MACALINTAL VS.

PET

FACTS:

Atty. Macalintal filed a petition that question the constitutionality of the Presidential Electoral Tribunal (PET) as an illegal and unauthorized
progency of Sec. 4, Article VII of the Constitution.

Macalintal highlighted the Supreme Court’s decision in the case of Buac vs. COMELEC which declared that contests involving the
President and the Vice-President fell within the exclusive original jurisdiction of the PET, in the exercise of quasi-judicial power. On this
point, petitioner reiterated that the constitution of 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.

The OSG commented that the petition was unspecified and without statutory basis and that the liberal approach in its preparation is a
violation of the well-known rules of practice and pleading in this jurisdiction.

ISSUES:

Whether or not Section 4, Article VII of the Constitution does not provide for the creation of the Presidential Electoral Tribunal.
Whether or not the PET violates Section 12, Article VIII of the Constitution.

RULING:

NO! 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 constitutional
provision.

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).

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.

The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution which provides that the power “shall be vested
in one Supreme Court and in such lower courts as may be established by law.” Consistent with our presidential system of government,
the function of “dealing with the settlement of disputes, controversies or conflicts involving rights, duties or prerogatives that are legally
demandable and enforceable” 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.

The set up embodied in the Constitution and statutes characterize 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 filed by the proper party — if there
is a showing that the decision was rendered with grave abuse of discretion tantamount to lack or excess of jurisdiction.

It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or vice-presidential election disputes, it performs
what is essentially a judicial power. 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.

The PET is not simply an agency to which Members of the Court were designated. As intended by the framers of the Constitution, the
PET is to be an independent institution, but not separate, from the judicial department, i.e., the Supreme Court.
 MACALINTAL VS. PET

FACTS:

Before us is a Motion for Reconsideration filed by petitioner Atty. Romulo B. Macalintal of our Decision 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.
[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). Petitioner cites the concurring opinion of Justice Teresita J.
Leonardo-de Castro that the PTC is a public office 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 Office 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 firm 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."

ISSUE:

Whether or not PET is unconstitutional.

RULING:

NO! 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.

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.

Suffice it to state that the Constitution, verbose as it already is, cannot contain the specific wording required by petitioner in order for him
to accept the constitutionality of the PET.

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.

PORMENTO VS. ESTRADA

FACTS:

Estrada was elected President in the May 1998 elections. He sought the presidency again in the May 2010 elections. Pormento opposed
Estrada’s candidacy and filed a petition for disqualification. COMELEC (Division) denied his petition as well as his subsequent Motion for
Reconsideration (En Banc). Pormento then filed the present petition for certiorari before the Court. In the meantime, Estrada was able to
participate as a candidate for President in the May 10, 2010 elections where he garnered the second highest number of votes.

ISSUE:

Whether or not Estrada is disqualified to run for presidency in the May 2010 elections in view of the prohibition in the Constitution which
states that: "[t]he President shall not be eligible for any reelection.

RULING:
CASE DISMISSED! Estrada was not elected President the second time he ran. Since the issue on the proper interpretation of the phrase
any reelection will be premised on a persons second (whether immediate or not) election as President, there is no case or controversy to
be resolved in this case. No live conflict of legal rights exists. There is in this case no definite, concrete, real or substantial controversy
that touches on the legal relations of parties having adverse legal interests. No specific relief may conclusively be decreed upon by this
Court in this case that will benefit any of the parties herein. As such, one of the essential requisites for the exercise of the power of judicial
review, the existence of an actual case or controversy, is sorely lacking in this case.

As a rule, this Court may only adjudicate actual, ongoing controversies. The Court is not empowered to decide moot questions or abstract
propositions, or to declare principles or rules of law which cannot affect the result as to the thing in issue in the case before it. In other
words, when a case is moot, it becomes non-justiciable.

An action is considered moot when it no longer presents a justiciable controversy because the issues involved have become academic
or dead or when the matter in dispute has already been resolved and hence, one is not entitled to judicial intervention unless the issue is
likely to be raised again between the parties. There is nothing for the court to resolve as the determination thereof has been overtaken
by subsequent events.

Assuming an actual case or controversy existed prior to the proclamation of a President who has been duly elected in the May 10, 2010
elections, the same is no longer true today. Following the results of that elections, private respondent was not elected President for the
second time. Thus, any discussion of his reelection will simply be hypothetical and speculative. It will serve no useful or practical purpose.

FUNA VS. ERMITA

FACTS:

This is a petition for certiorari, prohibition and mandamus under Rule 65 with prayer for the issuance of a temporary restraining order
and/or writ of preliminary injunction, to declare as unconstitutional the designation of respondent Undersecretary Maria Elena H. Bautista
as Officer-in-Charge (OIC) of the Maritime Industry Authority (MARINA).

On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent Maria Elena H. Bautista (Bautista) as Undersecretary of
the Department of Transportation and Communications (DOTC).

On September 1, 2008, following the resignation of then MARINA Administrator Vicente T. Suazo, Jr., Bautista was designated as Officer-
in-Charge (OIC), Office of the Administrator, MARINA, in concurrent capacity as DOTC Undersecretary.

On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned citizen and lawyer, filed the instant petition challenging
the constitutionality of Bautista’s appointment/designation, which is proscribed by the prohibition on the President, Vice-President, the
Members of the Cabinet, and their deputies and assistants to hold any other office or employment.

On January 5, 2009, during the pendency of this petition, Bautista was appointed Administrator of the MARINA and she assumed her
duties and responsibilities as such on February 2, 2009.

Petitioner argues that Bautista’s concurrent positions as DOTC Undersecretary and MARINA OIC is in violation of Section 13, Article VII
of the 1987 Constitution .

On the other hand, the respondents argue that the requisites of a judicial inquiry are not present in this case. In fact, there no longer
exists an actual controversy that needs to be resolved in view of the appointment of respondent Bautista as MARINA Administrator
effective February 2, 2009 and the relinquishment of her post as DOTC Undersecretary for Maritime Transport, which rendered the
present petition moot and academic. Petitioner’s prayer for a temporary restraining order or writ of preliminary injunction is likewise moot
and academic since, with this supervening event, there is nothing left to enjoin.

ISSUE:

Whether or not the designation of respondent Bautista as OIC of MARINA, concurrent with the position of DOTC Undersecretary for
Maritime Transport to which she had been appointed, violated the constitutional proscription against dual or multiple offices for Cabinet
Members and their deputies and assistants.

RULING:

YES! Petitioner having alleged a grave violation of the constitutional prohibition against Members of the Cabinet, their deputies and
assistants holding two (2) or more positions in government, the fact that he filed this suit as a concerned citizen sufficiently confers him
with standing to sue for redress of such illegal act by public officials.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration
thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness.
But even in cases where supervening events had made the cases moot, this Court did not hesitate to resolve the legal or constitutional
issues raised to formulate controlling principles to guide the bench, bar, and public. In the present case, the mootness of the petition does
not bar its resolution.

Resolution of the present controversy hinges on the correct application of Section 13, Article VII of the 1987 Constitution, which provides:
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided
in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice
any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege
granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations
or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure, be
appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.

On the other hand, Section 7, paragraph (2), Article IX-B reads:

Sec. 7. x x x

Unless otherwise allowed by law or the primary functions of his position, no appointive official shall hold any other office or employment
in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries.

Noting that the prohibition imposed on the President and his official family is all-embracing, the disqualification was held to be absolute,
as the holding of "any other office" is not qualified by the phrase "in the Government" unlike in Section 13, Article VI prohibiting Senators
and Members of the House of Representatives from holding "any other office or employment in the Government"; and when compared
with other officials and employees such as members of the armed forces and civil service employees, we concluded thus:

These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed
on other public officials or employees such as the Members of Congress, members of the civil service in general and members of the
armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to impose
upon said class stricter prohibitions.

Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their
tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants
may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the
general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the
exception applicable only to the President, the Vice-President, Members of the Cabinet, their deputies and assistants.

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President,
members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government during
their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is
prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the privilege of holding m ultiple
government offices or employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended
to be a positive and unequivocal negation. The phrase "unless otherwise provided in this Constitution" must be given a literal interpretation
to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the
Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article
VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

Respondent Bautista being then the appointed Undersecretary of DOTC, she was thus covered by the stricter prohibition under Section
13, Article VII and consequently she cannot invoke the exception provided in Section 7, paragraph 2, Article IX-B where holding another
office is allowed by law or the primary functions of the position. Neither was she designated OIC of MARINA in an ex-officio capacity,
which is the exception recognized in Civil Liberties Union.

Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of
a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless
he is replaceable at pleasure because of the nature of his office. Designation, on the other hand, connotes merely the imposition by law
of additional duties on an incumbent official, as where, in the case before us, the Secretary of Tourism is designated Chairman of the
Board of Directors of the Philippine Tourism Authority, or where, under the Constitution, three Justices of the Supreme Court are
designated by the Chief Justice to sit in the Electoral Tribunal of the Senate or the House of Representatives. It is said that appointment
is essentially executive while designation is legislative in nature.

Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified
public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the
implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this
sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person
named.

FUNA VS. AGRA

FACTS:
Funa 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;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 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.

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;that on March 5, 2010, President Arroyo designated him also as the Acting Secretary of Justice
vice Secretary Devanadera who had meanwhile tendered her resignation in order to run for Congress representing a district in Quezon
Province in the May 2010 elections; that he then relinquished his position as the Government Corporate Counsel; and that pending the
appointment of his successor, Agra continued to perform his duties as the Acting Solicitor General.

Notwithstanding the conflict in the versions of the parties, the fact that Agra has admitted to holding the two offices concurrently in acting
capacities is settled, which is sufficient for purposes of resolving the constitutional question that petitioner raises herein.

The appointments being hereby challenged were in acting or temporary capacities. Still, the petitioner submits that the prohibition under
Section 13, Article VII of the 1987 Constitution does not distinguish between an appointment or designation of a Member of the Cabinet
in an acting or temporary capacity, on the one hand, and one in a permanent capacity, on the other hand; and that Acting Secretaries,
being nonetheless Members of the Cabinet, are not exempt from the constitutional ban. He emphasizes that the position of the Solicitor
General is not an ex officio position in relation to the position of the Secretary of Justice, considering that the Office of the Solicitor General
(OSG) is an independent and autonomous office attached to the Department of Justice (DOJ). He insists that the fact that Agra was
extended an appointment as the Acting Solicitor General shows that he did not occupy that office in an ex officio capacity because an ex
officio position does not require any further warrant or appointment.

Respondents contend, in contrast, that Agra concurrent designations as the Acting Secretary of Justice and Acting Solicitor General were
only in a temporary capacity, the only effect of which was to confer additional duties to him. Thus, as the Acting Solicitor General and
Acting Secretary of Justice, Agra was not "holding" both offices in the strict constitutional sense. 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 concurrent designation constituted "holding of multiple offices," his
continued service as the Acting Solicitor General was akin to a hold-over; that upon Agra designation as the Acting Secretary of Justice,
his term as the Acting Solicitor General expired in view of the constitutional prohibition against holding of multiple offices by the Members
of the Cabinet; that under the principle of hold-over, Agra continued his service as the Acting Solicitor General "until his successor is
elected and qualified" to "prevent a hiatus in the government pending the time when a successor may be chosen and inducted into office;"
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.

ISSUE:

Whether or not the designation of Agra as the Acting Secretary of Justice, concurrently with his position of Acting Solicitor General,
violates the constitutional prohibition against dual or multiple offices.

RULING:

YES! The evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President,
members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government during
their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is
prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the privilege of holding m ultiple
government offices or employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended
to be a positive and unequivocal negation. The phrase "unless otherwise provided in this Constitution" must be given a literal interpretation
to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the
Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article
VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

Being designated as the Acting Secretary of Justice concurrently with his position of Acting Solicitor General, therefore, Agra was
undoubtedly covered by Section 13, Article VII, supra, whose text and spirit were too clear to be differently read. Hence, Agra could not
validly hold any other office or employment during his tenure as the Acting Solicitor General, because the Constitution has not otherwise
so provided.

It was of no moment that Agra designation was in an acting or temporary capacity. The text of Section 13,supra, plainly indicates that the
intent of the Framers of the Constitution was to impose a stricter prohibition on the President and the Members of his Cabinet in so far as
holding other offices or employments in the Government or in government-owned or government controlled-corporations was concerned.
In this regard, to hold an office means to possess or to occupy the office, or to be in possession and administration of the office, which
implies nothing less than the actual discharge of the functions and duties of the office. Indeed, in the language of Section 13 itself, supra,
the Constitution makes no reference to the nature of the appointment or designation. The prohibition against dual or multiple offices being
held by one official must be construed as to apply to all appointments or designations, whether permanent or temporary, for it is without
question that the avowed objective of Section 13, supra, is to prevent the concentration of powers in the Executive Department officials.
To construe differently is to "open the veritable floodgates of circumvention of an important constitutional disqualification of officials in the
Executive Department and of limitations on the President power of appointment in the guise of temporary designations of Cabinet
Members, undersecretaries and assistant secretaries as officers-in-charge of government agencies, instrumentalities, or government-
owned or controlled corporations."

According to Public Interest Center, Inc. v. Elma, the only two exceptions against the holding of multiple offices are: (1) those provided
for under the Constitution, such as Section 3, Article VII, authorizing the Vice President to become a member of the Cabinet; and (2)
posts occupied by Executive officials specified in Section 13, Article VII without additional compensation in ex officio capacities as provided
by law and as required by the primary functions of the officials offices. In this regard, the decision in Public Interest Center, Inc. v. Elma
adverted to the resolution issued on August 1, 1991 in Civil Liberties Union v. The Executive Secretary, whereby the Court held that the
phrase "the Members of the Cabinet, and their deputies or assistants" found in Section 13, supra, referred only to the heads of the various
executive departments, their undersecretaries and assistant secretaries, and did not extend to other public officials given the rank of
Secretary, Undersecretary or Assistant Secretary.

It is equally remarkable, therefore, that Agra designation as the Acting Secretary of Justice was not in an ex officio capacity, by which he
would have been validly authorized to concurrently hold the two positions due to the holding of one office being the consequence of
holding the other. Being included in the stricter prohibition embodied in Section 13, supra, Agra cannot liberally apply in his favor the
broad exceptions provided in Section 7, paragraph 2, Article IX-B of the Constitution to justify his designation as Acting Secretary of
Justice concurrently with his designation as Acting Solicitor General, or vice versa.

To underscore the obvious, it is not sufficient for Agra to show that his holding of the other office was "allowed by law or the primary
functions of his position." To claim the exemption of his concurrent designations from the coverage of the stricter prohibition under Section
13, supra, he needed to establish herein that his concurrent designation was expressly allowed by the Constitution. But, alas, he did not
do so.

The magnitude of the scope of work of the Solicitor General, if added to the equally demanding tasks of the Secretary of Justice, is
obviously too much for any one official to bear. Apart from the sure peril of political pressure, the concurrent holding of the two positions,
even if they are not entirely incompatible, may affect sound government operations and the proper performance of duties.

DE CASTRO VS. JBC

FACTS:

The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the coming presidential elections on
May 10, 2010.

These cases trace their genesis to the controversy that has arisen from the forthcoming compulsory retirement of Chief Justice Puno on
May 17, 2010, or seven days after the presidential election. Under Section 4(1), in relation to Section 9, Article VIII, that “vacancy shall
be filled within ninety days from the occurrence thereof” from a “list of at least three nominees prepared by the Judicial and Bar Council
for every vacancy.” Also considering that Section 15, Article VII (Executive Department) of the Constitution prohibits the President or
Acting President from making appointments within two months immediately before the next presidential elections and up to the end of his
term, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger
public safety.

The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling up the position of Chief Justice.
Conformably with its existing practice, the JBC “automatically considered” for the position of Chief Justice the five most senior of the
Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice
Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the
last two declined their nomination through letters dated January 18, 2010 and January 25, 2010, respectively.

The OSG contends that the incumbent President may appoint the next Chief Justice, because the prohibition under Section 15, Article
VII of the Constitution does not apply to appointments in the Supreme Court. It argues that any vacancy in the Supreme Court must be
filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the Constitution; that had the framers intended the
prohibition to apply to Supreme Court appointments, they could have easily expressly stated so in the Constitution, which explains why
the prohibition found in Article VII (Executive Department) was not written in Article VIII (Judicial Department); and that the framers also
incorporated in Article VIII ample restrictions or limitations on the President’s power to appoint members of the Supreme Court to ensure
its independence from “political vicissitudes” and its “insulation from political pressures,” such as stringent qualifications for the positions,
the establishment of the JBC, the specified period within which the President shall appoint a Supreme Court Justice.

A part of the question to be reviewed by the Court is whether the JBC properly initiated the process, there being an insistence from some
of the oppositors-intervenors that the JBC could only do so once the vacancy has occurred (that is, after May 17, 2010). Another part is,
of course, whether the JBC may resume its process until the short list is prepared, in view of the provision of Section 4(1), Article VIII,
which unqualifiedly requires the President to appoint one from the short list to fill the vacancy in the Supreme Court (be it the Chief Justice
or an Associate Justice) within 90 days from the occurrence of the vacancy.

ISSUE:

Whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement.
RULING:

YES! Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to other
appointments to the Judiciary.

Two constitutional provisions are seemingly in conflict.

The first, Section 15, Article VII (Executive Department), provides: Section 15. Two months immediately before the next presidential
elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger public safety.

The other, Section 4 (1), Article VIII (Judicial Department), states: Section 4. (1). The Supreme Court shall be composed of a Chief Justice
and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be
filled within ninety days from the occurrence thereof.

Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme
Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily
and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of
the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the
prohibition against the President or Acting President making appointments within two months before the next presidential elections and
up to the end of the President’s or Acting President’s term does not refer to the Members of the Supreme Court.

Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme
Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily
and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of
the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the
prohibition against the President or Acting President making appointments within two months before the next presidential elections and
up to the end of the President’s or Acting President’s term does not refer to the Members of the Supreme Court.

Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the President to appoint. The
fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that Section 15 also
applies only to the Executive Department. This conclusion is consistent with the rule that every part of the statute must be interpreted
with reference to the context, i.e. that every part must be considered together with the other parts, and kept subservient to the general
intent of the whole enactment. It is absurd to assume that the framers deliberately situated Section 15 between Section 14 and Section
16, if they intended Section 15 to cover all kinds of presidential appointments. If that was their intention in respect of appointments to the
Judiciary, the framers, if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely within
Section 4 (1) thereof.

VELICARIA-GARAFIL VS. OFFICE OF THE PRESIDENT

FACTS:

The present consolidated cases involve four petitions: G.R. No. 203372 with Atty. Cheloy E. Velicaria-Garafil (Atty. Velicaria-Garafil), who
was appointed State Solicitor II at the Office 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.

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 cutoff 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.
On 30 June 2010, President Benigno S. Aquino III (President Aquino) took his oath of office 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.

ISSUES:

(1) Whether or not petitioners' appointments did not violate Section 15, Article VII of the 1987 Constitution, and
(2) Whether or not EO 2 is constitutional.

RULIING:

1. NO! All of petitioners’ appointments are midnight appointments and are void for violation of Section 15, Article VII of the 1987
Constitution. 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.” 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.

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;

The President's exercise of his power to appoint officials is provided for in the Constitution and laws. Discretion is an integral part in the
exercise of the power of appointment. Considering that appointment calls for a selection, the appointing power necessarily exercises a
discretion.

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 qualified among those who have the necessary qualifications and eligibilities.

(2) transmittal of the appointment paper and evidence of the 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 signifies the President's intent of its issuance.

For purposes of verification 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.

(3) a vacant position at the time of appointment; and

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.

(4) receipt of the appointment paper and acceptance of the appointment by the appointee who possesses all the qualifications and none
of the disqualifications.

Acceptance is indispensable to complete an appointment. Assuming office and taking the oath amount to acceptance of the appointment.
An oath of office is a qualifying requirement for a public office, a prerequisite to the full investiture of the office.

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.

2. NO! 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.

Principle:

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 office, the official 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... office or his or her assumption to office.

The President exercises only one 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... he 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 qualifications and none of the
disqualifications. 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.

HONTIVEROS-BARAQUEL VS. TOLL REGULATORY BOARD

FACTS:

Toll Regulatory Board (TRB) was created on 31 March 1977 in order to supervise and regulate, on behalf of the government, the collection
of toll fees and the operation of toll facilities by the private sector. Under PD 113, The Philippine National Construction Corporation was
granted the right, privilege, and authority to construct, operate, and maintain toll facilities in the North and South Luzon Toll Expressways
for a period of 30 years starting 1 May 1977

TRB and PNCC later entered into a Toll Operation Agreement, which prescribed the operating conditions of the right granted to PNCC
under P.D. 1113.

P.D. 1113 was amended by P.D. 1894 which granted PNCC the right, privilege, and authority to construct, maintain, and operate the
North Luzon, South Luzon and Metro Manila Expressways, together with the toll facilities appurtenant thereto.

September 1993, PNCC entered into an agreement with PT Citra Lamtoro Gung Persada (CITRA), a limited liability company organized
and established under the laws of the Republic of Indonesia, whereby the latter committed to provide PNCC with a pre-feasibility study
on the proposed MME project.

In order to accelerate the actual implementation of both the MME and the MMS projects, PNCC and CITRA entered into a second
agreement. Through that agreement, CITRA committed to finance and undertake the preparation, updating, and revalidation of previous
studies on the construction, operation, and maintenance of the projects.

As a result of the feasibility and related studies, PNCC and CITRA submitted, through the TRB, a Joint Investment Proposal (JIP) to the
Republic of the Philippines. The JIP embodied the implementation schedule for the financing, design and construction... of the MMS in
three stages: the South Metro Manila Skyway, the North Metro Manila Skyway, and the Central Metro Manila Skywa

August 1995, PNCC and CITRA entered into a Business and Joint Venture Agreement[10] and created the Citra Metro Manila Tollways
Corporation (CMMTC).

On 27 November 1995, the Republic of the Philippines through the TRB as Grantor, CMMTC as Investor, and PNCC as Operator executed
a Supplemental Toll Operation Agreement (STOA)[11] covering Stage 1, Phases 1 and 2; and Stage 2, Phase 1 of the South Metro

Manila Skyway... operation and maintenance of the project roads became the primary and exclusive privilege and responsibility of the
PNCC

Skyway Corporation (PSC), a wholly owned subsidiary of PNCC, which undertook and performed the latter's obligations under the STOA.

18 July 2007, the Republic of the Philippines, through the TRB, CMMTC, and PNCC executed the assailed Amendment to the
Supplemental Toll Operation Agreement (ASTOA).

ASTOA incorporated the amendments, revisions, and modifications necessary to... cover the design and construction of Stage 2 of the
South Metro Manila Skyway. Also under the ASTOA, Skyway O & M Corporation (SOMCO) replaced PSC in performing the operations
and maintenance of Stage 1 of the South Metro Manila Skyway.

(E.O.) 497

January 2006, Department of Transportation and Communications (DOTC) Secretary Leandro Mendoza approved the ASTOA through
the challenged Memorandum dated 20 July

21 December 2007, PNCC, PSC, and CMMTC entered into the assailed Memorandum of Agreement (MOA)[16] providing for the
successful and seamless assumption by SOMCO of the operations and maintenance of Stage 1 of the South Metro Manila Skyway.
Under the MOA,... PSC received the amount of ?320 million which was used for the settlement of its liabilities arising from the consequent
retrenchment or separation of its affected employees.

TRB issued the challenged Toll Operation Certificate (TOC)[17] to SOMCO

2007, authorizing the latter to operate and maintain Stage 1 of the South Metro Manila Skyway effective 10:00 p.m. on 31 December
2007.

January 2008, petitioners PTMSDWO and PNCC Skyway Corporation Employees Union (PSCEU) filed before the Regional Trial Court
of Parañaque City, Branch 258 (RTC), a complaint against respondents TRB, PNCC, PSC, CMMTC, and SOMCO. The complaint was
for injunction and... prohibition with a prayer for a writ of preliminary injunction and/or a temporary restraining order, and sought to prohibit
the implementation of the ASTOA and the MOA, as well as the assumption of the toll operations by SOMCO.[21] Petitioners PSCEU and
PTMSDWO also sought the subsequent nullification of the ASTOA and the MOA for being contrary to law and for being grossly
disadvantageous to the government.

Petitioners argue that the franchise for toll operations was exclusively vested by P.D. 1113 in PNCC,... By agreeing to the arrangement
whereby SOMCO would replace PSC in the toll operations and... management, PNCC seriously breached the terms and conditions of its
undertaking under the franchise and effectively abdicated its rights and privileges in favor of SOMCO.

OMCO was highly irregular and contrary to law, because 1) it did not indicate the conditions that shall be imposed on SOMCO as provided
under P.D. 1112;[41] 2) none of the requirements on public bidding, negotiations, or... even publication was complied with before the
issuance of the TOC to SOMCO; 3) applying the stricter "grandfather rule," SOMCO does not qualify as a facility operator as defined
under R.A. 6957,[42] as amended by R.A. 7718;[43] and 4)... there were no public notices and hearings conducted wherein all legitimate
issues and concerns about the transfer of the toll operations would have been properly ventilated.

approval by the DOTC Secretary of the ASTOA could not take the place of the presidential approval required under P.D. 1113[44] and
P.D. 1894[45] concerning the franchise granted to PNCC.

ll respondents counter that petitioners do not have the requisite legal standing to file the petition.

All... p... titioners violate the hierarchy of courts... espondents argue that nothing in the ASTOA, the approval thereof by the DOTC
Secretary, the MOA, or the TOC was violative of the Constitution.

authority to operate a public utility can be granted by administrative agencies when authorized by law.

P.D. 1112, the TRB is empowered to grant authority and enter into contracts for the construction, operation, and... maintenance of a toll
facility,[57] such as the ASTOA in this case. Also, the ASTOA was an amendment, not to the legislative franchise of PNCC, but to the
STOA previously executed between the Republic of the Philippines through the TRB, PNCC, and

CMMTC

PNCC's franchise was never sold, transferred, or otherwise assigned to SOMCO[59] in the same way that PSC's previous assumption of
the operation and maintenance of the South Metro Manila Skyway did not amount to a... sale, transfer or assignment of PNCC's
franchise... no valid objection to the approval of the ASTOA by the DOTC Secretary, because he was authorized by the President to do
so by virtue of E.O. 497.

no merit in the claim that the TOC granted to SOMCO was highly irregular and contrary to law. First, the TOC clearly states that the toll
operation and maintenance by SOMCO shall be regulated by the Republic of the Philippines in accordance with

P.D. 1112, the STOA, the toll operations and maintenance rules and regulations, and lawful orders, instructions, and conditions that may
be imposed from time to time.[64] Second, there is no need to comply with the public bidding and negotiation... requirements, because
the South Metro Manila Skyway is an ongoing project, not a new one.[65] Furthermore, the STOA, which was the basis for the ASTOA,
was concluded way before the effectivity of R.A. 9184[66] in 2003.[67]

SOMCO is a Filipino corporation with substantial 72% Filipino ownership.[68] Fourth, the law requires prior notice and hearing only in an
administrative body's exercise of quasi-judicial functions.[69] In this case, the transfer... of the toll operations and maintenance to SOMCO
was a contractual arrangement entered into in accordance with law.[70]

Finally, the assumption of the toll operation and maintenance by SOMCO is not disadvantageous to the government. Petitioners belittle
the P2.5 million capitalization of SOMCO, considering that PSC's capitalization at the time it was incorporated was merely P500,000.

ASTOA, PNCC shall get a direct share in the toll revenues without any corollary obligation, unlike the arrangement in the STOA whereby
PNCC's 10% share in the toll revenues was intended primarily for the toll operation and maintenance by

PSC.[72]... no reason to fear that the assumption by SOMCO would result in poor delivery of toll services. CITRA and the other
shareholders of SOMCO are entities with experience and proven track record in toll operations.[73]

Also, SOMCO hired or absorbed more than 300 PSC employees,[74] who brought with them their work expertise and experience.

ISSUES:

Whether the TRB has the power to grant authority to operate a toll facility;
Whether the TOC issued to SOMCO was valid;
Whether the approval of the ASTOA by the DOTC Secretary was valid; and
Whether the assumption of toll operations by SOMCO is disadvantageous to the governmen

RULING:

YES! TRB has the power to grant authority to operate a toll facility.
clear that Sections 3 (a) and (e) of P.D. 1112 in relation to Section 4 of P.D. 1894 have invested the TRB with sufficient power to grant a
qualified person or entity with authority to construct, maintain, and operate a toll facility and to issue the... corresponding toll operating
permit or TOC.

Section 3. Powers and Duties of the Board. The Board shall have in addition to its general powers of administration the following powers
and duties:

(a) Subject to the approval of the President of the Philippines, to enter into contracts in behalf of the Republic of the Philippines with
persons, natural or juridical, for the construction, operation and maintenance of toll facilities such as but not limited to national... highways,
roads, bridges, and public thoroughfares. Said contract shall be open to citizens of the Philippines and/or to corporations or associations
qualified under the Constitution and authorized by law to engage in toll operations;... x x x x

(e) To grant authority to operate a toll facility and to issue therefore the necessary "Toll Operation Certificate" subject to such conditions
as shall be imposed by the Board including inter alia the following:

(1)

That the Operator shall desist from collecting toll upon the expiration of the Toll Operation Certificate.

(2)

That the entire facility operated as a toll system including all operation and maintenance equipment directly related thereto shall be turned
over to the government immediately upon the expiration of the Toll Operation Certificate.

(3)

That the toll operator shall not lease, transfer, grant the usufruct of, sell or assign the rights or privileges acquired under the Toll Operation
Certificate to any person, firm, company, corporation or other commercial or legal entity, nor merge with any... other company or
corporation organized for the same purpose, without the prior approval of the President of the Philippines. In the event of any valid transfer
of the Toll Operation Certificate, the Transferee shall be subject to all the conditions, terms, restrictions and... limitations of this Decree
as fully and completely and to the same extent as if the Toll Operation Certificate has been granted to the same person, firm, company,
corporation or other commercial or legal entity.

(4)

That in time of war, rebellion, public peril, emergency, calamity, disaster or disturbance of peace and order, the President of the Philippines
may cause the total or partial closing of the toll facility or order to take over thereof by the Government... without prejudice to the payment
of just compensation.

(5)

That no guarantee, Certificate of Indebtedness, collateral, securities, or bonds shall be issued by any government agency or government-
owned or controlled corporation on any financing program of the toll operator in connection with his undertaking under the

Toll Operation Certificate.

(6)

The Toll Operation Certificate may be amended, modified or revoked whenever the public interest so requires.

(a)

The Board shall promulgate rules and regulations governing the procedures for the grant of Toll Certificates. The rights and privileges of
a grantee under a Toll Operation Certificate shall be defined by the Board.

(b)

To issue rules and regulations to carry out the purposes of this Decree.

SECTION 4. The Toll Regulatory Board is hereby given jurisdiction and supervision over the GRANTEE with respect to the Expressways,
the toll facilities necessarily appurtenant thereto and, subject to the provisions of Section 8 and 9 hereof, the toll that the GRANTEE will
charge... the users thereof.

nothing in P.D. 1113 or P.D. 1894 that states that... the franchise granted to PNCC is to the exclusion of all others.

if we were to go by the theory of petitioners, it is only the operation and maintenance of the toll facilities that is vested with PNCC. This
interpretation is contrary to the wording of P.D. 1113 and P.D. 1894 granting PNCC the right, privilege and authority to... construct, operate
and maintain the North Luzon, South Luzon and Metro Manila Expressways and their toll facilities.
operation and maintenance of the project roads were the primary and exclusive privilege and responsibility of PNCC through PSC... under
the STOA. On the other hand, the design and construction of the project roads were the primary and exclusive privilege and responsibility
of CMMTC.

However, with the execution of the ASTOA, the parties agreed that SOMCO shall replace PSC in undertaking the operations and...
maintenance of the project roads. Thus, the "exclusivity clause" was a matter of agreement between the parties, which amended it in a
later contract; it was not a matter provided under the law.

TRB is also empowered to modify, amend, and impose additional conditions on the franchise of PNCC in an appropriate contract,
particularly when public interest calls... for it.

ECTION 3. This franchise is granted subject to such conditions as may be imposed by the [Toll Regulatory] Board in an appropriate
contract to be executed for this purpose, and with the understanding and upon the condition that it shall be subject to amendment,...
alteration or repeal when public interest so requires.

xxx

SECTION 6. This franchise is granted subject to such conditions, consistent with the provisions of this Decree, as may be imposed by
the Toll Regulatory Board in the Toll Operation Agreement and such other modifications or amendments that may be made thereto, and
with the... understanding and upon the condition that it shall be subject to amendment or alteration when public interest so dictates.

STOA, which further modified the franchise. PNCC cannot be said to have breached its franchise when it transferred the... toll operations
to SOMCO. PNCC remained the franchise holder for the construction, operation, and maintenance of the project roads; it only opted to
partner with investors in the exercise of its franchise leading to the organization of companies such as PSC and SOMCO.

considering that PNCC was granted the right, privilege, and authority to construct, operate, and maintain the North Luzon, South Luzon,
and Metro Manila Expressways and their toll facilities, we have not heard petitioners decrying the "breach" by PNCC of its franchise...
when it agreed to make CMMTC responsible for the design and construction of the project roads under the STOA.

he TOC issued to SOMCO was not irregular.

The TOC issued to SOMCO was not irregular.

TOC, as a grant of authority from the government, is subject to the latter's control insofar as the grant affects or concerns the public.

authorization is issued upon the clear understanding that the operation and maintenance of Stage 1 of the South Metro Manila Skyway
as a toll facility and the collection of toll fees shall be closely supervised and regulated by the Grantor, by and through the Board of

Directors, in accordance with the terms and conditions set forth in the STOA, as amended, the rules and regulations duly promulgated
by the Grantor for toll road operations and maintenance, as well as the lawful orders, instructions and conditions which the Grantor,
through the

TRB, may impose from time to time in view of the public nature of the facility.

allegation that none of the requirements for public bidding was observed before the TOC was issued to SOMCO, this matter was also
squarely answered by the Court in Francisco, Jr. v. TRB,[106] to wit:

Where, in the instant case, a franchisee undertakes the tollway projects of construction, rehabilitation and expansion of the tollways under
its franchise, there is no need for a public bidding. In pursuing the projects with the vast resource requirements, the... franchisee can
partner with other investors, which it may choose in the exercise of its management prerogatives.

Under the STOA in this case, PNCC partnered with CMMTC in Stages 1 and 2 of the South Metro Manila Skyway. The STOA gave birth
to PSC, which was put in charge of the operation and maintenance of the project roads. The ASTOA had to be executed for Stage 2 to
accommodate changes... and modifications in the original design.

The ASTOA then brought forth the incorporation of SOMCO to replace PSC in the operations and maintenance of Stage 1 of the South
Metro Manila Skyway. Clearly, no public bidding was necessary because PNCC, the franchisee, merely exercised... its management
prerogative when it decided to undertake the construction, operation, and maintenance of the project roads through companies which are
products of joint ventures with chosen partners.

petitioners have not shown how SOMCO... fails to meet the nationality requirement for a public utility operator. Petitioners only aver in
their petition that 40% of SOMCO is owned by CMMTC, a foreign company, while the rest is owned by the following: a) Toll Road
Operation and Maintenance Venture Corporation (TROMVC),... almost 40% of which is owned by a Singaporean company; b)
Assetvalues Holding Company, Inc. (AHCI), of which almost 40% is Dutch-owned; and c) Metro Strategic Infrastructure Holdings, Inc.
(MSIHI), 40% of which is owned by Metro Pacific Corporation, whose ownership or... nationality was not specified.[108]... rebut petitioners'
allegations, respondents readily present matrices showing the itemization of percentage ownerships of the subscribed capital stock of
SOMCO, as well as that of TROMVC, AHCI, and MSIHI. Respondents attempt to show that all these corporations are of
Philippine nationality, with 60% of their capital stock owned by Filipino citizens.

no public notices and hearings were necessary prior to the issuance of the TOC to SOMCO. For the same reason that a public bidding
is not necessary, PNCC cannot be required to call for public hearings concerning matters within its prerogative.

Approval of the ASTOA by the

DOTC Secretary was approval by... the President.

The doctrine of qualified political agency declares that, save in matters on which the Constitution or the circumstances require the
President to act personally, executive and administrative functions are exercised through executive departments headed by cabinet
secretaries,... whose acts are presumptively the acts of the President unless disapproved by the latter... ower to grant franchises or issue
authorizations for the operation of a public utility is not exclusively exercised by Congress. Second, except where the situation falls within
that special class that demands the exclusive and personal exercise by the

President of constitutionally vested power,[117] the President acts through alter egos whose acts are as if the Chief Executive's own.

Third, no lease, transfer, grant of usufruct, sale, or assignment of franchise by PNCC or its merger with another company ever took
place... creation of the TRB and the grant of franchise to PNCC were made in the light of the recognition on the part of the government
that the private sector had to be involved as an alternative source of financing for the pursuance of national infrastructure projects. As
the... franchise holder for the construction, maintenance and operation of infrastructure toll facilities, PNCC was equipped with the right
and privilege, but not necessarily the means, to undertake the project. This is where joint ventures with private investors become...
necessary.

In joint ventures with investor companies, PNCC contributes the franchise it possesses, while the partner contributes the financing both
necessary for the construction, maintenance, and operation of the toll facilities. PNCC did not thereby lease, transfer, grant the usufruct...
of, sell, or assign its franchise or other rights or privileges. This remains true even though the partnership acquires a distinct and separate
personality from that of the joint venturers or leads to the formation of a new company that is the product of such joint venture, such... as
PSC and SOMCO in this case.

Petitioners have not shown that the... transfer of toll operations to SOMCO was... grossly disadvantageous to the government.

Gross" means glaring, reprehensible, culpable, flagrant, and shocking.[120] It requires that the mere... allegation shows that the
disadvantage on the part of the government is unmistakable, obvious, and certain.

llegations of petitioners are nothing more than speculations, apprehensions, and supposition... ns.

The aim in the establishment of toll facilities is to draw from private resources the financing of government infrastructure projects. Naturally,
these private investors would want to receive reasonable return on their investments. Thus, the collection of toll fees for the use... of
public improvements has been authorized, subject to supervision and regulation by the national government

As regards the P320... million settlement given to PSC, the amount was to be used principally for the payment of its liabilities of PSC
arising... from the retrenchment of its employees. We note that under the MOA, the residual assets of PSC shall still be offered for sale
to CMMTC, subject to valuation.[122] Thus, it would be inaccurate to say that PSC would receive only P320 million for the entire...
arrangement.

understandable that SOMCO does not yet have a proven track record in toll operations, considering that it was only the ASTOA and the
MOA that gave birth to it.

KULAYAN VS. TAN

FACTS:

The calling-out powers contemplated under the Constitution is exclusive to the President. An exercise by another official, even if he is the
local chief executive, is ultra vires, and may not be justi ed by the invocation of Section 465 of the Local Government Code.

Three members from the International Committee of the Red Cross (ICRC) were kidnapped in the vicinity of the Provincial Capitol in
Patikul, Sulu. Andres Notter, Eugenio Vagni, and Marie Jean Lacaba, were purportedly inspecting a water sanitation project for the Sulu
Provincial Jail when they were seized by three armed men who were later confirmed to be members of the Abu Sayyaf Group (ASG). A
Local Crisis Committee, later renamed Sulu Crisis Management Committee (Committee) was then formed to investigate the kidnapping
incident. The Committee convened under the leadership of respondent Abdusakur Mahail Tan, the Provincial Governor of Sulu.

Governor Tan issued Proclamation No. 1, Series of 2009, declaring a state of emergency in the province of Sulu. The Proclamation cited
the kidnapping incident as a ground for the said declaration, describing it as a terrorist act pursuant to the Human Security Act (R.A.
9372). It also invoked Section 465 of the Local Government Code of 1991 (R.A. 7160), which bestows on the Provincial Governor the
power to carry out emergency measures during man-made and natural disasters and calamities, and to call upon the appropriate national
law enforcement agencies to suppress disorder and lawless violence. In the Proclamation, Tan called upon the PNP and the Civilian
Emergency Force (CEF) to set up checkpoints and chokepoints, conduct general search and seizures including arrests, and other actions
necessary to ensure public safety.

Petitioners, Jamar Kulayan, et al. claimed that Proclamation No. 1-09 was issued ultra vires, and thus null and void, for violating Sections
1 and 18, Article VII of the Constitution, which grants the President sole authority to exercise emergency powers and calling-out powers
as the chief executive of the Republic and commander-in-chief of the armed forces.

ISSUE:

Whether or not a governor exercise the calling-out powers of a President?

RULING:

NO! It has already been established that there is one repository of executive powers, and that is the President of the Republic. This
means that when Section 1, Article VII of the Constitution speaks of executive power, it is granted to the President and no one else.
Corollarily, it is only the President, as Executive, who is authorized to exercise emergency powers as provided under Section 23, Article
VI, of the Constitution, as well as what became known as the calling-out powers under Section 7, Article VII thereof.

Springing from the well-entrenched constitutional precept of One President is the notion that there are certain acts which, by their very
nature, may only be performed by the president as the Head of the State. One of these acts or prerogatives is the bundle of Commander-
in-Chief powers to which the “calling-out” powers constitutes a portion.

The power to declare a state of martial law is subject to the Supreme Court’s authority to review the factual basis thereof. By constitutional
fiat, the calling-out powers, which is of lesser gravity than the power to declare martial law, is bestowed upon the President alone.

While the President is still a civilian, Article II, Section 3 of the Constitution mandates that civilian authority is, at all times, supreme over
the military, making the civilian president the nation’s supreme military leader. The net effect of Article II, Section 3, when read with Article
VII, Section 18, is that a civilian President is the ceremonial, legal and administrative head of the armed forces. The Constitution does
not require that the President must be possessed of military training and talents, but as Commander-in-Chief, he has the power to direct
military operations and to determine military strategy. Normally, he would be expected to delegate the actual command of the armed
forces to military experts; but the ultimate power is his.

In the case of Integrated Bar of the Philippines v. Zamora, the Court had occasion to rule that the calling-out powers belong solely to the
President as commander-in-chief:

When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a
discretionary power solely vested in his wisdom.

Regarding the country’s police force, Section 6, Article XVI of the Constitution states that: “The State shall establish and maintain one
police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission.
The authority of local executives over the police units in their jurisdiction shall be provided by law.”

A local chief executive, such as the provincial governor, exercises operational supervision over the police, and may exercise control only
in day-to-day operations. Furthermore according to the framers, it is still the President who is authorized to exercise supervision and
control over the police, through the National Police Commission.

In the discussions of the Constitutional Commission regarding the above provision it is clear that the framers never intended for local
chief executives to exercise unbridled control over the police in emergency situations. This is without prejudice to their authority over
police units in their jurisdiction as provided by law, and their prerogative to seek assistance from the police in day to day situations, as
contemplated by the Constitutional Commission. But as a civilian agency of the government, the police, through the NAPOLCOM, properly
comes within, and is subject to, the exercise by the President of the power of executive control.

Given the foregoing, Governor Tan is not endowed with the power to call upon the armed forces at his own bidding. In issuing the assailed
proclamation, Governor Tan exceeded his authority when he declared a state of emergency and called upon the Armed Forces, the
police, and his own Civilian Emergency Force. The calling-out powers contemplated under the Constitution is exclusive to the President.
An exercise by another official, even if he is the local chief executive, is ultra vires, and may not be justified by the invocation of Section
465 of the Local Government Code.

Respondents, however, justify this stance by stating that nowhere in the seminal case of David v. Arroyo, which dealt squarely with the
issue of the declaration of a state of emergency, does it limit the said authority to the President alone. Respondents contend that the
ruling in David expressly limits the authority to declare a national emergency, a condition which covers the entire country, and does not
include emergency situations in local government units. This claim is belied by the clear intent of the framers that in all situations involving
threats to security, such as lawless violence, invasion or rebellion, even in localized areas, it is still the President who possesses the sole
authority to exercise calling-out powers.

AMPATUAN VS. PUNO

FACTS:
On November 24, 2009, the day after the gruesome massacre of 57 men and women, including some news reporters, then President
Gloria Macapagal-Arroyo issued Proclamation 1946, placing "the Provinces of Maguindanao and Sultan Kudarat and the City of Cotabato
under a state of emergency." She directed the AFP and the PNP "to undertake such measures as may be allowed by the Constitution
and by law to prevent and suppress all incidents of lawless violence" in the named places.

Three days later or on November 27, President Arroyo also issued AO 273 "transferring" supervision of the ARMM from the Office of the
President to the DILG. But, due to issues raised over the terminology used in AO 273, the President issued Administrative Order 273-A
(AO 273-A) amending the former, by "delegating" instead of "transferring" supervision of the ARMM to the DILG.

Claiming that the President's issuances encroached on the ARMM's autonomy, petitioners Datu Zaldy Uy Ampatuan, Ansaruddin Adiong,
and Regie Sahali-Generale, all ARMM officials, filed this petition for prohibition under Rule 65. They alleged that the proclamation and
the orders empowered the DILG Secretary to take over ARMMs operations and seize the regional government's powers, in violation of
the principle of local autonomy under Republic Act 9054 (also known as the Expanded ARMM Act) and the Constitution. The President
gave the DILG Secretary the power to exercise, not merely administrative supervision, but control over the ARMM since the latter could
suspend ARMM officials and replace them.

Petitioners alleged that the deployment of troops and the taking over of the ARMM constitutes an invalid exercise of the Presidents
emergency powers. Hence, petitioners prayed the nullity of Proclamation 1946 as well as AOs 273 and 273-A and respondents, DILG
Secretary, the AFP, and the PNP be enjoined from implementing them.

In its comment for the respondents, the (OSG) insisted that the President issued Proclamation 1946, not to deprive the ARMM of its
autonomy, but to restore peace and order in subject places. She issued the proclamation pursuant to her "calling out" power as
Commander-in-Chief under the first sentence of Section 18, Article VII of the Constitution. The determination of the need to exercise this
power rests solely on her wisdom.10 She must use her judgment based on intelligence reports and such best information as are available
to her to call out the armed forces to suppress and prevent lawless violence wherever and whenever these reared their ugly heads.

On the other hand, the President merely delegated through AOs 273 and 273-A her supervisory powers over the ARMM to the DILG
Secretary who was her alter ego any way. These orders did not authorize a take over of the ARMM. They did not give him blanket
authority to suspend or replace ARMM officials. The delegation was necessary to facilitate the investigation of the mass killings. Further,
the assailed proclamation and administrative orders did not provide for the exercise of emergency powers.

ISSUES:

[1] Whether the aforementioned issuances are constitutional

[2] Whether or not President Arroyo invalidly exercised emergency powers when she called out the AFP and the PNP to prevent and
suppress all incidents of lawless violence in Maguindanao, Sultan Kudarat, and Cotabato City

RULING:

The AO Nos 273 and 273-A are constitutional.

POLITICAL LAW emergency powers

The deployment is not by itself an exercise of emergency powers as understood under Section 23 (2), Article VI of the Constitution, which
provides:

SECTION 23. x x x (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited
period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national
policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

The President did not proclaim a national emergency, only a state of emergency in the three places mentioned. And she did not act
pursuant to any law enacted by Congress that authorized her to exercise extraordinary powers. The calling out of the armed forces to
prevent or suppress lawless violence in such places is a power that the Constitution directly vests in the President. She did not need a
congressional authority to exercise the same.

The President's call on the armed forces to prevent or suppress lawless violence springs from the power vested in her under Section 18,
Article VII of the Constitution, which provides -

SECTION 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary,
he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. x x x

On the other hand, the President, as Commander-in-Chief has a vast intelligence network to gather information, some of which may be
classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be
imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the decision
to call out the military to prevent or suppress lawless violence must be done swiftly and decisively if it were to have any effect at all.

Here, petitioners failed to show that the declaration of a state of emergency in the Provinces of Maguindanao, Sultan Kudarat and
Cotabato City, as well as the President's exercise of the "calling out" power had no factual basis. They simply alleged that, since not all
areas under the ARMM were placed under a state of emergency, it follows that the takeover of the entire ARMM by the DILG Secretary
had no basis too.
Considering the fact that the principal victims of the brutal bloodshed are members of the Mangudadatu family and the main perpetrators
of the brutal killings are members and followers of the Ampatuan family, both the military and police had to prepare for and prevent
reported retaliatory actions from the Mangudadatu clan and additional offensive measures from the Ampatuan clan.

In other words, the imminence of violence and anarchy at the time the President issued Proclamation 1946 was too grave to ignore and
she had to act to prevent further bloodshed and hostilities in the places mentioned. Progress reports also indicated that there was
movement in these places of both high-powered firearms and armed men sympathetic to the two clans. Thus, to pacify the peoples fears
and stabilize the situation, the President had to take preventive action. She called out the armed forces to control the proliferation of loose
firearms and dismantle the armed groups that continuously threatened the peace and security in the affected places.

FORTUN VS. MACAPAGAL-ARROYO

FACTS:

On 24 November 2009, the day after the Maguindanao Massacre, then Pres. Arroyo issued Proclamation 1946, declaring a state of
emergency in Maguindanao, Sultan Kudarat, and Cotabato City. Believing that she needed greater authority to put order in Maguindanao,
on December 4, 2009 President Arroyo issued Presidential Proclamation 1959 declaring martial law and suspending the privilege of the
writ of habeas corpus in that province. On December 6, she submitted her report to Congress. On December 9, the Congress, in joint
session, convened to review the validity of the President's action. But, two days later or on December 12 before Congress could act, the
President issued Presidential Proclamation 1963, lifting martial law and restoring the privilege of the writ of habeas corpus in
Maguindanao. Petitioners brought the present action to challenge the constitutionality of Proclamation 1959.

ISSUE:

Whether or not there is a need for the Court to review the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus in this case, considering the same were lifted within a few days after being issued
and thus Congress was not able to affirm or maintain the same based on its own evaluation?

RULING:

The issue of the constitutionality of Proclamation 1959 is not unavoidable for two reasons:

One. President Arroyo withdrew her proclamation of martial law and suspension of the privilege of the writ of habeas corpus before the
joint houses of Congress could fulfill their automatic duty to review and validate or invalidate the same. Section 18, Article VII of the 1987
Constitution state:
Sec. 18. The President shall be the Commander‑in‑Chief of all armed forces of the Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty‑eight hours from the proclamation of martial law or the suspension of the
privilege of writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly,
by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension , which
revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend
such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety
requires it.

The Congress, if not in session, shall, within twenty‑four hours following such proclamation or suspension, convene in accordance with
its rules without any need of a call.
Although the above vests in the President the power to proclaim martial law or suspend the privilege of the writ of habeas corpus, he
shares such power with the Congress. Thus:

1. The Presidents proclamation or suspension is temporary, good for only 60 days;

2. He must, within 48 hours of the proclamation or suspension, report his action in person or in writing to Congress;

3. Both houses of Congress, if not in session must jointly convene within 24 hours of the proclamation or suspension for the purpose of
reviewing its validity; and

4. The Congress, voting jointly, may revoke or affirm the Presidents proclamation or suspension, allow their limited effectivity to lapse, or
extend the same if Congress deems warranted.

It is evident that under the 1987 Constitution the President and the Congress act in tandem in exercising the power to proclaim martial
law or suspend the privilege of the writ of habeas corpus. They exercise the power, not only sequentially, but in a sense jointly since,
after the President has initiated the proclamation or the suspension, only the Congress can maintain the same based on its own evaluation
of the situation on the ground, a power that the President does not have.

Consequently, although the Constitution reserves to the Supreme Court the power to review the sufficiency of the factual basis of the
proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress to exercise its own review powers, which is
automatic rather than initiated. Only when Congress defaults in its express duty to defend the Constitution through such review should
the Supreme Court step in as its final rampart. The constitutional validity of the Presidents proclamation of martial law or suspension of
the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the
Court.

Here, President Arroyo withdrew Proclamation 1959 before the joint houses of Congress, which had in fact convened, could act on the
same. Consequently, the petitions in these cases have become moot and the Court has nothing to review. The lifting of martial law and
restoration of the privilege of the writ of habeas corpus in Maguindanao was a supervening event that obliterated any justiciable
controversy.

Two. Since President Arroyo withdrew her proclamation of martial law and suspension of the privilege of the writ of habeas corpus in just
eight days, they have not been meaningfully implemented. The military did not take over the operation and control of local government
units in Maguindanao. The President did not issue any law or decree affecting Maguindanao that should ordinarily be enacted by
Congress. No indiscriminate mass arrest had been reported. Those who were arrested during the period were either released or promptly
charged in court. Indeed, no petition for habeas corpus had been filed with the Court respecting arrests made in those eight days. The
point is that the President intended by her action to address an uprising in a relatively small and sparsely populated province. In her
judgment, the rebellion was localized and swiftly disintegrated in the face of a determined and amply armed government presence.

In a real sense, the proclamation and the suspension never took off. The Congress itself adjourned without touching the matter, it having
become moot and academic.

The Court has in exceptional cases passed upon issues that ordinarily would have been regarded as moot. But the present cases do not
present sufficient basis for the exercise of the power of judicial review.

LAGMAN VS. MEDIALDEA

FACTS:

Effective May 23, 2017, and for a period not exceeding 60 days, President Rodrigo Roa Duterte issued Proclamation No. 216 declaring
a state of martial law and suspending the privilege of the writ of habeas corpus in the whole of Mindanao.

In accordance with Section 18, Article VII of the Constitution, the President, on May 25, 2017, submitted to Congress a written Report on
the factual basis of Proclamation No. 216.

The Report pointed out that for decades, Mindanao

has been plagued with rebellion and lawless violence which only escalated and worsened with the passing of time.
On May 23, 2017, as the President stated in his Report, the Maute terrorist group took over a hospital in Marawi City; established several
checkpoints within the city; burned down certain government and private facilities and inflicted casualties on the part of Government
forces; and started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas, thereby indicating a removal of allegiance
from the Philippine Government and their capability to deprive the duly constituted authorities – the President, foremost – of their powers
and prerogatives.

The Report also highlighted the strategic location of Marawi City; the role it plays in Mindanao, and the Philippines as a whole; and the
possible tragic repercussions once it falls under the control of the lawless groups.

After the submission of the Report and the briefings, the Senate declared that it found “no compelling reason to revoke Proclamation 216.
The Lagman Group, the Cullamat Group and the Mohamad Group petitioned the Supreme Court, questioning the factual basis of
President Duterte’s Proclamation of martial law.

ISSUES:

[1] W/N the petitions are the “appropriate proceeding” covered by paragraph 3, Section 18, Article VII of the Constitution sufficient to
invoke the mode of review required by the Court;

[2] A. Is the President required to be factually correct or only not arbitrary in his appreciation of facts? B. Is the President required to
obtain the favorable recommendation thereon bf the Secretary of National Defense? C. Is the President is required to take into account
only the situation at the time of the proclamation, even if subsequent events prove the situation to have not been accurately reported?

[3] Is the power of this Court to review the sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus is independent of the actual actions that have been taken by Congress jointly or separately;

[4] W/N there were sufficient factual [basis] for the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus; A. What are the parameters for review? B. Who has the burden of proof? C. What is the threshold of evidence?

[5] Whether the exercise of the power of judicial review by this Court involves the calibration of graduated powers granted the President
as Commander-in-Chief?

[6] W/N Proclamation No. 216 of 23 May 2017 may be considered, vague and thus null and void: a. with its inclusion of “other rebel
groups;” or b. since it has no guidelines specifying its actual operational parameters within the entire Mindanao region;
[7] W/N the armed hostilities mentioned in Proclamation No. 216 and in the Report of the President to Congress are sufficient bases: a.
for the existence of actual rebellion; or b. for a declaration of martial law or the suspension of the privilege of the writ of habeas corpus in
the entire Mindanao region;

[8] W/N terrorism or acts attributable to terrorism are equivalent to actual rebellion and the requirements of public safety sufficient to
declare martial law or suspend the privilege of the writ of habeas corpus; and

[9] W/N nullifying Proclamation No. 216 of23 May 2017 will: A. have the effect of recalling Proclamation No. 55 s. 2016; or B. also nullify
the acts of the President in calling out the armed forces to quell lawless violence in Marawi and other parts of the Mindanao region.

RULING:

1. The Court agrees that the jurisdiction of this Court under the third paragraph of Section 18, Article VII is sui generis. It is a special and
specific jurisdiction of the Supreme Court different from those enumerated in Sections 1 and 5 of Article VIII. The phrase “in an appropriate
proceeding” appearing on the third paragraph of Section 18, Article VII refers to any action initiated by a citizen for the purpose of
questioning the sufficiency of the factual basis of the exercise of the Chief Executive’s emergency powers, as in these cases. It could be
denominated as a complaint, a petition, or a matter to be resolved by the Court.

2. a.) In determining the sufficiency of the factual basis of the declaration and/or the suspension, the Court should look into the full
complement or totality of the factual basis, and not piecemeal or individually. Neither should the Court expect absolute correctness of the
facts stated in the proclamation and in the written Report as the President could not be expected to verify the accuracy and veracity of all
facts reported to him due to the urgency of the situation. To require him otherwise would impede the process of his decision-making.

b.) The recommendation of the Defense Secretary is not a condition for the declaration of martial law or suspension of the privilege of the
writ of habeas corpus. A plain reading of Section 18, Article VII of the Constitution shows that the President’s power to declare martial
law is not subject to any condition except for the requirements of actual invasion or rebellion and that public safety requires it. Besides, it
would be contrary to common sense if the decision of the President is made dependent on the recommendation of his mere alter ego.
Only on the President can exercise of the powers of the Commander-in-Chief.

c.) As Commander-in-Chief, the President has the sole discretion to declare martial law and/or to suspend the privilege of the writ of
habeas corpus, subject to the revocation of Congress and the review of this Court. Since the exercise of these powers is a judgment call
of the President, the determination of this Court as to whether there is sufficient factual basis for the exercise of such, must be based only
on facts or information known by or available to the President at the time he made the declaration or suspension which facts or information
are found in the proclamation as well as the written Report submitted by him to Congress. These may be based on the situation existing
at the time the declaration was made or past events. As to how far the past events should be from the present depends on the President.

3. The power of the Court to review the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege
of the writ of habeas corpus under Section 18, Article VII of the 1987 Constitution is independent of the actions taken by Congress.

The Court may strike down the presidential proclamation in an appropriate proceeding filed by any citizen on the ground of lack sufficient
factual basis. On the other hand, Congress may revoke the proclamation or suspension, which revocation shall not be set aside by the
President. The power to review by the Court and the power to revoke by Congress are not only totally different but likewise independent
from each other although concededly, they have the same trajectory, which is, the nullification of the presidential proclamation.

4. The parameters for determining the sufficiency of factual basis are as follows: l) actual rebellion or invasion; 2) public safety requires
it; the first two requirements must concur; and 3) there is probable cause for the President to believe that there is actual rebellion or
invasion.

The President needs only to satisfy probable cause as the standard of proof in determining the existence of either invasion or rebellion
for purposes of declaring martial law, and that probable cause is the most reasonable, most practical and most expedient standard by
which the President can fully ascertain the existence or non-existence of rebellion necessary for a declaration of martial law or suspension
of the writ. To require him to satisfy a higher standard of proof would restrict the exercise of his emergency powers.

5. The judicial power to review the sufficiency of factual basis of the declaration of martial law or the suspension of the privilege of the
writ of habeas corpus does not extend to the calibration of the President’s decision of which among his graduated powers he will avail of
in a given situation. To do so would be tantamount to an incursion into the exclusive domain of the Executive and an infringement on the
prerogative that solely, at least initially, lies with the President.

6. a.) Inclusion of “other rebel groups ” does not make Proclamation No. 216 vague. The term “other rebel groups” in Proclamation No.
216 is not at all vague when viewed in the context of the words that accompany it. Verily, the text of Proclamation No. 216 refers to “other
rebel groups” found in Proclamation No. 55, which it cited by way of reference in its Whereas clauses.

b.) Lack of guidelines/operational parameters does not make Proclamation No. 216 vague. Operational guidelines will serve only as mere
tools for the implementation of the proclamation.

There is no need for the Court to determine the constitutionality of the implementing and/or operational guidelines, general orders, arrest
orders and other orders issued after the proclamation for being irrelevant to its review. Any act committed under the said orders in violation
of the Constitution and the laws should be resolved in a separate proceeding. Finally, there is a risk that if the Court wades into these
areas, it would be deemed as trespassing into the sphere that is reserved exclusively for Congress in the exercise of its power to revoke.
7. There is sufficient factual basis for the declaration of martial law and the suspension of the writ of habeas corpus. By a review of the
facts available to him that there was an armed public uprising, the culpable purpose of which was to remove from the allegiance to the
Philippine Government a portion of its territory and to deprive the Chief Executive of any of his power and prerogatives, leading the
President to believe that there was probable cause that the crime of rebellion was and is being committed and that public safety requires
the imposition of martial law and suspension of the privilege of the writ of habeas corpus.

After all, what the President needs to satisfy is only the standard of probable cause for a valid declaration of martial law and suspension
of the privilege of the writ of habeas corpus.

8. Terrorism neither negates nor absorbs rebellion. Rebellion may be subsumed under the crime of terrorism, which has a broader scope
covering a wide range of predicate crimes. In fact, rebellion is only one of the various means by which terrorism can be committed.
Meanwhile, public safety requires the declaration of martial law and the suspension of the privilege of the writ of habeas corpus in the
whole of Mindanao. For a declaration of martial law or suspension of the privilege of the writ of habeas corpus to be valid, there must be
concurrence of 1.) actual rebellion or invasion and 2.) the public safety requirement.

In his report, the President noted that the acts of violence perpetrated by the ASG and the Maute Group were directed not only against
government forces or establishment but likewise against civilians and their properties. There were bomb threats, road blockades, burning
of schools and churches, hostages and killings of civilians, forced entry of young male Muslims to the group, there were hampering of
medical services and delivery of basic services, reinforcement of government troops, among others. These particular scenarios convinced
the President that the atrocities had already escalated to a level that risked public safety and thus impelled him to declare martial law and
suspend the privilege of the writ of habeas corpus.

9. a.) The calling out power is in a different category from the power to declare martial law and the power to suspend the privilege of the
writ of habeas corpus; nullification of Proclamation No. 216 will not affect Proclamation No. 55.

The President may exercise the power to call out the Armed Forces independently of the power to suspend the privilege of the writ of
habeas corpus and to declare martial law. Even so, the Court’s review of the President’s declaration of martial law and his calling out the
Armed Forces necessarily entails separate proceedings instituted for that particular purpose.

b.) Neither would the nullification of Proclamation No. 216 result in the nullification of the acts of the President done pursuant thereto.
Under the operative fact doctrine,” the unconstitutional statute is recognized as an “operative fact” before it is declared unconstitutional.

Verily, the Court upholds the validity of the declaration of martial law and suspension of the privilege of the writ of habeas corpus in the
entire Mindanao region, and finds sufficient factual bases and constitutionality for the issuance of Proclamation No. 216.

MONSANTO VS. FACTORAN JR.

FACTS:

FACTS:
• In a decision by the Sandiganbayan convicted petitioner Salvacion A. Monsanto was accused of the crime of estafa thru falsification of
public documents and sentenced them to imprisonment and to indemnify the government in the sum of P4,892.50 representing the
balance of the amount defrauded and to pay the costs proportionately.
• She was given an absolute pardon by President Marcos which she accepted.
• Petitioner requested that she be restored to her former post as assistant city treasurer since the same was still vacant, she also asked
for the backpay for the entire period of her suspension.
• Finance Ministry ruled that petitioner may be reinstated to her position without the necessity of a new appointment
• The Office of the President said that that acquittal, not absolute pardon, of a former public officer is the only ground for reinstatement to
his former position and entitlement to payment of his salaries, benefits and emoluments due to him during the period of his suspension
pendente lite.
• In fact, in such a situation, the former public official must secure a reappointment before he can reassume his former position. And a
pardon shall in no case exempt the culprit from payment of the civil indemnity imposed upon him by the sentence.
• Petitioner argued that general rules on pardon cannot apply to her case by reason of the fact that she was extended executive clemency
while her conviction was still pending appeal in this Court. There having been no final judgment of conviction, her employment therefore
as assistant city treasurer could not be said to have been terminated or forfeited.
• The court viewed that is not material when the pardon was bestowed, whether before or after conviction, for the result would still be the
same

ISSUE:
(1) Effects of a full and absolute pardon
(2) WON a public officer, who has been granted an absolute pardon by the Chief Executive, is entitled to reinstatement to her former
position without need of a new appointment.

HELD:
(1) A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases
the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed
the offense. If granted before conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching; if
granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new
man, and gives him a new credit and capacity. But unless expressly grounded on the person’s innocence (which is rare), it cannot bring
back lost reputation for honesty, integrity and fair dealing.

A pardon looks to the future. It is not retrospective. It makes no amends for the past. It affords no relief for what has been suffered by the
offender. It does not impose upon the government any obligation to make reparation for what has been suffered.

(2) No. To insist on automatic reinstatement because of a mistaken notion that the pardon virtually acquitted one from the offense of
estafa would be grossly untenable. A pardon, albeit full and plenary, cannot preclude the appointing power from refusing appointment to
anyone deemed to be of bad character, a poor moral risk, or who is unsuitable by reason of the pardoned conviction.
The absolute disqualification or ineligibility from public office forms part of the punishment prescribed by the Revised Penal Code for
estafa thru falsification of public documents.

The pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond
that. To regain her former post as assistant city treasurer, she must re-apply and undergo the usual procedure required for a new
appointment.

RISOS-VIDAL VS. COMELEC

FACTS:

In September 12, 2007, the Sandiganbayan convicted former President Estrada for the crime of plunder and was sentenced to suffer the
penalty of Reclusion Perpetua and the accessory penalties of civil interdiction during the period of sentence and perpetual absolute
disqualification. On October 25, 2007, however, former President Gloria Macapagal Arroyo extended executive clemency, by way of
pardon, to former President Estrada, explicitly stating that he is restored to his civil and political rights.

In 2009, Estrada filed a Certificate of Candidacy for the position of President. None of the disqualification cases against him prospered
but he only placed second in the results.

In 2012, Estrada once more ventured into the political arena, and filed a Certificate of Candidacy, this time vying for a local elective post,
that of the Mayor of the City of Manila.

Petitioner Risos-Vidal filed a Petition for Disqualification against Estrada before the Comelec stating that Estrada is disqualified to run for
public office because of his conviction for plunder sentencing him to suffer the penalty of reclusion perpetua with perpetual absolute
disqualification. Petitioner relied on Section 40 of the Local Government Code (LGC), in relation to Section 12 of the Omnibus Election
Code (OEC).

The Comelec dismissed the petition for disqualification holding that President Estrada’s right to seek public office has been effectively
restored by the pardon vested upon him by former President Gloria M. Arroyo.

Estrada won the mayoralty race in May 13, 2013 elections. Alfredo Lim, who garnered the second highest votes, intervened and sought
to disqualify Estrada for the same ground as the contention of Risos-Vidal and praying that he be proclaimed as Mayor of Manila.

ISSUE:

May former President Joseph Estrada run for public office despite having been convicted of the crime of plunder which carried an
accessory penalty of perpetual disqualification to hold public office?

RULING:

YES! Estrada was granted an absolute pardon that fully restored all his civil and political rights, which naturally includes the right to seek
public elective office, the focal point of this controversy. The wording of the pardon extended to former President Estrada is complete,
unambiguous, and unqualified. It is likewise unfettered by Articles 36 and 41 of the Revised Penal Code. The only reasonable, objective,
and constitutional interpretation of the language of the pardon is that the same in fact conforms to Articles 36 and 41 of the Revised Penal
Code.

It is insisted that, since a textual examination of the pardon given to and accepted by former President Estrada does not actually specify
which political right is restored, it could be inferred that former President Arroyo did not deliberately intend to restore former President
Estrada’s rights of suffrage and to hold public office, orto otherwise remit the penalty of perpetual absolute disqualification. Even if her
intention was the contrary, the same cannot be upheld based on the pardon’s text.

The pardoning power of the President cannot be limited by legislative action.

The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IX-C, provides that the President of the Philippines
possesses the power to grant pardons, along with other acts of executive clemency, to wit:
Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves,
commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.
Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted
by the President without the favorable recommendation of the Commission.

It is apparent from the foregoing constitutional provisions that the only instances in which the President may not extend pardon remain to
be in: (1) impeachment cases; (2) cases that have not yet resulted in a final conviction; and (3) cases involving violations of election laws,
rules and regulations in which there was no favorable recommendation coming from the COMELEC. Therefore, it can be argued that any
act of Congress by way of statute cannot operate to delimit the pardoning power of the President.

The proper interpretation of Articles 36 and 41 of the Revised Penal Code.

A close scrutiny of the text of the pardon extended to former President Estrada shows that both the principal penalty of reclusion perpetua
and its accessory penalties are included in the pardon. The sentence which states that “(h)e is hereby restored to his civil and political
rights,” expressly remitted the accessory penalties that attached to the principal penalty of reclusion perpetua. Hence, even if we apply
Articles 36 and 41 of the Revised Penal Code, it is indubitable from the text of the pardon that the accessory penalties of civil interdiction
and perpetual absolute disqualification were expressly remitted together with the principal penalty of reclusion perpetua.

The disqualification of former President Estrada under Section 40 of the LGC in relation to Section 12 of the OEC was removed by his
acceptance of the absolute pardon granted to him

While it may be apparent that the proscription in Section 40(a) of the LGC is worded in absolute terms, Section 12 of the OEC provides
a legal escape from the prohibition – a plenary pardon or amnesty. In other words, the latter provision allows any person who has been
granted plenary pardon or amnesty after conviction by final judgment of an offense involving moral turpitude, inter alia, to run for and hold
any public office, whether local or national position.

The third preambular clause of the pardon did not operate to make the pardon conditional.

Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e., "[w]hereas, Joseph Ejercito Estrada has publicly
committed to no longer seek any elective position or office," neither makes the pardon conditional, nor militate against the conclusion that
former President Estrada’s rights to suffrage and to seek public elective office have been restored.

This is especially true as the pardon itself does not explicitly impose a condition or limitation, considering the unqualified use of the term
"civil and political rights"as being restored. Jurisprudence educates that a preamble is not an essential part of an act as it is an introductory
or preparatory clause that explains the reasons for the enactment, usually introduced by the word "whereas." Whereas clauses do not
form part of a statute because, strictly speaking, they are not part of the operative language of the statute. In this case, the whereas
clause at issue is not an integral part of the decree of the pardon, and therefore, does not by itself alone operate to make the pardon
conditional or to make its effectivity contingent upon the fulfilment of the aforementioned commitment nor to limit the scope of the pardon.

Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its intent or purposes. It cannot be the origin
of rights and obligations. Where the meaning of a statute is clear and unambiguous, the preamble can neither expand nor restrict its
operation much less prevail over its text.

If former President Arroyo intended for the pardon to be conditional on Respondent’s promise never to seek a public office again, the
former ought to have explicitly stated the same in the text of the pardon itself. Since former President Arroyo did not make this an integral
part of the decree of pardon, the Commission is constrained to rule that the 3rd preambular clause cannot be interpreted as a condition
to the pardon extended to former President Estrada.

SAGUISAG VS. OCHOA

FACTS:

This is a Resolution on the Motion for Reconsideration seeking to reverse the Decision of this Court in Saguisag et. al., v. Executive
Secretary dated 12 January 2016.

Petitioners claim this Court erred when it ruled that the Enhanced Defense Cooperation Agreement (EDCA) between the Philippines and
the US was not a treaty. In connection to this, petitioners move that EDCA must be in the form of a treaty in order to comply with the
constitutional restriction under Section 25, Article· XVIII of the 1987 Constitution on foreign military bases, troops, and facilities.
Additionally, they reiterate their arguments on the issues of telecommunications, taxation, and nuclear weapons.

The principal reason for the Motion for Reconsideration is evidently petitioners’ disagreement with the Decision that EDCA implements
the VFA and Mutual Defense Treaty (MDT).

Petitioners argue that EDCA’s provisions fall outside the allegedly limited scope of the VFA and MDT because it provides a wider
arrangement than the VFA for military bases, troops, and facilities, and it allows the establishment of U.S. military bases.

ISSUE:

Whether or not EDCA is a treaty.

RULING:
Petitioners detail their objections to EDCA in a similar way to their original petition, claiming that the VFA and MDT did not allow EDCA
to contain the following provisions: 1. Agreed Locations; 2. Rotational presence of personnel; 3. U.S. contractors; and 4. Activities of U.S.
contractors

We ruled in Saguisag, et. al. that the EDCA is not a treaty despite the presence of these provisions. The very nature of EDCA, its
provisions and subject matter, indubitably categorize it as an executive agreement – a class of agreement that is not covered by the
Article XVIII Section 25 restriction – in painstaking detail. To partially quote the Decision:

Executive agreements may dispense with the requirement of Senate concurrence because of the legal mandate with which they are
concluded.

As culled from the deliberations of the Constitutional Commission, past Supreme Court Decisions, and works of noted scholars, 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;

(2) pursuant to or upon confirmation by an act of the Legislature; or

(3) in the exercise of the President’s independent powers under the Constitution.

The raison d’etre 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, simplified forms that no longer
necessitate ratification.

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.

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.

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. 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 unlike executive agreements, which are solely executive actions. Because of legislative participation through the Senate,
a treaty is regarded as being on the same level as a statute. If there is an irreconcilable conflict, a later law or treaty takes precedence
over one that is prior. An executive agreement is treated differently. Executive agreements that are inconsistent with either a law or a
treaty are considered ineffective. Both types of international agreement are nevertheless subject to the supremacy of the Constitution.

Subsequently, the Decision goes to great lengths to illustrate the source of EDCA’s validity, in that as an executive agreement it fell within
the parameters of the VFA and MDT, and seamlessly merged with the whole web of Philippine law. We need not restate the arguments
here. It suffices to state that this Court remains unconvinced that EDCA deserves treaty status under the law.

We find no reason for EDCA to be declared unconstitutional. It fully conforms to the Philippines’ legal regime through the MDT and VFA.
It also fully conforms to the government’s continued policy to enhance our military capability in the face of various military and humanitarian
issues that may arise.

BAYAN VS. EXECUTIVE SECRETARY

FACTS:
The Republic of the Philippines and the United States of America entered into an agreement called the Visiting Forces Agreement (VFA).
The agreement was treated as a treaty by the Philippine government and was ratified by then-President Joseph Estrada with the
concurrence of 2/3 of the total membership of the Philippine Senate.

The VFA defines the treatment of U.S. troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits,
and further defines the rights of the U.S. and the Philippine governments in the matter of criminal jurisdiction, movement of vessel and
aircraft, importation and exportation of equipment, materials and supplies.

Petitioners argued, inter alia, that the VFA violates §25, Article XVIII of the 1987 Constitution, which provides that “foreign military bases,
troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate . . . and recognized as a
treaty by the other contracting State.”

ISSUE:

Whether or not the VFA unconstitutional?

RULING

NO! the VFA is not unconstitutional. Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless
the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and,
when so required by congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a
treaty by the other contracting state.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the Senate through
Resolution No. 18 is in accordance with the provisions of the Constitution . . . the provision in [in §25, Article XVIII] requiring ratification
by a majority of the votes cast in a national referendum being unnecessary since Congress has not required it.

This Court is of the firm view that the phrase “recognized as a treaty” means that the other contracting party accepts or acknowledges
the agreement as a treaty. To require the other contracting state, the United States of America in this case, to submit the VFA to the
United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.

Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical
terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they
have in common use.

Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international
law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA possesses the elements of an agreement under
international law, the said agreement is to be taken equally as a treaty.

The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the United States
government has fully committed to living up to the terms of the VFA. For as long as the United States of America accepts or acknowledges
the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked compliance with the
mandate of the Constitution.

NERI VS. SENATE COMMITTEE

FACTS:

In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a hotly, even acrimoniously, debated
dispute between the Court’s co-equal branches of government. On September 26, 2007, petitioner appeared before respondent
Committees and testified for about eleven (11) hours on matters concerning the National Broadband Project (the “NBN Project”), a project
awarded by the Department of Transportation and Communications (“DOTC”) to Zhong Xing Telecommunications Equipment (“ZTE”).
Petitioner disclosed that then Commission on Elections (“COMELEC”) Chairman Benjamin Abalos offered him P200 Million in exchange
for his approval of the NBN Project. He further narrated that he informed President Gloria Macapagal Arroyo (“President Arroyo”) of the
bribery attempt and that she instructed him not to accept the bribe. However, when probed further on President Arroyo and petitioner’s
discussions relating to the NBN Project, petitioner refused to answer, invoking “executive privilege.” To be specific, petitioner refused to
answer questions on: (a) whether or not President Arroyo followed up the NBN Project,4 (b) whether or not she directed him to prioritize
it,5 and (c) whether or not she directed him to approve it.

Respondent Committees persisted in knowing petitioner’s answers to these three questions by requiring him to appear and testify once
more on November 20, 2007. On November 15, 2007, Executive Secretary Eduardo R. Ermita wrote to respondent Committees and
requested them to dispense with petitioner’s testimony on the ground of executive privilege.

The senate thereafter issued a show cause order, unsatisfied with the reply, therefore, issued an Order citing Neri in contempt and
ordering his arrest and detention at the Office of the Senate Sergeant-at-Arms until such time that he would appear and give his testimony.

On the same date, petitioner moved for the reconsideration of the above Order. Denied. Petition for certiorari and Supplemental Petition
for Certiorari (with Urgent Application for TRO/Preliminary Injunction) granted by the SC court.
ISSUES:

(1) Whether or not there is a recognized presumptive presidential communications privilege in our legal system;

(2) Whether or not there is factual or legal basis to hold that the communications elicited by the three (3) questions are covered by
executive privilege;

(3) Whether or not respondent Committees have shown that the communications elicited by the three (3) questions are critical to the
exercise of their functions; and

(4) Whether or not respondent Committees committed grave abuse of discretion in issuing the contempt order.

RULING:

IYES! There Is a Recognized Presumptive Presidential Communications Privilege.

Respondent Committees argue as if this were the first time the presumption in favor of the presidential communications privilege is
mentioned and adopted in our legal system. That is far from the truth. There, the Court enumerated the cases in which the claim of
executive privilege was recognized, among them Almonte v. Chavez, Chavez v. Presidential Commission on Good Government
(PCGG),14 and Chavez v. PEA.15 The Court articulated in these cases that, “”the right to information does not extend to matters
recognized as ‘privileged information’ under the separation of powers, by which the Court meant Presidential conversations,
correspondences, and discussions in closed-door Cabinet meetings.”

In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive privilege on a specific matter
involving an executive agreement between the Philippines and China, which was the subject of the three (3) questions propounded to
petitioner Neri in the course of the Senate Committees’ investigation. Thus, the factual setting of this case markedly differs from that
passed upon in Senate v. Ermita.

A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and
to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for
Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of
powers under the Constitution x x x

II YES! There Are Factual and Legal Bases to Hold that the Communications Elicited by the 3 Questions Are Covered by Executive
Privilege

A. The power to enter into an executive agreement is a “quintessential and non-delegable presidential power.”
First, respondent Committees contend that the power to secure a foreign loan does not relate to a “quintessential and non-delegable
presidential power,” because the Constitution does not vest it in the President alone, but also in the Monetary Board which is required to
give its prior concurrence and to report to Congress.

This argument is unpersuasive.

The fact that a power is subject to the concurrence of another entity does not make such power less executive. The power to enter into
an executive agreement is in essence an executive power. This authority of the President to enter into executive agreements without the
concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. Now, the fact that the President has to secure
the prior concurrence of the Monetary Board, which shall submit to Congress a complete report of its decision before contracting or
guaranteeing foreign loans, does not diminish the executive nature of the power. In the same way that certain legislative acts require
action from the President for their validity does not render such acts less legislative in nature.

B. The “doctrine of operational proximity” was laid down precisely to limit the scope of the presidential communications privilege but, in
any case, it is not conclusive.

Second, respondent Committees also seek reconsideration of the application of the “doctrine of operational proximity” for the reason that
“it maybe misconstrued to expand the scope of the presidential communications privilege to communications between those who are
‘operationally proximate’ to the President but who may have “no direct communications with her.”

It must be stressed that the doctrine of “operational proximity” was laid down in In re: Sealed Case27precisely to limit the scope of the
presidential communications privilege. In the case at bar, the danger of expanding the privilege “to a large swath of the executive branch”
(a fear apparently entertained by respondents) is absent because the official involved here is a member of the Cabinet, thus, properly
within the term “advisor” of the President; in fact, her alter ego and a member of her official family.
C. The President’s claim of executive privilege is not merely based on a generalized interest; and in balancing respondent Committees’
and the President’s clashing interests, the Court did not disregard the 1987 Constitutional provisions on government transparency,
accountability and disclosure of information.

The Letter dated November 15, 2007 of Executive Secretary Ermita specified presidential communications privilege in relation to
diplomatic and economic relations with another sovereign nation as the bases for the claim. Even in Senate v. Ermita, it was held that
Congress must not require the Executive to state the reasons for the claim with such particularity as to compel disclosure of the information
which the privilege is meant to protect. This is a matter of respect for a coordinate and co-equal department.
Privileged character of diplomatic negotiations

In PMPF v. Manglapus, .” The Resolution went on to state, thus:The nature of diplomacy requires centralization of authority and expedition
of decision which are inherent in executive action. Another essential characteristic of diplomacy is its confidential nature.

With respect to respondent Committees’ invocation of constitutional prescriptions regarding the right of the people to information and
public accountability and transparency, the Court finds nothing in these arguments to support respondent Committees’ case.
There is no debate as to the importance of the constitutional right of the people to information and the constitutional policies on public
accountability and transparency. These are the twin postulates vital to the effective functioning of a democratic government. In the case
at bar, this Court, in upholding executive privilege with respect to three (3) specific questions, did not in any way curb the public’s right to
information or diminish the importance of public accountability and transparency.

This Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation. There is nothing in the assailed
Decision that prohibits respondent Committees from inquiring into the NBN Project. They could continue the investigation and even call
petitioner Neri to testify again.

III. Respondent Committees Failed to Show That the Communications Elicited by the Three Questions Are Critical to the Exercise of their
Functions

The jurisprudential test laid down by this Court in past decisions on executive privilege is that the presumption of privilege can only be
overturned by a showing of compelling needfor disclosure of the information covered by executive privilege.
In the Motion for Reconsideration, respondent Committees argue that the information elicited by the three (3) questions are necessary in
the discharge of their legislative functions, among them, (a) to consider the three (3) pending Senate Bills, and (b) to curb graft and
corruption.

We remain unpersuaded by respondents’ assertions.

The burden to show this is on the respondent Committees, since they seek to intrude into the sphere of competence of the Pres ident in
order to gather information which, according to said respondents, would “aid” them in crafting legislation. Clearly, the need for hard facts
in crafting legislation cannot be equated with the compelling or demonstratively critical and specific need for facts which is so essential to
the judicial power to adjudicate actual controversies.

For sure, a factual basis for situations covered by bills is not critically needed before legislatives bodies can come up with relevant
legislation unlike in the adjudication of cases by courts of law. Interestingly, during the Oral Argument before this Court, the counsel for
respondent Committees impliedly admitted that the Senate could still come up with legislations even without petitioner answering the
three (3) questions. In other words, the information being elicited is not so critical after all.

Oversight Function of the Congress

Anent the function to curb graft and corruption, it must be stressed that respondent Committees’ need for information in the exercise of
this function is not as compelling as in instances when the purpose of the inquiry is legislative in nature. This is because curbing graft and
corruption is merely an oversight function of Congress.44 And if this is the primary objective of respondent Committees in asking the
three (3) questions covered by privilege, it may even contradict their claim that their purpose is legislative in nature and not oversight. In
any event, whether or not investigating graft and corruption is a legislative or oversight function of Congress, respondent Committees’
investigation cannot transgress bounds set by the Constitution.

Office of the Ombudsman: The Office of the Ombudsman is the body properly equipped by the Constitution and our laws to preliminarily
determine whether or not the allegations of anomaly are true and who are liable therefor.

IV Respondent Committees Committed Grave Abuse of Discretion in Issuing the Contempt Order
Respondent Committees contend that their Rules of Procedure Governing Inquiries in Aid of Legislation (the “Rules”) are beyond the
reach of this Court. While it is true that this Court must refrain from reviewing the internal processes of Congress, as a co-equal branch
of government, however, when a constitutional requirement exists, the Court has the duty to look into Congress’ compliance therewith.
We cannot turn a blind eye to possible violations of the Constitution simply out of courtesy.

Section 21, Article VI of the Constitution states that:

The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance
with its duly published rules of procedure. The rights of person appearing in or affected by such inquiries shall be respected. (Emphasis
supplied)

We do not believe that respondent Committees have the discretion to set aside their rules anytime they wish. This is especially true here
where what is involved is the contempt power. It must be stressed that the Rules are not promulgated for their benefit. More than anybody
else, it is the witness who has the highest stake in the proper observance of the Rules.
Congress as a “continuing body”

On the nature of the Senate as a “continuing body,” this Court sees fit to issue a clarification. Certainly, there is no debate that the Senate
as an institution is “continuing”, as it is not dissolved as an entity with each national election or change in the composition of its members.
However, in the conduct of its day-to-day business the Senate of each Congress acts separately and independently of the Senate of the
Congress before it.
Motion for Reconsideration Denied.
__________
NOTES:

“Quintessential” is defined as the most perfect embodiment of something, the concentrated essence of substance.24
“non-delegable” means that a power or duty cannot be delegated to another or, even if delegated, the responsibility remains with the
obligor.

Restrictions on the right to information: (1) national security matters, (2) trade secrets and banking transactions, (3) criminal matters, and
(4) other confidential information. National security matters include state secrets regarding military and diplomatic matters, as well as
information on inter-government exchanges prior to the conclusion of treaties and executive agreements. It was further held that even
where there is no need to protect such state secrets, they must be “examined in strict confidence and given scrupulous protection.”