following issues for resolution of the Court:
I
WHETHER . . . PETITIONER HAS LOCUS STANDI TO FILE THE INSTANT

PETITION.
II
WHETHER . . . THE CREATION OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS

UNCONSTITUTIONAL FOR BEING A VIOLATION OF PARAGRAPH 7, SECTION 4 OF
ARTICLE VII OF THE 1987 CONSTITUTION.
III
WHETHER . . . THE DESIGNATION OF MEMBERS OF THE SUPREME COURT AS

MEMBERS OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS
UNCONSTITUTIONAL FOR BEING A VIOLATION OF SECTION 12, ARTICLE VIII OF
THE 1987 CONSTITUTION. 6
In his Reply, 7 petitioner maintains that:

1. He has legal standing to le the petition given his averment of
transcendental importance of the issues raised therein;
2. The creation of the PET, a separate tribunal from the Supreme Court,
violates Section 4, Article VII of the Constitution; and
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. ACcTDS
But rst, 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 : 1 0
"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 di cult questions." 1 1 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 1 2 illuminate:
The di culty of determining locus standi arises in public suits.
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 su cient interest in the vindication of the public order and the securing of
relief as a" citizen" or "taxpayer."
xxx xxx xxx
However, to prevent just about any person from seeking judicial

interference in any o cial policy or act with which he disagreed with, and thus
hinders the activities of governmental agencies engaged in public service, the
direct injury " test in
United States Supreme Court laid down the more stringent "direct
Ex Parte Levitt, later rea rmed 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 su cient that he has a
general interest common to all members of the public. public caHIAS
direct injury " test in our jurisdiction. In People v.

This Court adopted the "direct
Vera, it held that the person who impugns the validity of a statute must have "a a
personal and substantial interest in the case such that he has
result The Vera doctrine was
sustained, or will sustain direct injury as a result."
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, Cases Araneta v. Dinglasan, where the
"transcendental
transcendental importance"
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
far-reaching implications"
implications
of the petition notwithstanding its categorical statement that petitioner therein
had no personality to le 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.
xxx xxx xxx
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,
taxpayers there must be a claim of illegal disbursement of
public funds or that the tax measure is unconstitutional;
(3) f or voters,
voters there must be a showing of obvious interest in the
validity of the election law in question;
(4) for concerned citizens,

citizens there must be a showing that the issues
raised are of transcendental importance which must be settled early;
and
(5) f o r legislators,
legislators there must be a claim that the o cial 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. . . . 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 petitioner's 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, petitioner's 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 led by 2004
presidential candidate Fernando Poe, Jr. before the Presidential Electoral Tribunal, 1 3
because judicial inquiry, as mentioned above, requires that the constitutional question
be raised at the earliest possible opportunity. 1 4 Such appearance as counsel before
the Tribunal, to our mind, would have been the rst opportunity to challenge the
constitutionality of the Tribunal's constitution.
Although there are recognized exceptions to this requisite, we nd 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 Tribunal's authority over the
case he was defending, translates to the clear absence of an indispensable requisite for
the proper invocation of this Court's power of judicial review. Even on this score alone,
the petition ought to be dismissed outright.
Prior to petitioner's appearance as counsel for then protestee Macapagal-Arroyo,
we had occasion to a rm the grant of original jurisdiction to this Court as a
Presidential Electoral Tribunal in the auspicious case of Tecson v. Commission on
Elections. 1 5 Thus — AEIHCS
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 quali cations 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 quali cations 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 quali cations 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. 1 6
Similarly, in her separate opinion, Justice Alicia Austria-Martinez declared:

G.R. Nos. 161434 and 161634 invoke the Court's 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. HCaDET
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 speci cally and exclusively clothed with jurisdiction
by the Constitution to act respectively as "sole judge of all contests relating to the
election, returns, and quali cations" 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 led after the proclamation of
the winner. 1 7
Petitioner, a prominent election lawyer who has led 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), 1 8 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 a rmed in Tecson v.
Commission on Elections 1 9 is that the Supreme Court has original jurisdiction to
decide presidential and vice-presidential election protests while concurrently acting as
an independent Electoral Tribunal.
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.
Petitioner's 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, petitioner's concept of
this adjunct of judicial power is very restrictive. Fortunately, thanks in no part to
petitioner's 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 signi cance thus attached to them prevails. This Court, speaking
through former Chief Justice Enrique Fernando, in J.M. Tuason & Co., Inc. v. Land Tenure
Administration 2 0 instructs:
As the Constitution is not primarily a lawyer's document, it being essential
for the rule of law to obtain that it should ever be present in the people's
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. TSIDEa
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. 2 1 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. 2 2 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: 2 3
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., 2 4 to wit:
[T]he members of the Constitutional Convention could not have dedicated
a provision of our Constitution merely for the bene t 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. aEcADH
Before we resort to the records of the Constitutional Commission, we discuss

the framework of judicial power mapped out in the Constitution. Contrary to petitioner's
assertion, the Supreme Court's constitutional mandate to act as sole judge of election
contests involving our country's highest public o cials, 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: 2 5
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
Court's judicial power as sole judge of presidential and vice-presidential election
contests, and to promulgate its rules for this purpose, we nd 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. 2 6 cDAEIH
xxx xxx xxx
MR. NOLLEDO.
....
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. 2 7
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. 2 8 cTCEIS
Echoing the same sentiment and a rming the grant of judicial power to the
Supreme Court, Justice Florenz D. Regalado 2 9 and Fr. Joaquin Bernas 3 0 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:
relating to the election, returns and quali cations of the President or Vice-
President.
May I seek clari cation as to whether or not the matter of
determining the outcome of the contests relating to the election
returns and quali cations 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.
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 led 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 con ict 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."
TcHEaI
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.
power 3 1
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. 3 2
Consequently, we nd 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 o ce 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 in uenced
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. STECDc
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. 3 3
To ll 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 o cers, and employees necessary for the e cient 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 modi cations 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 O ce
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 O ce 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. DcaSIH
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 o cers
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
speci c 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 o cers 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.
....
. . . . 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. 3 4
Clearly, petitioner's 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 in rmity 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
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. cDSaEH
cDSaEH
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 led 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.
xxx xxx xxx
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.
MR. CONCEPCION.
I think Commissioner Bernas explained that this is a contest between two

parties. This is a judicial power.
MR. SUAREZ.
political action.
MR. CONCEPCION.
There are legal rights which are enforceable under the law, and these are
essentially justiciable questions.
EDcICT
MR. SUAREZ.

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 Commissioner's 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. cTCaEA
MR. SUAREZ.
In one year. Thank you for the clarification. 3 5
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 justi es 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. 3 6 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 speci ed in the provision,
the grant of power does not contain any limitation on the Supreme Court's exercise
thereof. The Supreme Court's 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), 3 7 which we have a rmed on numerous
occasions. 3 8
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.
....
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? CSTDIE
xxx xxx xxx
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 nd 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. 3 9
The view taken by Justices Adolfo S. Azcuna 4 0 and Regalado E. Maambong 4 1 is

schooled by our holding in Lopez v. Roxas, et al.: 4 2
Section 1 of Republic Act No. 1793, which provides that:
"There shall be an independent Presidential Electoral Tribunal . . .

which shall be the sole judge of all contests relating to the election, returns,
and quali cations 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 o ce 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 o ce. 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. SDEHIa
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
rst instance perform the functions of such ordinary courts of rst 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 co u rt (court of rst instance or

municipal court) is only one , although the functions may be distinct
and, even, separate. Thus the powers of a court of rst 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 rst 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 rst
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 o n e court of rst instance, clothed with authority to
discharge said dual functions. A court of rst 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
rst 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 de es — 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 Tribunal's functions as
a special electoral court.
As regards petitioner's 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 4 3 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." CaASIc
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 con icts involving rights, duties or prerogatives that are legally
demandable and enforceable" 4 4 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." 4 5 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 .
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 led 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. 4 6
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, 4 7 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 de nition of the
powers of government." And yet, at that time, the 1935 Constitution did not contain the
expanded de nition 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 latter's exercise of judicial power inherent in all courts, 4 8 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 rst to
acknowledge that this is not so. The Constitution which, in Section 17, Article VI,
explicitly provides that three Supreme 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 4 9
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 speci cally 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 petitioner's, should not constrict an
absolute and constitutional grant of judicial power.
One nal note. Although this Court has no control over contrary people and
naysayers, we reiterate a word of caution against the ling of baseless petitions which
only clog the Court's docket. The petition in the instant case belongs to that
classification. cASEDC
WHEREFORE , the petition is DISMISSED.

DISMISSED Costs against petitioner.
SO ORDERED.
ORDERED
Corona, C.J., Carpio, Carpio Morales, Velasco, Jr., Leonardo-de Castro, Brion,
Peralta, Bersamin, Abad, Villarama, Jr., Perez, Mendoza and Sereno, JJ., concur.
Del Castillo, J., is on official leave.
Footnotes
1.Rollo, pp. 3-9.
2.Paragraph 7.
3.On May 4, 2010, the 2010 Rules of the Presidential Electoral Tribunal (2010 PET Rules) took
effect.

EN BANC
[G.R. No. 191618. June 7, 2011.]
ATTY. ROMULO B. MACALINTAL , petitioner, vs . PRESIDENTIAL

TRIBUNAL respondent.
ELECTORAL TRIBUNAL,
RESOLUTION
NACHURA J :
NACHURA, p
Before us is a Motion for Reconsideration led by petitioner Atty. Romulo B.

Macalintal of our Decision 1 in G.R. No. 191618 dated November 23, 2010, dismissing
his petition and declaring the establishment of respondent Presidential Electoral
Tribunal (PET) as constitutional.
Petitioner reiterates his arguments on the alleged unconstitutional creation of
the PET:
1. He has standing to file the petition as a taxpayer and a concerned citizen.
2. He is not estopped from assailing the constitution of the PET simply by
virtue of his appearance as counsel of former president Gloria Macapagal-Arroyo
before respondent tribunal. HTAIcD
3. Section 4, Article VII of the Constitution does not provide for the creation
of the PET.
4. The PET violates Section 12, Article VIII of the Constitution.
To bolster his arguments that the PET is an illegal and unauthorized progeny of
Section 4, Article VII of the Constitution, petitioner invokes our ruling on the
constitutionality of the Philippine Truth Commission (PTC). 2 Petitioner cites the
concurring opinion of Justice Teresita J. Leonardo-de Castro that the PTC is a public
o ce which cannot be created by the President, the power to do so being lodged
exclusively with Congress. Thus, petitioner submits that if the President, as head of the
Executive Department, cannot create the PTC, the Supreme Court, likewise, cannot
create the PET in the absence of an act of legislature.
On the other hand, in its Comment to the Motion for Reconsideration, the O ce
of the Solicitor General maintains that:
1. Petitioner is without standing to file the petition.
2. Petitioner is estopped from assailing the jurisdiction of the PET.
3. The constitution of the PET is "on rm footing on the basis of the grant of
authority to the [Supreme] Court to be the sole judge of all election contests for the
President or Vice-President under paragraph 7, Section 4, Article VII of the 1987
Constitution." DcICEa
Except for the invocation of our decision in Louis "Barok" C. Biraogo v. The
Philippine Truth Commission of 2010 , 3 petitioner does not allege new arguments to
warrant reconsideration of our Decision.

We cannot agree with his insistence that the creation of the PET is
unconstitutional. We reiterate that 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
provision reads:
Sec. 4. ...
relating to the election, returns, and quali cations of the President or Vice-
President, and may promulgate its rules for the purpose. CcAHEI
We mapped out the discussions of the Constitutional Commission on the

foregoing provision and concluded therefrom that:
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 Court's judicial power as sole judge of presidential and vice-
presidential election contests, and to promulgate its rules for this purpose, we nd
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. SEHTAC
SEHTAC
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.
xxx xxx xxx

MR. NOLLEDO . . . .
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. DaTEIc
DaTEIc
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.

MR. CONCEPCION.
I think Commissioner Bernas explained that this is a contest
between two parties. This is a judicial power.
MR. SUAREZ.
political action. TDcHCa
MR. CONCEPCION.
There are legal rights which are enforceable under the law, and
these are essentially justiciable questions.
MR. SUAREZ.

President.
Echoing the same sentiment and a rming the grant of judicial power to
the Supreme Court, Justice Florenz D. Regalado and Fr. Joaquin Bernas 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:
President.IHCDAS
May I seek clari cation as to whether or not the matter of

determining the outcome of the contests relating to the election
returns and quali cations 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. ETHCDS
ETHCDS
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 led 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 con ict 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.
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. HScAEC
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.
4
Stubbornly, despite the explicit reference of the Members of the Constitutional

Commission to a Presidential Electoral Tribunal , with Fr. Joaquin Bernas categorically
declaring that in crafting the last paragraph of Section 4, Article VII of the Constitution,
they "constitutionalize[d] what was statutory," petitioner continues to insist that the last
paragraph of Section 4, Article VII of the Constitution does not provide for the creation
of the PET. Petitioner is adamant that "the fact that [the provision] does not expressly
prohibit [the] creation [of the PET] is not an authority for the Supreme Court to create
the same."
Petitioner is going to town under the misplaced assumption that the text of the
provision itself was the only basis for this Court to sustain the PET's constitutionality.
We reiterate that the PET is authorized by the last paragraph of Section 4, Article
VII of the Constitution and as supported by the discussions of the Members of the
Constitutional Commission, which drafted the present Constitution.
The explicit reference by the framers of our Constitution to constitutionalizing
what was merely statutory before is not diluted by the absence of a phrase, line or
word, mandating the Supreme Court to create a Presidential Electoral Tribunal. IHCSET
Su ce it to state that the Constitution, verbose as it already is, cannot contain

the speci c wording required by petitioner in order for him to accept the
constitutionality of the PET.
In our Decision, we clarified the structure of the PET:
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
President.HSEIAT
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. SAHIaD
SAHIaD
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 led 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.
xxx xxx xxx
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.
separation of powers? ADaSET
MR. CONCEPCION.
I think Commissioner Bernas explained that this is a contest between two
parties. This is a judicial power.
MR. SUAREZ.
political action.
MR. CONCEPCION.
There are legal rights which are enforceable under the law, and these are
essentially justiciable questions.
MR. SUAREZ.
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.
DcCEHI
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 Commissioner's 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. 5
Judicial power granted to the Supreme Court by the same Constitution is plenary.
And under the doctrine of necessary implication, the additional jurisdiction bestowed
by the last paragraph of Section 4, Article VII of the Constitution to decide presidential
and vice-presidential elections contests includes the means necessary to carry it into
effect. Thus:
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. 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. EAcHCI
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
Court's exercise thereof. The Supreme Court's 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), which we have a rmed on
numerous occasions. 6
Next, petitioner still claims that the PET exercises quasi-judicial power and, thus,
its members violate the proscription in Section 12, Article VIII of the Constitution, which
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.
We dispose of this argument as we have done in our Decision, viz.:

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 con icts involving rights, duties or prerogatives that are
legally demandable and enforceable" 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." The power was
expanded, but it remained absolute. AaSHED
The set up embodied in the Constitution and statutes characterizes the

resolution of electoral contests as essentially an exercise of judicial
power.
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 led 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.
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 , 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
de nition of the powers of government." And yet, at that time, the 1935
Constitution did not contain the expanded de nition 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 latter's exercise of judicial power inherent in
all courts, 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 rst to acknowledge that this is not so. The Constitution which, in Section 17,
Article VI, explicitly provides that three Supreme 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. HSacEI
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 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
speci cally 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 petitioner's, should not constrict an absolute and constitutional
grant of judicial power. 7
Finally, petitioner's application of our decision in Biraogo v. Philippine Truth

Commission 8 to the present case is an unmitigated quantum leap.
The decision therein held that the PTC " nds justi cation under Section 17,
Article VII of the Constitution." A plain reading of the constitutional provisions, i.e., last
paragraph of Section 4 and Section 17, both of Article VII on the Executive Branch,
reveals that the two are differently worded and deal with separate powers of the
Executive and the Judicial Branches of government. And as previously adverted to, the
basis for the constitution of the PET was, in fact, mentioned in the deliberations of the
Members of the Constitutional Commission during the drafting of the present
Constitution.
WHEREFORE , the Motion for Reconsideration is DENIED. Our Decision in G.R.
No. 191618 STANDS.
SO ORDERED.
Corona, C.J., Carpio, Carpio Morales, Velasco, Jr., Leonardo-de Castro, Brion,
Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr., Perez, Mendoza and Sereno, JJ.,
concur.
Footnotes
1.Rollo, pp. 71-102.

2.Entitled "Biraogo v. Philippine Truth Commission " and "Lagman v. Executive Secretary ,"
docketed as G.R. Nos. 192935 and 193036, respectively, and promulgated on December
7, 2010.
3.G.R. No. 192935, December 7, 2010.
4.Atty. Romulo B. Macalintal v. Presidential Electoral Tribunal , G.R. No. 191618, November 23,
2010.
5.Id.
6.Id.
7.Id.
EN BANC
[G.R. No. 191644. February 19, 2013.]
FUNA petitioner, vs . ACTING SECRETARY OF JUSTICE

DENNIS A.B. FUNA,
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.
PRESIDENT respondents.
MENDOZA, OFFICE OF THE PRESIDENT,
DECISION
BERSAMIN J :
BERSAMIN, p
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 o ce 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 o cial from holding any other
o ce 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 Agra's 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 AHCTEa
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
CD Technologies Asia, Inc. 2018 cdasiaonline.com
Solicitor General. 4
Notwithstanding the con ict in the versions of the parties, the fact that Agra has
admitted to holding the two o ces concurrently in acting capacities is settled, which is
su cient for purposes of resolving the constitutional question that petitioner raises
herein.
The Case
I n 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 O cer-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 Secretary 6 and 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 o cio position in relation to the
position of the Secretary of Justice, considering that the O ce of the Solicitor General
(OSG) is an independent and autonomous o ce 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 o ce in an ex o cio capacity
because an ex officio position does not require any further warrant or appointment. DcCIAa
Respondents contend, in contrast, that Agra's 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
o ces 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 Agra's
concurrent designation constituted "holding of multiple o ces," his continued service
as the Acting Solicitor General was akin to a hold-over; that upon Agra's 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 o ces 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 quali ed" 1 0 to "prevent a
hiatus in the government pending the time when a successor may be chosen and
inducted into o ce;" 1 1 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. 1 2
Respondents point out that the OSG's independence and autonomy are de ned
by the powers and functions conferred to that o ce by law, not by the person
appointed to head such o ce; 1 3 and that although the OSG is attached to the DOJ, the
DOJ's authority, control and supervision over the OSG are limited only to budgetary
purposes. 1 4
In his reply, petitioner counters that there was no "prevailing special
circumstance" that justi ed the non-application to Agra of Section 13, Article VII of the
1987 Constitution; 1 5 that the temporariness of the appointment or designation is not
an excuse to disregard the constitutional ban against holding of multiple o ces by the
Members of the Cabinet; 1 6 that Agra's 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 Agra's concurrent designations further violated the Administrative Code of
1987 which mandates that the OSG shall be autonomous and independent. 1 7
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 o ces for the Members of the Cabinet and their deputies and
assistants? DHIaTS
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. 1 8
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, 1 9 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 o cial 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 signi cance
is at stake. The rule on locus standi is after all a mere procedural
technicality in relation to which the Court, in a c a t e n a 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,
sue thusly:
1.) For taxpayers, there must be a claim of illegal disbursement
of public funds or that the tax measure is unconstitutional;
DSETac
2.) For voters, there must be a showing of obvious interest in

the validity of the election law in question;
3.) F or 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 o cial 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. 2 0 (Bold emphasis supplied)
In Funa v. Ermita , 2 1 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. 2 2 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. 2 3 aEHASI
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. 2 4 In other words,
many important and practical bene ts are still to be gained were the Court to proceed
to the ultimate resolution of the constitutional issue posed.
2.
Unconstitutionality of Agra's 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 o ce or employment during their tenure. They shall
not, during said tenure, directly or indirectly practice any other profession,
participate in any business, or be nancially 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 con ict 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.. . .
Unless otherwise allowed by law or the primary functions of his position,

no appointive o cial shall hold any other o ce or employment in the
Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries. HTCSDE
The differentiation of the two constitutional provisions was well stated in Funa v.
Ermita, 2 5 a case in which the petitioner herein also assailed the designation of DOTC
Undersecretary as concurrent O cer-in-Charge of the Maritime Industry Authority, with
the Court reiterating its pronouncement in Civil Liberties Union v. The Executive
Secretary 2 6 on the intent of the Framers behind these provisions of the Constitution,
viz.:
Thus, while all other appointive o cials in the civil service are allowed to
hold other o ce 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 o cials 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.
xxx xxx xxx

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 o ces 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
o ces 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: 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.) cCDAHE
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 o ce or employment during his tenure as
the Acting Solicitor General, because the Constitution has not otherwise so provided. 2 7
It was of no moment that Agra's 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 o ces or employments in the Government or in
government-owned or government controlled-corporations was concerned. 2 8 In this
regard, to hold an o ce means to possess or to occupy the o ce, or to be in
possession and administration of the o ce, which implies nothing less than the actual
discharge of the functions and duties of the office. 2 9 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 o ces being held by one
o cial 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
1 3 , supra, is to prevent the concentration of powers in the Executive Department
o cials, speci cally the President, the Vice-President, the Members of the Cabinet and
their deputies and assistants. 3 0 To construe differently is to "open the veritable
oodgates of circumvention of an important constitutional disquali cation of o cials
in the Executive Department and of limitations on the President's power of appointment
in the guise of temporary designations of Cabinet Members, undersecretaries and
assistant secretaries as o cers-in-charge of government agencies, instrumentalities,
or government-owned or controlled corporations." 3 1
According to Public Interest Center, Inc. v. Elma , 3 2 the only two exceptions
against the holding of multiple o ces 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 o cials speci ed in
Section 13, Article VII without additional compensation in ex o cio capacities as
provided by law and as required by the primary functions of the o cials' o ces. 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 o cials given the rank of Secretary, Undersecretary or Assistant
Secretary. 3 3 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. 3 4 TCaEIc

It is equally remarkable, therefore, that Agra's designation as the Acting
Secretary of Justice was not in an ex o cio capacity, by which he would have been
validly authorized to concurrently hold the two positions due to the holding of one
o ce 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 o ces 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 o cials 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 o ce or position in the government during their
tenure. 3 5
To underscore the obvious, it is not su cient for Agra to show that his holding of
the other o ce 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, Agra's concurrent designations as Acting Secretary of Justice and
Acting Solicitor General did not come within the de nition of an ex officio capacity. Had
either of his concurrent designations been in an ex o cio capacity in relation to the
other, the Court might now be ruling in his favor.
The import of an ex o cio capacity has been ttingly explained in Civil Liberties
Union v. Executive Secretary, 3 6 as follows:
. . . . The term ex officio means "from o ce; by virtue of o ce." It refers to
an "authority derived from o cial character merely, not expressly conferred upon
the individual character, but rather annexed to the o cial position." Ex o cio
likewise denotes an "act done in an o cial character, or as a consequence of
o ce, and without any other appointment or authority other than that conferred
by the o ce." 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. . . . .
EAISDH
xxx xxx xxx

The ex o cio position being actually and in legal contemplation part of
the principal o ce, it follows that the o cial 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. . . . .
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." 3 7 The DOJ's
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 TCHEDA
(8) Perform such other functions as may be provided by law. 3 8
On the other hand, the Administrative Code of 1987 confers upon the O ce of
the Solicitor General the following powers and functions, to wit:
The O ce of the Solicitor General shall represent the Government of the
Philippines, its agencies and instrumentalities and its o cials and agents in any
litigation, proceeding, investigation or matter requiring the services of lawyers.
When authorized by the President or head of the o ce concerned, it shall also
represent government owned or controlled corporations. The O ce 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 o cers 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 o cer
thereof in his official capacity is a party.
2. Investigate, initiate court action, or in any manner proceed against
any person, corporation or rm 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. IECAaD
6. Prepare, upon request of the President or other proper o cer 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 o cial 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 scal 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 scal. When so deputized, the scal shall be
under the control and supervision of the Solicitor General with regard to the
conduct of the proceedings assigned to the scal, and he may be required to
render reports or furnish information regarding the assignment.
8. Deputize legal o cers of government departments, bureaus,
agencies and o ces to assist the Solicitor General and appear or represent the
Government in cased involving their respective o ces, brought before the courts
and exercise supervision and control over such legal O cers with respect to such
cases.
9. Call on any department, bureau, o ce, agency or instrumentality of
the Government for such service, assistance and cooperation as may be
necessary in ful lling 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, o ces, instrumentalities and

corporations to whom the O ce of the Solicitor General renders legal services are
authorized to disburse funds from their sundry operating and other funds for the
latter O ce. For this purpose, the Solicitor General and his staff are speci cally
authorized to receive allowances as may be provided by the Government o ces,
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
acSECT
13. Perform such other functions as may be provided by law. 3 9

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, 4 0 is not a constituent unit of the latter, 4 1 as, in
fact, the Administrative Code of 1987 decrees that the OSG is independent and
autonomous. 4 2 With the enactment of Republic Act No. 9417, 4 3 the Solicitor General
is now vested with a cabinet rank, and has the same quali cations for appointment,
rank, prerogatives, salaries, allowances, bene ts and privileges as those of the
Presiding Justice of the Court of Appeals. 4 4
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 o cial 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: 4 5
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 bene ts 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 o ces 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 ine ciency.
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 bene ts, if any, that may be gained from a
department head spreading himself too thin and taking in more than what he can
handle.
It is not amiss to observe, lastly, that assuming that Agra, as the Acting Solicitor
General, was not covered by the stricter prohibition under Section 13, supra, due to
such position being merely vested with a cabinet rank under Section 3, Republic Act No.
9417, he nonetheless remained covered by the general prohibition under Section 7,
supra. Hence, his concurrent designations were still subject to the conditions under the
latter constitutional provision. In this regard, the Court aptly pointed out in Public
Interest Center, Inc. v. Elma: 4 6 HDIaET
The general rule contained in Article IX-B of the 1987 Constitution permits
an appointive o cial to hold more than one o ce only if "allowed by law or by
the primary functions of his position." In the case of Quimson v. Ozaeta , this
Court ruled that, "[t]here is no legal objection to a government o cial occupying
two government o ces and performing the functions of both as long as there is
no incompatibility. " The crucial test in determining whether incompatibility exists
between two o ces was laid out in People v. Green — whether one o ce is
subordinate to the other, in the sense that one o ce has the right to interfere with
the other.
[I]ncompatibility between two o ces, is an inconsistency in the

functions of the two; . . . Where one o ce 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 discharge the duties of
one, toward the incumbent of the other. . . . The o ces must subordinate,
one [over] the other, and they must, per se, have the right to interfere, one
with the other, before they are incompatible at common law. . . . .
xxx xxx xxx
While Section 7, Article IX-B of the 1987 Constitution applies in general to
all elective and appointive o cials, 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
clari ed the scope of the prohibition provided in Section 13, Article VII of the 1987
Constitution. Citing the case of US v. Mouat , it speci cally identi ed the persons
who are affected by this prohibition as secretaries, undersecretaries and assistant
secretaries; and categorically excluded public o cers who merely have the rank
of secretary, undersecretary or assistant secretary.
Another point of clari cation 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 o cials 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).
HEScID
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 o cers laid
down therein; failing which, his appointments are hereby pronounced in violation
of the Constitution. 4 7
Clearly, the primary functions of the O ce of the Solicitor General are not related
or necessary to the primary functions of the Department of Justice. Considering that
the nature and duties of the two o ces are such as to render it improper, from
considerations of public policy, for one person to retain both, 4 8 an incompatibility
between the o ces exists, further warranting the declaration of Agra's designation as
the Acting Secretary of Justice, concurrently with his designation as the Acting Solicitor
General, to be void for being in violation of the express provisions of the Constitution.
3.
Effect of declaration of unconstitutionality of Agra's
concurrent appointment; the de facto officer doctrine
In view of the application of the stricter prohibition under Section 13, supra, Agra
did not validly 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 o cer is one who is deemed, in all respects, legally appointed and
qualified and whose term of office has not expired. 4 9
That notwithstanding, Agra was a de facto o cer during his tenure as Acting
Secretary of Justice. In Civil Liberties Union v. Executive Secretary, 5 0 the Court said:
During their tenure in the questioned positions, respondents may be
considered de facto o cers and as such entitled to emoluments for actual
services rendered. It has been held that "in cases where there is no de jure, o cer,
a de facto o cer, who, in good faith has had possession of the o ce and has
discharged the duties pertaining thereto, is legally entitled to the emoluments of
the o ce, and may in an appropriate action recover the salary, fees and other
compensations attached to the o ce. This doctrine is, undoubtedly, supported on
equitable grounds since it seems unjust that the public should bene t by the
services of an o cer 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. SDEHIa
A de facto o cer is one who derives his appointment from one having colorable
authority to appoint, if the o ce is an appointive o ce, and whose appointment is valid
on its face. 5 1 He may also be one who is in possession of an o ce, 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. 5 2 Consequently, the acts of the de facto o cer are just as valid for all
purposes as those of a de jure o cer, in so far as the public or third persons who are
interested therein are concerned. 5 3
In order to be clear, therefore, the Court holds that all o cial 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 o cer legally appointed and
quali ed for the o ce. 5 4 This clari cation is necessary in order to protect the sanctity
of the dealings by the public with persons whose ostensible authority emanates from
the State. 5 5 Agra's o cial actions covered by this clari cation extend to but are not
limited to the promulgation of resolutions on petitions for review led in the
Department of Justice, and the issuance of department orders, memoranda and
circulars relative to the prosecution of criminal cases.
WHEREFORE , the Court 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 Hon. Alberto C. Agra was a de facto o cer during his tenure as
Acting Secretary of Justice.
No pronouncement on costs of suit.
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-de Castro, Brion, Peralta, Del Castillo,
Abad, Villarama, Jr., Perez, Mendoza, Reyes, Perlas-Bernabe and Leonen, JJ., concur.
Footnotes
EN BANC
[G.R. No. 134740. October 23, 2001.]
IRENE V. CRUZ, LILIA H. GUNGON, LOURDES C. FERNANDEZ,

CAROLINNE A. PANALIGAN, and CONCEPCION C. RUBY, in their own
behalf and in representation of their co-employees, numbering
three hundred thirty, in the Sugar Regulatory Administration ,
petitioners, vs . COMMISSION ON AUDIT,
AUDIT respondent.
Arrojado Serrano & Calizo for petitioners.

The Solicitor General for respondent.
SYNOPSIS
Pursuant to legislative enactments, the Sugar Regulatory Administration (SRA)

adopted various resolutions since 1963 granting the payment of social amelioration
bene ts (SAB) to all its employees. Payment of said bene ts was, however, subsequently
suspended by the Auditor of the Commission on Audit. The SRA Administrator requested
that the suspension be lifted, but the COA denied the requests ruling that the SRA's board
resolutions could no longer be considered as the prior authority for the release of the said
bene ts as per Republic Act No. 6758 and Corporate Compensation Circular (CCC) No. 10.
COA further ruled that such bene ts may be granted if there was a prior authority from the
O ce of the President. When SRA obtained a post facto approval/rati cation from the
O ce of the President, they moved for reconsideration of COA's decision. The COA
granted the motion, but allowed payment of the bene ts only to employees hired before
October 31, 1989. Hence, petitioners brought the matter before the Supreme Court.
In granting the petition, the Court found no legal basis for COA's distinction based
on the date the employee was hired. The Court held that the date of hiring of an employee
is not among the factors that shall be taken into consideration in xing compensation or
granting of bene ts. Any distinction among employees must be based on substantial
differences, that is, level or rank, degree of difficulty and amount of work.
The Court further ruled that R.A. No. 6758 and CCC No. 10 did not make any
distinction between those hired before and after October 31, 1989. Neither did the 1st
indorsement of the O ce of the President make any such distinction. Hence, the Court
applied in this case the legal maxim "when the law does not distinguish, neither should the
court."
SYLLABUS
1. LABOR AND SOCIAL LEGISLATION; EMPLOYMENT; COMPENSATION AND

BENEFITS; DISTINCTION AMONG EMPLOYEES MUST BE BASED ON SUBSTANTIAL
DIFFERENCES; DATE OF HIRING OF AN EMPLOYEE; NOT A SUBSTANTIAL DISTINCTION IN
FIXING COMPENSATION AND GRANT OF BENEFITS. — The classi cation of COA as to
who were entitled to the SAB and excluding therefrom those employees hired after
October 31, 1989, has no legal basis. The date of hiring of an employee can not be
considered as a substantial distinction. The employees, based on the title or position they
were holding, were exposed to the same type of work, regardless of the date they were
hired. The date of hiring is not among the factors that shall be taken into consideration in
xing compensation or granting of bene ts. Evidently, any distinction among employees
must be based on substantial differences, that is, level or rank, degree of di culty and
amount of work. To discriminate against some employees on the basis solely of date of
hiring is to run against the progressive and social policy of the law.
2. ID.; ID.; ID.; SOCIAL AMELIORATION BENEFITS; REPUBLIC ACT NO. 6758 AND
CORPORATE COMPENSATION CIRCULAR NO. 10; DO NOT MAKE ANY DISTINCTION
BETWEEN EMPLOYEES OF SUGAR REGULATORY ADMINISTRATION HIRED BEFORE AND
AFTER OCTOBER 31, 1989; WHEN THE LAW DOES NOT DISTINGUISH, NEITHER SHOULD
THE COURT. — The Commission on Audit, in COA Decision No. 96-020, ruled that the board
resolutions of the Sugar Regulatory Administration could no longer be considered as the
"prior authority" for the release of the social amelioration bene ts as per R.A. No. 6758 and
CCC No. 10. It further ruled that such bene ts may be granted if there was a prior authority
from the O ce of the President. Yet, when the SRA employees were nally able to secure a
post facto approval/rati cation from the O ce of the President, the COA declared, by a
sweeping statement, that only those hired before October 31, 1989, were entitled to the
SAB. It did not mention any legal basis or justi cation for the distinction. R.A. No. 6758 and
CCC No. 10 do not make any distinction between those hired before and after October 31,
1989. Neither did the 1st Indorsement of the O ce of the President make any such
distinction. The legal maxim that "when the law does not distinguish, neither should the
court" apply in this case. aETADI
DECISION
PARDO , J : p
The Case
The case is an appeal via certiorari from the decision of the Commission on Audit
(COA) 1 denying the grant of social amelioration bene ts to employees of the Sugar
Regulatory Administration hired after October 31, 1989.
The Facts
The Sugar Regulatory Administration (SRA, for brevity) is a government owned
corporation. Pursuant to legislative enactments, 2 it adopted various resolutions since
1963 granting the payment of social amelioration bene ts (SAB) to all its employees,
sourced from its corporate funds.
In 1989, Congress enacted Republic Act No. 6758 3 which took effect on July 1,
1989. Pursuant to Section 23 thereof, the Department of Budget and Management (DBM)
issued Corporate Compensation Circular No. 10, 4 the implementing rules and regulations
of the law.
In May 1994, the Resident Auditor of the Commission on Audit in the SRA, Ms.
Juanita A. Villarosa, examined the accounts of SRA. Pursuant to Section 12 of Republic Act
No. 6758, which provides that "such other additional compensation, whether in cash or in
kind, being received by incumbents only as of July 1, 1989, not integrated into the
standardized rates shall continue to be authorized," 5 Ms. Villarosa questioned the legality
of the payment of the SAB to all employees of SRA.
In a letter dated September 8, 1994, the Compensation and Position Classi cation
Bureau, DBM, through its Director, Miguel B. Doctor, stated that there were no con icting
provisions between CCC No. 10 and R.A. No. 6758. The DBM further ruled that the grant of
the SAB had no legal basis and was in violation of R.A. No. 6758. 6
Accordingly, the auditor suspended payment of SAB to SRA employees. The SRA
Administrator, Rodolfo A. Gamboa, led a letter dated September 26, 1994 7 with the COA
requesting the lifting of the suspension. In the meantime, the affected SRA employees
appealed to the Office of the President for the continued grant of SAB. 8
On January 18, 1996, COA 9 denied the request for the lifting of suspension of
payment of SAB. It claimed that upon the effectivity of R.A. No. 6758, the grant of SAB was
no longer allowed unless there was a prior authority from the Department of Budget and
Management or Office of the President or a legislative issuance. 1 0
On May 11, 1996, the O ce of the President, through Executive Secretary Ruben D.
Torres, issued a 1st Indorsement, granting post facto approval/rati cation of the SAB to
SRA employees. 1 1
On the basis of the 1st Indorsement of the O ce of the President, the SRA led a
motion for reconsideration with the COA for the lifting of the suspension of payment of
SAB to its employees. In its decision 1 2 dated November 4, 1997, COA set aside Decision
No. 96-020. The COA allowed the payment of SAB to SRA employees but only to those
hired before October 31, 1989. Other employees remained not entitled to said benefits.
On January 21, 1998, the SRA led with COA a motion for partial reconsideration
claiming that the authority granted by the O ce of the President covered all employees of
the SRA regardless of the date of hiring. 1 3 In a resolution dated June 23, 1998, 1 4 the COA
denied with finality the motion for partial reconsideration. 1 5
On July 20, 1998, SRA Administrator Nicolas A. Alonso issued a memorandum
ordering the lifting of the disallowance of payment of SAB to all employees hired before
October 31, 1989. Those employees hired after such date were informed that the SAB
granted to them in 1994 "shall be deducted starting September, 1998 thru monthly payroll
deduction within a period of four (4) years, or equivalent to 48 monthly installments." 1 6
Hence, this petition. 1 7
The Issues
The issue to be resolved is whether respondent COA gravely abused its discretion in
denying social amelioration benefits to SRA employees hired after October 31, 1989. TIESCA
On December 22, 1998, the Solicitor General led a manifestation, in lieu of

comment, recommending the reversal of COA Decision Nos. 97-689 and 98-256. 1 8
The Court's Ruling
We grant the petition.
The classi cation of COA as to who were entitled to the SAB and excluding
therefrom those employees hired after October 31, 1989, has no legal basis.
The date of hiring of an employee can not be considered as a substantial distinction.
The employees, based on the title or position they were holding, were exposed to the same
type of work, regardless of the date they were hired. The date of hiring is not among the
factors that shall be taken into consideration in xing compensation or granting of
benefits. R.A. No. 6758, Section 2 provides, thus:
"Sec. 2. Statement of Policy. — It is hereby declared the policy of the State
to provide equal pay for substantially equal work and to base differences in pay
upon substantive differences in duties and responsibilities, and quali cation
requirements of the positions. . . . "
Evidently, any distinction among employees must be based on substantial

differences, that is, level or rank, degree of di culty and amount of work. To discriminate
against some employees on the basis solely of date of hiring is to run against the
progressive and social policy of the law.
The Commission on Audit, in COA Decision No. 96-020, ruled that the board
resolutions of the Sugar Regulatory Administration could no longer be considered as the
"prior authority" for the release of the social amelioration bene ts as per R.A. No. 6758 and
CCC No. 10. It further ruled that such bene ts may be granted if there was a prior authority
from the O ce of the President. Yet, when the SRA employees were nally able to secure a
post facto approval/rati cation from the O ce of the President, 1 9 the COA declared, by a
sweeping statement, that only those hired before October 31, 1989, were entitled to the
SAB. It did not mention any legal basis or justification for the distinction.
R.A. No. 6758 and CCC No. 10 do not make any distinction between those hired
before and after October 31, 1989. Neither did the 1st Indorsement of the O ce of the
President make any such distinction. The legal maxim that "when the law does not
distinguish, neither should the court" 2 0 applies in this case.
The Fallo
WHEREFORE, we GRANT the petition. We SET ASIDE COA Decision No. 97-689 and
No. 98-256. The Sugar Regulatory Administration shall cease implementing the payroll
deduction per Memorandum dated July 20, 1998, 2 1 and the deductions made since
September 1998, until the present shall be reimbursed to petitioners. AcTDaH
No costs.
SO ORDERED.
Davide Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing,
Buena, Ynares-Santiago, De Leon, Jr. and Sandoval-Gutierrez, JJ., concur.
Vitug, J., is on official leave.
Footnotes
1. COA Decision No. 97-689 dated November 4, 1997 and COA Decision No. 98-256 dated June
23, 1998, denying the motion for reconsideration of COA Decision No. 97-689.
2. R.A. No. 632 (the law creating PHILSUGIN); P.D. 388 (the law creating PHILSUCOM), as
amended by P.D. 1192; P.D. 775; and P.D. 985.
3. Compensation and Position Classi cation Act of 1989, commonly known as the Salary
EN BANC
[G.R. No. 203372. June 16, 2015.]
ATTY. CHELOY E. VELICARIA-GARAFIL , petitioner, vs. OFFICE OF THE

PRESIDENT and HON. SOLICITOR GENERAL JOSE ANSELMO I.
CADIZ respondents.
CADIZ,
[G.R. No. 206290. June 16, 2015.]
ATTY. DINDO G. VENTURANZA , petitioner, vs. OFFICE OF THE

PRESIDENT, LEILA M. DE LIMA, in her capacity as the Secretary of
the Department of Justice, CLARO A. ARELLANO, in his capacity as
the Prosecutor General, and RICHARD ANTHONY D. FADULLON, in
his capacity as the Of cer-in-Charge of the Of ce of the City
City respondents.
Prosecutor of Quezon City,
[G.R. No. 209138. June 16, 2015.]
IRMA A. VILLANUEVA and FRANCISCA B. ROSQUITA , petitioners, vs.

COURT OF APPEALS and THE OFFICE OF THE PRESIDENT ,
respondents.
[G.R. No. 212030. June 16, 2015.]
EDDIE U. TAMONDONG , petitioner, vs. EXECUTIVE SECRETARY

JR. respondent.
PAQUITO N. OCHOA, JR.,
DECISION
CARPIO , J : p
The present consolidated cases involve four petitions: G.R. No. 203372 with Atty.
Cheloy E. Velicaria-Gara l (Atty. Velicaria-Gara l), who was appointed State Solicitor II
at the Of ce of the Solicitor General (OSG), as petitioner; G.R. No. 206290 with Atty.
Dindo G. Venturanza (Atty. Venturanza), who was appointed Prosecutor IV (City
Prosecutor) of Quezon City, as petitioner; G.R. No. 209138 with Irma A. Villanueva
(Villanueva), who was appointed Administrator for Visayas of the Board of
Administrators of the Cooperative Development Authority (CDA), and Francisca B.
Rosquita (Rosquita), who was appointed Commissioner of the National Commission of
Indigenous Peoples (NCIP), as petitioners; and G.R. No. 212030 with Atty. Eddie U.
Tamondong (Atty. Tamondong), who was appointed member of the Board of Directors
of the Subic Bay Metropolitan Authority (SBMA), as petitioner. All petitions question the
constitutionality of Executive Order No. 2 (EO 2) for being inconsistent with Section 15,
Article VII of the 1987 Constitution.
Petitioners seek the reversal of the separate Decisions of the Court of Appeals
(CA) that dismissed their petitions and upheld the constitutionality of EO 2. G.R. No.
203372 led by Atty. Velicaria-Gara l is a Petition for Review on Certiorari, 1 assailing
the Decision 2 dated 31 August 2012 of the CA in CA-G.R. SP No. 123662. G.R. No.
206290 led by Atty. Venturanza is a Petition for Review on Certiorari, 3 assailing the
Decision 4 dated 31 August 2012 and Resolution 5 dated 12 March 2013 of the CA in
CA-G.R. SP No. 123659. G.R. No. 209138 led by Villanueva and Rosquita is a Petition
for Certiorari, 6 seeking to nullify the Decision 7 dated 28 August 2013 of the CA in CA-
G.R. SP Nos. 123662, 123663, and 123664. 8 Villanueva and Rosquita led a Petition-in-
Intervention in the consolidated cases before the CA. G.R. No. 212030 is a Petition for
Review on Certiorari, 9 assailing the Decision 10 dated 31 August 2012 of the CA in CA-
G.R. SP No. 123664 and Resolution 11 dated 7 April 2014 of the CA in CA-G.R. SP Nos.
123662, 123663, and 123664. 12
Facts of the Cases
Prior to the conduct of the May 2010 elections, then President Gloria Macapagal-
Arroyo (President Macapagal-Arroyo) issued more than 800 appointments to various
positions in several government offices.
The ban on midnight appointments in Section 15, Article VII of the 1987
Constitution reads:
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.
Thus, for purposes of the 2010 elections, 10 March 2010 was the cut-off date for
valid appointments and the next day, 11 March 2010, was the start of the ban on
midnight appointments. Section 15, Article VII of the 1987 Constitution recognizes as
an exception to the ban on midnight appointments only "temporary appointments to
executive positions when continued vacancies therein will prejudice public service or
endanger public safety." None of the petitioners claim that their appointments fall under
this exception. CAIHTE
Appointments
G.R. No. 203372
The paper evidencing Atty. Velicaria-Gara l's appointment as State Solicitor II at
the OSG was dated 5 March 2010. 13 There was a transmittal letter dated 8 March
2010 of the appointment paper from the Of ce of the President (OP), but this
transmittal letter was received by the Malacañang Records Of ce (MRO) only on 13
May 2010. There was no indication as to the OSG's date of receipt of the appointment
paper. On 19 March 2010, the OSG's Human Resources Department called up Atty.
Velicaria-Gara l to schedule her oath-taking. Atty. Velicaria-Gara l took her oath of
office as State Solicitor II on 22 March 2010 and assumed her position on 6 April 2010.
G.R. No. 206290
The paper evidencing Atty. Venturanza's appointment as Prosecutor IV (City
Prosecutor) of Quezon City was dated 23 February 2010. 14 It is apparent, however,
that it was only on 12 March 2010 that the OP, in a letter dated 9 March 2010,
transmitted Atty. Venturanza's appointment paper to then Department of Justice (DOJ)
Secretary Alberto C. Agra. 15 During the period between 23 February and 12 March
2010, Atty. Venturanza, upon verbal advice from Malacañang of his promotion but
without an of cial copy of his appointment paper, secured clearances from the Civil
Service Commission (CSC), 16 Sandiganbayan, 17 and the DOJ. 18 Atty. Venturanza took
his oath of office on 15 March 2010, and assumed office on the same day.
G.R. No. 209138
The paper evidencing Villanueva's appointment as Administrator for Visayas of
the Board of Administrators of the CDA was dated 3 March 2010. 19 There was no
transmittal letter of the appointment paper from the OP. Villanueva took her oath of
office on 13 April 2010.
The paper evidencing Rosquita's appointment as Commissioner, representing
Region I and the Cordilleras, of the NCIP was dated 5 March 2010. 20 Like Villanueva,
there was no transmittal letter of the appointment paper from the OP. Rosquita took
her oath of office on 18 March 2010.
G.R. No. 212030
The paper evidencing Atty. Tamondong's appointment as member, representing
the private sector, of the SBMA Board of Directors was dated 1 March 2010. 21 Atty.
Tamondong admitted that the appointment paper was received by the Of ce of the
SBMA Chair on 25 March 2010 22 and that he took his oath of of ce on the same day.
23 He took another oath of of ce on 6 July 2010 as "an act of extra caution because of
the rising crescendo of noise from the new political mandarins against the so-called
'midnight appointments.'" 24
To summarize, the pertinent dates for each petitioner are as follows:
G.R. No. Date of Date of Date of Date of Oath Assumption
Appointment Transmittal Receipt by of Office of Office
Letter Letter MRO
203372 5 March 2010 8 March 13 May 2010 22 March 6 April 2010

(Atty. 2010 2010
Velicaria-
Garafil)
206290 23 February 9 March 12 March 15 March 15 March

(Atty. 2010 2010 2010 2010 2010
Venturanza)
209138 3 March 2010 4 May 2010 13 April

(Villanueva) 2010
209138 5 March 2010 13 May 2010 18 March
(Rosquita) 2010
212030 1 March 2010 25 March

(Atty. 2010 and
Tamondong) 6 July 2010
Issuance of EO 2
On 30 June 2010, President Benigno S. Aquino III (President Aquino) took his
oath of of ce as President of the Republic of the Philippines. On 30 July 2010,
President Aquino issued EO 2 recalling, withdrawing, and revoking appointments issued
by President Macapagal-Arroyo which violated the constitutional ban on midnight
appointments.
The entirety of EO 2 reads:
EXECUTIVE ORDER NO. 2
RECALLING, WITHDRAWING, AND REVOKING APPOINTMENTS ISSUED BY THE
PREVIOUS ADMINISTRATION IN VIOLATION OF THE CONSTITUTIONAL BAN
ON MIDNIGHT APPOINTMENTS, AND FOR OTHER PURPOSES.
WHEREAS, Sec. 15, Article VII of the 1987 Constitution provides that "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.";
WHEREAS, in the case of "In re: Appointments dated March 30, 1998 of Hon.
Mateo Valenzuela and Hon. Vallarta as Judges of the Regional Trial Court of
Branch 62 of Bago City and Branch 24 of Cabanatuan City, respectively " (A.M.
No. 98-5-01-SC Nov. 9, 1998), the Supreme Court interpreted this provision to
mean that the President is neither required to make appointments nor allowed to
do so during the two months immediately before the next presidential elections
and up to the end of her term. The only known exceptions to this prohibition are
(1) temporary appointments in the executive positions when continued
vacancies will prejudice public service or endanger public safety and in the light
of the recent Supreme Court decision in the case of De Castro, et al. vs. JBC and
PGMA, G.R. No. 191002, 17 March 2010, (2) appointments to the Judiciary; DETACa
WHEREAS, Section 261 of the Omnibus Election Code provides that:

"Section 261. Prohibited Acts. — The following shall be guilty of an election
offense:
(g) Appointments of new employees, creation of new position, promotion, or
giving salary increases. — During the period of forty- ve days before a regular
election and thirty days before a special election.
(1) Any head, of cial or appointing of cer of a government of ce, agency or
instrumentality, whether national or local, including government-owned or
controlled corporations, who appoints or hires any new employee, whether
provisional, temporary or casual, or creates and lls any new position, except
upon prior authority to the Commission. The Commission shall not grant the
authority sought unless it is satis ed that the position to be lled is essential to
the proper functioning of the of ce or agency concerned, and that the position
shall not be filled in a manner that may influence the election.
As an exception to the foregoing provisions, a new employee may be appointed
in the case of urgent need:
Provided, however, that notice of the appointment shall be given to the
Commission within three days from the date of the appointment. Any
appointment or hiring in violation of this provision shall be null and void.
(2) Any government of cial who promotes or gives any increase of salary or
remuneration or privilege to any government of cial or employee, including
those in government-owned or controlled corporations.";
WHEREAS, it appears on record that a number of appointments were made on
or about 10 March 2010 in complete disregard of the intent and spirit of the
constitutional ban on midnight appointment and which deprives the new
administration of the power to make its own appointment;
WHEREAS, based on established jurisprudence, an appointment is deemed
complete only upon acceptance of the appointee;
WHEREAS, in order to strengthen the civil service system, it is necessary to
uphold the principle that appointments to the civil service must be made on the
basis of merit and tness, it is imperative to recall, withdraw, and revoke all
appointments made in violation of the letter and spirit of the law;
NOW, THEREFORE , I, BENIGNO S. AQUINO III, by virtue of the powers vested in
me by the Constitution as President of the Philippines, do hereby order and
direct that:
SECTION 1. Midnight Appointments De ned. — The following appointments
made by the former President and other appointing authorities in departments,
agencies, of ces, and instrumentalities, including government-owned or
controlled corporations, shall be considered as midnight appointments:
(a) Those made on or after March 11, 2010, 2010 including all appointments
bearing dates prior to March 11, 2010 where the appointee has accepted, or
taken his oath, or assumed public of ce on or after March 11, 2010, except
temporary appointments in the executive positions when continued vacancies
will prejudice public service or endanger public safety as may be determined by
the appointing authority.
(b) Those made prior to March 11, 2010, but to take effect after said date or
appointments to office that would be vacant only after March 11, 2010.
(c) Appointments and promotions made during the period of 45 days prior to the
May 10, 2010 elections in violation of Section 261 of the Omnibus Election
Code.
SECTION 2. Recall, Withdraw, and Revocation of Midnight Appointments. —
Midnight appointments, as de ned under Section 1, are hereby recalled,
withdrawn, and revoked. The positions covered or otherwise affected are hereby
declared vacant.
SECTION 3. Temporary designations. — When necessary to maintain ef ciency
in public service and ensure the continuity of government operations, the
Executive Secretary may designate an of cer-in-charge (OIC) to perform the
duties and discharge the responsibilities of any of those whose appointment
has been recalled, until the replacement of the OIC has been appointed and
qualified.
SECTION 4. Repealing Clause. — All executive issuances, orders, rules and
regulations or part thereof inconsistent with the provisions of this Executive
Order are hereby repealed or modified accordingly.
SECTION 5. Separability Clause. — If any section or provision of this executive
order shall be declared unconstitutional or invalid, the other sections or
provision not affected thereby shall remain in full force and effect.
SECTION 6. Effectivity. — This Executive order shall take effect immediately.
DONE in the City of Manila, this 30th day of July, in the year Two Thousand and
Ten.
(Sgd.) BENIGNO S. AQUINO III
By the President:
(Sgd.) PAQUITO N. OCHOA, JR.
Executive Secretary 25
Effect of the Issuance of EO 2
G.R. No. 203372
On 5 August 2010, Jose Anselmo Cadiz assumed of ce as Solicitor General (Sol.
Gen. Cadiz). On 6 August 2010, Sol. Gen. Cadiz instructed a Senior Assistant Solicitor
General to inform the of cers and employees affected by EO 2 that they were
terminated from service effective the next day.
Atty. Velicaria-Gara l reported for work on 9 August 2010 without any
knowledge of her termination. She was made to return the of ce-issued laptop and
cellphone, and was told that her salary ceased as of 7 August 2010. On 12 August
2010, Atty. Velicaria-Garafil was informed that her former secretary at the OSG received
a copy of a memorandum on her behalf. The memorandum, dated 9 August 2010, bore
the subject "Implementation of Executive Order No. 2 dated 30 July 2010" and was
addressed to the OSG's Director of Finance and Management Service.
Atty. Velicaria-Gara l led a petition for certiorari (G.R. No. 193327) before this
Court on 1 September 2010. The petition prayed for the nulli cation of EO 2, and for her
reinstatement as State Solicitor II without loss of seniority, rights and privileges, and
with full backwages from the time that her salary was withheld. 26
G.R. No. 206290
On 1 September 2010, Atty. Venturanza received via facsimile transmission an
undated copy of DOJ Order No. 556. DOJ Order No. 556, issued by DOJ Secretary Leila
M. De Lima (Sec. De Lima), designated Senior Deputy State Prosecutor Richard Anthony
D. Fadullon (Pros. Fadullon) as Of cer-in-Charge of the Of ce of the City Prosecutor in
Quezon City. In a letter to Sec. De Lima dated 15 September 2010, Atty. Venturanza
asked for clari cation of his status, duties, and functions since DOJ Order No. 556 did
not address the same. Atty. Venturanza also asked for a status quo ante order to
prevent Pros. Fadullon from usurping the position and functions of the City Prosecutor
of Quezon City. Atty. Venturanza also wrote a letter to President Aquino on the same
day, and sought reaffirmation of his promotion as City Prosecutor of Quezon City.
On 6 October 2010, Atty. Venturanza received a letter dated 25 August 2010
from Sec. De Lima which directed him to relinquish the of ce to which he was
appointed, and to cease from performing its functions.
Atty. Venturanza filed a Petition for Certiorari, Prohibition, Mandamus with Urgent
Prayer for Status Quo Ante Order, Temporary Restraining Order and/or Preliminary
Mandatory Injunction (G.R. No. 193867) before this Court on 14 October 2010. 27
G.R. No. 209138
The OP withheld the salaries of Villanueva and Rosquita on the basis of EO 2. On
3 August 2010, Villanueva and Rosquita sought to intervene in G.R. No. 192991. 28 On 1
October 2010, Executive Secretary Paquito N. Ochoa, Jr. revoked Rosquita's
appointment as NCIP Commissioner. 29 On 13 October 2010, Villanueva and Rosquita
noti ed this Court that they wanted to intervene in Atty. Tamondong's petition (G.R. No.
192987) instead. aDSIHc
G.R. No. 212030

Atty. Tamondong was removed from the SBMA Board of Directors on 30 July
2010. He led a petition for prohibition, declaratory relief and preliminary injunction
with prayer for temporary restraining order (G.R. No. 192987) before this Court on 9
August 2010. The petition prayed for the prohibition of the implementation of EO 2, the
declaration of his appointment as legal, and the declaration of EO 2 as unconstitutional.
30
Referral to CA
There were several petitions 31 and motions for intervention 32 that challenged
the constitutionality of EO 2.
On 31 January 2012, this Court issued a Resolution referring the petitions,
motions for intervention, as well as various letters, to the CA for further proceedings,
including the reception and assessment of the evidence from all parties. We defined the
issues as follows:
1. Whether the appointments of the petitioners and intervenors were midnight
appointments within the coverage of EO 2;
2. Whether all midnight appointments, including those of petitioners and
intervenors, were invalid;
3. Whether the appointments of the petitioners and intervenors were made with
undue haste, hurried maneuvers, for partisan reasons, and not in accordance
with good faith; and
4. Whether EO 2 violated the Civil Service Rules on Appointment. 33
This Court gave the CA the authority to resolve all pending matters and
applications, and to decide the issues as if these cases were originally filed with the CA.
Rulings of the CA
Even though the same issues were raised in the different petitions, the CA
promulgated separate Decisions for the petitions. The CA consistently ruled that EO 2
is constitutional. The CA, however, issued different rulings as to the evaluation of the
circumstances of petitioners' appointments. In the cases of Attys. Velicaria-Gara l and
Venturanza, the CA stated that the OP should consider the circumstances of their
appointments. In the cases of Villanueva, Rosquita, and Atty. Tamondong, the CA
explicitly stated that the revocation of their appointments was proper because they
were midnight appointees.
G.R. No. 203372 (CA-G.R. SP No. 123662)
The CA promulgated its Decision in CA-G.R. SP No. 123662 on 31 August 2012.
The CA ruled that EO 2 is not unconstitutional. However, the CA relied on Sales v.
Carreon 34 in ruling that the OP should evaluate whether Atty. Velicaria-Gara l's
appointment had extenuating circumstances that might make it fall outside the ambit
of EO 2.
The dispositive portion of the CA's Decision reads:
WHEREFORE, the petition for certiorari and mandamus [is] DENIED.
Executive Order No. 2, dated July 30, 2010, is NOT unconstitutional.
The issue on whether or not to uphold petitioner's appointment as State
Solicitor II at the OSG is hereby referred to the Of ce of the President which has
the sole authority and discretion to pass upon the same.
SO ORDERED. 35
G.R. No. 206290 (CA-G.R. SP No. 123659)
The CA promulgated its Decision in CA-G.R. SP No. 123659 on 31 August 2012.
The CA ruled that EO 2 is not unconstitutional. Like its Decision in CA-G.R. SP No.
123662, the CA relied on Sales v. Carreon 36 in ruling that the OP should evaluate
whether Atty. Venturanza's appointment had extenuating circumstances that might
make it fall outside the ambit of EO 2.
WHEREFORE, the petition for certiorari, prohibition and mandamus [is]
DENIED.
Executive Order No. 2, dated July 30, 2010, is NOT unconstitutional.
The issue on whether or not to uphold petitioner's appointment as City
Chief Prosecutor of Quezon City is hereby referred to the Of ce of the President
which has the sole authority and discretion to pass upon the same.
SO ORDERED. 37
G.R. No. 209138
The CA ruled on Villanueva and Rosquita's Petition-in-Intervention through a
Decision in CA-G.R. SP Nos. 123662, 123663, and 123664 promulgated on 28 August
2013. The CA stated that Villanueva and Rosquita were midnight appointees within the
contemplation of Section 15, Article VII of the 1987 Constitution. The letter issued by
the CSC that supported their position could not serve as basis to restore them to their
respective offices.
WHEREFORE, premises considered, the instant Petition is hereby
DISMISSED. Executive Order No. 2 is hereby declared NOT
UNCONSTITUTIONAL. Accordingly, the revocation of Petitioners-Intervenors
Irma Villanueva and Francisca Rosquita [sic] appointment[s] as Administrator
for Visayas of the Board of Administrators of the Cooperative Development
Authority, and Commissioner of National Commission on Indigenous Peoples
[respectively,] is VALID, the same being a [sic] midnight appointment[s].
SO ORDERED. 38
G.R. No. 212030 (CA-G.R. SP No. 123664)
On 31 August 2012, the CA promulgated its Decision in CA-G.R. SP No. 123664.
The dispositive portion reads as follows:
WHEREFORE, premises considered, the instant Petition is hereby
DISMISSED. Executive Order No. 2 is hereby declared NOT
UNCONSTITUTIONAL. Accordingly, the revocation of Atty. Eddie Tamondong's
appointment as Director of Subic Bay Metropolitan Authority is VALID for being
a midnight appointment.
SO ORDERED. 39
The Issues for Resolution
We resolve the following issues in these petitions: (1) whether petitioners'
appointments violate Section 15, Article VII of the 1987 Constitution, and (2) whether
EO 2 is constitutional.
Ruling of the Court
The petitions have no merit. All of petitioners' appointments are midnight
appointments and are void for violation of Section 15, Article VII of the 1987
Constitution. EO 2 is constitutional.
Villanueva and Rosquita, petitioners in G.R. No. 209138, did not appeal the CA's
ruling under Rule 45, but instead led a petition for certiorari under Rule 65. This
procedural error alone warrants an outright dismissal of G.R. No. 209138. Even if it
were correctly led under Rule 45, the petition should still be dismissed for being led
out of time. 40 There was also no explanation as to why they did not le a motion for
reconsideration of the CA's Decision.
Midnight Appointments
This ponencia and the dissent both agree that the facts in all these cases show
that "none of the petitioners have shown that their appointment papers (and transmittal
letters) have been issued (and released) before the ban." 41 The dates of receipt by the
MRO, which in these cases are the only reliable evidence of actual transmittal of the
appointment papers by President Macapagal-Arroyo, are dates clearly falling during the
appointment ban. Thus, this ponencia and the dissent both agree that all the
appointments in these cases are midnight appointments in violation of Section 15,
Article VII of the 1987 Constitution.
Constitutionality of EO 2
Based on prevailing jurisprudence, appointment to a government post is a
process that takes several steps to complete. Any valid appointment, including one
made under the exception provided in Section 15, Article VII of the 1987 Constitution,
must consist of the President signing an appointee's appointment paper to a vacant
of ce, the of cial transmittal of the appointment paper (preferably through the MRO),
receipt of the appointment paper by the appointee, and acceptance of the appointment
by the appointee evidenced by his or her oath of of ce or his or her assumption to
office.
Aytona v. Castillo (Aytona) 42 is the basis for Section 15, Article VII of the 1987
Constitution. Aytona de ned "midnight or last minute" appointments for Philippine
jurisprudence. President Carlos P. Garcia submitted on 29 December 1961, his last day
in of ce, 350 appointments, including that of Dominador R. Aytona for Central Bank
Governor. President Diosdado P. Macapagal assumed of ce on 30 December 1961,
and issued on 31 December 1961 Administrative Order No. 2 recalling, withdrawing,
and cancelling all appointments made by President Garcia after 13 December 1961
(President Macapagal's proclamation date). President Macapagal appointed Andres V.
Castillo as Central Bank Governor on 1 January 1962. This Court dismissed Aytona's
quo warranto proceeding against Castillo, and upheld Administrative Order No. 2's
cancellation of the "midnight or last minute" appointments. We wrote:
. . . But the issuance of 350 appointments in one night and the planned
induction of almost all of them a few hours before the inauguration of the new
President may, with some reason, be regarded by the latter as an abuse of
Presidential prerogatives, the steps taken being apparently a mere partisan
effort to ll all vacant positions irrespective of tness and other conditions, and
thereby to deprive the new administration of an opportunity to make the
corresponding appointments.
. . . Now it is hard to believe that in signing 350 appointments in one night,
President Garcia exercised such "double care" which was required and expected
of him; and therefore, there seems to be force to the contention that these
appointments fall beyond the intent and spirit of the constitutional provision
granting to the Executive authority to issue ad interim appointments.
Under the circumstances above described, what with the separation of
powers, this Court resolves that it must decline to disregard the Presidential
Administrative Order No. 2, cancelling such "midnight" or "last-minute"
appointments.
Of course the Court is aware of many precedents to the effect that once
an appointment has been issued, it cannot be reconsidered, specially where the
appointee has quali ed. But none of them refer to mass ad interim
appointments (three hundred and fty), issued in the last hours of an outgoing
Chief Executive, in a setting similar to that outlined herein. On the other hand,
the authorities admit of exceptional circumstances justifying revocation and if
any circumstances justify revocation, those described herein should t the
exception.
Incidentally, it should be stated that the underlying reason for denying the
power to revoke after the appointee has quali ed is the latter's equitable rights.
Yet it is doubtful if such equity might be successfully set up in the present
situation, considering the rush conditional appointments, hurried maneuvers
and other happenings detracting from that degree of good faith, morality and
propriety which form the basic foundation of claims to equitable relief. The
appointees, it might be argued, wittingly or unwittingly cooperated with the
stratagem to beat the deadline, whatever the resultant consequences to the
dignity and ef ciency of the public service. Needless to say, there are instances
wherein not only strict legality, but also fairness, justice and righteousness
should be taken into account. 43
During the deliberations for the 1987 Constitution, then Constitutional
Commissioner (now retired Supreme Court Chief Justice) Hilario G. Davide, Jr. referred
to this Court's ruling in Aytona and stated that his proposal seeks to prevent a
President, whose term is about to end, from preempting his successor by appointing
his own people to sensitive positions.
MR. DAVIDE: The idea of the proposal is that about the end of the term of the
President, he may prolong his rule indirectly by appointing people to these
sensitive positions, like the commissions, the Ombudsman, the judiciary, so he
could perpetuate himself in power even beyond his term of of ce; therefore
foreclosing the right of his successor to make appointments to these positions.
We should realize that the term of the President is six years and under what we
had voted on, there is no reelection for him. Yet he can continue to rule the
country through appointments made about the end of his term to these
sensitive positions. 44
The 1986 Constitutional Commission put a de nite period, or an empirical value,
on Aytona's intangible "stratagem to beat the deadline," and also on the act of
"preempting the President's successor," which shows a lack of "good faith, morality and
propriety." Subject to only one exception, appointments made during this period are
thus automatically prohibited under the Constitution, regardless of the appointee's
quali cations or even of the President's motives. The period for prohibited
appointments covers two months before the elections until the end of the President's
term. The Constitution, with a speci c exception, ended the President's power to
appoint "two months immediately before the next presidential elections." For an
appointment to be valid, it must be made outside of the prohibited period or, failing
that, fall under the specified exception. TIADCc
The dissent insists that, during the prohibited period, an appointment should be
viewed in its "narrow sense." In its narrow sense, an appointment is not a process, but is
only an "executive act that the President unequivocally exercises pursuant to his
discretion." 45 The dissent makes acceptance of the appointment inconsequential. The
dissent holds that an appointment is void if the appointment is made before the ban
but the transmittal and acceptance are made after the ban. However, the dissent holds
that an appointment is valid, or "ef cacious," if the appointment and transmittal are
made before the ban even if the acceptance is made after the ban. In short, the dissent
allows an appointment to take effect during the ban, as long as the President signed
and transmitted the appointment before the ban, even if the appointee never received
the appointment paper before the ban and accepted the appointment only during the
ban.
The dissent's view will lead to glaring absurdities. Allowing the dissent's
proposal that an appointment is complete merely upon the signing of an appointment
paper and its transmittal, excluding the appointee's acceptance from the appointment
process, will lead to the absurdity that, in case of non-acceptance, the position is
considered occupied and nobody else may be appointed to it. Moreover, an incumbent
public of cial, appointed to another public of ce by the President, will automatically be
deemed to occupy the new public of ce and to have automatically resigned from his
rst of ce upon transmittal of his appointment paper, even if he refuses to accept the
new appointment. This will result in chaos in public service.
Even worse, a President who is unhappy with an incumbent public of cial can
simply appoint him to another public of ce, effectively removing him from his rst
of ce without due process. The mere transmittal of his appointment paper will remove
the public of cial from of ce without due process and even without cause, in violation
of the Constitution.
The dissent's proffered excuse (that the appointee is not alluded to in Section 15,
Article VII) for its rejection of "acceptance by the appointee" as an integral part of the
appointment process ignores the reason for the limitation of the President's power to
appoint, which is to prevent the outgoing President from continuing to rule the country
indirectly after the end of his term. The 1986 Constitutional Commission installed a
de nite cut-off date as an objective and unbiased marker against which this once-in-
every-six-years prohibition should be measured.
The dissent's assertion that appointment should be viewed in its narrow sense
(and is not a process) only during the prohibited period is selective and time-based,
and ignores well-settled jurisprudence. For purposes of complying with the time limit
imposed by the appointment ban, the dissent's position cuts short the appointment
process to the signing of the appointment paper and its transmittal, excluding the
receipt of the appointment paper and acceptance of the appointment by the appointee.
The President exercises only o ne kind of appointing power. There is no need to
differentiate the exercise of the President's appointing power outside, just before, or
during the appointment ban. The Constitution allows the President to exercise the
power of appointment during the period not covered by the appointment ban, and
disallows (subject to an exception) the President from exercising the power of
appointment during the period covered by the appointment ban. The concurrence of all
steps in the appointment process is admittedly required for appointments outside the
appointment ban. There is no justi cation whatsoever to remove acceptance as a
requirement in the appointment process for appointments just before the start of the
appointment ban, or during the appointment ban in appointments falling within the
exception. The existence of the appointment ban makes no difference in the power of
the President to appoint; it is still the same power to appoint. In fact, considering the
purpose of the appointment ban, the concurrence of all steps in the appointment
process must be strictly applied on appointments made just before or during the
appointment ban.
In attempting to extricate itself from the obvious consequences of its selective
application, the dissent glaringly contradicts itself:
Thus, an acceptance is still necessary in order for the appointee
to validly assume his post and discharge the functions of his new
of ce, and thus make the appointment effective . There can never be an
instance where the appointment of an incumbent will automatically result in his
resignation from his present post and his subsequent assumption of his new
position; or where the President can simply remove an incumbent from his
current of ce by appointing him to another one. I stress that acceptance
through oath or any positive act is still indispensable before any assumption of
office may occur. 46 (Emphasis added)
The dissent proposes that this Court ignore well-settled jurisprudence during the
appointment ban, but apply the same jurisprudence outside of the appointment ban.
[T]he well-settled rule in our jurisprudence, that an appointment is a
process that begins with the selection by the appointing power and ends with
acceptance of the appointment by the appointee, stands. As early as the 1949
case of Lacson v. Romero , this Court laid down the rule that acceptance by the
appointee is the last act needed to make an appointment complete. The Court
reiterated this rule in the 1989 case of Javier v. Reyes . In the 1996 case of
Garces v. Court of Appeals , this Court emphasized that acceptance by the
appointee is indispensable to complete an appointment. The 1999 case of
Bermudez v. Executive Secretary , cited in the ponencia, af rms this standing
rule in our jurisdiction, to wit:
"The appointment is deemed complete once the last act
required of the appointing authority has been complied with and
its acceptance thereafter by the appointee in order to render it
effective." 47
The dissent's assertion creates a singular exception to the well-settled doctrine
that appointment is a process that begins with the signing of the appointment paper,
followed by the transmittal and receipt of the appointment paper, and becomes
complete with the acceptance of the appointment. The dissent makes the singular
exception that during the constitutionally mandated ban on appointments, acceptance
is not necessary to complete the appointment. The dissent gives no reason why this
Court should make such singular exception, which is contrary to the express provision
of the Constitution prohibiting the President from making appointments during the ban.
The dissent's singular exception will allow the President, during the ban on
appointments, to remove from of ce incumbents without cause by simply appointing
them to another of ce and transmitting the appointment papers the day before the ban
begins, appointments that the incumbents cannot refuse because their acceptance is
not required during the ban. Adoption by this Court of the dissent's singular exception
will certainly wreak havoc on the civil service.
The following elements should always concur in the making of a valid (which
should be understood as both complete and effective) appointment: (1) authority to
appoint and evidence of the exercise of the authority; (2) transmittal of the
appointment paper and evidence of the transmittal; (3) a vacant position at the time of
appointment; and (4) receipt of the appointment paper and acceptance of the
appointment by the appointee who possesses all the quali cations and none of the
disquali cations. The concurrence of all these elements should always apply,
regardless of when the appointment is made, whether outside, just before, or during the
appointment ban. These steps in the appointment process should always concur and
operate as a single process. There is no valid appointment if the process lacks even
one step. And, unlike the dissent's proposal, there is no need to further distinguish
between an effective and an ineffective appointment when an appointment is valid.
Appointing Authority
The President's exercise of his power to appoint of cials is provided for in the
Constitution and laws. 48 Discretion is an integral part in the exercise of the power of
appointment. 49 AIDSTE
Considering that appointment calls for a selection, the appointing power

necessarily exercises a discretion. According to Woodbury, J., "the choice of a
person to ll an of ce constitutes the essence of his appointment," and Mr.
Justice Malcolm adds that an "[a]ppointment to of ce is intrinsically an
executive act involving the exercise of discretion." In Pamantasan ng Lungsod
ng Maynila v. Intermediate Appellate Court we held:
The power to appoint is, in essence, discretionary. The
appointing power has the right of choice which he may exercise
freely according to his judgment, deciding for himself who is best
quali ed among those who have the necessary quali cations and
eligibilities. It is a prerogative of the appointing power . . . .
Indeed, the power of choice is the heart of the power to appoint. Appointment
involves an exercise of discretion of whom to appoint; it is not a ministerial act
of issuing appointment papers to the appointee. In other words, the choice of
the appointee is a fundamental component of the appointing power.
Hence, when Congress clothes the President with the power to appoint an
of cer, it (Congress) cannot at the same time limit the choice of the President to
only one candidate. Once the power of appointment is conferred on the
President, such conferment necessarily carries the discretion of whom to
appoint. Even on the pretext of prescribing the quali cations of the of cer,
Congress may not abuse such power as to divest the appointing authority,
directly or indirectly, of his discretion to pick his own choice. Consequently,
when the quali cations prescribed by Congress can only be met by one
individual, such enactment effectively eliminates the discretion of the
appointing power to choose and constitutes an irregular restriction on the power
of appointment. 50
Transmittal
It is not enough that the President signs the appointment paper. There should be
evidence that the President intended the appointment paper to be issued. It could
happen that an appointment paper may be dated and signed by the President months
before the appointment ban, but never left his locked drawer for the entirety of his term.
Release of the appointment paper through the MRO is an unequivocal act that signi es
the President's intent of its issuance.
The MRO was created by Memorandum Order No. 1, Series of 1958, Governing
the Organization and Functions of the Executive Of ce and General Matters of
Procedure Therein. Initially called the Records Division, the MRO functioned as an
administrative unit of the Executive Of ce. Memorandum Order No. 1 assigned the
following functions:
a. Receive, record and screen all incoming correspondence, telegrams,
documents and papers, and
(1) Forward those of a personal and unof cial nature to the President's
Private Office; and
(2) Distribute those requiring action within the Of ce or requiring staff
work prior to presentation to the President to the appropriate units within the
Office.
b. Follow up on correspondence forwarded to entities outside the Of ce to
assure that prompt replies are made and copies thereof furnished the Office. SDAaTC
c. Dispatch outgoing correspondence and telegrams.

d. Have custody of records of the Of ce, except personal papers of the
President, and keep them in such condition as to meet the documentary and
reference requirements of the Office.
e. Keep and maintain a ling and records system for acts, memoranda, orders,
circulars, correspondence and other documents affecting the Of ce for ready
reference and use.
f. Issue certi ed true copies of documents on le in the Division in accordance
with prevailing standard operating procedure.
g. Keep a separate record of communications or documents of con dential
nature.
h. Have custody of the Great Seal of the Republic of the Philippines.
i. Prepare and submit to the approving authority, periodic disposition schedules
of non-current records which have no historical, legal and/or claim value.
j. With the approval of the Executive Secretary, assist other of ces in the
installation or improvement of their records management system; and
k. Give instructions or deliver lectures and conduct practical training to in-service
trainees from other of ces and to students from educational institutions on
records management. 51
The Records Division was elevated to an Of ce in 1975, with the addition of the
following functions:
1. Maintain and control vital documents and essential records to support the
functions of the OP in its day to day activities;
2. Monitor the ow of communications from their time of receipt up to their
dispatch;
3. Service the documentary, information and reference requirements of top
management and action of cers of the OP, and the reference and research
needs of other government agencies and the general public;
4. Ensure the proper storage, maintenance, protection and preservation of vital
and presidential documents, and the prompt disposal of obsolete and valueless
records;
5. Effect the prompt publication/dissemination of laws, presidential issuances
and classified documents;
6. Provide computerized integrated records management support services for
easy reference and retrieval of data and information; and
7. To be able to represent the OP and OP of cials in response to Subpoena
Duces Tecum and Testificandum served by courts and other investigating
bodies. 52
For purposes of veri cation of the appointment paper's existence and
authenticity, the appointment paper must bear the security marks ( i.e., handwritten
signature of the President, bar code, etc.) and must be accompanied by a transmittal
letter from the MRO.
The testimony of Mr. Marianito Dimaandal, Director IV of the MRO, underscores
the purpose of the release of papers through his office.
Q: What are the functions of the MRO?
A: The MRO is mandated under Memorandum Order No. 1, series of 1958 to (1)
receive, record, and screen all incoming correspondence, telegrams,
documents, and papers; (2) follow up on correspondence forwarded to
entities outside the Of ce of the President ("OP") to assure that prompt
replies are made and copies thereof furnished the OP; (3) timely dispatch
all outgoing documents and correspondence; (4) have custody of records
of the OP, except personal papers of the President, and keep them in such
condition as to meet the documentary and reference requirements of the
Of ce; (5) keep and maintain a ling and records system for Acts,
Memoranda, Orders, Circulars, correspondence, and other pertinent
documents for ready reference and use; (6) issue certi ed copies of
documents on le as requested and in accordance with prevailing
standard operating procedures; (7) maintain and control vital documents
and essential records to support the OP in its day-to-day activities; (8)
monitor the ow of communications from the time of receipt up to their
dispatch; and (9) other related functions.
xxx xxx xxx
Q: As you previously mentioned, the MRO is the custodian of all documents
emanating from Malacañang pursuant to its mandate under Memorandum
Order No. 1, Series of 1958. Is the MRO required to follow a speci c
procedure in dispatching outgoing documents?
A: Yes.
Q: Is this procedure observed for the release of an appointment paper signed by
the President?
A: Yes. It is observed for the release of the original copy of the appointment paper
signed by the President.
Q: Can you brie y illustrate the procedure for the release of the original copy of
the appointment paper signed by the President?
A: After an appointment paper is signed by the President, the Of ce of the
Executive Secretary (OES) forwards the appointment paper bearing the
stamp mark, barcode, and hologram of the Of ce of the President, together
with a transmittal letter, to the MRO for of cial release. Within the same
day, the MRO sends the original copy of the appointment paper together
with the transmittal letter and a delivery receipt which contains appropriate
spaces for the name of the addressee, the date released, and the date
received by the addressee. Only a photocopy of the appointment is
retained for the MRO's official file.
Q: What is the basis for the process you just discussed?
A: The Service Guide of the MRO.
xxx xxx xxx
Q: What is the legal basis for the issuance of the MRO Service Guide, if any?
A: The MRO Service Guide was issued pursuant to Memorandum Circular No. 35,
Series of 2003 and Memorandum Circular No. 133, Series of 2007.
xxx xxx xxx
Q: Do you exercise any discretion in the release of documents forwarded to the
MRO for transmittal to various offices?
A: No. We are mandated to immediately release all documents and
correspondence forwarded to us for transmittal.
Q: If a document is forwarded by the OES to the MRO today, when is it of cially
released by the MRO to the department or agency concerned? acEHCD
A: The document is released within the day by the MRO if the addressee is within
Metro Manila. For example, in the case of the appointment paper of Dindo
Venturanza, the OES forwarded to the MRO on March 12, 2010 his original
appointment paper dated February 23, 2010 and the transmittal letter
dated March 9, 2010 prepared by the OES. The MRO released his
appointment paper on the same day or on March 12, 2010, and was also
received by the DOJ on March 12, 2010 as shown by the delivery receipt.
Q: What is the effect if a document is released by an of ce or department within
Malacañan without going through the MRO?
A: If a document does not pass through the MRO contrary to established
procedure, the MRO cannot issue a certi ed true copy of the same because
as far as the MRO is concerned, it does not exist in our of cial records,
hence, not an of cial document from the Malacañang. There is no way of
verifying the document's existence and authenticity unless the document is
on le with the MRO even if the person who claims to have in his
possession a genuine document furnished to him personally by the
President. As a matter of fact, it is only the MRO which is authorized to
issue certi ed true copies of documents emanating from Malacañan being
the of cial custodian and central repository of said documents. Not even
the OES can issue a certified true copy of documents prepared by them.
Q: Why do you say that, Mr. Witness?
A: Because the MRO is the so-called "gatekeeper" of the Malacañang Palace. All
incoming and outgoing documents and correspondence must pass
through the MRO. As the of cial custodian, the MRO is in charge of the
official release of documents.
Q: What if an appointment paper was faxed by the Of ce of the Executive
Secretary to the appointee, is that considered an of cial release by the
MRO?
A: No. It is still the MRO which will furnish the original copy of the appointment
paper to the appointee. That appointment paper is, at best, only an
"advanced copy."
Q: Assuming the MRO has already received the original appointment paper signed
by the President together with the transmittal letter prepared by the OES,
you said that the MRO is bound to transmit these documents immediately,
that is, on the same day?
A: Yes.
Q: Were there instances when the President, after the original appointment paper
has already been forwarded to the MRO, recalls the appointment and
directs the MRO not to transmit the documents?
A: Yes, there were such instances.
Q: How about if the document was already transmitted by the MRO, was there any
instance when it was directed to recall the appointment and retrieve the
documents already transmitted?
A: Yes, but only in a few instances. Sometimes, when the MRO messenger is
already in transit or while he is already in the agency or of ce concerned,
we get a call to hold the delivery.
Q: You previously outlined the procedure governing the transmittal of original
copies of appointment papers to the agency or of ce concerned. Would
you know if this procedure was followed by previous administrations?
A: Yes. Since I started working in the MRO in 1976, the procedure has been
followed. However, it was unusually disregarded when the appointments
numbering more than 800 were made by then President Arroyo in March
2010. The MRO did not even know about some of these appointments and
we were surprised when we learned about them in the newspapers.
Q: You mentioned that then President Arroyo appointed more than 800 persons in
the month of March alone. How were you able to determine this number?
A: My staff counted all the appointments made by then President Arroyo within
the period starting January 2009 until June 2010.
Q: What did you notice, if any, about these appointments?
A: There was a steep rise in the number of appointments made by then President
Arroyo in the month of March 2010 compared to the other months.
Q: Do you have any evidence to show this steep rise?
A: Yes. I prepared a Certi cation showing these statistics and the graphical
representation thereof.
Q: If those documents will be shown to you, will you be able to recognize them?
A: Yes.
Q: I am showing you a Certi cation containing the number of presidential
appointees per month since January 2009 until June 2010, and a graphical
representation thereof. Can you go over these documents and tell us the
relation of these documents to the ones you previously mentioned?
A: These are [sic] the Certi cation with the table of statistics I prepared after we
counted the appointments, as well as the graph thereof.
xxx xxx xxx
Q: Out of the more than 800 appointees made in March 2010, how many
appointment papers and transmittal letters were released through the
MRO?
A: Only 133 appointment papers were released through the MRO.
Q: In some of these transmittal letters and appointment papers which were not
released through the MRO but apparently through the OES, there were
portions on the stamp of the OES which supposedly indicated the date and
time it was actually received by the agency or of ce concerned but were
curiously left blank, is this regular or irregular?
A: It is highly irregular.
Q: Why do you say so?
A: Usually, if the document released by the MRO, the delivery receipt attached to
the transmittal letter is lled out completely because the dates when the
original appointment papers were actually received are very material. It is a
standard operating procedure for the MRO personnel to ask the person
receiving the documents to write his/her name, his signature, and the date
and time when he/she received it.
Q: So, insofar as these transmittal letters and appointment papers apparently
released by the OES are concerned, what is the actual date when the
agency or the appointee concerned received it? SDHTEC
A: I cannot answer. There is no way of knowing when they were actually received
because the date and time were deliberately or inadvertently left blank.
Q: Can we say that the date appearing on the face of the transmittal letters or the
appointment papers is the actual date when it was released by the OES?
A: We cannot say that for sure. That is why it is very unusual that the person who
received these documents did not indicate the date and time when it was
received because these details are very important. 53
The MRO's exercise of its mandate does not prohibit the President or the
Executive Secretary from giving the appointment paper directly to the appointee.
However, a problem may arise if an appointment paper is not coursed through the MRO
and the appointment paper is lost or the appointment is questioned. The appointee
would then have to prove that the appointment paper was directly given to him.
Dimaandal's counsel made this manifestation about petitioners' appointment
papers and their transmittal:
Your Honors, we respectfully request for the following markings to be made:
1. A) The Transmittal Letter pertinent to the appointment of petitioner DINDO
VENTURANZA dated March 9, 2010 as Exhibit "2-F" for the respondents;
B) The delivery receipt attached in front of the letter bearing the date
March 12, 2010 as Exhibit "2-F-1";
C) The Appointment Paper of DINDO VENTURANZA dated February 23,
2010 as Exhibit "2-G" for the respondents;
2. A) The Transmittal Letter pertinent to the appointment of CHELOY E.
VELICARIA-GARAFIL turned over to the MRO on May 13, 2010 consisting of
seven (7) pages as Exhibits "2-H," "2-H-1," "2-H-2," "2-H-3," "2-H-4," "2-H-5," and "2-
H-6" respectively for the respondents;
i. The portion with the name "CHELOY E. VELICARIA-GARAFIL" as
"State Solicitor II, Of ce of the Solicitor General" located on the
first page of the letter as Exhibit "2-H-7;"
ii. The portion rubber stamped by the Of ce of the Executive
Secretary located at the back of the last page of the letter showing
receipt by the DOJ with blank spaces for the date and time when it
was actually received as Exhibit "2-H-8;"
B) The Appointment Paper of CHELOY E. VELICARIA-GARAFIL dated
March 5, 2010 as Exhibit "2-I" for the respondents;
xxx xxx xxx
4. A) The Transmittal Letter pertinent to the appointment of EDDIE U.
TAMONDONG dated 8 March 2010 but turned over to the MRO only on May 6,
2010 consisting of two (2) pages as Exhibits "2-L" and "2-L-1" respectively for
the respondents;
(a) The portion with the name "EDDIE U. TAMONDONG" as
"Member, representing the Private Sector, Board of Directors" as
Exhibit "2-L-2";
(b) The portion rubber stamped by the Of ce of the
Executive Secretary located at the back of the last page of the
letter showing receipt by Ma. Carissa O. Coscuella with blank
spaces for the date and time when it was actually received as
Exhibit "2-L-3";
xxx xxx xxx
8. A) The Transmittal Letter pertinent to the appointments of . . . FRANCISCA
BESTOYONG-ROSQUITA dated March 8, 2010 but turned over to the MRO on
May 13, 2010 as Exhibit "2-T" for the respondents;
xxx xxx xxx
(c) The portion with the name "FRANCISCA BESTOYONG-ROSQUITA" as
"Commissioner, Representing Region I and the Cordilleras" as Exhibit "2-T-3;"
(d) The portion rubber stamped by the Of ce of the Executive Secretary
at the back thereof showing receipt by Masli A. Quilaman of NCIP-QC on March
15, 2010 as Exhibit "2-T-4;"
xxx xxx xxx
D) The Appointment Paper of FRANCISCA BESTOYONG-ROSQUITA dated
March 5, 2010 as Exhibit "2-W" for the respondents;
9. A) The Transmittal Letter pertinent to the appointment of IRMA A.
VILLANUEVA as Administrator for Visayas, Board of Administrators, Cooperative
Development Authority, Department of Finance dated March 8, 2010 as Exhibit
"2-X" for the respondents;
(a) The portion rubber stamped by the Of ce of the Executive Secretary
at the back thereof showing receipt by DOF with blank spaces for the date and
time when it was actually received as Exhibit "2-X-1;"
B) The Appointment Paper of IRMA A. VILLANUEVA dated March 3, 2010
as Exhibit "2-Y" for the respondents. 54
The testimony of Ellenita G. Gatbunton, Division Chief of File Maintenance and
Retrieval Division of the MRO, supports Dimaandal's counsel's manifestation that the
transmittal of petitioners' appointment papers is questionable.
Q: In the case of Cheloy E. Velicaria-Gara l, who was appointed as State Solicitor
II of the Office of the Solicitor General, was her appointment paper released
through the MRO?
A: No. Her appointment paper dated March 5, 2010, with its corresponding
transmittal letter, was merely turned over to the MRO on May 13, 2010. The
transmittal letter that was turned over to the MRO was already stamped
"released" by the Of ce of the Executive Secretary, but the date and time as
to when it was actually received were unusually left blank.
Q: What is your basis? AScHCD
A: The transmittal letter and appointment paper turned over to the MRO.
xxx xxx xxx
Q: In the case of Eddie U. Tamondong, who was appointed as member of the
Board of Directors of Subic Bay Metropolitan Authority, was her [sic]
appointment paper released through the MRO?
A: No. His appointment paper dated March 1, 2010, with its corresponding
Q: What is your basis?
xxx xxx xxx
Q: In the case of Francisca Bestoyong-Resquita who was appointed as
Commissioner of the National Commission on Indigenous Peoples,
representing Region 1 and the Cordilleras, was her appointment paper
released thru the MRO?
"released" by the Of ce of the Executive Secretary and received on March
15, 2010.
xxx xxx xxx
Q: In the case of Irma A. Villanueva who was appointed as Administrator for
Visayas of the Cooperative Development Authority, was her appointment
paper released thru the MRO?
A: The transmittal letter and appointment paper turned over to the MRO. 55
The possession of the original appointment paper is not indispensable to
authorize an appointee to assume of ce. If it were indispensable, then a loss of the
original appointment paper, which could be brought about by negligence, accident,
fraud, fire or theft, corresponds to a loss of the office. 56 However, in case of loss of the
original appointment paper, the appointment must be evidenced by a certi ed true
copy issued by the proper office, in this case the MRO.
Vacant Position
An appointment can be made only to a vacant of ce. An appointment cannot be
made to an occupied of ce. The incumbent must rst be legally removed, or his
appointment validly terminated, before one could be validly installed to succeed him. 57
To illustrate: in Lacson v. Romero , 58 Antonio Lacson (Lacson) occupied the post
of provincial scal of Negros Oriental. He was later nominated and con rmed as
provincial scal of Tarlac. The President nominated and the Commission on
Appointments con rmed Honorio Romero (Romero) as provincial scal of Negros
Oriental as Lacson's replacement. Romero took his oath of of ce, but Lacson neither
accepted the appointment nor assumed of ce as provincial scal of Tarlac. This Court
ruled that Lacson remained as provincial scal of Negros Oriental, having declined the
appointment as provincial scal of Tarlac. There was no vacancy to which Romero
could be legally appointed; hence, Romero's appointment as provincial scal of Negros
Oriental vice Lacson was invalid.
The appointment to a government post like that of provincial scal to be
complete involves several steps. First, comes the nomination by the President.
Then to make that nomination valid and permanent, the Commission on
Appointments of the Legislature has to con rm said nomination. The last step
is the acceptance thereof by the appointee by his assumption of of ce. The rst
two steps, nomination and con rmation, constitute a mere offer of a post. They
are acts of the Executive and Legislative departments of the Government. But
the last necessary step to make the appointment complete and effective rests
solely with the appointee himself. He may or he may not accept the
appointment or nomination. As held in the case of Borromeo vs. Mariano, 41
Phil. 327, "there is no power in this country which can compel a man to accept
an of ce." Consequently, since Lacson has declined to accept his appointment
as provincial scal of Tarlac and no one can compel him to do so, then he
continues as provincial scal of Negros Oriental and no vacancy in said of ce
was created, unless Lacson had been lawfully removed as such scal of Negros
Oriental. 59
Paragraph (b), Section 1 of EO 2 considered as midnight appointments those
appointments to of ces that will only be vacant on or after 11 March 2010 even though
the appointments are made prior to 11 March 2010. EO 2 remained faithful to the intent
of Section 15, Article VII of the 1987 Constitution: the outgoing President is prevented
from continuing to rule the country indirectly after the end of his term.
Acceptance by the Qualified Appointee
Acceptance is indispensable to complete an appointment. Assuming of ce and
taking the oath amount to acceptance of the appointment. 60 An oath of of ce is a
qualifying requirement for a public of ce, a prerequisite to the full investiture of the
office. 61
Javier v. Reyes 62 is instructive in showing how acceptance is indispensable to
complete an appointment. On 7 November 1967, petitioner Isidro M. Javier (Javier)
was appointed by then Mayor Victorino B. Aldaba as the Chief of Police of Malolos,
Bulacan. The Municipal Council con rmed and approved Javier's appointment on the
same date. Javier took his oath of of ce on 8 November 1967, and subsequently
discharged the rights, prerogatives, and duties of the of ce. On 3 January 1968, while
the approval of Javier's appointment was pending with the CSC, respondent
Puri cacion C. Reyes (Reyes), as the new mayor of Malolos, sent to the CSC a letter to
recall Javier's appointment. Reyes also designated Police Lt. Romualdo F. Clemente as
Of cer-in-Charge of the police department. The CSC approved Javier's appointment as
permanent on 2 May 1968, and even directed Reyes to reinstate Javier. Reyes, on the
other hand, pointed to the appointment of Bayani Bernardo as Chief of Police of
Malolos, Bulacan on 4 September 1967. This Court ruled that Javier's appointment
prevailed over that of Bernardo. It cannot be said that Bernardo accepted his
appointment because he never assumed office or took his oath.
Excluding the act of acceptance from the appointment process leads us to the
very evil which we seek to avoid (i.e., antedating of appointments). Excluding the act of
acceptance will only provide more occasions to honor the Constitutional provision in
the breach. The inclusion of acceptance by the appointee as an integral part of the
entire appointment process prevents the abuse of the Presidential power to appoint. It
is relatively easy to antedate appointment papers and make it appear that they were
issued prior to the appointment ban, but it is more dif cult to simulate the entire
appointment process up until acceptance by the appointee.
Petitioners have failed to show compliance with all four elements of a valid
appointment. They cannot prove with certainty that their appointment papers were
transmitted before the appointment ban took effect. On the other hand, petitioners
admit that they took their oaths of office during the appointment ban.
Petitioners have failed to raise any valid ground for the Court to declare EO 2, or
any part of it, unconstitutional. Consequently, EO 2 remains valid and constitutional.
WHEREFORE , the petitions in G.R. Nos. 203372, 206290, and 212030 are
DENIED,
DENIED and the petition in G.R. No. 209138 is DISMISSED.
DISMISSED The appointments of
petitioners Atty. Cheloy E. Velicaria-Gara l (G.R. No. 203372), Atty. Dindo G. Venturanza
(G.R. No. 206290), Irma A. Villanueva, and Francisca B. Rosquita (G.R. No. 209138), and
Atty. Eddie U. Tamondong (G.R. No. 212030) are declared VOID. VOID We DECLARE that
Executive Order No. 2 dated 30 July 2010 is VALID and CONSTITUTIONAL.
CONSTITUTIONAL
SO ORDERED.
ORDERED
Sereno, C.J., Velasco, Jr., Del Castillo, Villarama, Jr., Reyes and Perlas-Bernabe,
JJ., concur.
Leonardo-de Castro, Bersamin and Mendoza, JJ., join the dissent of Justice
Brion.
Brion, J., see concurring and dissenting opinion.
Peralta, * J., is on leave, left vote. I join J. Brion's dissent.
Perez, J., I join J. Brion in his dissent.
Leonen, * J., is on leave, left my vote.
Jardeleza, ** J., took no part.
Separate Opinions
BRION J., concurring and dissenting:
BRION,
I was the original Member-in-Charge assigned to this case and in this capacity,
submitted a draft Opinion to the Court, which draft the Court did not approve in an 8 to
6 vote in favor of the present ponente.
Due to the close 8-6 vote, I nd it appropriate to simply reiterate in this
Concurring and Dissenting Opinion the legal arguments and positions that I had
originally submitted to the Court en banc for its consideration. AcICHD
The present consolidated cases stemmed from the petitioners' presidential

appointments that were revoked pursuant to Executive Order (E.O.) No. 2, entitled
EN BANC
[G.R. No. 88211. September 15, 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
YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F.
ESTRELLA petitioners, vs. HONORABLE RAUL MANGLAPUS,
ESTRELLA,
CATALINO MACARAIG, SEDFREY ORDOÑEZ, 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
respectively respondents.
and Chief of Staff, respectively,
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO RETURN TO ONE'S

COUNTRY, NOT AMONG THE RIGHTS GUARANTEED. — The right to return to one's
country is not among the rights speci cally guaranteed in the Bill of Rights, which treats
only of the liberty of abode and the right to travel.
2. ID.; ID.; RIGHT TO RETURN CONSIDERED AS A GENERALLY ACCEPTED
PRINCIPLE OF INTERNATIONAL LAW. — It is the court's well-considered view that the
right to return may be considered, as a generally accepted principle of international law
and under our Constitution, is part of the law of the land [Art. II Sec. 2 of the
Constitution.]
3. ID.; ID.; RIGHT TO RETURN, DISTINCT AND SEPARATE FROM THE RIGHT TO
TRAVEL. — It is distinct and separate from the right to travel and enjoys a different
protection under the International Covenant of Civil and Political Rights, i.e., against
being "arbitrarily deprived" thereof [Art. 12 (4).]
4. ID.; ALLOCATION OF POWER IN THE THREE BRANCHES OF GOVERNMENT A
GRANT OF ALL THE POWERS INHERENT THERETO. — As the Supreme Court in
Ocampo v. Cabangis [15 Phil. 626 (1910)] 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." [At 631-632.] If
this can be said of the legislative power which is exercised by two chambers with a
combined membership of more than two hundred members and of the judicial power
which is vested in a hierarchy of courts, it can equally be said of the executive power
which is vested in one official — the President.
5. ID.; PRESIDENT'S POWER UNDER THE 1987 CONSTITUTION; EXTENT AND
LIMITATION. — Consideration of tradition and the development of presidential power
under the different constitutions are essential for a complete understanding of the
extent of and limitations to the President's powers under the 1987 Constitution.
Although the 1987 Constitution imposes limitations on the exercise of specific powers
of the President, it maintains intact what is traditionally considered as within the scope
of "executive power." Corollarily, the powers of the President cannot be said to be
limited only to the speci c powers enumerated in the Constitution. In other words,
executive power is more than the sum of specific powers so enumerated.
6. ID.; PRESIDENT'S RESIDUAL POWER TO PROTECT THE GENERAL WELFARE OF
THE PEOPLE; THE POWERS INVOLVED. — The power involved is the President's
residual power to protect the general welfare of the people. It is founded on the duty of
the President, as steward of the people. To paraphrase Theodore Roosevelt, it is not
only the power of the President but also his duty to do anything not forbidden by the
Constitution or the laws that the needs of the nation demand. The President is not only
clothed with extraordinary powers in times of emergency, but is also tasked with
attending to the day-to-day problems of maintaining peace and order and ensuring
domestic tranquillity in times when no foreign foe appears on the horizon. Wide
discretion, within the bounds of law, in ful lling presidential duties in times of peace is
not in any way diminished by the relative want of an emergency speci ed in the
commander-in-chief provision.
7. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; REQUEST TO BE ALLOWED
TO RETURN TO THE PHILIPPINES; TO BE TREATED AS ADDRESSED TO THE RESIDUAL
UNSTATED POWERS OF THE PRESIDENT. — The request or demand of the Marcoses to
be allowed to return to the Philippines cannot be considered in the light solely of the
constitutional provisions guaranteeing liberty of abode and the right to travel, subject
to certain exceptions, or of case law which clearly never contemplated situations even
remotely similar to the present one. It must be treated as a matter that is appropriately
addressed to those residual unstated powers of the President which are implicit in and
correlative to the paramount duty residing in that o ce to safeguard and protect
general welfare. In that context, such request or demand should submit to the exercise
of a broader discretion on the part of the President to determine whether it must be
granted or denied.
8. ID.; JUDICIAL REVIEW; POWER TO DETERMINE GRAVE ABUSE OF DISCRETION
OR EXCESS OF JURISDICTION ON ANY BRANCH OR INSTRUMENTALITY OF THE
GOVERNMENT. — The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas which the Court, under
previous constitutions, would have normally left to the political departments to decide.
The deliberations of the Constitutional Commission cited by petitioners show that the
framers intended to widen the scope of judicial review but they did not intend courts of
justice to settle all actual controversies before them. When political questions are
involved, the Constitution limits the determination to whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the
official whose action is being questioned.
9. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; DENIAL OF REQUEST TO BE
ALLOWED TO RETURN TO THE PHILIPPINES, NOT A GRAVE ABUSE OF DISCRETION. —
We nd that from the pleadings led by the parties, from their oral arguments, and the
facts revealed during the brie ng in chambers by the Chief of Staff of the Armed Forces
of the Philippines and the National Security Adviser, wherein petitioners and
respondents were represented, there exist factual bases for the President's decision.
The documented history of the efforts of the Marcoses and their followers to
destabilize the country, as earlier narrated in this ponencia bolsters the conclusion that
the return of the Marcoses at this time would only exacerbate and intensify the violence
directed against the State and instigate more chaos. With these before her, the
President cannot be said to have acted arbitrarily and capriciously and whimsically in
determining that the return of the Marcoses poses a serious threat to the national
interest and welfare and in prohibiting their return.
GUTIERREZ, JR., J.: dissenting:
1. CONSTITUTIONAL LAW; CONSTITUTION; ITS PROVISIONS PROTECT ALL
MEN, AT ALL TIMES AND UNDER ALL CIRCUMSTANCES. — "The Constitution . . . is a
law for rulers and people, equally in war and in peace, and covers with the shield of its
protection all classes of men, at all times, and under all circumstances. No doctrine
involving more pernicious consequences was ever invented by the wit of man than that
any of its provisions can be suspended during any of the great exigencies of
government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866]).
2. ID.; POLITICAL QUESTIONS; OUTSIDE THE SCOPE OF JUDICIAL
DETERMINATION. — It is a well-settled doctrine that political questions are not within
the province of the judiciary, except to the extent that power to deal with such
questions has been conferred on the courts by express constitutional or statutory
provisions.
3. ID.; ID.; CONSTRUED. — It is not so easy, however, to de ne the phrase political
question, nor to determine what matters fall within its scope. It is frequently used to
designate all questions that lie outside the scope of the judicial power. More properly,
however, it means 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.
4. ID.; ID.; CONSTITUTIONAL POWER VESTED EXCLUSIVELY IN THE PRESIDENT
OR CONGRESS, BEYOND PROHIBITION OR EXAMINATION BY THE COURT REQUIRED
FOR ITS EXISTENCE. — For a political question to exist, there must be in the
Constitution a power vested exclusively in the President or Congress, the exercise of
which the court should not examine or prohibit. A claim of plenary or inherent power
against a civil right which claim is not found in a speci c provision is dangerous.
Neither should we validate a roving commission allowing public officials to strike where
they please and to override everything which to them represents evil. The entire
Government is bound by the rule of law. The authority implied in Section 6 of the Bill of
Rights itself does not exist because no law has been enacted specifying the
circumstances when the right may be impaired in the interest of national security or
public safety. The power is in Congress, not the Executive.
5. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; RIGHT TO TRAVEL INCLUDES
RIGHT TO TRAVEL OUT OF OR BACK TO THE PHILIPPINES. — Section 6 of the Bill of
Rights states categorically that the liberty of abode and of changing the same within
the limits prescribed by law may be impaired only upon a lawful order of a court. Not by
an executive o cer. Not even by the President. Section 6 further provides that the right
to travel, and this obviously includes the right to travel out of or back into the
Philippines, cannot be impaired except in the interest of national security, public safety,
or public health, as may be provided by law.
6. ID.; POLITICAL QUESTION DOCTRINE NO LONGER UTILIZED BY THE COURT;
COURT COMPELLED TO DECIDE THE CASE UNDER THE 1987 CONSTITUTION. — The
framers of the Constitution believed that the free use of the political question doctrine
allowed the Court during the Marcos years to fall back on prudence, institutional
di culties, complexity of issues, momentousness of consequences or a fear that it
was extravagantly extending judicial power in the cases where it refused to examine
and strike down an exercise of authoritarian power. Parenthetically, at least two of the
respondents and their counsel were among the most vigorous critics of Mr. Marcos
(the main petitioner) and his use of the political question doctrine. The Constitution was
accordingly amended. We are now precluded by its mandate from refusing to invalidate
a political use of power through a convenient resort to the political question doctrine.
We are compelled to decide what would have been non-justiceable under our decisions
interpreting earlier fundamental charters.
7. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; DENIAL A GRAVE ABUSE OF
DISCRETION. — We do not have to look into the factual bases of the ban Marcos policy
in order to ascertain whether or not the respondents acted with grave abuse of
discretion. Nor are we forced to fall back upon judicial notice of the implications of a
Marcos return to his home to buttress a conclusion. In the rst place, there has never
been a pronouncement by the President that a clear and present danger to national
security and public safety will arise if Mr. Marcos and his family are allowed to return to
the Philippines. It was only after the present petition was led that the alleged danger
to national security and public safety conveniently surfaced in the respondents'
pleadings. Secondly, President Aquino herself limits the reason for the ban Marcos
policy to (1) national welfare and interest and (2) the continuing need to preserve the
gains achieved in terms of recovery and stability. Neither ground satis es the criteria of
national security and public safety. The "con uence theory" of the Solicitor General or
what the majority calls "catalytic effect," which alone sustains the claim of danger to
national security is fraught with perilous implications. Any di cult problem or any
troublesome person can be substituted for the Marcos threat as the catalysing factor.
It was precisely the banning by Mr. Marcos of the right to travel by Senators Benigno
Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and "threats to national
security" during that unfortunate period which led the framers of our present
Constitution not only to re-enact but to strengthen the declaration of this right.
DECISION
CORTES J :
CORTES, p
Before the Court is a controversy of grave national importance. While ostensibly

only legal issues are involved, the Court's decision in this case would undeniably have a
profound effect on the political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the
presidency via the non-violent "people power" revolution and forced into exile. In his
stead, Corazon C. Aquino was declared President of the Republic under a revolutionary
government. Her ascension to and consolidation of power have not been unchallenged.
The failed Manila Hotel coup in 1986 led by political leaders of Mr. Marcos, the
takeover of television station Channel 7 by rebel troops led by Col. Canlas with the
support of "Marcos loyalists" and the unsuccessful plot of the Marcos spouses to
surreptitiously return from Hawaii with mercenaries aboard an aircraft chartered by a
Lebanese arms dealer [Manila Bulletin, January 30, 1987] awakened the nation to the
capacity of the Marcoses to stir trouble even from afar and to the fanaticism and blind
loyalty of their followers in the country. The rati cation of the 1987 Constitution
enshrined the victory of "people power" and also clearly reinforced the constitutional
moorings of Mrs. Aquino's presidency. This did not, however, stop bloody challenges to
the government. On August 28, 1987, Col. Gregorio Honasan, one of the major players
in the February Revolution, led a failed coup that left scores of people, both combatants
and civilians, dead. There were several other armed sorties of lesser signi cance, but
the message they conveyed was the same — a split in the ranks of the military
establishment that threatened civilian supremacy over the military and brought to the
fore the realization that civilian government could be at the mercy of a fractious
military.
But the armed threats to the Government were not only found in misguided
elements in the military establishment and among rabid followers of Mr. Marcos. There
were also the communist insurgency and the secessionist movement in Mindanao
which gained ground during the rule of Mr. Marcos, to the extent that the communists
have set up a parallel government of their own in the areas they effectively control while
the separatists are virtually free to move about in armed bands. There has been no let
up in these groups' determination to wrest power from the government. Not only
through resort to arms but also through the use of propaganda have they been
successful in creating chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign debt
and the plunder of the nation attributed to Mr. Marcos and his cronies left the economy
devastated. The efforts at economic recovery, three years after Mrs. Aquino assumed
o ce, have yet to show concrete results in alleviating the poverty of the masses, while
the recovery of the ill-gotten wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signi ed his wish to return to the
Philippines to die. But Mrs. Aquino, considering the dire consequences to the nation of
his return at a time when the stability of government is threatened from various
directions and the economy is just beginning to rise and move forward, has stood
firmly on the decision to bar the return of Mr. Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a dictator
forced out of o ce and into exile after causing twenty years of political, economic and
social havoc in the country and who within the short space of three years seeks to
return, is in a class by itself.
This petition for mandamus and prohibition asks the Court to order the
respondents to issue travel documents to Mr. Marcos and the immediate members of
his family and to enjoin the implementation of the President's decision to bar their
return to the Philippines.
The Issue
The issue is basically one of power: whether or not, in the exercise of the powers
granted by the Constitution, the President may prohibit the Marcoses from returning to
the Philippines.
According to the petitioners, the resolution of the case would depend on the
resolution of the following issues:
1. Does the President have the power to bar the return of former President Marcos
and his family to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former President Marcos and
his family from returning to the Philippines, in the interest of "national security,
public safety or public health" —
a. Has the President made a nding that the return of former
President Marcos and his family to the Philippines is a clear and present
danger to national security, public safety or public health?
b. Assuming that she has made that finding, —
(1) Have the requirements of due process been

complied with in making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be dispensed
with, has the President's decision, including the grounds upon
which it was based, been made known to petitioners so that
they may controvert the same?
c. Is the President's determination that the return of former President

Marcos and his family to the Philippines is a clear and present danger to
national security, public safety, or public health a political question?
d. Assuming that the Court may inquire as to whether the return of
former President Marcos and his family is a clear and present danger to
national security, public safety, or public health, have respondents
established such fact?
3. Have the respondents, therefore, in implementing the President's decision to bar

the return of former President Marcos and his family, acted and would be acting
without jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion,
in performing any act which would effectively bar the return of former President
Marcos and his family to the Philippines? [Memorandum for Petitioners, pp. 5-7;
Rollo, pp. 234-236.]
The case for petitioners is founded on the assertion that the right of the
Marcoses to return to the Philippines is guaranteed under the following provisions of
the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.
The petitioners contend that the President is without power to impair the liberty
of abode of the Marcoses because only a court may do so "within the limits prescribed
by law." Nor may the President impair their right to travel because no law has
authorized her to do so. They advance the view that before the right to travel may be
impaired by any authority or agency of the government, there must be legislation to that
effect. llcd
The petitioners further assert that under international law, the right of Mr. Marcos
and his family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:

Article 13. (1) Everyone has the right to freedom of movement and residence
within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to
his country.
Likewise, the International Covenant on Civil and Political Rights, which had been
ratified by the Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that territory, have
the right to liberty of movement and freedom to choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions except

those which are provided by law, are necessary to protect national security, public
order (order public), public health or morals or the rights and freedoms of others,
and are consistent with the other rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country.
On the other hand, the respondents' principal argument is that the issue in this
case involves a political question which is non-justiciable. According to the Solicitor
General:
As petitioners couch it, the question involved is simply whether or not petitioners
Ferdinand E. Marcos and his family have the right to travel and liberty of abode.
Petitioners invoke these constitutional rights in vacuo without reference to
attendant circumstances.
Respondents submit that in its proper formulation, the issue is whether or not
petitioners Ferdinand E. Marcos and family have the right to return to the
Philippines and reside here at this time in the face of the determination by the
President that such return and residence will endanger national security and
public safety.
It may be conceded that as formulated by petitioners, the question is not a
political question as it involves merely a determination of what the law provides
on the matter and application thereof to petitioners Ferdinand E. Marcos and
family. But when the question is whether the two rights claimed by petitioners
Ferdinand E. Marcos and family impinge on or collide with the more primordial
and transcendental right of the State to security and safety of its nationals, the
question becomes political and this Honorable Court can not consider it. cdrep
There are thus gradations to the question, to wit:

Do petitioners Ferdinand E. Marcos and family have the right to return to the
Philippines and reestablish their residence here? This is clearly a justiciable
question which this Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to return to the
Philippines and reestablish their residence here even if their return and residence
here will endanger national security and public safety? This is still a justiciable
question which this Honorable Court can decide.
Is there danger to national security and public safety if petitioners Ferdinand E.

Marcos and family shall return to the Philippines and establish their residence
here? This is now a political question which this Honorable Court can not decide
for it falls within the exclusive authority and competence of the President of the
Philippines. [Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security
over individual rights. In support thereof, they cite Article II of the Constitution, to wit:
Section 4. The prime duty of the Government is to serve and protect the people.
The Government may call upon the people to defend the State and, in the
ful llment thereof, all citizens may be required, under conditions provided by law,
to render personal, military, or civil service.
Section 5. The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the enjoyment
by all the people of the blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos and his family
from returning to the Philippines for reasons of national security and public safety has
international precedents. Rafael Trujillo of the Dominican Republic, Anastacio Somoza,
Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio Batista of Cuba, King Farouk of
Egypt, Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of
Venezuela were among the deposed dictators whose return to their homelands was
prevented by their governments. [See Statement of Foreign Affairs Secretary Raul S.
Manglapus, quoted in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of
presidential power and its limits. We, however, view this issue in a different light.
Although we give due weight to the parties' formulation of the issues, we are not bound
by its narrow confines in arriving at a solution to the controversy.
At the outset, we must state that it would not do to view the case within the
con nes of the right to travel and the import of the decisions of the U.S. Supreme Court
in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt. 1113, 2 L Ed. 2d 1204] and
Haig v. Agee [453 U.S. 280, 101 SCt. 2766, 69 L Ed. 2d 640) which a rmed the right to
travel and recognized exceptions to the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to travel
from the Philippines to other countries or within the Philippines. These are what the
right to travel would normally connote. Essentially, the right involved is the right to
return to one's country, a totally distinct right under international law, independent from
although related to the right to travel. Thus, the Universal Declaration of Humans Rights
and the International Covenant on Civil and Political Rights treat the right to freedom of
movement and abode within the territory of a state, the right to leave a country, and the
right to enter one's country as separate and distinct rights. The Declaration speaks of
the "right to freedom of movement and residence within the borders of each state" [Art.
13(1)] separately from the "right to leave any country, including his own, and to return to
his country." [Art. 13(2).] On the other hand, the Covenant guarantees the "right to liberty
of movement and freedom to choose his residence" [Art. 12(1)] and the right to "be free
to leave any country, including his own." [Art. 12(2)] which rights may be restricted by
such laws as "are necessary to protect national security, public order, public health or
morals or the separate rights and freedoms of others." [Art. 12(3)] as distinguished
from the "right to enter his own country" of which one cannot be "arbitrarily deprived."
[Art. 12(4).] It would therefore be inappropriate to construe the limitations to the right
to return to one's country in the same context as those pertaining to the liberty of
abode and the right to travel.
The right to return to one's country is not among the rights speci cally
guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to
travel, but it is our well-considered view that the right to return may be considered, as a
generally accepted principle of international law and, under our Constitution, is part of
the law of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and
separate from the right to travel and enjoys a different protection under the
International Covenant of Civil and Political Rights, i.e., against being "arbitrarily
deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases of Kent and Haig, which refer to the issuance of
passports for the purpose of effectively exercising the right to travel are not
determinative of this case and are only tangentially material insofar as they relate to a
con ict between executive action and the exercise of a protected right. The issue
before the Court is novel and without precedent in Philippine, and even in American
jurisprudence. Cdpr
Consequently, resolution by the Court of the well-debated issue of whether or not

there can be limitations on the right to travel in the absence of legislation to that effect
is rendered unnecessary. An appropriate case for its resolution will have to be awaited.
Having clari ed the substance of the legal issue, we nd now a need to explain
the methodology for its resolution. Our resolution of the issue will involve a two-tiered
approach. We shall rst resolve whether or not the President has the power under the
Constitution, to bar the Marcoses from returning to the Philippines. Then, we shall
determine, pursuant to the express power of the Court under the Constitution in Article
VIII, Section 1, whether or not the President acted arbitrarily or with grave abuse of
discretion amounting to lack or excess of jurisdiction when she determined that the
return of the Marcoses to the Philippines poses a serious threat to national interest and
welfare and decided to bar their return.
Executive Power
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 [63 Phil. 139 (1936)], "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." [At 157.] 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 [Angara v.
Electoral Commission, supra] 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 [15 Phil. 626 (1910)] 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." [At 631-
632.] If this can be said of the legislative power which is exercised by two chambers
with a combined membership of more than two hundred members and of the judicial
power which is vested in a hierarchy of courts, it can equally be said of the executive
power which is vested in one official — the President.
As stated above, the Constitution provides that "[t]he executive power shall be
vested in the President of the Philippines." [Art. VII, Sec. 1]. However, it does not de ne
what is meant by "executive power" although in the same article it touches on the
exercise of certain powers by the President, i.e., the power of control over all executive
departments, bureaus and o ces, the power to execute the laws, the appointing power,
the powers under the commander-in-chief clause, the power to grant reprieves,
commutations and pardons, the power to grant amnesty with the concurrence of
Congress, the power to contract or guarantee foreign loans, the power to enter into
treaties or international agreements, the power to submit the budget to Congress, and
the power to address Congress [Art. VII, Secs. 14-23]. LLphil
The inevitable question then arises: by enumerating certain powers of the

President did the framers of the Constitution intend that the President shall exercise
those speci c powers and no other? Are these enumerated powers the breadth and
scope of "executive power"? Petitioners advance the view that the President's powers
are limited to those speci cally enumerated in the 1987 Constitution. Thus, they assert:
"The President has enumerated powers, and what is not enumerated is impliedly denied
to her. Inclusio unius est exclusio alterius." [Memorandum for Petitioners, p. 4; Rollo p.
233.] This argument brings to mind the institution of the U. S. Presidency after which
ours is legally patterned. *
Corwin, in his monumental volume on the President of the United States grappled
with the same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To those who think
that a constitution ought to settle everything beforehand it should be a nightmare;
by the same token, to those who think that constitution makers ought to leave
considerable leeway for the future play of political forces, it should be a vision
realized.
We encounter this characteristic of Article II in its opening words: "The executive
power shall be vested in a President of the United States of America." . . . [ The
President: Office and Powers, 1787-1957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different
persons who held the o ce from Washington to the early 1900's, and the swing from
the presidency by commission to Lincoln's dictatorship, he concluded that "what the
presidency is at any particular moment depends in important measure on who is
President." [At 30.]
This view is shared by Schlesinger, who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. It remained, of
course, an agency of government subject to unvarying demands and duties no
matter who was President. But, more than most agencies of government, it
changed shape, intensity and ethos according to the man in charge. Each
President's distinctive temperament and character, his values, standards, style, his
habits, expectations, idiosyncrasies, compulsions, phobias recast the White
House and pervaded the entire government. The executive branch, said Clark
Clifford, was a chameleon, taking its color from the character and personality of
the President. The thrust of the o ce, its impact on the constitutional order,
therefore altered from President to President. Above all, the way each President
understood it as his personal obligation to inform and involve the Congress, to
earn and hold the con dence of the electorate and to render an accounting to the
nation and posterity determined whether he strengthened or weakened the
constitutional order. [At 212-213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she
does but, rather, that the consideration of tradition and the development of presidential
power under the different constitutions are essential for a complete understanding of
the extent of and limitations to the President's powers under the 1987 Constitution.
The 1935 Constitution created a strong President with explicitly broader powers than
the U.S. President. The 1973 Constitution attempted to modify the system of
government into the parliamentary type, with the President as a mere gurehead, but
through numerous amendments, the President became even more powerful, to the
point that he was also the de facto Legislature. The 1987 Constitution, however,
brought back the presidential system of government and restored the separation of
legislative, executive and judicial powers by their actual distribution among three
distinct branches of government with provision for checks and balances. LexLib
It would not be accurate, however, to state that "executive power" is the power to
enforce the laws, for the President is head of state as well as head of government and
whatever powers inhere in such positions pertain to the o ce unless the Constitution
itself withholds it. Furthermore, the Constitution itself provides that the execution of the
laws is only one of the powers of the President. It also grants the President other
powers that do not involve the execution of any provision of law, e.g., his power over the
country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise of specific powers of the President, it maintains
intact what is traditionally considered as within the scope of "executive power."
Corollarily, the powers of the President cannot be said to be limited only to the speci c
powers enumerated in the Constitution. In other words, executive power is more than
the sum of specific powers so enumerated.
It has been advanced that whatever power inherent in the government that is
neither legislative nor judicial has to be executive. Thus, in the landmark decision of
Springer v. Government of the Philippine Islands , 277 U.S. 189 (1928), on the issue of
who between the Governor-General of the Philippines and the Legislature may vote the
shares of stock held by the Government to elect directors in the National Coal
Company and the Philippine National Bank, the U.S. Supreme Court, in upholding the
power of the Governor-General to do so, said:
. . . Here the members of the legislature who constitute a majority of the "board"
and "committee" respectively, are not charged with the performance of any
legislative functions or with the doing of anything which is in aid of performance
of any such functions by the legislature. Putting aside for the moment the
question whether the duties devolved upon these members are vested by the
Organic Act in the Governor-General, it is clear that they are not legislative in
character, and still more clear that they are not judicial. The fact that they do not
fall within the authority of either of these two constitutes logical ground for
concluding that they do fall within that of the remaining one among which the
powers of government are divided . . . [At 202-203; emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring
words of dissent we nd reinforcement for the view that it would indeed be a folly to
construe the powers of a branch of government to embrace only what are speci cally
mentioned in the Constitution:

The great ordinances of the Constitution do not establish and divide elds of
black and white. Even the more speci c of them are found to terminate in a
penumbra shading gradually from one extreme to the other. . . .
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by
veiling words we do not and cannot carry out the distinction between legislative
and executive action with mathematical precision and divide the branches into
watertight compartments, were it ever so desirable to do so, which I am far from
believing that it is, or that the Constitution requires.[At 210-211.]
The Power Involved

The Constitution declares among the guiding principles that "[t]he prime duty of
the Government is to serve and protect the people" and that "[t]he maintenance of
peace and order, the protection of life, liberty, and property, and the promotion of the
general welfare are essential for the enjoyment by all the people of the blessings of
democracy." [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace and
order, the protection of life, liberty and property, and the promotion of the general
welfare are essentially ideals to guide governmental action. But such does not mean
that they are empty words. Thus, in the exercise of presidential functions, in drawing a
plan of government, and in directing implementing action for these plans, or from
another point of view, in making any decision as President of the Republic, the
President has to consider these principles, among other things, and adhere to them. prcd
Faced with the problem of whether or not the time is right to allow the Marcoses
to return to the Philippines, the President is, under the Constitution, constrained to
consider these basic principles in arriving at a decision. More than that, having sworn to
defend and uphold the Constitution, the President has the obligation under the
Constitution to protect the people, promote their welfare and advance the national
interest. It must be borne in mind that the Constitution, aside from being an allocation
of power is also a social contract whereby the people have surrendered their sovereign
powers to the State for the common good. Hence, lest the o cers of the Government
exercising the powers delegated by the people forget and the servants of the people
become rulers, the Constitution reminds everyone that "[s]overeignty resides in the
people and all government authority emanates from them." [Art. II, Sec. 1.]
The resolution of the problem is made di cult because the persons who seek to
return to the country are the deposed dictator and his family at whose door the travails
of the country are laid and from whom billions of dollars believed to be ill-gotten wealth
are sought to be recovered. The constitutional guarantees they invoke are neither
absolute nor in exible. For the exercise of even the preferred freedoms of speech and
of expression, although couched in absolute terms, admits of limits and must be
adjusted to the requirements of equally important public interests [Zaldivar v.
Sandiganbayan, G.R. Nos. 79690-707, October 7, 1988].
To the President, the problem is one of balancing the general welfare and the
common good against the exercise of rights of certain individuals. The power involved
is the President's residual power to protect the general welfare of the people. It is
founded on the duty of the President, as steward of the people. To paraphrase
Theodore Roosevelt, it is not only the power of the President but also his duty to do
anything not forbidden by the Constitution or the laws that the needs of the nation
demand [See Corwin, supra, at 153]. It is a power borne by the President's duty to
preserve and defend the Constitution. It also may be viewed as a power implicit in the
President's duty to take care that the laws are faithfully executed [ see Hyman, The
American President, where the author advances the view that an allowance of
discretionary power is unavoidable in any government and is best lodged in the
President].
More particularly, this case calls for the exercise of the President's powers as
protector of the peace. [Rossiter, The American Presidency]. The power of the
President to keep the peace is not limited merely to exercising the commander-in-chief
powers in times of emergency or to leading the State against external and internal
threats to its existence. The President is not only clothed with extraordinary powers in
times of emergency, but is also tasked with attending to the day-to-day problems of
maintaining peace and order and ensuring domestic tranquillity in times when no
foreign foe appears on the horizon. Wide discretion, within the bounds of law, in
ful lling presidential duties in times of peace is not in any way diminished by the
relative want of an emergency speci ed in the commander-in-chief provision. For in
making the President commander-in-chief the enumeration of powers that follow
cannot be said to exclude the President's exercising as Commander-in-Chief powers
short of the calling of the armed forces, or suspending the privilege of the writ of
habeas corpus or declaring martial law, in order to keep the peace, and maintain public
order and security.
That the President has the power under the Constitution to bar the Marcoses
from returning has been recognized by members of the Legislature, and is manifested
by the Resolution proposed in the House of Representatives and signed by 103 of its
members urging the President to allow Mr. Marcos to return to the Philippines "as a
genuine unselfish gesture for true national reconciliation and as irrevocable proof of our
collective adherence to uncompromising respect for human rights under the
Constitution and our laws." [House Resolution No. 1342, Rollo, p. 321.] The Resolution
does not question the President's power to bar the Marcoses from returning to the
Philippines, rather, it appeals to the President's sense of compassion to allow a man to
come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses to be
allowed to return to the Philippines cannot be considered in the light solely of the
constitutional provisions guaranteeing liberty of abode and the right to travel, subject
to certain exceptions, or of case law which clearly never contemplated situations even
remotely similar to the present one. It must be treated as a matter that is appropriately
addressed to those residual unstated powers of the President which are implicit in and
correlative to the paramount duty residing in that o ce to safeguard and protect
general welfare. In that context, such request or demand should submit to the exercise
of a broader discretion on the part of the President to determine whether it must be
granted or denied. llcd
The Extent of Review

Under the Constitution, judicial power includes the 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." [Art. VIII,
Sec. 1.] Given this wording, we cannot agree with the Solicitor General that the issue
constitutes a political question which is beyond the jurisdiction of the Court to decide.
The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court, under previous
constitutions, would have normally left to the political departments to decide. But
nonetheless there remain issues beyond the Court's jurisdiction the determination of
which is exclusively for the President, for Congress or for the people themselves
through a plebiscite or referendum. We cannot, for example, question the President's
recognition of a foreign government, no matter how premature or improvident such
action may appear. We cannot set aside a presidential pardon though it may appear to
us that the bene ciary is totally undeserving of the grant. Nor can we amend the
Constitution under the guise of resolving a dispute brought before us because the
power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof
on the political question doctrine. The deliberations of the Constitutional Commission
cited by petitioners show that the framers intended to widen the scope of judicial
review but they did not intend courts of justice to settle all actual controversies before
them. When political questions are involved, the Constitution limits the determination to
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of the o cial whose action is being questioned. If grave
abuse is not established, the Court will not substitute its judgment for that of the
o cial concerned and decide a matter which by its nature or by law is for the latter
alone to decide. In this light, it would appear clear that the second paragraph of Article
VIII, Section 1 of the Constitution, de ning "judicial power," which speci cally
empowers the courts to determine whether or not there has been a grave abuse of
discretion on the part of any branch or instrumentality of the government, incorporates
in the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-33964, December 11,
1971, 42 SCRA 448] that:
Article VII of the [1935] Constitution vests in the Executive the power to suspend
the privilege of the writ of habeas corpus under speci ed conditions. Pursuant to
the principle of separation of powers underlying our system of government, the
Executive is supreme within his own sphere. However, the separation of powers,
under the Constitution, is not absolute. What is more, it goes hand in hand with
the system of checks and balances, under which the Executive is supreme, as
regards the suspension of the privilege, but only if and when he acts within the
sphere alloted to him by the Basic Law, and the authority to determine whether or
not he has so acted is vested in the Judicial Department, which, in this respect, is,
in turn, constitutionally supreme.
In the exercise of such authority, the function of the Court is merely to check — not
to supplant — the Executive, or to ascertain merely whether he has gone beyond
the constitutional limits of his jurisdiction, not to exercise the power vested in him
or to determine the wisdom of his act .. [At 479-480.].
Accordingly, the question for the Court to determine is whether or not there exist
factual bases for the President to conclude that it was in the national interest to bar the
return of the Marcoses to the Philippines. If such postulates do exist, it cannot be said
that she has acted, or acts, arbitrarily or that she has gravely abused her discretion in
deciding to bar their return.
We nd that from the pleadings led by the parties, from their oral arguments,
and the facts revealed during the brie ng in chambers by the Chief of Staff of the
Armed Forces of the Philippines and the National Security Adviser, wherein petitioners
and respondents were represented, there exist factual bases for the President's
decision.
The Court cannot close its eyes to present realities and pretend that the country
is not besieged from within by a well-organized communist insurgency, a separatist
movement in Mindanao, rightist conspiracies to grab power, urban terrorism, the
murder with impunity of military men, police o cers and civilian o cials, to mention
only a few. The documented history of the efforts of the Marcoses and their followers
to destabilize the country, as earlier narrated in this ponencia bolsters the conclusion
that the return of the Marcoses at this time would only exacerbate and intensify the
violence directed against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained.
The military establishment has given assurances that it could handle the threats posed
by particular groups. But it is the catalytic effect of the return of the Marcoses that may
prove to be the proverbial final straw that would break the camel's back.
With these before her, the President cannot be said to have acted arbitrarily and
capriciously and whimsically in determining that the return of the Marcoses poses a
serious threat to the national interest and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will
cause the escalation of violence against the State, that would be the time for the
President to step in and exercise the commander-in-chief powers granted her by the
Constitution to suppress or stamp out such violence. The State, acting through the
Government, is not precluded from taking pre-emptive action against threats to its
existence if, though still nascent, they are perceived as apt to become serious and
direct. Protection of the people is the essence of the duty of government. The
preservation of the State — the fruition of the people's sovereignty — is an obligation in
the highest order. The President, sworn to preserve and defend the Constitution and to
see the faithful execution the laws, cannot shirk from that responsibility.
LLjur
We cannot also lose sight of the fact that the country is only now beginning to
recover from the hardships brought about by the plunder of the economy attributed to
the Marcoses and their close associates and relatives, many of whom are still here in
the Philippines in a position to destabilize the country, while the Government has barely
scratched the surface, so to speak, in its efforts to recover the enormous wealth
stashed away by the Marcoses in foreign jurisdictions. Then, We cannot ignore the
continually increasing burden imposed on the economy by the excessive foreign
borrowing during the Marcos regime, which sti es and stagnates development and is
one of the root causes of widespread poverty and all its attendant ills. The resulting
precarious state of our economy is of common knowledge and is easily within the
ambit of judicial notice.
The President has determined that the destabilization caused by the return of the
Marcoses would wipe away the gains achieved during the past few years and lead to
total economic collapse. Given what is within our individual and common knowledge of
the state of the economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion 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
poses a serious threat to national interest and welfare and in prohibiting their return to
the Philippines, the instant petition is hereby DISMISSED.
SO ORDERED.
Narvasa, Melencio-Herrera, Gancayco, Griño-Aquino, Medialdea and Regalado,
EN BANC
[G.R. No. 212426. January 12, 2016.]
RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO "DODONG" NEMENZO, JR., SR. MARY JOHN MANANZAN,
PACIFICO A. AGABIN, ESTEBAN "STEVE" SALONGA, H. HARRY L. ROQUE, JR., EVALYN G. URSUA, EDRE U. OLALIA, DR.
CAROL PAGADUAN-ARAULLO, DR. ROLAND SIMBULAN, AND TEDDY CASIÑO , petitioners, vs. EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., DEPARTMENT OF NATIONAL DEFENSE SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF
FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, JR., DEPARTMENT OF BUDGET AND MANAGEMENT
SECRETARY FLORENCIO ABAD, AND ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T.
BAUTISTA respondents.
BAUTISTA,
[G.R. No. 212444. January 12, 2016.]
BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY ITS SECRETARY GENERAL RENATO M. REYES, JR.,
BAYAN MUNA PARTY-LIST REPRESENTATIVES NERI J. COLMENARES AND CARLOS ZARATE, GABRIELA WOMEN'S
PARTY-LIST REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA DE JESUS, ACT TEACHERS PARTY-LIST
REPRESENTATIVE ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST REPRESENTATIVE FERNANDO HICAP, KABATAAN
PARTY-LIST REPRESENTATIVE TERRY RIDON, MAKABAYANG KOALISYON NG MAMAMAYAN (MAKABAYAN),
REPRESENTED BY SATURNINO OCAMPO AND LIZA MAZA, BIENVENIDO LUMBERA, JOEL C. LAMANGAN, RAFAEL
MARIANO, SALVADOR FRANCE, ROGELIO M. SOLUTA, AND CLEMENTE G. BAUTISTA , petitioners, vs. DEPARTMENT OF
NATIONAL DEFENSE (DND) SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY
ALBERT DEL ROSARIO, EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., ARMED FORCES OF THE PHILIPPINES CHIEF
OF STAFF GENERAL EMMANUEL T. BAUTISTA, DEFENSE UNDERSECRETARY PIO LORENZO BATINO, AMBASSADOR
LOURDES YPARRAGUIRRE, AMBASSADOR J. EDUARDO MALAYA, DEPARTMENT OF JUSTICE UNDERSECRETARY
FRANCISCO BARAAN III, AND DND ASSISTANT SECRETARY FOR STRATEGIC ASSESSMENTS RAYMUND JOSE QUILOP
AS CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE NEGOTIATING PANEL FOR THE PHILIPPINES ON EDCA ,
respondents.
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON, ELMER LABOG, CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), REPRESENTED BY ITS NATIONAL
PRESIDENT FERDINAND GAITE, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO, REPRESENTED BY
ITS NATIONAL PRESIDENT JOSELITO USTAREZ, NENITA GONZAGA, VIOLETA ESPIRITU, VIRGINIA FLORES, AND
JR. petitioners-in-intervention,
ARMANDO TEODORO, JR.,
JR. petitioner-in-intervention.
RENE A.Q. SAGUISAG, JR.,
DECISION
SERENO , C.J : p
The petitions 1 before this Court question the constitutionality of the Enhanced Defense Cooperation Agreement (EDCA) between the
Republic of the Philippines and the United States of America (U.S.). Petitioners allege that respondents committed grave abuse of discretion
amounting to lack or excess of jurisdiction when they entered into EDCA with the U.S., 2 claiming that the instrument violated multiple
constitutional provisions. 3 In reply, respondents argue that petitioners lack standing to bring the suit. To support the legality of their actions,
respondents invoke the 1987 Constitution, treaties, and judicial precedents. 4
A proper analysis of the issues requires this Court to lay down at the outset the basic parameters of the constitutional powers and roles
of the President and the Senate in respect of the above issues. A more detailed discussion of these powers and roles will be made in the latter
portions.
I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE PRESIDENT: DEFENSE, FOREIGN RELATIONS, AND EDCA
A. The Prime Duty of the State
and the Consolidation of
Executive Power in the
President
Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang buong katapatan at sigasig ang aking mga tungkulin
bilang Pangulo (o Pangalawang Pangulo o Nanunungkulang Pangulo) ng Pilipinas, pangangalagaan at ipagtatanggol ang kanyang
Konstitusyon, ipatutupad ang mga batas nito, magiging makatarungan sa bawat tao, at itatalaga ang aking sarili sa paglilingkod sa Bansa.
Kasihan nawa ako ng Diyos. ICHDca
— Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon sa Saligang Batas 5

The 1987 Constitution has "vested the executive power in the President of the Republic of the Philippines." 6 While the vastness of the
executive power that has been consolidated in the person of the President cannot be expressed fully in one provision, the Constitution has
stated the prime duty of the government, of which the President is the head:
The prime duty of the Government is to serve and protect the people. people The Government may call upon the people to defend
the State and, in the ful llment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil
service. 7 (Emphases supplied)
B. The duty to protect the
territory and the citizens of the
Philippines, the power to call
upon the people to defend the
State, and the President as
Commander-in-Chief
The duty to protect the State and its people must be carried out earnestly and effectively throughout the whole territory of the Philippines
in accordance with the constitutional provision on national territory. Hence, the President of the Philippines, as the sole repository of executive
power, is the guardian of the Philippine archipelago, including all the islands and waters embraced therein and all other territories over which it
has sovereignty or jurisdiction. These territories consist of its terrestrial, uvial, and aerial domains; including its territorial sea, the seabed, the
subsoil, the insular shelves, and other submarine areas; and the waters around, between, and connecting the islands of the archipelago,
regardless of their breadth and dimensions. 8
To carry out this important duty, the President is equipped with authority over the Armed Forces of the Philippines (AFP), 9 which is the
protector of the people and the state. The AFP's role is to secure the sovereignty of the State and the integrity of the national territory. 10 In
addition, the Executive is constitutionally empowered to maintain peace and order; protect life, liberty, and property; and promote the general
welfare. 11 In recognition of these powers, Congress has speci ed that the President must oversee, ensure, and reinforce our defensive
capabilities against external and internal threats 12 and, in the same vein, ensure that the country is adequately prepared for all national and
local emergencies arising from natural and man-made disasters. 13
To be sure, this power is limited by the Constitution itself. To illustrate, the President may call out the AFP to prevent or suppress
instances of lawless violence, invasion or rebellion, 14 but not suspend the privilege of the writ of habeas corpus for a period exceeding 60
days, or place the Philippines or any part thereof under martial law exceeding that same span. In the exercise of these powers, the President is
also duty-bound to submit a report to Congress, in person or in writing, within 48 hours from the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus; and Congress may in turn revoke the proclamation or suspension. The same provision provides for
the Supreme Court's review of the factual basis for the proclamation or suspension, as well as the promulgation of the decision within 30 days
from filing.
C. The power and duty to conduct
foreign relations
The President also carries the mandate of being the sole organ in the conduct of foreign relations. 15 Since every state has the capacity
to interact with and engage in relations with other sovereign states, 16 it is but logical that every state must vest in an agent the authority to
represent its interests to those other sovereign states.
The conduct of foreign relations is full of complexities and consequences, sometimes with life and death signi cance to the nation
especially in times of war. It can only be entrusted to that department of government which can act on the basis of the best available
information and can decide with decisiveness. . . . It is also the President who possesses the most comprehensive and the most con dential
information about foreign countries for our diplomatic and consular o cials regularly brief him on meaningful events all over the world. He
has also unlimited access to ultra-sensitive military intelligence data. In ne, the presidential role in foreign affairs is dominant and the
President is traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions
are adjudged under less stringent standards, lest their judicial repudiation lead to breach of an international obligation, rupture of state
relations, forfeiture of confidence, national embarrassment and a plethora of other problems with equally undesirable consequences. 17
The role of the President in foreign affairs is quali ed by the Constitution in that the Chief Executive must give paramount importance to
the sovereignty of the nation, the integrity of its territory, its interest, and the right of the sovereign Filipino people to self-determination. 18 In
speci c provisions, the President's power is also limited, or at least shared, as in Section 2 of Article II on the conduct of war; Sections 20 and
21 of Article VII on foreign loans, treaties, and international agreements; Sections 4 (2) and 5 (2) (a) of Article VIII on the judicial review of
executive acts; Sections 4 and 25 of Article XVIII on treaties and international agreements entered into prior to the Constitution and on the
presence of foreign military troops, bases, or facilities. TCAScE
D. The relationship between the

two major presidential
functions and the role of the
Senate
Clearly, the power to defend the State and to act as its representative in the international sphere inheres in the person of the President.
This power, however, does not crystallize into absolute discretion to craft whatever instrument the Chief Executive so desires. As previously
mentioned, the Senate has a role in ensuring that treaties or international agreements the President enters into, as contemplated in Section 21
of Article VII of the Constitution, obtain the approval of two-thirds of its members.
Previously, treaties under the 1973 Constitution required rati cation by a majority of the Batasang Pambansa, 19 except in instances
wherein the President "may enter into international treaties or agreements as the national welfare and interest may require." 20 This left a large
margin of discretion that the President could use to bypass the Legislature altogether. This was a departure from the 1935 Constitution, which
explicitly gave the President the power to enter into treaties only with the concurrence of two-thirds of all the Members of the Senate. 21 The
1987 Constitution returned the Senate's power 22 and, with it, the legislative's traditional role in foreign affairs. 23
The responsibility of the President when it comes to treaties and international agreements under the present Constitution is therefore
shared with the Senate. This shared role, petitioners claim, is bypassed by EDCA.
II. HISTORICAL ANTECEDENTS OF EDCA
A. U.S. takeover of Spanish
colonization and its military
bases, and the transition to
Philippine independence
The presence of the U.S. military forces in the country can be traced to their pivotal victory in the 1898 Battle of Manila Bay during the
Spanish-American War. 24 Spain relinquished its sovereignty over the Philippine Islands in favor of the U.S. upon its formal surrender a few
months later. 25 By 1899, the Americans had consolidated a military administration in the archipelago. 26
When it became clear that the American forces intended to impose colonial control over the Philippine Islands, General Emilio Aguinaldo
immediately led the Filipinos into an all-out war against the U.S. 27 The Filipinos were ultimately defeated in the Philippine-American War, which
lasted until 1902 and led to the downfall of the rst Philippine Republic. 28 The Americans henceforth began to strengthen their foothold in the
country. 29 They took over and expanded the former Spanish Naval Base in Subic Bay, Zambales, and put up a cavalry post called Fort
Stotsenberg in Pampanga, now known as Clark Air Base. 30 ASEcHI
When talks of the eventual independence of the Philippine Islands gained ground, the U.S. manifested the desire to maintain military
bases and armed forces in the country. 31 The U.S. Congress later enacted the Hare-Hawes-Cutting Act of 1933, which required that the
proposed constitution of an independent Philippines recognize the right of the U.S. to maintain the latter's armed forces and military bases. 32
The Philippine Legislature rejected that law, as it also gave the U.S. the power to unilaterally designate any part of Philippine territory as a
permanent military or naval base of the U.S. within two years from complete independence. 33
The U.S. Legislature subsequently crafted another law called the Tydings-McDu e Act or the Philippine Independence Act of 1934.
Compared to the old Hare-Hawes-Cutting Act, the new law provided for the surrender to the Commonwealth Government of "all military and
other reservations" of the U.S. government in the Philippines, except "naval reservations and refueling stations." 34 Furthermore, the law
authorized the U.S. President to enter into negotiations for the adjustment and settlement of all questions relating to naval reservations and
fueling stations within two years after the Philippines would have gained independence. 35 Under the Tydings-McDu e Act, the U.S. President
would proclaim the American withdrawal and surrender of sovereignty over the islands 10 years after the inauguration of the new government
in the Philippines. 36 This law eventually led to the promulgation of the 1935 Philippine Constitution.
The original plan to surrender the military bases changed. 37 At the height of the Second World War, the Philippine and the U.S.
Legislatures each passed resolutions authorizing their respective Presidents to negotiate the matter of retaining military bases in the country
after the planned withdrawal of the U.S. 38 Subsequently, in 1946, the countries entered into the Treaty of General Relations, in which the U.S.
relinquished all control and sovereignty over the Philippine Islands, except the areas that would be covered by the American military bases in
the country. 39 This treaty eventually led to the creation of the post-colonial legal regime on which would hinge the continued presence of U.S.
military forces until 1991: the Military Bases Agreement (MBA) of 1947, the Military Assistance Agreement of 1947, and the Mutual Defense
Treaty (MDT) of 1951. 40
B. Former legal regime on the
presence of U.S. armed forces
in the territory of an
independent Philippines
(1946-1991)
Soon after the Philippines was granted independence, the two countries entered into their rst military arrangement pursuant to the
Treaty of General Relations — the 1947 MBA. 41 The Senate concurred on the premise of "mutuality of security interest," 42 which provided for
the presence and operation of 23 U.S. military bases in the Philippines for 99 years or until the year 2046. 43 The treaty also obliged the
Philippines to negotiate with the U.S. to allow the latter to expand the existing bases or to acquire new ones as military necessity might require.
44
A number of signi cant amendments to the 1947 MBA were made. 45 With respect to its duration, the parties entered into the Ramos-
Rusk Agreement of 1966, which reduced the term of the treaty from 99 years to a total of 44 years or until 1991. 46 Concerning the number of
U.S. military bases in the country, the Bohlen-Serrano Memorandum of Agreement provided for the return to the Philippines of 17 U.S. military
bases covering a total area of 117,075 hectares. 47 Twelve years later, the U.S. returned Sangley Point in Cavite City through an exchange of
notes. 48 Then, through the Romulo-Murphy Exchange of Notes of 1979, the parties agreed to the recognition of Philippine sovereignty over
Clark and Subic Bases and the reduction of the areas that could be used by the U.S. military. 49 The agreement also provided for the mandatory
review of the treaty every five years. 50 In 1983, the parties revised the 1947 MBA through the Romualdez-Armacost Agreement. 51 The revision
pertained to the operational use of the military bases by the U.S. government within the context of Philippine sovereignty, 52 including the need
for prior consultation with the Philippine government on the former's use of the bases for military combat operations or the establishment of
long-range missiles. 53
Pursuant to the legislative authorization granted under Republic Act No. 9, 54 the President also entered into the 1947 Military Assistance
Agreement 55 with the U.S. This executive agreement established the conditions under which U.S. military assistance would be granted to the
Philippines, 56 particularly the provision of military arms, ammunitions, supplies, equipment, vessels, services, and training for the latter's
defense forces. 57 An exchange of notes in 1953 made it clear that the agreement would remain in force until terminated by any of the parties.
58
To further strengthen their defense and security relationship, 59 the Philippines and the U.S. next entered into the MDT in 1951. Concurred
in by both the Philippine 60 and the U.S. 61 Senates, the treaty has two main features: first, it allowed for mutual assistance in maintaining and
developing their individual and collective capacities to resist an armed attack; 62 and second, it provided for their mutual self-defense in the
event of an armed attack against the territory of either party. 63 The treaty was premised on their recognition that an armed attack on either of
them would equally be a threat to the security of the other. 64
C. Current legal regime on the
presence of U.S. armed forces
in the country
In view of the impending expiration of the 1947 MBA in 1991, the Philippines and the U.S. negotiated for a possible renewal of their
defense and security relationship. 65 Termed as the Treaty of Friendship, Cooperation and Security, the countries sought to recast their military
ties by providing a new framework for their defense cooperation and the use of Philippine installations. 66 One of the proposed provisions
included an arrangement in which U.S. forces would be granted the use of certain installations within the Philippine naval base in Subic. 67 On 16
September 1991, the Senate rejected the proposed treaty. 68 ITAaHc
The consequent expiration of the 1947 MBA and the resulting paucity of any formal agreement dealing with the treatment of U.S.
personnel in the Philippines led to the suspension in 1995 of large-scale joint military exercises. 69 In the meantime, the respective
governments of the two countries agreed 70 to hold joint exercises at a substantially reduced level. 71 The military arrangements between them
were revived in 1999 when they concluded the first Visiting Forces Agreement (VFA). 72
As a "rea rm[ation] [of the] obligations under the MDT," 73 the VFA has laid down the regulatory mechanism for the treatment of U.S.
military and civilian personnel visiting the country. 74 It contains provisions on the entry and departure of U.S. personnel; the purpose, extent,
and limitations of their activities; criminal and disciplinary jurisdiction; the waiver of certain claims; the importation and exportation of
equipment, materials, supplies, and other pieces of property owned by the U.S. government; and the movement of U.S. military vehicles, vessels,
and aircraft into and within the country. 75 The Philippines and the U.S. also entered into a second counterpart agreement (VFA II), which in turn
regulated the treatment of Philippine military and civilian personnel visiting the U.S. 76 The Philippine Senate concurred in the rst VFA on 27
May 1999. 77
Beginning in January 2002, U.S. military and civilian personnel started arriving in Mindanao to take part in joint military exercises with their
Filipino counterparts. 78 Called Balikatan, these exercises involved trainings aimed at simulating joint military maneuvers pursuant to the MDT.
79
In the same year, the Philippines and the U.S. entered into the Mutual Logistics Support Agreement to "further the interoperability,
readiness, and effectiveness of their respective military forces" 80 in accordance with the MDT, the Military Assistance Agreement of 1953, and
the VFA. 81 The new agreement outlined the basic terms, conditions, and procedures for facilitating the reciprocal provision of logistics
support, supplies, and services between the military forces of the two countries. 82 The phrase "logistics support and services" includes
billeting, operations support, construction and use of temporary structures, and storage services during an approved activity under the existing
military arrangements. 83 Already extended twice, the agreement will last until 2017. 84
D. The Enhanced Defense
Cooperation Agreement
EDCA authorizes the U.S. military forces to have access to and conduct activities within certain "Agreed Locations" in the country. It was
not transmitted to the Senate on the executive's understanding that to do so was no longer necessary. 85 Accordingly, in June 2014, the
Department of Foreign Affairs (DFA) and the U.S. Embassy exchanged diplomatic notes con rming the completion of all necessary internal
requirements for the agreement to enter into force in the two countries. 86
According to the Philippine government, the conclusion of EDCA was the result of intensive and comprehensive negotiations in the
course of almost two years. 87 After eight rounds of negotiations, the Secretary of National Defense and the U.S. Ambassador to the
Philippines signed the agreement on 28 April 2014. 88 President Benigno S. Aquino III ratified EDCA on 6 June 2014. 89 The OSG clarified during
the oral arguments 90 that the Philippine and the U.S. governments had yet to agree formally on the speci c sites of the Agreed Locations
mentioned in the agreement.

Two petitions for certiorari were thereafter led before us assailing the constitutionality of EDCA. They primarily argue that it should have
been in the form of a treaty concurred in by the Senate, not an executive agreement.
On 10 November 2015, months after the oral arguments were concluded and the parties ordered to le their respective memoranda, the
Senators adopted Senate Resolution No. (SR) 105. 91 The resolution expresses the "strong sense" 92 of the Senators that for EDCA to become
valid and effective, it must first be transmitted to the Senate for deliberation and concurrence.
III. ISSUES
Petitioners mainly seek a declaration that the Executive Department committed grave abuse of discretion in entering into EDCA in the
form of an executive agreement. For this reason, we cull the issues before us:
A. Whether the essential requisites for judicial review are present
B. Whether the President may enter into an executive agreement on foreign military bases, troops, or facilities
C. Whether the provisions under EDCA are consistent with the Constitution, as well as with existing laws and treaties
IV. DISCUSSION
A. Whether the essential
requisites for judicial review
have been satisfied
Petitioners are hailing this Court's power of judicial review in order to strike down EDCA for violating the Constitution. They stress that
our fundamental law is explicit in prohibiting the presence of foreign military forces in the country, except under a treaty concurred in by the
Senate. Before this Court may begin to analyze the constitutionality or validity of an o cial act of a coequal branch of government, however,
petitioners must show that they have satisfied all the essential requisites for judicial review. 93 CHTAIc
Distinguished from the general notion of judicial power, the power of judicial review specially refers to both the authority and the duty of
this Court to determine whether a branch or an instrumentality of government has acted beyond the scope of the latter's constitutional powers.
94 As articulated in Section 1, Article VIII of the Constitution, the power of judicial review involves the power to resolve cases in which the
questions concern the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation. 95 In Angara v. Electoral Commission , this Court exhaustively discussed this "moderating power" as
part of the system of checks and balances under the Constitution. In our fundamental law, the role of the Court is to determine whether a
branch of government has adhered to the specific restrictions and limitations of the latter's power: 96
The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by
actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate
and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has
provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the
government. . . . . And the judiciary in turn , with the Supreme Court as the nal arbiter, effectively checks the other departments in
the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the
Constitution.
xxx xxx xxx
As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within the
power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however
limited, has established a republican government intended to operate and function as a harmonious whole, under a system
of checks and balances, and subject to speci c limitations and restrictions provided in the said instrument. The
Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies.
If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers
would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere
political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living
constitution. . . . . In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of [the
1935] Constitution. cHDAIS
The Constitution is a de nition of the powers of government. Who is to determine the nature, scope and extent of such powers? The
Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality
nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the
Constitution to determine con icting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is
termed "judicial supremacy" which properly is the power of judicial review under the Constitution. . . . . (Emphases supplied)
The power of judicial review has since been strengthened in the 1987 Constitution. The scope of that power has been extended to the
determination of whether in matters traditionally considered to be within the sphere of appreciation of another branch of government, an
exercise of discretion has been attended with grave abuse. 97 The expansion of this power has made the political question doctrine "no longer
the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from
judicial inquiry or review." 98
This moderating power, however, must be exercised carefully and only if it cannot be completely avoided. We stress that our Constitution
is so incisively designed that it identi es the spheres of expertise within which the different branches of government shall function and the
questions of policy that they shall resolve. 99 Since the power of judicial review involves the delicate exercise of examining the validity or
constitutionality of an act of a coequal branch of government, this Court must continually exercise restraint to avoid the risk of supplanting the
wisdom of the constitutionally appointed actor with that of its own. 100
Even as we are left with no recourse but to bare our power to check an act of a coequal branch of government — in this case the
executive — we must abide by the stringent requirements for the exercise of that power under the Constitution. Demetria v. Alba 101 and
Francisco v. House of Representatives 102 cite the "pillars" of the limitations on the power of judicial review as enunciated in the concurring
opinion of U.S. Supreme Court Justice Brandeis in Ashwander v. Tennessee Valley Authority . 103 Francisco 104 redressed these "pillars" under
the following categories:
1. That there be absolute necessity of deciding a case
2. That rules of constitutional law shall be formulated only as required by the facts of the case
3. That judgment may not be sustained on some other ground
4. That there be actual injury sustained by the party by reason of the operation of the statute
5. That the parties are not in estoppel
6. That the Court upholds the presumption of constitutionality (Emphases supplied)
These are the speci c safeguards laid down by the Court when it exercises its power of judicial review. 105 Guided by these pillars, it may
invoke the power only when the following four stringent requirements are satis ed: (a) there is an actual case or controversy; (b) petitioners
possess locus standi; (c) the question of constitutionality is raised at the earliest opportunity; and (d) the issue of constitutionality is the lis
mota of the case. 106 Of these four, the first two conditions will be the focus of our discussion.
1. Petitioners have shown the
presence of an actual case or
controversy.
The OSG maintains 107 that there is no actual case or controversy that exists, since the Senators have not been deprived of the
opportunity to invoke the privileges of the institution they are representing. It contends that the nonparticipation of the Senators in the present
petitions only confirms that even they believe that EDCA is a binding executive agreement that does not require their concurrence.
It must be emphasized that the Senate has already expressed its position through SR 105. 108 Through the Resolution, the Senate has
taken a position contrary to that of the OSG. As the body tasked to participate in foreign affairs by ratifying treaties, its belief that EDCA
infringes upon its constitutional role indicates that an actual controversy — albeit brought to the Court by non-Senators, exists.
Moreover, we cannot consider the sheer abstention of the Senators from the present proceedings as basis for nding that there is no
actual case or controversy before us. We point out that the focus of this requirement is the ripeness for adjudication of the matter at hand, as
opposed to its being merely conjectural or anticipatory. 109 The case must involve a de nite and concrete issue involving real parties with
con icting legal rights and legal claims admitting of speci c relief through a decree conclusive in nature. 110 It should not equate with a mere
request for an opinion or advice on what the law would be upon an abstract, hypothetical, or contingent state of facts. 111 As explained in
Angara v. Electoral Commission: 112
[The] power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of
parties and limited further to the constitutional question raised or the very lis mota presented. Any attempt at
argument by the parties,
abstraction could only lead to dialectics and barren legal questions and to sterile conclusions of wisdom, justice or
expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because
the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and
controversies must re ect the wisdom and justice of the people as expressed through their representatives in the executive
and legislative departments of the government. (Emphases supplied) ISHCcT
We nd that the matter before us involves an actual case or controversy that is already ripe for adjudication. The Executive Department
has already sent an o cial con rmation to the U.S. Embassy that "all internal requirements of the Philippines . . . have already been complied
with." 113 By this exchange of diplomatic notes, the Executive Department effectively performed the last act required under Article XII (1) of
EDCA before the agreement entered into force. Section 25, Article XVIII of the Constitution, is clear that the presence of foreign military forces
in the country shall only be allowed by virtue of a treaty concurred in by the Senate. Hence, the performance of an o cial act by the Executive
Department that led to the entry into force of an executive agreement was sufficient to satisfy the actual case or controversy requirement.
2. While petitioners Saguisag et al .,
do not have legal
standing, they nonetheless
raise issues involving matters
of transcendental importance.
The question of locus standi or legal standing focuses on the determination of whether those assailing the governmental act have the
right of appearance to bring the matter to the court for adjudication. 114 They must show that they have a personal and substantial interest in
the case, such that they have sustained or are in immediate danger of sustaining, some direct injury as a consequence of the enforcement of
the challenged governmental act. 115 Here, "interest" in the question involved must be material — an interest that is in issue and will be affected
by the o cial act — as distinguished from being merely incidental or general. 116 Clearly, it would be insu cient to show that the law or any
governmental act is invalid, and that petitioners stand to suffer in some inde nite way. 117 They must show that they have a particular interest
in bringing the suit, and that they have been or are about to be denied some right or privilege to which they are lawfully entitled, or that they are
about to be subjected to some burden or penalty by reason of the act complained of. 118 The reason why those who challenge the validity of a
law or an international agreement are required to allege the existence of a personal stake in the outcome of the controversy is "to assure the
concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of di cult
constitutional questions." 119
The present petitions cannot qualify
as citizens', taxpayers', or legislators'
suits; the Senate as a body has the
requisite standing, but considering
that it has not formally filed a
pleading to join the suit, as it merely
conveyed to the Supreme Court its
sense that EDCA needs the Senate's
concurrence to be valid, petitioners
continue to suffer from lack of standing.
In assailing the constitutionality of a governmental act, petitioners suing as citizens may dodge the requirement of having to establish a
direct and personal interest if they show that the act affects a public right. 120 In arguing that they have legal standing, they claim 121 that the
case they have led is a concerned citizen's suit. But aside from general statements that the petitions involve the protection of a public right,
and that their constitutional rights as citizens would be violated, they fail to make any speci c assertion of a particular public right that would
be violated by the enforcement of EDCA. For their failure to do so, the present petitions cannot be considered by the Court as
citizens' suits that would justify a disregard of the aforementioned requirements.
In claiming that they have legal standing as taxpayers, petitioners 122 aver that the implementation of EDCA would result in the unlawful
use of public funds. They emphasize that Article X (1) refers to an appropriation of funds; and that the agreement entails a waiver of the
payment of taxes, fees, and rentals. During the oral arguments, however, they admitted that the government had not yet appropriated or actually
disbursed public funds for the purpose of implementing the agreement. 123 The OSG, on the other hand, maintains that petitioners cannot sue
as taxpayers. 124 Respondent explains that EDCA is neither meant to be a tax measure, nor is it directed at the disbursement of public funds.
A taxpayer's suit concerns a case in which the o cial act complained of directly involves the illegal disbursement of public funds derived
from taxation. 125 Here, those challenging the act must speci cally show that they have su cient interest in preventing the illegal expenditure
of public money, and that they will sustain a direct injury as a result of the enforcement of the assailed act. 126 Applying that principle to this
case, they must establish that EDCA involves the exercise by Congress of its taxing or spending powers. 127
We agree with the OSG that the petitions cannot qualify as taxpayers' suits. We emphasize that a taxpayers' suit contemplates a situation
in which there is already an appropriation or a disbursement of public funds. 128 A reading of Article X (1) of EDCA would show that there has
been neither an appropriation nor an authorization of disbursement of funds. The cited provision reads:

All obligations under this Agreement are subject to the availability of appropriated funds authorized for these purposes.
(Emphases supplied)
This provision means that if the implementation of EDCA would require the disbursement of public funds, the money must come from
appropriated funds that are speci cally authorized for this purpose. Under the agreement, before there can even be a disbursement of public
funds, there must first be a legislative action. Until and unless the Legislature appropriates funds for EDCA, or unless petitioners can
pinpoint a speci c item in the current budget that allows expenditure under the agreement, we cannot at this time rule that
there is in fact an appropriation or a disbursement of funds that would justify the filing of a taxpayers' suit. CAacTH
Petitioners Bayan, et al. also claim 129 that their co-petitioners who are party-list representatives have the standing to challenge the act
of the Executive Department, especially if it impairs the constitutional prerogatives, powers, and privileges of their o ce. While they admit that
there is no incumbent Senator who has taken part in the present petition, they nonetheless assert that they also stand to sustain a derivative
but substantial injury as legislators. They argue that under the Constitution, legislative power is vested in both the Senate and the House of
Representatives; consequently, it is the entire Legislative Department that has a voice in determining whether or not the presence of foreign
military should be allowed. They maintain that as members of the Legislature, they have the requisite personality to bring a suit, especially when
a constitutional issue is raised.
The OSG counters 130 that petitioners do not have any legal standing to le the suits concerning the lack of Senate concurrence in EDCA.
Respondent emphasizes that the power to concur in treaties and international agreements is an "institutional prerogative" granted by the
Constitution to the Senate. Accordingly, the OSG argues that in case of an allegation of impairment of that power, the injured party would be the
Senate as an institution or any of its incumbent members, as it is the Senate's constitutional function that is allegedly being violated.
The legal standing of an institution of the Legislature or of any of its Members has already been recognized by this Court in a number of
cases. 131 What is in question here is the alleged impairment of the constitutional duties and powers granted to, or the impermissible intrusion
upon the domain of, the Legislature or an institution thereof. 132 In the case of suits initiated by the legislators themselves, this Court has
recognized their standing to question the validity of any o cial action that they claim infringes the prerogatives, powers, and privileges vested
by the Constitution in their office. 133 As aptly explained by Justice Perfecto in Mabanag v. Lopez Vito: 134
Being members of Congress, they are even duty bound to see that the latter act within the bounds of the Constitution
which, as representatives of the people,
people they should uphold, unless they are to commit a agrant betrayal of public trust. They are
representatives of the sovereign people and it is their sacred duty to see to it that the fundamental law embodying the will of the
sovereign people is not trampled upon . (Emphases supplied)
We emphasize that in a legislators' suit, those Members of Congress who are challenging the o cial act have standing only to the extent
that the alleged violation impinges on their right to participate in the exercise of the powers of the institution of which they are members. 135
Legislators have the standing "to maintain inviolate the prerogatives, powers, and privileges vested by the Constitution in their o ce and are
allowed to sue to question the validity of any o cial action, which they claim infringes their prerogatives as legislators." 136 As legislators, they
must clearly show that there was a direct injury to their persons or the institution to which they belong. 137
As correctly argued by respondent, the power to concur in a treaty or an international agreement is an institutional prerogative granted by
the Constitution to the Senate, not to the entire Legislature. In Pimentel v. O ce of the Executive Secretary , this Court did not recognize the
standing of one of the petitioners therein who was a member of the House of Representatives. The petition in that case sought to compel the
transmission to the Senate for concurrence of the signed text of the Statute of the International Criminal Court. Since that petition invoked the
power of the Senate to grant or withhold its concurrence in a treaty entered into by the Executive Department, only then incumbent Senator
Pimentel was allowed to assert that authority of the Senate of which he was a member.
Therefore, none of the initial petitioners in the present controversy has the standing to maintain the suits as legislators.
Nevertheless, this Court finds that there is basis for it to review the act of the Executive for the following reasons.
In any case, petitioners raise issues
involving matters of transcendental
importance.
Petitioners 138 argue that the Court may set aside procedural technicalities, as the present petition tackles issues that are of
transcendental importance. They point out that the matter before us is about the proper exercise of the Executive Department's power to enter
into international agreements in relation to that of the Senate to concur in those agreements. They also assert that EDCA would cause grave
injustice, as well as irreparable violation of the Constitution and of the Filipino people's rights.
The OSG, on the other hand, insists 139 that petitioners cannot raise the mere fact that the present petitions involve matters of
transcendental importance in order to cure their inability to comply with the constitutional requirement of standing. Respondent bewails the
overuse of "transcendental importance" as an exception to the traditional requirements of constitutional litigation. It stresses that one of the
purposes of these requirements is to protect the Supreme Court from unnecessary litigation of constitutional questions.
In a number of cases, 140 this Court has indeed taken a liberal stance towards the requirement of legal standing, especially when
paramount interest is involved. Indeed, when those who challenge the o cial act are able to craft an issue of transcendental signi cance to the
people, the Court may exercise its sound discretion and take cognizance of the suit. It may do so in spite of the inability of the petitioners to
show that they have been personally injured by the operation of a law or any other government act. IAETDc
While this Court has yet to thoroughly delineate the outer limits of this doctrine, we emphasize that not every other case, however strong
public interest may be, can qualify as an issue of transcendental importance. Before it can be impelled to brush aside the essential requisites
for exercising its power of judicial review, it must at the very least consider a number of factors: (1) the character of the funds or other assets
involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party that has a more direct and speci c interest in raising the present
questions. 141
An exhaustive evaluation of the memoranda of the parties, together with the oral arguments, shows that petitioners have presented
serious constitutional issues that provide ample justi cation for the Court to set aside the rule on standing. The transcendental importance of
the issues presented here is rooted in the Constitution itself. Section 25, Article XVIII thereof, cannot be any clearer: there is a much stricter
mechanism required before foreign military troops, facilities, or bases may be allowed in the country. The DFA has already con rmed to the U.S.
Embassy that "all internal requirements of the Philippines . . . have already been complied with." 142 It behooves the Court in this instance to
take a liberal stance towards the rule on standing and to determine forthwith whether there was grave abuse of discretion on the part of the
Executive Department.
We therefore rule that this case is a proper subject for judicial review.
B. Whether the President may enter into an executive agreement on foreign military bases, troops, or facilities
C. Whether the provisions under EDCA are consistent with the Constitution, as well as with existing laws and treaties
Issues B and C shall be discussed together infra.
1. The role of the President as
the executor of the law
includes the duty to defend
the State, for which purpose
he may use that power in the
conduct of foreign relations
Historically, the Philippines has mirrored the division of powers in the U.S. government. When the Philippine government was still an
agency of the Congress of the U.S., it was as an agent entrusted with powers categorized as executive, legislative, and judicial, and divided
among these three great branches. 143 By this division, the law implied that the divided powers cannot be exercised except by the department
given the power. 144
This divide continued throughout the different versions of the Philippine Constitution and speci cally vested the supreme executive
power in the Governor-General of the Philippines, 145 a position inherited by the President of the Philippines when the country attained
independence. One of the principal functions of the supreme executive is the responsibility for the faithful execution of the laws as embodied
by the oath of office. 146 The oath of the President prescribed by the 1987 Constitution reads thus:
I do solemnly swear (or a rm) that I will faithfully and conscientiously ful ll my duties as President (or Vice-President or
Acting President) of the Philippines, preserve and defend its Constitution, execute its laws,
laws do justice to every man, and consecrate myself
to the service of the Nation. So help me God. (In case of affirmation, last sentence will be omitted.) 147 (Emphases supplied)
This Court has interpreted the faithful execution clause as an obligation imposed on the President, and not a separate grant of power. 148
Section 17, Article VII of the Constitution, expresses this duty in no uncertain terms and includes it in the provision regarding the President's
power of control over the executive department, viz.:
The President shall have control of all the executive departments, bureaus, and o ces. He shall ensure that the laws be faithfully
executed.
The equivalent provisions in the next preceding Constitution did not explicitly require this oath from the President. In the 1973
Constitution, for instance, the provision simply gives the President control over the ministries. 149 A similar language, not in the form of the
President's oath, was present in the 1935 Constitution, particularly in the enumeration of executive functions. 150 By 1987, executive power was
codified not only in the Constitution, but also in the Administrative Code: 151
SECTION 1. Power of Control. — The President shall have control of all the executive departments, bureaus, and o ces. He
shall ensure that the laws be faithfully executed. (Emphasis supplied)
Hence, the duty to faithfully execute the laws of the land is inherent in executive power and is intimately related to the other executive
functions. These functions include the faithful execution of the law in autonomous regions; 152 the right to prosecute crimes; 153 the
implementation of transportation projects; 154 the duty to ensure compliance with treaties, executive agreements and executive orders; 155 the
authority to deport undesirable aliens; 156 the conferment of national awards under the President's jurisdiction; 157 and the overall
administration and control of the executive department. 158
These obligations are as broad as they sound, for a President cannot function with crippled hands, but must be capable of securing the
rule of law within all territories of the Philippine Islands and be empowered to do so within constitutional limits. Congress cannot, for instance,
limit or take over the President's power to adopt implementing rules and regulations for a law it has enacted. 159 DcHSEa
More important, this mandate is self-executory by virtue of its being inherently executive in nature. 160 As Justice Antonio T. Carpio
previously wrote, 161
[i]f the rules are issued by the President in implementation or execution of self-executory constitutional powers vested in the President, the
rule-making power of the President is not a delegated legislative power. The most important self-executory constitutional power of the
President is the President's constitutional duty and mandate to "ensure that the laws be faithfully executed." The rule is that the President
can execute the law without any delegation of power from the legislature.
The import of this characteristic is that the manner of the President's execution of the law, even if not expressly granted
by the law, is justi ed by necessity and limited only by law, since the President must "take necessary and proper steps to carry
into execution the law." 162 Justice George Malcolm states this principle in a grand manner: 163
The executive should be clothed with su cient power to administer e ciently the affairs of state. He should have complete control
of the instrumentalities through whom his responsibility is discharged. It is still true, as said by Hamilton, that "A feeble executive implies a
feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it
may be in theory, must be in practice a bad government." The mistakes of State governments need not be repeated here.
xxx xxx xxx
Every other consideration to one side, this remains certain — The Congress of the United States clearly intended that the Governor-
General's power should be commensurate with his responsibility. The Congress never intended that the Governor-General should be saddled
with the responsibility of administering the government and of executing the laws but shorn of the power to do so. The interests of the
Philippines will be best served by strict adherence to the basic principles of constitutional government.
In light of this constitutional duty, it is the President's prerogative to do whatever is legal and necessary for Philippine defense interests.
It is no coincidence that the constitutional provision on the faithful execution clause was followed by that on the President's commander-in-
chief powers, 164 which are speci cally granted during extraordinary events of lawless violence, invasion, or rebellion. And this duty of
defending the country is unceasing, even in times when there is no state of lawless violence, invasion, or rebellion. At such times, the President
has full powers to ensure the faithful execution of the laws.
It would therefore be remiss for the President and repugnant to the faithful-execution clause of the Constitution to do nothing when the
call of the moment requires increasing the military's defensive capabilities, which could include forging alliances with states that hold a
common interest with the Philippines or bringing an international suit against an offending state.
The context drawn in the analysis above has been termed by Justice Arturo D. Brion's Dissenting Opinion as the beginning of a "patent
misconception." 165 His dissent argues that this approach taken in analyzing the President's role as executor of the laws is preceded by the
duty to preserve and defend the Constitution, which was allegedly overlooked. 166
In arguing against the approach, however, the dissent grossly failed to appreciate the nuances of the analysis, if read holistically and in
context. The concept that the President cannot function with crippled hands and therefore can disregard the need for Senate concurrence in
treaties 167 was never expressed or implied. Rather, the appropriate reading of the preceding analysis shows that the point being elucidated is
the reality that the President's duty to execute the laws and protect the Philippines is inextricably interwoven with his foreign affairs powers,
such that he must resolve issues imbued with both concerns to the full extent of his powers, subject only to the limits supplied by law. In other
words, apart from an expressly mandated limit, or an implied limit by virtue of incompatibility, the manner of execution by the President must be
given utmost deference. This approach is not different from that taken by the Court in situations with fairly similar contexts.
Thus, the analysis portrayed by the dissent does not give the President authority to bypass constitutional safeguards and limits. In fact, it
speci es what these limitations are, how these limitations are triggered, how these limitations function, and what can be done within the sphere
of constitutional duties and limitations of the President.
Justice Brion's dissent likewise misinterprets the analysis proffered when it claims that the foreign relations power of the President
should not be interpreted in isolation. 168 The analysis itself demonstrates how the foreign affairs function, while mostly the President's, is
shared in several instances, namely in Section 2 of Article II on the conduct of war; Sections 20 and 21 of Article VII on foreign loans, treaties,
and international agreements; Sections 4 (2) and 5 (2) (a) of Article VIII on the judicial review of executive acts; Sections 4 and 25 of Article
XVIII on treaties and international agreements entered into prior to the Constitution and on the presence of foreign military troops, bases, or
facilities.
In fact, the analysis devotes a whole subheading to the relationship between the two major presidential functions and the role of the
Senate in it.
This approach of giving utmost deference to presidential initiatives in respect of foreign affairs is not novel to the Court. The President's
act of treating EDCA as an executive agreement is not the principal power being analyzed as the Dissenting Opinion seems to suggest. Rather,
the preliminary analysis is in reference to the expansive power of foreign affairs. We have long treated this power as something the Courts
must not unduly restrict. As we stated recently in Vinuya v. Romulo: SCaITA
To be sure, not all cases implicating foreign relations present political questions, and courts certainly possess the authority to
construe or invalidate treaties and executive agreements. However, the question whether the Philippine government should espouse claims
of its nationals against a foreign government is a foreign relations matter, the authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In this case, the Executive Department has already decided that it is to the best
interest of the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such
decision is not for the courts to question. Neither could petitioners herein assail the said determination by the Executive Department via the
instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp ., the US Supreme Court held that "[t]he President is the sole organ of the
nation in its external relations, and its sole representative with foreign relations."
It is quite apparent that if, in the maintenance of our international relations, embarrassment — perhaps serious
embarrassment — is to be avoided and success for our aims achieved, congressional legislation which is to be made effective
through negotiation and inquiry within the international eld must often accord to the President a degree of discretion
and freedom from statutory restriction which would not be admissible where domestic affairs alone involved.
Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and
especially is this true in time of war. He has his con dential sources of information. He has his agents in the form of
diplomatic, consular and other officials. . . .
This ruling has been incorporated in our jurisprudence through Bayan v. Executive Secretary and Pimentel v.
Executive Secretary ; its overreaching principle was, perhaps, best articulated in (now Chief) Justice Puno's dissent in Secretary of Justice
v. Lantion:
. . . The conduct of foreign relations is full of complexities and consequences, sometimes with life and death
signi cance to the nation especially in times of war. It can only be entrusted to that department of government which can act
on the basis of the best available information and can decide with decisiveness. . . . It is also the President who possesses the
most comprehensive and the most con dential information about foreign countries for our diplomatic and consular o cials
regularly brief him on meaningful events all over the world. He has also unlimited access to ultra-sensitive military intelligence
data. In ne, the presidential role in foreign affairs is dominant and the President is traditionally accorded a
wider degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are
adjudged under less stringent standards, lest their judicial repudiation lead to breach of an international
obligation, rupture of state relations, forfeiture of con dence, national embarrassment and a plethora of other
problems with equally undesirable consequences.
consequences. 169 (Emphases supplied)
Understandably, this Court must view the instant case with the same perspective and understanding, knowing full well the constitutional and
legal repercussions of any judicial overreach.
2. The plain meaning of the
Constitution prohibits the entry
of foreign military bases, troops
or facilities, except by way of a
treaty concurred in by the
Senate — a clear limitation on
the President's dual role as
defender of the State and as sole
authority in foreign relations.
Despite the President's roles as defender of the State and sole authority in foreign relations, the 1987 Constitution expressly limits his
ability in instances when it involves the entry of foreign military bases, troops or facilities. The initial limitation is found in Section 21 of the
provisions on the Executive Department: "No treaty or international agreement shall be valid and effective unless concurred in by at least two-
thirds of all the Members of the Senate." The speci c limitation is given by Section 25 of the Transitory Provisions, the full text of which reads
as follows:
SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of
America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty
duly concurred in by the Senate and, when the Congress so requires, rati ed by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other contracting State.
It is quite plain that the Transitory Provisions of the 1987 Constitution intended to add to the basic requirements of a treaty under
Section 21 of Article VII. This means that both provisions must be read as additional limitations to the President's overarching executive
function in matters of defense and foreign relations. aTHCSE
3. The President, however, may

enter into an executive
agreement on foreign military
bases, troops, or facilities, if (a)
it is not the instrument that
allows the presence of foreign
military bases, troops, or
facilities; or (b) it merely aims
to implement an existing law or
treaty.
Again we refer to Section 25, Article XVIII of the Constitution:
SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of
America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except
under a treaty duly concurred in by the Senate and, when the Congress so requires, rati ed by a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. (Emphases supplied)
In view of this provision, petitioners argue 170 that EDCA must be in the form of a "treaty" duly concurred in by the Senate. They stress
that the Constitution is unambigous in mandating the transmission to the Senate of all international agreements concluded after the expiration
of the MBA in 1991 — agreements that concern the presence of foreign military bases, troops, or facilities in the country. Accordingly,
petitioners maintain that the Executive Department is not given the choice to conclude agreements like EDCA in the form of an executive
agreement.
This is also the view of the Senate, which, through a majority vote of 15 of its members — with 1 against and 2 abstaining — says in SR
105 171 that EDCA must be submitted to the Senate in the form of a treaty for concurrence by at least two-thirds of all its members.
The Senate cites two constitutional provisions (Article VI, Section 21 and Article XVIII, Section 25) to support its position. Compared
with the lone constitutional provision that the O ce of the Solicitor General (OSG) cites, which is Article XVIII, Section 4 (2), which includes the
constitutionality of "executive agreement(s)" among the cases subject to the Supreme Court's power of judicial review, the Constitution clearly
requires submission of EDCA to the Senate. Two speci c provisions versus one general provision means that the speci c provisions prevail.
The term "executive agreement" is "a term wandering alone in the Constitution, bereft of provenance and an unidentified constitutional mystery."
The author of SR 105, Senator Miriam Defensor Santiago, upon interpellation even added that the MDT, which the Executive claims to be
partly implemented through EDCA, is already obsolete.
There are two insurmountable obstacles to this Court's agreement with SR 105, as well as with the comment on interpellation made by
Senator Santiago.
First, the concept of "executive agreement" is so well-entrenched in this Court's pronouncements on the powers of the President. When
the Court validated the concept of "executive agreement," it did so with full knowledge of the Senate's role in concurring in treaties. It was aware
of the problematique of distinguishing when an international agreement needed Senate concurrence for validity, and when it did not; and the
Court continued to validate the existence of "executive agreements" even after the 1987 Constitution. 172 This follows a long line of similar
decisions upholding the power of the President to enter into an executive agreement. 173
Second, the MDT has not been rendered obsolescent, considering that as late as 2009, 174 this Court continued to recognize its validity.
Third, to this Court, a plain textual reading of Article XIII, Section 25, inevitably leads to the conclusion that it applies only to a proposed
agreement between our government and a foreign government, whereby military bases, troops, or facilities of such foreign government would
be "allowed" or would "gain entry" Philippine territory.
Note that the provision "shall not be allowed" is a negative injunction. This wording signi es that the President is not authorized by law to
allow foreign military bases, troops, or facilities to enter the Philippines, except under a treaty concurred in by the Senate. Hence, the
constitutionally restricted authority pertains to the entry of the bases, troops, or facilities, and not to the activities to be done after entry.
Under the principles of constitutional construction, of paramount consideration is the plain meaning of the language expressed in the
Constitution, or the verba legis rule. 175 It is presumed that the provisions have been carefully crafted in order to express the objective it seeks
to attain. 176 It is incumbent upon the Court to refrain from going beyond the plain meaning of the words used in the Constitution. It is
presumed that the framers and the people meant what they said when they said it, and that this understanding was re ected in the Constitution
and understood by the people in the way it was meant to be understood when the fundamental law was ordained and promulgated. 177 As this
Court has often said:
We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is where we
begin. It is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained. They
are to be given their ordinary meaning except where technical terms are employed in which case the signi cance thus attached
to them prevails. As the Constitution is not primarily a lawyer's document,
document it being essential for the rule of law to obtain that it should
ever be present in the people's 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 the cases where the
need for construction is reduced to a minimum. 178 (Emphases supplied) cAaDHT
It is only in those instances in which the constitutional provision is unclear, ambiguous, or silent that further construction must be done to
elicit its meaning. 179 In Ang Bagong Bayani-OFW v. Commission on Elections, 180 we reiterated this guiding principle:
it [is] safer to construe the Constitution from what appears upon its face. The proper interpretation therefore depends more on
how it was understood by the people adopting it than in the framers' understanding thereof. (Emphases supplied)
The effect of this statement is surprisingly profound, for, if taken literally, the phrase "shall not be allowed in the Philippines" plainly refers
to the entry of bases, troops, or facilities in the country. The Oxford English Dictionary de nes the word "allow" as a transitive verb that means
"to permit, enable"; "to give consent to the occurrence of or relax restraint on (an action, event, or activity)"; "to consent to the presence or
attendance of (a person)"; and, when with an adverbial of place, "to permit (a person or animal) to go, come, or be in, out, near, etc." 181 Black's
Law Dictionary defines the term as one that means "[t]o grant, approve, or permit." 182
The verb "allow" is followed by the word "in," which is a preposition used to indicate "place or position in space or anything having
material extension: Within the limits or bounds of, within (any place or thing)." 183 That something is the Philippines, which is the noun that
follows.
It is evident that the constitutional restriction refers solely to the initial entry of the foreign military bases, troops, or facilities. Once entry
is authorized, the subsequent acts are thereafter subject only to the limitations provided by the rest of the Constitution and Philippine law, and
not to the Section 25 requirement of validity through a treaty.
The VFA has already allowed the entry of troops in the Philippines. This Court stated in Lim v. Executive Secretary:
After studied re ection, it appeared farfetched that the ambiguity surrounding the meaning of the word "activities" arose from
accident. In our view, it was deliberately made that way to give both parties a certain leeway in negotiation. In this manner, visiting US
forces may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may include training
on new techniques of patrol and surveillance to protect the nation's marine resources, sea search-and-rescue operations to assist vessels in
distress, disaster relief operations, civic action projects such as the building of school houses, medical and humanitarian missions, and the
like.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume that "Balikatan 02-1," a
"mutual anti-terrorism advising, assisting and training exercise," falls under the umbrella of sanctioned or allowable activities in the context
of the agreement. Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related
activities -as opposed to combat itself-such as the one subject of the instant petition, are indeed authorized. 184 (Emphasis supplied)
Moreover, the Court indicated that the Constitution continues to govern the conduct of foreign military troops in the Philippines, 185
readily implying the legality of their initial entry into the country.
The OSG emphasizes that EDCA can be in the form of an executive agreement, since it merely involves "adjustments in detail" in the
implementation of the MDT and the VFA. 186 It points out that there are existing treaties between the Philippines and the U.S. that have already
been concurred in by the Philippine Senate and have thereby met the requirements of the Constitution under Section 25. Because of the status
of these prior agreements, respondent emphasizes that EDCA need not be transmitted to the Senate.
The aforecited Dissenting Opinion of Justice Brion disagrees with the ponencia's application of verba legis construction to the words of
Article XVIII, Section 25. 187 It claims that the provision is "neither plain, nor that simple." 188 To buttress its disagreement, the dissent states
that the provision refers to a historical incident, which is the expiration of the 1947 MBA. 189 Accordingly, this position requires questioning the
circumstances that led to the historical event, and the meaning of the terms under Article XVIII, Section 25.
This objection is quite strange. The construction technique of verba legis is not inapplicable just because a provision has a speci c
historical context. In fact, every provision of the Constitution has a speci c historical context. The purpose of constitutional and statutory
construction is to set tiers of interpretation to guide the Court as to how a particular provision functions. Verba legis is of paramount
consideration, but it is not the only consideration. As this Court has often said:
We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is where
we begin. It is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained.
They are to be given their ordinary meaning except where technical terms are employed in which case the signi cance thus
attached to them prevails. As the Constitution is not primarily a lawyer's document, it being essential for the rule of law to obtain that it
should ever be present in the people's 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 the cases
where the need for construction is reduced to a minimum. 190 (Emphases supplied) HCaDIS
As applied, verba legis aids in construing the ordinary meaning of terms. In this case, the phrase being construed is "shall not be allowed
in the Philippines" and not the preceding one referring to "the expiration in 1991 of the Agreement between the Republic of the Philippines and
the United States of America concerning Military Bases, foreign military bases, troops, or facilities." It is explicit in the wording of the provision
itself that any interpretation goes beyond the text itself and into the discussion of the framers, the context of the Constitutional Commission's
time of drafting, and the history of the 1947 MBA. Without reference to these factors, a reader would not understand those terms. However, for
the phrase "shall not be allowed in the Philippines," there is no need for such reference. The law is clear. No less than the Senate understood this
when it ratified the VFA.
4. The President may generally
enter into executive
agreements subject to
limitations defined by the
Constitution and may be in
furtherance of a treaty
already concurred in by the
Senate.
We discuss in this section why the President can enter into executive agreements.
It would be helpful to put into context the contested language found in Article XVIII, Section 25. Its more exacting requirement was
introduced because of the previous experience of the country when its representatives felt compelled to consent to the old MBA. 191 They felt
constrained to agree to the MBA in ful lment of one of the major conditions for the country to gain independence from the U.S. 192 As a result
of that experience, a second layer of consent for agreements that allow military bases, troops and facilities in the country is now articulated in
Article XVIII of our present Constitution.
This second layer of consent, however, cannot be interpreted in such a way that we completely ignore the intent of our constitutional
framers when they provided for that additional layer, nor the vigorous statements of this Court that a rm the continued existence of that class
of international agreements called "executive agreements."
The power of the President to enter into binding executive agreements without Senate concurrence is already well-established in this
jurisdiction. 193 That power has been alluded to in our present and past Constitutions, 194 in various statutes, 195 in Supreme Court decisions,
196 and during the deliberations of the Constitutional Commission. 197 They cover a wide array of subjects with varying scopes and purposes,
198 including those that involve the presence of foreign military forces in the country. 199
As the sole organ of our foreign relations 200 and the constitutionally assigned chief architect of our foreign policy, 201 the President is
vested with the exclusive power to conduct and manage the country's interface with other states and governments. Being the principal
representative of the Philippines, the Chief Executive speaks and listens for the nation; initiates, maintains, and develops diplomatic relations
with other states and governments; negotiates and enters into international agreements; promotes trade, investments, tourism and other
economic relations; and settles international disputes with other states. 202
As previously discussed, this constitutional mandate emanates from the inherent power of the President to enter into agreements with
other states, including the prerogative to conclude binding executive agreements that do not require further Senate concurrence. The existence
of this presidential power 203 is so well-entrenched that Section 5 (2) (a), Article VIII of the Constitution, even provides for a check on its
exercise. As expressed below, executive agreements are among those o cial governmental acts that can be the subject of this Court's power
of judicial review:
(2) Review, revise, reverse, modify, or a rm on appeal or certiorari, as the law or the Rules of Court may provide, nal judgments
and orders of lower courts in:
(a) A l l cases in which the constitutionality or validity of any treaty , international or executive agreement, agreement law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (Emphases supplied)
I n Commissioner of Customs v. Eastern Sea Trading , executive agreements are de ned as "international agreements embodying
adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less
temporary nature." 204 In Bayan Muna v. Romulo , this Court further clari ed that executive agreements can cover a wide array of subjects that
have various scopes and purposes. 205 They are no longer limited to the traditional subjects that are usually covered by executive agreements
as identified in Eastern Sea Trading. The Court thoroughly discussed this matter in the following manner:
T h e categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea
Trading is not cast in stone.
stone. . . . .
As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea Trading . Since then,
the conduct of foreign affairs has become more complex and the domain of international law wider, wider as to include such
subjects as human rights, the environment, and the sea. In fact, in the US alone, the executive agreements executed by its President from
1980 to 2000 covered subjects such as defense,
defense, trade, scienti c cooperation, aviation, atomic energy, environmental
cooperation, peace corps, arms limitation, and nuclear safety, among others . Surely, the enumeration in Eastern Sea Trading
cannot circumscribe the option of each state on the matter of which the international agreement format would be convenient
to serve its best interest. As Francis Sayre said in his work referred to earlier:
AHCETa
. . . It would be useless to undertake to discuss here the large variety of executive agreements as such
concluded from time to time. Hundreds of executive agreements, other than those entered into under the trade-agreement
act, have been negotiated with foreign governments. . . . They cover such subjects as the inspection of vessels, navigation
dues, income tax on shipping pro ts, the admission of civil air craft, custom matters and commercial relations generally,
international claims, postal matters, the registration of trademarks and copyrights, etc. . . . (Emphases Supplied)
One of the distinguishing features of executive agreements is that their validity and effectivity are not affected by a lack of Senate
concurrence. 206 This distinctive feature was recognized as early as in Eastern Sea Trading (1961), viz.:
Treaties are formal documents which require rati cation with the approval of two-thirds of the Senate.
Senate Executive
agreements become binding through executive action without the need of a vote by the Senate or by Congress.
xxx xxx xxx
[T]he right of the Executive to enter into binding agreements without the necessity of subsequent Congressional
approval has been con rmed by long usage. From the earliest days of our history we have entered into executive agreements covering
such subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal
and navigation arrangements and the settlement of claims. T h e validity of these has never been seriously questioned by our
courts. (Emphases Supplied)
That notion was carried over to the present Constitution. In fact, the framers speci cally deliberated on whether the general term
"international agreement" included executive agreements, and whether it was necessary to include an express proviso that would exclude
executive agreements from the requirement of Senate concurrence. After noted constitutionalist Fr. Joaquin Bernas quoted the Court's ruling in
Eastern Sea Trading , the Constitutional Commission members ultimately decided that the term "international agreements" as contemplated in
Section 21, Article VII, does not include executive agreements, and that a proviso is no longer needed. Their discussion is reproduced below:
207
MS. AQUINO: Madam President, rst I would like a clari cation from the Committee. We have retained the words "international
agreement" which I think is the correct judgment on the matter because an international agreement is different from a treaty. A treaty is a
contract between parties which is in the nature of international agreement and also a municipal law in the sense that the people are bound.
So there is a conceptual difference. However, I would like to be clari ed if the international agreements include executive
agreements.
MR. CONCEPCION: That depends upon the parties. All parties to these international negotiations stipulate the conditions which are
necessary for the agreement or whatever it may be to become valid or effective as regards the parties.
MS. AQUINO: Would that depend on the parties or would that depend on the nature of the executive agreement? According to
common usage, there are two types of executive agreement:
agreement one is purely proceeding from an executive act which affects
external relations independent of the legislative and the other is an executive act in pursuance of legislative authorization.
The first kind might take the form of just conventions or exchanges of notes or protocol while the other,
other which would be pursuant
to the legislative authorization , may be in the nature of commercial agreements.
agreements
MR. CONCEPCION: Executive agreements are generally made to implement a treaty already enforced or to determine the
details for the implementation of the treaty. We are speaking of executive agreements, not international agreements.
MS. AQUINO: I am in full agreement with that, except that it does not cover the first kind of executive agreement which is just protocol
or an exchange of notes and this would be in the nature of reinforcement of claims of a citizen against a country, for example.
MR. CONCEPCION: The Commissioner is free to require ratification for validity insofar as the Philippines is concerned.
MS. AQUINO: It is my humble submission that we should provide,
provide unless the Committee explains to us otherwise, an explicit
proviso which would except executive agreements from the requirement of concurrence of two-thirds of the Members of the
Senate.
Senate Unless I am enlightened by the Committee I propose that tentatively, the sentence should read. "No treaty or international
agreement EXCEPT EXECUTIVE AGREEMENTS shall be valid and effective."
FR. BERNAS: I wonder if a quotation from the Supreme Court decision [in Eastern Sea Trading] might help clarify this:
this
T h e right of the executive to enter into binding agreements without the necessity of subsequent
Congressional approval has been con rmed by long usage . From the earliest days of our history, we have entered into
executive agreements covering such subjects as commercial and consular relations, most favored nation rights, patent rights,
trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of this has
never been seriously questioned by our Courts. ScHADI
Agreements with respect to the registration of trademarks have been concluded by the executive of various countries
under the Act of Congress of March 3, 1881 (21 Stat. 502) . . . International agreements involving political issues or
changes of national policy and those involving international agreements of a permanent character usually take the
form of treaties.
treaties But international agreements embodying adjustments of detail, carrying out well established
national policies and traditions and those involving arrangements of a more or less temporary nature usually take
the form of executive agreements.
agreements
MR. ROMULO: Is the Commissioner, therefore, excluding the executive agreements?
FR. BERNAS: What we are referring to, therefore, when we say international agreements which need concurrence by at least
two-thirds are those which are permanent in nature.
MS. AQUINO: And it may include commercial agreements which are executive agreements essentially but which are proceeding from
the authorization of Congress. If that is our understanding, then I am willing to withdraw that amendment.
FR. BERNAS: If it is with prior authorization of Congress, then it does not need subsequent concurrence by Congress.
MS. AQUINO: In that case, I am withdrawing my amendment.
MR. TINGSON: Madam President.
THE PRESIDENT: Is Commissioner Aquino satisfied?
MS. AQUINO: Yes. There is already an agreement among us on the de nition of "executive agreements" and that would
make unnecessary any explicit proviso on the matter.
xxx xxx xxx
MR. GUINGONA: I am not clear as to the meaning of "executive agreements" because I heard that these executive agreements must
rely on treaties. In other words, there must first be treaties.
MR. CONCEPCION: No, I was speaking about the common use, as executive agreements being the implementation of treaties, details
of which do not affect the sovereignty of the State.
MR. GUINGONA: But what about the matter of permanence, Madam President? Would 99 years be considered permanent? What
would be the measure of permanency? I do not conceive of a treaty that is going to be forever, so there must be some kind of a time limit.
MR. CONCEPCION: I suppose the Commissioner's question is whether this type of agreement should be included in a provision of the
Constitution requiring the concurrence of Congress.
MR. GUINGONA: It depends on the concept of the executive agreement of which I am not clear. If the executive agreement
partakes of the nature of a treaty, then it should also be included.
MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within the power of the Constitutional Commission to
require that.
MR. GUINGONA: Yes. That is why I am trying to clarify whether the words "international agreements" would include
executive agreements.
MR. CONCEPCION: No,
No, not necessarily; generally no.
xxx xxx xxx
MR. ROMULO: I wish to be recognized rst. I have only one question. Do we take it, therefore, that as far as the Committee is
concerned, the term "international agreements" does not include the term "executive agreements" as read by the
Commissioner in that text?
FR. BERNAS: Yes.
Yes. (Emphases Supplied)
The inapplicability to executive agreements of the requirements under Section 21 was again recognized in Bayan v. Zamora and in Bayan
Muna v. Romulo . These cases, both decided under the aegis of the present Constitution, quoted Eastern Sea Trading in reiterating that
executive agreements are valid and binding even without the concurrence of the Senate.
Executive agreements may dispense with the requirement of Senate concurrence because of the legal mandate with which they are
concluded. As culled from the afore-quoted deliberations of the Constitutional Commission, past Supreme Court Decisions, and works of noted
scholars, 208 executive agreements merely involve arrangements on the implementation of existing policies, rules, laws, or agreements. They
are concluded (1) to adjust the details of a treaty; 209 (2) pursuant to or upon con rmation by an act of the Legislature; 210 or (3) in the exercise
of the President's independent powers under the Constitution. 211 The raison d'être of executive agreements hinges on prior constitutional or
legislative authorizations.
The special nature of an executive agreement is not just a domestic variation in international agreements. International practice has
accepted the use of various forms and designations of international agreements, ranging from the traditional notion of a treaty — which
connotes a formal, solemn instrument — to engagements concluded in modern, simpli ed forms that no longer necessitate rati cation. 212 An
international agreement may take different forms: treaty, act, protocol, agreement, concordat, compromis d'arbitrage, convention, covenant,
declaration, exchange of notes, statute, pact, charter, agreed minute, memorandum of agreement, modus vivendi, or some other form. 213
Consequently, under international law, the distinction between a treaty and an international agreement or even an executive agreement is
irrelevant for purposes of determining international rights and obligations. aICcHA
However, this principle does not mean that the domestic law distinguishing treaties, international agreements, and executive agreements
is relegated to a mere variation in form, or that the constitutional requirement of Senate concurrence is demoted to an optional constitutional
directive. There remain two very important features that distinguish treaties from executive agreements and translate them into terms of art in
the domestic setting.
First, executive agreements must remain traceable to an express or implied authorization under the Constitution, statutes, or treaties.
The absence of these precedents puts the validity and effectivity of executive agreements under serious question for the main function of the
Executive is to enforce the Constitution and the laws enacted by the Legislature, not to defeat or interfere in the performance of these rules. 214
In turn, executive agreements cannot create new international obligations that are not expressly allowed or reasonably implied in the law they
purport to implement.
Second, treaties are, by their very nature, considered superior to executive agreements. Treaties are products of the acts of the Executive
and the Senate 215 unlike executive agreements, which are solely executive actions. 216 Because of legislative participation through the Senate,
a treaty is regarded as being on the same level as a statute. 217 If there is an irreconcilable con ict, a later law or treaty takes precedence over
one that is prior. 218 An executive agreement is treated differently. Executive agreements that are inconsistent with either a law or a treaty are
considered ineffective. 219 Both types of international agreement are nevertheless subject to the supremacy of the Constitution. 220
This rule does not imply, though, that the President is given carte blanche to exercise this discretion. Although the Chief Executive wields
the exclusive authority to conduct our foreign relations, this power must still be exercised within the context and the parameters set by the
Constitution, as well as by existing domestic and international laws. There are constitutional provisions that restrict or limit the President's
prerogative in concluding international agreements, such as those that involve the following:
a. The policy of freedom from nuclear weapons within Philippine territory 221
b. The xing of tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts, which must be
pursuant to the authority granted by Congress 222
c. The grant of any tax exemption, which must be pursuant to a law concurred in by a majority of all the Members of Congress 223
d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that must be previously concurred in by the
Monetary Board 224
e. The authorization of the presence of foreign military bases, troops, or facilities in the country must be in the form of a treaty duly
concurred in by the Senate. 225
f. For agreements that do not fall under paragraph 5, the concurrence of the Senate is required, should the form of the government
chosen be a treaty.
5. The President had the choice
to enter into EDCA by way of
an executive agreement or a
treaty.
No court can tell the President to desist from choosing an executive agreement over a treaty to embody an international agreement,
unless the case falls squarely within Article VIII, Section 25.
As can be gleaned from the debates among the members of the Constitutional Commission, they were aware that legally binding
international agreements were being entered into by countries in forms other than a treaty. At the same time, it is clear that they were also keen
to preserve the concept of "executive agreements" and the right of the President to enter into such agreements.
What we can glean from the discussions of the Constitutional Commissioners is that they understood the following realities:
1. Treaties, international agreements, and executive agreements are all constitutional manifestations of the conduct of foreign affairs
with their distinct legal characteristics.
a. Treaties are formal contracts between the Philippines and other States-parties, which are in the nature of international
agreements, and also of municipal laws in the sense of their binding nature. 226
b. International agreements are similar instruments, the provisions of which may require the rati cation of a designated
number of parties thereto. These agreements involving political issues or changes in national policy, as well as those
involving international agreements of a permanent character, usually take the form of treaties. They may also include
commercial agreements, which are executive agreements essentially, but which proceed from previous authorization by
Congress, thus dispensing with the requirement of concurrence by the Senate. 227 EHaASD
c. Executive agreements are generally intended to implement a treaty already enforced or to determine the details of the
implementation thereof that do not affect the sovereignty of the State. 228
2. Treaties and international agreements that cannot be mere executive agreements must, by constitutional decree, be concurred in
by at least two-thirds of the Senate.
3. However, an agreement — the subject of which is the entry of foreign military troops, bases, or facilities — is particularly restricted.
The requirements are that it be in the form of a treaty concurred in by the Senate; that when Congress so requires, it be ratified by a
majority of the votes cast by the people in a national referendum held for that purpose; and that it be recognized as a treaty by the
other contracting State.
4. Thus, executive agreements can continue to exist as a species of international agreements.
That is why our Court has ruled the way it has in several cases.
I n Bayan Muna v. Romulo , we ruled that the President acted within the scope of her constitutional authority and discretion when she
chose to enter into the RP-U.S. Non-Surrender Agreement in the form of an executive agreement, instead of a treaty, and in ratifying the
agreement without Senate concurrence. The Court en banc discussed this intrinsic presidential prerogative as follows:
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the nature of a treaty; hence, it must be
duly concurred in by the Senate. . . . . Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the
subject-categories that . . . may be covered by an executive agreement, such as commercial/consular relations, most-favored nation rights,
patent rights, trademark and copyright protection, postal and navigation arrangements and settlement of claims.
The categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea Trading is not cast
in stone. There are no hard and fast rules on the propriety of entering, entering on a given subject, into a treaty or an executive
agreement as an instrument of international relations. The primary consideration in the choice of the form of agreement is the
parties' intent and desire to craft an international agreement in the form they so wish to further their respective interests.
Verily, the matter of form takes a back seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an
executive agreement, as the parties in either international agreement each labor under the pacta sunt servanda principle.
xxx xxx xxx
But over and above the foregoing considerations is the fact that — save for the situation and matters contemplated in Sec. 25, Art.
XVIII of the Constitution — when a treaty is required, the Constitution does not classify any subject, like that involving political
issues, to be in the form of, and rati ed as, a treaty. What the Constitution merely prescribes is that treaties need the concurrence of
the Senate by a vote defined therein to complete the ratification process.
xxx xxx xxx
. . . . As the President wields vast powers and in uence, her conduct in the external affairs of the nation is, as Bayan would put it,
"executive altogether." The right of the President to enter into or ratify binding executive agreements has been con rmed by
long practice.
In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria Macapagal-Arroyo, represented by the
Secretary of Foreign Affairs, acted within the scope of the authority and discretion vested in her by the Constitution. At the end
of the day, the President — by ratifying, thru her deputies, the non-surrender agreement — did nothing more than discharge a
constitutional duty and exercise a prerogative that pertains to her office. (Emphases supplied)
Indeed, in the eld of external affairs, the President must be given a larger measure of authority and wider discretion, subject only to the
least amount of checks and restrictions under the Constitution. 229 The rationale behind this power and discretion was recognized by the Court
in Vinuya v. Executive Secretary, cited earlier. 230
Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of International Agreements and its Rati cation, thus, correctly
re ected the inherent powers of the President when it stated that the DFA "shall determine whether an agreement is an executive agreement or
a treaty."
Accordingly, in the exercise of its power of judicial review, the Court does not look into whether an international agreement should be in
the form of a treaty or an executive agreement, save in cases in which the Constitution or a statute requires otherwise. Rather, in view of the
vast constitutional powers and prerogatives granted to the President in the eld of foreign affairs, the task of the Court is to determine whether
the international agreement is consistent with the applicable limitations.
6. Executive agreements may
cover the matter of foreign
military forces if it merely
involves detail adjustments. DaIAcC
The practice of resorting to executive agreements in adjusting the details of a law or a treaty that already deals with the presence of
foreign military forces is not at all unusual in this jurisdiction. In fact, the Court has already implicitly acknowledged this practice in Lim v.
Executive Secretary. 231 In that case, the Court was asked to scrutinize the constitutionality of the Terms of Reference of the Balikatan 02-1
joint military exercises, which sought to implement the VFA. Concluded in the form of an executive agreement, the Terms of Reference detailed
the coverage of the term "activities" mentioned in the treaty and settled the matters pertaining to the construction of temporary structures for
the U.S. troops during the activities; the duration and location of the exercises; the number of participants; and the extent of and limitations on
the activities of the U.S. forces. The Court upheld the Terms of Reference as being consistent with the VFA. It no longer took issue with the fact
that the Balikatan Terms of Reference was not in the form of a treaty concurred in by the Senate, even if it dealt with the regulation of the
activities of foreign military forces on Philippine territory.
In Nicolas v. Romulo , 232 the Court again impliedly a rmed the use of an executive agreement in an attempt to adjust the details of a
provision of the VFA. The Philippines and the U.S. entered into the Romulo-Kenney Agreement, which undertook to clarify the detention of a U.S.
Armed Forces member, whose case was pending appeal after his conviction by a trial court for the crime of rape. In testing the validity of the
latter agreement, the Court precisely alluded to one of the inherent limitations of an executive agreement: it cannot go beyond the terms of the
treaty it purports to implement. It was eventually ruled that the Romulo-Kenney Agreement was "not in accord" with the VFA, since the former
was squarely inconsistent with a provision in the treaty requiring that the detention be "by Philippine authorities." Consequently, the Court
ordered the Secretary of Foreign Affairs to comply with the VFA and "forthwith negotiate with the United States representatives for the
appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA." 233
Culling from the foregoing discussions, we reiterate the following pronouncements to guide us in resolving the present controversy:
1. Section 25, Article XVIII of the Constitution, contains stringent requirements that must be ful lled by the international agreement
allowing the presence of foreign military bases, troops, or facilities in the Philippines: (a) the agreement must be in the form of a
treaty, and (b) it must be duly concurred in by the Senate.
2. If the agreement is not covered by the above situation, then the President may choose the form of the agreement (i.e., either an
executive agreement or a treaty), provided that the agreement dealing with foreign military bases, troops, or facilities is not the
principal agreement that first allows their entry or presence in the Philippines.
3. The executive agreement must not go beyond the parameters, limitations, and standards set by the law and/or treaty that the
former purports to implement; and must not unduly expand the international obligation expressly mentioned or necessarily implied
in the law or treaty.
4. The executive agreement must be consistent with the Constitution, as well as with existing laws and treaties.
In light of the President's choice to enter into EDCA in the form of an executive agreement, respondents carry the burden of proving that
it is a mere implementation of existing laws and treaties concurred in by the Senate. EDCA must thus be carefully dissected to ascertain if it
remains within the legal parameters of a valid executive agreement.
7. EDCA is consistent with the
content, purpose, and
framework of the MDT and
the VFA
The starting point of our analysis is the rule that "an executive agreement . . . may not be used to amend a treaty." 234 In Lim v. Executive
Secretary and in Nicolas v. Romulo , the Court approached the question of the validity of executive agreements by comparing them with the
general framework and the specific provisions of the treaties they seek to implement.
In Lim, the Terms of Reference of the joint military exercises was scrutinized by studying "the framework of the treaty antecedents to
which the Philippines bound itself," 235 i.e., the MDT and the VFA. The Court proceeded to examine the extent of the term "activities" as
contemplated in Articles I 236 and II 237 of the VFA. It later on found that the term "activities" was deliberately left unde ned and ambiguous in
order to permit "a wide scope of undertakings subject only to the approval of the Philippine government" 238 and thereby allow the parties "a
certain leeway in negotiation." 239 The Court eventually ruled that the Terms of Reference fell within the sanctioned or allowable activities,
especially in the context of the VFA and the MDT.
The Court applied the same approach to Nicolas v. Romulo . It studied the provisions of the VFA on custody and detention to ascertain
the validity of the Romulo-Kenney Agreement. 240 It eventually found that the two international agreements were not in accord, since the
Romulo-Kenney Agreement had stipulated that U.S. military personnel shall be detained at the U.S. Embassy Compound and guarded by U.S.
military personnel, instead of by Philippine authorities. According to the Court, the parties "recognized the difference between custody during
the trial and detention after conviction." 241 Pursuant to Article V (6) of the VFA, the custody of a U.S. military personnel resides with U.S.
military authorities during trial. Once there is a nding of guilt, Article V (10) requires that the con nement or detention be "by Philippine
authorities." TAacHE
Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA "substantially modi es or amends the VFA" 242 and follows with an
enumeration of the differences between EDCA and the VFA. While these arguments will be rebutted more fully further on, an initial answer can
already be given to each of the concerns raised by his dissent.
The rst difference emphasized is that EDCA does not only regulate visits as the VFA does, but allows temporary stationing on a
rotational basis of U.S. military personnel and their contractors in physical locations with permanent facilities and pre-positioned military
materiel.
This argument does not take into account that these permanent facilities, while built by U.S. forces, are to be owned by the Philippines
once constructed. 243 Even the VFA allowed construction for the benefit of U.S. forces during their temporary visits.
The second difference stated by the dissent is that EDCA allows the prepositioning of military materiel, which can include various types
of warships, fighter planes, bombers, and vessels, as well as land and amphibious vehicles and their corresponding ammunition. 244
However, the VFA clearly allows the same kind of equipment, vehicles, vessels, and aircraft to be brought into the country. Articles VII and
VIII of the VFA contemplates that U.S. equipment, materials, supplies, and other property are imported into or acquired in the Philippines by or
on behalf of the U.S. Armed Forces; as are vehicles, vessels, and aircraft operated by or for U.S. forces in connection with activities under the
VFA. These provisions likewise provide for the waiver of the specific duties, taxes, charges, and fees that correspond to these equipment.
The third difference adverted to by the Justice Leonen's dissent is that the VFA contemplates the entry of troops for training exercises,
whereas EDCA allows the use of territory for launching military and paramilitary operations conducted in other states. 245 The dissent of
Justice Teresita J. Leonardo-De Castro also notes that VFA was intended for non-combat activities only, whereas the entry and activities of U.S.
forces into Agreed Locations were borne of military necessity or had a martial character, and were therefore not contemplated by the VFA. 246
This Court's jurisprudence however established in no uncertain terms that combat-related activities, as opposed to actual combat, were
allowed under the MDT and VFA, viz.:
Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities as
opposed to combat itself such as the one subject of the instant petition, are indeed authorized. 247
Hence, even if EDCA was borne of military necessity, it cannot be said to have strayed from the intent of the VFA since EDCA's combat-
related components are allowed under the treaty.
Moreover, both the VFA and EDCA are silent on what these activities actually are. Both the VFA and EDCA deal with the presence of U.S.
forces within the Philippines, but make no mention of being platforms for activity beyond Philippine territory. While it may be that, as applied,
military operations under either the VFA or EDCA would be carried out in the future, the scope of judicial review does not cover potential
breaches of discretion but only actual occurrences or blatantly illegal provisions. Hence, we cannot invalidate EDCA on the basis of the
potentially abusive use of its provisions.
The fourth difference is that EDCA supposedly introduces a new concept not contemplated in the VFA or the MDT: Agreed Locations,
Contractors, Pre-positioning, and Operational Control. 248
As previously mentioned, these points shall be addressed fully and individually in the latter analysis of EDCA's provisions. However, it
must already be clari ed that the terms and details used by an implementing agreement need not be found in the mother treaty. They must be
sourced from the authority derived from the treaty, but are not necessarily expressed word-for-word in the mother treaty. This concern shall be
further elucidated in this Decision.
The fth difference highlighted by the Dissenting Opinion is that the VFA does not have provisions that may be construed as a restriction
on or modi cation of obligations found in existing statutes, including the jurisdiction of courts, local autonomy, and taxation. Implied in this
argument is that EDCA contains such restrictions or modifications. 249
This last argument cannot be accepted in view of the clear provisions of EDCA. Both the VFA and EDCA ensure Philippine jurisdiction in
all instances contemplated by both agreements, with the exception of those outlined by the VFA in Articles III-VI. In the VFA, taxes are clearly
waived whereas in EDCA, taxes are assumed by the government as will be discussed later on. This fact does not, therefore, produce a
diminution of jurisdiction on the part of the Philippines, but rather a recognition of sovereignty and the rights that attend it, some of which may
be waived as in the cases under Articles III-VI of the VFA.
Taking off from these concerns, the provisions of EDCA must be compared with those of the MDT and the VFA, which are the two
treaties from which EDCA allegedly draws its validity.
"Authorized presence" under the
VFA versus "authorized activities"
under EDCA: (1) U.S. personnel
and (2) U.S. contractors
The OSG argues 250 that EDCA merely details existing policies under the MDT and the VFA. It explains that EDCA articulates the principle
of defensive preparation embodied in Article II of the MDT; and seeks to enhance the defensive, strategic, and technological capabilities of
both parties pursuant to the objective of the treaty to strengthen those capabilities to prevent or resist a possible armed attack. Respondent
also points out that EDCA simply implements Article I of the VFA, which already allows the entry of U.S. troops and personnel into the country.
Respondent stresses this Court's recognition in Lim v. Executive Secretary that U.S. troops and personnel are authorized to conduct activities
that promote the goal of maintaining and developing their defense capability. HDICSa
Petitioners contest 251 the assertion that the provisions of EDCA merely implement the MDT. According to them, the treaty does not
speci cally authorize the entry of U.S. troops in the country in order to maintain and develop the individual and collective capacities of both the
Philippines and the U.S. to resist an armed attack. They emphasize that the treaty was concluded at a time when there was as yet no speci c
constitutional prohibition on the presence of foreign military forces in the country.
Petitioners also challenge the argument that EDCA simply implements the VFA. They assert that the agreement covers only short-term or
temporary visits of U.S. troops "from time to time" for the speci c purpose of combined military exercises with their Filipino counterparts. They
stress that, in contrast, U.S. troops are allowed under EDCA to perform activities beyond combined military exercises, such as those
enumerated in Articles III (1) and IV (4) thereof. Furthermore, there is some degree of permanence in the presence of U.S. troops in the country,
since the effectivity of EDCA is continuous until terminated. They proceed to argue that while troops have a "rotational" presence, this scheme
in fact fosters their permanent presence.
a. Admission of U.S. military and
civilian personnel into
Philippine territory is already
allowed under the VFA
We shall rst deal with the recognition under EDCA of the presence in the country of three distinct classes of individuals who will be
conducting different types of activities within the Agreed Locations: (1) U.S. military personnel; (2) U.S. civilian personnel; and (3) U.S.
contractors. The agreement refers to them as follows:
"United States personnel" means United States military and civilian personnel temporarily in the territory of the Philippines in
connection with activities approved by the Philippines, as those terms are defined in the VFA.
VFA 252
"United States forces" means the entity comprising United States personnel and all property, equipment, and materiel of the United
States Armed Forces present in the territory of the Philippines. 253
"United States contractors" means companies and rms , and their employees,
employees under contract or subcontract to or on behalf of
the United States Department of Defense. United States contractors are not included as part of the de nition of United States personnel
in this Agreement, including within the context of the VFA. 254
United States forces may contract for any materiel, supplies, equipment, and services (including construction) to be furnished or
undertaken in the territory of the Philippines without restriction as to choice of contractor, supplier, or person who provides such materiel,
supplies, equipment, or services.
services Such contracts shall be solicited, awarded, and administered in accordance with the laws and
regulations of the United States. 255 (Emphases Supplied)
A thorough evaluation of how EDCA is phrased clari es that the agreement does not deal with the entry into the country of
U.S. personnel and contractors per se . While Articles I (1) (b) 256 and II (4) 257 speak of "the right to access and use" the Agreed Locations,
their wordings indicate the presumption that these groups have already been allowed entry into Philippine territory, for which, unlike the VFA,
EDCA has no speci c provision. Instead, Article II of the latter simply alludes to the VFA in describing U.S. personnel, a term de ned under
Article I of the treaty as follows:
As used in this Agreement, "United States personnel" means United States military and civilian personnel temporarily in the
Philippines in connection with activities approved by the Philippine Government. Within this definition:
1. The term "military
military personnel " refers to military members of the United States Army, Navy, Marine Corps, Air Force, and
Coast Guard.
Guard
2. The term "civilian
civilian personnel " refers to individuals who are neither nationals of nor ordinarily resident in the Philippines and
who are employed by the United States armed forces or who are accompanying the United States armed forces, forces such as
employees of the American Red Cross and the United Services Organization . 258
Article II of EDCA must then be read with Article III of the VFA, which provides for the entry accommodations to be accorded to U.S.
military and civilian personnel:
1. The Government of the Philippines shall facilitate the admission of United States personnel and their departure from the
Philippines in connection with activities covered by this agreement.
2. United States military personnel shall be exempt from passport and visa regulations upon entering and departing the
Philippines. IDaEHC
3. The following documents only, which shall be required in respect of United States military personnel who enter the Philippines; . . . . .
4. United States civilian personnel shall be exempt from visa requirements but shall present,
present upon demand, valid passports
upon entry and departure of the Philippines. (Emphases Supplied)
By virtue of Articles I and III of the VFA, the Philippines already allows U.S. military and civilian personnel to be "temporarily in the
Philippines," so long as their presence is "in connection with activities approved by the Philippine Government." The Philippines, through Article
III, even guarantees that it shall facilitate the admission of U.S. personnel into the country and grant exemptions from passport and visa
regulations. The VFA does not even limit their temporary presence to specific locations.
Based on the above provisions, the admission and presence of U.S. military and civilian personnel in Philippine territory are
already allowed under the VFA, the treaty supposedly being implemented by EDCA . What EDCA has effectively done, in fact, is merely
provide the mechanism to identify the locations in which U.S. personnel may perform allowed activities pursuant to the VFA. As the
implementing agreement, it regulates and limits the presence of U.S. personnel in the country.
b. EDCA does not provide the
legal basis for admission of
U.S. contractors into Philippine
territory; their entry must be
sourced from extraneous
Philippine statutes and
regulations for the admission of
alien employees or business
persons.
Of the three aforementioned classes of individuals who will be conducting certain activities within the Agreed Locations, we note that
only U.S. contractors are not explicitly mentioned in the VFA. This does not mean, though, that the recognition of their presence under EDCA is
ipso facto an amendment of the treaty, and that there must be Senate concurrence before they are allowed to enter the country.
Nowhere in EDCA are U.S. contractors guaranteed immediate admission into the Philippines. Articles III and IV, in fact, merely grant them
the right of access to, and the authority to conduct certain activities within the Agreed Locations. Since Article II (3) of EDCA speci cally leaves
out U.S. contractors from the coverage of the VFA, they shall not be granted the same entry accommodations and privileges as those enjoyed
by U.S. military and civilian personnel under the VFA.
Consequently, it is neither mandatory nor obligatory on the part of the Philippines to admit U.S. contractors into the country. 259 We
emphasize that the admission of aliens into Philippine territory is "a matter of pure permission and simple tolerance which creates no
obligation on the part of the government to permit them to stay." 260 Unlike U.S. personnel who are accorded entry accommodations, U.S.
contractors are subject to Philippine immigration laws. 261 The latter must comply with our visa and passport regulations 262 and prove that
they are not subject to exclusion under any provision of Philippine immigration laws. 263 The President may also deny them entry pursuant to
his absolute and unquali ed power to prohibit or prevent the admission of aliens whose presence in the country would be inimical to public
interest. 264
In the same vein, the President may exercise the plenary power to expel or deport U.S. contractors 265 as may be necessitated by
national security, public safety, public health, public morals, and national interest. 266 They may also be deported if they are found to be illegal or
undesirable aliens pursuant to the Philippine Immigration Act 267 and the Data Privacy Act. 268 In contrast, Article III (5) of the VFA requires a
request for removal from the Philippine government before a member of the U.S. personnel may be "dispos[ed] . . . outside of the Philippines."
c. Authorized activities of U.S.
military and civilian personnel
within Philippine territory are
in furtherance of the MDT and
the VFA
We begin our analysis by quoting the relevant sections of the MDT and the VFA that pertain to the activities in which U.S. military and
civilian personnel may engage:
MUTUAL DEFENSE TREATY
Article II
In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by self-help and mutual aid will
maintain and develop their individual and collective capacity to resist armed attack. attack
Article III
The Parties, through their Foreign Ministers or their deputies, deputies will consult together from time to time regarding the
implementation of this Treaty and whenever in the opinion of either of them the territorial integrity, political independence or security of
either of the Parties is threatened by external armed attack in the Pacific.
VISITING FORCES AGREEMENT
Preamble
xxx xxx xxx
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951; DTCSHA
Noting that from time to time elements of the United States armed forces may visit the Republic of the Philippines;
Considering that cooperation between the United States and the Republic of the Philippines promotes their common security
interests;
interests
xxx xxx xxx
Article I — Definitions
As used in this Agreement, "United States personnel" means United States military and civilian personnel temporarily in the Philippines in
connection with activities approved by the Philippine Government.
Government Within this definition: . . .
Article II — Respect for Law
It is the duty of United States personnel to respect the laws of the Republic of the Philippines and to abstain from any
activity inconsistent with the spirit of this agreement,
agreement and, in particular, from any political activity in the Philippines. The
Government of the United States shall take all measures within its authority to ensure that this is done.
Article VII — Importation and Exportation
1. United States Government equipment, materials, supplies, and other property imported into or acquired in the Philippines
by or on behalf of the United States armed forces in connection with activities to which this agreement applies,
applies shall be free of all
Philippine duties, taxes and other similar charges. Title to such property shall remain with the United States, which may remove such
property from the Philippines at any time, free from export duties, taxes, and other similar charges. . . . .
Article VIII — Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may enter the Philippines upon approval of the Government of
the Philippines in accordance with procedures stipulated in implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the Philippines upon approval of the Government of
the Philippines.
Philippines The movement of vessels shall be in accordance with international custom and practice governing such
vessels,
vessels and such agreed implementing arrangements as necessary . . . . (Emphases Supplied)
Manifest in these provisions is the abundance of references to the creation of further "implementing arrangements" including the
identi cation of "activities [to be] approved by the Philippine Government." To determine the parameters of these implementing arrangements
and activities, we referred to the content, purpose, and framework of the MDT and the VFA.
By its very language, the MDT contemplates a situation in which both countries shall engage in joint activities, so that they can maintain
and develop their defense capabilities. The wording itself evidently invites a reasonable construction that the joint activities shall involve joint
military trainings, maneuvers, and exercises. Both the interpretation 269 and the subsequent practice 270 of the parties show that the MDT
independently allows joint military exercises in the country. Lim v. Executive Secretary 271 and Nicolas v. Romulo 272 recognized that Balikatan
exercises, which are activities that seek to enhance and develop the strategic and technological capabilities of the parties to resist an armed
attack, "fall squarely under the provisions of the RP-US MDT." 273 In Lim, the Court especially noted that the Philippines and the U.S. continued to
conduct joint military exercises even after the expiration of the MBA and even before the conclusion of the VFA. 274 These activities presumably
related to the Status of Forces Agreement, in which the parties agreed on the status to be accorded to U.S. military and civilian personnel while
conducting activities in the Philippines in relation to the MDT. 275
Further, it can be logically inferred from Article V of the MDT that these joint activities may be conducted on Philippine or on U.S. soil. The
article expressly provides that the term armed attack includes "an armed attack on the metropolitan territory of either of the Parties, or on
the island territories under its jurisdiction in the Paci c or on its armed forces, public vessels or aircraft in the Paci c." Surely, in
maintaining and developing our defense capabilities, an assessment or training will need to be performed, separately and jointly by self-help
and mutual aid, in the territories of the contracting parties. It is reasonable to conclude that the assessment of defense capabilities would
entail understanding the terrain, wind flow patterns, and other environmental factors unique to the Philippines.
It would also be reasonable to conclude that a simulation of how to respond to attacks in vulnerable areas would be part of the training
of the parties to maintain and develop their capacity to resist an actual armed attack and to test and validate the defense plan of the
Philippines. It is likewise reasonable to imagine that part of the training would involve an analysis of the effect of the weapons that may be used
and how to be prepared for the eventuality. This Court recognizes that all of this may require training in the area where an armed attack might
be directed at the Philippine territory.
The provisions of the MDT must then be read in conjunction with those of the VFA.
Article I of the VFA indicates that the presence of U.S. military and civilian personnel in the Philippines is "in connection with activities
approved by the Philippine Government." While the treaty does not expressly enumerate or detail the nature of activities of U.S. troops in the
country, its Preamble makes explicit references to the rea rmation of the obligations of both countries under the MDT. These obligations
include the strengthening of international and regional security in the Pacific area and the promotion of common security interests. CScTED
The Court has already settled in Lim v. Executive Secretary that the phrase "activities approved by the Philippine Government" under
Article I of the VFA was intended to be ambiguous in order to afford the parties exibility to adjust the details of the purpose of the visit of U.S.
personnel. 276 In ruling that the Terms of Reference for the Balikatan Exercises in 2002 fell within the context of the treaty, this Court explained:
After studied re ection, it appeared farfetched that the ambiguity surrounding the meaning of the word "activities" arose
from accident.
accident In our view, it was deliberately made that way to give both parties a certain leeway in negotiation . In this
manner, visiting US forces may sojourn in Philippine territory for purposes other than military . As conceived, the joint exercises
may include training on new techniques of patrol and surveillance to protect the nation's marine resources, sea search-and-rescue
operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of school houses, medical and
humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume that "Balikatan
02-1," a "mutual anti-terrorism advising, assisting and training exercise," falls under the umbrella of sanctioned or
allowable activities in the context of the agreement. Both the history and intent of the Mutual Defense Treaty and the VFA support
the conclusion that combat-related activities — as opposed to combat itself — such as the one subject of the instant petition, are indeed
authorized. (Emphases Supplied)
The joint report of the Senate committees on foreign relations and on national defense and security further explains the wide range and
variety of activities contemplated in the VFA, and how these activities shall be identified: 277
These joint exercises envisioned in the VFA are not limited to combat-related activities;
activities they have a wide range and variety .
They include exercises that will reinforce the AFP's ability to acquire new techniques of patrol and surveillance to protect the
country's maritime resources; sea-search and rescue operations to assist ships in distress; and disaster-relief operations to aid the
civilian victims of natural calamities, such as earthquakes, typhoons and tidal waves.
xxx xxx xxx
Joint activities under the VFA will include combat maneuvers; training in aircraft maintenance and equipment repair; civic-action
projects; and consultations and meetings of the Philippine-U.S. Mutual Defense Board. It is at the level of the Mutual Defense Board
— which is headed jointly by the Chief of Staff of the AFP and the Commander in Chief of the U.S. Paci c Command — that the VFA
exercises are planned. Final approval of any activity involving U.S. forces is, however, invariably given by the Philippine
Government.
xxx xxx xxx
Siazon clari ed that it is not the VFA by itself that determines what activities will be conducted between the armed forces
of the U.S. and the Philippines. The VFA regulates and provides the legal framework for the presence, conduct and legal status
of U.S. personnel while they are in the country for visits, joint exercises and other related activities. (Emphases Supplied)
What can be gleaned from the provisions of the VFA, the joint report of the Senate committees on foreign relations and
on national defense and security, and the ruling of this Court in Lim is that the "activities" referred to in the treaty are meant to
be specified and identified in further agreements. EDCA is one such agreement.
EDCA seeks to be an instrument that enumerates the Philippine-approved activities of U.S. personnel referred to in the VFA. EDCA allows
U.S. military and civilian personnel to perform "activities approved by the Philippines, as those terms are de ned in the VFA" 278 and clari es
that these activities include those conducted within the Agreed Locations:
1. Security cooperation exercises; joint and combined training activities; humanitarian assistance and disaster relief activities; and
such other activities as may be agreed upon by the Parties 279
2. Training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles,
vessels, and aircraft; temporary accommodation of personnel; communications; prepositioning of equipment, supplies, and
materiel; deployment of forces and materiel; and such other activities as the Parties may agree 280
3. Exercise of operational control over the Agreed Locations for construction activities and other types of activity, including
alterations and improvements thereof 281
4. Exercise of all rights and authorities within the Agreed Locations that are necessary for their operational control or defense,
including the adoption of appropriate measures to protect U.S. forces and contractors 282
5. Use of water, electricity, and other public utilities 283
6. Operation of their own telecommunication systems, including the utilization of such means and services as are required to ensure
the full ability to operate telecommunication systems, as well as the use of the necessary radio spectrum allocated for this
purpose 284
According to Article I of EDCA, one of the purposes of these activities is to maintain and develop, jointly and by mutual aid, the individual
and collective capacities of both countries to resist an armed attack. It further states that the activities are in furtherance of the MDT and within
the context of the VFA. cDCEIA
We note that these planned activities are very similar to those under the Terms of Reference 285 mentioned in Lim. Both EDCA and the
Terms of Reference authorize the U.S. to perform the following: (a) participate in training exercises; (b) retain command over their forces; (c)
establish temporary structures in the country; (d) share in the use of their respective resources, equipment and other assets; and (e) exercise
their right to self-defense. We quote the relevant portion of the Terms and Conditions as follows: 286
I. POLICY LEVEL
xxx xxx xxx
No permanent US basing and support facilities shall be established. Temporary structures such as those for troop billeting,
classroom instruction and messing may be set up for use by RP and US Forces during the Exercise.
The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of the Chief of Staff, AFP. In no
instance will US Forces operate independently during eld training exercises (FTX). AFP and US Unit Commanders will retain
command over their respective forces under the overall authority of the Exercise Co-Directors. RP and US participants
shall comply with operational instructions of the AFP during the FTX.
The exercise shall be conducted and completed within a period of not more than six months, with the projected participation of 660 US
personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and terminate the Exercise and
other activities within the six month Exercise period.
The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine efforts against the
ASG, and will be conducted on the Island of Basilan. Further advising, assisting and training exercises shall be conducted in Malagutay
and the Zamboanga area. Related activities in Cebu will be for support of the Exercise.
xxx xxx xxx.
US exercise participants shall not engage in combat, without prejudice to their right of self-defense.
self-defense
These terms of Reference are for purposes of this Exercise only and do not create additional legal obligations between the US
Government and the Republic of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of mutual military assisting, advising and training of RP and US
Forces with the primary objective of enhancing the operational capabilities of both forces to combat terrorism.
b. At no time shall US Forces operate independently within RP territory.
c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations.
2. ADMINISTRATION & LOGISTICS
xxx xxx xxx
a. RP and US participating forces may share,
share in accordance with their respective laws and regulations, in the use
of their resources, equipment and other assets. They will use their respective logistics channels.
channels . . . . (Emphases
Supplied)
After a thorough examination of the content, purpose, and framework of the MDT and the VFA, we nd that EDCA has remained within the
parameters set in these two treaties. Just like the Terms of Reference mentioned in Lim, mere adjustments in detail to implement the MDT and
the VFA can be in the form of executive agreements.
Petitioners assert 287 that the duration of the activities mentioned in EDCA is no longer consistent with the temporary nature of the visits
as contemplated in the VFA. They point out that Article XII (4) of EDCA has an initial term of 10 years, a term automatically renewed unless the
Philippines or the U.S. terminates the agreement. According to petitioners, such length of time already has a badge of permanency.
In connection with this, Justice Teresita J. Leonardo-De Castro likewise argues in her Concurring and Dissenting Opinion that the VFA
contemplated mere temporary visits from U.S. forces, whereas EDCA allows an unlimited period for U.S. forces to stay in the Philippines. 288
However, the provisions of EDCA directly contradict this argument by limiting itself to 10 years of effectivity. Although this term is
automatically renewed, the process for terminating the agreement is unilateral and the right to do so automatically accrues at the end of the 10
year period. Clearly, this method does not create a permanent obligation.
Drawing on the reasoning in Lim, we also believe that it could not have been by chance that the VFA does not include a maximum time
limit with respect to the presence of U.S. personnel in the country. We construe this lack of speci city as a deliberate effort on the part of the
Philippine and the U.S. governments to leave out this aspect and reserve it for the "adjustment in detail" stage of the implementation of the
treaty. We interpret the subsequent, unconditional concurrence of the Senate in the entire text of the VFA as an implicit grant to the President of
a margin of appreciation in determining the duration of the "temporary" presence of U.S. personnel in the country. DHESca
Justice Brion's dissent argues that the presence of U.S. forces under EDCA is "more permanent" in nature. 289 However, this argument
has not taken root by virtue of a simple glance at its provisions on the effectivity period. EDCA does not grant permanent bases, but rather
temporary rotational access to facilities for efficiency. As Professor Aileen S.P. Baviera notes:
The new EDCA would grant American troops, ships and planes rotational access to facilities of the Armed Forces of the Philippines —
but not permanent bases which are prohibited under the Philippine Constitution — with the result of reducing response time should an
external threat from a common adversary crystallize. 290
EDCA is far from being permanent in nature compared to the practice of states as shown in other defense cooperation agreements. For
example, Article XIV (1) of the U.S.-Romania defense agreement provides the following:
This Agreement is concluded for an indefinite period and shall enter into force in accordance with the internal laws of each Party
. . . . (emphasis supplied)
Likewise, Article 36 (2) of the US-Poland Status of Forces Agreement reads:
This Agreement has been concluded for an inde nite period of time . It may be terminated by written noti cation by either Party
and in that event it terminates 2 years after the receipt of the notification. (emphasis supplied)
Section VIII of U.S.-Denmark Mutual Support Agreement similarly provides:
8.1 This Agreement, which consists of a Preamble, SECTIONs I-VIII, and Annexes A and B, shall become effective on the date of
the last signature affixed below and shall remain in force until terminated by the Parties,
Parties provided that it may be terminated by either
Party upon 180 days written notice of its intention to do so to the other Party. (emphasis supplied)
On the other hand, Article XXI (3) of the U.S.-Australia Force Posture Agreement provides a longer initial term:
3. This Agreement shall have an initial term of 25 years and thereafter shall continue in force, force but may be terminated by
either Party at any time upon one year's written notice to the other Party through diplomatic channels. (emphasis supplied)
The phrasing in EDCA is similar to that in the U.S.-Australia treaty but with a term less than half of that is provided in the latter agreement.
This means that EDCA merely follows the practice of other states in not specifying a non-extendible maximum term. This practice, however,
does not automatically grant a badge of permanency to its terms. Article XII (4) of EDCA provides very clearly, in fact, that its effectivity is for
an initial term of 10 years, which is far shorter than the terms of effectivity between the U.S. and other states. It is simply illogical to conclude
that the initial, extendible term of 10 years somehow gives EDCA provisions a permanent character. cDTACE

The reasoning behind this interpretation is rooted in the constitutional role of the President who, as Commander-in-Chief of our armed
forces, is the principal strategist of the nation and, as such, duty-bound to defend our national sovereignty and territorial integrity; 291 who, as
chief architect of our foreign relations, is the head policymaker tasked to assess, ensure, and protect our national security and interests; 292
who holds the most comprehensive and most confidential information about foreign countries 293 that may affect how we conduct our external
affairs; and who has unrestricted access to highly classi ed military intelligence data 294 that may threaten the life of the nation. Thus, if after a
geopolitical prognosis of situations affecting the country, a belief is engendered that a much longer period of military training is needed, the
President must be given ample discretion to adopt necessary measures including the flexibility to set an extended timetable.
Due to the sensitivity and often strict con dentiality of these concerns, we acknowledge that the President may not always be able to
candidly and openly discuss the complete situation being faced by the nation. The Chief Executive's hands must not be unduly tied, especially if
the situation calls for crafting programs and setting timelines for approved activities. These activities may be necessary for maintaining and
developing our capacity to resist an armed attack, ensuring our national sovereignty and territorial integrity, and securing our national interests.
If the Senate decides that the President is in the best position to de ne in operational terms the meaning of temporary in relation to the visits,
considered individually or in their totality, the Court must respect that policy decision. If the Senate feels that there is no need to set a time limit
to these visits, neither should we.
Evidently, the fact that the VFA does not provide speci city in regard to the extent of the "temporary" nature of the visits of U.S. personnel
does not suggest that the duration to which the President may agree is unlimited. Instead, the boundaries of the meaning of the term
temporary in Article I of the treaty must be measured depending on the purpose of each visit or activity. 295 That purpose must be analyzed on
a case-by-case basis depending on the factual circumstances surrounding the conclusion of the implementing agreement. While the validity of
the President's actions will be judged under less stringent standards, the power of this Court to determine whether there was grave abuse of
discretion remains unimpaired.
d. Authorized activities performed
by U.S. contractors within
Philippine territory — who were
legitimately permitted to enter
the country independent of
EDCA — are subject to relevant
Philippine statutes and
regulations and must be
consistent with the MDT and
the VFA TEHIaD
Petitioners also raise 296 concerns about the U.S. government's purported practice of hiring private security contractors in other
countries. They claim that these contractors — one of which has already been operating in Mindanao since 2004 — have been implicated in
incidents or scandals in other parts of the globe involving rendition, torture and other human rights violations. They also assert that these
contractors employ paramilitary forces in other countries where they are operating.
Under Articles III and IV of EDCA, U.S. contractors are authorized to perform only the following activities:
1. Training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles,
vessels, and aircraft; temporary accommodation of personnel; communications; prepositioning of equipment, supplies, and
materiel; deployment of forces and materiel; and such other activities as the Parties may agree 297
2. Prepositioning and storage of defense equipment, supplies, and materiel, including delivery, management, inspection, use,
maintenance, and removal of such equipment, supplies and materiel 298
3. Carrying out of matters in accordance with, and to the extent permissible under, U.S. laws, regulations, and policies 299
EDCA requires that all activities within Philippine territory be in accordance with Philippine law. This means that certain privileges denied
to aliens are likewise denied to foreign military contractors. Relevantly, providing security 300 and carrying, owning, and possessing rearms 301
are illegal for foreign civilians.
The laws in place already address issues regarding the regulation of contractors. In the 2015 Foreign Investment Negative list, 302 the
Executive Department has already identi ed corporations that have equity restrictions in Philippine jurisdiction. Of note is No. 5 on the list —
private security agencies that cannot have any foreign equity by virtue of Section 4 of Republic Act No. 5487; 303 and No. 15, which regulates
contracts for the construction of defense-related structures based on Commonwealth Act No. 541.
Hence, any other entity brought into the Philippines by virtue of EDCA must subscribe to corporate and civil requirements imposed by the
law, depending on the entity's corporate structure and the nature of its business. cCHITA
That Philippine laws extraneous to EDCA shall govern the regulation of the activities of U.S. contractors has been clear even to some of
the present members of the Senate.
For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was accused of spilling fuel in the waters off Manila Bay. 304 The Senate
Committee on Foreign Relations and the Senate Committee on Environment and Natural Resources chairperson claimed environmental and
procedural violations by the contractor. 305 The U.S. Navy investigated the contractor and promised stricter guidelines to be imposed upon its
contractors. 306 The statement attributed to Commander Ron Steiner of the public affairs o ce of the U.S. Navy's 7th Fleet — that U.S. Navy
contractors are bound by Philippine laws — is of particular relevance. The statement acknowledges not just the presence of the contractors,
but also the U.S. position that these contractors are bound by the local laws of their host state. This stance was echoed by other U.S. Navy
representatives. 307
This incident simply shows that the Senate was well aware of the presence of U.S. contractors for the purpose of ful lling the terms of
the VFA. That they are bound by Philippine law is clear to all, even to the U.S.
As applied to EDCA, even when U.S. contractors are granted access to the Agreed Locations, all their activities must be consistent with
Philippine laws and regulations and pursuant to the MDT and the VFA.
While we recognize the concerns of petitioners, they do not give the Court enough justi cation to strike down EDCA. In Lim v. Executive
Secretary, we have already explained that we cannot take judicial notice of claims aired in news reports, "not because of any issue as to their
truth, accuracy, or impartiality, but for the simple reason that facts must be established in accordance with the rules of evidence." 308 What is
more, we cannot move one step ahead and speculate that the alleged illegal activities of these contractors in other countries would take place
in the Philippines with certainty. As can be seen from the above discussion, making sure that U.S. contractors comply with Philippine laws is a
function of law enforcement. EDCA does not stand in the way of law enforcement.
Nevertheless, we emphasize that U.S. contractors are explicitly excluded from the coverage of the VFA. As visiting aliens, their entry,
presence, and activities are subject to all laws and treaties applicable within the Philippine territory. They may be refused entry or expelled from
the country if they engage in illegal or undesirable activities. There is nothing that prevents them from being detained in the country or being
subject to the jurisdiction of our courts. Our penal laws, 309 labor laws, 310 and immigrations laws 311 apply to them and therefore limit their
activities here. Until and unless there is another law or treaty that speci cally deals with their entry and activities, their presence in the country is
subject to unqualified Philippine jurisdiction.
EDCA does not allow the presence of
U.S.-owned or -controlled military
facilities and bases in the Philippines
Petitioners Saguisag, et al. claim that EDCA permits the establishment of U.S. military bases through the "euphemistically" termed
"Agreed Locations." 312 Alluding to the de nition of this term in Article II (4) of EDCA, they point out that these locations are actually military
bases, as the de nition refers to facilities and areas to which U.S. military forces have access for a variety of purposes. Petitioners claim that
there are several badges of exclusivity in the use of the Agreed Locations by U.S. forces. First, Article V (2) of EDCA alludes to a "return" of these
areas once they are no longer needed by U.S. forces, indicating that there would be some transfer of use. Second, Article IV (4) of EDCA talks
about American forces' unimpeded access to the Agreed Locations for all matters relating to the prepositioning and storage of U.S. military
equipment, supplies, and materiel. Third, Article VII of EDCA authorizes U.S. forces to use public utilities and to operate their own
telecommunications system.
a. Preliminary point on badges of
exclusivity
As a preliminary observation, petitioners have cherry-picked provisions of EDCA by presenting so-called "badges of exclusivity," despite
the presence of contrary provisions within the text of the agreement itself.
First, they clarify the word "return" in Article V (2) of EDCA. However, the use of the word "return" is within the context of a lengthy
provision. The provision as a whole reads as follows:
The United States shall return to the Philippines any Agreed Locations, or any portion thereof, including non-relocatable structures
and assemblies constructed, modi ed, or improved by the United States, once no longer required by United States forces for activities under
this Agreement. The Parties or the Designated Authorities shall consult regarding the terms of return of any Agreed Locations, including
possible compensation for improvements or construction. CAIHTE
The context of use is "required by United States forces for activities under this Agreement." Therefore, the return of an Agreed Location
would be within the parameters of an activity that the Mutual Defense Board (MDB) and the Security Engagement Board (SEB) would authorize.
Thus, possession by the U.S. prior to its return of the Agreed Location would be based on the authority given to it by a joint body co-chaired by
the "AFP Chief of Staff and Commander, U.S. PACOM with representatives from the Philippines' Department of National Defense and
Department of Foreign Affairs sitting as members." 313 The terms shall be negotiated by both the Philippines and the U.S., or through their
Designated Authorities. This provision, seen as a whole, contradicts petitioners' interpretation of the return as a "badge of exclusivity." In fact, it
shows the cooperation and partnership aspect of EDCA in full bloom.
Second, the term "unimpeded access" must likewise be viewed from a contextual perspective. Article IV (4) states that U.S. forces and
U.S. contractors shall have "unimpeded access to Agreed Locations for all matters relating to the prepositioning and storage of defense
equipment, supplies, and materiel, including delivery, management, inspection, use, maintenance, and removal of such equipment, supplies and
materiel."
At the beginning of Article IV, EDCA states that the Philippines gives the U.S. the authority to bring in these equipment, supplies, and
materiel through the MDB and SEB security mechanism. These items are owned by the U.S., 314 are exclusively for the use of the U.S. 315 and,
after going through the joint consent mechanisms of the MDB and the SEB, are within the control of the U.S. 316 More importantly, before these
items are considered prepositioned, they must have gone through the process of prior authorization by the MDB and the SEB and given proper
notification to the AFP. 317
Therefore, this "unimpeded access" to the Agreed Locations is a necessary adjunct to the ownership, use, and control of the U.S. over its
own equipment, supplies, and materiel and must have rst been allowed by the joint mechanisms in play between the two states since the time
of the MDT and the VFA. It is not the use of the Agreed Locations that is exclusive per se; it is mere access to items in order to exercise the
rights of ownership granted by virtue of the Philippine Civil Code. 318
As for the view that EDCA authorizes U.S. forces to use public utilities and to operate their own telecommunications system, it will be
met and answered in part D , infra.
Petitioners also point out 319 that EDCA is strongly reminiscent of and in fact bears a one-to-one correspondence with the provisions of
the 1947 MBA. They assert that both agreements (a) allow similar activities within the area; (b) provide for the same "species of ownership"
over facilities; and (c) grant operational control over the entire area. Finally, they argue 320 that EDCA is in fact an implementation of the new
defense policy of the U.S. According to them, this policy was not what was originally intended either by the MDT or by the VFA.
On these points, the Court is not persuaded.
The similar activities cited by petitioners 321 simply show that under the MBA, the U.S. had the right to construct, operate, maintain,
utilize, occupy, garrison, and control the bases. The so-called parallel provisions of EDCA allow only operational control over the Agreed
Locations speci cally for construction activities. They do not allow the overarching power to operate, maintain, utilize, occupy, garrison, and
control a base with full discretion. EDCA in fact limits the rights of the U.S. in respect of every activity, including construction, by giving the MDB
and the SEB the power to determine the details of all activities such as, but not limited to, operation, maintenance, utility, occupancy,
garrisoning, and control. 322 DETACa
The "species of ownership" on the other hand, is distinguished by the nature of the property. For immovable property constructed or
developed by the U.S., EDCA expresses that ownership will automatically be vested to the Philippines. 323 On the other hand, for movable
properties brought into the Philippines by the U.S., EDCA provides that ownership is retained by the latter. In contrast, the MBA dictates that the
U.S. retains ownership over immovable and movable properties.
To our mind, both EDCA and the MBA simply incorporate what is already the law of the land in the Philippines. The Civil Code's provisions
on ownership, as applied, grant the owner of a movable property full rights over that property, even if located in another person's property. 324
The parallelism, however, ends when the situation involves facilities that can be considered immovable. Under the MBA, the U.S. retains
ownership if it paid for the facility. 325 Under EDCA, an immovable is owned by the Philippines, even if built completely on the back of U.S.
funding. 326 This is consistent with the constitutional prohibition on foreign land ownership. 327
Despite the apparent similarity, the ownership of property is but a part of a larger whole that must be considered before the
constitutional restriction is violated. Thus, petitioners' points on operational control will be given more attention in the discussion below. The
arguments on policy are, however, outside the scope of judicial review and will not be discussed.
Moreover, a direct comparison of the MBA and EDCA will result in several important distinctions that would allay suspicion that EDCA is
but a disguised version of the MBA.
b. There are substantial matters
that the U.S. cannot do under
EDCA, but which it was
authorized to do under the
1947 MBA
The Philippine experience with U.S. military bases under the 1947 MBA is simply not possible under EDCA for a number of important
reasons.
First , in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over Philippine territory occupied by American bases. In contrast,
the U.S. under EDCA does not enjoy any such right over any part of the Philippines in which its forces or equipment may be found. Below is a
comparative table between the old treaty and EDCA:
1947 MBA/ EDCA

1946 Treaty of General Relations
1947 MBA, Art. I (1): EDCA, preamble:

The Government of the Republic of the Affirming that the Parties share an
Philippines (hereinafter referred to as the understanding for the United States not to
Philippines) grants to the Government of establish a permanent military presence
the United States of America (hereinafter or base in the territory of the
referred to as the United States) the right Philippines;
Philippines
to retain the use of the bases in the
Philippines listed in Annex A attached ...
hereto.
Recognizing that all United States access
1947 MBA, Art. XVII (2): to and use of facilities and areas will be at
the invitation of the Philippines and with
All buildings and structures which are full respect for the Philippine
erected by the United States in the bases Constitution and Philippine laws;laws
shall be the property of the United States
and may be removed by it before the ...
expiration of this Agreement or the earlier
relinquishment of the base on which the EDCA, Art. II (4):
structures are situated. There shall be no
obligation on the part of the Philippines or "Agreed
Agreed Locations"
Locations means facilities and
of the United States to rebuild or repair any areas that are provided by the
destruction or damage inflicted from any Government of the Philippines through
cause whatsoever on any of the said the AFP and that United States forces,
buildings or structures owned or used by United States contractors, and others as
the United States in the bases. . . . . mutually agreed, shall have the right to
access and use pursuant to this Agreement.
1946 Treaty of Gen. Relations, Art. I: Such Agreed Locations may be listed in an
annex to be appended to this Agreement,
The United States of America agrees to and may be further described in
withdraw and surrender, and does hereby implementing arrangements.
withdraw and surrender, all rights of
possession, supervision, jurisdiction, EDCA, Art. V:
control or sovereignty existing and
exercised by the United States of America 1. The Philippines shall retain ownership
in and over the territory and the people of and title to Agreed Locations.
of the Philippine Islands, except the use
of such bases,
bases, necessary appurtenances ...
to such bases, and the rights incident
thereto,
thereto as the United States of America, 4. All buildings, non-relocatable
by agreement with the Republic of the structures, and assemblies affixed to the
Philippines may deem necessary to retain land in the Agreed Locations, including
for the mutual protection of the Republic of ones altered or improved by United
the Philippines and of the United States of States forces, remain the property of the
America. . . . . Philippines.
Philippines Permanent buildings
constructed by United States forces become
the property of the Philippines, once
constructed, but shall be used by United
States forces until no longer required by
United States forces.
Second , in the bases agreement, the U.S. and the Philippines were visibly not on equal footing when it came to deciding whether to
expand or to increase the number of bases, as the Philippines may be compelled to negotiate with the U.S. the moment the latter requested an
expansion of the existing bases or to acquire additional bases. In EDCA, U.S. access is purely at the invitation of the Philippines.aDSIHc
1947 MBA/ EDCA

1946 Treaty of General Relations
1947 MBA, Art. I (3): EDCA, preamble:

The Philippines agree to enter into Recognizing that all United States access
negotiations with the United States at the to and use of facilities and areas will be at
latter's request,
request to permit the United the invitation of the Philippines and with
States to expand such bases,
bases to exchange full respect for the Philippine
such bases for other bases, to acquire Constitution and Philippine laws;
additional bases,
bases or relinquish rights to
bases, as any of such exigencies may be ...
required by military necessity.
EDCA, Art. II (4):
1946 Treaty of Gen. Relations, Art. I: "Agreed
Agreed Locations"
Locations means facilities and
areas that are provided by the
The United States of America agrees to Government of the Philippines through
withdraw and surrender, and does hereby the AFP and that United States forces,
withdraw and surrender, all rights of United States contractors, and others as
possession, supervision, jurisdiction, mutually agreed,
agreed shall have the right to
control or sovereignty existing and access and use pursuant to this Agreement.
exercised by the United States of America Such Agreed Locations may be listed in an
in and over the territory and the people annex to be appended to this Agreement,
of the Philippine Islands, except the use and may be further described in
of such bases,
bases necessary appurtenances to implementing arrangements.
such bases, and the rights incident thereto,
as the United States of America , by
agreement with the Republic of the
Philippines may deem necessary to
retain for the mutual protection of the
Republic of the Philippines and of the
United States of America. . . . .
Third , in EDCA, the Philippines is guaranteed access over the entire area of the Agreed Locations. On the other hand, given that the U.S.
had complete control over its military bases under the 1947 MBA, the treaty did not provide for any express recognition of the right of access
of Philippine authorities. Without that provision and in light of the retention of U.S. sovereignty over the old military bases, the U.S. could
effectively prevent Philippine authorities from entering those bases.
1947 MBA EDCA

EDCA, Art. III(5):
No equivalent provision. The Philippine Designated Authority and

its authorized representative shall have
access to the entire area of the Agreed
Locations.
Locations Such access shall be provided
promptly consistent with operational safety
and security requirements in accordance
with agreed procedures developed by the
Parties.
Fourth , in the bases agreement, the U.S. retained the right, power, and authority over the establishment, use, operation, defense, and
control of military bases, including the limits of territorial waters and air space adjacent to or in the vicinity of those bases. The only standard
used in determining the extent of its control was military necessity. On the other hand, there is no such grant of power or authority under EDCA.
It merely allows the U.S. to exercise operational control over the construction of Philippine-owned structures and facilities:
1947 MBA EDCA
1947 MBA, Art. I (2): EDCA, Art. III (4):

The Philippines agrees to permit the The Philippines hereby grants to the
United States,
States upon notice to the United States, through bilateral security
Philippines, to use such of those bases mechanisms,
mechanisms such as the MDB and SEB,
listed in Annex B as the United States operational control of Agreed Locations
determines to be required by military for construction activities and authority
necessity . to undertake such activities on, and make
alterations and improvements to, Agreed
Locations. United States forces shall
1947 MBA, Art. III (1): consult on issues regarding such
construction, alterations, and
It is mutually agreed that the United States improvements based on the Parties' shared
shall have the rights, power and authority intent that the technical requirements and
within the bases which are necessary for construction standards of any such projects
the establishment, use, operation and undertaken by or on behalf of United States
defense thereof or appropriate for the forces should be consistent with the
control thereof and all the rights, power requirements and standards of both Parties.
and authority within the limits of
territorial waters and air space adjacent
to, or in the vicinity of , the bases which
are necessary to provide access to them,them
or appropriate for their control.
Fifth , the U.S. under the bases agreement was given the authority to use Philippine territory for additional staging areas, bombing and
gunnery ranges. No such right is given under EDCA, as seen below:
1947 MBA EDCA

1947 MBA, Art. VI: EDCA, Art. III (1):
The United States shall, subject to With consideration of the views of the
previous agreement with the Philippines, Parties,
Parties the Philippines hereby authorizes
have the right to use land and coastal sea and agrees that United States forces, United
areas of appropriate size and location for States contractors, and vehicles, vessels,
periodic maneuvers, for additional staging and aircraft operated by or for United
areas, bombing and gunnery ranges, and States forces may conduct the following
for such intermediate airfields as may be activities with respect to Agreed
required for safe and efficient air Locations: training; transit; support and
operations. Operations in such areas shall related activities; refueling of aircraft;
be carried on with due regard and bunkering of vessels; temporary
safeguards for the public safety. maintenance of vehicles, vessels, and
aircraft; temporary accommodation of
1947 MBA, Art. I (2): personnel; communications; prepositioning
of equipment, supplies, and materiel;
The Philippines agrees to permit the deploying forces and materiel; and such
United States,
States upon notice to the other activities as the Parties may agree.
Philippines, to use such of those bases
listed in Annex B as the United States
determines to be required by military
necessity .
Sixth , under the MBA, the U.S. was given the right, power, and authority to control and prohibit the movement and operation of all types
of vehicles within the vicinity of the bases. The U.S. does not have any right, power, or authority to do so under EDCA.
1947 MBA EDCA

1947 MBA, Art. III (2) (c)
Such rights, power and authority shall No equivalent provision.

include, inter alia, the right, power and
authority : . . . to control (including the
right to prohibit)
prohibit in so far as may be
required for the efficient operation and
safety of the bases, and within the limits of
military necessity, anchorages, moorings,
landings, takeoffs, movements and
operation of ships and water-borne
craft, aircraft and other vehicles on
water, in the air or on land comprising
Seventh , under EDCA, the U.S. is merely given temporary access to land and facilities (including roads, ports, and air elds). On the other
hand, the old treaty gave the U.S. the right to improve and deepen the harbors, channels, entrances, and anchorages; and to construct or
maintain necessary roads and bridges that would afford it access to its military bases.
1947 MBA EDCA

1947 MBA, Art. III (2) (b): EDCA, Art. III (2):
Such rights, power and authority shall When requested, the Designated Authority
include, inter alia, the right, power and of the Philippines shall assist in facilitating
authority: . . . to improve and deepen transit or temporary access by United
the harbors, channels, entrances and States forces to public land and facilities
anchorages,
anchorages and to construct or maintain (including roads, ports, and airfields),
necessary roads and bridges affording including those owned or controlled by
access to the bases. local governments, and to other land and
facilities (including roads, ports, and
airfields).
Eighth , in the 1947 MBA, the U.S. was granted the automatic right to use any and all public utilities, services and facilities, air elds, ports,
harbors, roads, highways, railroads, bridges, viaducts, canals, lakes, rivers, and streams in the Philippines in the same manner that Philippine
military forces enjoyed that right. No such arrangement appears in EDCA. In fact, it merely extends to U.S. forces temporary access to public
land and facilities when requested:
1947 MBA EDCA

1947 MBA, Art. VII: EDCA, Art. III (2):
It is mutually agreed that the United States When requested,

requested the Designated
may employ and use for United States Authority of the Philippines shall assist in
military forces any and all public utilities, facilitating transit or temporary access
other services and facilities, airfields, by United States forces to public land and
ports, harbors, roads, highways, railroads, facilities (including roads, ports, and
bridges, viaducts, canals, lakes, rivers and airfields), including those owned or
streams in the Philippines under controlled by local governments, and to
conditions no less favorable than those other land and facilities (including roads,
that may be applicable from time to time ports, and airfields).
to the military forces of the Philippines.
Philippines
Ninth , under EDCA, the U.S. no longer has the right, power, and authority to construct, install, maintain, and employ any type of facility,
weapon, substance, device, vessel or vehicle, or system unlike in the old treaty. EDCA merely grants the U.S., through bilateral security
mechanisms, the authority to undertake construction, alteration, or improvements on the Philippine-owned Agreed Locations. TIADCc

1947 MBA EDCA
1947 MBA, Art. III (2) (e): EDCA, Art. III (4):
Such rights, power and authority shall The Philippines hereby grants to the
include, inter alia, the right, power and United States, through bilateral security
authority: . . . to construct, install, mechanisms,
mechanisms such as the MDB and SEB,
maintain, and employ on any base any operational control of Agreed Locations for
type of facilities,
facilities weapons,
weapons substance,
substance construction activities and authority to
device, vessel or vehicle on or under the undertake such activities on, and make
ground, in the air or on or under the water alterations and improvements to, Agreed
that may be requisite or appropriate, Locations.
Locations United States forces shall
including meteorological systems, aerial consult on issues regarding such
and water navigation lights, radio and radar construction, alterations, and improvements
apparatus and electronic devices, of any based on the Parties' shared intent that the
desired power, type of emission and technical requirements and construction
frequency. standards of any such projects undertaken
by or on behalf of United States forces
should be consistent with the requirements
and standards of both Parties.
Tenth , EDCA does not allow the U.S. to acquire, by condemnation or expropriation proceedings, real property belonging to any private
person. The old military bases agreement gave this right to the U.S. as seen below:
1947 MBA EDCA

1947 MBA, Art. XXII (1):
Whenever it is necessary to acquire by No equivalent provision.

condemnation or expropriation
proceedings real property belonging to
any private persons,
persons associations or
corporations located in bases named in
Annex A and Annex B in order to carry out
the purposes of this Agreement, the
Philippines will institute and prosecute
such condemnation or expropriation
proceedings in accordance with the laws of
the Philippines. The United States agrees to
reimburse the Philippines for all the
reasonable expenses, damages and costs
thereby incurred, including the value of the
property as determined by the Court. In
addition, subject to the mutual agreement
of the two Governments, the United States
will reimburse the Philippines for the
reasonable costs of transportation and
removal of any occupants displaced or
ejected by reason of the condemnation or
expropriation.
Eleventh , EDCA does not allow the U.S. to unilaterally bring into the country non-Philippine nationals who are under its employ, together
with their families, in connection with the construction, maintenance, or operation of the bases. EDCA strictly adheres to the limits under the
VFA.
1947 MBA EDCA

1947 MBA, Art. XI (1): EDCA, Art. II:
It is mutually agreed that the United States 1. "United

United States personnel " means
shall have the right to bring into the United States military and civilian
Philippines members of the United States personnel temporarily in the territory of
military forces and the United States the Philippines in connection with activities
nationals employed by or under an approved by the Philippines, as those
contract with the United States together terms are defined in the VFA.
VFA
with their families, and technical
personnel of other nationalities (not ...
being persons excluded by the laws of the
Philippines) in connection with the 3. "United
United States contractors"
contractors means
construction, maintenance, or operation of companies and firms, and their employees,
the bases. The United States shall make under contract or subcontract to or on
suitable arrangements so that such persons behalf of the United States Department of
may be readily identified and their status Defense. United States contractors are not
established when necessary by the included as part of the definition of
Philippine authorities. Such persons, other United States personnel in this
than members of the United States armed Agreement, including within the context
forces in uniform, shall present their travel of the VFA.
VFA
documents to the appropriate Philippine
authorities for visas, it being understood
that no objection will be made to their
travel to the Philippines as non-
immigrants.
Twelfth , EDCA does not allow the U.S. to exercise jurisdiction over any offense committed by any person within the Agreed Locations,
unlike in the former military bases:
1947 MBA EDCA
1947 MBA, Art. XIII (1) (a):

The Philippines consents that the United No equivalent provision.
States shall have the right to exercise
jurisdiction over the following offenses:
(a) Any offense committed by any person
within any base except where the offender
and offended parties are both Philippine
citizens (not members of the armed forces
of the United States on active duty) or the
offense is against the security of the
Philippines.
Thirteenth , EDCA does not allow the U.S. to operate military post exchange (PX) facilities, which is free of customs duties and taxes,
unlike what the expired MBA expressly allowed. Parenthetically, the PX store has become the cultural icon of U.S. military presence in the
country. AIDSTE
1947 MBA EDCA
1947 MBA, Art. XVIII (1):

It is mutually agreed that the United States No equivalent provision.
shall have the right to establish on bases,
free of all licenses; fees; sales, excise or
other taxes, or imposts; Government
agencies, including concessions,
concessions such as
sales commissaries and post exchanges;
messes and social clubs, for the exclusive
use of the United States military forces
and authorized civilian personnel and
their families.
families The merchandise or services
sold or dispensed by such agencies shall be
free of all taxes, duties and inspection by
the Philippine authorities.
authorities Administrative
measures shall be taken by the appropriate
authorities of the United States to prevent
the resale of goods which are sold under
the provisions of this Article to persons not
entitled to buy goods at such agencies and,
generally, to prevent abuse of the privileges
granted under this Article. There shall be
cooperation between such authorities and
the Philippines to this end.
In sum, EDCA is a far cry from a basing agreement as was understood by the people at the time that the 1987 Constitution was adopted.
Nevertheless, a comprehensive review of what the Constitution means by "foreign military bases" and "facilities" is required before EDCA
can be deemed to have passed judicial scrutiny.
c. The meaning of military
facilities and bases
An appreciation of what a military base is, as understood by the Filipino people in 1987, would be vital in determining whether EDCA
breached the constitutional restriction.
Prior to the drafting of the 1987 Constitution, the last de nition of "military base" was provided under Presidential Decree No. (PD) 1227.
328Unlawful entry into a military base is punishable under the decree as supported by Article 281 of the Revised Penal Code, which itself
prohibits the act of trespass.
Section 2 of the law de nes the term in this manner: "'[M]ilitary base' as used in this decree means any military, air, naval, or coast guard
reservation, base, fort, camp, arsenal, yard, station, or installation in the Philippines."
Commissioner Tadeo, in presenting his objections to U.S. presence in the Philippines before the 1986 Constitutional Commission, listed
the areas that he considered as military bases:
1,000 hectares Camp O'Donnel
20,000 hectares Crow Valley Weapon's Range
55,000 hectares Clark Air Base
150 hectares Wallace Air Station
400 hectares John Hay Air Station
15,000 hectares Subic Naval Base
1,000 hectares San Miguel Naval Communication
750 hectares Radio Transmitter in Capas, Tarlac
900 hectares Radio Bigot Annex at Bamban, Tarlac 329

The Bases Conversion and Development Act of 1992 described its coverage in its Declaration of Policies:
Sec. 2. Declaration of Policies. — It is hereby declared the policy of the Government to accelerate the sound and balanced
conversion into alternative productive uses of the Clark and Subic military reservations and their extensions (John Hay Station, Wallace Air
Station, O'Donnell Transmitter Station, San Miguel Naval Communications Station and Capas Relay Station), to raise funds by the sale of
portions of Metro Manila military camps, and to apply said funds as provided herein for the development and conversion to productive
civilian use of the lands covered under the 1947 Military Bases Agreement between the Philippines and the United States of America, as
amended. 330
The result of the debates and subsequent voting is Section 25, Article XVIII of the Constitution, which speci cally restricts, among
others, foreign military facilities or bases. At the time of its crafting of the Constitution, the 1986 Constitutional Commission had a clear idea of
what exactly it was restricting. While the term "facilities and bases" was left unde ned, its point of reference was clearly those areas covered by
the 1947 MBA as amended.
Notably, nearly 30 years have passed since then, and the ever-evolving world of military technology and geopolitics has surpassed the
understanding of the Philippine people in 1986. The last direct military action of the U.S. in the region was the use of Subic base as the staging
ground for Desert Shield and Desert Storm during the Gulf War. 331 In 1991, the Philippine Senate rejected the successor treaty of the 1947
MBA that would have allowed the continuation of U.S. bases in the Philippines.
Henceforth, any proposed entry of U.S. forces into the Philippines had to evolve likewise, taking into consideration the subsisting
agreements between both parties, the rejection of the 1991 proposal, and a concrete understanding of what was constitutionally restricted.
This trend birthed the VFA which, as discussed, has already been upheld by this Court. AaCTcI
The latest agreement is EDCA, which proposes a novel concept termed "Agreed Locations."
By definition, Agreed Locations are
facilities and areas that are provided by the Government of the Philippines through the AFP and that United States forces, United
States contractors, and others as mutually agreed, shall have the right to access and use pursuant to this Agreement. Such Agreed
Locations may be listed in an annex to be appended to this Agreement, and may be further described in implementing arrangements. 332
Preliminarily, respondent already claims that the proviso that the Philippines shall retain ownership of and title to the Agreed Locations
means that EDCA is "consistent with Article II of the VFA which recognizes Philippine sovereignty and jurisdiction over locations within
Philippine territory." 333
By this interpretation, respondent acknowledges that the contention of petitioners springs from an understanding that the Agreed
Locations merely circumvent the constitutional restrictions. Framed differently, the bone of contention is whether the Agreed Locations are,
from a legal perspective, foreign military facilities or bases. This legal framework triggers Section 25, Article XVIII, and makes Senate
concurrence a sine qua non.
Article III of EDCA provides for Agreed Locations, in which the U.S. is authorized by the Philippines to "conduct the following activities:
"training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels and
aircraft; temporary accommodation of personnel; communications; prepositioning of equipment, supplies and materiel; deploying forces and
materiel; and such other activities as the Parties may agree."
This creation of EDCA must then be tested against a proper interpretation of the Section 25 restriction.
d. Reasons for the constitutional
requirements and legal
standards for constitutionally
compatible military bases and
facilities
Section 25 does not de ne what is meant by a "foreign military facility or base." While it speci cally alludes to U.S. military facilities and
bases that existed during the framing of the Constitution, the provision was clearly meant to apply to those bases existing at the time and to
any future facility or base. The basis for the restriction must rst be deduced from the spirit of the law, in order to set a standard for the
application of its text, given the particular historical events preceding the agreement.
Once more, we must look to the 1986 Constitutional Commissioners to glean, from their collective wisdom, the intent of Section 25.
Their speeches are rich with history and wisdom and present a clear picture of what they considered in the crafting the provision.
SPEECH OF COMMISSIONER REGALADO 334
xxx xxx xxx
We have been regaled here by those who favor the adoption of the anti-bases provisions with what purports to be an objective
presentation of the historical background of the military bases in the Philippines. Care appears, however, to have been taken to underscore
the inequity in their inception as well as their implementation , as to seriously re ect on the supposed objectivity of the report.
Pronouncements of military and civilian o cials shortly after World War II are quoted in support of the proposition on neutrality ;
regrettably, the implication is that the same remains valid today, as if the world and international activity stood still for the last 40 years.
We have been given inspired lectures on the effect of the presence of the military bases on our sovereignty —
whether in its legal or political sense is not clear — and the theory that any country with foreign bases in its territory
cannot claim to be fully sovereign or completely independent.
independent I was not aware that the concepts of sovereignty and independence
have now assumed the totality principle, such that a willing assumption of some delimitations in the exercise of some aspects thereof
would put that State in a lower bracket of nationhood.
xxx xxx xxx
We have been receiving a continuous in ux of materials on the pros and cons on the advisability of having military bases within our
shores. Most of us who, only about three months ago, were just mulling the prospects of these varying contentions are now expected, like
armchair generals, to decide not only on the geopolitical aspects and contingent implications of the military bases but also on their political,
social, economic and cultural impact on our national life. We are asked to answer a plethora of questions, such as: 1) whether the bases are
magnets of nuclear attack or are deterrents to such attack; 2) whether an alliance or mutual defense treaty is a derogation of our national
sovereignty; 3) whether criticism of us by Russia, Vietnam and North Korea is outweighed by the support for us of the ASEAN countries, the
United States, South Korea, Taiwan, Australia and New Zealand; and 4) whether the social, moral and legal problems spawned by the
military bases and their operations can be compensated by the economic bene ts outlined in papers which have been furnished recently to
all of us. 335EcTCAD
xxx xxx xxx

Of course, one side of persuasion has submitted categorical, unequivocal and forceful assertions of their positions. They are entitled
to the luxury of the absolutes. We are urged now to adopt the proposed declaration as a "golden," "unique" and "last"
opportunity for Filipinos to assert their sovereign rights.
rights Unfortunately, I have never been enchanted by superlatives, much less for
the applause of the moment or the ovation of the hour. Nor do I look forward to any glorious summer after a winter of political discontent.
Hence, if I may join Commissioner Laurel, I also invoke a caveat not only against the tyranny of labels but also the tyranny of slogans. 336

xxx xxx xxx
SPEECH OF COMMISSIONER SUAREZ 337
MR. SUAREZ: Thank you, Madam President.
I am quite satis ed that the crucial issues involved in the resolution of the problem of the removal of foreign bases from the
Philippines have been adequately treated by previous speakers. Let me, therefore, just recapitulate the arguments adduced in favor of a
foreign bases-free Philippines:
1. That every nation should be free to shape its own destiny without outside interference;
interference
2. That no lasting peace and no true sovereignty would ever be achieved so long as there are foreign military forces in our country;
3. That the presence of foreign military bases deprives us of the very substance of national sovereignty and this is a constant
source of national embarrassment and an insult to our national dignity and self-respect as a nation;
4. That these foreign military bases unnecessarily expose our country to devastating nuclear attacks;
attacks
5. That these foreign military bases create social problems and are designed to perpetuate the strangle-hold of United States interests in
our national economy and development;
6. That the extraterritorial rights enjoyed by these foreign bases operate to deprive our country of jurisdiction over civil and
criminal offenses committed within our own national territory and against Filipinos;
7. That the bases agreements are colonial impositions and dictations upon our helpless country; and
8. That on the legal viewpoint and in the ultimate analysis, all the bases agreements are null and void ab initio, especially because they
did not count the sovereign consent and will of the Filipino people. 338
xxx xxx xxx
In the real sense, Madam President, if we in the Commission could accommodate the provisions I have cited, what is our objection to
include in our Constitution a matter as priceless as the nationalist values we cherish? A matter of the gravest concern for the safety
and survival of this nation indeed deserves a place in our Constitution.
xxx xxx xxx
. . . Why should we bargain away our dignity and our self-respect as a nation and the future of generations to come with thirty pieces of
silver? 339
SPEECH OF COMMISSIONER BENNAGEN 340
xxx xxx xxx
The underlying principle of military bases and nuclear weapons wherever they are found and whoever owns them is that those are
for killing people or for terrorizing humanity . This objective by itself at any point in history is morally repugnant. This alone is reason
enough for us to constitutionalize the ban on foreign military bases and on nuclear weapons. 341
SPEECH OF COMMISSIONER BACANI 342
xxx xxx xxx
. . . Hence, the remedy to prostitution does not seem to be primarily to remove the bases because even if the bases are removed,
the girls mired in poverty will look for their clientele elsewhere. The remedy to the problem of prostitution lies primarily elsewhere — in an
alert and concerned citizenry, a healthy economy and a sound education in values. 343
SPEECH OF COMMISSIONER JAMIR 344
xxx xxx xxx
One of the reasons advanced against the maintenance of foreign military bases here is that they impair portions of
our sovereignty . While I agree that our country's sovereignty should not be impaired, I also hold the view that there are times when it is
necessary to do so according to the imperatives of national interest. There are precedents to this effect. Thus, during World War II, England
leased its bases in the West Indies and in Bermuda for 99 years to the United States for its use as naval and air bases. It was done in
consideration of 50 overaged destroyers which the United States gave to England for its use in the Battle of the Atlantic.
A few years ago, England gave the Island of Diego Garcia to the United States for the latter's use as a naval base in the Indian Ocean.
About the same time, the United States obtained bases in Spain, Egypt and Israel. In doing so, these countries, in effect, contributed to the
launching of a preventive defense posture against possible trouble in the Middle East and in the Indian Ocean for their own protection. 345
SPEECH OF COMMISSIONER TINGSON 346
xxx xxx xxx
In the case of the Philippines and the other Southeast Asian nations, the presence of American troops in the country is a projection of
America's security interest. Enrile said that nonetheless, they also serve, although in an incidental and secondary way, the security interest of
the Republic of the Philippines and the region. Yes, of course, Mr. Enrile also echoes the sentiments of most of us in this Commission,
namely: It is ideal for us as an independent and sovereign nation to ultimately abrogate the RP-US military treaty and, at
the right time, build our own air and naval might. might 347
xxx xxx xxx
Allow me to say in summation that I am for the retention of American military bases in the Philippines provided that
such an extension from one period to another shall be concluded upon concurrence of the parties, and such extension
shall be based on justice, the historical amity of the people of the Philippines and the United States and their common
defense interest.
interest 348
SPEECH OF COMMISSIONER ALONTO 349
xxx xxx xxx
Madam President, sometime ago after this Commission started with this task of framing a constitution, I read a statement of
President Aquino to the effect that she is for the removal of the U.S. military bases in this country but that the removal of the U.S. military
bases should not be done just to give way to other foreign bases. Today, there are two world superpowers, both vying to control any and all
countries which have importance to their strategy for world domination. The Philippines is one such country.
Madam President, I submit that I am one of those ready to completely remove any vestiges of the days of enslavement,
enslavement
but not prepared to erase them if to do so would merely leave a vacuum to be occupied by a far worse type. 350
SPEECH OF COMMISSIONER GASCON 351
xxx xxx xxx
Let us consider the situation of peace in our world today. Consider our brethren in the Middle East, in Indo-China, Central America, in
South Africa — there has been escalation of war in some of these areas because of foreign intervention which views these con icts through
the narrow prism of the East-West con ict. The United States bases have been used as springboards for intervention in some of
these con icts. We should not allow ourselves to be party to the warlike mentality of these foreign interventionists . We
must always be on the side of peace — this means that we should not always rely on military solution. 352
xxx xxx xxx
. . . The United States bases, therefore, are springboards for intervention in our own internal affairs and in the affairs of other
nations in this region .
xxx xxx xxx
Thus, I rmly believe that a self-respecting nation should safeguard its fundamental freedoms which should logically be declared in
black and white in our fundamental law of the land — the Constitution. Let us express our desire for national sovereignty so we
may be able to achieve national self-determination . Let us express our desire for neutrality so that we may be able to follow active
nonaligned independent foreign policies. Let us express our desire for peace and a nuclear-free zone so we may be able to pursue a healthy
and tranquil existence, to have peace that is autonomous and not imposed. 353 AScHCD
xxx xxx xxx

SPEECH OF COMMISSIONER TADEO 354
Para sa magbubukid, ano ba ang kahulugan ng U.S. military bases? Para sa magbubukid, ang kahulugan nito ay
pagkaalipin.
pagkaalipin Para sa magbubukid, ang pananatili ng U.S. military bases ay tinik sa dibdib ng sambayanang Pilipinong patuloy na
nakabaon.
nakabaon Para sa sambayanang magbubukid, ang ibig sabihin ng U.S. military bases ay batong pabigat na patuloy na pinapasan
ng sambayanang Pilipino . Para sa sambayanang magbubukid, ang pananatili ng U.S. military bases ay isang nagdudumilat na
katotohanan ng patuloy na paggahasa ng imperyalistang Estados Unidos sa ating Inang Bayan — economically, politically
and culturally . Para sa sambayanang magbubukid, ang U.S. military bases ay kasingkahulugan ng nuclear weapon — ang
kahulugan ay magneto ng isang nuclear war.
war Para sa sambayanang magbubukid, ang kahulugan ng U.S. military bases ay
isang salot . 355
SPEECH OF COMMISSIONER QUESADA 356
xxx xxx xxx
The drift in the voting on issues related to freeing ourselves from the instruments of domination and subservience has
clearly been defined these past weeks.
xxx xxx xxx
So for the record, Mr. Presiding O cer, I would like to declare my support for the committee's position to enshrine in the Constitution
a fundamental principle forbidding foreign military bases, troops or facilities in any part of the Philippine territory as a clear and concrete
manifestation of our inherent right to national self-determination, independence and sovereignty .
Mr. Presiding O cer, I would like to relate now these attributes of genuine nationhood to the social cost of allowing foreign countries
to maintain military bases in our country. Previous speakers have dwelt on this subject, either to highlight its importance in relation to the
other issues or to gloss over its significance and make this a part of future negotiations. 357
xxx xxx xxx
Mr. Presiding O cer, I feel that banning foreign military bases is one of the solutions and is the response of the Filipino people
against this condition and other conditions that have already been clearly and emphatically discussed in past deliberations. The deletion,
therefore, of Section 3 in the Constitution we are drafting will have the following implications:
First, the failure of the Constitutional Commission to decisively respond to the continuing violation of our territorial integrity
via the military bases agreement which permits the retention of U.S. facilities within the Philippine soil over which our
authorities have no exclusive jurisdiction contrary to the accepted definition of the exercise of sovereignty .
Second, consent by this forum, this Constitutional Commission, to an exception in the application of a provision in the Bill of
Rights that we have just drafted regarding equal application of the laws of the land to all inhabitants, permanent or otherwise, within its
territorial boundaries.
Third, the continued exercise by the United States of extraterritoriality despite the condemnations of such practice by the
world community of nations in the light of overwhelming international approval of eradicating all vestiges of colonialism. 358
xxx xxx xxx
Sixth, the dei cation of a new concept called pragmatic sovereignty , in the hope that such can be wielded to force the United
States government to concede to better terms and conditions concerning the military bases agreement, including the transfer of
complete control to the Philippine government of the U.S. facilities,
facilities while in the meantime we have to suffer all existing indignities
and disrespect towards our rights as a sovereign nation. AcICHD
xxx xxx xxx

Eighth, the utter failure of this forum to view the issue of foreign military bases as essentially a question of
sovereignty which does not require in-depth studies or analyses and which this forum has, as a constituent assembly drafting a
constitution, the expertise and capacity to decide on except that it lacks the political will that brought it to existence and now engages in an
elaborate scheme of buck-passing.
xxx xxx xxx
Without any doubt we can establish a new social order in our country, if we reclaim, restore, uphold and defend our national
sovereignty. National sovereignty is what the military bases issue is all about. about It is only the sovereign people exercising their
national sovereignty who can design an independent course and take full control of their national destiny. 359
SPEECH OF COMMISSIONER PADILLA 360
xxx xxx xxx
Mr. Presiding O cer, in advocating the majority committee report, speci cally Sections 3 and 4 on neutrality, nuclear and bases-free
country, some views stress sovereignty of the Republic and even invoke survival of the Filipino nation and people. people 361
REBUTTAL OF COMMISSIONER NOLLEDO 362
xxx xxx xxx
The anachronistic and ephemeral arguments against the provisions of the committee report to dismantle the American bases after
1991 only show the urgent need to free our country from the entangling alliance with any power bloc. 363
xxx xxx xxx
. . . Mr. Presiding O cer, it is not necessary for us to possess expertise to know that the so-called RP-US Bases Agreement will expire in
1991, that it infringes on our sovereignty and jurisdiction as well as national dignity and honor, that it goes against the UN policy of
disarmament and that it constitutes unjust intervention in our internal affairs.
affairs 364 (Emphases Supplied)
The Constitutional Commission eventually agreed to allow foreign military bases, troops, or facilities, subject to the provisions of Section
25. It is thus important to read its discussions carefully. From these discussions, we can deduce three legal standards that were articulated by
the Constitutional Commission Members. These are characteristics of any agreement that the country, and by extension this Court, must
ensure are observed. We can thereby determine whether a military base or facility in the Philippines, which houses or is accessed by foreign
military troops, is foreign or remains a Philippine military base or facility. The legal standards we nd applicable are: independence from foreign
control, sovereignty and applicable law, and national security and territorial integrity.
i. First standard: independence
from foreign control
Very clearly, much of the opposition to the U.S. bases at the time of the Constitution's drafting was aimed at asserting Philippine
independence from the U.S., as well as control over our country's territory and military.
Under the Civil Code, there are several aspects of control exercised over property.
Property is classi ed as private or public. 365 It is public if "intended for public use, such as roads, canals, rivers, torrents, ports and
bridges constructed by the State, banks, shores, roadsteads, and others of similar character[,]" or "[t]hose which belong to the State, without
being for public use, and are intended for some public service or for the development of the national wealth." 366
Quite clearly, the Agreed Locations are contained within a property for public use, be it within a government military camp or property
that belongs to the Philippines.
Once ownership is established, then the rights of ownership ow freely. Article 428 of the Civil Code provides that "[t]he owner has the
right to enjoy and dispose of a thing, without other limitations than those established by law." Moreover, the owner "has also a right of action
against the holder and possessor of the thing in order to recover it."
Philippine civil law therefore accords very strong rights to the owner of property, even against those who hold the property. Possession,
after all, merely raises a disputable presumption of ownership, which can be contested through normal judicial processes. 367
In this case, EDCA explicitly provides that ownership of the Agreed Locations remains with the Philippine government. 368 What U.S.
personnel have a right to, pending mutual agreement, is access to and use of these locations. 369
The right of the owner of the property to allow access and use is consistent with the Civil Code, since the owner may dispose of the
property in whatever way deemed t, subject to the limits of the law. So long as the right of ownership itself is not transferred, then whatever
rights are transmitted by agreement does not completely divest the owner of the rights over the property, but may only limit them in
accordance with law.
Hence, even control over the property is something that an owner may transmit freely. This act does not translate into the full transfer of
ownership, but only of certain rights. In Roman Catholic Apostolic Administrator of Davao, Inc. v. Land Registration Commission , we stated that
the constitutional proscription on property ownership is not violated despite the foreign national's control over the property. 370
EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of use and access. Under its pertinent provisions, it is the
Designated Authority of the Philippines that shall, when requested, assist in facilitating transit or access to public land and facilities. 371 The
activities carried out within these locations are subject to agreement as authorized by the Philippine government. 372 Granting the U.S.
operational control over these locations is likewise subject to EDCA's security mechanisms, which are bilateral procedures involving Philippine
consent and cooperation. 373 Finally, the Philippine Designated Authority or a duly designated representative is given access to the Agreed
Locations. 374 TAIaHE
To our mind, these provisions do not raise the spectre of U.S. control, which was so feared by the Constitutional Commission. In fact,
they seem to have been the product of deliberate negotiation from the point of view of the Philippine government, which balanced
constitutional restrictions on foreign military bases and facilities against the security needs of the country. In the 1947 MBA, the U.S. forces
had "the right, power and authority . . . to construct (including dredging and lling), operate, maintain, utilize, occupy, garrison and control the
bases." 375 No similarly explicit provision is present in EDCA.
Nevertheless, the threshold for allowing the presence of foreign military facilities and bases has been raised by the present Constitution.
Section 25 is explicit that foreign military bases, troops, or facilities shall not be allowed in the Philippines, except under a treaty duly concurred
in by the Senate. Merely stating that the Philippines would retain ownership would do violence to the constitutional requirement if the Agreed
Locations were simply to become a less obvious manifestation of the U.S. bases that were rejected in 1991.
When debates took place over the military provisions of the Constitution, the committee rejected a speci c provision proposed by
Commissioner Sarmiento. The discussion illuminates and provides context to the 1986 Constitutional Commission's vision of control and
independence from the U.S., to wit:
MR. SARMIENTO: Madam President, my proposed amendment reads as follows: "THE STATE SHALL ESTABLISH AND MAINTAIN
AN INDEPENDENT AND SELF-RELIANT ARMED FORCES OF THE PHILIPPINES." Allow me to brie y explain, Madam President. The Armed
Forces of the Philippines is a vital component of Philippine society depending upon its training, orientation and support. It will either be the
people's protector or a staunch supporter of a usurper or tyrant, local and foreign interest. The Armed Forces of the Philippines' past
and recent experience shows it has never been independent and self-reliant.self-reliant Facts, data and statistics will show that it has been
substantially dependent upon a foreign power. In March 1968, Congressman Barbero, himself a member of the Armed Forces of the
Philippines, revealed top secret documents showing what he described as U.S. dictation over the affairs of the Armed Forces of the
Philippines. He showed that under existing arrangements, the United States unilaterally determines not only the types and
quantity of arms and equipments that our armed forces would have, but also the time when these items are to be made
available to us. It is clear, as he pointed out, that the composition, capability and schedule of development of the Armed
Forces of the Philippines is under the effective control of the U.S. government.
government 376 (Emphases supplied)
Commissioner Sarmiento proposed a motherhood statement in the 1987 Constitution that would assert "independent" and "self-reliant"
armed forces. This proposal was rejected by the committee, however. As Commissioner De Castro asserted, the involvement of
the Philippine military with the U.S. did not, by itself, rob the Philippines of its real independence.
independence He made reference to the context
of the times: that the limited resources of the Philippines and the current insurgency at that time necessitated a strong military relationship
with the U.S. He said that the U.S. would not in any way control the Philippine military despite this relationship and the fact that the former
would furnish military hardware or extend military assistance and training to our military. Rather, he claimed that the proposal was in
compliance with the treaties between the two states.
MR. DE CASTRO: If the Commissioner will take note of my speech on U.S. military bases on 12 September 1986, I spoke on the self-
reliance policy of the armed forces. However, due to very limited resources, the only thing we could do is manufacture small arms
ammunition. We cannot blame the armed forces. We have to blame the whole Republic of the Philippines for failure to provide the
necessary funds to make the Philippine Armed Forces self-reliant. Indeed that is a beautiful dream. And I would like it that way. But as of
this time, ghting an insurgency case, a rebellion in our country — insurgency — and with very limited funds and very limited number of men,
it will be quite impossible for the Philippines to appropriate the necessary funds therefor. However, if we say that the U.S. government
is furnishing us the military hardware, it is not control of our armed forces or of our government. It is in compliance with
the Mutual Defense Treaty . It is under the military assistance program that it becomes the responsibility of the United States to furnish
us the necessary hardware in connection with the military bases agreement. Please be informed that there are three (3) treaties connected
with the military bases agreement; namely: the RP-US Military Bases Agreement, the Mutual Defense Treaty and the Military Assistance
Program.

My dear Commissioner, when we enter into a treaty and we are furnished the military hardware pursuant to that
treaty, it is not in control of our armed forces nor control of our government . True indeed, we have military o cers trained in the
U.S. armed forces school. This is part of our Military Assistance Program, but it does not mean that the minds of our military o cers are for
the U.S. government, no. I am one of those who took four courses in the United States schools, but I assure you, my mind is for the Filipino
people. Also, while we are sending military o cers to train or to study in U.S. military schools, we are also sending our o cers to study in
other military schools such as in Australia, England and in Paris. So, it does not mean that when we send military o cers to United States
schools or to other military schools, we will be under the control of that country. We also have foreign o cers in our schools, we in the
Command and General Staff College in Fort Bonifacio and in our National Defense College, also in Fort Bonifacio. 377 (Emphases supplied)
This logic was accepted in Tañada v. Angara , in which the Court ruled that independence does not mean the absence of foreign
participation:
Furthermore, the constitutional policy of a "self-reliant and independent national economy" does not necessarily rule out the
entry of foreign investments, goods and services.
services It contemplates neither "economic seclusion" nor "mendicancy in the international
community." As explained by Constitutional Commissioner Bernardo Villegas, sponsor of this constitutional policy: cDHAES
Economic self reliance is a primary objective of a developing country that is keenly aware of overdependence on external
assistance for even its most basic needs. It does not mean autarky or economic seclusion; rather, it means avoiding
mendicancy in the international community. Independence refers to the freedom from undue foreign control of the
national economy, especially in such strategic industries as in the development of natural resources and public utilities. 378
(Emphases supplied)
The heart of the constitutional restriction on foreign military facilities and bases is therefore the assertion of independence from the U.S.
and other foreign powers, as independence is exhibited by the degree of foreign control exerted over these areas. The essence of that
independence is self-governance and self-control. 379 Independence itself is "[t]he state or condition of being free from dependence,
subjection, or control." 380
Petitioners assert that EDCA provides the U.S. extensive control and authority over Philippine facilities and locations, such that the
agreement effectively violates Section 25 of the 1987 Constitution. 381
Under Article VI (3) of EDCA, U.S. forces are authorized to act as necessary for "operational control and defense." The term "operational
control" has led petitioners to regard U.S. control over the Agreed Locations as unquali ed and, therefore, total. 382 Petitioners contend that the
word "their" refers to the subject "Agreed Locations."
This argument misreads the text, which is quoted below:
United States forces are authorized to exercise all rights and authorities within Agreed Locations that are necessary for their
operational control or defense, including taking appropriate measure to protect United States forces and United States contractors. The
United States should coordinate such measures with appropriate authorities of the Philippines.
A basic textual construction would show that the word "their," as understood above, is a possessive pronoun for the subject "they," a
third-person personal pronoun in plural form. Thus, "their" cannot be used for a non-personal subject such as "Agreed Locations." The simple
grammatical conclusion is that "their" refers to the previous third-person plural noun, which is "United States forces." This conclusion is in line
with the definition of operational control.
a. U.S. operational control as the
exercise of authority over U.S.
personnel, and not over the
Agreed Locations
Operational control, as cited by both petitioner and respondents, is a military term referring to
[t]he authority to perform those functions of command over subordinate forces involving organizing and employing commands and forces,
assigning tasks, designating objective, and giving authoritative direction necessary to accomplish the mission. 383
At times, though, operational control can mean something slightly different. In JUSMAG Philippines v. National Labor Relations
Commission, the Memorandum of Agreement between the AFP and JUSMAG Philippines defined the term as follows: 384
The term "Operational Control" includes, but is not limited to, all personnel administrative actions, such as: hiring recommendations;
firing recommendations; position classification; discipline; nomination and approval of incentive awards; and payroll computation.
Clearly, traditional standards de ne "operational control" as personnel control. Philippine law, for instance, deems operational control as
one exercised by police o cers and civilian authorities over their subordinates and is distinct from the administrative control that they also
exercise over police subordinates. 385 Similarly, a municipal mayor exercises operational control over the police within the municipal
government, 386 just as city mayor possesses the same power over the police within the city government. 387 ASEcHI
Thus, the legal concept of operational control involves authority over personnel in a commander-subordinate relationship and does not
include control over the Agreed Locations in this particular case. Though not necessarily stated in EDCA provisions, this interpretation is readily
implied by the reference to the taking of "appropriate measures to protect United States forces and United States contractors."
It is but logical, even necessary, for the U.S. to have operational control over its own forces, in much the same way that the Philippines
exercises operational control over its own units.
For actual operations, EDCA is clear that any activity must be planned and pre-approved by the MDB-SEB. 388 This provision evinces the
partnership aspect of EDCA, such that both stakeholders have a say on how its provisions should be put into effect.
b. Operational control vis-à-vis
effective command and control
Petitioners assert that beyond the concept of operational control over personnel, qualifying access to the Agreed Locations by the
Philippine Designated Authority with the phrase "consistent with operational safety and security requirements in accordance with agreed
procedures developed by the Parties" leads to the conclusion that the U.S. exercises effective control over the Agreed Locations. 389 They
claim that if the Philippines exercises possession of and control over a given area, its representative should not have to be authorized by a
special provision. 390
For these reasons, petitioners argue that the "operational control" in EDCA is the "effective command and control" in the 1947 MBA. 391 In
their Memorandum, they distinguish effective command and control from operational control in U.S. parlance. 392 Citing the Doctrine for the
Armed Forces of the United States, Joint Publication 1, "command and control (C2)" is de ned as "the exercise of authority and direction by a
properly designated commander over assigned and attached forces in the accomplishment of the mission . . . ." 393 Operational control, on the
other hand, refers to "[t]hose functions of command over assigned forces involving the composition of subordinate forces, the assignment of
tasks, the designation of objectives, the overall control of assigned resources, and the full authoritative direction necessary to accomplish the
mission." 394
Two things demonstrate the errors in petitioners' line of argument.
Firstly, the phrase "consistent with operational safety and security requirements in accordance with agreed procedures developed by the
Parties" does not add any quali cation beyond that which is already imposed by existing treaties. To recall, EDCA is based upon prior treaties,
namely the VFA and the MDT. 395 Treaties are in themselves contracts from which rights and obligations may be claimed or waived. 396 In this
particular case, the Philippines has already agreed to abide by the security mechanisms that have long been in place between the U.S. and the
Philippines based on the implementation of their treaty relations. 397
Secondly, the full document cited by petitioners contradicts the equation of "operational control" with "effective command and control,"
since it defines the terms quite differently, viz.: 398
Command and control encompasses the exercise of authority, responsibility, and direction by a commander over assigned and
attached forces to accomplish the mission. Command at all levels is the art of motivating and directing people and organizations into
action to accomplish missions. Control is inherent in command. To control is to manage and direct forces and functions consistent with a
commander's command authority. Control of forces and functions helps commanders and staffs compute requirements, allocate means,
and integrate efforts. Mission command is the preferred method of exercising C2. A complete discussion of tenets, organization, and
processes for effective C2 is provided in Section B, "Command and Control of Joint Forces," of Chapter V "Joint Command and Control."
Operational control is defined thus: 399
OPCON is able to be delegated from a lesser authority than COCOM. It is the authority to perform those functions of command over
subordinate forces involving organizing and employing commands and forces, assigning tasks, designating objectives, and giving
authoritative direction over all aspects of military operations and joint training necessary to accomplish the mission. It should be delegated
to and exercised by the commanders of subordinate organizations; normally, this authority is exercised through subordinate JFCs, Service,
and/or functional component commanders. OPCON provides authority to organize and employ commands and forces as the commander
considers necessary to accomplish assigned missions. It does not include authoritative direction for logistics or matters of administration,
discipline, internal organization, or unit training. These elements of COCOM must be speci cally delegated by the CCDR. OPCON does
include the authority to delineate functional responsibilities and operational areas of subordinate JFCs. ITAaHc
Operational control is therefore the delegable aspect of combatant command, while command and control is the overall power and
responsibility exercised by the commander with reference to a mission. Operational control is a narrower power and must be given, while
command and control is plenary and vested in a commander. Operational control does not include the planning, programming, budgeting, and
execution process input; the assignment of subordinate commanders; the building of relationships with Department of Defense agencies; or
the directive authority for logistics, whereas these factors are included in the concept of command and control. 400
This distinction, found in the same document cited by petitioners, destroys the very foundation of the arguments they have built: that
EDCA is the same as the MBA.
c. Limited operational control
over the Agreed Locations only
for construction activities
As petitioners assert, EDCA indeed contains a speci c provision that gives to the U.S. operational control within the Agreed Locations
during construction activities. 401 This exercise of operational control is premised upon the approval by the MDB and the SEB of the
construction activity through consultation and mutual agreement on the requirements and standards of the construction, alteration, or
improvement. 402
Despite this grant of operational control to the U.S., it must be emphasized that the grant is only for construction activities. The narrow
and limited instance wherein the U.S. is given operational control within an Agreed Location cannot be equated with foreign military control,
which is so abhorred by the Constitution.
The clear import of the provision is that in the absence of construction activities, operational control over the Agreed Location is vested
in the Philippine authorities. This meaning is implicit in the speci c grant of operational control only during construction activities. The principle
of constitutional construction, "expressio unius est exclusio alterius," means the failure to mention the thing becomes the ground for inferring
that it was deliberately excluded. 403 Following this construction, since EDCA mentions the existence of U.S. operational control over the
Agreed Locations for construction activities, then it is quite logical to conclude that it is not exercised over other activities. cSaATC
Limited control does not violate the Constitution. The fear of the commissioners was total control, to the point that the foreign military
forces might dictate the terms of their acts within the Philippines. 404 More important, limited control does not mean an abdication or
derogation of Philippine sovereignty and legal jurisdiction over the Agreed Locations. It is more akin to the extension of diplomatic courtesies
and rights to diplomatic agents, 405 which is a waiver of control on a limited scale and subject to the terms of the treaty.
This point leads us to the second standard envisioned by the framers of the Constitution: that the Philippines must retain sovereignty
and jurisdiction over its territory.
ii. Second standard: Philippine
sovereignty and applicable law
EDCA states in its Preamble the "understanding for the United States not to establish a permanent military presence or base in the
territory of the Philippines." Further on, it likewise states the recognition that "all United States access to and use of facilities and areas will be
at the invitation of the Philippines and with full respect for the Philippine Constitution and Philippine laws."
The sensitivity of EDCA provisions to the laws of the Philippines must be seen in light of Philippine sovereignty and jurisdiction over the
Agreed Locations.
Sovereignty is the possession of sovereign power, 406 while jurisdiction is the conferment by law of power and authority to apply the law.
407 Article I of the 1987 Constitution states:
The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories
over which the Philippines has sovereignty or jurisdiction , consisting of its terrestrial, uvial, and aerial domains, including its territorial
sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (Emphasis supplied)
From the text of EDCA itself, Agreed Locations are territories of the Philippines that the U.S. forces are allowed to access and use. 408 By
withholding ownership of these areas and retaining unrestricted access to them, the government asserts sovereignty over its territory. That
sovereignty exists so long as the Filipino people exist. 409
Signi cantly, the Philippines retains primary responsibility for security with respect to the Agreed Locations. 410 Hence, Philippine law
remains in force therein, and it cannot be said that jurisdiction has been transferred to the U.S. Even the previously discussed necessary
measures for operational control and defense over U.S. forces must be coordinated with Philippine authorities. 411
Jurisprudence bears out the fact that even under the former legal regime of the MBA, Philippine laws continue to be in force within the
bases. 412 The difference between then and now is that EDCA retains the primary jurisdiction of the Philippines over the security of the Agreed
Locations, an important provision that gives it actual control over those locations. Previously, it was the provost marshal of the U.S. who kept
the peace and enforced Philippine law in the bases. In this instance, Philippine forces act as peace o cers, in stark contrast to the 1947 MBA
provisions on jurisdiction. 413
iii. Third standard: must respect
national security and territorial
integrity
The last standard this Court must set is that the EDCA provisions on the Agreed Locations must not impair or threaten the national
security and territorial integrity of the Philippines.
This Court acknowledged in Bayan v. Zamora that the evolution of technology has essentially rendered the prior notion of permanent
military bases obsolete.
Moreover, military bases established within the territory of another state is no longer viable because of the alternatives offered by
new means and weapons of warfare such as nuclear weapons, guided missiles as well as huge sea vessels that can stay a oat in the sea
even for months and years without returning to their home country. These military warships are actually used as substitutes for a land-
home base not only of military aircraft but also of military personnel and facilities. Besides, vessels are mobile as compared to a land-based
military headquarters. 414
The VFA serves as the basis for the entry of U.S. troops in a limited scope. It does not allow, for instance, the re-establishment of the
Subic military base or the Clark Air Field as U.S. military reservations. In this context, therefore, this Court has interpreted the restrictions on
foreign bases, troops, or facilities as three independent restrictions. In accord with this interpretation, each restriction must have its own
qualification.
Petitioners quote from the website http://en.wikipedia.org to de ne what a military base is. 415 While the source is not authoritative,
petitioners make the point that the Agreed Locations, by granting access and use to U.S. forces and contractors, are U.S. bases under a
different name. 416 More important, they claim that the Agreed Locations invite instances of attack on the Philippines from enemies of the U.S.
417
We believe that the raised fear of an attack on the Philippines is not in the realm of law, but of politics and policy. At the very least, we can
say that under international law, EDCA does not provide a legal basis for a justified attack on the Philippines. cHDAIS
In the rst place, international law disallows any attack on the Agreed Locations simply because of the presence of U.S. personnel.
Article 2 (4) of the United Nations Charter states that "All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United
Nations." 418 Any unlawful attack on the Philippines breaches the treaty, and triggers Article 51 of the same charter, which guarantees the
inherent right of individual or collective self-defence.
Moreover, even if the lawfulness of the attack were not in question, international humanitarian law standards prevent participants in an
armed con ict from targeting non-participants. International humanitarian law, which is the branch of international law applicable to armed
con ict, expressly limits allowable military conduct exhibited by forces of a participant in an armed con ict. 419 Under this legal regime,
participants to an armed con ict are held to speci c standards of conduct that require them to distinguish between combatants and non-
combatants, 420 as embodied by the Geneva Conventions and their Additional Protocols. 421
Corollary to this point, Professor John Woodcliffe, professor of international law at the University of Leicester, noted that there is no legal
consensus for what constitutes a base, as opposed to other terms such as "facilities" or "installation." 422 In strategic literature, "base" is
de ned as an installation "over which the user State has a right to exclusive control in an extraterritorial sense." 423 Since this de nition would
exclude most foreign military installations, a more important distinction must be made.
For Woodcliffe, a type of installation excluded from the de nition of "base" is one that does not ful ll a combat role. He cites an example
of the use of the territory of a state for training purposes, such as to obtain experience in local geography and climactic conditions or to carry
out joint exercises. 424 Another example given is an advanced communications technology installation for purposes of information gathering
and communication. 425 Unsurprisingly, he deems these non-combat uses as borderline situations that would be excluded from the functional
understanding of military bases and installations. 426 EATCcI
By virtue of this ambiguity, the laws of war dictate that the status of a building or person is presumed to be protected, unless proven
otherwise. 427 Moreover, the principle of distinction requires combatants in an armed con ict to distinguish between lawful targets 428 and
protected targets. 429 In an actual armed con ict between the U.S. and a third state, the Agreed Locations cannot be considered U.S. territory,
since ownership of territory even in times of armed conflict does not change. 430
Hence, any armed attack by forces of a third state against an Agreed Location can only be legitimate under international humanitarian
law if it is against a bona de U.S. military base, facility, or installation that directly contributes to the military effort of the U.S. Moreover, the
third state's forces must take all measures to ensure that they have complied with the principle of distinction (between combatants and non-
combatants).
There is, then, ample legal protection for the Philippines under international law that would ensure its territorial integrity and national
security in the event an Agreed Location is subjected to attack. As EDCA stands, it does not create the situation so feared by petitioners — one
in which the Philippines, while not participating in an armed conflict, would be legitimately targeted by an enemy of the U.S. 431
In the second place, this is a policy question about the wisdom of allowing the presence of U.S. personnel within our territory and is
therefore outside the scope of judicial review.
Evidently, the concept of giving foreign troops access to "agreed" locations, areas, or facilities within the military base of another
sovereign state is nothing new on the international plane. In fact, this arrangement has been used as the framework for several defense
cooperation agreements, such as in the following:
1. 2006 U.S.-Bulgaria Defense Cooperation Agreement 432
2. 2009 U.S.-Colombia Defense Cooperation Agreement 433
3. 2009 U.S.-Poland Status of Forces Agreement 434
4. 2014 U.S.-Australia Force Posture Agreement 435
5. 2014 U.S.-Afghanistan Security and Defense Cooperation Agreement 436
In all of these arrangements, the host state grants U.S. forces access to their military bases. 437 That access is without rental or similar
costs to the U.S. 438 Further, U.S. forces are allowed to undertake construction activities in, and make alterations and improvements to, the
agreed locations, facilities, or areas. 439 As in EDCA, the host states retain ownership and jurisdiction over the said bases. 440
In fact, some of the host states in these agreements give speci c military-related rights to the U.S. For example, under Article IV (1) of
the U.S.-Bulgaria Defense Cooperation Agreement, "the United States forces . . . are authorized access to and may use agreed facilities and
areas . . . for staging and deploying of forces and materiel, with the purpose of conducting . . . contingency operations and other missions,
including those undertaken in the framework of the North Atlantic Treaty." In some of these agreements, host countries allow U.S. forces to
construct facilities for the latter's exclusive use. 441
Troop billeting, including construction of temporary structures, is nothing new. In Lim v. Executive Secretary , the Court already upheld the
Terms of Reference of Balikatan 02-1, which authorized U.S. forces to set up "[t]emporary structures such as those for troop billeting,
classroom instruction and messing . . . during the Exercise." Similar provisions are also in the Mutual Logistics Support Agreement of 2002 and
2007, which are essentially executive agreements that implement the VFA, the MDT, and the 1953 Military Assistance Agreement. These
executive agreements similarly tackle the "reciprocal provision of logistic support, supplies, and services," 442 which include "[b]illeting, . . .
operations support (and construction and use of temporary structures incident to operations support), training services, . . . storage services, . .
. during an approved activity." 443 These logistic supplies, support and services include temporary use of "nonlethal items of military equipment
which are not designated as significant military equipment on the U.S. Munitions List, during an approved activity." 444 The first Mutual Logistics
Support Agreement has lapsed, while the second one has been extended until 2017 without any formal objection before this Court from the
Senate or any of its members.
The provisions in EDCA dealing with Agreed Locations are analogous to those in the aforementioned executive agreements. Instead of
authorizing the building of temporary structures as previous agreements have done, EDCA authorizes the U.S. to build permanent structures or
alter or improve existing ones for, and to be owned by, the Philippines. 445 EDCA is clear that the Philippines retains ownership of altered or
improved facilities and newly constructed permanent or non-relocatable structures. 446 Under EDCA, U.S. forces will also be allowed to use
facilities and areas for "training; . . .; support and related activities; . . .; temporary accommodation of personnel; communications" and agreed
activities. 447DHITCc
Concerns on national security problems that arise from foreign military equipment being present in the Philippines must likewise be
contextualized. Most significantly, the VFA already authorizes the presence of U.S. military equipment in the country. country Article VII of the
VFA already authorizes the U.S. to import into or acquire in the Philippines "equipment, materials, supplies, and other property" that will be used
"in connection with activities" contemplated therein. The same section also recognizes that "[t]itle to such property shall remain" with the US
and that they have the discretion to "remove such property from the Philippines at any time."
There is nothing novel, either, in the EDCA provision on the prepositioning and storing of "defense equipment, supplies, and materiel," 448
since these are sanctioned in the VFA. In fact, the two countries have already entered into various implementing agreements in the past that are
comparable to the present one. The Balikatan 02-1 Terms of Reference mentioned in Lim v. Executive Secretary speci cally recognizes that
Philippine and U.S. forces "may share . . . in the use of their resources, equipment and other assets." Both the 2002 and 2007 Mutual Logistics
Support Agreements speak of the provision of support and services, including the "construction and use of temporary structures incident to
operations support" and "storage services" during approved activities. 449 These logistic supplies, support, and services include the "temporary
use of . . . nonlethal items of military equipment which are not designated as signi cant military equipment on the U.S. Munitions List, during an
approved activity." 450 Those activities include "combined exercises and training, operations and other deployments" and "cooperative efforts,
such as humanitarian assistance, disaster relief and rescue operations, and maritime anti-pollution operations" within or outside Philippine
territory. 451 Under EDCA, the equipment, supplies, and materiel that will be prepositioned at Agreed Locations include "humanitarian
assistance and disaster relief equipment, supplies, and materiel." 452 Nuclear weapons are speci cally excluded from the materiel that will be
prepositioned.
Therefore, there is no basis to invalidate EDCA on fears that it increases the threat to our national security. If anything, EDCA increases
the likelihood that, in an event requiring a defensive response, the Philippines will be prepared alongside the U.S. to defend its islands and insure
its territorial integrity pursuant to a relationship built on the MDT and VFA.
CAacTH
8. Others issues and concerns

raised
A point was raised during the oral arguments that the language of the MDT only refers to mutual help and defense in the Paci c area. 453
We believe that any discussion of the activities to be undertaken under EDCA vis-à-vis the defense of areas beyond the Paci c is premature. We
note that a proper petition on that issue must be led before we rule thereon. We also note that none of the petitions or memoranda has
attempted to discuss this issue, except only to theorize that the U.S. will not come to our aid in the event of an attack outside of the Paci c.
This is a matter of policy and is beyond the scope of this judicial review.
In reference to the issue on telecommunications, su ce it to say that the initial impression of the facility adverted to does appear to be
one of those that require a public franchise by way of congressional action under Section 11, Article XII of the Constitution. As respondents
submit, however, the system referred to in the agreement does not provide telecommunications services to the public for compensation. 454 It
is clear from Article VII (2) of EDCA that the telecommunication system is solely for the use of the U.S. and not the public in general, and that
this system will not interfere with that which local operators use. Consequently, a public franchise is no longer necessary.
Additionally, the charge that EDCA allows nuclear weapons within Philippine territory is entirely speculative. It is noteworthy that the
agreement in fact speci es that the prepositioned materiel shall not include nuclear weapons. 455 Petitioners argue that only prepositioned
nuclear weapons are prohibited by EDCA; and that, therefore, the U.S. would insidiously bring nuclear weapons to Philippine territory. 456 The
general prohibition on nuclear weapons, whether prepositioned or not, is already expressed in the 1987 Constitution. 457 It would be
unnecessary or superfluous to include all prohibitions already in the Constitution or in the law through a document like EDCA.
Finally, petitioners allege that EDCA creates a tax exemption, which under the law must originate from Congress. This allegation ignores
jurisprudence on the government's assumption of tax liability. EDCA simply states that the taxes on the use of water, electricity, and public
utilities are for the account of the Philippine Government. 458 This provision creates a situation in which a contracting party assumes the tax
liability of the other. 459 In National Power Corporation v. Province of Quezon , we distinguished between enforceable and unenforceable
stipulations on the assumption of tax liability. Afterwards, we concluded that an enforceable assumption of tax liability requires the party
assuming the liability to have actual interest in the property taxed. 460 This rule applies to EDCA, since the Philippine Government stands to
bene t not only from the structures to be built thereon or improved, but also from the joint training with U.S. forces, disaster preparation, and
the preferential use of Philippine suppliers. 461 Hence, the provision on the assumption of tax liability does not constitute a tax exemption as
petitioners have posited.
Additional issues were raised by petitioners, all relating principally to provisions already su ciently addressed above. This Court takes
this occasion to emphasize that the agreement has been construed herein as to absolutely disauthorize the violation of the Constitution or any
applicable statute. On the contrary, the applicability of Philippine law is explicit in EDCA.
EPILOGUE
The fear that EDCA is a reincarnation of the U.S. bases so zealously protested by noted personalities in Philippine history arises not so
much from xenophobia, but from a genuine desire for self-determination, nationalism, and above all a commitment to ensure the independence
of the Philippine Republic from any foreign domination.
Mere fears, however, cannot curtail the exercise by the President of the Philippines of his Constitutional prerogatives in respect of
foreign affairs. They cannot cripple him when he deems that additional security measures are made necessary by the times. As it stands, the
Philippines through the Department of Foreign Affairs has led several diplomatic protests against the actions of the People's Republic of
China in the West Philippine Sea; 462 initiated arbitration against that country under the United Nations Convention on the Law of the Sea; 463 is
in the process of negotiations with the Moro Islamic Liberation Front for peace in Southern Philippines, 464 which is the subject of a current
case before this Court; and faces increasing incidents of kidnappings of Filipinos and foreigners allegedly by the Abu Sayyaf or the New
People's Army. 465 The Philippine military is conducting reforms that seek to ensure the security and safety of the nation in the years to come.
466 In the future, the Philippines must navigate a world in which armed forces ght with increasing sophistication in both strategy and
technology, while employing asymmetric warfare and remote weapons.
Additionally, our country is ghting a most terrifying enemy: the backlash of Mother Nature. The Philippines is one of the countries most
directly affected and damaged by climate change. It is no coincidence that the record-setting tropical cyclone Yolanda (internationally named
Haiyan), one of the most devastating forces of nature the world has ever seen hit the Philippines on 8 November 2013 and killed at least 6,000
people. 467 This necessitated a massive rehabilitation project. 468 In the aftermath, the U.S. military was among the rst to extend help and
support to the Philippines. IAETDc
That calamity brought out the best in the Filipinos as thousands upon thousands volunteered their help, their wealth, and their prayers to
those affected. It also brought to the fore the value of having friends in the international community.
In order to keep the peace in its archipelago in this region of the world, and to sustain itself at the same time against the destructive
forces of nature, the Philippines will need friends. Who they are, and what form the friendships will take, are for the President to decide. The only
restriction is what the Constitution itself expressly prohibits. It appears that this overarching concern for balancing constitutional requirements
against the dictates of necessity was what led to EDCA.
As it is, EDCA is not constitutionally in rm. As an executive agreement, it remains consistent with existing laws and treaties that it
purports to implement.
WHEREFORE , we hereby DISMISS the petitions.
SO ORDERED.
ORDERED
Velasco, Jr., Del Castillo, Villarama, Jr., Perez, Mendoza and Reyes, JJ., concur.
Carpio, J., See Separate Concurring Opinion.
Leonardo-de Castro J., I dissent: See my dissenting opinion.
Brion, J., I dissent: See my dissenting opinion.
Peralta, J., I join J. Carpio's opinion.
Bersamin, J., I join the separate concurring opinion of J. Carpio.
Perlas-Bernabe, J., I join the dissenting opinions.
Leonen, J., I dissent. See separate opinion.
Jardeleza, * J., took no part.
Separate Opinions
CARPIO , J.:
The threshold issue in this case is whether the Enhanced Defense Cooperation Agreement (EDCA) merely implements the existing and
ratified 1951 Mutual Defense Treaty 1 (MDT), or whether the EDCA is a new treaty requiring Senate ratification to take effect
The answer to this question turns on whether, under present circumstances, the attainment of the purpose of the MDT requires the
EDCA. The fundamental rule in treaty interpretation is that a treaty must be interpreted "in the light of its object and purpose." 2
As stated in the MDT, the purpose of the United States (U.S.) and the Philippines in forging the MDT is to "declare publicly and formally
their sense of unity and their common determination to defend themselves against external armed attack." If the MDT cannot attain this
purpose without the EDCA, then the EDCA merely implements the MDT and Executive action is sufficient to make the EDCA valid.
A rati ed treaty like the MDT must be interpreted to allow the Executive to take all necessary measures to insure that the treaty's
purpose is attained. A rati ed treaty cannot be interpreted to require a second rati ed treaty to implement the rst rati ed treaty, as a
fundamental rule is that a treaty must be interpreted to avoid a "result which is manifestly absurd or unreasonable." 3 This is particularly true to
a mutual defense treaty the purpose of which is mutual self-defense against sudden armed attack by a third state.
However, if the MDT can attain its purpose without the EDCA, then the EDCA is a separate treaty that requires Senate rati cation. I shall
discuss why, under present circumstances, the EDCA is absolutely necessary and essential to attain the purpose of the MDT. CTIEac
With the departure in 1992 of U.S. military forces from Subic Naval Base and Clark Air Base in Luzon, a power vacuum resulted in the
South China Sea. As in any power vacuum, the next power would rush in to ll the vacuum. Thus, China, the next power after the U.S., lled the
power vacuum in the South China Sea, which includes the West Philippine Sea. 4
In early 1995, barely three years after the departure of U.S. military forces from the Philippines, China seized Mischief Reef from the
Philippines. There was no power to deter China as the U.S. forces had left. The Philippines did not anticipate that China would rush in to ll the
power vacuum, or if the Philippines anticipated this, it did not upgrade its military to deter any Chinese aggression. After China seized Mischief
Reef in 1995, the Philippines still did not upgrade its military, particularly its navy.
In 2012, China seized Scarborough Shoal from the Philippines, which could offer no armed resistance to Chinese naval forces. The
Scarborough Shoal seizure nally made the Philippine Government realize that there was an absolute need to deter China's creeping invasion of
Philippine islands, rocks and reefs in the West Philippine Sea. Thus, the Philippines rushed the modernization of its navy and air force. The
Philippines also agreed with the U.S. to use the MDT to preposition U.S. war materials in strategic locations in the Philippines, particularly in the
islands of Palawan and Luzon facing the West Philippine Sea.
In modern warfare, the successful implementation of a mutual defense treaty requires the strategic prepositioning of war materials.
Before the advent of guided missiles and drones, wars could take months or even years to prosecute. There was plenty of time to conscript
and train soldiers, manufacture guns and artillery, and ship war materials to strategic locations even after the war had started. Today, wars
could be won or lost in the first few weeks or even first few days after the initial outbreak of war.
In modern warfare, the prepositioning of war materials, like mobile anti-ship and anti-aircraft missiles, is absolutely necessary and
essential to a successful defense against armed aggression, particularly for a coastal state like the Philippines. This is what the EDCA is all
about — the prepositioning in strategic locations of war materials to successfully resist any armed aggression. Such prepositioning will also
publicly telegraph to the enemy that any armed aggression would be repelled. The enemy must know that we possess the capability, that is, the
war materials, to defend the country against armed aggression. Otherwise, without such capability, we telegraph to the enemy that further
seizure of Philippine islands, rocks and reefs in the South China Sea would be a walk in the park, just like China's seizure of Mischief Reef and
Scarborough Shoal. Without such capability, we would practically be inviting the enemy to seize whatever Philippine island, rock or reef it
desires to seize in the West Philippine Sea.
Since 2014, China has started building arti cial islands in the Spratlys out of submerged areas like Mischief Reef and Subi Reef, or out of
rocks that barely protrude above water at high tide like Fiery Cross Reef. China has so far created a 590-hectare arti cial island in Mischief Reef
which is only 125 nautical miles (NM) from Palawan, well within the Philippines' Exclusive Economic Zone (EEZ). In comparison, Mandaluyong
City is just 400 hectares in area. China has built a 390-hectare arti cial island in Subi Reef, outside the Philippines' EEZ but within its Extended
Continental Shelf (ECS). China has created a 265-hectare artificial island in Fiery Cross Reef, outside the Philippines' EEZ but within its ECS.
China claims that its island-building activities are for civilian purposes but the con guration of these arti cial islands shows otherwise.
THIRD DIVISION
[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.
Soriano Lu Reyes & Associates for petitioner.

The Solicitor General for respondents.
SYNOPSIS
Petition for prohibition led by petitioner as IBP member and taxpayer,
questioning the constitutionality of the permanent appointments made by the
President of public respondents to different positions in the Philippine Coast Guard
without confirmation by the Commission on Appointments.
The Supreme Court found petitioner to be without any legal personality to le the
instant petition. A private citizen can 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. This, petitioner failed to do. Moreover,
public respondents did not commit grave abuse of discretion since they are not
covered by Sec 16, Art. VII of the 1987 Constitution, which enumerates appointments
subject to confirmation by the CA.
SYLLABUS
1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIAL REVIEW; CONSTITUTIONALITY

OF AN ACT OR STATUTE MAY BE CHALLENGED UPON A SHOWING OF ACTUAL OR
THREATENED INJURY AS A RESULT THEREOF; CASE AT BAR. — 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. 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." cIHSTC
2. ID.; EXECUTIVE DEPARTMENT; APPOINTMENTS SUBJECT TO

CONFIRMATION BY THE COMMISSION ON APPOINTMENTS (CA); PROMOTIONS AND
APPOINTMENTS IN THE PHILIPPINE COAST GUARD NEED NOT BE CONFIRMED BY THE
CA. — 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 o cers
of the PCG, or any PCG o cer from the rank of captain and higher for that matter, do not
require con rmation by the CA. Section 16, Article VII of the 1987 Constitution that only
appointed o cers from the rank of colonel or naval captain in the armed forces require
con rmation 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. The enumeration of appointments subject to con rmation by the CA
under Section 16, Article VII of the 1987 Constitution is exclusive. The clause "o cers of
the armed forces from the rank of colonel or naval captain" refers to military officers alone.
DECISION
CORONA J :
CORONA, p
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 o ce without con rmation 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, led 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 con rmation, all of the said respondent o cers of
the PCG had assumed their duties and functions. According to petitioner, their respective
appointments are illegal and unconstitutional for failure to undergo the con rmation
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 o cers of the PCG.
Accordingly, he prays that respondent Secretary Boncodin be ordered to desist from
allowing such disbursements until the con rmation of their respective appointments by
the CA.
At the outset, the Court nds petitioner to be without any legal personality to le 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 classi ed as a taxpayer's 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. DcSACE
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
O ce of the President, issued EO 475 transferring the PCG from the DND to the O ce of
the President. He later on again transferred the PCG from the O ce 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 o cers
of the PCG, or any PCG o cer 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 o cers of the armed forces
from the rank of colonel or naval captain, and other o cers whose appointments
are vested in him in this Constitution. He shall also appoint all other o cers 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 o cers 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
o cers from the rank of colonel or naval captain in the armed forces require con rmation
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 con rmation by the CA under Section
16, Article VII of the 1987 Constitution is exclusive. The clause "o cers of the armed
forces from the rank of colonel or naval captain" refers to military o cers 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 o cers 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 o cers of the PCG. Their
assumption to o ce 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. caADIC
SO ORDERED.
Puno, Panganiban, Sandoval-Gutierrez and Carpio-Morales, JJ., concur.
Footnotes
1. Telecommunications and Broadcast Attorneys of the Philippines, Inc. vs. Commission on

Elections, 286 SCRA 337 [1998].
2. Bayan (Bagong Alyansang Makabayan) vs. Zamora, 342 SCRA 449 [2000].
3. Occena vs. COMELEC, 95 SCRA 755 [1980].
4. Manalo vs. Sistoza, 312 SCRA 239 [1999]; Calderon vs. Carale, 208 SCRA 254 [1992];
Sarmiento III vs. Mison, 156 SCRA 549 [1987]; Bautista vs. Salonga, 172 SCRA 160
[1989]; Teresita Quintos Deles, et al. vs. The Commission on Constitutional
Commissions, et al., 177 SCRA 259 [1989].

EN BANC
[G.R. No. 164978. October 13, 2005.]
AQUILINO Q. PIMENTEL, JR., EDGARDO J. ANGARA, JUAN PONCE

ENRILE, LUISA P. EJERCITO-ESTRADA, JINGGOY E. ESTRADA,
PANFILO M. LACSON, ALFREDO S. LIM, JAMBY A.S. MADRIGAL, and
SERGIO R. OSMEÑA III , petitioners, vs . EXEC. SECRETARY EDUARDO R.
ERMITA, 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.
DECISION
CARPIO , J : p
The Case
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
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.
Appointee Department Date of
Appointment
Arthur C. Yap Agriculture 15 August 2004
Alberto G. Romulo Foreign Affairs 23 August 2004
Raul M. Gonzalez Justice 23 August 2004
Florencio B. Abad Education 23 August 2004
Avelino J. Cruz, Jr. National Defense 23 August 2004
Rene C. Villa Agrarian Reform 23 August 2004
Joseph H. Durano Tourism 23 August 2004
Michael T. Defensor Environment and Natural Resources 23 August 2004
The appointment papers are uniformly worded as follows:
Sir:
Pursuant to the provisions of existing laws, you are hereby appointed
ACTING SECRETARY, DEPARTMENT OF ( appropriate department) vice (name of
person replaced).
By virtue hereof, you may qualify and enter upon the performance of the
duties and functions of the o ce, furnishing this O ce and the Civil Service
Commission with copies of your Oath of Office.
(signed)
Gloria Arroyo
Respondents took their oath of office and assumed duties as acting secretaries. DEAaIS
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"), Pan lo M. Lacson
("Senator Lacson"), Alfredo S. Lim ("Senator Lim"), Jamby A.S. Madrigal ("Senator
Madrigal"), and Sergio R. Osmeña, III ("Senator Osmeña") ("petitioners") led the present
petition as Senators of the Republic of the Philippines.
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 o ce, furnishing this O ce and the Civil Service
Commission with copies of your oath of office.
(signed)
Gloria Arroyo
Issue
The petition questions the constitutionality of President Arroyo's appointment of
respondents as acting secretaries without the consent of the Commission on
Appointments while Congress is in session.
The Court's 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 President's 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 legislature's interference in
the executive's power to appoint is limited to the power to prescribe the quali cations to
an appointive o ce. Congress cannot appoint a person to an o ce in the guise of
prescribing quali cations to that o ce. 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:
. . . The Commission on Appointments is a creature of the Constitution.
Although its membership is con ned 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. . . . 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. . . . If at all, the Commission on Appointments as a body (rather than individual
members of the Congress) may possess standing in this case." 1 0
Petitioners, on the other hand, state that the Court can exercise its certiorari
jurisdiction over unconstitutional acts of the President. 1 1 Petitioners further contend that
they possess standing because President Arroyo's appointment of department secretaries
in an acting capacity while Congress is in session impairs the powers of Congress.
Petitioners cite Sanlakas v. Executive Secretary 1 2 as basis, thus:
To the extent that the powers of Congress are impaired, so is the power of
each member thereof, since his o ce 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 Arroyo's 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 Osmeña as members.
Thus, on the impairment of the prerogatives of members of the Commission on
Appointments, only Senators Enrile, Lacson, Angara, Ejercito-Estrada, and Osmeña 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 Arroyo's 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 O ce of a Secretary, it is only an
Undersecretary who can be designated as Acting Secretary." 1 3 Petitioners base their
argument on Section 10, Chapter 2, Book IV of Executive Order No. 292 ("EO 292"), 1 4 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 xxx xxx
(5) Temporarily discharge the duties of the Secretary in the latter's
absence or inability to discharge his duties for any cause or in case of vacancy of
the said o ce, 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 xxx 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 o ce needing
con rmation by the Commission on Appointments, without rst having obtained its
consent." 1 5
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 o cers of the armed forces
from the rank of colonel or naval captain, and other o cers whose appointments
are vested in him in this Constitution. He shall also appoint all other o cers 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 o cers 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 President's 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 o cials as provided for in the Constitution and
laws.
laws
SEC. 17. Power to Issue Temporary Designation . — (1) The President
may temporarily designate an o cer already in the government service
or any other competent person to perform the functions of an o ce in
the executive branch, appointment to which is vested in him by law,
when: (a) the o cer regularly appointed to the o ce 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 lled. The compensation
hereby authorized shall be paid out of the funds appropriated for the o ce or
agency concerned.
(3) In no case shall a temporary designation exceed one (1)
year.
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. DTSIEc
The essence of an appointment in an acting capacity is its temporary nature. It is a

stop-gap measure intended to ll an o ce for a limited time until the appointment of a
permanent occupant to the o ce. 1 6 In case of vacancy in an o ce occupied by an alter
ego of the President, such as the o ce 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 con dence. Congress, in the
guise of prescribing quali cations to an o ce, cannot impose on the President who her
alter ego should be.
The o ce 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 o ce must necessarily have the President's con dence. Thus, by the very
nature of the o ce 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 o cer already in the government service or any other competent person
to perform the functions of an o ce 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. 1 7
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 con rmation
or rejection; acting appointments are not submitted to the Commission on
Appointments. Acting appointments are a way of temporarily lling important
o ces but, if abused, they can also be a way of circumventing the need for
confirmation by the Commission on Appointments. 1 8
However, we nd no abuse in the present case. The absence of abuse is readily

apparent from President Arroyo's 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. TAScID
SO ORDERED.
Davide, Jr. C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Austria-Martinez, Corona, Carpio Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario and
Garcia, JJ., concur.
Footnotes
1. Under Rule 65 of the Rules of Court.
2. Rollo, pp. 21-28.

3. Rollo, pp. 45-60.

EN BANC
[G.R. No. 132601. October 12, 1998.]
LEO ECHEGARAY y PILO , petitioner, vs . THE SECRETARY OF JUSTICE

and THE DIRECTOR OF THE BUREAU OF CORRECTIONS, THE
EXECUTIVE JUDGE OF THE REGIONAL TRIAL COURT OF QUEZON
CITY AND THE PRESIDING JUDGE OF REGIONAL TRIAL COURT OF
QUEZON CITY, BRANCH 104 , respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; PROSCRIPTION AGAINST

CRUEL, DEGRADING OR INHUMAN PUNISHMENT; DEATH PER SE, NOT CRUEL,
DEGRADING OR INHUMAN. — The death penalty per se is not a cruel, degrading or
inhuman punishment. In the oft-cited case of Harden vs. Director of Prisons, this Court
held that "[p]unishments are cruel when they involve torture or a lingering death; but the
punishment of death is not cruel, within the meaning of that word as used in the
constitution .It implies there something inhuman and barbarous, something more than
the mere extinguishment of life."
2. ID; ID; ID; DEATH BY LETHAL INJECTION, CONSTITUTIONAL; INFLICTION
OF PAIN, MERELY INCIDENTAL. — Any in iction of pain in lethal injection is merely in
carrying out the execution of the death penalty and does not fall within the
constitutional prescription against cruel, degrading or inhuman punishment. "In a
limited sense, anything is cruel which is calculated to give pain or distress, and since
punishment imports pain of suffering to the convict, it may be said that all punishment
are cruel. But of course the Constitution does not mean that crime, for this reason, is to
go unpunished." The cruelty against which the Constitution protects a convicted man is
cruelty inherent in the method of punishment, not the necessary suffering involved in
any method employed to extinguish life humanely.
3. ID.; ID.; REIMPOSITION OF DEATH PENALTY DOES NOT VIOLATE
INTERNATIONAL TREATY OBLIGATIONS. — Petitioner assiduously argues that the
reimposition of the death penalty law violates our international obligations, in particular,
t he International Covenant on Civil and Political Rights, which was adopted by the
General Assembly of the United Nations on December 16, 1966, signed and rati ed by
the Philippines on December 19, 1966 and October 23, 1986, respectively. Indisputably,
Article 6 of the Covenant enshrines the individual's right to life. Nevertheless, Article 6
(2) of the Covenant explicitly recognizes that capital punishment is an allowable
limitation on the right to life, subject to the limitation that it be imposed for the "most
serious crimes." On the other hand, the Second Optional Protocol to the International
Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty was
adopted by the General Assembly on December 15, 1989. The Philippines neither
signed nor rati ed said document. Evidently, petitioner's assertion of our obligation
under Second Optional Protocol is misplaced.
4. POLITICAL LAW; SEPARATION OF POWERS; CONSTRUED. — The
separation of powers is a fundamental principle in our system of government. It
obtains not through express provision but by actual division in the framing of our
Constitution. each department of the government has exclusive cognizance of matters
placed within its jurisdiction, and is supreme within its own sphere. ACETSa
5. CONSTITUTIONAL LAW; NON-DELEGATION OF POWERS; EXCEPTIONS. —

Corollary to the doctrine of separation of powers is the principle of non-delegation of
powers. "The rule is that what has been delegated, cannot be delegated or as
expressed in Latin maxim: potestas delegata non delegari potest." The recognized
exceptions to the rule are as follows: (1) Delegation of tariff powers to the President
under Section 28 (2) of Article VI of the Constitution; (2) Delegation of emergency
powers to the President under Section 23 (2) of Article VI of the Constitution; (3)
Delegation to the people at large; (4) Delegation to local governments; and (5)
Delegation of administrative bodies.
6. ID.; DELEGATION OF POWERS; REQUISITES. — Although Congress may
delegate to another branch of the Government the power to ll in the details in the
execution, enforcement or administration of a law, it is essential, to forestall a violation
of the principle of separation of powers, that said law: (a) be complete in itself — it
must set forth therein the policy to be executed, carried out or implemented by the
delegate — and (b) x a standard — the limits of which are su ciently determinate or
determinable — to which the delegate must conform in the performance of his
functions. aEHASI
7. ID.; ID.; R.A. 8177, VALID DELEGATION OF AUTHORITY TO SECRETARY OF

JUSTICE. — Empowering the Secretary of Justice in conjunction with the Secretary of
Health and the Director of the Bureau of Corrections, to promulgate rules and
regulations on the subject of lethal injection is a form of delegation of legislative
authority to administrative bodies. Considering the scope and the de niteness of R.A.
No. 8177, which changed the mode of carrying out the death penalty, the Court nds
that the law su ciently describes what job must be done, who is to do it and what is
the scope of his authority. R.A No. 8177 likewise provides the standards which de ne
the legislative policy, marks its limits, map out its boundaries and specify the public
agencies which will apply it. Thus, the Court nds that the existence of an area for
exercise of discretion by the Secretary of Justice and the Director of the Bureau of
Corrections under delegated legislative power is proper where standards are
formulated for the guidance and the exercise of limited discretion, which though
general, are capable of reasonable application. A careful reading of R.A. No. 8177 would
show that there is no undue delegation of legislative power from the Secretary of
Justice to the Director of the Bureau of Corrections for the simple reason that under the
Administrative Code of 1987, the Bureau of Corrections is a mere constituent unit of
the Department of Justice. Further, the Department of Justice is tasked, among others,
to take charge of the "administration of correctional system." Hence, the import of the
phraseology of the law is that the Secretary of Justice should supervise the Director of
the Bureau of Corrections in promulgating the Lethal Injection Manual, in consultation
with the Department of Health. CaAIES
8. ID.; ID.; RULES AND REGULATIONS TO IMPLEMENT R.A. No. 8177, AN

UNDUE DELEGATION OF POWER. — The Rules and Regulations to Implement Republic
Act No. 8177 suffer serious aws that could not be overlooked. the Court nds in the
rst paragraph of Section 19 of the implementing rules a veritable vacuum. The
Secretary of Justice has practically abdicated the power to promulgate the manual on
the execution procedure to the Director of the Bureau of Corrections, by not providing
for a mode of review and approval thereof. Being a mere constituent unit of the
Department of Justice, the Bureau of Corrections could not promulgate a manual that
would not bear the imprimatur of the administrative superior, the Secretary of Justice
as the rule-making authority under R.A. No. 8177. Such apparent abdication of
departmental responsibility renders the said paragraph invalid. As to the second
paragraph of Section 19, the Court nds the requirement of con dentiality of the
contents of the manual even with respect to the convict unduly suppressive. It sees no
legal impediment for the convict, should he so desire, to obtain, a copy of the manual.
The contents of the manual are matters of public concern, "which the public may want
to know, either because these directly affect their lives, or simply because such matters
naturally arouse the interest of an ordinary citizen."
9. ID.; BILL OF RIGHTS; FREE ACCESS TO INFORMATION OF PUBLIC
CONCERN; A RECOGNITION OF ESSENTIALITY OF THE FREE FLOW OF IDEAS AND
INFORMATION. — The incorporation in the Constitution of a guarantee of access to
information of public concern is a recognition of the essentiality of the free ow of
ideas and information in a democracy. In the same way that free discussion enables
members of society to cope with the exigencies of their time, access to information of
general interest aids the people in democratic decision-making by giving them a better
perspective of the vital issues confronting the nation.caIDSH
10. ID.; DELEGATION OF POWER; RULES AND REGULATIONS TO

IMPLEMENT R.A. NO. 8177; SECTION 17 THEREOF ADDING A GROUND FOR
SUSPENSION OF DEATH SENTENCE, DISCRIMINATORY. — While Article 83 of the
Revised Penal Code, as amended by Section 25 of Republic Act No. 7659, suspends the
implementation of the death penalty while a woman is pregnant or within one (1) year
after delivery, Section 17 of the implementing rules omits the one (1) year period
following delivery as an instance when the death sentence is suspended, and adds a
ground for suspension of sentence no longer found under Article 83 of the Revised
Penal Code as amended, which is the three-year reprieve after a woman is sentenced.
This addition is, in petitioner's review, tantamount to a gender-based discrimination
sans statutory basis, while the omission is an impermissible contravention of the
applicable law.
11. ADMINISTRATIVE LAW; ADMINISTRATIVE RULES AND REGULATIONS;
CANNOT SUPPLANT OR MODIFY LAW; CASE AT BAR. — Being merely an implementing
rule, Section 17 aforecited must not override, but instead remain consistent and in
harmony with the law it seeks to apply and implement. Administrative rules and
regulations are intended to carry out, neither to supplant nor to modify, the law. An
administrative agency cannot amend an act of Congress. In case of discrepancy
between a provision of statute and a rule or regulation issued to implement said
statute, the statutory provision prevails. Since the cited clause in Section 17 which
suspends the execution of a woman within the three years (3) next following the date of
sentence nds no support in Article 83 of the Revised Penal Code as amended,
perforce Section 17 must be declared invalid. ETAICc
DECISION
PER CURIAM : p
On June 25, 1996, this Court a rmed 1 the conviction of petitioner Leo
Echegaray y Pilo for the crime of rape of the 10 year-old daughter of his common-law
spouse and the imposition upon him of the death penalty for the said crime. LexLib
Petitioner duly led a Motion for Reconsideration raising mainly factual issues,
and on its heels, a Supplemental Motion for Reconsideration raising for the rst time
the issue of the constitutionality of Republic Act No. 7659 2 (the death penalty law) and
the imposition of the death penalty for the crime of rape.
On February 7, 1998, this Court denied 3 petitioner's Motion for Reconsideration
and Supplemental Motion for Reconsideration with a nding that Congress duly
complied with the requirements for the reimposition of the death penalty and therefore
the death penalty law is not unconstitutional.
In the meantime, Congress had seen it t to change the mode of execution of the
death penalty from electrocution to lethal injection, 4 and passed Republic Act No.
8177, AN ACT DESIGNATING DEATH BY LETHAL INJECTION AS THE METHOD OF
CARRYING OUT CAPITAL PUNISHMENT, AMENDING FOR THE PURPOSE ARTICLE 81
OF THE REVISED PENAL CODE, AS AMENDED BY SECTION 24 OF REPUBLIC ACT NO.
7659. 5 Pursuant to the provisions of said law, the Secretary of Justice promulgated
the Rules and Regulations to Implement Republic Act No. 8177 ("implementing rules") 6
and directed the Director of the Bureau of Corrections to prepare the Lethal Injection
Manual. 7
On March 2, 1998, petitioner led a Petition 8 for Prohibition, Injunction and/or
Temporary Restraining Order to enjoin respondents Secretary of Justice and Director of
the Bureau of Prisons from carrying out the execution by lethal injection of petitioner
under R.A. No. 8177 and its implementing rules as these are unconstitutional and void
for being: (a) cruel, degrading and inhuman punishment per se as well as by reason of
its being (b) arbitrary, unreasonable and a violation of due process, (c) a violation of the
Philippines' obligations under international covenants, (d) an undue delegation of
legislative power by Congress, (e) an unlawful exercise by respondent Secretary of the
power to legislate, and (f) an unlawful delegation of delegated powers by the Secretary
of Justice to respondent Director.
On March 3, 1998, petitioner, through counsel, led a Motion for Leave of Court 9
to Amend and Supplement Petition with the Amended and Supplemental Petition 10
attached thereto, invoking the additional ground of violation of equal protection, and
impleading the Executive Judge of the Regional Trial Court of Quezon City and the
Presiding Judge of the Regional Trial Court, Branch 104, in order to enjoin said public
respondents from acting under the questioned rules by setting a date for petitioner's
execution.
On March 3, 1998, the Court resolved, without giving due course to the petition,
to require the respondents to COMMENT thereon within a non-extendible period of ten
(10) days from notice, and directed the parties "to MAINTAIN the status quo prevailing
at the time of the filing of this petition."
On March 10, 1998, the Court granted the Motion for Leave of Court to Amend
and Supplement Petition, and required respondents to COMMENT thereon within ten
(10) days from notice.
On March 16, 1998, petitioner led a Very Urgent Motion (1) To Clarify Status
Quo Order, and (2) For the Issuance of a Temporary Restraining Order expressly
enjoining public respondents from taking any action to carry out petitioner's execution
until the petition is resolved.
On March 16, 1998, the O ce of the Solicitor General 11 led a Comment (On the
Petition and the Amended Supplemental Petition) 12 stating that (1) this Court has
already upheld the constitutionality of the Death Penalty Law, and has repeatedly
declared that the death penalty is not cruel, unjust, excessive or unusual punishment; (2)
execution by lethal injection, as authorized under R.A. No. 8177 and the questioned
rules, is constitutional, lethal injection being the most modern, more humane, more
economical, safer and easier to apply (than electrocution or the gas chamber); (3) the
International Covenant on Civil and Political Rights does not expressly or impliedly
prohibit the imposition of the death penalty; (4) R.A. No. 8177 properly delegated
legislative power to respondent Director; and that (5) R.A. No. 8177 confers the power
to promulgate the implementing rules to the Secretary of Justice, Secretary of Health
and the Bureau of Corrections.
On March 17, 1998, the Court required the petitioner to le a REPLY thereto
within a non-extendible period of ten days from notice.
On March 25, 1998, the Commission on Human Rights 1 3 led a Motion for Leave
of Court to Intervene and/or Appear as Amicus Curiae 1 4 with the attached Petition to
Intervene and/or Appear as Amicus Curiae 1 5 alleging that the death penalty imposed
under R.A. No. 7659 which is to be implemented by R.A. No. 8177 is cruel, degrading
and outside the limits of civil society standards, and further invoking (a) Article II,
Section 11 of the Constitution which provides: "The State values the dignity of every
human person and guarantees full respect for human rights."; (b) Article III of the
Universal Declaration of Human Rights which states that "Everyone has the right to life,
liberty and security of person," and Article V thereof, which states that " No one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment."; (c)
The International Covenant on Civil and Political Rights, in particular, Article 6 thereof,
and the Second Optional Protocol to the International Covenant on Civil and Political
Rights Aiming At The Abolition of The Death Penalty; (d) Amnesty International
statistics showing that as of October 1996, 58 countries have abolished the death
penalty for all crimes, 15 countries have abolished the death penalty for ordinary
crimes, and 26 countries are abolitionists de facto, which means that they have retained
the death penalty for ordinary crimes but are considered abolitionists in practice in that
they have not executed anyone during the past ten (10) years or more, or in that they
have made an international commitment not to carry out executions, for a total of 99
countries which are total abolitionists in law or practice, and 95 countries as
retentionists; 1 6 and (e) Pope John Paul II's encyclical, " Evangelium Vitae." In a
Resolution dated April 3, 1998, the Court duly noted the motion.
On March 27, 1998, petitioner led a Reply 1 7 stating that (1) this Court is not
barred from exercising judicial review over the death penalty per se, the death penalty
for rape and lethal injection as a mode of carrying out the death penalty; (2) capital
punishment is a cruel, degrading and inhuman punishment; (3) lethal injection is cruel,
degrading and inhuman punishment, and that being the "most modern" does not make
it less cruel or more humane, and that the Solicitor General's "aesthetic" criteria is short-
sighted, and that lethal injection is not risk free nor is it easier to implement; and (4) the
death penalty violates the International Covenant on Civil and Political Rights
considering that the Philippines participated in the deliberations of and voted for the
Second Optional Protocol.
After deliberating on the pleadings, the Court gave due course to the petition,
which it now resolves on the merits.
In the Amended and Supplemental Petition, petitioner assails the
constitutionality of the mode of carrying out his death sentence by lethal injection on
the following grounds: 1 8
I.
DEATH BY LETHAL INJECTION IS UNCONSTITUTIONAL FOR BEING A CRUEL,

DEGRADING AND INHUMAN PUNISHMENT.
II.
THE DEATH PENALTY VIOLATES THE INTERNATIONAL COVENANT ON CIVIL

AND POLITICAL RIGHTS, WHICH IS PART OF THE LAW OF THE LAND.
III.
LETHAL INJECTION, AS AUTHORIZED UNDER REPUBLIC ACT NO. 8177 AND THE
QUESTIONED RULES, IS UNCONSTITUTIONAL BECAUSE IT IS AN UNNECESSARY
AND WANTON INFLICTION OF PAIN ON A PERSON AND IS, THUS, A CRUEL,
DEGRADING, AND INHUMAN PUNISHMENT.
IV.
REPUBLIC ACT NO. 8177 UNDULY DELEGATES LEGISLATIVE POWER TO

RESPONDENT DIRECTOR.
V.
RESPONDENT SECRETARY UNLAWFULLY DELEGATED THE LEGISLATIVE

POWERS DELEGATED TO HIM UNDER REPUBLIC ACT NO. 8177 T O
RESPONDENT DIRECTOR.
VI.
RESPONDENT SECRETARY EXCEEDED THE AUTHORITY DELEGATED TO HIM

UNDER REPUBLIC ACT NO. 8177 AND UNLAWFULLY USURPED THE POWER TO
LEGISLATE IN PROMULGATING THE QUESTIONED RULES.
VII.
SECTION 17 OF THE QUESTIONED RULES IS UNCONSTITUTIONAL FOR BEING

DISCRIMINATORY AS WELL AS FOR BEING AN INVALID EXERCISE BY
RESPONDENT SECRETARY OF THE POWER TO LEGISLATE.
VIII.
INJUNCTION MUST ISSUE TO PREVENT IRREPARABLE DAMAGE AND INJURY

TO PETITIONER'S RIGHTS BY REASON OF THE EXISTENCE, OPERATION AND
IMPLEMENTATION OF AN UNCONSTITUTIONAL STATUTE AND EQUALLY
INVALID IMPLEMENTING RULES.
Concisely put, petitioner argues that R.A. No. 8177 and its implementing rules do
not pass constitutional muster for: (a) violation of the constitutional proscription
against cruel, degrading or inhuman punishment, (b) violation of our international treaty
obligations, (c) being an undue delegation of legislative power, and (d) being
discriminatory.
The Court shall now proceed to discuss these issues in seriatim.
I. LETHAL INJECTION, NOT CRUEL, DEGRADING OR INHUMAN PUNISHMENT
UNDER SECTION 19, ARTICLE III OF THE 1987 CONSTITUTION
The main challenge to R.A. No. 8177 and its implementing rules is anchored on
Article III, Section 19 (1) of the 1987 Constitution which proscribes the imposition of
"cruel, degrading or inhuman" punishment. "The prohibition in the Philippine Bill against
cruel and unusual punishments is an Anglo-Saxon safeguard against governmental
oppression of the subject, which made its rst appearance in the reign of William and
Mary of England in 'An Act declaring the rights and liberties of the subject, and settling
the succession of the crown,' passed in the year 1689. It has been incorporated into the
Constitution of the United States (of America) and into most constitutions of the
various States in substantially the same language as that used in the original statute.
The exact language of the Constitution of the United States is used in the Philippine
Bill." 19 "The counterpart of Section 19 (1) in the 1935 Constitution reads: 'Excessive
nes shall not be imposed, nor cruel and inhuman punishment in icted.' . . . In the 1973
Constitution the phrase became 'cruel or unusual punishment.' The Bill of Rights
Committee of the 1986 Constitutional Commission read the 1973 modi cation as
prohibiting 'unusual' punishment even if not 'cruel.' It was thus seen as an obstacle to
experimentation in penology. Consequently, the Committee reported out the present
text which prohibits 'cruel, degrading or inhuman punishment' as more consonant with
the meaning desired and with jurisprudence on the subject." 20
Petitioner contends that death by lethal injection constitutes cruel, degrading and
inhuman punishment considering that (1) R.A. No. 8177 fails to provide for the drugs to
be used in carrying out lethal injection, the dosage for each drug to be administered,
and the procedure in administering said drug/s into the accused; (2) R.A. No. 8177 and
its implementing rules are uncertain as to the date of execution, time of noti cation, the
court which will x the date of execution, which uncertainties cause the greatest pain
and suffering for the convict; and (3) the possibility of "botched executions" or
mistakes in administering the drugs renders lethal injection inherently cruel.
Before the Court proceeds any further, a brief explanation of the process of
administering lethal injection is in order.
In lethal injection, the condemned inmate is strapped on a hospital gurney and
wheeled into the execution room. A trained technician inserts a needle into a vein in the
inmate's arm and begins an intravenous ow of saline solution. At the warden's signal, a
lethal combination of drugs is injected into the intravenous line. The deadly concoction
typically includes three drugs: (1) a nonlethal dose of sodium thiopenthotal, a sleep
inducing barbiturate; (2) lethal doses of pancuronium bromide, a drug that paralyzes
the muscles; and (3) potassium chloride, which stops the heart within seconds. The
rst two drugs are commonly used during surgery to put the patient to sleep and relax
muscles; the third is used in heart bypass surgery. 2 1
Now it is well-settled in jurisprudence that the death penalty per se is not a cruel,
degrading or inhuman punishment. 22 In the oft-cited case of Harden v. Director of
Prisons, 23 this Court held that "[p]unishments are cruel when they involve torture or a
lingering death; but the punishment of death is not cruel, within the meaning of that
word as used in the constitution. It implies there something inhuman and barbarous,
something more than the mere extinguishment of life." Would the lack in particularity
then as to the details involved in the execution by lethal injection render said law "cruel,
degrading or inhuman"? The Court believes not. For reasons hereafter discussed, the
implementing details of R.A. No. 8177 are matters which are properly left to the
competence and expertise of administrative officials. 24
Petitioner contends that Sec. 16 2 5 of R.A. No. 8177 is uncertain as to which
"court" will x the time and date of execution, and the date of execution and time of
noti cation of the death convict. As petitioner already knows, the "court" which
designates the date of execution is the trial court which convicted the accused, that is,
after this Court has reviewed the entire records of the case 2 6 and has a rmed the
judgment of the lower court. Thereupon, the procedure is that the "judgment is entered
fteen (15) days after its promulgation, and 10 days thereafter, the records are
remanded to the court below including a certi ed copy of the judgment for execution."
2 7 Neither is there any uncertainty as to the date of execution nor the time of
noti cation. As to the date of execution, Section 15 of the implementing rules must be
read in conjunction with the last sentence of Section 1 of R.A. No. 8177 which provides
that the death sentence shall be carried out "not earlier than one (1) year nor later than
eighteen (18) months after the judgment has become nal and executory, without
prejudice to the exercise by the President of his executive clemency powers at all
times." Hence, the death convict is in effect assured of eighteen (18) months from the
time the judgment imposing the death penalty became nal and executory 2 8 wherein
he can seek executive clemency 29 and attend to all his temporal and spiritual affairs. 3 0
Petitioner further contends that the in iction of "wanton pain" in case of possible
complications in the intravenous injection, considering and as petitioner claims, that
respondent Director is an untrained and untested person insofar as the choice and
administration of lethal injection is concerned, renders lethal injection a cruel, degrading
and inhuman punishment. Such supposition is highly speculative and unsubstantiated.
First. Petitioner has neither alleged nor presented evidence that lethal injection
requires the expertise only of phlebotomists and not trained personnel and that the
drugs to be administered are unsafe or ineffective. 31 Petitioner simply cites situations
in the United States wherein execution by lethal injection allegedly resulted in prolonged
and agonizing death for the convict, 32 without any other evidence whatsoever. cdrep
Second. Petitioner overlooked Section 1, third paragraph of R.A. No. 8177 which
requires that all personnel involved in the execution proceedings should be trained prior
to the performance of such task. We must presume that the public o cials entrusted
with the implementation of the death penalty (by lethal injection) will carefully avoid
inflicting cruel punishment. 3 3
Third. Any in iction of pain in lethal injection is merely incidental in carrying out
the execution of the death penalty and does not fall within the constitutional
proscription against cruel, degrading or inhuman punishment. "In a limited sense,
anything is cruel which is calculated to give pain or distress, and since punishment
imports pain or suffering to the convict, it may be said that all punishments are cruel.
But of course the Constitution does not mean that crime, for this reason, is to go
unpunished." 34 The cruelty against which the Constitution protects a convicted man is
cruelty inherent in the method of punishment, not the necessary suffering involved in
any method employed to extinguish life humanely. 35 Numerous federal and state
courts of the United States have been asked to review whether lethal injections
constitute cruel and unusual punishment. No court has found lethal injections to
implicate prisoners' Eighth Amendment rights. In fact, most courts that have addressed
the issue state in one or two sentences that lethal injection clearly is a constitutional
form of execution. 36 A few jurisdictions, however, have addressed the merits of the
Eighth Amendment claims. Without exception, these courts have found that lethal
injection does not constitute cruel and unusual punishment. After reviewing medical
evidence that indicates that improper doses or improper administration of the drugs
causes severe pain and that prison o cials tend to have little training in the
administration of the drugs, the courts have found that the few minutes of pain does
not rise to a constitutional violation. 37
What is cruel and unusual "is not fastened to the obsolete but may acquire
meaning as public opinion becomes enlightened by a humane justice" and "must draw
its meaning from the evolving standards of decency that mark the progress of a
maturing society." 38 Indeed, "[o]ther (U.S.) courts have focused on 'standards of
decency' nding that the widespread use of lethal injections indicates that it comports
with contemporary norms." 39 The primary indicator of society's standard of decency
with regard to capital punishment is the response of the country's legislatures to the
sanction. 40 Hence, for as long as the death penalty remains in our statute books and
meets the most stringent requirements provided by the Constitution, we must con ne
our inquiry to the legality of R.A. No. 8177, whose constitutionality we duly sustain in the
face of petitioner's challenge. We nd that the legislature's substitution of the mode of
carrying out the death penalty from electrocution to lethal injection infringes no
constitutional rights of petitioner herein.
II. REIMPOSITION OF THE DEATH PENALTY LAW DOES NOT VIOLATE
INTERNATIONAL TREATY OBLIGATIONS
Petitioner assiduously argues that the reimposition of the death penalty law
violates our international obligations, in particular, the International Covenant on Civil
And Political Rights, which was adopted by the General Assembly of the United Nations
on December 16, 1966, signed and rati ed by the Philippines on December 19, 1966
and October 23, 1986, 41 respectively.
Article 6 of the International Covenant on Civil and Political Rights provides:
"1. Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of

death may be imposed only for the most serious crimes in accordance with the
law in force at the time of the commission of the crime and not contrary to the
provisions of the present Covenant and to the Convention on the Prevention and
Punishment of the Crime of Genocide. This penalty can only be carried out
pursuant to a final judgment rendered by a competent court." (emphasis supplied)
3. When deprivation of life constitutes the crime of genocide, it is

understood that nothing in this article shall authorize any State Party to the
present Covenant to derogate in any way from any obligation assumed under the
provisions of the Convention on the Prevention and Punishment of the Crime of
Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or

commutation of the sentence. Amnesty, pardon or commutation of the sentence
of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by

persons below eighteen years of age and shall not be carried out on pregnant
women.
6. Nothing in this article shall be invoked to delay or to prevent the

abolition of capital punishment by any State Party to the present Covenant."
Indisputably, Article 6 of the Covenant enshrines the individual's right to life.

Nevertheless, Article 6 (2) of the Covenant explicitly recognizes that capital punishment
is an allowable limitation on the right to life, subject to the limitation that it be imposed
for the "most serious crimes". Pursuant to Article 28 of the Covenant, a Human Rights
Committee was established and under Article 40 of the Covenant, States Parties to the
Covenant are required to submit an initial report to the Committee on the measures
they have adopted which give effect to the rights recognized within the Covenant and
on the progress made on the enjoyment of those rights within one year of its entry into
force for the State Party concerned and thereafter, after ve years. On July 27, 1982,
the Human Rights Committee issued General Comment No. 6 interpreting Article 6 of
the Covenant stating that "(while) it follows from Article 6 (2) to (6) that State parties
are not obliged to abolish the death penalty totally, they are obliged to limit its use and,
in particular, to abolish it for other than the 'most serious crimes.' Accordingly, they
ought to consider reviewing their criminal laws in this light and, in any event, are obliged
to restrict the application of the death penalty to the most serious crimes.' The article
strongly suggests (pars. 2 (2) and (6)) that abolition is desirable. . . . The Committee is
of the opinion that the expression 'most serious crimes' must be read restrictively to
mean that the death penalty should be a quite exceptional measure." Further, The
Safeguards Guaranteeing Protection of Those Facing the Death Penalty 42 adopted by
the Economic and Social Council of the United Nations declare that the ambit of the
term 'most serious crimes' should not go beyond intentional crimes, with lethal or other
extremely grave consequences.
The Optional Protocol to the International Covenant on Civil and Political Rights
was adopted by the General Assembly of the United Nations on December 16, 1966,
and signed and rati ed by the Philippines on December 19, 1966 and August 22 1989,
43 respectively. The Optional Protocol provides that the Human Rights Committee shall
receive and consider communications from individuals claiming to be victims of
violations of any of the rights set forth in the Covenant.
On the other hand, the Second Optional Protocol to the International Covenant on
Civil and Political Rights, Aiming at the Abolition of the Death Penalty was adopted by
the General Assembly on December 15, 1989. The Philippines neither signed nor
rati ed said document . 4 4 Evidently, petitioner's assertion of our obligation under the
Second Optional Protocol is misplaced.
III. THERE IS NO UNDUE DELEGATION OF LEGISLATIVE POWER IN R.A. NO. 8177
TO THE SECRETARY OF JUSTICE AND THE DIRECTOR OF BUREAU OF CORRECTIONS,
BUT SECTION 19 OF THE RULES AND REGULATIONS TO IMPLEMENT R.A. NO. 8177 IS
INVALID.
The separation of powers is a fundamental principle in our system of
government. It obtains not through express provision but by actual division in the
framing of our Constitution. Each department of the government has exclusive
cognizance of matters placed within its jurisdiction, and is supreme within its own
sphere. 45 Corollary to the doctrine of separation of powers is the principle of non-
delegation of powers. "The rule is that what has been delegated, cannot be delegated or
as expressed in a Latin maxim: potestas delegata non delegari potest. " 46 The
recognized exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28 (2) of
Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of
Article VI of the Constitution;
(3) Delegation to the people at large;

(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 4 7
Empowering the Secretary of Justice in conjunction with the Secretary of Health
and the Director of the Bureau of Corrections, to promulgate rules and regulations on
the subject of lethal injection is a form of delegation of legislative authority to
administrative bodies.
The reason for delegation of authority to administrative agencies is the
increasing complexity of the task of government requiring expertise as well as the
growing inability of the legislature to cope directly with the myriad problems
demanding its attention. The growth of society has rami ed its activities and created
peculiar and sophisticated problems that the legislature cannot be expected to attend
to by itself. Specialization even in legislation has become necessary. On many problems
involving day-to-day undertakings, the legislature may not have the needed competence
to provide the required direct and e cacious, not to say, speci c solutions. These
solutions may, however, be expected from its delegates, who are supposed to be
experts in the particular fields assigned to them. 4 8
Although Congress may delegate to another branch of the Government the
power to ll in the details in the execution, enforcement or administration of a law, it is
essential, to forestall a violation of the principle of separation of powers, that said law:
(a) be complete in itself — it must set forth therein the policy to be executed, carried out
or implemented by the delegate 49 — and (b) x a standard — the limits of which are
su ciently determinate or determinable — to which the delegate must conform in the
performance of his functions. 50
Considering the scope and the de niteness of R.A. No. 8177, which changed the
mode of carrying out the death penalty, the Court nds that the law su ciently
describes what job must be done, who is to do it, and what is the scope of his authority.
51
R.A. No. 8177 likewise provides the standards which de ne the legislative policy,
mark its limits, map out its boundaries, and specify the public agencies which will apply
it. It indicates the circumstances under which the legislative purpose may be carried
out. 52 R.A. No. 8177 speci cally requires that "[t]he death sentence shall be executed
under the authority of the Director of the Bureau of Corrections, endeavoring so far as
possible to mitigate the sufferings of the person under the sentence during the lethal
injection as well as during the proceedings prior to the execution." 53 Further, "[t]he
Director of the Bureau of Corrections shall take steps to ensure that the lethal injection
to be administered is su cient to cause the instantaneous death of the convict ." 54 The
legislature also mandated that "all personnel involved in the administration of lethal
injection shall be trained prior to the performance of such task." 55 The Court cannot
see that any useful purpose would be served by requiring greater detail. 56 The question
raised is not the de nition of what constitutes a criminal offense, 57 but the mode of
carrying out the penalty already imposed by the Courts. In this sense, R.A. No. 8177 is
su ciently de nite and the exercise of discretion by the administrative o cials
concerned is, to use the words of Justice Benjamin Cardozo, canalized within banks
that keep it from overflowing.
Thus, the Court nds that the existence of an area for exercise of discretion by
the Secretary of Justice and the Director of the Bureau of Corrections under delegated
legislative power is proper where standards are formulated for the guidance and the
exercise of limited discretion, which though general, are capable of reasonable
application. 5 8
It is also noteworthy that Article 81 of the Revised Penal Code which originally
provided for the death penalty by electrocution was not subjected to attack on the
ground that it failed to provide for details such as the kind of chair to be used, the
amount of voltage, volume of amperage or place of attachment of electrodes on the
death convict. Hence, petitioner's analogous argument with respect to lethal injection
must fail.
A careful reading of R.A. No. 8177 would show that there is no undue delegation
of legislative power from the Secretary of Justice to the Director of the Bureau of
Corrections for the simple reason that under the Administrative Code of 1987, the
Bureau of Corrections is a mere constituent unit of the Department of Justice. 59
Further, the Department of Justice is tasked, among others, to take charge of the
"administration of the correctional system." 60 Hence, the import of the phraseology of
the law is that the Secretary of Justice should supervise the Director of the Bureau of
Corrections in promulgating the Lethal Injection Manual, in consultation with the
Department of Health. 61
However, the Rules and Regulations to Implement Republic Act No. 8177 suffer
serious aws that could not be overlooked. To begin with, something basic appears
missing in Section 19 of the implementing rules which provides:
"SEC. 19. EXECUTION PROCEDURE. — Details of the procedure prior to,
during and after administering the lethal injection shall be set forth in a manual to
be prepared by the Director. The manual shall contain details of, among others,
the sequence of events before and after execution; procedures in setting up the
intravenous line; the administration of the lethal drugs; the pronouncement of
death; and the removal of the intravenous system.
Said manual shall be con dential and its distribution shall be limited to
authorized prison personnel."
Thus, the Court nds in the rst paragraph of Section 19 of the implementing
rules a veritable vacuum. The Secretary of Justice has practically abdicated the power
to promulgate the manual on the execution procedure to the Director of the Bureau of
Corrections, by not providing for a mode of review and approval thereof. Being a mere
constituent unit of the Department of Justice, the Bureau of Corrections could not
promulgate a manual that would not bear the imprimatur of the administrative superior,
the Secretary of Justice as the rule-making authority under R.A. No. 8177. Such
apparent abdication of departmental responsibility renders the said paragraph invalid.
As to the second paragraph of section 19, the Court nds the requirement of
con dentiality of the contents of the manual even with respect to the convict unduly
suppressive. It sees no legal impediment for the convict, should he so desire, to obtain
a copy of the manual. The contents of the manual are matters of public concern "which
the public may want to know, either because these directly affect their lives, or simply
because such matters naturally arouse the interest of an ordinary citizen." 6 2 Section 7
of Article III of the 1987 Constitution provides:
"SEC. 7. The right of the people to information on matters of public
concern shall be recognized. Access to o cial records, and to documents and
papers pertaining to o cial acts, transactions, or decisions, as well as to
government research data used as a basis for policy development, shall be
afforded the citizen, subject to such limitation as may be provided by law."
The incorporation in the Constitution of a guarantee of access to information of
public concern is a recognition of the essentiality of the free ow of ideas and
information in a democracy. 63 In the same way that free discussion enables members
of society to cope with the exigencies of their time, 64 access to information of general
interest aids the people in democratic decision-making 65 by giving them a better
perspective of the vital issues confronting the nation. 66
D. SECTION 17 OF THE RULES AND REGULATIONS TO IMPLEMENT R.A. No. 8177
IS INVALID FOR BEING DISCRIMINATORY AND CONTRARY TO LAW.
Even more seriously awed than Section 19 is Section 17 of the implementing
rules which provides:
"SEC. 17. SUSPENSION OF THE EXECUTION OF THE DEATH
SENTENCE. — Execution by lethal injection shall not be in icted upon a woman
within the three years next following the date of the sentence or while she is
pregnant, nor upon any person over seventy (70) years of age. In this latter case,
the death penalty shall be commuted to the penalty of reclusion perpetua with the
accessory penalties provided in Article 40 of the Revised Penal Code."
Petitioner contends that Section 17 is unconstitutional for being discriminatory

as well as for being an invalid exercise of the power to legislate by respondent
Secretary. Petitioner insists that Section 17 amends the instances when lethal injection
may be suspended, without an express amendment of Article 83 of the Revised Penal
Code, as amended by section 25 of R.A. No. 7659.
Article 83 of the Revised Penal Code, as amended by section 25 of R.A. No. 7659
now reads as follows:
"ART. 83. Suspension of the execution of the death sentence. — The
death sentence shall not be in icted upon a woman while she is pregnant or
within one (1) year after delivery, nor upon any person over seventy years of age.
In this last case, the death sentence shall be commuted to the penalty of reclusion
perpetua with the accessory penalty provided in Article 40. . .".
On this point, the Court nds petitioner's contention impressed with merit. While
Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No.
7659, suspends the implementation of the death penalty while a woman is pregnant or
within one (1) year after delivery, Section 17 of the implementing rules omits the one (1)
year period following delivery as an instance when the death sentence is suspended,
and adds a ground for suspension of sentence no longer found under Article 83 of the
Revised Penal Code as amended, which is the three-year reprieve after a woman is
sentenced. This addition is, in petitioner's view, tantamount to a gender-based
discrimination sans statutory basis, while the omission is an impermissible
contravention of the applicable law.
Being merely an implementing rule, Section 17 aforecited must not override, but
instead remain consistent and in harmony with the law it seeks to apply and implement.
Administrative rules and regulations are intended to carry out, neither to supplant nor to
modify, the law." 6 7 An administrative agency cannot amend an act of Congress. 6 8 In
case of discrepancy between a provision of statute and a rule or regulation issued to
implement said statute, the statutory provision prevails. Since the cited clause in
Section 17 which suspends the execution of a woman within the three (3) years next
following the date of sentence nds no support in Article 83 of the Revised Penal Code
as amended, perforce Section 17 must be declared invalid.
One member of the Court voted to declare Republic Act No. 8177 as
unconstitutional insofar as it delegates the power to make rules over the same subject
matter to two persons (the Secretary of Justice and the Director of the Bureau of
Corrections) and constitutes a violation of the international norm towards the abolition
of the death penalty. One member of the Court, consistent with his view in People v.
Echegaray, 267 SCRA 682, 734-758 (1997) that the death penalty law (Republic Act No.
7659) is itself unconstitutional, believes that Republic Act No. 8177 which provides for
the means of carrying out the death sentence, is likewise unconstitutional. Two other
members of the court concurred in the aforesaid Separate Opinions in that the death
penalty law (Republic Act No. 7659) together with the assailed statute (Republic Act
No. 8177) are unconstitutional. In sum, four members of the Court voted to declare
Republic Act No. 8177 as unconstitutional. These Separate Opinions are hereto
annexed, infra.
WHEREFORE, the petition is DENIED insofar as petitioner seeks to declare the
assailed statute (Republic Act No. 8177) as unconstitutional; but GRANTED insofar as
Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177
are concerned, which are hereby declared INVALID because (a) Section 17 contravenes
Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act. No.
7659; and (b) Section 19 fails to provide for review and approval of the Lethal Injection
Manual by the Secretary of Justice, and unjusti ably makes the manual con dential,
hence unavailable to interested parties including the accused/convict and counsel.
Respondents are hereby enjoined from enforcing and implementing Republic Act No.
8177 until the aforesaid Sections 17 and 19 of the Rules and Regulations to Implement
Republic Act No. 8177 are appropriately amended, revised and/or corrected in
accordance with this Decision.
NO COSTS. Cdpr
SO ORDERED.
Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Martinez, Quisumbing and Purisima, JJ ., concur.
Pardo, J ., took no part.
Narvasa, C .J ., on official leave.
Separate Opinions
DISSENTING OPINION
On March 20, 1996, Republic Act No. 8177 was signed into law. Entitled "An Act
Designating Death by Lethal Injection as the Method of Carrying Out Capital
Punishment, Amending For the Purpose Article 81 of the Revised Penal Code, As
Amended by Section 24 of Republic Act No. 7659," it reads: LLphil
"SEC. 1. Article 81 of the Revised Penal Code, as amended by Section

24 of Republic Act No. 7659 is hereby further amended to read as follows:
'Art. 81. When and how the death penalty is to be executed. —

The death sentence shall be executed with preference to any other penalty
EN BANC
[G.R. No. 106064. October 13, 2005.]
SPOUSES RENATO CONSTANTINO, JR. and LOURDES CONSTANTINO

and their minor children RENATO REDENTOR, ANNA MARIKA LISSA,
NINA ELISSA, and ANNA KARMINA, FREEDOM FROM DEBT
COALITION, and FILOMENO STA. ANA III , petitioners, vs . HON. JOSE B.
CUISIA, in his capacity as Governor of the Central Bank, HON.
RAMON DEL ROSARIO, in his capacity as Secretary of Finance, HON.
EMMANUEL V. PELAEZ, in his capacity as Philippine Debt
TREASURER respondents.
Negotiating Chairman, and the NATIONAL TREASURER,
DECISION
TINGA J :
TINGA, p
The quagmire that is the foreign debt problem has especially confounded developing
nations around the world for decades. It has de ed easy solutions acceptable both to
debtor countries and their creditors. It has also emerged as cause celebre for various
political movements and grassroots activists and the wellspring of much scholarly thought
and debate.
The present petition illustrates some of the ideological and functional differences
between experts on how to achieve debt relief. However, this being a court of law, not an
academic forum or a convention on development economics, our resolution has to hinge on
the presented legal issues which center on the appreciation of the constitutional provision
that empowers the President to contract and guarantee foreign loans. The ultimate choice
is between a restrictive reading of the constitutional provision and an alimentative
application thereof consistent with time-honored principles on executive power and the
alter ego doctrine.
This Petition for Certiorari, Prohibition and Mandamus assails said contracts which
were entered into pursuant to the Philippine Comprehensive Financing Program for 1992
("Financing Program" or "Program"). It seeks to enjoin respondents from executing
additional debt-relief contracts pursuant thereto. It also urges the Court to issue an order
compelling the Secretary of Justice to institute criminal and administrative cases against
respondents for acts which circumvent or negate the provisions Art. XII of the Constitution.
1
Parties and Facts

The petition was led on 17 July 1992 by petitioners spouses Renato Constantino, Jr.
and Lourdes Constantino and their minor children, Renato Redentor, Anna Marika Lissa, Nina
Elissa, and Anna Karmina, Filomeno Sta. Ana III, and the Freedom from Debt Coalition, a non-
stock, non-pro t, non-government organization that advocates a "pro-people and just
Philippine debt policy." 2 Named respondents were the then Governor of the Bangko Sentral
ng Pilipinas, the Secretary of Finance, the National Treasurer, and the Philippine Debt
Negotiation Chairman Emmanuel V. Pelaez. 3 All respondents were members of the
Philippine panel tasked to negotiate with the country's foreign creditors pursuant to the
Financing Program.
The operative facts are sparse and there is little need to elaborate on them.
The Financing Program was the culmination of efforts that began during the term of
former President Corazon Aquino to manage the country's external debt problem through a
negotiation-oriented debt strategy involving cooperation and negotiation with foreign
creditors. 4 Pursuant to this strategy, the Aquino government entered into three
restructuring agreements with representatives of foreign creditor governments during the
period of 1986 to 1991. 5 During the same period, three similarly-oriented restructuring
agreements were executed with commercial bank creditors. 6
On 28 February 1992, the Philippine Debt Negotiating Team, chaired by respondent
Pelaez, negotiated an agreement with the country's Bank Advisory Committee, representing
all foreign commercial bank creditors, on the Financing Program which respondents
characterized as "a multi-option nancing package." 7 The Program was scheduled to be
executed on 24 July 1992 by respondents in behalf of the Republic. Nonetheless, petitioners
alleged that even prior to the execution of the Program respondents had already
implemented its "buyback component" when on 15 May 1992, the Philippines bought back
P1.26 billion of external debts pursuant to the Program. 8
The petition sought to enjoin the rati cation of the Program, but the Court did not
issue any injunctive relief. Hence, it came to pass that the Program was signed in London as
scheduled. The petition still has to be resolved though as petitioners seek the annulment "of
any and all acts done by respondents, their subordinates and any other public o cer
pursuant to the agreement and program in question." 9 Even after the signing of the
Program, respondents themselves acknowledged that the remaining principal objective of
the petition is to set aside respondents' actions. 1 0
Petitioners characterize the Financing Program as a package offered to the country's
foreign creditors consisting of two debt-relief options. 1 1 The rst option was a cash
buyback of portions of the Philippine foreign debt at a discount. 1 2 The second option
allowed creditors to convert existing Philippine debt instruments into any of three kinds of
bonds/securities: (1) new money bonds with a ve-year grace period and 17 years nal
maturity, the purchase of which would allow the creditors to convert their eligible debt
papers into bearer bonds with the same terms; (2) interest-reduction bonds with a maturity
of 25 years; and (3) principal-collateralized interest-reduction bonds with a maturity of 25
years. 1 3
On the other hand, according to respondents the Financing Program would cover
about U.S. $5.3 billion of foreign commercial debts and it was expected to deal
comprehensively with the commercial bank debt problem of the country and pave the way
for the country's access to capital markets. 1 4 They add that the Program carried three
basic options from which foreign bank lenders could choose, namely: to lend money, to
exchange existing restructured Philippine debts with an interest reduction bond; or to
exchange the same Philippine debts with a principal collateralized interest reduction bond.
15
Issues for Resolution

Petitioners raise several issues before this Court. cCESTA
First, they object to the debt-relief contracts entered into pursuant to the Financing
Program as beyond the powers granted to the President under Section 20, Article VII of the
Constitution. 1 6 The provision states that the President may contract or guarantee foreign
loans in behalf of the Republic. It is claimed that the buyback and securitization/bond
conversion schemes are neither "loans" nor "guarantees," and hence beyond the power of
the President to execute.
Second, according to petitioners even assuming that the contracts under the
Financing Program are constitutionally permissible, yet it is only the President who may
exercise the power to enter into these contracts and such power may not be delegated to
respondents.
Third, petitioners argue that the Financing Program violates several constitutional
policies and that contracts executed or to be executed pursuant thereto were or will be
done by respondents with grave abuse of discretion amounting to lack or excess of
jurisdiction.
Petitioners contend that the Financing Program was made available for debts that
were either fraudulently contracted or void. In this regard, petitioners rely on a 1992
Commission on Audit (COA) report which identi ed several "behest" loans as either
contracted or guaranteed fraudulently during the Marcos regime. 1 7 They posit that since
these and other similar debts, such as the ones pertaining to the Bataan Nuclear Power
Plant, 1 8 were eligible for buyback or conversion under the Program, the resultant relief
agreements pertaining thereto would be void for being waivers of the Republic's right to
repudiate the void or fraudulently contracted loans.
For their part, respondents dispute the points raised by petitioners. They also
question the standing of petitioners to institute the present petition and the justiciability of
the issues presented.
The Court shall tackle the procedural questions ahead of the substantive issues.
The Court's Rulings
Standing of Petitioners
The individual petitioners are suing as citizens of the Philippines; those among them
who are of age are suing in their additional capacity as taxpayers. 1 9 It is not indicated in
what capacity the Freedom from Debt Coalition is suing.
Respondents point out that petitioners have no standing to le the present suit since
the rule allowing taxpayers to assail executive or legislative acts has been applied only to
cases where the constitutionality of a statute is involved. At the same time, however, they
urge this Court to exercise its wide discretion and waive petitioners' lack of standing. They
invoke the transcendental importance of resolving the validity of the questioned debt-relief
contracts and others of similar import.
The recent trend on locus standi has veered towards a liberal treatment in taxpayer's
suits. In Tatad v. Garcia Jr., 2 0 this Court reiterated that the "prevailing doctrines in taxpayer's
suits are to allow taxpayers to question contracts entered into by the national government
or government owned and controlled corporations allegedly in contravention of law." 2 1 A
taxpayer is allowed to sue where there is a claim that public funds are illegally disbursed, or
that public money is being de ected to any improper purpose, or that there is a wastage of
public funds through the enforcement of an invalid or unconstitutional law. 2 2
Moreover, a ruling on the issues of this case will not only determine the validity or
invalidity of the subject pre-termination and bond-conversion of foreign debts but also
create a precedent for other debts or debt-related contracts executed or to be executed in
behalf of the President of the Philippines by the Secretary of Finance. Considering the
reported Philippine debt of P3.80 trillion as of November 2004, the foreign public borrowing
component of which reached P1.81 trillion in November, equivalent to 47.6% of total
government borrowings, 2 3 the importance of the issues raised and the magnitude of the
public interest involved are indubitable.
Thus, the Court's cognizance of this petition is also based on the consideration that
the determination of the issues presented will have a bearing on the state of the country's
economy, its international nancial ratings, and perhaps even the Filipinos' way of life. Seen
in this light, the transcendental importance of the issues herein presented cannot be
doubted.
Where constitutional issues are properly raised in the context of alleged facts,
procedural questions acquire a relatively minor significance. 2 4 We thus hold that by the very
nature of the power wielded by the President, the effect of using this power on the
economy, and the well-being in general of the Filipino nation, the Court must set aside the
procedural barrier of standing and rule on the justiciable issues presented by the parties. cdlaws06
Ripeness/Actual Case Dimension

Even as respondents concede the transcendental importance of the issues at bar, in
their Rejoinder they ask this Court to dismiss the Petition. Allegedly, petitioners' arguments
are mere attempts at abstraction. 2 5 Respondents are correct to some degree. Several
issues, as shall be discussed in due course, are not ripe for adjudication.
The allegation that respondents waived the Philippines' right to repudiate void and
fraudulently contracted loans by executing the debt-relief agreements is, on many levels, not
justiciable.
In the rst place, records do not show whether the so-called behest loans — or other
allegedly void or fraudulently contracted loans for that matter — were subject of the debt-
relief contracts entered into under the Financing Program. aATHIE
Moreover, asserting a right to repudiate void or fraudulently contracted loans begs

the question of whether indeed particular loans are void or fraudulently contracted.
Fraudulently contracted loans are voidable and, as such, valid and enforceable until annulled
by the courts. On the other hand, void contracts that have already been ful lled must be
declared void in view of the maxim that no one is allowed to take the law in his own hands.
2 6 Petitioners' theory depends on a prior annulment or declaration of nullity of the pre-
existing loans, which thus far have not been submitted to this Court. Additionally, void
contracts are unrati able by their very nature; they are null and void ab initio. Consequently,
from the viewpoint of civil law, what petitioners present as the Republic's "right to repudiate"
is yet a contingent right, one which cannot be allowed as an anticipatory basis for annulling
the debt-relief contracts. Petitioners' contention that the debt-relief agreements are
tantamount to waivers of the Republic's "right to repudiate" so-called behest loans is
without legal foundation.
It may not be amiss to recognize that there are many advocates of the position that
the Republic should renege on obligations that are considered as "llegitimate." However,
should the executive branch unilaterally, and possibly even without prior court determination
of the validity or invalidity of these contracts, repudiate or otherwise declare to the
international community its resolve not to recognize a certain set of "illegitimate" loans,
adverse repercussions 2 7 would come into play. Dr. Felipe Medalla, former Director General
of the National Economic Development Authority, has warned, thus:
One way to reduce debt service is to repudiate debts, totally or selectively.
Taken to its limit, however, such a strategy would put the Philippines at such odds
with too many enemies. Foreign commercial banks by themselves and without the
cooperation of creditor governments, especially the United States, may not be in a
position to in ict much damage, but concerted sanctions from commercial banks,
multilateral nancial institutions and creditor governments would affect not only
our sources of credit but also our access to markets for our exports and the level of
development assistance. . . . [T]he country might face concerted sanctions even if
debts were repudiated only selectively.
The point that must be stressed is that repudiation is not an attractive

alternative if net payments to creditors in the short and medium-run can be reduced
through an agreement (as opposed to a unilaterally set ceiling on debt service
payments) which provides for both rescheduling of principal and capitalization of
interest, or its equivalent in new loans, which would make it easier for the country
to pay interest. 2 8
Sovereign default is not new to the Philippine setting. In October 1983, the Philippines
declared a moratorium on principal payments on its external debts that eventually lasted
four years, 2 9 that virtually closed the country's access to new foreign money 3 0 and drove
investors to leave the Philippine market, resulting in some devastating consequences. 3 1 It
would appear then that this beguilingly attractive and dangerously simplistic solution
deserves the utmost circumspect cogitation before it is resorted to.
In any event, the discretion on the matter lies not with the courts but with the
executive. Thus, the Program was conceptualized as an offshoot of the decision made by
then President Aquino that the Philippines should recognize its sovereign debts 3 2 despite
the controversy that engulfed many debts incurred during the Marcos era. It is a scheme
whereby the Philippines restructured its debts following a negotiated approach instead of a
default approach to manage the bleak Philippine debt situation.
As a nal point, petitioners have no real basis to fret over a possible waiver of the
right to repudiate void contracts. Even assuming that spurious loans had become the
subject of debt-relief contracts, respondents unequivocally assert that the Republic did not
waive any right to repudiate void or fraudulently contracted loans, it having incorporated a
"no-waiver" clause in the agreements. 3 3
Substantive Issues
It is helpful to put the matter in perspective before moving on to the merits. The
Financing Program extinguished portions of the country's pre-existing loans through either
debt buyback or bond-conversion. The buyback approach essentially pre-terminated
portions of public debts while the bond-conversion scheme extinguished public debts
through the obtention of a new loan by virtue of a sovereign bond issuance, the proceeds of
which in turn were used for terminating the original loan.
First Issue: The Scope of Section 20, Article VII
For their rst constitutional argument, petitioners submit that the buyback and bond-
conversion schemes do not constitute the loan "contract" or "guarantee" contemplated in
the Constitution and are consequently prohibited. Sec. 20, Art. VII of the Constitution
provides, viz:
The President may contract or guarantee foreign loans in behalf of the
Republic of the Philippines with the prior concurrence of the Monetary Board and
subject to such limitations as may be provided under law. The Monetary Board
shall, within thirty days from the end of every quarter of the calendar year, submit
to the Congress a complete report of its decisions on applications for loans to be
contracted or guaranteed by the government or government-owned and controlled
corporations which would have the effect of increasing the foreign debt, and
containing other matters as may be provided by law.
On Bond-conversion
Loans are transactions wherein the owner of a property allows another party to use
the property and where customarily, the latter promises to return the property after a
speci ed period with payment for its use, called interest. 3 4 On the other hand, bonds are
interest-bearing or discounted government or corporate securities that obligate the issuer
to pay the bondholder a speci ed sum of money, usually at speci c intervals, and to repay
the principal amount of the loan at maturity. 3 5 The word "bond" means contract, agreement,
or guarantee. All of these terms are applicable to the securities known as bonds. An
investor who purchases a bond is lending money to the issuer, and the bond represents the
issuer's contractual promise to pay interest and repay principal according to speci c terms.
A short-term bond is often called a note. 3 6
The language of the Constitution is simple and clear as it is broad. It allows the
President to contract and guarantee foreign loans. It makes no prohibition on the issuance
of certain kinds of loans or distinctions as to which kinds of debt instruments are more
onerous than others. This Court may not ascribe to the Constitution meanings and
restrictions that would unduly burden the powers of the President. The plain, clear and
unambiguous language of the Constitution should be construed in a sense that will allow the
full exercise of the power provided therein. It would be the worst kind of judicial legislation if
the courts were to misconstrue and change the meaning of the organic act.
The only restriction that the Constitution provides, aside from the prior concurrence
of the Monetary Board, is that the loans must be subject to limitations provided by law. In
this regard, we note that Republic Act (R.A.) No. 245 as amended by Pres. Decree (P.D.) No.
142, s. 1973, entitled An Act Authorizing the Secretary of Finance to Borrow to Meet Public
Expenditures Authorized by Law, and for Other Purposes , allows foreign loans to be
contracted in the form of, inter alia, bonds. Thus:
Sec. 1. In order to meet public expenditures authorized by law or to
provide for the purchase, redemption, or refunding of any obligations, either direct
or guaranteed of the Philippine Government, the Secretary of Finance, with the
approval of the President of the Philippines, after consultation with the
Monetary Board, is authorized to borrow from time to time on the credit
of the Republic of the Philippines such sum or sums as in his judgment
may be necessary, and to issue therefor evidences of indebtedness of
the Philippine Government. Such evidences of indebtedness may be of
the following types:"
types
xxx xxx xxx

c. Treasury bonds , notes, securities or other evidences of
indebtedness having maturities of one year or more but not exceeding
twenty-five years from the date of issue.
issue (Emphasis supplied.)
Under the foregoing provisions, sovereign bonds may be issued not only to
supplement government expenditures but also to provide for the purchase, 3 7 redemption,
38or refunding 3 9 of any obligation, either direct or guaranteed, of the Philippine
Government. CaHcET
Petitioners, however, point out that a supposed difference between contracting a loan
and issuing bonds is that the former creates a de nite creditor-debtor relationship between
the parties while the latter does not. 4 0 They explain that a contract of loan enables the
debtor to restructure or novate the loan, which bene t is lost upon the conversion of the
debts to bearer bonds such that "the Philippines surrenders the novatable character of a
loan contract for the irrevocable and unpostponable demandability of a bearer bond." 4 1
Allegedly, the Constitution prohibits the President from issuing bonds which are "far more
onerous" than loans. 4 2
This line of thinking is awed to say the least. The negotiable character of the subject
bonds is not mutually exclusive with the Republic's freedom to negotiate with bondholders
for the revision of the terms of the debt. Moreover, the securities market provides some
exibility — if the Philippines wants to pay in advance, it can buy out its bonds in the market;
if interest rates go down but the Philippines does not have money to retire the bonds, it can
replace the old bonds with new ones; if it defaults on the bonds, the bondholders shall
organize and bring about a re-negotiation or settlement. 4 3 In fact, several countries have
restructured their sovereign bonds in view either of inability and/or unwillingness to pay the
indebtedness. 4 4 Petitioners have not presented a plausible reason that would preclude the
Philippines from acting in a similar fashion, should it so opt.
This theory may even be dismissed in a perfunctory manner since petitioners are
merely expecting that the Philippines would opt to restructure the bonds but with the
negotiable character of the bonds, would be prevented from so doing. This is a contingency
which petitioners do not assert as having come to pass or even imminent. Consummated
acts of the executive cannot be struck down by this Court merely on the basis of petitioners'
anticipatory cavils.
On the Buyback Scheme
In their Comment, petitioners assert that the power to pay public debts lies with
Congress and was deliberately withheld by the Constitution from the President. 4 5 It is true
that in the balance of power between the three branches of government, it is Congress that
manages the country's coffers by virtue of its taxing and spending powers. However, the
law-making authority has promulgated a law ordaining an automatic appropriations
provision for debt servicing 4 6 by virtue of which the President is empowered to execute
debt payments without the need for further appropriations. Regarding these legislative
enactments, this Court has held, viz:
Congress . . . deliberates or acts on the budget proposals of the President,
and Congress in the exercise of its own judgment and wisdom formulates an
appropriation act precisely following the process established by the Constitution,
which speci es that no money may be paid from the Treasury except in
accordance with an appropriation made by law.
Debt service is not included in the General Appropriation Act, since
authorization therefor already exists under RA Nos. 4860 and 245, as amended,
and PD 1967. Precisely in the light of this subsisting authorization as embodied in
said Republic Acts and PD for debt service, Congress does not concern itself with
details for implementation by the Executive, but largely with annual levels and
approval thereof upon due deliberations as part of the whole obligation program
for the year. Upon such approval, Congress has spoken and cannot be said to have
delegated its wisdom to the Executive, on whose part lies the implementation or
execution of the legislative wisdom. 4 7
Speci c legal authority for the buyback of loans is established under Section 2 of
Republic Act (R.A.) No. 240, viz:
Sec. 2. The Secretary of Finance shall cause to be paid out of
any moneys in the National Treasury not otherwise appropriated, or from
any sinking funds provided for the purpose by law, any interest falling
due, or accruing, on any portion of the public debt authorized by law. He
shall also cause to be paid out of any such money, or from any such
sinking funds the principal amount of any obligations which have
matured,
matured or which have been called for redemption or for which redemption has
been demanded in accordance with terms prescribed by him prior to date of issue:
Provided, however, That he may, if he so chooses and if the holder is willing,
exchange any such obligation with any other direct or guaranteed obligation or
obligations of the Philippine Government of equivalent value. In the case of
interest-bearing obligations, he shall pay not less than their face value; in the case
of obligations issued at a discount he shall pay the face value at maturity; or, if
redeemed prior to maturity, such portion of the face value as is
prescribed by the terms and conditions under which such obligations
were originally issued.
issued (Emphasis supplied.)
The afore-quoted provisions of law speci cally allow the President to pre-terminate
debts without further action from Congress.
Petitioners claim that the buyback scheme is neither a guarantee nor a loan since its
underlying intent is to extinguish debts that are not yet due and demandable. 4 8 Thus, they
suggest that contracts entered pursuant to the buyback scheme are unconstitutional for
not being among those contemplated in Sec. 20, Art. VII of the Constitution.
Buyback is a necessary power which springs from the grant of the foreign borrowing
power. Every statute is understood, by implication, to contain all such provisions as may be
necessary to effectuate its object and purpose, or to make effective rights, powers,
privileges or jurisdiction which it grants, including all such collateral and subsidiary
consequences as may be fairly and logically inferred from its terms. 4 9 The President is not
empowered to borrow money from foreign banks and governments on the credit of the
Republic only to be left bereft of authority to implement the payment despite appropriations
therefor.
Even petitioners concede that "[t]he Constitution, as a rule, does not enumerate–let
alone enumerate all — the acts which the President (or any other public o cer) may not do,"
5 0 and "[t]he fact that the Constitution does not explicitly bar the President from exercising a
power does not mean that he or she does not have that power." 5 1 It is inescapable from the
standpoint of reason and necessity that the authority to contract foreign loans and
guarantees without restrictions on payment or manner thereof coupled with the availability
of the corresponding appropriations, must include the power to effect payments or to make
payments unavailing by either restructuring the loans or even refusing to make any payment
altogether.
More fundamentally, when taken in the context of sovereign debts, a buyback is
simply the purchase by the sovereign issuer of its own debts at a discount. Clearly then, the
objection to the validity of the buyback scheme is without basis.
Second Issue: Delegation of Power
Petitioners stress that unlike other powers which may be validly delegated by the
President, the power to incur foreign debts is expressly reserved by the Constitution in the
person of the President. They argue that the gravity by which the exercise of the power will
affect the Filipino nation requires that the President alone must exercise this power. They
submit that the requirement of prior concurrence of an entity speci cally named by the
Constitution — the Monetary Board — reinforces the submission that not respondents but
the President "alone and personally" can validly bind the country.
Petitioners' position is negated both by explicit constitutional 5 2 and legal 5 3
imprimaturs, as well as the doctrine of qualified political agency.
The evident exigency of having the Secretary of Finance implement the decision of the
President to execute the debt-relief contracts is made manifest by the fact that the process
of establishing and executing a strategy for managing the government's debt is deep within
the realm of the expertise of the Department of Finance, primed as it is to raise the required
amount of funding, achieve its risk and cost objectives, and meet any other sovereign debt
management goals. 5 4
If, as petitioners would have it, the President were to personally exercise every aspect
of the foreign borrowing power, he/she would have to pause from running the country long
enough to focus on a welter of time-consuming detailed activities — the propriety of
incurring/guaranteeing loans, studying and choosing among the many methods that may be
taken toward this end, meeting countless times with creditor representatives to negotiate,
obtaining the concurrence of the Monetary Board, explaining and defending the negotiated
deal to the public, and more often than not, ying to the agreed place of execution to sign
the documents. This sort of constitutional interpretation would negate the very existence of
cabinet positions and the respective expertise which the holders thereof are accorded and
would unduly hamper the President's effectivity in running the government. EHSTcC
Necessity thus gave birth to the doctrine of quali ed political agency, later adopted in
Villena v. Secretary of the Interior 5 5 from American jurisprudence, viz:
With reference to the Executive Department of the government, there is one

purpose which is crystal-clear and is readily visible without the projection of judicial
searchlight, and that is the establishment of a single, not plural, Executive. The rst
section of Article VII of the Constitution, dealing with the Executive Department,
begins with the enunciation of the principle that "The executive power shall be
vested in a President of the Philippines." This means that the President of the
Philippines is the Executive of the Government of the Philippines, and no other. The
heads of the executive departments occupy political positions and hold o ce in an
advisory capacity, and, in the language of Thomas Jefferson, "should be of the
President's bosom con dence" (7 Writings, Ford ed., 498), and, in the language of
Attorney-General Cushing (7 Op., Attorney-General, 453), "are subject to the
direction of the President." Without minimizing the importance of the heads of the
various departments, their personality is in reality but the projection of that of the
President. Stated otherwise, and as forcibly characterized by Chief Justice Taft of
the Supreme Court of the United States, "each head of a department is, and must
be, the President's alter ego in the matters of that department where the President
is required by law to exercise authority" (Myers vs. United States, 47 Sup. Ct. Rep.,
21 at 30; 272 U. S., 52 at 133; 71 Law. ed., 160). 5 6
As it was, the backdrop consisted of a major policy determination made by then

President Aquino that sovereign debts have to be respected and the concomitant reality
that the Philippines did not have enough funds to pay the debts. Inevitably, it fell upon the
Secretary of Finance, as the alter ego of the President regarding "the sound and e cient
management of the nancial resources of the Government," 5 7 to formulate a scheme for
the implementation of the policy publicly expressed by the President herself.
Nevertheless, there are powers vested in the President by the Constitution which may
not be delegated to or exercised by an agent or alter ego of the President. Justice Laurel, in
his ponencia in Villena, makes this clear:
Withal, at rst blush, the argument of rati cation may seem plausible under
the circumstances, it should be observed that there are certain acts which, by their
very nature, cannot be validated by subsequent approval or rati cation by the
President. There are certain constitutional powers and prerogatives of the Chief
Executive of the Nation which must be exercised by him in person and no amount
of approval or rati cation will validate the exercise of any of those powers by any
other person. Such, for instance, in his power to suspend the writ of habeas corpus
and proclaim martial law (PAR. 3, SEC. 11, Art. VII) and the exercise by him of the
benign prerogative of mercy (par. 6, sec. 11, idem). 5 8
These distinctions hold true to this day. There are certain presidential powers which
arise out of exceptional circumstances, and if exercised, would involve the suspension of
fundamental freedoms, or at least call for the supersedence of executive prerogatives over
those exercised by co-equal branches of government. The declaration of martial law, the
suspension of the writ of habeas corpus, and the exercise of the pardoning power
notwithstanding the judicial determination of guilt of the accused, all fall within this special
class that demands the exclusive exercise by the President of the constitutionally vested
power. The list is by no means exclusive, but there must be a showing that the executive
power in question is of similar gravitas and exceptional import.
We cannot conclude that the power of the President to contract or guarantee foreign
debts falls within the same exceptional class. Indubitably, the decision to contract or
guarantee foreign debts is of vital public interest, but only akin to any contractual obligation
undertaken by the sovereign, which arises not from any extraordinary incident, but from the
established functions of governance.
Another important quali cation must be made. The Secretary of Finance or any
designated alter ego of the President is bound to secure the latter's prior consent to or
subsequent rati cation of his acts. In the matter of contracting or guaranteeing foreign
loans, the repudiation by the President of the very acts performed in this regard by the alter
ego will de nitely have binding effect. Had petitioners herein succeeded in demonstrating
that the President actually withheld approval and/or repudiated the Financing Program,
there could be a cause of action to nullify the acts of respondents. Notably though,
petitioners do not assert that respondents pursued the Program without prior authorization
of the President or that the terms of the contract were agreed upon without the President's
authorization. Congruent with the avowed preference of then President Aquino to honor and
restructure existing foreign debts, the lack of showing that she countermanded the acts of
respondents leads us to conclude that said acts carried presidential approval.
With constitutional parameters already established, we may also note, as a source of
suppletory guidance, the provisions of R.A. No. 245. The afore-quoted Section 1 thereof
empowers the Secretary of Finance with the approval of the President and after
consultation 5 9 of the Monetary Board, "to borrow from time to time on the credit of the
Republic of the Philippines such sum or sums as in his judgment may be necessary, and to
issue therefor evidences of indebtedness of the Philippine Government." Ineluctably then,
while the President wields the borrowing power it is the Secretary of Finance who normally
carries out its thrusts.
In our recent rulings in Southern Cross Cement Corporation v. The Philippine Cement
Manufacturers Corp. , 6 0 this Court had occasion to examine the authority granted by
Congress to the Department of Trade and Industry (DTI) Secretary to impose safeguard
measures pursuant to the Safeguard Measures Act. In doing so, the Court was impelled to
construe Section 28(2), Article VI of the Constitution, which allowed Congress, by law, to
authorize the President to " x within speci ed limits, and subject to such limitations and
restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts within the framework of the national development
program of the Government." 6 1
While the Court refused to uphold the broad construction of the grant of power as
preferred by the DTI Secretary, it nonetheless tacitly acknowledged that Congress could
designate the DTI Secretary, in his capacity as alter ego of the President, to exercise the
authority vested on the chief executive under Section 28(2), Article VI. 6 2 At the same time,
the Court emphasized that since Section 28(2), Article VI authorized Congress to impose
limitations and restrictions on the authority of the President to impose tariffs and imposts,
the DTI Secretary was necessarily subjected to the same restrictions that Congress could
impose on the President in the exercise of this taxing power.
Similarly, in the instant case, the Constitution allocates to the President the exercise
of the foreign borrowing power "subject to such limitations as may be provided under law."
Following Southern Cross, but in line with the limitations as de ned in Villena, the
presidential prerogative may be exercised by the President's alter ego, who in this case is
the Secretary of Finance.
It bears emphasis that apart from the Constitution, there is also a relevant statute,
R.A. No. 245, that establishes the parameters by which the alter ego may act in behalf of the
President with respect to the borrowing power. This law expressly provides that the
Secretary of Finance may enter into foreign borrowing contracts. This law neither amends
nor goes contrary to the Constitution but merely implements the subject provision in a
manner consistent with the structure of the Executive Department and the alter ego doctine.
In this regard, respondents have declared that they have followed the restrictions provided
under R.A. No. 245, 6 3 which include the requisite presidential authorization and which, in the
absence of proof and even allegation to the contrary, should be regarded in a fashion
congruent with the presumption of regularity bestowed on acts done by public officials. AICHaS
Moreover, in praying that the acts of the respondents, especially that of the Secretary
of Finance, be nulli ed as being in violation of a restrictive constitutional interpretation,
petitioners in effect would have this Court declare R.A. No. 245 unconstitutional. We will not
strike down a law or provisions thereof without so much as a direct attack thereon when
simple and logical statutory construction would suffice.
Petitioners also submit that the unrestricted character of the Financing Program
violates the framers' intent behind Section 20, Article VII to restrict the power of the
President. This intent, petitioners note, is embodied in the proviso in Sec. 20, Art. VII, which
states that said power is "subject to such limitations as may be provided under law."
However, as previously discussed, the debt-relief contracts are governed by the terms of
R.A. No. 245, as amended by P.D. No. 142 s. 1973, and therefore were not developed in an
unrestricted setting.
Third Issue: Grave Abuse of Discretion and
Violation of Constitutional Policies
We treat the remaining issues jointly, for in view of the foregoing determination, the
general allegation of grave abuse of discretion on the part of respondents would arise from
the purported violation of various state policies as expressed in the Constitution.
Petitioners allege that the Financing Program violates the constitutional state policies
to promote a social order that will "ensure the prosperity and independence of the nation"
and free "the people from poverty, 6 4 foster "social justice in all phases of national
development," 6 5 and develop a self-reliant and independent national economy effectively
controlled by Filipinos;" 6 6 thus, the contracts executed or to be executed pursuant thereto
were or would be tainted by a grave abuse of discretion amounting to lack or excess of
jurisdiction.
Respondents cite the following in support of the propriety of their acts: 6 7 (1) a
Department of Finance study showing that as a result of the implementation of voluntary
debt reductions schemes, the country's debt stock was reduced by U.S. $4.4 billion as of
December 1991; 6 8 (2) revelations made by independent individuals made in a hearing
before the Senate Committee on Economic Affairs indicating that the assailed agreements
would bring about substantial bene ts to the country; 6 9 and (3) the Joint Legislative-
Executive Foreign Debt Council's endorsement of the approval of the nancing package
containing the debt-relief agreements and issuance of a Motion to Urge the Philippine Debt
Negotiating Panel to continue with the negotiation on the aforesaid package. 7 0
Even with these justi cations, respondents aver that their acts are within the arena of
political questions which, based on the doctrine of separation of powers, 7 1 the judiciary
must leave without interference lest the courts substitute their judgment for that of the
o cial concerned and decide a matter which by its nature or law is for the latter alone to
decide. 7 2
On the other hand, in furtherance of their argument on respondents' violation of
constitutional policies, petitioners cite an article of Jude Esguerra, The 1992 Buyback and
Securitization Agreement with Philippine Commercial Bank Creditors, 7 3 in illustrating a
best-case scenario in entering the subject debt-relief agreements. The computation results
in a yield of $218.99 million, rather than the $2,041.00 million claimed by the debt
negotiators. 7 4 On the other hand, the worst-case scenario allegedly is that a net amount of
$1.638 million will flow out of the country as a result of the debt package. 7 5
Assuming the accuracy of the foregoing for the nonce, despite the watered-down
parameters of petitioners' computations, we can make no conclusion other than that
respondents' efforts were geared towards debt-relief with marked positive results and
towards achieving the constitutional policies which petitioners so hastily declare as having
been violated by respondents. We recognize that as with other schemes dependent on
volatile market and economic structures, the contracts entered into by respondents may
possibly have a net out ow and therefore negative result. However, even petitioners call this
latter event the worst-case scenario. Plans are seldom foolproof. To ask the Court to strike
down debt-relief contracts, which, according to independent third party evaluations using
historically-suggested rates would result in "substantial debt-relief," 7 6 based merely on the
possibility of petitioners' worst-case scenario projection, hardly seems reasonable.
Moreover, the policies set by the Constitution as litanized by petitioners are not a
panacea that can annul every governmental act sought to be struck down. The gist of
petitioners' arguments on violation of constitutional policies and grave abuse of discretion
boils down to their allegation that the debt-relief agreements entered into by respondents
do not deliver the kind of debt-relief that petitioners would want. Petitioners cite the
aforementioned article in stating that that "the agreement achieves little that cannot be
gained through less complicated means like postponing (rescheduling) principal payments,"
7 7 thus:
[T]he price of success in putting together this "debt-relief package"

(indicates) the possibility that a simple rescheduling agreement may well turn out
to be less expensive than this comprehensive "debt-relief" package. This means
that in the next six years the humble and simple rescheduling process may well be
the lesser evil because there is that distinct possibility that less money will ow out
of the country as a result.
Note must be taken that from these citations, petitioners submit that there is
possibly a better way to go about debt rescheduling and, on that basis, insist that the acts
of respondents must be struck down. These are rather tenuous grounds to condemn the
subject agreements as violative of constitutional principles.
Conclusion
The raison d' etre of the Financing Program is to manage debts incurred by the
Philippines in a manner that will lessen the burden on the Filipino taxpayers — thus the term
"debt-relief agreements." The measures objected to by petitioners were not aimed at
incurring more debts but at terminating pre-existing debts and were backed by the know-
how of the country's economic managers as affirmed by third party empirical analysis.
That the means employed to achieve the goal of debt-relief do not sit well with
petitioners is beyond the power of this Court to remedy. The exercise of the power of
judicial review is merely to check — not supplant — the Executive, or to simply ascertain
whether he has gone beyond the constitutional limits of his jurisdiction but not to exercise
the power vested in him or to determine the wisdom of his act. 7 8 In cases where the main
purpose is to nullify governmental acts whether as unconstitutional or done with grave
abuse of discretion, there is a strong presumption in favor of the validity of the assailed
acts. The heavy onus is in on petitioners to overcome the presumption of regularity.
We nd that petitioners have not su ciently established any basis for the Court to
declare the acts of respondents as unconstitutional.
WHEREFORE the petition is hereby DISMISSED. No costs. TcCSIa
SO ORDERED.
Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario and Garcia, JJ., concur.
Davide, Jr., C.J. and Puno, JJ., in the result.
Panganiban, J., see separate opinion.
Separate Opinions
PANGANIBAN J.:
PANGANIBAN,
I agree that the Petition should be dismissed, insofar as it seeks to nullify the subject
EN BANC
[G.R. No. 170165. August 15, 2006.]
B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL. ALEXANDER F.

BALUTAN petitioners, vs . LT./GEN. GENEROSO S. SENGA AS CHIEF
BALUTAN,
OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, COL.
GILBERTO JOSE C. ROA AS THE PRE-TRIAL INVESTIGATING
OFFICER, THE PROVOST MARSHALL GENERAL OF THE ARMED
FORCES OF THE PHILIPPINES AND THE GENERAL COURT-MARTIAL,
COURT-MARTIAL
respondents.
DECISION
TINGA J :
TINGA, p
A most dangerous general proposition is foisted on the Court — that soldiers who
defy orders of their superior o cers are exempt from the strictures of military law and
discipline if such de ance is predicated on an act otherwise valid under civilian law.
Obedience and deference to the military chain of command and the President as
commander-in-chief are the cornerstones of a professional military in the rm cusp of
civilian control. These values of obedience and deference expected of military o cers are
content-neutral, beyond the sway of the o cer's own sense of what is prudent or rash, or
more elementally, of right or wrong. A self-righteous military invites itself as the
scoundrel's activist solution to the "ills" of participatory democracy.
Petitioners seek the annulment of a directive from President Gloria Macapagal-
Arroyo 1 enjoining them and other military o cers from testifying before Congress
without the President's consent. Petitioners also pray for injunctive relief against a pending
preliminary investigation against them, in preparation for possible court-martial
proceedings, initiated within the military justice system in connection with petitioners'
violation of the aforementioned directive.
The Court is cognizant that petitioners, in their defense, invoke weighty
constitutional principles that center on fundamental freedoms enshrined in the Bill of
Rights. Although these concerns will not be addressed to the satisfaction of petitioners,
the Court recognizes these values as of paramount importance to our civil society, even if
not determinative of the resolution of this petition. Had the relevant issue before us been
the right of the Senate to compel the testimony of petitioners, the constitutional questions
raised by them would have come to fore. Such a scenario could have very well been
presented to the Court in such manner, without the petitioners having had to violate a
direct order from their commanding o cer. Instead, the Court has to resolve whether
petitioners may be subjected to military discipline on account of their de ance of a direct
order of the AFP Chief of Staff.
The solicited writs of certiorari and prohibition do not avail; the petition must be
denied.
I.
The petitioners are high-ranking o cers of the Armed Forces of the Philippines
(AFP). Both petitioners, Brigadier General Francisco Gudani (Gen. Gudani) and Lieutenant
Colonel Alexander Balutan (Col. Balutan), belonged to the Philippine Marines. At the time of
the subject incidents, both Gen. Gudani and Col. Balutan were assigned to the Philippine
Military Academy (PMA) in Baguio City, the former as the PMA Assistant Superintendent,
and the latter as the Assistant Commandant of Cadets. 2
On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior
o cers of the AFP to appear at a public hearing before the Senate Committee on National
Defense and Security (Senate Committee) scheduled on 28 September 2005. The hearing
was scheduled after topics concerning the conduct of the 2004 elections emerged in the
public eye, particularly allegations of massive cheating and the surfacing of copies of an
audio excerpt purportedly of a phone conversation between President Gloria Macapagal
Arroyo and an o cial of the Commission on Elections (COMELEC) widely reputed as then
COMELEC Commissioner Virgilio Garcillano. At the time of the 2004 elections, Gen. Gudani
had been designated as commander, and Col. Balutan a member, of "Joint Task Force
Ranao" by the AFP Southern Command. "Joint Task Force Ranao" was tasked with the
maintenance of peace and order during the 2004 elections in the provinces of Lanao del
Norte and Lanao del Sur. 3
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga
(Gen. Senga) were among the several AFP o cers who received a letter invitation from
Sen. Biazon to attend the 28 September 2005 hearing. On 23 September 2005, Gen. Senga
replied through a letter to Sen. Biazon that he would be unable to attend the hearing due to
a previous commitment in Brunei, but he nonetheless "directed other o cers from the AFP
who were invited to attend the hearing." 4
On 26 September 2005, the O ce of the Chief of Staff of the AFP issued a
Memorandum addressed to the Superintendent of the PMA Gen. Cristolito P. Baloing (Gen.
Baloing). It was signed by Lt. Col. Hernando DCA Iriberri in behalf of Gen. Senga. 5 Noting
that Gen. Gudani and Col. Balutan had been invited to attend the Senate Committee hearing
on 28 September 2005, the Memorandum directed the two o cers to attend the hearing.
6 Conformably, Gen. Gudani and Col. Balutan led their respective requests for travel
authority addressed to the PMA Superintendent. TSHcIa
On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the
postponement of the hearing scheduled for the following day, since the AFP Chief of Staff
was himself unable to attend said hearing, and that some of the invited o cers also could
not attend as they were "attending to other urgent operational matters." By this time, both
Gen. Gudani and Col. Balutan had already departed Baguio for Manila to attend the hearing.
Then on the evening of 27 September 2005, at around 10:10 p.m., a message was
transmitted to the PMA Superintendent from the office of Gen. Senga, stating as follows:
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL
SHALL APPEAR BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT
HER APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP AND LTC
ALEXANDER BALUTAN PA (GSC) ACCORDINGLY. 7
The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing
the senator that "no approval has been granted by the President to any AFP o cer to
appear" before the hearing scheduled on that day. Nonetheless, both Gen. Gudani and Col.
Balutan were present as the hearing started, and they both testi ed as to the conduct of
the 2004 elections.
The O ce of the Solicitor General (OSG), representing the respondents before this
Court, has offered additional information surrounding the testimony of Gen. Gudani and
Col. Balutan. The OSG manifests that the couriers of the AFP Command Center had
attempted to deliver the radio message to Gen. Gudani's residence in a subdivision in
Parañaque City late in the night of 27 September 2005, but they were not permitted entry
by the subdivision guards. The next day, 28 September 2005, shortly before the start of the
hearing, a copy of Gen. Senga's letter to Sen. Biazon sent earlier that day was handed at the
Senate by Commodore Amable B. Tolentino of the AFP O ce for Legislative Affairs to
Gen. Gudani, who replied that he already had a copy. Further, Gen. Senga called
Commodore Tolentino on the latter's cell phone and asked to talk to Gen. Gudani, but Gen.
Gudani refused. In response, Gen. Senga instructed Commodore Tolentino to inform Gen.
Gudani that "it was an order," yet Gen. Gudani still refused to take Gen. Senga's call. 8
A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the
o ce of Gen. Senga issued a statement which noted that the two had appeared before the
Senate Committee "in spite of the fact that a guidance has been given that a Presidential
approval should be sought prior to such an appearance;" that such directive was "in
keeping with the time[-]honored principle of the Chain of Command;" and that the two
o cers "disobeyed a legal order, in violation of A[rticles of] W[ar] 65 (Willfully Disobeying
Superior O cer), hence they will be subjected to General Court Martial proceedings . . ."
Both Gen. Gudani and Col. Balutan were likewise relieved of their assignments then. 9
On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-
Arroyo issued Executive Order No. 464 (E.O. 464). The OSG notes that the E.O. "enjoined
o cials of the executive department including the military establishment from appearing
in any legislative inquiry without her approval." 1 0 This Court subsequently ruled on the
constitutionality of the said executive order in Senate v. Ermita . 1 1 The relevance of E.O.
464 and Senate to the present petition shall be discussed forthwith.
In the meantime, on 30 September 2005, petitioners were directed by General
Senga, through Col. Henry A. Galarpe of the AFP Provost Marshal General, to appear before
the O ce of the Provost Marshal General (OPMG) on 3 October 2005 for investigation.
During their appearance before Col. Galarpe, both petitioners invoked their right to remain
silent. 1 2 The following day, Gen. Gudani was compulsorily retired from military service,
having reached the age of 56. 1 3
In an Investigation Report dated 6 October 2005, the OPMG recommended that
petitioners be charged with violation of Article of War 65, on willfully disobeying a superior
o cer, in relation to Article of War 97, on conduct prejudicial to the good order and
military discipline. 1 4 As recommended, the case was referred to a Pre-Trial Investigation
O cer (PTIO) preparatory to trial by the General Court Martial (GCM). 1 5 Consequently, on
24 October 2005, petitioners were separately served with Orders respectively addressed
to them and signed by respondent Col. Gilbert Jose C. Roa, the Pre-Trial Investigating
O cer of the PTIO. The Orders directed petitioners to appear in person before Col. Roa at
the Pre-Trial Investigation of the Charges for violation of Articles 65 1 6 and 97 1 7 of
Commonwealth Act No. 408, 1 8 and to submit their counter-a davits and a davits of
witnesses at the O ce of the Judge Advocate General. 1 9 The Orders were accompanied
by respective charge sheets against petitioners, accusing them of violating Articles of War
65 and 97.

It was from these premises that the present petition for certiorari and prohibition
was led, particularly seeking that (1) the order of President Arroyo coursed through Gen.
Senga preventing petitioners from testifying before Congress without her prior approval
be declared unconstitutional; (2) the charges stated in the charge sheets against
petitioners be quashed; and (3) Gen. Senga, Col. Galarpe, Col. Roa, and their successors-in-
interest or persons acting for and on their behalf or orders, be permanently enjoined from
proceeding against petitioners, as a consequence of their having testi ed before the
Senate on 28 September 2005. 2 0
Petitioners characterize the directive from President Arroyo requiring her prior
approval before any AFP personnel appear before Congress as a "gag order," which
violates the principle of separation of powers in government as it interferes with the
investigation of the Senate Committee conducted in aid of legislation. They also equate
the "gag order" with culpable violation of the Constitution, particularly in relation to the
public's constitutional right to information and transparency in matters of public concern.
Plaintively, petitioners claim that "the Filipino people have every right to hear the
[petitioners'] testimonies," and even if the "gag order" were unconstitutional, it still was
tantamount to "the crime of obstruction of justice." Petitioners further argue that there was
no law prohibiting them from testifying before the Senate, and in fact, they were appearing
in obeisance to the authority of Congress to conduct inquiries in aid of legislation.cHAIES
Finally, it is stressed in the petition that Gen. Gudani was no longer subject to
military jurisdiction on account of his compulsory retirement on 4 October 2005. It is
pointed out that Article 2, Title I of the Articles of War de nes persons subject to military
law as "all officers and soldiers in the active service" of the AFP.
II.
We rst proceed to de ne the proper litigable issues. Notably, the guilt or innocence
of petitioners in violating Articles 65 and 97 of the Articles of War is not an issue before
this Court, especially considering that per records, petitioners have not yet been subjected
to court martial proceedings. Owing to the absence of such proceedings, the correct
inquiry should be limited to whether respondents could properly initiate such proceedings
preparatory to a formal court-martial, such as the aforementioned preliminary
investigation, on the basis of petitioners' acts surrounding their testimony before the
Senate on 28 September 2005. Yet this Court, consistent with the principle that it is not a
trier of facts at rst instance, 2 1 is averse to making any authoritative ndings of fact, for
that function is first for the court-martial court to fulfill.
Thus, we limit ourselves to those facts that are not controverted before the Court,
having been commonly alleged by petitioners and the OSG (for respondents). Petitioners
were called by the Senate Committee to testify in its 28 September 2005 hearing.
Petitioners attended such hearing and testi ed before the Committee, despite the fact
that the day before, there was an order from Gen. Senga (which in turn was sourced "per
instruction" from President Arroyo) prohibiting them from testifying without the prior
approval of the President. Petitioners do not precisely admit before this Court that they
had learned of such order prior to their testimony, although the OSG asserts that at the
very least, Gen. Gudani already knew of such order before he testified. 2 2 Yet while this fact
may be ultimately material in the court-martial proceedings, it is not determinative of this
petition, which as stated earlier, does not proffer as an issue whether petitioners are guilty
of violating the Articles of War.
What the Court has to consider though is whether the violation of the
aforementioned order of Gen. Senga, which emanated from the President, could lead to
any investigation for court-martial of petitioners. It has to be acknowledged as a general
principle 2 3 that AFP personnel of whatever rank are liable under military law for violating a
direct order of an o cer superior in rank. Whether petitioners did violate such an order is
not for the Court to decide, but it will be necessary to assume, for the purposes of this
petition, that petitioners did so.
III.
Preliminarily, we must discuss the effect of E.O. 464 and the Court's ruling in Senate
on the present petition. Notably, it is not alleged that petitioners were in any way
called to task for violating E.O. 464, but instead, they were charged for violating
the direct order of Gen. Senga not to appear before the Senate Committee, an
order that stands independent of the executive order . Distinctions are called for,
since Section 2(b) of E.O. 464 listed "generals and ag o cers of the Armed Forces of the
Philippines and such other o cers who in the judgment of the Chief of Staff are covered
by the executive privilege," as among those public o cials required in Section 3 of E.O.
464 "to secure prior consent of the President prior to appearing before either House of
Congress." The Court in Senate declared both Section 2(b) and Section 3 void, 2 4 and the
impression may have been left following Senate that it settled as doctrine, that the
President is prohibited from requiring military personnel from attending congressional
hearings without having first secured prior presidential consent. That impression is wrong.
Senate turned on the nature of executive privilege, a presidential prerogative which is
encumbered by signi cant limitations. Insofar as E.O. 464 compelled o cials of the
executive branch to seek prior presidential approval before appearing before Congress,
the notion of executive control also comes into consideration. 2 5 However, the ability of
the President to require a military o cial to secure prior consent before appearing before
Congress pertains to a wholly different and independent specie of presidential authority —
the commander-in-chief powers of the President. By tradition and jurisprudence, the
commander-in-chief powers of the President are not encumbered by the same degree of
restriction as that which may attach to executive privilege or executive control.
During the deliberations in Senate, the Court was very well aware of the pendency of
this petition as well as the issues raised herein. The decision in Senate was rendered with
the comfort that the nulli cation of portions of E.O. 464 would bear no impact on the
present petition since petitioners herein were not called to task for violating the executive
order. Moreover, the Court was then cognizant that Senate and this case would ultimately
hinge on disparate legal issues. Relevantly, Senate purposely did not touch upon or rule on
the faculty of the President, under the aegis of the commander-in-chief powers 2 6 to
require military o cials from securing prior consent before appearing before Congress.
The pertinent factors in considering that question are markedly outside of those which did
become relevant in adjudicating the issues raised in Senate. It is in this petition that those
factors come into play.
At this point, we wish to dispose of another peripheral issue before we strike at the
heart of the matter. General Gudani argues that he can no longer fall within the jurisdiction
of the court-martial, considering his retirement last 4 October 2005. He cites Article 2, Title
I of Commonwealth Act No. 408, which de nes persons subject to military law as, among
others, "all o cers and soldiers in the active service of the [AFP]," and points out that he is
no longer in the active service. SECAHa
This point was settled against Gen. Gudani's position in Abadilla v. Ramos , 2 7 where
the Court declared that an o cer whose name was dropped from the roll of o cers
cannot be considered to be outside the jurisdiction of military authorities when military
justice proceedings were initiated against him before the termination of his service. Once
jurisdiction has been acquired over the o cer, it continues until his case is terminated.
Thus, the Court held:
The military authorities had jurisdiction over the person of Colonel Abadilla
at the time of the alleged offenses. This jurisdiction having been vested in the
military authorities, it is retained up to the end of the proceedings against Colonel
Abadilla. Well-settled is the rule that jurisdiction once acquired is not lost upon the
instance of the parties but continues until the case is terminated. 2 8
Citing Colonel Winthrop's treatise on Military Law, the Court further stated:
We have gone through the treatise of Colonel Winthrop and We nd the
following passage which goes against the contention of the petitioners, viz —
3. Offenders in general — Attaching of jurisdiction. It has further

been held, and is now settled law, in regard to military offenders in general,
that if the military jurisdiction has once duly attached to them previous to
the date of the termination of their legal period of service, they may be
brought to trial by court-martial after that date, their discharge being
meanwhile withheld. This principle has mostly been applied to cases
where the offense was committed just prior to the end of the term. In such
cases the interests of discipline clearly forbid that the offender should go
unpunished. It is held therefore that if before the day on which his
service legally terminates and his right to a discharge is
complete, proceedings with a view to trial are commenced against
him — as by arrest or the service of charges, — the military
jurisdiction will fully attach and once attached may be continued
by a trial by court-martial ordered and held after the end of the
term of the enlistment of the accused . . . 2 9
Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the
acts complained of and the initiation of the proceedings against him occurred before he
compulsorily retired on 4 October 2005. We see no reason to unsettle the Abadilla
doctrine. The OSG also points out that under Section 28 of Presidential Decree No. 1638,
as amended, "[a]n o cer or enlisted man carried in the retired list [of the Armed Forces of
the Philippines] shall be subject to the Articles of War . . ." 3 0 To this citation, petitioners do
not offer any response, and in fact have excluded the matter of Gen. Gudani's retirement as
an issue in their subsequent memorandum.
IV.
We now turn to the central issues.
Petitioners wish to see annulled the "gag order" that required them to secure
presidential consent prior to their appearance before the Senate, claiming that it violates
the constitutional right to information and transparency in matters of public concern; or if
not, is tantamount at least to the criminal acts of obstruction of justice and grave coercion.
However, the proper perspective from which to consider this issue entails the examination
of the basis and authority of the President to issue such an order in the rst place to
members of the AFP and the determination of whether such an order is subject to any
limitations.
The vitality of the tenet that the President is the commander-in-chief of the Armed
Forces is most crucial to the democratic way of life, to civilian supremacy over the military,
and to the general stability of our representative system of government. The Constitution
reposes nal authority, control and supervision of the AFP to the President, a civilian who
is not a member of the armed forces, and whose duties as commander-in-chief represent
only a part of the organic duties imposed upon the o ce, the other functions being clearly
civil in nature. 3 1 Civilian supremacy over the military also countermands the notion that the
military may bypass civilian authorities, such as civil courts, on matters such as conducting
warrantless searches and seizures. 3 2
Pursuant to the maintenance of civilian supremacy over the military, the Constitution
has allocated speci c roles to the legislative and executive branches of government in
relation to military affairs. Military appropriations, as with all other appropriations, are
determined by Congress, as is the power to declare the existence of a state of war. 3 3
Congress is also empowered to revoke a proclamation of martial law or the suspension of
the writ of habeas corpus. 3 4 The approval of the Commission on Appointments is also
required before the President can promote military o cers from the rank of colonel or
naval captain. 3 5 Otherwise, on the particulars of civilian dominance and administration
over the military, the Constitution is silent, except for the commander-in-chief clause which
is fertile in meaning and implication as to whatever inherent martial authority the President
may possess. 3 6
The commander-in-chief provision in the Constitution is denominated as Section 18,
Article VII, which begins with the simple declaration that "[t]he President shall be the
Commander-in-Chief of all armed forces of the Philippines . . ." 3 7 Outside explicit
constitutional limitations, such as those found in Section 5, Article XVI, the commander-in-
chief clause vests on the President, as commander-in-chief, absolute authority over the
persons and actions of the members of the armed forces. Such authority includes the
ability of the President to restrict the travel, movement and speech of military o cers,
activities which may otherwise be sanctioned under civilian law. aSAHCE
Reference to Kapunan, Jr. v. De Villa 3 8 is useful in this regard. Lt. Col. Kapunan was
ordered con ned under "house arrest" by then Chief of Staff (later President) Gen. Fidel
Ramos. Kapunan was also ordered, as a condition for his house arrest, that he may not
issue any press statements or give any press conference during his period of detention.
The Court unanimously upheld such restrictions, noting:
[T]he Court is of the view that such is justi ed by the requirements of
military discipline. It cannot be gainsaid that certain liberties of persons
in the military service, including the freedom of speech, may be
circumscribed by rules of military discipline. Thus, to a certain degree,
individual rights may be curtailed, because the effectiveness of the
military in ful lling its duties under the law depends to a large extent
on the maintenance of discipline within its ranks. Hence, lawful orders
must be followed without question and rules must be faithfully
complied with, irrespective of a soldier's personal views on the matter.
matter It
is from this viewpoint that the restrictions imposed on petitioner Kapunan, an
officer in the AFP, have to be considered. 3 9
Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military
way of life circumscribes several of the cherished freedoms of civilian life. It is part and
parcel of the military package. Those who cannot abide by these limitations normally do
not pursue a military career and instead find satisfaction in other fields; and in fact many of
those discharged from the service are inspired in their later careers precisely by their
rebellion against the regimentation of military life. Inability or unwillingness to cope with
military discipline is not a stain on character, for the military mode is a highly idiosyncratic
path which persons are not generally conscripted into, but volunteer themselves to be part
of. But for those who do make the choice to be a soldier, signi cant concessions to
personal freedoms are expected. After all, if need be, the men and women of the armed
forces may be commanded upon to die for country, even against their personal
inclinations.
It may be so that military culture is a remnant of a less democratic era, yet it has
been fully integrated into the democratic system of governance. The constitutional role of
the armed forces is as protector of the people and of the State. 4 0 Towards this end, the
military must insist upon a respect for duty and a discipline without counterpart in civilian
life. 4 1 The laws and traditions governing that discipline have a long history; but they are
founded on unique military exigencies as powerful now as in the past. 4 2 In the end, it must
be borne in mind that the armed forces has a distinct subculture with unique needs, a
specialized society separate from civilian society. 4 3 In the elegant prose of the eminent
British military historian, John Keegan:
[Warriors who ght wars have] values and skills [which] are not those of
politicians and diplomats. They are those of a world apart, a very ancient world,
which exists in parallel with the everyday world but does not belong to it. Both
worlds change over time, and the warrior world adopts in step to the civilian. It
follows it, however, at a distance. The distance can never be closed, for the culture
of the warrior can never be that of civilization itself. . . . 4 4
Critical to military discipline is obeisance to the military chain of command. Willful

disobedience of a superior o cer is punishable by court-martial under Article 65 of the
Articles of War. 4 5 "An individual soldier is not free to ignore the lawful orders or duties
assigned by his immediate superiors. For there would be an end of all discipline if the
seaman and marines on board a ship of war [or soldiers deployed in the eld], on a distant
service, were permitted to act upon their own opinion of their rights [or their opinion of the
President's intent], and to throw off the authority of the commander whenever they
supposed it to be unlawfully exercised ." 4 6
Further traditional restrictions on members of the armed forces are those imposed
on free speech and mobility. Kapunan is ample precedent in justifying that a soldier may be
restrained by a superior o cer from speaking out on certain matters. As a general rule, the
discretion of a military o cer to restrain the speech of a soldier under his/her command
will be accorded deference, with minimal regard if at all to the reason for such restraint. It
is integral to military discipline that the soldier's speech be with the consent and approval
of the military commander.
The necessity of upholding the ability to restrain speech becomes even more
imperative if the soldier desires to speak freely on political matters. The Constitution
requires that "[t]he armed forces shall be insulated from partisan politics," and that '[n]o
member of the military shall engage directly or indirectly in any partisan political activity,
except to vote." 4 7 Certainly, no constitutional provision or military indoctrination will
eliminate a soldier's ability to form a personal political opinion, yet it is vital that such
opinions be kept out of the public eye. For one, political belief is a potential source of
discord among people, and a military torn by political strife is incapable of ful lling its
constitutional function as protectors of the people and of the State. For another, it is
ruinous to military discipline to foment an atmosphere that promotes an active dislike of
or dissent against the President, the commander-in-chief of the armed forces. Soldiers are
constitutionally obliged to obey a President they may dislike or distrust. This fundamental
principle averts the country from going the way of banana republics.
Parenthetically, it must be said that the Court is well aware that our country's recent
past is marked by regime changes wherein active military dissent from the chain of
command formed a key, though not exclusive, element. The Court is not blind to history,
yet it is a judge not of history but of the Constitution. The Constitution, and indeed our
modern democratic order, frown in no uncertain terms on a politicized military, informed
as they are on the trauma of absolute martial rule. Our history might imply that a political
military is part of the natural order, but this view cannot be a rmed by the legal order. The
evolutionary path of our young democracy necessitates a reorientation from this view,
reliant as our socio-political culture has become on it. At the same time, evolution
mandates a similar demand that our system of governance be more responsive to the
needs and aspirations of the citizenry, so as to avoid an environment vulnerable to a
military apparatus able at will to exert an undue influence in our polity.
Of possibly less gravitas, but of equal importance, is the principle that mobility of
travel is another necessary restriction on members of the military. A soldier cannot leave
his/her post without the consent of the commanding o cer. The reasons are self-evident.
The commanding o cer has to be aware at all times of the location of the troops under
command, so as to be able to appropriately respond to any exigencies. For the same
reason, commanding o cers have to be able to restrict the movement or travel of their
soldiers, if in their judgment, their presence at place of call of duty is necessary. At times,
this may lead to unsentimental, painful consequences, such as a soldier being denied
permission to witness the birth of his rst-born, or to attend the funeral of a parent. Yet
again, military life calls for considerable personal sacri ces during the period of
conscription, wherein the higher duty is not to self but to country.IHCESD
Indeed, the military practice is to require a soldier to obtain permission from the
commanding o cer before he/she may leave his destination. A soldier who goes from the
properly appointed place of duty or absents from his/her command, guard, quarters,
station, or camp without proper leave is subject to punishment by court-martial. 4 8 It is
even clear from the record that petitioners had actually requested for travel authority from
the PMA in Baguio City to Manila, to attend the Senate Hearing. 4 9 Even petitioners are well
aware that it was necessary for them to obtain permission from their superiors before
they could travel to Manila to attend the Senate Hearing.
It is clear that the basic position of petitioners impinges on these fundamental
principles we have discussed. They seek to be exempted from military justice for having
traveled to the Senate to testify before the Senate Committee against the express orders
of Gen. Senga, the AFP Chief of Staff. If petitioners' position is a rmed, a considerable
exception would be carved from the unimpeachable right of military o cers to restrict the
speech and movement of their juniors. The ruinous consequences to the chain of
command and military discipline simply cannot warrant the Court's imprimatur on
petitioner's position.
V.
Still, it would be highly myopic on our part to resolve the issue solely on generalities
surrounding military discipline. After all, petitioners seek to impress on us that their acts
are justi ed as they were responding to an invitation from the Philippine Senate, a
component of the legislative branch of government. At the same time, the order for them
not to testify ultimately came from the President, the head of the executive branch of
government and the commander-in-chief of the armed forces.
Thus, we have to consider the question: may the President prevent a member of the
armed forces from testifying before a legislative inquiry? We hold that the President has
constitutional authority to do so, by virtue of her power as commander-in-chief, and that as
a consequence a military o cer who de es such injunction is liable under military justice.
At the same time, we also hold that any chamber of Congress which seeks the appearance
before it of a military o cer against the consent of the President has adequate remedies
under law to compel such attendance. Any military o cial whom Congress summons to
testify before it may be compelled to do so by the President. If the President is not so
inclined, the President may be commanded by judicial order to compel the attendance of
the military o cer. Final judicial orders have the force of the law of the land which the
President has the duty to faithfully execute. 5 0
Explication of these principles is in order.
As earlier noted, we ruled in Senate that the President may not issue a blanket
requirement of prior consent on executive o cials summoned by the legislature to attend
a congressional hearing. In doing so, the Court recognized the considerable limitations on
executive privilege, and a rmed that the privilege must be formally invoked on speci ed
grounds. However, the ability of the President to prevent military o cers from
testifying before Congress does not turn on executive privilege, but on the Chief
Executive's power as commander-in-chief to control the actions and speech of
members of the armed forces. The President's prerogatives as commander-in-
chief are not hampered by the same limitations as in executive privilege.
Our ruling that the President could, as a general rule, require military o cers to seek
presidential approval before appearing before Congress is based foremost on the notion
that a contrary rule unduly diminishes the prerogatives of the President as commander-in-
chief. Congress holds signi cant control over the armed forces in matters such as budget
appropriations and the approval of higher-rank promotions, 5 1 yet it is on the President
that the Constitution vests the title as commander-in-chief and all the prerogatives and
functions appertaining to the position. Again, the exigencies of military discipline and the
chain of command mandate that the President's ability to control the individual members
of the armed forces be accorded the utmost respect. Where a military o cer is torn
between obeying the President and obeying the Senate, the Court will without hesitation
a rm that the o cer has to choose the President. After all, the Constitution prescribes
that it is the President, and not the Senate, who is the commander-in-chief of the armed
forces. 5 2
At the same time, the refusal of the President to allow members of the military to
appear before Congress is still subject to judicial relief. The Constitution itself recognizes
as one of the legislature's functions is the conduct of inquiries in aid of legislation. 5 3
Inasmuch as it is ill-advised for Congress to interfere with the President's power as
commander-in-chief, it is similarly detrimental for the President to unduly interfere with
Congress's right to conduct legislative inquiries. The impasse did not come to pass in this
petition, since petitioners testi ed anyway despite the presidential prohibition. Yet the
Court is aware that with its pronouncement today that the President has the right to
require prior consent from members of the armed forces, the clash may soon loom or
actualize.
We believe and hold that our constitutional and legal order sanctions a modality by
which members of the military may be compelled to attend legislative inquiries even if the
President desires otherwise, a modality which does not offend the Chief Executive's
prerogatives as commander-in-chief. The remedy lies with the courts .
The fact that the executive branch is an equal, coordinate branch of government to
the legislative creates a wrinkle to any basic rule that persons summoned to testify before
Congress must do so. There is considerable interplay between the legislative and
executive branches, informed by due deference and respect as to their various
constitutional functions. Reciprocal courtesy idealizes this relationship; hence, it is only as
a last resort that one branch seeks to compel the other to a particular mode of behavior.
The judiciary, the third coordinate branch of government, does not enjoy a similar dynamic
with either the legislative or executive branches. Whatever weakness inheres on judicial
power due to its inability to originate national policies and legislation, such is balanced by
the fact that it is the branch empowered by the Constitution to compel obeisance to its
rulings by the other branches of government. CDAHIT
As evidenced by Arnault v. Nazareno 5 4 and Bengzon v. Senate Blue Ribbon

Committee, 5 5 among others, the Court has not shirked from reviewing the exercise by
Congress of its power of legislative inquiry. 5 6 Arnault recognized that the legislative
power of inquiry and the process to enforce it, "is an essential and appropriate auxiliary to
the legislative function." 5 7 On the other hand, Bengzon acknowledged that the power of
both houses of Congress to conduct inquiries in aid of legislation is not "absolute or
unlimited", and its exercise is circumscribed by Section 21, Article VI of the Constitution. 5 8
From these premises, the Court enjoined the Senate Blue Ribbon Committee from
requiring the petitioners in Bengzon from testifying and producing evidence before the
committee, holding that the inquiry in question did not involve any intended legislation.
Senate a rmed both the Arnault and Bengzonrulings. It elucidated on the
constitutional scope and limitations on the constitutional power of congressional inquiry.
Thus:
As discussed in Arnault, the power of inquiry, "with process to enforce it," is
grounded on the necessity of information in the legislative process. If the
information possessed by executive o cials on the operation of their o ces is
necessary for wise legislation on that subject, by parity of reasoning, Congress
has the right to that information and the power to compel the disclosure thereof.
As evidenced by the American experience during the so-called "McCarthy

era", however, the right of Congress to conduct inquirites in aid of legislation is, in
theory, no less susceptible to abuse than executive or judicial power. It may thus
be subjected to judicial review pursuant to the Court's certiorari powers under
Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee , the inquiry
itself might not properly be in aid of legislation, and thus beyond the
constitutional power of Congress. Such inquiry could not usurp judicial functions.
Parenthetically, one possible way for Congress to avoid such result as occurred in
Bengzon is to indicate in its invitations to the public o cials concerned, or to any
person for that matter, the possible needed statute which prompted the need for
the inquiry. Given such statement in its invitations, along with the usual indication
of the subject of inquiry and the questions relative to and in furtherance thereof,
there would be less room for speculation on the part of the person invited on
whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes critical safeguards that proscribe

the legislative power of inquiry. The provision requires that the inquiry be done in
accordance with the Senate or House's duly published rules of procedure,
necessarily implying the constitutional in rmity of an inquiry conducted without
duly published rules of procedure. Section 21 also mandates that the rights of
persons appearing in or affected by such inquiries be respected, an imposition
that obligates Congress to adhere to the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper
suit led by the persons affected, even if they belong to the executive branch.
Nonetheless, there may be exceptional circumstances . . . wherein a clear pattern
of abuse of the legislative power of inquiry might be established, resulting in
palpable violations of the rights guaranteed to members of the executive
department under the Bill of Rights. In such instances, depending on the
particulars of each case, attempts by the Executive Branch to forestall these
abuses may be accorded judicial sanction 5 9 .
In Senate, the Court ruled that the President could not impose a blanket prohibition
barring executive officials from testifying before Congress without the President's consent
notwithstanding the invocation of executive privilege to justify such prohibition. The Court
did not rule that the power to conduct legislative inquiry ipso facto superseded the claim
of executive privilege, acknowledging instead that the viability of executive privilege stood
on a case to case basis. Should neither branch yield to the other branch's assertion, the
constitutional recourse is to the courts, as the nal arbiter if the dispute. It is only the
courts that can compel, with conclusiveness, attendance or non-attendance in legislative
inquiries.
Following these principles, it is clear that if the President or the Chief of Staff
refuses to allow a member of the AFP to appear before Congress, the legislative body
seeking such testimony may seek judicial relief to compel the attendance. Such judicial
action should be directed at the heads of the executive branch or the armed forces, the
persons who wield authority and control over the actions of the o cers concerned. The
legislative purpose of such testimony, as well as any defenses against the same — whether
grounded on executive privilege, national security or similar concerns — would be
accorded due judicial evaluation. All the constitutional considerations pertinent to either
branch of government may be raised, assessed, and ultimately weighed against each
other. And once the courts speak with nality, both branches of government have no
option but to comply with the decision of the courts, whether the effect of the decision is
to their liking or disfavor.
Courts are empowered, under the constitutional principle of judicial review, to
arbitrate disputes between the legislative and executive branches of government on the
proper constitutional parameters of power. 6 0 This is the fair and workable solution
implicit in the constitutional allocation of powers among the three branches of
government. The judicial lter helps assure that the particularities of each case would
ultimately govern, rather than any overarching principle unduly inclined towards one branch
of government at the expense of the other. The procedure may not move as expeditiously
as some may desire, yet it ensures thorough deliberation of all relevant and cognizable
issues before one branch is compelled to yield to the other. Moreover, judicial review does
not preclude the legislative and executive branches from negotiating a mutually acceptable
solution to the impasse. After all, the two branches, exercising as they do functions and
responsibilities that are political in nature, are free to smooth over the thorns in their
relationship with a salve of their own choosing. DTIcSH
And if emphasis be needed, if the courts so rule, the duty falls on the
shoulders of the President, as commander-in-chief, to authorize the appearance
of the military o cers before Congress. Even if the President has earlier
disagreed with the notion of o cers appearing before the legislature to testify,
the Chief Executive is nonetheless obliged to comply with the nal orders of the
courts.
Petitioners have presented several issues relating to the tenability or wisdom of the
President's order on them and other military o cers not to testify before Congress
without the President's consent. Yet these issues ultimately detract from the main point —
that they testi ed before the Senate despite an order from their commanding o cer and
their commander-in-chief for them not to do so, 6 1 in contravention of the traditions of
military discipline which we a rm today. The issues raised by petitioners could have very
well been raised and properly adjudicated if the proper procedure was observed.
Petitioners could have been appropriately allowed to testify before the Senate without
having to countermand their Commander-in-chief and superior o cer under the setup we
have prescribed.
We consider the other issues raised by petitioners unnecessary to the resolution of
this petition.
Petitioners may have been of the honest belief that they were defying a direct order
of their Commander-in-Chief and Commanding General in obeisance to a paramount idea
formed within their consciences, which could not be lightly ignored. Still, the Court, in turn,
is guided by the superlative principle that is the Constitution, the embodiment of the
national conscience. The Constitution simply does not permit the infraction which
petitioners have allegedly committed, and moreover, provides for an orderly manner by
which the same result could have been achieved without offending constitutional
principles.
WHEREFORE, the petition is DENIED. No pronouncement as to costs. ECaScD
SO ORDERED.
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Carpio-Morales, Callejo, Sr., Chico-Nazario, Garcia and Velasco, Jr., JJ.,
concur.
Corona, J., is on leave.
Azcuna, J., is on official Business.
Footnotes
1. Initially denominated as the lead respondent in this petition. However, in a Resolution

dated 15 November 2005, the Court ordered the dismissal of the petition as against
President Arroyo, owing to her immunity from suit during her incumbency as President.
See rollo, p. 87. See also Estrada v. Desierto, G.R. Nos. 146710-15 & 146738, 2 March

Petitioner Vs Vs Respondent: en Banc

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Petitioner Vs Vs Respondent: en Banc

Загружено:

Авторское право:

Доступные форматы

EN BANC

[G.R. No. 191618. November 23, 2010.]

ATTY. ROMULO B. MACALINTAL , petitioner, vs . PRESIDENTIAL

Confronting us is an undesignated petition 1 led by Atty. Romulo B. Macalintal

While petitioner concedes that the Supreme Court is "authorized to promulgate

Grudgingly, petitioner throws us a bone by acknowledging that the invoked

WHETHER . . . PETITIONER HAS LOCUS STANDI TO FILE THE INSTANT

WHETHER . . . THE CREATION OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS

WHETHER . . . THE DESIGNATION OF MEMBERS OF THE SUPREME COURT AS

In his Reply, 7 petitioner maintains that:

2. The question of constitutionality must be raised by the proper party;

However, to prevent just about any person from seeking judicial

direct injury " test in our jurisdiction. In People v.

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

(4) for concerned citizens,

Similarly, in her separate opinion, Justice Alicia Austria-Martinez declared:

The Supreme Court, as a Presidential Electoral Tribunal (PET), the Senate

We had earlier expounded on this rule of construction in Chiongbian v. De Leon, et

Before we resort to the records of the Constitutional Commission, we discuss

xxx xxx xxx

I think Commissioner Bernas explained that this is a contest

Thank you very much, Madam President.

Precisely, this is necessary. Election contests are, by their nature,

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

President Recto. — Neither does the American constitution contain a

Are we not giving enormous work to the Supreme Court especially

That question will be referred to Commissioner Concepcion.

I see. So the Commission would not have any objection to vesting

Personally, I would not have any objection.

I think Commissioner Bernas explained that this is a contest between two

If the election contest proved to be long, burdensome and tedious,

Although there is a requirement here that the Supreme Court is mandated

Insofar as the Supreme Court is concerned, the Supreme Court always

In one year. Thank you for the clarification. 3 5

My questions will be very basic so we can go as fast as we can. In the case

xxx xxx xxx

If it is a constitutional body, is it then subject to constitutional restrictions?

It would be subject to constitutional restrictions intended for that body.

Yes, they are not separate departments because the separate

The view taken by Justices Adolfo S. Azcuna 4 0 and Regalado E. Maambong 4 1 is

"There shall be an independent Presidential Electoral Tribunal . . .

In all of these instances, the co u rt (court of rst instance or

WHEREFORE , the petition is DISMISSED.

1.Rollo, pp. 3-9.

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

[G.R. No. 191618. June 7, 2011.]

ATTY. ROMULO B. MACALINTAL , petitioner, vs . PRESIDENTIAL

Before us is a Motion for Reconsideration led by petitioner Atty. Romulo B.

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

We mapped out the discussions of the Constitutional Commission on the

xxx xxx xxx

The Electoral Tribunal itself will establish and promulgate its

On another point of discussion relative to the grant of judicial power, but

Would the Commissioner not consider that violative of the doctrine of

If the election contest proved to be long, burdensome and tedious,

I am not sure whether Commissioner Suarez has expressed his point. On

May I seek clari cation as to whether or not the matter of

No, I really do not feel that would be a problem. This is a new

We feel that it will not be an intrusion into the separation of

May I know the rationale of the Committee because this supersedes

Precisely, this is necessary. Election contests are, by their nature,

To foreclose all arguments of petitioner, we reiterate that the establishment

Stubbornly, despite the explicit reference of the Members of the Constitutional