Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
Malig-on
EXECUTIVE DEPARTMENT
THE PRESIDENT
QUALIFICATIONS, ELECTION, TERM & OATH
SECTION 1. The executive power shall be vested in the
President of the Philippines.
SECTION 2. No person may be elected President unless he
is a natural-born citizen of the Philippines, a registered
voter, able to read and write, at least forty years of age on
the day of the election, and a resident of the Philippines for
at least ten years immediately preceding such election.
SECTION 3. There shall be a Vice-President who shall have
the same qualifications and term of office and be elected
with and in the same manner as the President. He may be
removed from office in the same manner as the President.
The Vice-President may be appointed as a Member of the
Cabinet. Such appointment requires no confirmation.
SECTION 4. The President and the Vice-President shall be
elected by direct vote of the people for a term of six years
which shall begin at noon on the thirtieth day of June next
following the day of the election and shall end at noon of
the same date six years thereafter. The President shall not
be eligible for any reelection. No person who has
succeeded as President and has served as such for more
than four years shall be qualified for election to the same
office at any time.
No Vice-President shall serve for more than two
consecutive terms. Voluntary renunciation of the office for
any length of time shall not be considered as an
interruption in the continuity of the service for the full term
for which he was elected.
Unless otherwise provided by law, the regular election for
President and Vice President shall be held on the second
Monday of May.
The returns of every election for President and Vice-
President, duly certified by the board of canvassers of each
province or city, shall be transmitted to the Congress,
directed to the President of the Senate. Upon receipt of the
certificates of canvass, the President of the Senate shall,
not later than thirty days after the day of the election, open
all certificates in the presence of the Senate and the House
of Representatives in joint public session, and the
Congress, upon determination of the authenticity and due
execution thereof in the manner provided by law, canvass
the votes.
The person having the highest number of votes shall be
proclaimed elected, but in case two or more shall have an
equal and highest number of votes, one of them shall
forthwith be chosen by the vote of a majority of all the
Members of both Houses of the Congress, voting
separately.
The Congress shall promulgate its rules for the canvassing
of the certificates.
The Supreme Court, sitting en banc, shall be the sole judge
of all contests relating to the election, returns, and
qualifications of the President or Vice- President, and may
promulgate its rules for the purpose.
SECTION 5. Before they enter on the execution of their
office, the President, the Vice-President, or the Acting
President shall take the following oath or affirmation:
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"I do solemnly swear (or affirm) that I will faithfully and
conscientiously fulfill my duties as President (or Vice-
President or Acting President) of the Philippines, preserve
and defend its Constitution, execute its laws, do justice to
every man, and consecrate myself to the service of the
Nation. So help me God." (In case of affirmation, last
sentence will be omitted.)
ATTY. SALLY: Executive power is vested on the President
ALONE. Cabinet members are alter-egos of the President
but they are not the Chief Executive, and they serve at the
pleasure of the President.
MACALINTAL v. PRESIDENTIAL ELECTORAL TRIBUNAL
The case is filed by Atty. Romulo Macalintal, challenging the
legality of the composition of the Presidential Electoral
Tribunal. He challenges the validity of the “separate
tribunal” that is the PET, with the Justices of the Supreme
Court as its members, its power to appoint employees on
said body, a separate seal and among others [Article VII,
Section 4(7) of the 1987 Constitution].
Was the contention of Macalintal correct?
ANSWER: NO.
The exercise of our power to judge presidential and vice-
presidential election contests, as well as the rule-making
power adjunct thereto, is plenary; it is not as restrictive as
petitioner would interpret it. In fact, former Chief Justice
Hilario G. Davide, Jr., who proposed the insertion of the
phrase, intended the Supreme Court to exercise exclusive
authority to promulgate its rules of procedure for that
purpose. To this, Justice Regalado forthwith assented and
then emphasized that the sole power ought to be without
intervention by the legislative department. Evidently, even
the legislature cannot limit the judicial power to resolve
presidential and vice-presidential election contests and
our rule-making power connected thereto.
The conferment of additional jurisdiction to the Supreme
Court, with the duty characterized as an "awesome" task,
includes the means necessary to carry it into effect under
the doctrine of necessary implication. We cannot
overemphasize that the abstraction of the PET from the
explicit grant of power to the Supreme Court, given our
abundant experience, is not unwarranted.
A plain reading of Article VII, Section 4, paragraph 7, readily
reveals a grant of authority to the Supreme Court sitting en
banc. In the same vein, although the method by which the
Supreme Court exercises this authority is not specified in
the provision, the grant of power does not contain any
limitation on the Supreme Court's exercise thereof. The
Supreme Court's method of deciding presidential and vice-
presidential election contests, through the PET, is actually
a derivative of the exercise of the prerogative conferred by
the aforequoted constitutional provision. Thus, the
subsequent directive in the provision for the Supreme
Court to "promulgate its rules for the purpose."
The conferment of full authority to the Supreme Court, as
a PET, is equivalent to the full authority conferred upon the
electoral tribunals of the Senate and the House of
Representatives, i.e., the Senate Electoral Tribunal (SET)
and the House of Representatives Electoral Tribunal
(HRET), which we have affirmed on numerous occasions.
The PET is not a separate and distinct entity from the
Supreme Court, albeit it has functions peculiar only to the
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
Tribunal. It is obvious that the PET was constituted in
implementation of Section 4, Article VII of the Constitution,
and it faithfully complies — not unlawfully defies — the
constitutional directive. The adoption of a separate seal, as
well as the change in the nomenclature of the Chief Justice
and the Associate Justices into Chairman and Members of
the Tribunal, respectively, was designed simply to highlight
the singularity and exclusivity of the Tribunal's functions as
a special electoral court.
PRIVILEGE & SALARY
SECTION 6. The President shall have an official residence.
The salaries of the President and Vice-President shall be
determined by law and shall not be decreased during their
tenure. No increase in said compensation shall take effect
until after the expiration of the term of the incumbent
during which such increase was approved. They shall not
receive during their tenure any other emolument from the
Government or any other source.
EXECUTIVE IMMUNITY
Executive immunity refers to immunity from suit, not
immunity from liability. It is immunity granted to officers of
the executive branch of the government from personal
liability for tortuous acts or omissions done in the course
of carrying out their duties.
ATTY. SALLY: Executive immunity applies only to the Chief
Executive during his tenure as President.
SOLIVEN v. MAKASIAR
The case involves the libel case lodged by President
Corazon Aquino against the writers of Philippine Star for
writing that the president ‘hid under her bed’ when
members of the RAM tried to stage a coup de tat. In
addition to their rights allegedly violated, they challenged
the president’s immunity from suit.
Petitioner argues that "the reasons which necessitate
presidential immunity from suit impose a correlative
disability to file suit". He contends that if criminal
proceedings ensue by virtue of the President's filing of her
complaint affidavit, she may subsequently have to be a
witness for the prosecution, bringing her under the trial
court's jurisdiction. This, continues Beltran, would in an
indirect way defeat her privilege of immunity from suit, as
by testifying on the witness stand, she would be exposing
herself to possible contempt of court or perjury.
Was the argument of Beltran et. al. valid?
ANSWER: NO.
The rationale for the grant to the President of the privilege
of immunity from suit is to assure the exercise of
Presidential duties and functions free from any hindrance
or distraction, considering that being the Chief Executive of
the Government is a job that, aside from requiring all of
the office-holder's time, also demands undivided
attention.
But this privilege of immunity from suit, pertains to
the President by virtue of the office and may be
invoked only by the holder of the office; not by any
other person in the President's behalf Thus, an accused in
a criminal case in which the President is complainant
cannot raise the presidential privilege as a defense to
prevent the case from proceeding against such accused.
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Moreover, there is nothing in our laws that would prevent
the President from waiving the privilege. Thus, if so minded
the President may shed the protection afforded by the
privilege and submit to the court's jurisdiction. The choice
of whether to exercise the privilege or to waive it is solely
the President's prerogative. It is a decision that cannot be
assumed and imposed by any other person.
ESTRADA v. DESIERTO
The case is filed by President Joseph Estrada, after the
Second People Power in 2001 that replaced him with Gloria
Macapagal Arroyo as President. Estrada contends that he
is President-on-leave, and as such still the President of the
Republic. By extension, he is said to be covered by
presidential privileges, such as executive immunity.
Was Estrada still president because he did not expressly
resign from the said position?
ANSWER: NO.
The issue then is whether the petitioner resigned as
President or should be considered resigned as of January
20, 2001 when respondent took her oath as the 14th
President of the Republic. Resignation is not a high level
legal abstraction. It is a factual question and its elements
are beyond quibble: there must be an intent to resign and
the intent must be coupled by acts of relinquishment. 78
The validity of a resignation is not governed by any formal
requirement as to form. It can be oral. It can be written. It
can be express. It can be implied. As long as the resignation
is clear, it must be given legal effect.
In the cases at bar, the facts show that petitioner did not
write any formal letter of resignation before he evacuated
Malacañang Palace in the afternoon of January 20, 2001
after the oath-taking of respondent Arroyo. Consequently,
whether or not petitioner resigned has to be determined
from his acts and omissions before, during and after
January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and circumstantial
evidence bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned as
President.
Does executive immunity extend to a non-sitting President,
or after a President’s tenure?
ANSWER: NO.
In Re: Saturnino Bermudez that "incumbent Presidents are
immune from suit or from being brought to court during
the period of their incumbency and tenure" but not
beyond. Considering the peculiar circumstance that the
impeachment process against the petitioner has been
aborted and thereafter he lost the presidency, petitioner
Estrada cannot demand as a condition sine qua non to his
criminal prosecution before the Ombudsman that he be
convicted in the impeachment proceedings.
The cases filed against petitioner Estrada are criminal in
character. They involve plunder, bribery and graft and
corruption. By no stretch of the imagination can these
crimes, especially plunder which carries the death penalty,
be covered by the alleged mantle of immunity of a non-
sitting president. Petitioner cannot cite any decision of this
Court licensing the President to commit criminal acts and
wrapping him with post-tenure immunity from liability. It
will be anomalous to hold that immunity is an inoculation
from liability for unlawful acts and omissions. The rule is
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
that unlawful acts of public officials are not acts of the State
and the officer who acts illegally is not acting as such but
stands in the same footing as any other trespasser.
In the 1982 case of Nixon v. Fitzgerald, the US Supreme
Court further held that the immunity of the President from
civil damages covers only "official acts." Recently, the US
Supreme Court had the occasion to reiterate this doctrine
in the case of Clinton v. Jones where it held that the US
President's immunity from suits for money damages
arising out of their official acts is inapplicable to unofficial
conduct.
EXECUTIVE PRIVILEGE
Executive privilege is the power of the President to
withhold certain types of information. As a matter of
necessity, it must be kept confidential in pursuit of public
interest.
ALMONTE v. VASQUEZ
Almonte, EIIB Commissioner, files certiorari, prohibition
and mandamus to stop a subpoena duces tecum directed
against EIIB employees to produce certain documents
involving their 1988 operations. The investigation of the
Ombudsman was triggered by an anonymous letter to the
Secretary of Finance, citing corruption charges against
Almonte and Perez, EIIB Budget Chief. Almonte alleges that
such documents are classified and beyond the reach of
said subpoena.
Were said documents involving plantilla salary vouchers
confidential and not subject to subpoena?
ANSWER: NO.
In the litigation over the Watergate tape subpoena in 1973,
the U.S. Supreme Court recognized the right of the
President to the confidentiality of his conversations and
correspondence, which it likened to "the claim of
confidentiality of judicial deliberations." Said the "Court in
United States v. Nixon: The expectation of a President to
the confidentiality of his conversations and
correspondence, like the claim of confidentiality of judicial
deliberations, for example, has all the values to which we
accord deference for the privacy of all citizens and, added
to those values, is the necessity for protection of the public
interest in candid, objective, and even blunt or harsh
opinions in Presidential decision-making. A President and
those who assist him must be free to explore alternatives
in the process of shaping policies and making decisions
and to do so in a way many would be unwilling to express
except privately. These are the considerations justifying a
presumptive privilege for Presidential communications.
The privilege is fundamental to the operation of the
government and inextricably rooted in the separation of
powers under the Constitution. . . Thus, the Court for the
first time gave executive privilege a constitutional status
and a new name, although not necessarily a new birth.
At common law a governmental privilege against
disclosure is recognized with respect to state secrets
bearing on military, diplomatic and similar matters. This
privilege is based upon public interest of such paramount
importance as in and of itself transcending the individual
interests of a private citizen, even though, as a
consequence thereof, the plaintiff cannot enforce his legal
rights. There are, in addition to such privileges, statutorily-
created ones such as the Government’s privilege to
withhold the identity of persons who furnish information
of violations of laws.
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On the other hand, where the claim of confidentiality does
not rest on the need to protect military, diplomatic or other
national security secrets but on a general public interest in
the confidentiality of his conversations, courts have
declined to find in the Constitution an absolute privilege of
the President against a subpoena considered essential to
the enforcement of criminal laws.
In the case at bar, there is no claim that military or
diplomatic secrets will be disclosed by the production of
records pertaining to the personnel of the EIIB. Indeed,
EIIB’s function is the gathering and evaluation of
intelligence reports and information regarding “illegal
activities affecting the national economy, such as, but not
limited to, economic sabotage, smuggling, tax evasion,
dollar salting.” Consequently, while in cases which involve
state secrets it may be sufficient to determine from the
circumstances of the case that there is reasonable danger
that compulsion of the evidence will expose military
matters without compelling production, no similar excuse
can be made for a privilege resting on other
considerations.
SENATE v. ERMITA
On September 21 to 23, 2005, the Committee of the Senate
as a whole issued invitations to various officials of the
Executive Department for them to appear on September
29, 2005 as resource speakers in a public hearing on the
railway project of the North Luzon Railways Corporation
with the China National Machinery and Equipment Group
(hereinafter North Rail Project). The public hearing was
sparked by a privilege speech of Senator Juan Ponce Enrile
urging the Senate to investigate the alleged overpricing
and other unlawful provisions of the contract.
Before the requested officials appear in the Senate inquiry,
then President Gloria Arroyo issued an Executive Order
defining “who” and “what” are covered under executive
privilege. Officials were then barred to attend the inquiry
of the Senate Committee on National Defense.
Despite the communications received from Executive
Secretary Ermita and Gen. Senga, the investigation
scheduled by the Committee on National Defense and
Security pushed through, with only Col. Balutan and Brig.
Gen. Gudani among all the AFP officials invited attending.
For defying President Arroyo's order barring military
personnel from testifying before legislative inquiries
without her approval, Brig. Gen. Gudani and Col. Balutan
were relieved from their military posts and were made to
face court martial proceedings.
Was the prohibition to attend in the Senate inquiry on the
basis of ‘executive privilege’ valid?
ANSWER: NO.
Executive privilege is, nonetheless, not a clear or unitary
concept. It has encompassed claims of varying kinds. Tribe,
in fact, comments that while it is customary to employ the
phrase "executive privilege," it may be more accurate to
speak of executive privileges "since presidential refusals to
furnish information may be actuated by any of at least
three distinct kinds of considerations, and may be
asserted, with differing degrees of success, in the context
of either judicial or legislative investigations."
That a type of information is recognized as privileged does
not, however, necessarily mean that it would be
considered privileged in all instances. For in determining
the validity of a claim of privilege, the question that must
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be asked is not only whether the requested information
falls within one of the traditional privileges, but also
whether that privilege should be honored in a given
procedural setting.
Executive privilege, whether asserted against Congress,
the courts, or the public, is recognized only in relation to
certain types of information of a sensitive character. While
executive privilege is a constitutional concept, a claim
thereof may be valid or not depending on the ground
invoked to justify it and the context in which it is made.
Noticeably absent is any recognition that executive officials
are exempt from the duty to disclose information by the
mere fact of being executive officials. Indeed, the
extraordinary character of the exemptions indicates that
the presumption inclines heavily against executive secrecy
and in favor of disclosure.
When Congress merely seeks to be informed on how
department heads are implementing the statutes which it
has issued, its right to such information is not as
imperative as that of the President to whom, as Chief
Executive, such department heads must give a report of
their performance as a matter of duty. In such instances,
Section 22, in keeping with the separation of powers, states
that Congress may only request their appearance.
Nonetheless, when the inquiry in which Congress requires
their appearance is "in aid of legislation" under Section 21,
the appearance is mandatory.
When Congress exercises its power of inquiry, the only way
for department heads to exempt themselves therefrom is
by a valid claim of privilege. They are not exempt by the
mere fact that they are department heads. Only one
executive official may be exempted from this power — the
President on whom executive power is vested, hence,
beyond the reach of Congress except through the power
of impeachment. It is based on her being the highest
official of the executive branch, and the due respect
accorded to a co-equal branch of government which is
sanctioned by a long-standing custom.
The letter assumes that the invited officials are covered by
E.O. 464. As explained earlier, however, to be covered by
the order means that a determination has been made, by
the designated head of office or the President, that the
invited official possesses information that is covered by
executive privilege. Thus, although it is not stated in the
letter that such determination has been made, the same
must be deemed implied. Respecting the statement that
the invited officials have not secured the consent of the
President, it only means that the President has not
reversed the standing prohibition against their
appearance before Congress.
Certainly, Congress has the right to know why the
executive considers the requested information privileged.
It does not suffice to merely declare that the President, or
an authorized head of office, has determined that it is so,
and that the President has not overturned that
determination. Such declaration leaves Congress in the
dark on how the requested information could be classified
as privileged. 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.
PROHIBITIONS
SECTION 13. The President, Vice-President, the Members
of the Cabinet, and their deputies or assistants shall not,
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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.
Relate to: ARTICLE IX-B:
SECTION 7. No elective official shall be eligible for
appointment or designation in any capacity to any public
office or position during his tenure.
Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold
any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries.
DOROMAL v. SANDIGANBAYAN
The case involves PCGG Commissioner Quintin Doromal
for his alleged violation of the Anti-Graft and Corrupt
Practices Act. Doromal Trading, of which he is President,
participated in the bids to supply materials to DECS worth
P 61million.
Are executive appointees banned from doing business
with the government?
ANSWER: YES.
Section 13, Article VII of the 1987 Constitution provides that
"the President, Vice President, the members of the Cabinet
and their deputies or assistants shall not . . . during (their)
tenure, . . . directly or indirectly . . . participate in any
business." The constitutional ban is similar to the
prohibition in the Civil Service Law (PD No. 807, Sec. 36,
subpar. 24) that "pursuit of private business . . . without the
permission required by Civil Service Rules and
Regulations" shall be a ground for disciplinary action
against any officer or employee in the civil service.
Since the petitioner is an incumbent public official charged
in a valid information with an offense punishable under
the Constitution and the laws (RA 3019 and PD 807), the
law's command that he "shall be suspended from office"
pendente lite must be obeyed. His approved leave of
absence is not a bar to his preventive suspension for as
indicated by the Solicitor General, an approved leave,
whether it be for a fixed or indefinite period, may be
cancelled or shortened at will by the incumbent.
CIVIL LIBERTIES UNION v. EXECUTIVE SECRETARY
Petitioner challenged Executive Order No. 284 which
allowed Cabinet members, undersecretaries, assistant
secretaries and other appointive officials of the Executive
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
Department to hold other positions in the government
albeit, subject of the limitations imposed therein.
The respondents, in refuting the petitioners' argument
that the measure was violative of Article VIII, Section 13,
invoked Article IX-B, Section 7, allowing the holding of
multiple positions by the appointive official if allowed by
law or by the pressing functions of his positions.
Was EO 284 unconstitutional?
ANSWER: YES.
In declaring the EO unconstitutional, the Supreme Court
held that by ostensibly restricting the number of positions
that Cabinet members, undersecretaries and assistant
secretaries may hold in addition to their primary positions
to not more than 2 positions in the government and
government-owned or controlled corporations (GOCCs),
EO 284 actually allows them to hold multiple offices or
employment in direct contravention of the express
mandate of Article VIII, Section 13 of the 1987 Constitution
which prohibits them from doing so, unless otherwise
provided in the 1987 Constitution itself.
It is quite notable that in all these provisions on
disqualifications to hold other office or employment, the
prohibition pertains to an office or employment in the
government and government-owned or controlled
corporations or their subsidiaries. In striking contrast is the
wording of Section 13, Article VII which states that "(T)he
President, Vice-President, the Members of the Cabinet, and
their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or
employment during their tenure." In the latter provision,
the disqualification is absolute, not being qualified by the
phrase "in the Government." The prohibition imposed on
the President and his official family is therefore all-
embracing and covers either public and private office or
employment.
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.
PUBLIC INTEREST CENTER v. ELMA
This action seeks to declare as null and void the concurrent
appointments of respondent Magdangal B. Elma as
Chairman of the Presidential Commission on Good
Government (PCGG) and as Chief Presidential Legal
Counsel (CPLC) for being contrary to Section 13, Article VII
and Section 7, par. 2, 3 Article IX-B of the 1987 Constitution.
Will the action propser?
ANSWER: YES.
The general rule contained in Article IX-B of the 1987
Constitution permits an appointive official to hold more
than one office only if "allowed by law or by the primary
functions of his position." In the case of Quimson v. Ozaeta,
this Court ruled that, "[t]here is no legal objection to a
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government official occupying two government offices and
performing the functions of both as long as there is no
incompatibility." The crucial test in determining whether
incompatibility exists between two offices was laid out in
People v. Green — whether one office is subordinate to the
other, in the sense that one office has the right to interfere
with the other.
In this case, an incompatibility exists between the positions
of the PCGG Chairman and the CPLC. The duties of the
CPLC include giving independent and impartial legal advice
on the actions of the heads of various executive
departments and agencies and to review investigations
involving heads of executive departments and agencies, as
well as other Presidential appointees. The PCGG is, without
question, an agency under the Executive Department.
Thus, the actions of the PCGG Chairman are subject to the
review of the CPLC.
As CPLC, respondent Elma will be required to give his legal
opinion on his own actions as PCGG Chairman and review
any investigation conducted by the Presidential Anti-Graft
Commission, which may involve himself as PCGG
Chairman. In such cases, questions on his impartiality will
inevitably be raised. This is the situation that the law seeks
to avoid in imposing the prohibition against holding
incompatible offices.
FUNA v. ERMITA
President Gloria Macapagal-Arroyo appointed respondent
Maria Elena H. Bautista (Bautista) as Undersecretary of the
Department of Transportation and Communications
(DOTC). Bautista was designated as Undersecretary for
Maritime Transport of the department under Special
Order No. 2006-171 dated October 23, 2006. 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.
Dennis Funa, as taxpayer and concerned citizen, filed a
case questioning the validity of the designation of Bautista
as MARINA Administrator. Respondent posits that such act
was constitutional since she was merely designated, not
appointed, as MARINA Administrator.
Can Usec. Bautista be both DOTC Undersecretary and OIC
MARINA Administrator?
ANSWER: NO.
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
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the President, the Vice-President, Members of the Cabinet,
their deputies and assistants.
The 1987 Constitution in prohibiting dual or multiple
offices, as well as incompatible offices, refers to the
holding of the office, and not to the nature of the
appointment or designation, words which were not even
found in Section 13, Article VII nor in Section 7, paragraph
2, Article IX-B. To "hold" an office means to "possess or
occupy" the same, or "to be in possession and
administration," which implies nothing less than the actual
discharge of the functions and duties of the office.
PROHIBITIONS ON DOUBLE APPOINTMENTS ON
OTHER CLASS OF OFFICIALS
A. For members of Congress:
ARTICLE VI, SECTION 13. No Senator or Member of the
House of Representatives may 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,
during his term without forfeiting his seat. Neither shall he
be appointed to any office which may have been created
nor the emoluments thereof increased during the term for
which he was elected.
B. For members of Constitutional Commissions:
ARTICLE IX, A, SECTION 2. No member of a Constitutional
Commission shall, during his tenure, hold any other office
or employment. Neither shall he engage in the practice of
any profession or in the active management or control of
any business which, in any way, may be affected by the
functions of his office, nor shall he be financially interested,
directly or indirectly, in any contract with, or in any
franchise or privilege granted by the Government, any of
its subdivisions, agencies, or instrumentalities, including
government-owned or controlled corporations or their
subsidiaries.
C. For elective officials:
ARTICLE IX, B, SECTION 7. No elective official shall be
eligible for appointment or designation in any capacity to
any public office or position during his tenure.
D. For members of the judiciary:
ARTICLE VIII, SECTION 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 function.
EXCEPTIONS TO THE BAN ON DOUBLE APPOINTMENT
A. On the Vice President:
ARTICLE VII, SECTION 3(2). The Vice-President may be
appointed as a Member of the Cabinet. Such appointment
requires no confirmation.
B. On the Justice Secretary:
ARTICLE VIII, SECTION 8(1). A Judicial and Bar Council is
hereby created under the supervision of the Supreme
Court composed of the Chief Justice as ex officio Chairman,
the Secretary of Justice, and a representative of the
Congress as ex officio Members, a representative of the
Integrated Bar, a professor of law, a retired Member of the
Supreme Court, and a representative of the private sector.
C. On ex-officio positions:
Ex officio positions refers to an authority derived from
official character merely, not expressly conferred upon the
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
individual character, but rather annexed to the official
position. One who is an ex-officio member of a body/board
is by virtue of his title to a certain office, and without
further warrant or appointment.
SUCCESSION
A. At the beginning of the term:
ARTICLE VII, SECTION 7. The President-elect and the Vice
President-elect shall assume office at the beginning of
their terms.
If the President-elect fails to qualify, the Vice President-
elect shall act as President until the President-elect shall
have qualified.
If a President shall not have been chosen, the Vice
President-elect shall act as President until a President shall
have been chosen and qualified.
If at the beginning of the term of the President, the
President-elect shall have died or shall have become
permanently disabled, the Vice President-elect shall
become President.
Where no President and Vice-President shall have been
chosen or shall have qualified, or where both shall have
died or become permanently disabled, the President of the
Senate or, in case of his inability, the Speaker of the House
of Representatives, shall act as President until a President
or a Vice-President shall have been chosen and qualified.
The Congress shall, by law, provide for the manner in
which one who is to act as President shall be selected until
a President or a Vice-President shall have qualified, in case
of death, permanent disability, or inability of the officials
mentioned in the next preceding paragraph.
ARTICLE VII, SECTION 10. The Congress shall, at ten
o'clock in the morning of the third day after the vacancy in
the offices of the President and Vice-President occurs,
convene in accordance with its rules without need of a call
and within seven days, enact a law calling for a special
election to elect a President and a Vice-President to be held
not earlier than forty-five days nor later than sixty days
from the time of such call. The bill calling such special
election shall be deemed certified under paragraph 2,
Section 26, Article VI of this Constitution and shall become
law upon its approval on third reading by the Congress.
Appropriations for the special election shall be charged
against any current appropriations and shall be exempt
from the requirements of paragraph 4, Section 25, Article
VI of this Constitution. The convening of the Congress
cannot be suspended nor the special election postponed.
No special election shall be called if the vacancy occurs
within eighteen months before the date of the next
presidential election.
B. During the term:
ARTICLE VII, SECTION 8. In case of death, permanent
disability, removal from office, or resignation of the
President, the Vice-President shall become the President
to serve the unexpired term. In case of death, permanent
disability, removal from office, or resignation of both the
President and Vice-President, the President of the Senate
or, in case of his inability, the Speaker of the House of
Representatives, shall then act as President until the
President or Vice President shall have been elected and
qualified.
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
The Congress shall, by law, provide who shall serve as
President in case of death, permanent disability, or
resignation of the Acting President. He shall serve until the
President or the Vice-President shall have been elected
and qualified, and be subject to the same restrictions of
powers and disqualifications as the Acting President.
ARTICLE VII, SECTION 10. The Congress shall, at ten
o'clock in the morning of the third day after the vacancy in
the offices of the President and Vice-President occurs,
convene in accordance with its rules without need of a call
and within seven days, enact a law calling for a special
election to elect a President and a Vice-President to be held
not earlier than forty-five days nor later than sixty days
from the time of such call. The bill calling such special
election shall be deemed certified under paragraph 2,
Section 26, Article VI of this Constitution and shall become
law upon its approval on third reading by the Congress.
Appropriations for the special election shall be charged
against any current appropriations and shall be exempt
from the requirements of paragraph 4, Section 25, Article
VI of this Constitution. The convening of the Congress
cannot be suspended nor the special election postponed.
No special election shall be called if the vacancy occurs
within eighteen months before the date of the next
presidential election.
C. Temporary Disability
ARTICLE VII, SECTION 2. No person may be elected
President unless he is a natural-born citizen of the
Philippines, a registered voter, able to read and write, at
least forty years of age on the day of the election, and a
resident of the Philippines for at least ten years
immediately preceding such election.
ARTICLE VII, SECTION 3. There shall be a Vice-President
who shall have the same qualifications and term of office
and be elected with, and in the same manner, as the
President. He may be removed from office in the same
manner as the President.
The Vice-President may be appointed as a Member of the
Cabinet. Such appointment requires no confirmation.
ESTRADA v. ARROYO
Estrada postulates that respondent Arroyo as Vice
President has no power to adjudge the inability of the
petitioner to discharge the powers and duties of the
presidency. His significant submittal is that "Congress has
the ultimate authority under the Constitution to determine
whether the President is incapable of performing his
functions in the manner provided for in section 11 of
Article VII." This contention is the centerpiece of
petitioner's stance that he is a President on leave and
respondent Arroyo is only an Acting President.
[Both Houses of Congress issue resolutions recognizing
the presidency and assumption of Gloria Macapagal-
Arroyo]
Is Estrada still president and was only temporarily unable
to discharge his duties?
ANSWER: NO.
What leaps to the eye from these irrefutable facts is that
both houses of Congress have recognized respondent
Arroyo as the President. Implicitly clear in that recognition
is the premise that the inability of petitioner Estrada is no
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
longer temporary. Congress has clearly rejected
petitioner's claim of inability.
The question is whether this Court has jurisdiction to
review the claim of temporary inability of petitioner
Estrada and thereafter revise the decision of both Houses
of Congress recognizing respondent Arroyo as President of
the Philippines. Following Tañada v. Cuenco, we hold that
this Court cannot "exercise its judicial power for this is an
issue "in regard to which full discretionary authority has
been delegated to the Legislative . . . branch of the
government." Or to use the language in Baker vs. Carr,
there is a "textually demonstrable constitutional
commitment of the issue to a coordinate political
department or a lack of judicially discoverable and
manageable standards for resolving it." Clearly, the Court
cannot pass upon petitioner's claim of inability to
discharge the powers and duties of the presidency. The
question is political in nature and addressed solely to
Congress by constitutional fiat. It is a political issue which
cannot be decided by this Court without transgressing the
principle of separation of powers.
In fine, even if the petitioner can prove that he did not
resign, still, he cannot successfully claim that he is a
President on leave on the ground that he is merely unable
to govern temporarily. That claim has been laid to rest by
Congress and the decision that respondent Arroyo is the
de jure President made by a co-equal branch of
government cannot be reviewed by this Court.
REMOVAL
ARTICLE XI, SECTION 2. The President, the Vice-President,
the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be
removed from office on impeachment for, and conviction
of, culpable violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, or betrayal of
public trust. All other public officers and employees may
be removed from office as provided by law, but not by
impeachment.
ARTICLE XI, SECTION 3. 1. The House of Representatives
shall have the exclusive power to initiate all cases of
impeachment.
2. A verified complaint for impeachment may be filed by
any Member of the House of Representatives or by any
citizen upon a resolution or endorsement by any Member
thereof, which shall be included in the Order of Business
within ten session days, and referred to the proper
Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its
Members, shall submit its report to the House within sixty
session days from such referral, together with the
corresponding resolution. The resolution shall be
calendared for consideration by the House within ten
session days from receipt thereof.
3. A vote of at least one-third of all the Members of the
House shall be necessary either to affirm a favorable
resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution. The vote of
each Member shall be recorded.
4. In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the
Members of the House, the same shall constitute the
Articles of Impeachment, and trial by the Senate shall
forthwith proceed.
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
5. No impeachment proceedings shall be initiated against
the same official more than once within a period of one
year.
6. The Senate shall have the sole power to try and decide
all cases of impeachment. When sitting for that purpose,
the Senators shall be on oath or affirmation. When the
President of the Philippines is on trial, the Chief Justice of
the Supreme Court shall preside, but shall not vote. No
person shall be convicted without the concurrence of two-
thirds of all the Members of the Senate.
7. Judgment in cases of impeachment shall not extend
further than removal from office and disqualification to
hold any office under the Republic of the Philippines, but
the party convicted shall nevertheless be liable and subject
to prosecution, trial, and punishment, according to law.
8. The Congress shall promulgate its rules on
impeachment to effectively carry out the purpose of this
section.
EXECUTIVE DEPARTMENT
EXECUTIVE POWER
SECTION 1. The executive power shall be vested in the
President of the Philippines.
SECTION 17. The President shall have control of all the
executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.
MARCOS v. MANGLAPUS
This case involves the legality of the decision of President
Corazon Aquino in refusing the dying request of President
Ferdinand Marcos to be allowed to return in the
Philippines.
[The court clarifies that this case is a class by itself,
considering the parties involved]
Can President Aquino validly bar and not issue travel
documents for the Marcoses to return to the Philippines?
ANSWER: YES.
The Constitution provides that "[t]he executive power shall
be vested in the President of the Philippines." [Art. VII, Sec.
1]. However, it does not define what is meant by "executive
power" although in the same article it touches on the
exercise of certain powers by the President, i.e., the power
of control over all executive departments, bureaus and
offices, the power to execute the laws, the appointing
power, the powers under the commander-in-chief clause,
the power to grant reprieves, commutations and pardons,
the power to grant amnesty with the concurrence of
Congress, the power to contract or guarantee foreign
loans, the power to enter into treaties or international
agreements, the power to submit the budget to Congress,
and the power to address Congress [Art. VII, Secs. 14-23].
We hold the view that although the 1987 Constitution
imposes limitations on the exercise of specific powers of
the President, it maintains intact what is traditionally
considered as within the scope of "executive power."
Corollarily, the powers of the President cannot be said
to be limited only to the specific powers enumerated
in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated.
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
It has been advanced that whatever power inherent in
the government that is neither legislative nor judicial
has to be executive.
To the President, the problem is one of balancing the
general welfare and the common good against the
exercise of rights of certain individuals. The power
involved is the President's residual power to protect
the general welfare of the people. It is founded on the
duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of
the President but also his duty to do anything not
forbidden by the Constitution or the laws that the needs of
the nation demand [See Corwin, supra, at 153]. It is a
power borne by the President's duty to preserve and
defend the Constitution. It also may be viewed as a power
implicit in the President's duty to take care that the laws
are faithfully executed.
MARCOS v. MANGLAPUS (RESOLUTION)
Subsequently, President Marcos died after the
promulgation of the first judgment (with a vote of 8-7) in
Honolulu, Hawaii. A motion for reconsideration was filed
again by the Marcoses asking for their return to the
Philippines.
RULING:
Contrary to petitioners' view, it cannot be denied that
the President, upon whom executive power is vested,
has unstated residual powers which are implied from
the grant of executive power and which are necessary
for her to comply with her duties under the
Constitution. The powers of the President are not limited
to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the
Constitution. This is so, notwithstanding the avowed intent
of the members of the Constitutional Commission of 1986
to limit the powers of the President as a reaction to the
abuses under the regime of Mr. Marcos, for the result was
a limitation of specific powers of the President, particularly
those relating to the commander-in-chief clause, but not a
diminution of the general grant of executive power.
BIRAOGO v. PHILIPPINE TRUTH COMMISSION
Upon his assumption of office, President Benigno Aquino
III issued Executive Order 1 creating the Philippine Truth
Commission in order to investigate anomalies and issues
during the administration of former President Gloria
Macapagal-Arroyo. It is not a quasi-judicial body as it
cannot adjudicate, arbitrate, resolve, settle, or render
awards in disputes between contending parties. All it can
do is gather, collect and assess evidence of graft and
corruption and make recommendations. It may have
subpoena powers but it has no power to cite people in
contempt, much less order their arrest. Although it is a
fact-finding body, it cannot determine from such facts if
probable cause exists as to warrant the filing of an
information in our courts of law. Needless to state, it
cannot impose criminal, civil or administrative penalties or
sanctions
Petitioner questions the legality of the creation as it
arrogates congressional power in creating public offices
and appropriation of funds, and mission of the Truth
Commission as it violates the equal protection clause in
targeting only the previous administration.
Can the President create ‘truth commissions’ via executive
orders?
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
ANSWER: YES.
The creation of the PTC finds justification under Section 17,
Article VII of the Constitution, imposing upon the President
the duty to ensure that the laws are faithfully executed.
As correctly pointed out by the respondents, the allocation
of power in the three principal branches of government is
a grant of all powers inherent in them. The President's
power to conduct investigations to aid him in ensuring the
faithful execution of laws — in this case, fundamental laws
on public accountability and transparency — is inherent in
the President's powers as the Chief Executive. That the
authority of the President to conduct investigations and to
create bodies to execute this power is not explicitly
mentioned in the Constitution or in statutes does not
mean that he is bereft of such authority.
In Marcos v. Manglapus, we hold the view that although the
1987 Constitution imposes limitations on the exercise of
specific powers of the President, it maintains intact what is
traditionally considered as within the scope of "executive
power." Corollarily, the powers of the President cannot be
said to be limited only to the specific powers enumerated
in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated. It
has been advanced that whatever power inherent in
the government that is neither legislative nor judicial
has to be executive. . . . .
Is EO 1 creating the PTC non-violative of the equal
protection clause?
ANSWER: NO.
The Court logically recognizes the unfeasibility of
investigating almost a century's worth of graft cases.
However, the fact remains that Executive Order No. 1
suffers from arbitrary classification. The PTC, to be true to
its mandate of searching for the truth, must not exclude
the other past administrations. The PTC must, at least,
have the authority to investigate all past administrations.
PICHAY v. DEPUTY EXECUTIVE SECRETARY
This case involves the abolishment of the Presidential Anti-
Graft Commission and transferring its functions to the
Deputy Executive Secretary for Legal Affairs by virtue of
Executive Order No. 13 by President Noynoy Aquino.
A complaint was filed by Finance Secretry Purisima against
Prospero Pichay, Chairman of the LWUA Board and other
members, for grave misconduct in the purchase of Express
Savings Bank shares by LWUA. Pichay questions the
validity of EO 13 since it allegedy usurped legislative
authority to create offices and appropriating funds.
Was the contention of Pichay valid?
ANSWER: NO.
Section 31 of Executive Order No. 292 (E.O. 292), otherwise
known as the Administrative Code of 1987, vests in the
President the continuing authority to reorganize the
offices under him in order to achieve simplicity, economy
and efficiency. Clearly, the abolition of the PAGC and the
transfer of its functions to a division specially created
within the ODESLA is properly within the prerogative of the
President under his continuing "delegated legislative
authority to reorganize" his own office pursuant to E.O.
292.
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
The abolition of the PAGC did not require the creation of a
new, additional and distinct office as the duties and
functions that pertained to the defunct anti-graft body
were simply transferred to the ODESLA, which is an
existing office within the Office of the President Proper.
The reorganization required no more than a mere
alteration of the administrative structure of the ODESLA
through the establishment of a third division — the
Investigative and Adjudicatory Division — through which
ODESLA could take on the additional functions it has been
tasked to discharge under E.O. 13.
OCAMPO v. ENRIQUEZ
This case is filed by Satur Ocampo and others, challenging
the planned interment of the remains of the deposed
dictator Ferdinand Marcos in the Libingan ng mga Bayani.
The burial was in compliance with the verbal order and
election campaign promise of President Rodrigo Duterte.
Can President Duterte allow the burial of President Marcos
in the LNMB?
ANSWER: YES.
While the Constitution is a product of our collective history
as a people, its entirety should not be interpreted as
providing guiding principles to just about anything
remotely related to the Martial Law period such as the
proposed Marcos burial at the LNMB.
The second sentence of Sec. 17 of Art. VII pertaining to the
duty of the President to "ensure that the laws be faithfully
executed," which is identical to Sec. 1, Title I, Book III of the
Administrative Code of 1987, is likewise not violated by
public respondents. Being the Chief Executive, the
President represents the government as a whole and sees
to it that all laws are enforced by the officials and
employees of his or her department. Under the Faithful
Execution Clause, the President has the power to take
"necessary and proper steps" to carry into execution the
law.
The mandate is self-executory by virtue of its being
inherently executive in nature and is intimately related to
the other executive functions. It is best construed as an
imposed obligation, not a separate grant of power. 64 The
provision simply underscores the rule of law and,
corollarily, the cardinal principle that the President is not
above the laws but is obliged to obey and execute them.
Consistent with President Duterte's mandate under Sec.
17, Art. VII of the Constitution, the burial of Marcos at the
LNMB does not contravene R.A. No. 289, R.A. No. 10368,
and the international human rights laws cited by
petitioners.
The presidential power of control over the Executive
Branch of Government is a self-executing provision of the
Constitution and does not require statutory
implementation, nor may its exercise be limited, much less
withdrawn, by the legislature. This is why President
Duterte is not bound by the alleged 1992 Agreement
between former President Ramos and the Marcos family
to have the remains of Marcos interred in Batac, Ilocos
Norte. As the incumbent President, he is free to amend,
revoke or rescind political agreements entered into by his
predecessors, and to determine policies which he
considers, based on informed judgment and presumed
wisdom, will be most effective in carrying out his mandate.
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
POWER OF CONTROL
SECTION 17. The President shall have control of all the
executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.
In relation to Book III, Title III, and Chapter 10 of the
Revised Administrative Code of 1987:
SECTION 31. Continuing Authority of the President to
Reorganize his Office. - The President, subject to the policy
in the Executive Office and in order to achieve simplicity,
economy and efficiency, shall have continuing authority to
reorganize the administrative structure of the Office of the
President. For this purpose, he may take any of the
following actions:
(1) Restructure the internal organization of the Office of the
President Proper, including the immediate Offices, the
Presidential Special Assistants/Advisers System and the
Common staff Support System, by abolishing,
consolidating or merging units thereof or transferring
functions from one unit to another;
(2) Transfer any function under the Office of the President
to any other Department or Agency as well as transfer
functions to the Office of the President from other
Departments and Agencies; and
(3) Transfer any agency under the Office of the President
to any other department or agency as well as transfer
agencies to the Office of the President from other
departments or agencies.
ATTY. SALLY:
Doctrine of Qualified Political Agency
The decisions of the Cabinet secretaries, being alter egos
of the President, are considered decisions of the latter
unless reversed, modified, or reprobated under the power
of control.
DENR v. DENR EMPLOYEES
Pursuant to DENR Adm. Order No. 99-14, a Memorandum
was issued directing the immediate transfer of the DENR
XII Regional Offices from Cotabato City to Koronadal, South
Cotabato. However, employees from said offices opposed
the said move and petitioned the court for a TRO against
the order of Secretary Antonio Cerilles.
Does the DENR Secretary have the authority to reorganize
the DENR?
ANSWER: YES.
It is apropos to reiterate the elementary doctrine of
qualified political agency, thus:
Under this doctrine, which recognizes the establishment of
a single executive, all executive and administrative
organizations are adjuncts of the Executive Department,
the heads of the various executive departments are
assistants and agents of the Chief Executive, and, except in
cases where the Chief Executive is required by the
Constitution or law to act in person or the exigencies of the
situation demand that he act personally, the multifarious
executive and administrative functions of the Chief
Executive are performed by and through the executive
departments, and the acts of the Secretaries of such
departments, performed and promulgated in the regular
course of business, are, unless disapproved or reprobated
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
by the Chief Executive, presumptively the acts of the Chief
Executive.
This doctrine is corollary to the control power of the
President as provided for under Article VII, Section 17 of
the 1987 Constitution.
However, as head of the Executive Department, the
President cannot be expected to exercise his control (and
supervisory) powers personally all the time. He may
delegate some of his powers to the Cabinet members
except when he is required by the Constitution to act in
person or the exigencies of the situation demand that he
acts personally.
In Buklod ng Kawaning EIIB v. Zamora, 18 this Court upheld
the continuing authority of the President to carry out the
reorganization in any branch or agency of the executive
department. Such authority includes the creation,
alteration or abolition of public offices. The Chief
Executive's authority to reorganize the National
Government finds basis in Book III, Section 20 of E.O. No.
292, otherwise known as the Administrative Code of 1987,
viz:
Section 20. Residual Powers. — Unless Congress provides
otherwise, the President shall exercise such other powers
and functions vested in the President which are provided
for under the laws and which are not specifically
enumerated above or which are not delegated by the
President in accordance with law.
Applying the doctrine of qualified political agency, the
power of the President to reorganize the National
Government may validly be delegated to his cabinet
members exercising control over a particular executive
department.
MONDANO v. SILVOSA
This involves a complaint for rape and concubinage lodged
by a woman against Mosende, mayor of Mainit, to the
Presidential Complaints Committee. The Assistant
Executive Secretary indorsed the said complaint to Silvosa,
provincial governor of Surigao. The latter suspended
Mayor Mosende while the Provincial Board proceeded in
hearing the charges against him.
Was the act of the governor and provincial board legal?
ANSWER: NO.
Section 10, paragraph 1, Article VII, of the Constitution
provides: "The President shall have control of all the
executive departments, bureaus, or offices, exercise
general supervision over all local governments as may be
provided by law, and take care that the laws be faithfully
executed."
Under this constitutional provision the President has been
invested with the power of control of all the executive
departments, bureaus, or offices, but not of all local
governments over which he has been granted only the
power of general supervision as may be provided by law.
The Department head as agent of the President has direct
control and supervision over all bureaus and offices under
his jurisdiction as provided for in section 79(c) of the
Revised Administrative Code, but he does not have the
same control of local governments as that exercised by
him over bureaus and offices under his jurisdiction.
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
Likewise, his authority to order the investigation of any act
or conduct of any person in the service of any bureau or
office under his department is confined to bureaus or
offices under his jurisdiction and does not extend to local
governments over which, as already stated, the President
exercises only general supervision as may be provided by
law.
If the provisions of section 79 (c) of the Revised
Administrative Code are to be construed as conferring
upon the corresponding department head direct control,
direction, and supervision over all local governments and
that for that reason he may order the investigation of an
official of a local government for malfeasance in office,
such interpretation would be contrary to the provisions of
paragraph 1, section 10, Article VII, of the Constitution. If
"general supervision over all local governments" is to be
construed as the same power granted to the Department
Head in section 79 (c) of the Revised Administrative Code,
then there would no longer be a distinction or difference
between the power of control and that of supervision.
In administrative law, supervision means overseeing or
the power or authority of an officer to see that
subordinate officers perform their duties. If the latter
fail or neglect to fulfill them the former may take such
action or step as prescribed by law to make them
perform their duties. Control, on the other hand,
means the power of an officer to alter or modify or
nullify or set aside what a subordinate officer had
done in the performance of his duties and to
substitute the judgment of the former for that of the
latter. Such is the import of the provisions of section 79 (c)
of the Revised Administrative Code and of Act No. 4007.
The charges preferred against the petitioner, municipal
mayor of Mainit, province of Surigao, not being those or
any of those specified in section 2188 of the Revised
Administrative Code, the investigation of such charges by
the provincial board is unauthorized and illegal. The
suspension of the petitioner as mayor of the municipality
of Mainit is, consequently, unlawful and without authority
of law.
VILLENA v. SECRETARY OF INTERIOR
This is an action of prohibition filed by Villena, mayor of
Makati, against the Secretary of Interior for investigating
him for bribery, extortion and others. The Secretary of
Interior recommended to the President the suspension of
said mayor to prevent possible coercion of witnesses, and
was granted verbally according to the Solicitor General.
The Secretary of Interior then suspended Mayor Villena.
Can the Secretary validly order an investigation on the
mayor?
ANSWER: YES.
Section 79 (C) of the Administrative Code provides as
follows:
"The Department Head shall have direct control, direction,
and supervision over all bureaus and offices under his
jurisdiction and may, any provision of existing law to the
contrary notwithstanding, repeal or modify the decisions
of the chiefs of said bureaus or offices when advisable in
the public interest.
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
"The Department Head may order the investigation of any
act or conduct of any person in the service of any bureau
or office under his department and in connection
therewith may appoint a committee or designate an official
or person who shall conduct such investigations, and such
committee, official, or person may summon, witness by
subpœna and subpœna duces tecum, administer cath and
take testimony relevant to the investigation."
This section should be interpreted in relation to section 86
of the same Code which grants to the Department of the
Interior "executive supervision over the administration of
provinces, municipalities, chartered cities and other local
political subdivisions."
In the case of Planas vs. Gil (37 Off. Gaz., 1228), we
observed that "Supervision is not a meaningless thing. It is
an active power. It is certainly not without limitation, but it
at least implies authority to inquire into facts and
conditions in order to render the power real and effective.
If supervision is to be conscientious and rational, and not
automatic and brutal, it must be founded upon a
knowledge of actual facts and conditions disclosed after
careful study and investigation." The principle there
enunciated is applicable with equal force to the present
case.
We hold, therefore, that the Secretary of the Interior is
invested with authority to order the investigation of
the charges against the petitioner and to appoint a
special investigator for that purpose.
Can the Secretary of Interior suspend Mayor Villena?
ANSWER: YES.
The fact, however, that the power of suspension is
expressly granted by section 2188 of the Administrative
Code to the provincial governor does not mean that the
grant is necessarily exclusive and precludes the Secretary
of the Interior from exercising a similar power. For
instance, counsel for the petitioner admitted in the oral
argument that the President of the Philippines may himself
suspend the petitioner from office in virtue of his greater
power of removal (sec. 2191, as amended, Administrative
Code) to be exercised conformably to law. Indeed, if the
President could, in the manner prescribed by law, remove
a municipal official, it would be a legal incongruity if he
were to be devoid of the lesser power of suspension. And
the incongruity would be more patent if, possessed of the
power both to suspend and to remove a provincial official
(sec. 2078, Administrative Code), the President were to be
without the power to suspend a municipal official.
Here is, parenthetically, an instance where, as counsel for
petitioner admitted, the power to suspend a municipal
official is not exclusive. Upon the other hand, it may be
argued with some degree of plausibility that, if the
Secretary of the Interior is, as we have hereinabove
concluded, empowered to investigate the charges against
the petitioner and to appoint a special investigator for that
purpose, preventive suspension may be a means by which
to carry into effect a fair and impartial investigation.
LACSON-MAGALLANES v. PAŇO
May the Executive Secretary, acting by authority of the
President, reverse a decision of the Director of Lands that
had been affirmed by the Secretary of Agriculture and
Natural Resources?
11
Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
ANSWER: YES.
It is correct to say that constitutional powers there are
which the President must exercise in person. Not as
correct, however, is it to say that the Chief Executive may
not delegate to his Executive Secretary acts which the
Constitution does not command that he perform in
person, for the President is not expected to perform in
person all the multifarious executive and administrative
functions.
The Office of the Executive Secretary is an auxiliary unit
which assists the President. The rule which has thus gained
recognition is that under our constitutional set-up the
Executive Secretary who acts for and in behalf and by
authority of the President has an undisputed jurisdiction
to affirm, modify, or even reverse any order that the
Secretary of Agriculture and Natural Resources, including
the Director of Lands, may issue. Where the Executive
Secretary acts "by authority of the President," his decision
is that of the President's. Such decision is to be given full
faith and credit by our courts. The assumed authority of
the Executive Secretary is to be accepted. For, only the
President may rightfully say that the Executive Secretary is
not authorized to do so. Therefore, unless the action taken
is "disapproved or reprobated by the Chief Executive," that
remains the act of the Chief Executive, and cannot be
successfully assailed.
POWER OF GENERAL SUPERVISION OVER LGUs
ARTICLE X, SECTION 4. The President of the Philippines
shall exercise general supervision over local governments.
Provinces with respect to component cities and
municipalities, and cities and municipalities with respect to
component barangays shall ensure that the acts of their
component units are within the scope of their prescribed
powers and functions.
ARTICLE X, SECTION 16. The President shall exercise
general supervision over autonomous regions to ensure
that the laws are faithfully executed.
GANZON v. COURT OF APPEALS
This case involves a petition by Ganzon, mayor of Iloilo,
over the Secretary of Interior (by authority of the
President), on the legality of the power to suspend or
remove local officials.
Mayor Ganzon allegedly did acts against employees who
were supporters of a rival candidate in the elections, dozed
off using firetruck water the members of the city council
who were protesting over his acts and others.
After due investigation by the DILG Regional Office,
probable grounds were found and the Secretary of Interior
issued a preventive suspension. Another preventive
suspension was issued on another case. Mayor Ganzon
instituted an action for prohibition against the Secretary,
but the latter issued a third preventive suspension due to
another complaint (the third order in 20 months).
Does the Secretary of Interior have the power to issue
preventive suspension and/or remove local officials?
ANSWER: YES.
It is the considered opinion of the Court that
notwithstanding the change in the constitutional language,
the charter did not intend to divest the legislature of its
right — or the President of her prerogative as conferred by
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
existing legislation to provide administrative sanctions
against local officials. It is our opinion that the omission (of
"as may be provided by law") signifies nothing more than
to underscore local governments' autonomy from
congress and to break Congress' "control" over local
government affairs. The Constitution did not, however,
intend, for the sake of local autonomy, to deprive the
legislature of all authority over municipal corporations, in
particular, concerning discipline.
"Control" has been defined as "the power of an o cer to
alter or modify or nullify or set aside what a subordinate
officer had done in the performance of his duties and to
substitute the judgment of the former for test of the
latter." 36 "Supervision" on the other hand means
"overseeing or the power or authority of an officer to see
that subordinate officers perform their duties." As we held,
however, "investigating" is not inconsistent with
"overseeing", although it is a lesser power than
"altering".
Thus, in those case that this Court denied the President the
power (to suspend remove) it was not because we did not
think that the President cannot exercise it on account of
his limited power, but because the law lodged the power
elsewhere. But in those cases in which the law gave him
the power, the Court, as in Ganzon v. Kayanan, found little
difficulty in sustaining him.
DADOLE v. COMMISSION ON AUDIT
In 1986, petitioners as RTC and MTC judges stationed in
Mandaue City received a monthly allowance of P1,260 each
pursuant to the yearly appropriation ordinance.
Eventually, in 1991, it was increased to P1,500 for each
judge. However, on March 15, 1994, the Department of
Budget and Management (DBM) issued Local Budget
Circular No. 55 (LBC 55) which provides that the additional
monthly allowances to be given by a local government unit
should not exceed P1,000 in provinces and cities and P700
in municipalities. Acting on the said DBM directive, the
Mandaue City Auditor issued notices of disallowance to
herein petitioners in excess of the amount authorized by
LBC 55. Thus, petitioners filed with the Office of the City
Auditor a protest. However, it was treated as a motion for
reconsideration and was endorsed to the Commission on
Audit (COA) Regional Office No. 7. In turn, the COA Regional
Office referred the said motion to their Head Office with
recommendation that the same should be denied.
Accordingly, it was denied by the COA. Hence, petitioners
filed the instant petition. They argued, among others, that
LBC 55 is void for infringing on the local autonomy of
Mandaue City by dictating a uniform amount that a local
government unit can disburse as additional allowances to
judges stationed therein.
Was LBC 55 of the DBM is void foregoing beyond the
supervisory powers of the President?
ANSWER: YES.
We recognize that, although our Constitution guarantees
autonomy to local government units, the exercise of local
autonomy remains subject to the power of control by
Congress and the power of supervision by the President.
Section 4 of Article X of the 1987 Philippine Constitution
provides that:
Sec. 4. The President of the Philippines shall exercise
general supervision over local governments. . . .
12
Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
In Pimentel vs. Aguirre, 7 we defined the supervisory
power of the President and distinguished it from the
power of control exercised by Congress. Thus: This
provision (Section 4 of Article X of the 1987 Philippine
Constitution) has been interpreted to exclude the power of
control. In Mondano v. Silvosa, the Court contrasted the
President's power of supervision over local government
officials with that of his power of control over executive
officials of the national government. It was emphasized
that the two terms — supervision and control — differed
in meaning and extent. The Court distinguished them as
follows:
". . . In administrative law, supervision means overseeing
or the power or authority of an officer to see that
subordinate officers perform their duties. If the latter fail
or neglect to fulfill them, the former may take such action
or step as prescribed by law to make them perform their
duties. Control, on the other hand, means the power of an
officer to alter or modify or nullify or set aside what a
subordinate officer ha[s] done in the performance of his
duties and to substitute the judgment of the former for
that of the latter."
In Taule v. Santos, we further stated that the Chief
Executive wielded no more authority than that of checking
whether local governments or their officials were
performing their duties as provided by the fundamental
law and by statutes. He cannot interfere with local
governments, so long as they act within the scope of
their authority. "Supervisory power, when contrasted
with control, is the power of mere oversight over an
inferior body; it does not include any restraining authority
over such body,"
We said in a more recent case, Drilon v. Lim, the difference
between control and supervision was further delineated.
Officers in control lay down the rules in the performance
or accomplishment of act. If these rules are not followed,
they may, in their discretion, order the act undone or
redone by their subordinates or even decide to do it
themselves. On the other hand, supervision does not cover
such authority. Supervising officials merely see to it
that the rules are followed, but they themselves do not
lay down such rules, nor do they have the discretion to
modify or replace them. If the rules are not observed,
they may order the work done or redone, but only to
conform to such rules. They may not prescribe their own
manner of execution of the act. They have no discretion on
this matter except to see to it that the rules are followed.
Under our present system of government, executive
power is vested in the President. The members of the
Cabinet and other executive officials are merely alter egos.
As such, they are subject to the power of control of the
President, at whose will and behest they can be removed
from office; or their actions and decisions changed,
suspended or reversed.
In contrast, the heads of political subdivisions are elected
by the people. Their sovereign powers emanate from the
electorate, to whom they are directly accountable. By
constitutional fiat, they are subject to the President's
supervision only, not control, so long as their acts are
exercised within the sphere of their legitimate powers. By
the same token, the President may not withhold or alter
any authority or power given them by the Constitution and
the law.
Clearly then, the President can only interfere in the
affairs and activities of a local government unit if he or
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
she finds that the latter has acted contrary to law. This
is the scope of the President's supervisory powers over
local government units. Hence, the President or any of his
or her alter egos cannot interfere in local affairs as long as
the concerned local government unit acts within the
parameters of the law and the Constitution. Any directive
therefore by the President or any of his or her alter egos
seeking to alter the wisdom of a law-conforming judgment
on local affairs of a local government unit is a patent nullity
because it violates the principle of local autonomy and
separation of powers of the executive and legislative
departments in governing municipal corporations.
POWER OF APPOINTMENT
BASIS
ATTY. SALLY: The power to appoint implies the power to
remove unless specified otherwise by the Constitution or
by law.
GOVERNMENT OF THE PHILIPPINE ISLANDS v. SPRINGER
The case tackles whether a law created by the Philippine
Legislature designating some of its members to be part of
a committee to exercise the stock voting rights of the
National Coal Corporation valid and does not encroach on
the Governor-General’s power to appoint.
Was the provisions of said act in violative of the Governor-
General’s power to appoint?
ANSWER: YES.
It may finally be inferred from the books that the
appointment of public officials is generally looked upon as
properly an executive function. The power of appointment
can hardly be considered a legislative power.
Appointments may be made by the Legislature or the
courts, but when so made should be taken as an incident
to the discharge of functions properly within their
respective spheres.
The selection of persons to perform the functions of
government is primarily a prerogative of the people. The
appointment of public officials is generally looked upon as
properly an executive function. Appointments may be
made by the Legislature or the courts, but when so made
should be taken as an incident to the discharge of
functions properly within their respective spheres.
The right to appoint to office has been confided, with
certain well defined exceptions, by the Government of the
United States to the executive branch of the government
which it has set up in the Philippines. Under a system of
government of delegated powers, under which delegation
legislative power vests in the Philippine Legislature and
executive power vests in the Governor-General, and under
which delegation a general power of appointment resides
in the Governor-General and a specified power of
appointment resides in the Philippine Legislature, the
latter cannot directly or indirectly perform functions of an
executive nature through the designation of its presiding
officers as majority members of a body which has
executive functions.
NOTE: In Springer v. GPI (1928), It has been advanced
that whatever power inherent in the government that
is neither legislative nor judicial has to be executive.
Here the members of the legislature who constitute a
majority of the "board" and "committee" respectively, are
13
Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
not charged with the performance of any legislative
functions or with the doing of anything which is in aid of
performance of any such functions by the legislature.
Putting aside for the moment the question whether the
duties devolved upon these members are vested by the
Organic Act in the Governor-General, it is clear that they
are not legislative in character, and still more clear that
they are not judicial. The fact that they do not fall within
the authority of either of these two constitutes logical
ground for concluding that they do fall within that of the
remaining one among which the powers of government
are divided . . .
CONCURRENCE OF COMMISSION ON APPOINTMENTS
A. In Article VII, the enumeration is exclusive:
SECTION 16. The President shall nominate and, with the
consent of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in
him in this Constitution. He shall also appoint all other
officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law,
vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only
until after disapproval by the Commission on
Appointments or until the next adjournment of the
Congress.
NOTE: Bureau chiefs (Bureau of Customs, Bureau of
Corrections etc.) are not covered. Chairman and
members of Constitutional Commissions (COA,
COMELEC and CSC) are covered by the phrase other
officers whose appointments are vested in him under this
Constitution.
B. In Article VIII: Members of the Judicial & Bar Council
SECTION 8(2). The regular Members of the Council shall be
appointed by the President for a term of four years with
the consent of the Commission on Appointments. Of the
Members first appointed, the representative of the
Integrated Bar shall serve for four years, the professor of
law for three years, the retired Justice for two years, and
the representative of the private sector for one year.
C. In Article XVIII: sectoral representatives in Congress
SECTION 7. Until a law is passed, the President may fill by
appointment from a list of nominees by the respective
sectors the seats reserved for sectoral representation in
paragraph (2), Section 5 of Article VI of this Constitution.
NOTE: This is now unavailing due to the Party-List Law.
EXCEPTIONS TO CA CONCURRENCE
WITH JUDICIAL AND BAR COUNCIL RECOMMENDATION
A. In Article VIII: Members of the Supreme Court
SECTION 9. The Members of the Supreme Court and
judges of lower courts shall be appointed by the President
from a list of at least three nominees prepared by the
Judicial and Bar Council for every vacancy. Such
appointments need no confirmation.
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
B. Article XI: Ombudsman and Deputies
SECTION 9. The Ombudsman and his Deputies shall be
appointed by the President from a list of at least six
nominees prepared by the Judicial and Bar Council, and
from a list of three nominees for every vacancy thereafter.
Such appointments shall require no confirmation. All
vacancies shall be filled within three months after they
occur.
GONZALES v. OFFICE OF PRESIDENT
In the assailed Decision, the Court held that the President
has disciplinary jurisdiction over a Deputy Ombudsman
and a Special Prosecutor. This case involves a cop being
investigated by the Ombudsman, who later on hijacked a
bus full of tourists.
A joint committee concluded that the Ombudsman’s
failure to act promptly on the motion for reconsideration
filed by Mendoza, the cop, precipitated the hijacking. The
OP, after the administrative proceedings, dismissed
Deputy Ombudsman Gonzales for Gross Neglect of Duty
and/or Inefficiency in the Performance of Official Duty and
for Misconduct in Office.
Can the President remove a Deputy Ombudsman?
ANSWER: NO.
Under Section 12, Article XI of the 1987 Constitution, the
Office of the Ombudsman is envisioned to be the
"protector of the people" against the inept, abusive, and
corrupt in the Government, to function essentially as a
complaints and action bureau. This constitutional vision of
a Philippine Ombudsman practically intends to make the
Ombudsman an authority to directly check and guard
against the ills, abuses and excesses of the bureaucracy.
The Ombudsman's broad investigative and disciplinary
powers include all acts of malfeasance, misfeasance, and
nonfeasance of all public officials, including Members of
the Cabinet and key Executive officers, during their tenure.
To support these broad powers, the Constitution saw it fit
to insulate the Office of the Ombudsman from the
pressures and influence of officialdom and partisan
politics and from fear of external reprisal by making it an
"independent" office.
In more concrete terms, we rule that subjecting the Deputy
Ombudsman to discipline and removal by the President,
whose own alter egos and officials in the Executive
Department are subject to the Ombudsman's disciplinary
authority, cannot but seriously place at risk the
independence of the Office of the Ombudsman itself. The
Office of the Ombudsman, by express constitutional
mandate, includes its key officials, all of them tasked to
support the Ombudsman in carrying out her mandate.
Unfortunately, intrusion upon the constitutionally-granted
independence is what Section 8 (2) of RA No. 6770 exactly
did. By so doing, the law directly collided not only with the
independence that the Constitution guarantees to the
Office of the Ombudsman, but inevitably with the principle
of checks and balances that the creation of an
Ombudsman office seeks to revitalize.
What is true for the Ombudsman must be equally and
necessarily true for her Deputies who act as agents of the
Ombudsman in the performance of their duties. The
Ombudsman can hardly be expected to place her
complete trust in her subordinate officials who are not as
14
Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
independent as she is, if only because they are subject to
pressures and controls external to her Office. This need for
complete trust is true in an ideal setting and truer still in a
young democracy like the Philippines where graft and
corruption is still a major problem for the government. For
these reasons, Section 8 (2) of RA No. 6770 (providing that
the President may remove a Deputy Ombudsman) should
be declared void.
NOTE: For the Special Prosecutor, Justice Leonen in his
concurring opinion cites that:
By clear provision of the Constitution, it is only the Office
of the Ombudsman, which includes her Deputies, that is
endowed with constitutional independence. The inclusion
of the Office of the Special Prosecutor with the Office of the
Ombudsman in Section 3 of Republic Act No. 6770 does
not ipso facto mean that the Office of the Special
Prosecutor must be afforded the same levels of
constitutional independence as that of the Ombudsman
and the Deputy Ombudsman. The law simply defines how
the Office of the Special Prosecutor is attached and,
therefore, coordinated with the Office of the Ombudsman.
Thus, the provision of Section 8, Paragraph (2) of Republic
Act No. 6770 which provides for the power of the President
to remove the Special Prosecutor is valid and
constitutional.
APPOINTMENT OF VICE PRESIDENT IN THE CABINET
SECTION 3. There shall be a Vice-President who shall have
the same qualifications and term of office and be elected
with and in the same manner as the President. He may be
removed from office in the same manner as the President.
The Vice-President may be appointed as a Member of the
Cabinet. Such appointment requires no confirmation.
APPOINTMENT SOLELY BY THE PRESIDENT
SECTION 16. The President shall nominate and, with the
consent of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed
forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of
the Government whose appointments are not
otherwise provided for by law, and those whom he
may be authorized by law to appoint. The Congress
may, by law, vest the appointment of other officers lower
in rank in the President alone, in the courts, or in the heads
of departments, agencies, commissions, or boards.
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only
until after disapproval by the Commission on
Appointments or until the next adjournment of the
Congress.
SARMIENTO v. MISON
The case involves the constitutionality of the appointment
of Salvador Mison as Commissioner of the Bureau of
Customs, since it was not confirmed by the Commission on
Appointments.
Was a CA confirmation needed for a Customs
Commissioner appointment?
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
ANSWER: NO.
It is readily apparent that under the provisions of the 1987
Constitution, there are four (4) groups of officers whom the
President shall appoint. These four (4) groups, to which we
will hereafter refer from time to time, are:
First, the heads of the executive departments,
ambassadors, other public ministers and consuls, officers
of the armed forces from the rank of colonel or naval
captain, and other officers whose appointments are vested
in him in this Constitution;
Second, all other officers of the Government whose
appointments are not otherwise provided for by law;
Third, those whom the President may be authorized by law
to appoint;
Fourth, officers lower in rank whose appointments the
Congress may by law vest in the President alone.
The first group of officers is clearly appointed with the
consent of the Commission on Appointments.
Appointments of such officers are initiated by nomination
and, if the nomination is confirmed by the Commission on
Appointments, the President appoints.
The second, third and fourth groups of officers are the
present bone of contention. Should they be appointed by
the President with or without the consent (confirmation) of
the Commission on Appointments? By following the
accepted rule in constitutional and statutory construction
that an express enumeration of subjects excludes others
not enumerated, it would follow that only those
appointments to positions expressly stated in the first
group require the consent (confirmation) of the
Commission on Appointments.
In the 1987 Constitution, however, as already pointed out,
the clear and expressed intent of its framers was to
exclude presidential appointments from confirmation by
the Commission on Appointments, except appointments
to offices expressly mentioned in the first sentence of Sec.
16, Article VII.
Coming now to the immediate question before the Court,
it is evident that the position of Commissioner of the
Bureau of Customs (a bureau head) is not one of those
within the first group of appointments where the consent
of the Commission on Appointments is required. As a
matter of fact, as already pointed out, while the 1935
Constitution includes "heads of bureaus" among those
officers whose appointments need the consent of the
Commission on Appointments, the 1987 Constitution, on
the other hand, deliberately excluded the position of
"heads of bureaus" from appointments that need the
consent (confirmation) of the Commission on
Appointments.
CONCEPCION-BAUTISTA v. SALONGA
Barely a year after Mison, the Court is again confronted
with a similar question, this time, whether or not the
appointment by the President of the Chairman of the
Commission on Human Rights (CHR), an "independent
office" created by the 1987 Constitution, is to be made with
or without the confirmation of the Commission on
Appointments.
Can the Chairman and members of the Commission on
Human Rights be appointed without CA confirmation?
ANSWER: YES.
15
Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
The position of Chairman of the Commission on Human
Rights is not among the positions mentioned in the first
sentence of Sec. 16, Art. VII of the 1987 Constitution,
appointments to which are to be made with the
confirmation of the Commission on Appointments, it
follows that the appointments by the President of the
Chairman of the CHR is to be made without the review
or participation of the Commission on Appointments.
To be more precise, the appointment of the Chairman
and Members of the Commission on Human Rights is
not specifically provided for in the Constitution itself,
unlike the Chairman and Members of the Civil Service
Commission, the Commission on Elections and the
Commission on Audit, whose appointments are
expressly vested by the Constitution in the President
with the consent of the Commission on Appointments.
The President appoints the Chairman and Members of the
Commission on Human Rights pursuant to the second
sentence in Section 16, Art. VII, that is, without the
confirmation of the Commission on Appointments
because they are among the officers of government
"whom he (the President) may be authorized by law to
appoint." And Section 2(c), Executive Order No. 163, May
1987, authorizes the President to appoint the Chairman
and Members of the Commission on Human Rights. It
provides: "(c) The Chairman and the Members of the
Commission on Human Rights shall be appointed by the
President for a term of seven years without
reappointment. Appointment to any vacancy shall be only
for the unexpired term of the predecessor."
It is clear that petitioner Bautista was extended by her
Excellency, the President a permanent appointment as
Chairman of the Commission on Human Rights on 17
December 1988. Before this date, she was merely the
"Acting Chairman" of the Commission. Bautista's
appointment on 17 December 1988 is an appointment that
was for the President 1988 is an appointment that was for
the President solely to make, i.e., not an appointment to be
submitted for review and confirmation (or rejection) by the
Commission on Appointments. This is in accordance with
Sec. 16, Art. VII of the 1987 Constitution and the doctrine
in Mison which is here reiterated.
RUFINO v. ENDRIGA
The case basically takes on a case wherein two sets of
Board of Trustees of the Cultural Center of the Philippines
claims that they are the valid trustees of the latter.
President Estrada appointed seven trustees, replacing
members in the Board.
The clear and categorical language of Section 6(b) of PD 15
states that vacancies in the CCP Board shall be filled by a
majority vote of the remaining trustees. Should only one
trustee survive, the vacancies shall be filled by the
surviving trustee acting in consultation with the ranking
officers of the CCP.
Should the Board become entirely vacant, the vacancies
shall be filled by the President of the Philippines acting in
consultation with the same ranking officers of the CCP.
Thus, the remaining trustees, whether one or more, elect
their fellow trustees for a fixed four-year term. On the
other hand, Section 6(c) of PD 15 does not allow trustees
to reelect fellow trustees for more than two consecutive
terms.
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
Are the members of the CCP Board to be
appointed/elected by the Trustees alone?
ANSWER: NO.
Section 6(b) and (c) of PD 15 is thus irreconcilably
inconsistent with Section 16, Article VII of the 1987
Constitution. Section 6(b) and (c) of PD 15 empowers the
remaining trustees of the CCP Board to fill vacancies in the
CCP Board, allowing them to elect their fellow trustees. On
the other hand, Section 16, Article VII of the 1987
Constitution allows heads of departments, agencies,
commissions, or boards to appoint only "officers lower in
rank" than such "heads of departments, agencies,
commissions, or boards." This excludes a situation where
the appointing officer appoints an officer equal in rank as
him. Thus, insofar as it authorizes the trustees of the CCP
Board to elect their co-trustees, Section 6(b) and (c) of PD
15 is unconstitutional because it violates Section 16, Article
VII of the 1987 Constitution.
It does not matter that Section 6(b) of PD 15 empowers the
remaining trustees to "elect" and not "appoint" their fellow
trustees for the effect is the same, which is to fill vacancies
in the CCP Board. A statute cannot circumvent the
constitutional limitations on the power to appoint by filling
vacancies in a public office through election by the co-
workers in that office. Such manner of filling vacancies in a
public office has no constitutional basis.
Further, Section 6(b) and (c) of PD 15 makes the CCP
trustees the independent appointing power of their fellow
trustees. The creation of an independent appointing
power inherently conflicts with the President's power to
appoint. This inherent conflict has spawned recurring
controversies in the appointment of CCP trustees every
time a new President assumes office.
Is the CCP subject to the president’s power of control?
ANSWER: YES.
Since the President exercises control over "all the
executive departments, bureaus, and offices," the
President necessarily exercises control over the CCP which
is an office in the Executive branch. In mandating that the
President "shall have control of all executive . . . offices,"
Section 17, Article VII of the 1987 Constitution does not
exempt any executive office — one performing executive
functions outside of the independent constitutional bodies
— from the President's power of control. There is no
dispute that the CCP performs executive, and not
legislative, judicial, or quasi-judicial functions.
Section 6(b) and (c) of PD 15, which authorizes the trustees
of the CCP Board to fill vacancies in the Board, runs afoul
with the President's power of control under Section 17,
Article VII of the 1987 Constitution. The intent of Section
6(b) and (c) of PD 15 is to insulate the CCP from political
influence and pressure, specifically from the President. 44
Section 6(b) and (c) of PD 15 makes the CCP a self-
perpetuating entity, virtually outside the control of the
President. Such a public office or board cannot legally exist
under the 1987 Constitution.
The CCP is part of the Executive branch. No law can cut off
the President's control over the CCP in the guise of
insulating the CCP from the President's influence. By
stating that the "President shall have control of all the
executive . . . offices," the 1987 Constitution empowers the
President not only to influence but even to control all
offices in the Executive branch, including the CCP. Control
is far greater than, and subsumes, influence.
16
Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
LIMITATIONS TO APPOINTMENT POWER
SECTION 13. The President, Vice-President, the Members
of the Cabinet, and their deputies or assistants shall not,
unless otherwise provided in this Constitution, hold any
other office or employment during their tenure. They shall
not, during said tenure, directly or indirectly, practice any
other profession, participate in any business, or be
financially interested in any contract with, or in any
franchise, or special privilege granted by the Government
or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations
or their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.
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.
MIDNIGHT APPOINTMENTS
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.
AYTONA v. CASTILLO
A day before his term ended, President Garcia issued an
ad interim appointment to Aytona as Governor of the
Central Bank. When President Macapagal assumed office,
he rescinded all ad interim appointments issued by his
predecessor starting December 13, the day he was
proclaimed by Congress. Macapagal then appointed
Castillo as Central Bank Governor.
Can President Macapagal rescind previous appointments
and replace Aytona with Castillo as Governor of the CBP?
ANSWER: YES.
But it is common sense to believe that after the
proclamation of the election of President Macapagal, his
was no more than a "caretaker" administration. He was
duty bound to prepare of the orderly transfer of authority
to the incoming President, and he should not do acts which
he ought to know, would embarrass or obstruct the
policies of his successor.
The filing up of vacancies in important positions, if few, and
so spaced as to afford some assurance of deliberate action
and careful consideration of the need for the appointment
and the appointee's qualifications may undoubtedly be
permitted. But the issuance of 350 appointments in one
night and the planned induction of almost all of them a few
hours before the inauguration of the new President may,
with some reason, be regarded by the latter as an abuse of
Presidential prerogatives, the steps taken being apparently
a mere partisan effort to fill all vacant positions
irrespective of fitness and other conditions, an thereby to
deprive the new administration of an opportunity to make
the corresponding appointments.
Of course, the Court is aware of many precedents to the
effect that once an appointment has been issued, it cannot
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
be reconsidered, specially where the appointee has
qualified. But none of them refer to mass ad interim
appointments (three hundred and fifty), issued in the last
hours of an outgoing Chief Executive, in a setting similar to
that outlined herein. On the other hand, the authorities
admit of exceptional circumstances justify revocation and
if any circumstances justify revocation, those described
herein should fit the exception.
JORGE v. MAYOR
Jorge, an employee of the Bureau of Lands for 38 years
rising through the ranks, has been extended an
appointment by President Garcia on December 13, 1961 as
Director of the Bureau of Lands. The Secretary of
Environment informed Jorge that his appointment was
covered by the rescission under Administrative Order 2 by
President Macapagal (related to Aytona case). Mayor was
then appointed as Director, vice Jorge.
Is the appointment of Jorge covered under the
Administrative Order 2?
ANSWER: NO.
Ad interim appointments "so spaced as to afford some
assurance of deliberate action and careful consideration of
the need for the appointment and the appointee's
qualifications" could be validly made even by an outgoing
President under the Aytona ruling.
Administrative Order No. 2 of President Macapagal covers
only all appointments made and released by former
President Garcia after the joint session of Congress that
ended on December 13, 1961. In the case at bar, where
petitioner's appointment was not only dated December 13,
1961, but there was also no evidence that it was made and
released after said joint session ended on the same day, it
is held that said appointment was not validly revoked by
said administrative order.
If anyone is entitled to the protection of the civil service
provisions of the Constitution, particularly those against
removal without lawful cause, it must be the officers who
entered the Civil Service in their youth, bent on making a
career out of it, gave it the best years of their lives and grew
gray therein in the hope and expectation that they would
eventually attain the upper reaches and levels of the
official hierarchy, not through political patronage, but
through loyalty, merit, and faithful and unremitting toil.
DE CASTRO v. JBC
The compulsory retirement of Chief Justice Reynato S.
Puno by May 17, 2010 occurs just days after the coming
presidential elections on May 10, 2010. Even before the
event actually happens, it is giving rise to many legal
dilemmas. May the incumbent President appoint his
successor, considering that Section 15, Article VII
(Executive Department) of the Constitution prohibits the
President or Acting President from making appointments
within two months immediately before the next
presidential elections and up to the end of his term,
except temporary appointments to executive positions
when continued vacancies therein will prejudice public
service or endanger public safety? What is the relevance of
Section 4 (1), Article VIII (Judicial Department) of the
Constitution, which provides that any vacancy in the
Supreme Court shall be filled within 90 days from the
occurrence thereof, to the matter of the appointment of
his successor? May the Judicial and Bar Council (JBC)
resume the process of screening the candidates
17
Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
nominated or being considered to succeed Chief Justice
Puno, and submit the list of nominees to the incumbent
President even during the period of the prohibition under
Section 15, Article VII?
Can the President appoint the Chief Justice despite the
ban?
ANSWER: YES.
As can be seen, Article VII is devoted to the Executive
Department, and, among others, it lists the powers vested
by the Constitution in the President. The presidential
power of appointment is dealt with in Sections 14, 15 and
16 of the Article. Article VIII is dedicated to the Judicial
Department and defines the duties and qualifications of
Members of the Supreme Court, among others. Section 4
(1) and Section 9 of this Article are the provisions
specifically providing for the appointment of Supreme
Court Justices. In particular, Section 9 states that the
appointment of Supreme Court Justices can only be made
by the President upon the submission of a list of at least
three nominees by the JBC; Section 4 (1) of the Article
mandates the President to fill the vacancy within 90 days
from the occurrence of the vacancy.
Had the framers intended to extend the prohibition
contained in Section 15, Article VII to the appointment of
Members of the Supreme Court, they could have explicitly
done so. They could not have ignored the meticulous
ordering of the provisions. They would have easily and
surely written the prohibition made explicit in Section 15,
Article VII as being equally applicable to the appointment
of Members of the Supreme Court in Article VIII itself, most
likely in Section 4 (1), Article VIII. That such specification
was not done only reveals that the prohibition against the
President or Acting President making appointments within
two months before the next presidential elections and up
to the end of the President's or Acting President's term
does not refer to the Members of the Supreme Court.
The 90-day limitation fixed in Section 4 (1), Article VIII for
the President to fill the vacancy in the Supreme Court was
undoubtedly a special provision to establish a definite
mandate for the President as the appointing power, and
cannot be defeated by mere judicial interpretation in
Valenzuela to the effect that Section 15, Article VII prevailed
because it was "couched in stronger negative language."
Such interpretation even turned out to be conjectural, in
light of the records of the Constitutional Commission's
deliberations on Section 4 (1), Article VIII.
AD INTERIM & REGULAR APPOINTMENTS
In Article VI:
SECTION 19. The Electoral Tribunals and the Commission
on Appointments shall be constituted within thirty days
after the Senate and the House of Representatives shall
have been organized with the election of the President and
the Speaker. The Commission on Appointments shall meet
only while the Congress is in session, at the call of its
Chairman or a majority of all its Members, to discharge
such powers and functions as are herein conferred upon
it.
In Article VII, Section 16(2):
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only
until after disapproval by the Commission on
Appointments or until the next adjournment of the
Congress.
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
GUEVARA v. INOCENTES
Petitioner was extended an ad interim appointment as
undersecretary of Labor by the former Executive on
November 18, 1965, having taken his oath of office on
November 25 of the same year, and considering that the
ad interim appointment for the same position extended to
respondent by the incumbent Executive on January 23,
1966 is invalid in spite of Memorandum Circular No. 8
issued by the latter on the same date declaring all ad
interim appointments made by the former Executive as
having lapsed with the adjournment of the special session
of Congress at about midnight of January 22, 1966,
petitioner brought before this Court the instant petition for
quo warranto seeking to be declared the person legally
entitled to said office of Undersecretary of Labor.
Is Usec Guevara entitled to the office of Labor
Undersecretary?
ANSWER: NO.
After due deliberation, the Court resolved that the ad
interim appointment extended to petitioner on November
18, 1965 by the former Executive lapsed when the special
session of Congress adjourned sine die at about midnight
of January 22, 1966, as embodied in our resolution dated
February 16, 1966.
The important provision to be considered is Article VII,
Section 10, Subsection 4 of our Constitution, which
provides:
"The President shall have the power to make
appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by
the Commission on Appointments or until the next
adjournment of the Congress."
A perusal of the above-quoted provision would at once
reveal that it is the clear intent of the framers of our
Constitution to make a recess appointment effective only
(a) until disapproval by the Commission on Appointments,
or (b) until the next adjournment of Congress, and never a
day longer regardless of the nature of the session
adjourned.
Hence, the above provision contemplates two modes of
termination of an ad interim appointment, or of one made
during the recess of Congress, which are completely
separate from, and independent of, each other. And while
during the special session called under Proclamation No. 2
no Commission on Appointments was organized by
Congress, the second mode of termination, however, had
its constitutional effect, as when Congress adjourned sine
die at about midnight of January 22, 1966. Such
adjournment in legal contemplation, had the effect of
terminating petitioner's appointment thereby rendering it
legally ineffective.
MATIBAG v. BENIPAYO
Before the Supreme Court is an original Petition for
Prohibition wherein petitioner questioned the
constitutionality of the appointment and the right to hold
office of respondents Alfredo L. Benipayo, as Chairman of
the Commission on Elections, and Resurreccion Z. Borra
and Florentino A. Tuason, Jr., as COMELEC Commissioners.
Petitioner claimed that the ad interim appointments and
reappointments of the respondents violated the
constitutional provisions on the independence of the
18
Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
COMELEC, as well as on the prohibitions on temporary
appointments and reappointments of its Chairman and
members under Section 1 (2), Article IX-C of the
Constitution.
Did the reappointments of Benipayo, Borra et. al violative
on temporary appointments?
ANSWER: NO.
An ad interim appointment is a permanent appointment
because it takes effect immediately and can no longer be
withdrawn by the President once the appointee has
qualified into office. The fact that it is subject to
confirmation by the Commission on Appointments does
not alter its permanent character. The Constitution itself
makes an ad interim appointment permanent in character
by making it effective until disapproved by the Commission
on Appointments or until the next adjournment of
Congress. Thus, the ad interim appointment remains
effective until such disapproval or next adjournment,
signifying that it can no longer be withdrawn or revoked by
the President. The fear that the President can withdraw or
revoke at any time and for any reason an ad interim
appointment is utterly without basis.
The Constitution imposes no condition on the effectivity of
an ad interim appointment, and thus an ad interim
appointment takes effect immediately. The appointee can
at once assume office and exercise, as a de jure officer, all
the powers pertaining to the office. In Pacete vs. Secretary
of the Commission on Appointments, this Court
elaborated on the nature of an ad interim appointment as
follows:
"A distinction is thus made between the exercise of such
presidential prerogative requiring confirmation by the
Commission on Appointments when Congress is in session
and when it is in recess. In the former, the President
nominates, and only upon the consent of the Commission
on Appointments may the person thus named assume
office. It is not so with reference to ad interim
appointments. It takes effect at once. The individual
chosen may thus qualify and perform his function without
loss of time. His title to such office is complete. In the
language of the Constitution, the appointment is effective
'until disapproval by the Commission on Appointments or
until the next adjournment of the Congress."
While an ad interim appointment is permanent and
irrevocable except as provided by law, an appointment or
designation in a temporary or acting capacity can be
withdrawn or revoked at the pleasure of the appointing
power. A temporary or acting appointee does not enjoy
any security of tenure, no matter how briefly. This is the
kind of appointment that the Constitution prohibits the
President from making to the three independent
constitutional commissions, including the COMELEC. This
Court ruled that the designation of an acting
Commissioner would undermine the independence of the
COMELEC and hence violate the Constitution.
An ad interim appointment can be terminated for two
causes specified in the Constitution. The first cause is the
disapproval of his ad interim appointment by the
Commission on Appointments. The second cause is the
adjournment of Congress without the Commission on
Appointments acting on his appointment.
Thus, an ad interim appointment becomes complete and
irrevocable once the appointee has qualified into office.
The withdrawal or revocation of an ad interim
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
appointment is possible only if it is communicated to the
appointee before the moment he qualifies, and any
withdrawal or revocation thereafter is tantamount to
removal from office. Once an appointee has qualified, he
acquires a legal right to the office which is protected not
only by statute but also by the Constitution. He can only be
removed for cause, after notice and hearing, consistent
with the requirements of due process.
While the Constitution mandates that the COMELEC "shall
be independent," this provision should be harmonized
with the President's power to extend ad interim
appointments. To hold that the independence of the
COMELEC requires the Commission on Appointments to
first confirm ad interim appointees before the appointees
can assume office will negate the President's power to
make ad interim appointments.
An ad interim appointment that is by-passed because of
lack of time or failure of the Commission on Appointments
to organize is another matter. A by-passed appointment is
one that has not been finally acted upon on the merits by
the Commission on Appointments at the close of the
session of Congress. There is no final decision by the
Commission on Appointments to give or withhold its
consent to the appointment as required by the
Constitution. Absent such decision, the President is free to
renew the ad interim appointment of a by-passed
appointee. A disapproved ad interim appointment cannot
be revived by another ad interim appointment because the
disapproval is final under Section 16, Article VII of the
Constitution, and not because a reappointment is
prohibited under Section 1(2), Article IXC of the
Constitution. A by-passed ad interim appointment can be
revived by a new ad interim appointment because there is
no final disapproval under Section 16, Article VII of the
Constitution.
To foreclose this interpretation, the phrase "without
reappointment" appears twice in Section 1(2), Article IX-C
of the present Constitution. The first phrase prohibits
reappointment of any person previously appointed for a
term of seven years. The second phrase prohibits
reappointment of any person previously appointed for a
term of five or three years pursuant to the first set of
appointees under the Constitution. In either case, it does
not matter if the person previously appointed completes
his term of office for the intention is to prohibit any
reappointment of any kind.
TEMPORARY DESIGNATIONS
Book III, Section 17 of the 1987 Administrative Code:
Section 17. Power to Issue Temporary Designation. -
(1) The President may temporarily designate an officer
already in the government service or any other competent
person to perform the functions of an office in the
executive branch, appointment to which is vested in him
by law, when: (a) the officer regularly appointed to the
office is unable to perform his duties by reason of illness,
absence or any other cause; or (b) there exists a vacancy;
(2) The person designated shall receive the compensation
attached to the position, unless he is already in the
government service in which case he shall receive only
such additional compensation as, with his existing salary,
shall not exceed the salary authorized by law for the
position filled. The compensation hereby authorized shall
be paid out of the funds appropriated for the office or
agency concerned.
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
(3) In no case shall a temporary designation exceed one (1)
year.
APPOINTING POWER OF ACTING PRESIDENT
SECTION 14. Appointments extended by an Acting
President shall remain effective, unless revoked by the
elected President within ninety days from his assumption
or reassumption of office.
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.
DE RAMA v. COURT OF APPEALS
Upon his assumption to the position of Mayor of Pagbilao,
Quezon, petitioner Conrado L. de Rama wrote a letter
dated July 13, 1995 to the Civil Service Commission (or
CSC), seeking the recall of the appointments of fourteen
(14) municipal employees. Petitioner de Rama justified his
recall request on the allegation that the appointments of
the said employees were "midnight" appointments of the
former mayor, Ma. Evelyn S. Abeja, done in violation of
Article VII, Section 15 of the 1987 Constitution.
Can De Rama validly recall the appointments issued by his
predecessor?
ANSWER: NO.
Rule V, Section 9 of the Omnibus Implementing
Regulations of the Revised Administrative Code specifically
provides that "an appointment accepted by the appointee
cannot be withdrawn or revoked by the appointing
authority and shall remain in force and in effect until
disapproved by the Commission." Thus, it is the CSC that is
authorized to recall an appointment initially approved, but
only when such appointment and approval are proven to
be in disregard of applicable provisions of the civil service
law and regulations.
Accordingly, the appointments of the private respondents
may only be recalled on the above-cited grounds. And yet,
the only reason advanced by the petitioner to justify the
recall was that these were "midnight appointments." The
CSC correctly ruled, however, that the constitutional
prohibition on so-called "midnight appointments,"
specifically those made within two (2) months immediately
prior to the next presidential elections, applies only to the
President or Acting President.
PARDONING POWER
In Article IX-C:
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.
PARDON DISTINGUISHED FROM PROBATION
PEOPLE v. VERA
Probation and pardon are not coterminous; nor are they
the same. They are actually distinct and different from
each other, both in origin and in nature. In People ex rel.
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
Forsyth vs. Court of Sessions, the Court of Appeals of New
York said:
". . . The power to suspend sentence and the power to
grant reprieves and pardons, as understood when the
constitution was adopted, are totally distinct and different
in their origin and nature. The former was always a part of
the judicial power; the latter was always a part of the
executive power. The suspension of the sentence simply
postpones the judgment of the court temporarily or
indefinitely, but the conviction and liability following it, and
all civil disabilities, remain and become operative when
judgment is rendered. A pardon reaches both the
punishment prescribed for the offense and the guilt of the
offender. 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. 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.
In probation, the probationer is in no true sense, as in
pardon, a free man. He is not finally and completely
exonerated. He is not exempt from the entire punishment
which the law inflicts. Under the Probation Act, the
probationer's case is not terminated by the mere fact that
he is placed on probation. Section 4 of the Act provides
that the probation may be definitely terminated and the
probationer finally discharged from supervision only after
the period of probation shall have been terminated and
the probation officer shall have submitted a report, and
the court shall have found that the probationer has
complied with the conditions of probation. The
probationer, then, during the period of probation, remains
in legal custody — subject to the control of the probation
officer and of the court; and, he may be rearrested upon
the non-fulfillment of the conditions of probation and,
when rearrested, may be committed to prison to serve the
sentence originally imposed upon him.
LLAMAS v. ORBOS
Petitioner Rodolfo D. Llamas is the incumbent Vice-
Governor of the Province of Tarlac and, on March 1, 1991
he assumed, by virtue of a decision of the Office of the
President, the governorship. Private respondent Mariano
Un Ocampo III is the incumbent Governor of the Province
of Tarlac and was suspended from office for a period of 90
days. Public respondent Oscar Orbos was the Executive
Secretary at the time of the filing of this petition and is
being impleaded herein in that official capacity for having
issued, by authority of the President, the assailed
Resolution granting executive clemency to respondent
governor.
Does the President of the Philippines have the power to
grant executive clemency in administrative cases?
ANSWER: YES.
The Constitution does not distinguish between which cases
executive clemency may be exercised by the President,
with the sole exclusion of impeachment cases. By the same
token, if executive clemency may be exercised only in
criminal cases, it would indeed be unnecessary to provide
for the exclusion of impeachment cases from the coverage
of Article VII, Section 19 of the Constitution.
In the same vein, We do not clearly see any valid and
convincing reason why the President cannot grant
executive clemency in administrative cases. It is Our
considered view that if the President can grant reprieves,
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I Outline from Atty. G. D. Malig-on

commutations and pardons, and remit fines and
forfeitures in criminal cases, with much more reason can
she grant executive clemency in administrative cases,
which are clearly less serious than criminal offenses.
It is evident from the intent of the Constitutional
Commission, therefore, that the President's executive
clemency powers may not be limited in terms of coverage,
except as already provided in the Constitution, that is, "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 COMELEC" (Article IX, C, Section 5,
Constitution). If those already adjudged guilty criminally in
court may be pardoned, those adjudged guilty
administratively should likewise be extended the same
benefit.
NOTE: Limitations on power pardoning power:
a. officials who are impeached
b. those convicted of election offense/s, which needs
COMELEC recommendation
PARDON DISTINGUISHED FROM PAROLE
TORRES v. GONZALES
Torres was a convict for a case of estafa and confined at
the National Penitentiary. A conditional pardon was
granted to the petitioner by the President of the
Philippines on condition that petitioner would "not again
violate any of the penal laws of the Philippines. Should this
condition be violated, he will be proceeded against in the
manner prescribed by law." Petitioner accepted the
conditional pardon and was consequently released from
confinement.
Subsequently, Torres was again charged with estafa cases
which led to the Board of Parole and Pardons’
recommendation to the President to cancel his conditional
pardon, which the President did. Torres questions his
arrest on the basis that there was no conviction yet on the
cases filed against him.
Is conviction of a crime by final judgment of a court
necessary before the petitioner can be validly rearrested
and recommitted for violation of the terms of his
conditional pardon and accordingly to serve the balance of
his original sentence?
"to grant to convicted prisoners reprieves or pardons,
either plenary or partial, conditional or unconditional; to
suspend sentences without parole, remit fines, and order
the discharge of any convicted person upon parole, subject
to such conditions as he may impose; and to authorize the
arrest and recommitment of any such person who, in his
judgment shall fail to comply with the condition or
conditions, of his pardon, parole or suspension of
sentence."
Succinctly put, in proceeding against a convict who has
been conditionally pardoned and who is alleged to have
breached the conditions of his pardon, the Executive
Department has two options: (i) to proceed against him
under Section 64 (i) of the Revised Administrative Code; or
(ii) to proceed against him under Article 159 of the Revised
Penal Code which imposes the penalty of prision
correccional, minimum period, upon a convict who "having
been granted conditional pardon by the Chief Executive,
shall violate any of the conditions of such pardon." Here,
the President has chosen to proceed against the petitioner
under Section 64 (i) of the Revised Administrative Code.
That choice is an exercise of the President's executive
prerogative and is not subject to judicial scrutiny.
PARDON DISTINGUISHED FROM AMNESTY
BARRIOQUINTO v. FERNANDEZ
Barrioquinto and Jimenez were arrested for the crime of
murder. While incarcerated, both applied for the Amnesty
Proclamation of 1946 which grants amnesty in favor of all
persons who may be charged with an act penalized under
the Revised Penal Code in furtherance of the resistance to
the enemy or against persons aiding in the war efforts of
the enemy, and committed during the period from
December 8, 1941, to the date when each particular area
of the Philippines where the offense was actually
committed was liberated from enemy control and
occupation.
After a preliminary hearing had started, the Amnesty
Commission, presided by the respondents, issued on
January 9, 1947, an order returning the cases of the
petitioners to the Court of First Instance of Zamboanga,
without deciding whether or not they are entitled to the
benefits of the said Amnesty Proclamation
Can they apply for amnesty?

ANSWER: NO.
ANSWER: NO.
Pardon is granted by the Chief Executive and as such it is a
In Tesoro v. Director of Prisons, this Court, speaking
private act which must be pleaded and proved by the
through then Mr. Justice Moran, held that the
person pardoned, because the courts take no notice
determination of whether the conditions of Tesoro's
thereof; while amnesty by Proclamation of the Chief
parole had been breached rested exclusively in the
Executive with the concurrence of Congress, and it is a
sound judgment of the Governor-General and that
public act of which the courts should take judicial notice.
such determination would not be reviewed by the
Pardon is granted to one after conviction; while amnesty is
courts. As Tesoro had consented to place his liberty on
granted to classes of persons or communities who may be
parole upon the judgment of the power that had granted
guilty of political offenses, generally before or after the
it, we held that "he [could not] invoke the aid of the courts,
institution of the criminal prosecution and sometimes
however erroneous the findings may be upon which his
after conviction. Pardon looks forward and relieves the
recommitment was ordered." Thus, this Court held that by
offender from the consequences of an offense of which he
accepting the terms under which the parole had been
granted, Tesoro had in effect agreed that the Governor- has been convicted, that is, it abolishes or forgives the
General's determination (rather than that of the regular punishment, and for that reason it does "nor work the
restoration of the rights to hold public office, or the right
courts of law) that he had breached one of the conditions
of suffrage, unless such rights be expressly restored by the
of his parole by committing adultery while he was
terms of the pardon," and it "in no case exempts the culprit
conditionally at liberty, was binding and conclusive upon
from the payment of the civil indemnity imposed upon him
him. In reaching this conclusion, this Court relied upon
Section 64 (i) of the Revised Administrative Code which by the sentence" (article 36, Revised Penal Code). While
amnesty looks backward and abolishes and puts into
empowered the Governor-General.
oblivion the offense itself, it so overlooks and obliterates

21
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
the offense with which he is charged that the person
released by amnesty stands before the law precisely as
though he had committed no offense.
The right to the benefits of amnesty, once established by
the evidence presented, either by the complainant or
prosecution, or by the defense, cannot be waived, because
it is of public interest that a person who is regarded by the
Amnesty Proclamation, which has the force of law, not only
as innocent, for he stands in the eyes of the law as if he
had never committed any punishable offense because of
the amnesty, but as a patriot or hero, cannot be punished
as a criminal.
VERA v. PEOPLE
Petitioners were charged with kidnapping. They
subsequently applied to be included on the Amnesty
Proclamation of 1946, but did not admit in committing any
of the crime charged. The Commission, in its decision of
January 12, 1956, held that it could not take cognizance of
the case, on the ground that the benefits of the Amnesty
Proclamation, could be invoked only by defendants in a
criminal case who, admitting the commission of the crime,
plead that said commission was in pursuance of the
resistance movement and perpetrated against persons
who aided the enemy during the Japanese occupation.
Consequently, the Commission ordered that the case be
remanded to the court of origin for trial.
Should applicants for inclusion in an amnesty need to
admit that they committed the crime charged?
ANSWER: YES.
Petitioners contend (as they did in the Court of Appeals),
that to be entitled to the benefits of Amnesty Proclamation
No. 8, dated September 7, 1946, it is not necessary for
them to admit the commission of the crime charged, citing
in support of their submission the cases of Barrioquinto, et
al. vs. Fernandez, but said cases have been superseded
and deemed overruled by the subsequent cases of People
vs. Llanita:
"It is rank inconsistency for appellant to justify an act, or
seek forgiveness for an act which, according to him, he has
not committed. Amnesty presupposes the commission
of a crime, and when an accused maintains that he has
not committed a crime, he cannot have any use for
amnesty. Where an amnesty proclamation imposes
certain conditions, as in this case, it is incumbent upon the
accused to prove the existence of such conditions. The
invocation of amnesty is in the nature of a plea of
confession and avoidance, which means that the pleader
admits the allegations against him but disclaims liability
therefor on account of intervening facts which, if proved,
would bring the crime charged within the scope of the
amnesty proclamation.
EFFECTS OF PARDON
MONSANTO v. FACTORAN
The Sandiganbayan convicted petitioner Salvacion A.
Monsanto (then assistant treasurer of Calbayog City) and
three other accused, of the complex crime of estafa thru
falsification of public documents and sentenced them to
imprisonment. Petitioner Monsanto appealed her
conviction to this Court which subsequently affirmed the
same. She then filed a motion for reconsideration but
while said motion was pending, she was extended on by
then President Marcos absolute pardon which she
accepted. By reason of said pardon, petitioner wrote the
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
Calbayog City treasurer requesting that she be restored to
her former post as assistant city treasurer since the same
was still vacant.
Can Monsanto be reinstated as treasurer by virtue of the
absolute pardon, by claiming that such pardon indicates
she was not guilty?
ANSWER: NO.
Pardon is defined as "an act of grace, proceeding from the
power entrusted with the execution of the laws, which
exempts the individual, on whom it is bestowed, from the
punishment the law inflicts for a crime he has committed.
It is the private, though official act of the executive
magistrate, delivered to the individual for whose benefit it
is intended, and not communicated officially to the Court .
. . A pardon is a deed, to the validity of which delivery is
essential, and delivery is not complete without
acceptance."
While we are prepared to concede that pardon may remit
all the penal consequences of a criminal indictment if only
to give meaning to the fiat that a pardon, being a
presidential prerogative, should not be circumscribed by
legislative action, we do not subscribe to the fictitious
belief that pardon blots out the guilt of an individual and
that once he is absolved, he should be treated as if he were
innocent For whatever may have been the judicial dicta in
the past, we cannot perceive how pardon can produce
such "moral changes" as to equate a pardoned convict in
character and conduct with one who has constantly
maintained the mark of a good, law-abiding citizen.
Pardon cannot mask the acts constituting the crime.
These are "historical" facts which, despite the public
manifestation of mercy and forgiveness implicit in pardon,
"ordinary, prudent men will take into account in their
subsequent dealings with the actor." Pardon granted after
conviction frees the individual from all the penalties and
legal disabilities and restores him to all his civil rights. But
unless expressly grounded on the person's innocence
(which is rare), it cannot bring back lost reputation for
honesty, integrity and fair dealing. This must be constantly
kept in mind lest we lose track of the true character and
purpose of the privilege.
We are in full agreement with the commonly-held opinion
that pardon does not ipso facto restore a convicted
felon to public office necessarily relinquished or
forfeited by reason of the conviction although such
pardon undoubtedly restores his eligibility for
appointment to that office. The rationale is plainly
evident. Public offices are intended primarily for the
collective protection, safety and benefit of the common
good. They cannot be compromised to favor private
interests. To insist on automatic reinstatement because of
a mistaken notion that the pardon virtually acquitted one
from the offense of estafa would be grossly untenable. A
pardon, albeit full and plenary, cannot preclude the
appointing power from refusing appointment to anyone
deemed to be of bad character, a poor moral risk, or who
is unsuitable by reason of the pardoned conviction.
ATTY SALLY: Absolute pardon remits penal consequences
of the crime but does not erase the crime itself.
EFFECT OF VIOLATION OF TERMS OF PARDON
TORRES v. DIRECTOR OF BUREAU OF CORRECTIONS
A conditional pardon is in the nature of a contract between
the sovereign power or the Chief Executive and the
convicted criminal to the effect that the former will release
22
Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
the latter subject to the condition that if he does not
comply with the terms of the pardon, he will be
recommitted to prison to serve the unexpired portion of
the sentence or an additional one. By the pardonee's
consent to the terms stipulated in this contract, the
pardonee has thereby placed himself under the
supervision of the Chief Executive or his delegate who is
duty-bound to see to it that the pardonee complies with
the terms and conditions of the pardon.
Where a conditional pardonee has allegedly breached
a condition of a pardon, the President who opts to
proceed against him need not wait for a judicial
pronouncement of guilt of a subsequent crime or for
his conviction therefor by final judgment, in order to
effectuate the recommitment of the pardonee to
prison. The Executive Department has two options: (i) to
proceed against him under Section 64 (i) of the Revised
Administrative Code, or (ii) to proceed against him under
Article 159 of the Revised Penal Code . . . That choice is an
exercise of the President's executive prerogative and is not
subject to judicial scrutiny.
The determination of the violation of the conditional
pardon rests exclusively in the sound judgment of the
Chief Executive, and the pardonee having consented to
place his liberty on conditional pardon upon the judgment
of the power that has granted it, cannot invoke the aid of
the courts, however erroneous the findings may be upon
which his recommitment was ordered.
Solely vested in the Chief Executive, who in the first place
was the exclusive author of the conditional pardon and of
its revocation, is the corollary prerogative to reinstate the
pardon if in his own judgment, the acquittal of the
pardonee from the subsequent charges filed against him,
warrants the same. Courts have no authority to interfere
with the grant by the President of a pardon to a convicted
criminal. It has been our fortified ruling that a final judicial
pronouncement as to the guilt of a pardonee is not a
requirement for the President to determine whether or
not there has been a breach of the terms of a conditional
pardon. There is likewise nil a basis for the courts to
effectuate the reinstatement of a conditional pardon
revoked by the President in the exercise of powers
undisputedly solely and absolutely lodged in his office.
WHO MAY AVAIL OF AMNESTY
MACAGA-AN v. PEOPLE
The 22 petitioners include municipal treasurers of various
municipalities of Lanao del Norte and Lanao del Sur, and
the Officer-in-Charge of the Provincial Treasurer's Office of
Lanao del Sur, as well as the Provincial Auditor and the
Assistant Provincial Auditor of Lanao del Sur. Petitioners
were charged and convicted in 33 cases for estafa through
falsification of public and commercial documents. The
total amount of Government funds (treasury warrants)
involved was somewhat over P2.7 million.
On 14 March 1986, petitioners moved "to close their cases
and release [their] bond[s]" on the ground that they had
been given amnesty by former President F. E. Marcos. The
Sandiganbayan required them to submit originals or
authenticated copies of their amnesty papers, which
petitioners were unable to produce. Thereupon, the
Sandiganbayan denied petitioners' motion.
The petitioners state that they applied for amnesty
through the 3rd and 11th Amnesty Commission (sic) of
Lanao del Sur and Marawi City and that on 2 February
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
1985, they were granted conditional amnesty by the said
Commission, subject to the approval or final action of the
President of the Philippines pursuant to P.D. No. 1082,
dated 2 February 1977.
Are petitioners covered by the Amnesty?
ANSWER: NO.
Clearly, petitioners fall under Section 2 (a) as persons
expressly disqualified from amnesty under P.D. 1182, as
amended. Petitioners' applications for amnesty were also
filed way beyond the time limit established under P.D.
1182, as amended, since petitioners were convicted by the
Sandiganbayan on 15 July 1981; their applications for
amnesty were filed only in 1984.
Petitioners apparently claim that their applications for
amnesty were filed under Presidential Decree No. 1082
dated 2 February 1977 and not under Presidential Decree
No. 1182. We note, at the outset, that P.D. No. 1182 may
well have repealed P.D. No. 1082. P.D. No. 1182, the later
statute, covers the same subject matter that P.D. No. 1082
covered. P.D. 1182 makes no mention of the MNLF nor of
the Bangsa Moro Army but rather relates to all groups
fighting the government of the Republic. P.D. No. 1182,
unlike P.D. 1082, covers the entire territory of the Republic
of the Philippines.
MILITARY POWERS
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. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or
place the Philippines or any part thereof under martial law.
Within forty-eight hours from the proclamation of martial
law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a
vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the
Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined
by the Congress, if the invasion or rebellion shall persist
and public safety requires it.
The Congress, if not in session, shall, within twenty-four
hours following such proclamation or suspension, convene
in accordance with its rules without any need of a call.
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within
thirty days from its filing.
A state of martial law does not suspend the operation of
the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military courts and agencies
over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I Outline from Atty. G. D. Malig-on

The suspension of the privilege of the writ shall apply only Under Section 18, Article VII of the Constitution, in the
to persons judicially charged for rebellion or offenses exercise of the power to suspend the privilege of the writ
inherent in or directly connected with the invasion. of habeas corpus or to impose martial law, two conditions
must concur: (1) there must be an actual invasion or
During the suspension of the privilege of the writ, any rebellion and, (2) public safety must require it. These
person thus arrested or detained shall be judicially conditions are not required in the case of the power to
charged within three days, otherwise he shall be released. call out the Armed Forces. The only criterion is that
"whenever it becomes necessary," the President may call
the armed forces "to prevent or suppress lawless violence,
INTEGRATED BAR v. ZAMORA
invasion or rebellion." The implication is that the President
is given full discretion and wide latitude in the exercise of
The President of the Philippines, Joseph Ejercito Estrada, in
the power to call as compared to the two other powers.
a verbal directive, ordered the PNP and the Marines to
conduct joint visibility patrols for the purpose of crime
The President as Commander-in-Chief has a vast
prevention and suppression. In compliance with the
intelligence network to gather information, some of which
presidential mandate, the PNP Chief, through Police Chief
may be classified as highly confidential or affecting the
Superintendent Edgar B. Aglipay, formulated Letter of
security of the state. In the exercise of the power to call,
Instruction 02/2000 (the "LOI") which detailed the manner
on-the-spot decisions may be imperatively necessary in
by which the joint visibility patrols, called Task Force
emergency situations to avert great loss of human lives
Tulungan, would be conducted. Task Force Tulungan was
and mass destruction of property. Indeed, the decision to
placed under the leadership of the Police Chief of Metro
call out the military to prevent or suppress lawless violence
Manila. Invoking his powers as Commander-in-Chief under
must be done swiftly and decisively if it were to have any
Section 18, Article VII of the Constitution, the President
effect at all. Such a scenario is not farfetched when we
directed the AFP Chief of Staff and PNP Chief to coordinate
consider the present situation in Mindanao, where the
with each other for the proper deployment and utilization
insurgency problem could spill over the other parts of the
of the Marines to assist the PNP in preventing or
country. The determination of the necessity for the
suppressing criminal or lawless violence. The President
calling out power if subjected to unfettered judicial
also declared that the services of the Marines in the anti-
crime campaign are merely temporary in nature and for a scrutiny could be a veritable prescription for disaster,
as such power may be unduly straitjacketed by an
reasonable period only, until such time when the situation
injunction or a temporary restraining order every time
shall have improved.
it is exercised. Thus, it is the unclouded intent of the
Constitution to vest upon the President, as Commander-
The Integrated Bar of the Philippines (the "IBP") filed the
in-Chief of the Armed Forces, full discretion to call forth the
instant petition to annul LOI 02/2000 and to declare the
military when in his judgment it is necessary to do so in
deployment of the Philippine Marines null and void and
order to prevent or suppress lawless violence, invasion or
unconstitutional, arguing that the deployment of marines
rebellion. Unless the petitioner can show that the exercise
in Metro Manila is violative of the Constitution because no
of such discretion was gravely abused, the President's
emergency situation obtains in Metro Manila as would
exercise of judgment deserves to be accorded respect
justify, even only remotely, the deployment of soldiers for
from this Court.
law enforcement work.

Was the act (calling out) of President Estrada constitutive
of grave abuse of discretion?
ANSWER: NO.
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. This is clear from the intent of the framers and
from the text of the Constitution itself. The Court, thus,
cannot be called upon to overrule the President's wisdom
or substitute its own. However, this does not prevent an
examination of whether such power was exercised within
permissible constitutional limits or whether it was
exercised in a manner constituting grave abuse of
discretion. In view of the constitutional intent to give the
President full discretionary power to determine the
necessity of calling out the armed forces, it is incumbent
upon the petitioner to show that the President's decision
is totally bereft of factual basis. The present petition fails
to discharge such heavy burden as there is no evidence to
support the assertion that there exist no justification for
calling out the armed forces. There is, likewise, no evidence
to support the proposition that grave abuse was
committed because the power to call was exercised in such
a manner as to violate the constitutional provision on
civilian supremacy over the military. In the performance of
this Court's duty of purposeful hesitation" before declaring
an act of another branch as unconstitutional, only where
such grave abuse of discretion is clearly shown shall the
Court interfere with the President's judgment. To doubt is
to sustain.
LACSON v. PEREZ
On May 1, 2001, President Macapagal-Arroyo, faced by an
"angry and violent mob armed with explosives, firearms,
bladed weapons, clubs, stones and other deadly weapons"
assaulting and attempting to break into Malacañang,
issued Proclamation No. 38 declaring that there was a
state of rebellion in the National Capital Region. She
likewise issued General Order No. 1 directing the Armed
Forces of the Philippines and the Philippine National Police
to suppress the rebellion in the National Capital Region.
Warrantless arrests of several alleged leaders and
promoters of the "rebellion" were thereafter effected.
Petitions assail the declaration of a state of rebellion by
President Gloria Macapagal-Arroyo and the warrantless
arrests allegedly effected by virtue thereof, as having no
basis both in fact and in law. Significantly, on May 6, 2001,
President Macapagal-Arroyo ordered the lifting of the
declaration of a "state of rebellion" in Metro Manila.
Accordingly, the instant petitions have been rendered
moot and academic.
Is the declaration of a "state of rebellion" is violative of the
doctrine of separation of powers, being an encroachment
on the domain of the judiciary which has the constitutional
prerogative to "determine or interpret" what took place on
May 1, 2001, and that the declaration of a state of rebellion
cannot be an exception to the general rule on the
allocation of the governmental powers?

24
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
ANSWER: NO.
Section 18, Article VII of the Constitution expressly
provides that "[t]he 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.
Thus, we held in Integrated Bar of the Philippines v. Hon.
Zamora, (G.R. No. 141284, August 15, 2000):
. . . The factual necessity of calling out the armed forces is
not easily quantifiable and cannot be objectively
established since matters considered for satisfying the
same is a combination of several factors which are not
always accessible to the courts. Besides the absence of
textual standards that the court may use to judge
necessity, information necessary to arrive at such
judgment might also prove unmanageable for the courts.
Certain pertinent information might be difficult to verify, or
wholly unavailable to the courts. In many instances, the
evidence upon which the President might decide that there
is a need to call out the armed forces may be of a nature
not constituting technical proof.
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. . . .
The Court, in a proper case, may look into the sufficiency
of the factual basis of the exercise of this power. However,
this is no longer feasible at this time, Proclamation No. 38
having been lifted.
Does a declaration of a state of rebellion carry the power
to enforce warrantless arrests?
ANSWER: NO.
In quelling or suppressing the rebellion, the authorities
may only resort to warrantless arrests of persons
suspected of rebellion, as provided under Section 5, Rule
113 of the Rules of Court, if the circumstances so warrant.
The warrantless arrest feared by petitioners is, thus, not
based on the declaration of a "state of rebellion."
An individual subjected to warrantless arrest is not without
adequate remedies in the ordinary course of law. Such an
individual may ask for a preliminary investigation under
Rule 112 of the Rules of Court, where he may adduce
evidence in his defense, or he may submit himself to
inquest proceedings to determine whether or not he
should remain under custody and correspondingly be
charged in court.
Further, a person subject of a warrantless arrest must be
delivered to the proper judicial authorities within the
periods provided in Article 125 of the Revised Penal Code,
otherwise the arresting officer could be held liable for
delay in the delivery of detained persons. Should the
detention be without legal ground, the person arrested can
charge the arresting officer with arbitrary detention. All
this is without prejudice to his filing an action for damages
against the arresting officer under Article 32 of the Civil
Code.
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
DAVID v. MACAPAGAL-ARROYO
In relation to BUSCAYNO v. MILITARY COMMISSION
IN DAVID:
The calling-out power of the President:
The first provision pertains to the President's calling-out
power. In Sanlakas v. Executive Secretary, this Court,
through Mr. Justice Dante O. Tinga, held that Section 18,
Article VII of the Constitution grants the President, as
Commander-in-Chief, a "sequence" of graduated powers.
From the most to the least benign, these are: the calling-
out power, the power to suspend the privilege of the writ
of habeas corpus, and the power to declare Martial Law.
"Whenever it becomes necessary," the President may call
the armed forces "to prevent or suppress lawless violence,
invasion or rebellion." Are these conditions present in the
instant cases? As stated earlier, considering the
circumstances then prevailing, President Arroyo found it
necessary to issue PP 1017. Owing to her Office's vast
intelligence network, she is in the best position to
determine the actual condition of the country.
It is pertinent to state, however, that there is a distinction
between the President's authority to declare a "state of
rebellion" (in Sanlakas) and the authority to proclaim a
state of national emergency. While President Arroyo's
authority to declare a "state of rebellion" emanates from
her powers as Chief Executive, the statutory authority cited
in Sanlakas was Section 4, Chapter 2, Book II of the Revised
Administrative Code of 1987.
President Arroyo's declaration of a "state of rebellion" was
merely an act declaring a status or condition of public
moment or interest, a declaration allowed under Section 4
cited above. Such declaration, in the words of Sanlakas, is
harmless, without legal significance, and deemed not
written. In these cases, PP 1017 is more than that. In
declaring a state of national emergency, President Arroyo
did not only rely on Section 18, Article VII of the
Constitution, a provision calling on the AFP to prevent or
suppress lawless violence, invasion or rebellion. She also
relied on Section 17, Article XII, a provision on the State's
extraordinary power to take over privately-owned public
utility and business affected with public interest. Indeed,
PP 1017 calls for the exercise of an awesome power.
Obviously, such Proclamation cannot be deemed
harmless, without legal significance, or not written, as in
the case of Sanlakas.
On the power to issue presidential decrees:
President Arroyo's ordinance power is limited to the
foregoing issuances. She cannot issue decrees similar to
those issued by Former President Marcos under PP 1081.
Presidential Decrees are laws which are of the same
category and binding force as statutes because they were
issued by the President in the exercise of his legislative
power during the period of Martial Law under the 1973
Constitution.
This Court rules that the assailed PP 1017 is
unconstitutional insofar as it grants President Arroyo
the authority to promulgate "decrees."
The power to take-over:
The logical conclusion then is that President Arroyo could
validly declare the existence of a state of national
25
Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
emergency even in the absence of a Congressional
enactment.
But the exercise of emergency powers, such as the taking
over of privately owned public utility or business affected
with public interest, is a different matter. This requires a
delegation from Congress.
Section 17, Article XII must be understood as an aspect of
the emergency powers clause. The taking over of private
business affected with public interest is just another facet
of the emergency powers generally reposed upon
Congress. Thus, when Section 17 states that the "the State
may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the
operation of any privately owned public utility or business
affected with public interest," it refers to Congress, not the
President. Now, whether or not the President may exercise
such power is dependent on whether Congress may
delegate it to him pursuant to a law prescribing the
reasonable terms thereof.
Likewise, without legislation, the President has no power
to point out the types of businesses affected with public
interest that should be taken over. In short, the President
has no absolute authority to exercise all the powers of the
State under Section 17, Article VII in the absence of an
emergency powers act passed by Congress.
IN BUSCAYNO:
Ordinarily this Court cannot review the rulings and
proceedings of the military commissions except under the
National Security Code, Presidential Decree No. 1498,
which was issued on June 11, 1978 (74 O.G. 11066) which
provides in its Sections 86 (f) and 87 (e) that what this Court
can review are the decisions of the Court of Military
Appeals in cases appealed to it from the military
commissions.
Generally this Court does not exercise over military
commissions the supervisory jurisdiction which it
possesses over civil courts whose interlocutory rulings and
decisions may be reviewed by this Court (See Kuroda vs.
Jalondoni, 83 Phil. 171; Martelino vs. Alejandro, L-30894,
March 25, 1970, 32 SCRA 106). Hence, the issue as to
whether Buscayno was denied his constitutional right to
present evidence should first be passed upon by the
reviewing military authority and not by the Supreme Court.
The propriety of the perpetuation proceedings in the
rebellion case and the conduct of the trial in the
Commission cannot at this stage be passed upon by the
Supreme Court.
BUT IN DAVID v. ARROYO:
It is placed in the keeping of the President for the purpose
of enabling him to secure the people from harm and to
restore order so that they can enjoy their individual
freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation
of the Constitution, nor supplant the functioning of
the civil courts or legislative assemblies, nor authorize
the conferment of jurisdiction on military courts and
agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of
the writ.
NOTE: In Buscayno, military courts were allowed to try
civilians who were alleged to have taken part in the
rebellion or subversion, and that the privilege of the writ of
habeas corpus is automatically suspended for those
detained for rebellion and subversion, without the benefit
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of bail. In David, the court upheld the constitutional
provision that martial law does not confer jurisdictions of
civilians to military courts nor it automatically suspends
the privilege of the writ of habeas corpus.
FORTUN v. MACAPAGAL-ARROYO
These cases concern the constitutionality of a presidential
proclamation of martial law and suspension of the
privilege of habeas corpus in 2009 in a province in
Mindanao which were withdrawn after just eight days.
What must be done when martial law is proclaimed?
Although the above (constitutional provision) 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 President's 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
President's proclamation or suspension, allow their limited
effectivity to lapse, or extend the same if Congress deems
warranted.
AMPATUAN v. PUNO
This case transpired during the Maguindanao Massacre.
The President issued Administrative Order 273-A (AO 273-
A) amending the AO 273, by "delegating" instead of
"transferring" supervision of the ARMM to the DILG. ARMM
officials, in filing alleged that the proclamation and the
orders empowered the DILG Secretary to take over
ARMM's 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.
ARMM officials claimed that the President had no factual
basis for declaring a state of emergency, especially in the
Province of Sultan Kudarat and the City of Cotabato, where
no critical violent incidents occurred. The deployment of
troops and the taking over of the ARMM constitutes an
invalid exercise of the President's emergency powers.
Were the ARMM officials’ contention correct?
ANSWER: NO.
The DILG Secretary did not take over control of the powers
of the ARMM. After law enforcement agents took
respondent Governor of ARMM into custody for alleged
complicity in the Maguindanao massacre, the ARMM
ViceGovernor, petitioner Ansaruddin Adiong, assumed the
vacated post on December 10, 2009 pursuant to the rule
on succession found in Article VII, Section 12, of RA 9054.
In turn, Acting Governor Adiong named the then Speaker
of the ARMM Regional Assembly, petitioner Sahali-
Generale, Acting ARMM Vice-Governor. In short, the DILG
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
Secretary did not take over the administration or
operations of the ARMM.
Petitioners contend that the President unlawfully
exercised emergency powers when she ordered the
deployment of AFP and PNP personnel in the places
mentioned in the proclamation. 16 But such 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.. . . (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.
LAGMAN v. MEDIALDEA
This case involves the constitutionality of the martial law in
Mindanao, precipitated by the Marawi Siege.
1. The power of judicial review versus congressional
power to revoke martial law declaration
The Court may strike down the presidential proclamation
in an appropriate proceeding filed by any citizen on the
ground of lack of sufficient factual basis. On the other
hand, Congress may revoke the proclamation or
suspension, which revocation shall not be set aside by the
President.
In reviewing the sufficiency of the factual basis of the
proclamation or suspension, the Court considers only the
information and data available to the President prior to or
at the time of the declaration; it is not allowed to
"undertake an independent investigation beyond the
pleadings." On the other hand, Congress may take into
consideration not only data available prior to, but likewise
events supervening the declaration. Unlike the Court
which does not look into the absolute correctness of the
factual basis as will be discussed below, Congress could
probe deeper and further; it can delve into the accuracy of
the facts presented before it.
In addition, the Court's review power is passive; it is only
initiated by the filing of a petition "in an appropriate
proceeding" by a citizen. On the other hand, Congress'
review mechanism is automatic in the sense that it may be
activated by Congress itself at any time after the
proclamation or suspension was made.
Thus, 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. Needless to
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say, the power of the Court to review can be exercised
independently from the power of revocation of Congress.
2. Was the requirement of actual invasion or rebellion
and public safety present?
Section 18, Article VII itself sets the parameters for
determining the sufficiency of the factual basis for the
declaration of martial law and/or the suspension of the
privilege of the writ of habeas corpus, "namely (1) actual
invasion or rebellion, and (2) public safety requires the
exercise of such power." Without the concurrence of the
two conditions, the President's declaration of martial law
and/or suspension of the privilege of the writ of habeas
corpus must be struck down. As a general rule, a word
used in a statute which has a technical or legal meaning, is
construed to have the same technical or legal meaning.
Since the Constitution did not define the term "rebellion,"
it must be understood to have the same meaning as the
crime of "rebellion" in the Revised Penal Code (RPC).
Thus, for rebellion to exist, the following elements must be
present, to wit: "(1) there is a (a) public uprising and (b)
taking arms against the Government; and (2) the purpose
of the uprising or movement is either (a) to remove from
the allegiance to the Government or its laws: (i) the
territory of the Philippines or any part thereof; or (ii)
anybody of land, naval, or other armed forces; or (b) to
deprive the Chief Executive or Congress, wholly or partially,
of any of their powers and prerogatives."
3. Is probable cause for rebellion an allowable
standard in proclaiming martial law?
In determining the existence of rebellion, the President
only needs to convince himself that there is probable
cause or evidence showing that more likely than not a
rebellion was committed or is being committed. To require
him to satisfy a higher standard of proof would restrict the
exercise of his emergency powers.
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. This is because unlike
other standards of proof, which, in order to be met, would
require much from the President and therefore unduly
restrain his exercise of emergency powers, the
requirement of probable cause is much simpler.
To summarize, the parameters for determining the
sufficiency of factual basis are as follows:
1) 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.
4. Were the requisites all present?
A review of the aforesaid facts similarly leads the Court to
conclude that the President, in issuing Proclamation No.
216, had sufficient factual bases tending to show that
actual rebellion exists. The President's conclusion, that
there was an armed public uprising, the culpable purpose
of which was the removal from the allegiance of the
Philippine Government a portion of its territory and the
deprivation of the President from performing his powers
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
and prerogatives, was reached after a tactical
consideration of the facts. In fine, the President
satisfactorily discharged his burden of proof.
Invasion or rebellion alone may justify resort to the calling
out power but definitely not the declaration of martial law
or suspension of the privilege of the writ of habeas corpus.
For a declaration of martial law or suspension of the
privilege of the writ of habeas corpus to be valid, there
must be a concurrence of actual rebellion or invasion and
the public safety requirement. We hold that the
parameters for the declaration of martial law and
suspension of the privilege of the writ of habeas corpus
have been properly and fully complied with. Proclamation
No. 216 has sufficient factual basis there being probable
cause to believe that rebellion exists and that public safety
requires the martial law declaration and the suspension of
the privilege of the writ of habeas corpus.
Section 18, Article VII of the Constitution states that "[i]n
case of invasion or rebellion, when the public safety
requires it, [the President] may x x x suspend the privilege
of writ of habeas corpus or place the Philippines or any
part thereof under martial law." Clearly, the Constitution
grants to the President the discretion to determine the
territorial coverage of martial law and the suspension of
the privilege of the writ of habeas corpus. He may put the
entire Philippines or only a part thereof under martial law.
This is both an acknowledgement and a recognition that it
is the Executive Department, particularly the President as
Commander-in-Chief, who is the repository of vital,
classified, and live information necessary for and relevant
in calibrating the territorial application of martial law and
the suspension of the privilege of the writ of habeas
corpus. It, too, is a concession that the President has the
tactical and military support, and thus has a more
informed understanding of what is happening on the
ground. Thus, the Constitution imposed a limitation on the
period of application, which is 60 days, unless sooner
nullified, revoked or extended, but not on the territorial
scope or area of coverage; it merely stated "the Philippines
or any part thereof," depending on the assessment of the
President.
5. What is the definition of ‘public safety’?
Public safety, which is another component element for the
declaration of martial law, "involves the prevention of and
protection from events that could endanger the safety of
the general public from significant danger, injury/harm, or
damage, such as crimes or disasters."
Public safety is an abstract term; it does not take any
physical form. Plainly, its range, extent or scope could not
be physically measured by metes and bounds. Perhaps
another reason why the territorial scope of martial law
should not necessarily be limited to the particular vicinity
where the armed public uprising actually transpired, is
because of the unique characteristic of rebellion as a
crime. "The crime of rebellion consists of many acts. It is a
vast movement of men and a complex net of intrigues and
plots. Acts committed in furtherance of rebellion[,] though
crimes in themselves[,] are deemed absorbed in one single
crime of rebellion."
CONTRACTING & GUARANTEEING FOREIGN LOANS
SECTION 20. The President may contract or guarantee
foreign loans on behalf of the Republic of the Philippines
with the prior concurrence of the Monetary Board, and
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subject to such limitations as may be provided by law. The
Monetary Board shall, within thirty days from the end of
every quarter of the calendar year, submit to the Congress
a complete report of its decisions on applications for loans
to be contracted or guaranteed by the Government or
government-owned and controlled corporations which
would have the effect of increasing the foreign debt, and
containing other matters as may be provided by law.
SECTION 21. No treaty or international agreement shall be
valid and effective unless concurred in by at least two-
thirds of all the Members of the Senate.
DIPLOMATIC POWER
SECTION 21. No treaty or international agreement shall be
valid and effective unless concurred in by at least two-
thirds of all the Members of the Senate.
NICOLAS v. ROMULO
The case involves the rape of a Filipina by an American
soldier, L/CPL Daniel Smith. Pursuant to the Visiting Forces
Agreement (VFA) between the Republic of the Philippines
and the United States, entered into on February 10, 1998,
the United States, at its request, was granted custody of
defendant Smith pending the proceedings.
During the trial, which was transferred from the Regional
Trial Court (RTC) of Zambales to the RTC of Makati for
security reasons, the United States Government faithfully
complied with its undertaking to bring defendant Smith to
the trial court every time his presence was required.
Invoking the VFA and RP-US Mutual Defense Treaty, Smith
was detained in a US facility and not in a Philippine jail.
Was the VFA and RP-US Mutual Defense Treaty valid?
ANSWER: YES.
Clearly, therefore, joint RP-US military exercises for the
purpose of developing the capability to resist an armed
attack fall squarely under the provisions of the RP-US
Mutual Defense Treaty. The VFA, which is the instrument
agreed upon to provide for the joint RP-US military
exercises, is simply an implementing agreement to the
main RP-US Military Defense Treaty.
Accordingly, as an implementing agreement of the RP-US
Mutual Defense Treaty, it was not necessary to submit the
VFA to the US Senate for advice and consent, but merely to
the US Congress under the Case — Zablocki Act within 60
days of its ratification. It is for this reason that the US has
certified that it recognizes the VFA as a binding
international agreement, i.e., a treaty, and this
substantially complies with the requirements of Art. XVIII,
Sec. 25 of our Constitution.
The provision of Art. XVIII, Sec. 25 of the Constitution, is
complied with by virtue of the fact that the presence of the
US Armed Forces through the VFA is a presence "allowed
under" the RP-US Mutual Defense Treaty. Since the RP-US
Mutual Defense Treaty itself has been ratified and
concurred in by both the Philippine Senate and the US
Senate, there is no violation of the Constitutional provision
resulting from such presence.
The VFA being a valid and binding agreement, the parties
are required as a matter of international law to abide by its
terms and provisions.
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
BAYAN v. ZAMORA
This case questions the validity of the Visiting Forces
Agreement. which formalized, among others, the use of
installations in the Philippine territory by the US military
personnel to strengthen their defense and security
relationship. On October 5, 1998, President Joseph E.
Estrada ratified the VFA, and then transmitted to the
Senate his letter of ratification and the VFA for concurrence
pursuant to Section 21, Art. VII of the 1987 Constitution.
The Senate subsequently approved the VFA by a 2/3 vote
of its members.
Was the VFA a valid agreement?
ANSWER: YES.
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. Worth stressing too, is that
the ratification, by the President, of the VFA and the
concurrence of the Senate should be taken as a clear an
unequivocal expression of our nation's consent to be
bound by said treaty, with the concomitant duty to uphold
the obligations and responsibilities embodied thereunder.
With the ratification of the VFA, which is equivalent to final
acceptance, and with the exchange of notes between the
Philippines and the United States of America, it now
becomes obligatory and incumbent on our part, under the
principles of international law, to be bound by the terms of
the agreement. Thus, no less than Section 2, Article II of the
Constitution, declares that the Philippines adopts the
generally accepted principles of international law as part
of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all
nations. As a member of the family of nations, the
Philippines agrees to be bound by generally accepted rules
for the conduct of its international relations. While the
international obligation devolves upon the state and not
upon any particular branch, institution, or individual
member of its government, the Philippines is nonetheless
responsible for violations committed by any branch or
subdivision of its government or any official thereof.
As an integral part of the community of nations, we are
responsible to assure that our government, Constitution
and laws will carry out our international obligation. . .
Article 26 of the convention provides that "Every treaty in
force is binding upon the parties to it and must be
performed by them in good faith." This is known as the
principle of pacta sunt servanda which preserves the
sanctity of treaties and have been one of the most
fundamental principles of positive international law,
supported by the jurisprudence of international tribunals.
Is the President allowed to enter into treaties?
ANSWER: YES.
As regards the power to enter into treaties or international
agreements, the Constitution vests the same in the
President, subject only to the concurrence of at least two-
thirds vote of all the members of the Senate. In this light,
the negotiation of the VFA and the subsequent ratification
of the agreement are exclusive acts which pertain solely to
the President, in the lawful exercise of his vast executive
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and diplomatic powers granted him no less than by the
fundamental law itself. Into the field of negotiation the
Senate cannot intrude, and Congress itself is powerless to
invade it. Consequently, the acts or judgment calls of the
President involving the VFA — specifically the acts of
ratification and entering into a treaty and those necessary
or incidental to the exercise of such principal acts —
squarely fall within the sphere of his constitutional powers
and thus, may not be validly struck down, much less
calibrated by this Court, in the absence of clear showing of
grave abuse of power or discretion.
Does the Senate need to concur for a treaty to be binding
for the Philippines?
ANSWER: YES.
As to the power to concur with treaties, the constitution
lodges the same with the Senate alone. Thus, once the
Senate performs that power, or exercises its prerogative
within the boundaries prescribed by the Constitution, the
concurrence manner, be viewed to constitute an abuse of
power, much less grave abuse thereof. Corollarily, the
Senate, in the exercise of its discretion and acting within
the limits of such power, may not be similarly faulted for
having simply performed a task conferred and sanctioned
by no less than the fundamental law. For the role of the
Senate in relation to treaties is essentially legislative in
character; the Senate, as an independent body possessed
of its own erudite mind, has the prerogative to either
accept or reject the proposed agreement, and whatever
action it takes in the exercise of its wide latitude of
discretion, pertains to the wisdom rather than the legality
of the act.
In this sense, the Senate partakes a principal, yet delicate,
role in keeping the principles of separation of powers and
of checks and balances alive and vigilantly ensures that
these cherished rudiments remain true to their form in a
democratic government such as ours. The Constitution
thus animates, through this treaty-concurring power of the
Senate, a healthy system of checks and balances
indispensable toward our nation's pursuit of political
maturity and growth. True enough, rudimentary is the
principle that matters pertaining to the wisdom of a
legislative act are beyond the ambit and province of the
courts to inquire.
PIMENTEL v. EXECUTIVE SECRETARY
This is a petition for mandamus filed by petitioners to
compel the Office of the Executive Secretary and the
Department of Foreign Affairs to transmit the signed copy
of the Rome Statute of the International Criminal Court to
the Senate of the Philippines for its concurrence in
accordance with Section 21, Article VII of the 1987
Constitution.
Can the Executive branch be compelled to transmit a copy
of a treaty to the Senate, as it is their ministerial duty?
ANSWER: NO.
In our system of government, the President, being the
head of state, is regarded as the sole organ and authority
in external relations and is the country's sole
representative with foreign nations. As the chief architect
of foreign policy, the President acts as the country's
mouthpiece with respect to international affairs. Hence,
the President is vested with the authority to deal with
foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into
treaties, and otherwise transact the business of foreign
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
relations. In the realm of treaty-making, the President has
the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to
negotiate and enter into treaties, the Constitution provides
a limitation to his power by requiring the concurrence of
2/3 of all the members of the Senate for the validity of the
treaty entered into by him. Section 21, Article VII of the
1987 Constitution provides that "no treaty or international
agreement shall be valid and effective unless concurred in
by at least two-thirds of all the Members of the Senate."
Is the power to ratify a treaty lodged with the Senate?
ANSWER: NO.
Justice Isagani Cruz, in his book on International Law,
describes the treaty-making process in this wise: The usual
steps in the treaty-making process are: negotiation,
signature, ratification, and exchange of the instruments of
ratification. The treaty may then be submitted for
registration and publication under the U.N. Charter,
although this step is not essential to the validity of the
agreement as between the parties.
Negotiation may be undertaken directly by the head of
state but he now usually assigns this task to his authorized
representatives. These representatives are provided with
credentials known as full powers, which they exhibit to the
other negotiators at the start of the formal discussions. It
is standard practice for one of the parties to submit a draft
of the proposed treaty which, together with the counter-
proposals, becomes the basis of the subsequent
negotiations. The negotiations may be brief or protracted,
depending on the issues involved, and may even "collapse"
in case the parties are unable to come to an agreement on
the points under consideration.
If and when the negotiators finally decide on the terms of
the treaty, the same is opened for signature. This step is
primarily intended as a means of authenticating the
instrument and for the purpose of symbolizing the good
faith of the parties; but, significantly, it does not indicate
the final consent of the state in cases where ratification of
the treaty is required. The document is ordinarily signed in
accordance with the alternat, that is, each of the several
negotiators is allowed to sign first on the copy which he will
bring home to his own state.
Ratification, which is the next step, is the formal act by
which a state confirms and accepts the provisions of a
treaty concluded by its representatives. The purpose of
ratification is to enable the contracting states to examine
the treaty more closely and to give them an opportunity to
refuse to be bound by it should they find it inimical to their
interests. It is for this reason that most treaties are made
subject to the scrutiny and consent of a department of the
government other than that which negotiated them.
The last step in the treaty-making process is the exchange
of the instruments of ratification, which usually also
signifies the effectivity of the treaty unless a different date
has been agreed upon by the parties. Where ratification is
dispensed with and no effectivity clause is embodied in the
treaty, the instrument is deemed effective upon its
signature.
The signature does not signify the final consent of the state
to the treaty. It is the ratification that binds the state to the
provisions thereof. In fact, the Rome Statute itself requires
that the signature of the representatives of the states be
subject to ratification, acceptance or approval of the
signatory states. Ratification is the act by which the
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provisions of a treaty are formally confirmed and approved
by a State. By ratifying a treaty signed in its behalf, a state
expresses its willingness to be bound by the provisions of
such treaty. After the treaty is signed by the state's
representative, the President, being accountable to the
people, is burdened with the responsibility and the duty to
carefully study the contents of the treaty and ensure that
they are not inimical to the interest of the state and its
people. Thus, the President has the discretion even after
the signing of the treaty by the Philippine representative
whether or not to ratify the same.
It should be emphasized that under our Constitution,
the power to ratify is vested in the President, subject
to the concurrence of the Senate. The role of the
Senate, however, is limited only to giving or
withholding its consent, or concurrence, to the
ratification. Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or,
having secured its consent for its ratification, refuse to
ratify it. Although the refusal of a state to ratify a treaty
which has been signed in its behalf is a serious step that
should not be taken lightly, such decision is within the
competence of the President alone, which cannot be
encroached by this Court via a writ of mandamus.
VINUYA v. ROMULO
The Treaty of Peace with Japan, insofar as it barred future
claims such as those asserted by plaintiffs in these actions
[comfort women during the Second World War],
exchanged full compensation of plaintiffs for a future
peace. History has vindicated the wisdom of that bargain.
And while full compensation for plaintiffs' hardships, in the
purely economic sense, has been denied these former
prisoners and countless other survivors of the war, the
immeasurable bounty of life for themselves and their
posterity in a free society and in a more peaceful world
services the debt.
Hence, this petition where petitioners pray for this court to
(a) declare that respondents committed grave abuse of
discretion amounting to lack or excess of discretion in
refusing to espouse their claims for the crimes against
humanity and war crimes committed against them; and (b)
compel the respondents to espouse their claims for official
apology and other forms of reparations against Japan
before the International Court of Justice (ICJ) and other
international tribunals.
Can the government be compelled to pursue claims
against Japan in the international courts?
ANSWER: NO.
Certain types of cases often have been found to present
political questions. One such category involves questions
of foreign relations. It is well-established that " [t]he
conduct of the foreign relations of our government is
committed by the Constitution to the executive and
legislative — 'the political' — departments of the
government, and the propriety of what may be done in the
exercise of this political power is not subject to judicial
inquiry or decision."
To be sure, not all cases implicating foreign relations
present political questions, and courts certainly possess
the authority to construe or invalidate treaties and
executive agreements. However, the question whether the
Philippine government should espouse claims of its
nationals against a foreign government is a foreign
relations matter, the authority for which is demonstrably
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
committed by our Constitution not to the courts but to the
political branches. In this case, the Executive Department
has already decided that it is to the best interest of the
country to waive all claims of its nationals for reparations
against Japan in the Treaty of Peace of 1951. The wisdom
of such decision is not for the courts to question. Neither
could petitioners herein assail the said determination by
the Executive Department via the instant petition for
certiorari.
The Executive Department has determined that taking up
petitioners' cause would be inimical to our country's
foreign policy interests, and could disrupt our relations
with Japan, thereby creating serious implications for
stability in this region. For us to overturn the Executive
Department's determination would mean an assessment
of the foreign policy judgments by a coordinate political
branch to which authority to make that judgment has been
constitutionally committed.
Indeed, except as an agreement might otherwise provide,
international settlements generally wipe out the
underlying private claims, thereby terminating any
recourse under domestic law.
DEPORTATION OF UNDESIRABLE ALIENS
GO TEK v. DEPORTATION BOARD
This is a deportation case. On March 3, 1964 the chief
prosecutor of the Deportation Board filed a complaint
against Go Tek, a Chinaman residing at Ilagan, Isabela and
1208-B, Misericordia Street, Sta. Cruz, Manila.
It was alleged in the complaint that in December, 1963
certain agents of the National Bureau of Investigation (NBI)
searched an office located at 1439 O'Donnel Street, Sta.
Cruz, Manila, believed to be the headquarters of a guerilla
unit of the "Emergency Intelligence Section, Army of the
United States", and that among those arrested thereat was
Go Tek, an alleged sector commander and intelligence and
record officer of that guerilla unit.
It was further alleged that fake dollar checks were found in
Go Tek's possession and that, therefore, he had violated
article 168 of the Revised Penal Code and rendered himself
an undesirable alien. The prosecutor prayed that after trial
the Board should recommend to the President of the
Philippines the immediate deportation of Go Tek as an
undesirable alien, "his presence in this country having
been and will always be inimical and a menace to the
peace, welfare, and security of the community".
Can the Deportation Board can entertain a deportation
proceeding based on a ground which is not specified in
section 37 of the Immigration Law and although the alien
has not yet been convicted of the offense imputed to him?
ANSWER: YES.
Under existing law, the deportation of an undesirable alien
may be effected (1) by order of the President, after due
investigation, pursuant to section 69 of the Revised
Administrative Code and (2) by the Commissioner of
Immigration, upon recommendation of the Board of
Commissioners under section 37 of the Immigration Law.
The State has the inherent power to deport undesirable
aliens. That power may be exercised by the Chief Executive
"when he deems such action necessary for the peace and
domestic tranquility of the nation": Justice Johnson's
opinion is that when the Chief Executive finds that there
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SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
are aliens whose continued presence in the country is
injurious to the public interest, "he may, even in the
absence of express law, deport them".
"The right of a country to expel or deport aliens because
their continued presence is detrimental to public welfare is
absolute and unqualified". It has been held that the Chief
Executive is the sole and exclusive judge of the existence
of facts which warrant the deportation of aliens, as
disclosed in an investigation conducted in accordance with
section 69. No other tribunal is at liberty to reexamine or
to controvert the sufficiency of the evidence on which he
acted. "It is fundamental that an executive order for
deportation is not dependent on a prior judicial conviction
in a criminal case". Thus, it was held that the fact that an
alien has been acquitted in a criminal proceeding of the
particular charge does not prevent the deportation of such
alien based on the same charge. Such acquittal does not
constitute res judicata in the deportation proceedings.
Conviction of a crime is not necessary to warrant
deportation.
PREPARATION & SUBMISSION OF BUDGET
SECTION 22. The President shall submit to the Congress
within thirty days from the opening of every regular
session, as the basis of the general appropriations bill, a
budget of expenditures and sources of financing, including
receipts from existing and proposed revenue measures.
THE JUDICIARY
THE SUPREME COURT
COMPOSITION
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 divisions of three, five, or seven
Members. Any vacancy shall be filled within ninety days
from the occurrence thereof.
APPOINTMENT & QUALIFICATIONS
SECTION 7. (1) No person shall be appointed Member of
the Supreme Court or any lower collegiate court unless he
is a natural-born citizen of the Philippines. A Member of
the Supreme Court must be at least forty years of age, and
must have been for fifteen years or more a judge of a lower
court or engaged in the practice of law in the Philippines.
(2) The Congress shall prescribe the qualifications of
judges of lower courts, but no person may be appointed
judge thereof unless he is a citizen of the Philippines and a
member of the Philippine Bar.
(3) A Member of the Judiciary must be a person of proven
competence, integrity, probity, and independence.
SECTION 8. (1) A Judicial and Bar Council is hereby created
under the supervision of the Supreme Court composed of
the Chief Justice as ex officio Chairman, the Secretary of
Justice, and a representative of the Congress as ex officio
Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court,
and a representative of the private sector.
(2) The regular Members of the Council shall be appointed
by the President for a term of four years with the consent
of the Commission on Appointments. Of the Members first
appointed, the representative of the Integrated Bar shall
serve for four years, the professor of law for three years,
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
the retired Justice for two years, and the representative of
the private sector for one year.
(3) The Clerk of the Supreme Court shall be the Secretary
ex officio of the Council and shall keep a record of its
proceedings. (4) The regular Members of the Council shall
receive such emoluments as may be determined by the
Supreme Court. The Supreme Court shall provide in its
annual budget the appropriations for the Council.
(5) The Council shall have the principal function of
recommending appointees to the Judiciary. It may exercise
such other functions and duties as the Supreme Court may
assign to it.
SECTION 9. The Members of the Supreme Court and
judges of lower courts shall be appointed by the President
from a list of at least three nominees prepared by the
Judicial and Bar Council for every vacancy. Such
appointments need no confirmation.
For the lower courts, the President shall issue the
appointments within ninety days from the submission of
the list.
SALARY
SECTION 10. The salary of the Chief Justice and of the
Associate Justices of the Supreme Court, and of judges of
lower courts shall be fixed by law. During their continuance
in office, their salary shall not be decreased.
ARTICLE XVIII, SECTION 17. Until the Congress provides
otherwise, the President shall receive an annual salary of
three hundred thousand pesos; the Vice-President, the
President of the Senate, the Speaker of the House of
Representatives, and the Chief Justice of the Supreme
Court, two hundred forty thousand pesos each; the
Senators, the Members of the House of Representatives,
the Associate Justices of the Supreme Court, and the
Chairmen of the Constitutional Commissions, two hundred
four thousand pesos each; and the Members of the
Constitutional Commissions, one hundred eighty
thousand pesos each.
SECURITY OF TENURE
SECTION 2. The Congress shall have the power to define,
prescribe, and apportion the jurisdiction of various courts
but may not deprive the Supreme Court of its jurisdiction
over cases enumerated in Section 5 hereof.
No law shall be passed reorganizing the Judiciary when it
undermines the security of tenure of its Members.
SECTION 11. The Members of the Supreme Court and
judges of lower courts shall hold office during good
behavior until they reached the age of seventy years or
become incapacitated to discharge the duties of their
office. The Supreme Court en banc shall have the power to
discipline judges of lower courts, or order their dismissal
by a vote of a majority of the Members who actually took
part in the deliberations on the issues in the case and
voted thereon.
DE LA LLANA v. ALBA
Petitioners assailed the constitutionality of Batas
Pambansa Blg. 129 entitled "An Act Reorganizing the
Judiciary, Appropriating Funds Therefore and for other
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
Purposes," the same being contrary to the security of
tenure provision of the Constitution as it separates from
the judiciary Justices and judges of inferior courts from the
Court of Appeals to municipal circuit courts except the
occupants of the Sandiganbayan and the Court of Tax
Appeals, unless appointed to the inferior courts
established by such Act. They likewise impute lack of good
faith in its enactment and characterize as undue
delegation of legislative power to the President his
authority to fix the compensation and allowances of the
Justices and judges thereafter appointed and the
determination of the date when the reorganization shall be
deemed completed.
Did the new law affect the members of the judiciary’s
security of tenure?
ANSWER: NO.
Removal is, of course, to be, distinguished from
termination by virtue of the abolition of the office. After the
abolition, there is in law no occupant. In case of removal,
there is an office with an occupant who would thereby lose
his position. It is in that sense that from the standpoint of
strict law, the question of any impairment of security of
tenure does not arise. Nonetheless, for the incumbents of
'Inferior Courts abolished, the effect is one of separation.
As to its effect, no distinction exists between removal and
the abolition of the office. Realistically, it is devoid of
significance. He ceases to be a member of the Judiciary. In
the implementation of the assailed legislation, therefore, it
would be in accordance with accepted principles of
constitutional construction that as far as incumbent
justices and judges are concerned, this Court be consulted
and that its view be accorded, the fullest consideration.
No fear need be entertained that there is a failure to
accord respect to the basic principle that this Court does
not render advisory opinions. No question of law is
involved. If such were the case, certainly this Court could
not have its say prior to the action taken by either of the
two departments. Even then, it could do so but only by way
of deciding a case where the matter has been put in issue.
Neither is there any intrusion into who shall be appointed
to the vacant positions created by the reorganization. That
remains in the hands of the Executive to whom it properly
belongs. There is no departure therefore from the tried
and tested ways of judicial power. Rather what is sought to
be achieved by this liberal interpretation is to preclude any
plausibility to the charge that in the exercise of the
conceded power of reorganizing the Inferior Courts, the
power of removal of the present incumbents vested in this
Tribunal is ignored or disregarded. The challenged Act
would thus be free from any unconstitutional taint, even
one not readily discernible except to those predisposed to
view it with distrust. Moreover, such a construction would
be in accordance with the basic principle that in the choice
of alternatives between one which would save and another
which would invalidate a statute, the former is to be
preferred. There is an obvious way to do so. The principle
that the Constitution enters into and forms part of every
act to avoid any unconstitutional taint must be applied.
REMOVAL
ARTICLE XI, SECTION 2. The President, the Vice-President,
the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be
removed from office, on impeachment for, and conviction
of, culpable violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, or betrayal of
public trust. All other public officers and employees may
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
be removed from office as provided by law, but not by
impeachment.
CAN THE COURT REMOVE AN IMPEACHABLE OFFICIAL?
REPUBLIC v. SERENO
In this unprecedented case for quo warranto against the
incumbent Chief Justice, the Republic entreats this Court to
declare Maria Lourdes P. A. Sereno ineligible to hold the
highest post in the Judiciary for failing to regularly disclose
her assets, liabilities and net worth as a member of the
career service prior to her appointment as an Associate
Justice, and later as Chief Justice, of the Supreme Court, in
violation of the Constitution, the Anti-Graft Law, and the
Code of Conduct and Ethical Standards for Public Officials
and Employees. The Republic accordingly seeks the
nullification of respondent's appointment, asserting that
her failure to file the required disclosures and her failure
to submit the same to the Judicial and Bar Council show
that she is not possessed of "proven integrity" demanded
of every aspirant to the Judiciary.
Can a Chief Justice, an impeachable official, be removed by
a quo warranto petition by the Supreme Court?
ANSWER: YES.
On the jurisdiction of the Supreme Court
The remedy of quo warranto is vested in the people, and
not in any private individual or group, because disputes
over title to public office are viewed as a public question of
governmental legitimacy and not merely a private quarrel
among rival claimants. The only time that an individual, in
his own name, may bring an action for quo warranto is
when such individual has a claim over the position in
question.
Section 5, Article VIII of the Constitution, in part, provides
that the Supreme Court shall exercise original jurisdiction
over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus. This Court, the Court of
Appeals and the Regional Trial Courts have concurrent
jurisdiction to issue the extraordinary writs, including quo
warranto. Relatedly, Section 7, Rule 66 of the Rules of Court
provides that the venue of an action for quo warranto,
when commenced by the Solicitor General, is either the
Regional Trial Court in the City of Manila, in the Court of
Appeals, or in the Supreme Court.
While the hierarchy of courts serves as a general
determinant of the appropriate forum for petitions for the
extraordinary writs, a direct invocation of the Supreme
Court's original jurisdiction to issue such writs is allowed
when there are special and important reasons therefor,
clearly and specifically set out in the petition.
Simultaneous quo warranto and impeachment
Quo warranto and impeachment are, thus, not mutually
exclusive remedies and may even proceed simultaneously.
The existence of other remedies against the usurper does
not prevent the State from commencing a quo warranto
proceeding.
The causes of action in the two proceedings are
unequivocally different. In quo warranto, the cause of
action lies on the usurping, intruding, or unlawfully holding
or exercising of a public office, while in impeachment, it is
the commission of an impeachable offense. Stated in a
different manner, the crux of the controversy in this quo
warranto proceedings is the determination of whether or
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
not respondent legally holds the Chief Justice position to
be considered as an impeachable officer in the first place.
On the other hand, impeachment is for respondent's
prosecution for certain impeachable offenses. To be sure,
respondent is not being prosecuted herein for such
impeachable offenses enumerated in the Articles of
Impeachment. Instead, the resolution of this case shall be
based on established facts and related laws. Simply put,
while respondent's title to hold a public office is the issue
in quo warranto proceedings, impeachment necessarily
presupposes that respondent legally holds the public
office and thus, is an impeachable officer, the only issue
being whether or not she committed impeachable
offenses to warrant her removal from office.
Quo warranto as a remedy against impeachable officials
Even the PET Rules expressly provide for the remedy of
either an election protest or a petition for quo warranto
to question the eligibility of the President and the Vice-
President, both of whom are impeachable officers.
Following respondent's theory that an impeachable
officer can be removed only through impeachment
means that a President or Vice-President against whom
an election protest has been filed can demand for the
dismissal of the protest on the ground that it can
potentially cause his/her removal from office through a
mode other than by impeachment. To sustain
respondent's position is to render election protests under
the PET Rules nugatory. The Constitution could not have
intended such absurdity since fraud and irregularities in
elections cannot be countenanced, and the will of the
people as reflected in their votes must be determined
and respected. The Court could not, therefore, have
unwittingly curtailed its own judicial power by prohibiting
quo warranto proceedings against impeachable officers.
Furthermore, the language of Section 2, Article XI of the
Constitution does not foreclose a quo warranto action
against impeachable officers. The provision reads:
Section 2. The President, the Vice-President, the Members
of the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman may be removed
from office on impeachment for, and conviction of,
culpable violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, or betrayal of
public trust. All other public officers and employees may
be removed from office as provided by law, but not by
impeachment.
The provision uses the permissive term "may" which, in
statutory construction, denotes discretion and cannot be
construed as having a mandatory effect. We have
consistently held that the term "may" is indicative of a
mere possibility, an opportunity or an option. The grantee
of that opportunity is vested with a right or faculty which
he has the option to exercise. An option to remove by
impeachment admits of an alternative mode of effecting
the removal.
One-year prescription of quo warranto applies only to
individuals
Thus, the question is whether the one-year limitation is
equally applicable when the petitioner is not a mere
private individual pursuing a private interest, but the
government itself seeking relief for a public wrong and
suing for public interest? The answer is no.
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
Reference must necessarily be had to Section 2, Rule 66
which makes it compulsory for the Solicitor General to
commence a quo warranto action:
SEC. 2. When Solicitor General or public prosecutor must
commence action. — The Solicitor General or a public
prosecutor, when directed by the President of the
Philippines, or when upon complaint or otherwise he has
good reason to believe that any case specified in the
preceding section can be established by proof must
commence such action.
In other words, when the Solicitor General himself
commences the quo warranto action either (1) upon the
President's directive, (2) upon complaint or (3) when the
Solicitor General has good reason to believe that there is
proof that (a) a person usurps, intrudes into, or unlawfully
holds or exercises a public office, position or franchise; (b)
a public officer does or suffers an act which is a ground for
the forfeiture of his office; or (c) an association acts as a
corporation without being legally incorporated or without
lawful authority so to act, he does so in the discharge of his
task and mandate to see to it that the best interest of the
public and the government are upheld. In these three
instances, the Solicitor General is mandated under the
Rules to commence the necessary quo warranto petition.
Supreme Court has supervisory authority on JBC for
compliance of latter’s own rules
Thus, in interpreting the power of the Court vis-a-vis the
power of the JBC, it is consistently held that the Court's
supervisory power consists of seeing to it that the JBC
complies with its own rules and procedures. As when the
policies of the JBC are being attacked, the Court, through
its supervisory authority over the JBC, has the duty to
inquire about the matter and ensure that the JBC is
compliant with its own rules.
JBC's absolute autonomy from the Court as to place its
non-action or improper actions beyond the latter's reach is
therefore not what the Constitution contemplates. What is
more, the JBC's duty to recommend or nominate, although
calling for the exercise of discretion, is neither absolute nor
unlimited.
So too, the JBC's exercise of discretion is not automatically
equivalent to an exercise of policy decision as to place, in
wholesale, the JBC process beyond the scope of the Court's
supervisory and corrective powers. The primary limitation
to the JBC's exercise of discretion is that the nominee must
possess the minimum qualifications required by the
Constitution and the laws relative to the position. While the
resolution of who to nominate as between two candidates
of equal qualification cannot be dictated by this Court
upon the JBC, such surrender of choice presupposes that
whosoever is nominated is not otherwise disqualified. The
question of whether or not a nominee possesses the
requisite qualifications is determined based on facts and
therefore does not depend on, nor call for, the exercise of
discretion on the part of the nominating body.
Filing of SALN is a constitutional requirement
Of paramount significance, Section 17, Article XI of the
Constitution on the Accountability of Public Officers states:
Section 17. A public officer or employee shall, upon
assumption of office and as often thereafter as may be
required by law, submit a declaration under oath of his
assets, liabilities, and net worth. In the case of the
President, the Vice-President, the Members of the Cabinet,
the Congress, the Supreme Court, the Constitutional
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Commissions and other constitutional offices, and officers
of the armed forces with general or flag rank, the
declaration shall be disclosed to the public in the manner
provided by law.
Article VIII, Section 7. (3). A Member of the Judiciary must
be a person of proven competence, integrity, probity, and
independence.
Failure to file the SALN is clearly a violation of the law. The
offense is penal in character and is a clear breach of the
ethical standards set for public officials and employees. It
disregards the requirement of transparency as a deterrent
to graft and corruption. For these reasons, a public official
who has failed to comply with the requirement of filing the
SALN cannot be said to be of proven integrity and the Court
may consider him/her disqualified from holding public
office.
The requirement to file a SALN is not a trivial or a formal
requirement. Neither is it something over which public
officials can exercise discretion. It is mandated by Our
Constitution and laws. It is meant to forge transparency
and accountability in the government and as a measure
meant to curb corruption.
A de facto officer occupying an impeachable position can
be removed by quo warranto
The effect of a finding that a person appointed to an office
is ineligible therefor is that his presumably valid
appointment will give him color of title that confers on him
the status of a de facto officer.
For lack of a Constitutional qualification, respondent is
ineligible to hold the position of Chief Justice and is merely
holding a colorable right or title thereto. As such,
respondent has never attained the status of an
impeachable official and her removal from the office, other
than by impeachment, is justified. The remedy, therefore,
of a quo warranto at the instance of the State is proper to
oust respondent from the appointive position of Chief
Justice.
FISCAL AUTONOMY
SECTION 3. The Judiciary shall enjoy fiscal autonomy.
Appropriations for the Judiciary may not be reduced by the
legislature below the amount appropriated for the
previous year and, after approval, shall be automatically
and regularly released.
GSIS v. HEIRS OF CABALLERO
The case involves the sale of Caballero’s family home by
GSIS, after the former failed to buy it back. In the case, GSIS
also alleged that it is exempt from paying legal fees, under
the GSIS Charter.
Is GSIS exempt from paying legal fees?
ANSWER: NO.
Section 39 of Republic Act No. 8291, which exempts it from
"all taxes, assessments, fees, charges or duties of all kinds,"
cannot operate to exempt it from the payment of legal
fees. This was because, unlike the 1935 and 1973
Constitutions, which empowered Congress to repeal, alter
or supplement the rules of the Supreme Court concerning
pleading, practice and procedure, the 1987 Constitution
removed this power from Congress. Hence, the Supreme
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
Court now has the sole authority to promulgate rules
concerning pleading, practice and procedure in all courts.
In In Re: Petition for Recognition of the Exemption of the
Government Service Insurance System from Payment of
Legal Fees, the Court ruled:
Congress could not have carved out an exemption for the
GSIS from the payment of legal fees without transgressing
another equally important institutional safeguard of the
Court's independence — fiscal autonomy. Fiscal autonomy
recognizes the power and authority of the Court to levy,
assess and collect fees, including legal fees. Moreover,
legal fees under Rule 141 have two basic components, the
Judiciary Development Fund (JDF) and the Special
Allowance for the Judiciary Fund (SAJF). The laws which
established the JDF and the SAJF expressly declare the
identical purpose of these funds to "guarantee the
independence of the Judiciary as mandated by the
Constitution and public policy." Legal fees therefore do not
only constitute a vital source of the Court's financial
resources but also comprise an essential element of the
Court's fiscal independence. Any exemption from the
payment of legal fees granted by Congress to government-
owned or controlled corporations and local government
units will necessarily reduce the JDF and the SAJF.
Undoubtedly, such situation is constitutionally infirm for it
impairs the Court's guaranteed fiscal autonomy and
erodes its independence.
JUDICIARY & ITS INDEPENDENCE
JUDICIAL POWER
SECTION 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be
established by law.
Judicial power includes 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.
GARCIA v. BOARD OF INVESTMENTS
Garcia, as congressman for the second district of Bataan,
assails the approval by the Board of Investments (BOI) and
the Department of Trade and Industry (DTI) of the
amended application for registration of the Bataan
Petrochemical Corporation, which seeks to transfer the
site of its petrochemical complex from Bataan, the original
situs of choice, to the province of Batangas. In a prior case
(GR No. 88637), the Court ruled that BOI should allow
petitioner to have access on its records, publish the
amended application of Bataan Petrochemical and set a
hearing to hear petitioners’ opposition to move said plant.
In another set of event, it was said by BOI that the investors
had the final choice of the plant site. The BPC, now Luzon
Petrochemical Corp, can validly change its feedstock from
naptha to naptha and/or LPG.
Does the Supreme Court have the power to decide on the
matter?
ANSWER: YES.
There is before us an actual controversy whether the
petrochemical plant should remain in Bataan or should be
transferred to Batangas, and whether its feedstock
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Outline from Atty. G. D. Malig-on
originally of naphtha only should be changed to naphtha
and/or liquefied petroleum gas as the approved amended
application of the BPC, now Luzon Petrochemical
Corporation (LPC), shows. And in the light of the categorical
admission of the BOI that it is the investor who has the final
choice of the site and the decision on the feedstock,
whether or not it constitutes a grave abuse of discretion
for the BOI to yield to the wishes of the investor, national
interest notwithstanding.
We rule that the Court has a constitutional duty to step into
this controversy and determine the paramount issue. We
grant the petition.
A petrochemical industry is not an ordinary investment
opportunity. It should not be treated like a garment or
embroidery firm, a shoe-making venture, or even an
assembler of cars or manufacturer of computer chips,
where the BOI reasoning may be accorded fuller faith and
credit. The petrochemical industry is essential to the
national interest. In other ASEAN countries like Indonesia
and Malaysia, the government superintends the industry
by controlling the upstream or cracker facility.
The Court, therefore, holds and finds that the BOI
committed a grave abuse of discretion in approving the
transfer of the petrochemical plant from Bataan to
Batangas and authorizing the change of feedstock from
naphtha only to naphtha and/or LPG for the main reason
that the final say is in the investor all other circumstances
to the contrary notwithstanding. No cogent advantage to
the government has been shown by this transfer. This is a
repudiation of the independent policy of the government
expressed in numerous laws and the Constitution to run
its own affairs the way it deems best for the national
interest.
JUDICIAL REVIEW
ATTY. SALLY: It is the test of validity whether executive or
legislative acts are done in accordance with the
Constitution.
ARTICLE VIII, SECTION 4(2). All cases involving the
constitutionality of a treaty, international or executive
agreement, or law, which shall be heard by the Supreme
Court en banc, and all other cases which under the Rules
of Court are required to be heard en banc, including those
involving the constitutionality, application, or operation of
presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations, shall be decided with
the concurrence of a majority of the Members who actually
took part in the deliberations on the issues in the case and
voted thereon.
Related terms: Supremacy of the Constitution, Judicial
restraint, and judicial legislation.
ACTUAL CASE OR CONTROVERSY
It is a conflict of legal rights, an assertion of opposite legal
claims susceptible of judicial determination. The court has
no authority to pass upon issues of constitutionality
through advisory opinions; there should be an actual case
or controversy.
Related terms: Ripeness of Controversy
NOTE: A moot case may still be decided by the Supreme
Court to educate the bar and the bench, and if incident is
capable of repetition yet evading review.
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
PACU v. SECRETARY OF EDUCATION
The petitioning colleges and universities request that Act
No. 2706 as amended by Act No. 3075 and Commonwealth
Act No. 180 be declared unconstitutional, because: A. They
deprive owners of schools and colleges as well as teachers
and parents of liberty and property without due process of
law; B. They deprive parents of their natural right and duty
to rear their children for civic efficiency; and C. Their
provisions conferring on the Secretary of Education
unlimited power and discretion to prescribe rules and
standards constitute an unlawful delegation of legislative
power.
One of the issues that schools brought against the
Secretary is the latter’s power to issue permits to operate
for private schools. They fear that such power can be
abused, and bully schools to follow orders. Hence, the law
should be invalidated.
Can the Court validly invalidate the law based on
petitioners’ arguments?
ANSWER: NO.
Mere apprehension that the Secretary of Education might
under the law withdraw the permit of one of petitioners
does not constitute a justiciable controversy.
Courts do not sit to adjudicate mere academic questions
to satisfy scholarly interest therein however intellectually
solid the problem may be. This is specially true where the
issues "reach constitutional dimensions, for then there
comes into play regard for the court's duty to avoid
decision of constitutional issues unless avoidance
becomes evasion."
True, the petitioners assert that, the Secretary has issued
rules and regulations "whimsical and capricious" and that
such discretionary power has produced arrogant
inspectors who "bully heads and teachers of private
schools." Nevertheless, their remedy is to challenge those
regulations specifically, and/or to ring those inspectors to
book, in proper administrative or judicial proceedings —
not to invalidate the law. For it needs no argument, to show
that abuse by the officials entrusted with the execution of
a statute does not per se demonstrate the
unconstitutionality of such statute.
DUMLAO v. COMELEC
This is a Petition for Prohibition with Preliminary Injunction
and/or Restraining Order filed by petitioners, in their own
behalf and all others allegedly similarly situated, seeking to
enjoin respondent Commission on Elections (COMELEC)
from implementing certain provisions of Batas Pambansa
Blg. 51, 52, and 53 for being unconstitutional.
The Petition alleges that petitioner, Patricio Dumlao, is a
former Governor of Nueva Vizcaya, who has filed his
certificate of candidacy for said position of Governor in the
forthcoming elections of January 30, 1980. Petitioner,
Romeo B. Igot, is a taxpayer, a qualified voter and a
member of the Bar who, as such, has taken his oath to
support the Constitution and obey the laws of the land.
Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a
qualified voter, and a resident of San Miguel, Iloilo.
Can the petitioners validly file the petition?
ANSWER: NO.
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
It is basic that the power of judicial review is limited to the
determination of actual cases and controversies.
Petitioner Dumlao assails the constitutionality of the first
paragraph of section 4 of Batas Pambansa Blg. 52, quoted
earlier, as being contrary to the equal protection clause
guaranteed by the Constitution, and seeks to prohibit
respondent COMELEC from implementing said provision.
Yet, Dumlao has not been adversely affected by the
application of that provision. No petition seeking Dumlao's
disqualification has been filed before the COMELEC. There
is no ruling of that constitutional body on the matter, which
this Court is being asked to review on Certiorari. His is a
question posed in the abstract, a hypothetical issue, and in
effect, a petition for an advisory opinion from this Court to
be "rendered without the benefit of a detailed factual
record."
NORTH COTABATO v. GRP
The case is on the constitutionality of the MOA-AD.
Can the Court still validly decide upon the case despite
being moot?
ANSWER: YES.
In David v. Macapagal-Arroyo, this Court held that the
"moot and academic" principle not being a magical
formula that automatically dissuades courts in resolving a
case, it will decide cases, otherwise moot and academic, if
it finds that (a) there is a grave violation of the
Constitution; (b) the situation is of exceptional
character and paramount public interest is involved; c)
the constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and
the public; and (d) the case is capable of repetition yet
evading review.
Another exclusionary circumstance that may be
considered is where there is a voluntary cessation of the
activity complained of by the defendant or doer. Thus,
once a suit is filed and the doer voluntarily ceases the
challenged conduct, it does not automatically deprive the
tribunal of power to hear and determine the case and does
not render the case moot especially when the plaintiff
seeks damages or prays for injunctive relief against the
possible recurrence of the violation.
There is no gainsaying that the petitions are imbued with
paramount public interest, involving a significant part of
the country's territory and the wide-ranging political
modifications of affected LGUs. The assertion that the
MOA-AD is subject to further legal enactments including
possible Constitutional amendments more than ever
provides impetus for the Court to formulate controlling
principles to guide the bench, the bar, the public and, in
this case, the government and its negotiating entity.
LEGAL STANDING
OPOSA v. FACTORAN
Excerpt of ruling:
This case, however, has a special and novel element.
Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find no
difficulty in ruling that they can, for themselves, for others
of their generation and for the succeeding generations, file
a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept
of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right,
36
Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
as hereinafter expounded, considers the "rhythm and
harmony of nature." Nature means the created world in its
entirety. Such rhythm and harmony indispensably include,
inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources to the end that their
exploration, development and utilization be equitably
accessible to the present as well as future generations. 10
Needless to say, every generation has a responsibility to
the next to preserve that rhythm and harmony for the full
enjoyment of a balanced and healthful ecology. Put a little
differently, the minors' assertion of their right to a sound
environment constitutes, at the same time, the
performance of their obligation to ensure the protection of
that right for the generations to come.
The locus standi of the petitioners having thus been
addressed, We shall now proceed to the merits of the
petition.
KILOSBAYAN v. GUINGONA
Petitioner Kilosbayan, Incorporated (KILOSBAYAN) avers
that it is a non-stock domestic corporation composed of
civic-spirited citizens, pastors, priests, nuns, and lay
leaders who are committed to the cause of truth, justice,
and national renewal. The rest of the petitioners, except
Senators Freddie Webb and Wigberto Tañada and
Representative Joker P. Arroyo, are suing in their capacities
as members of the Board of Trustees of KILOSBAYAN and
as taxpayers and concerned citizens. Senators Webb and
Tañada and Representative Arroyo are suing in their
capacities as members of Congress and as taxpayers and
concerned citizens of the Philippines.
This is a special civil action for prohibition and injunction,
with a prayer for a temporary restraining order and
preliminary injunction, which seeks to prohibit and restrain
the implementation of the "Contract of Lease" executed by
the Philippine Charity Sweepstakes Office (PCSO) and the
Philippine Gaming Management Corporation (PGMC) in
connection with the on-line lottery system, also known as
"lotto."
Petitioners submit that the PCSO cannot validly enter into
the assailed Contract of Lease with the PGMC because it is
an arrangement wherein the PCSO would hold and
conduct the on-line lottery system in "collaboration" or
"association" with the PGMC, in violation of Section 1 (B) of
R.A. No. 1169, as amended by B.P. Blg. 42, which prohibits
the PCSO from holding and conducting charity
sweepstakes races, lotteries, and other similar activities "in
collaboration, association or joint venture with any person,
association, company or entity, foreign or domestic." The
petitioners also point out that paragraph 10 of the
Contract of Lease requires or authorizes PGMC to establish
a telecommunications network that will connect all the
municipalities and cities in the territory. However, PGMC
cannot do that because it has no franchise from Congress
to construct, install, establish, or operate the network
pursuant to Section 1 of Act No. 3846, as amended.
Moreover, PGMC is a 75% foreign-owned or controlled
corporation and cannot, therefore, be granted a franchise
for that purpose because of Section 11, Article XII of the
1987 Constitution.
Do the petitioners have legal standing to file the case?
ANSWER: YES.
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
A party's standing before this Court is a procedural
technicality which it may, in the exercise of its discretion,
set aside in view of the importance of the issues raised. In
the landmark Emergency Powers Cases, this Court
brushed aside this technicality because "the
transcendental importance to the public of these cases
demands that they be settled promptly and definitely,
brushing aside, if we must, technicalities of procedure.
(Avelino vs. Cuenco, G.R. No. L-2821)." Insofar as taxpayers'
suits are concerned, this Court had declared that it "is not
devoid of discretion as to whether or not it should be
entertained," or that it "enjoys an open discretion to
entertain the same or not."
In line with the liberal policy of this Court on locus standi,
ordinary taxpayers, members of Congress, and even
association of planters, and non-profit civic organizations
were allowed to initiate and prosecute actions before this
Court to question the constitutionality or validity of laws,
acts, decisions, rulings, or orders of various government
agencies or instrumentalities.
We find the instant petition to be of transcendental
importance to the public. The issues it raised are of
paramount public interest and of a category even higher
than those involved in many of the aforecited cases. The
ramifications of such issues immeasurably affect the
social, economic, and moral well-being of the people even
in the remotest barangays of the country and the counter-
productive and retrogressive effects of the envisioned on-
line lottery system are as staggering as the billions in pesos
it is expected to raise. The legal standing then of the
petitioners deserves recognition and, in the exercise of its
sound discretion, this Court hereby brushes aside the
procedural barrier which the respondents tried to take
advantage of.
KILOSBAYAN v. MORATO
This case is a continuation of the Kilosbayan v. Guingona,
wherein the latter declared that the agreement between
PCSO and PGMC was invalid. Now another suit was raised,
and petitioners contend that their legal standing must not
be questioned anymore since it is barred by the Doctrine
of the ‘Law of the Case.’
Can the Court validly rule again on Kilosbayan’s legal
standing?
ANSWER: YES.
There is an additional reason for a reexamination of the
ruling on standing. The voting on petitioners' standing in
the previous case was a narrow one, with seven (7)
members sustaining petitioners' standing and six (6)
denying petitioners' right to bring the suit. The majority
was thus a tenuous one that is not likely to be maintained
in any subsequent litigation. In addition, there have been
changes in the membership of the Court, with the
retirement of Justices Cruz and Bidin and the appointment
of the writer of this opinion and Justice Francisco. Given
this fact it is hardly tenable to insist on the maintenance of
the ruling as to petitioners' standing.
Petitioners argue that inquiry into their right to bring this
suit is barred by the doctrine of "law of the case." We do
not think this doctrine is applicable considering the fact
that while this case is a sequel to G.R. No. 113375, it is not
its continuation: The doctrine applies only when a case is
before a court a second time after a ruling by an appellate
court.
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
As this Court explained in another case. "The law of the
case, as applied to a former decision of an appellate court,
merely expresses the practice of the courts in refusing to
reopen what has been decided. It differs from res judicata
in that the conclusiveness of the first judgment is not
dependent upon its finality. The first judgment is generally,
if not universally, not final. It relates entirely to questions
of law, and is confined in its operation to subsequent
proceedings in the same case . . . ."
It follows that since the present case is not the same one
litigated by the parties before in G.R. No. 113375, the ruling
there cannot in any sense be regarded as "the law of this
case." The parties are the same but the cases are not.
Not only is petitioners' standing a legal issue that may be
determined again in this case. It is, strictly speaking, not
even the issue in this case, since standing is a concept in
constitutional law and here no constitutional question is
actually involved. The issue in this case is whether
petitioners are the "real parties-in-interest" within the
meaning of Rule 3, Sec. 2 of the Rules of Court which
requires that "Every action must be prosecuted and
defended in the name of the real party-in-interest."
Standing is a special concern in constitutional law because
in some cases suits are brought not by parties who have
been personally injured by the operation of a law or by
official action taken, but by concerned citizens, taxpayers
or voters who actually sue in the public interest. Hence the
question in standing is whether such parties have "alleged
such a personal stake in the outcome of the controversy as
to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely
depends for illumination of difficult constitutional
questions." (Baker v. Carr)
INTEGRATED BAR v. ZAMORA
The case is about the President of the Philippines, Joseph
Ejercito Estrada, in a verbal directive, ordered the PNP and
the Marines to conduct joint visibility patrols for the
purpose of crime prevention and suppression. The
Integrated Bar of the Philippines (the "IBP") filed the instant
petition to annul LOI 02/2000 and to declare the
deployment of the Philippine Marines null and void and
unconstitutional, arguing that the deployment of marines
in Metro Manila is violative of the Constitution because no
emergency situation obtains in Metro Manila as would
justify, even only remotely, the deployment of soldiers for
law enforcement work; hence, said deployment in
derogation of Article II, Section 3 of the Constitution.
Does the IBP have legal standing?
ANSWER: NO.
The IBP primarily anchors its standing on its alleged
responsibility to uphold the rule of law and the
Constitution. Apart from this declaration, however, the IBP
asserts no other basis in support of its locus standi. The
mere invocation by the IBP of its duty to preserve the rule
of law and nothing more, while undoubtedly true, is not
sufficient to clothe it with standing in this case. This is too
general an interest which is shared by other groups and
the whole citizenry.
Based on the standards above-stated, the IBP has failed to
present a specific and substantial interest in the resolution
of the case. Its fundamental purpose which, under Section
2, Rule 139-A of the Rules of Court, is to elevate the
standards of the law profession and to improve the
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
administration of justice is alien to, and cannot be affected
by the deployment of the Marines. It should also be noted
that the interest of the National President of the IBP who
signed the petition, is his alone, absent a formal board
resolution authorizing him to file the present action. To be
sure, members of the BAR, those in the judiciary included,
have varying opinions on the issue.
Moreover, the IBP, assuming that it has duly authorized the
National President to file the petition, has not shown any
specific injury which it has suffered or may suffer by virtue
of the questioned governmental act. Indeed, none of its
members, whom the IBP purportedly represents, has
sustained any form of injury as a result of the operation of
the joint visibility patrols. Neither is it alleged that any of its
members has been arrested or that their civil liberties have
been violated by the deployment of the Marines. What the
IBP projects as injurious is the supposed "militarization" of
law enforcement which might threaten Philippine
democratic institutions and may cause more harm than
good in the long run. Not only is the presumed "injury" not
personal in character, it is likewise too vague, highly
speculative and uncertain to satisfy the requirement of
standing. Since petitioner has not successfully established
a direct and personal injury as a consequence of the
questioned act, it does not possess the personality to assail
the validity of the deployment of the Marines.
This Court, however, does not categorically rule that the
IBP has absolutely no standing to raise constitutional
issues now or in the future. The IBP must, by way of
allegations and proof, satisfy this Court that it has
sufficient stake to obtain judicial resolution of the
controversy.
JOYA v. PRESIDENTIAL COMMISSION
All thirty-five (35) petitioners in this Special Civil Action for
Prohibition and Mandamus with Prayer for Preliminary
Injunction and/or Restraining Order seek to enjoin the
Presidential Commission on Good Government (PCGG)
from proceeding with the auction sale scheduled on 11
January 1991 by Christie's of New York of the Old Masters
Paintings and 18th and 19th century silverware seized
from Malacañang and the Metropolitan Museum of Manila
and placed in the custody of the Central Bank.
Does Dean Joya and the rest have legal standing?
ANSWER: NO.
Sec. 2, Rule 3, of the Rules of Court which provides that
every action must be prosecuted and defended in the
name of the real party-in-interest, and that all persons
having interest in the subject of the action and in obtaining
the relief demanded shall be joined as plaintiffs. The Court
will exercise its power of judicial review only if the case is
brought before it by a party who has the legal standing to
raise the constitutional or legal question. "Legal standing"
means a personal and substantial interest in the case such
that the party has sustained or will sustain direct injury as
a result of the governmental act that is being challenged.
The term "interest" is material interest, an interest in issue
and to be affected by the decree, as distinguished from
mere interest in the question involved, or a mere incidental
interest. Moreover, the interest of the party plaintiff must
be personal and not one based on a desire to vindicate the
constitutional right of some third and unrelated party.
There are certain instances however when this Court has
allowed exceptions to the rule on legal standing, as when
a citizen brings a case for mandamus to procure the
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
enforcement of a public duty for the fulfillment of a public
right recognized by the Constitution, and when a taxpayer
questions the validity of a governmental act authorizing
the disbursement of public funds.
CHAVEZ v. PUBLIC ESTATES AUTHORITY
On April 27, 1998, petitioner Frank I. Chavez ("Petitioner"
for brevity) as a taxpayer, filed the instant Petition for
Mandamus with Prayer for the Issuance of a Writ of
Preliminary Injunction and Temporary Restraining Order.
Petitioner contends the government stands to lose billions
of pesos in the sale by PEA of the reclaimed lands to
AMARI. Petitioner prays that PEA publicly disclose the
terms of any renegotiation of the JVA, invoking Section 28,
Article II, and Section 7, Article III, of the 1987 Constitution
on the right of the people to information on matters of
public concern. Petitioner assails the sale to AMARI of
lands of the public domain as a blatant violation of Section
3, Article XII of the 1987 Constitution prohibiting the sale of
alienable lands of the public domain to private
corporations. Finally, petitioner asserts that he seeks to
enjoin the loss of billions of pesos in properties of the State
that are of public dominion.
Does Chanvez have the legal standing to question the
actions of PEA and AMARI?
ANSWER: YES.
The petitioner has standing to bring this taxpayer's suit
because the petition seeks to compel PEA to comply with
its constitutional duties. There are two constitutional
issues involved here. First is the right of citizens to
information on matters of public concern. Second is the
application of a constitutional provision intended to insure
the equitable distribution of alienable lands of the public
domain among Filipino citizens. The thrust of the first issue
is to compel PEA to disclose publicly information on the
sale of government lands worth billions of pesos,
information which the Constitution and statutory law
mandate PEA to disclose. The thrust of the second issue is
to prevent PEA from alienating hundreds of hectares of
alienable lands of the public domain in violation of the
Constitution, compelling PEA to comply with a
constitutional duty to the nation.
Moreover, the petition raises matters of transcendental
importance to the public. In Tañada v. Tuvera, the Court
asserted that when the issue concerns a public right and
the object of mandamus is to obtain the enforcement of a
public duty, the people are regarded as the real parties in
interest; and because it is sufficient that petitioner is a
citizen and as such is interested in the execution of the
laws, he need not show that he has any legal or special
interest in the result of the action. In the aforesaid case,
the petitioners sought to enforce their right to be informed
on matters of public concern, a right then recognized in
Section 6, Article IV of the 1973 Constitution, in connection
with the rule that laws in order to be valid and enforceable
must be published in the Official Gazette or otherwise
effectively promulgated. In ruling for the petitioners' legal
standing, the Court declared that the right they sought to
be enforced 'is a public right recognized by no less than the
fundamental law of the land.'
We rule that since the instant petition, brought by a citizen,
involves the enforcement of constitutional rights — to
information and to the equitable diffusion of natural
resources — matters of transcendental public importance,
the petitioner has the requisite locus standi.
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
DAVID v. MACAPAGAL-ARROYO
This case involves the declaration of President Gloria
Macapagal-Arroyo of a State of National Emergency during
the 20th Anniversary of the EDSA People Power I.
Petitioners alleged that the Presidential Proclamation 1107
encroached on rights of the people, particularly freedoms
of speech, press and assembly, and usurpation of
legislative authority.
Do petitioners have legal standing?
ANSWER: YES.
Locus standi is defined as "a right of appearance in a court
of justice on a given question." In private suits, standing is
governed by the "real-parties-in interest" rule as contained
in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as
amended. It provides that "every action must be
prosecuted or defended in the name of the real party in
interest." Accordingly, the "real-party-in interest" is "the
party who stands to be benefited or injured by the
judgment in the suit or the party entitled to the avails of
the suit." Succinctly put, the plaintiff's standing is based on
his own right to the relief sought.
The difficulty of determining locus standi arises in public
suits. Here, the plaintiff who asserts a "public right" in
assailing an allegedly illegal official action, does so as a
representative of the general public. He may be a person
who is affected no differently from any other person. He
could be suing as a "stranger," or in the category of a
"citizen," or 'taxpayer." In either case, he has to adequately
show that he is entitled to seek judicial protection. In other
words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as
a "citizen" or "taxpayer.
This Court adopted the "direct injury" test in our
jurisdiction. In People v. Vera, it held that the person who
impugns the validity of a statute must have "a personal and
substantial interest in the case such that he has sustained,
or will sustain direct injury as a result." The Vera doctrine
was upheld in a litany of cases.
However, being a mere procedural technicality, the
requirement of locus standi may be waived by the Court in
the exercise of its discretion. This was done in the 1949
Emergency Powers Cases, Araneta v. Dinglasan, where the
"transcendental importance" of the cases prompted the
Court to act liberally. Thus, the Court has adopted a rule
that even where the petitioners have failed to show direct
injury, they have been allowed to sue under the principle
of "transcendental importance."
By way of summary, the following rules may be culled from
the cases decided by this Court. Taxpayers, voters,
concerned citizens, and legislators may be accorded
standing to sue, provided that the following requirements
are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax measure is
unconstitutional;
(3) for voters, there must be a showing of obvious interest
in the validity of the election law in question;
(4) for concerned citizens, there must be a showing that the
issues raised are of transcendental importance which
must be settled early; and
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
(5) for legislators, there must be a claim that the official
action complained of infringes upon their prerogatives as
legislators.
It must always be borne in mind that the question of locus
standi is but corollary to the bigger question of proper
exercise of judicial power. This is the underlying legal tenet
of the "liberality doctrine" on legal standing. It cannot be
doubted that the validity of PP No. 1017 and G.O. No. 5 is
a judicial question which is of paramount importance to
the Filipino people. To paraphrase Justice Laurel, the whole
of Philippine society now waits with bated breath the ruling
of this Court on this very critical matter. The petitions thus
call for the application of the "transcendental importance"
doctrine, a relaxation of the standing requirements for the
petitioners in the "PP 1017 cases."
This Court holds that all the petitioners herein have locus
standi.
TAXPAYERS, LAWMAKERS, VOTERS & CONCERNED
CITIZENS SUIT
Taxpayers Suit - there must be a claim of illegal
disbursement of public funds or that the tax measure is
unconstitutional.
Lawmakers Suit - there must be a claim that the official
action complained of infringes upon their prerogatives as
legislators.
Voters Suit - there must be a showing of obvious interest
in the validity of the election law in question.
Concerned Citizens Suit - there must be a showing that
the issues raised are of transcendental importance which
must be settled early.
GONZALES v. NARVASA
Petitioner, as a citizen and taxpayer, filed this petition for
prohibition and mandamus assailing the constitutionality
of the creation of the Preparatory Commission on
Constitutional Reform (PCCR) and of the positions of
presidential consultants, advisers and assistants.
Petitioner asked the Court to enjoin the PCCR and said
presidential consultants, advisers and assistants from
acting as such and to compel respondent Zamora to
furnish petitioner with information on certain matters.
Does Gonzales, as taxpayer, have the standing to challenge
the validity of the creation of the PCCR?
ANSWER: NO.
The question in standing is whether a party has "alleged
such a personal stake in the outcome of the controversy as
to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely
depends for illumination of difficult constitutional
questions." In assailing the constitutionality of E.O. Nos. 43
and 70, petitioner asserts his interest as a citizen and
taxpayer.
A citizen acquires standing only if he can establish that he
has suffered some actual or threatened injury as a result
of the allegedly illegal conduct of the government; the
injury is fairly traceable to the challenged action; and the
injury is likely to be redressed by a favorable action. . . .
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
Coming now to the instant case, petitioner has not shown
that he has sustained or is in danger of sustaining any
personal injury attributable to the creation of the PCCR. . .
.. Neither does he claim that his rights or privileges have
been or are in danger of being violated, nor that he shall
be subjected to any penalties or burdens as a result of the
PCCR's activities. Clearly, petitioner has failed to establish
his locus standi so as to enable him to seek judicial redress
as a citizen.
A taxpayer is deemed to have the standing to raise a
constitutional issue when it is established that public funds
have been disbursed in alleged contravention of the law or
the Constitution. Thus, a taxpayer's action is properly
brought only when there is an exercise by Congress of its
taxing or spending power. . . . Coming now to the instant
case, it is readily apparent that there is no exercise by
Congress of its taxing or spending power. The PCCR was
created by the President by virtue of E.O. No. 43, as
amended by E.O. No. 70. Under Section 7 of E.O. No. 43,
the amount of P3 million is "appropriated" for its
operational expenses "to be sourced from the funds of the
O ce of the President." . . . The appropriations for the
PCCR were authorized by the President, not by Congress.
In fact, there was no appropriation at all. . . . There being
no exercise by Congress of its taxing or spending power,
petitioner cannot be allowed to question the creation of
the PCCR in his capacity as a taxpayer.
PARAMOUNT IMPORTANCE DOCTRINE
KILOSBAYAN v. GUINGONA
Excerpt: We find the instant petition to be of
transcendental importance to the public. The issues it
raised are of paramount public interest and of a category
even higher than those involved in many of the aforecited
cases. The ramifications of such issues immeasurably
affect the social, economic, and moral well-being of the
people even in the remotest barangays of the country and
the counter-productive and retrogressive effects of the
envisioned on-line lottery system are as staggering as the
billions in pesos it is expected to raise. The legal standing
then of the petitioners deserves recognition and, in the
exercise of its sound discretion, this Court hereby brushes
aside the procedural barrier which the respondents tried
to take advantage of.
FACIAL CHALLENGE, STRICT SCRUTINY, OVERBREADTH
& VOID-FOR-VAGUENESS DOCTRINE
Facial challenge - allowed to be made to vague statute
and to one which is overbroad because of possible “chilling
effect” upon protected speech. The possible harm to
society in permitting some unprotected speech to go
unpunished is outweighed by the possibility that the
protected speech of other may be deterred and perceived
grievances left to fester because of possible inhibitory
effects of overly broad statutes. But in criminal law, the law
cannot take chances as in the area of free speech.
Strict Scrutiny - The statute is absolutely unconstitutional
under no circumstance. But the only time a facial challenge
to a statute is allowed is when it operates in the area of
freedom of expression. Invalidation of the statute “on its
face”, rather than “as applied” is permitted in the interest
of preventing a chilling effect on freedom of expression.
Overbreadth - permits a party to challenge the validity of
a statute even though as applied to him, it is not
unconstitutional, but it might be if applied to others not
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
before the Courts whose activities are constitutionally
protected. It applies to any statute.
Void-for-Vagueness - subject to the same principles
governing over breadth doctrine … also an analytical tool
for testing ‘on their faces’ statutes in free speech cases. It
applies to criminal laws, not merely those that regulate
speech or other fundamental constitutional right.
NOTE: Strict Scrutiny, Overbreadth and Void-for-
Vagueness are generally applied to freedom of expression
cases.
ESTRADA v. SANDIGANBAYAN
Petitioner Joseph Ejercito Estrada, the highest-ranking
official to be prosecuted under RA 7080 (An Act Defining
and Penalizing the Crime of Plunder), as amended by RA
7659, wishes to impress upon us that the assailed law is so
defectively fashioned that it crosses that thin but distinct
line which divides the valid from the constitutionally infirm.
He therefore makes a stringent call for this Court to subject
the Plunder Law to the crucible of constitutionality mainly
because, according to him, (a) it suffers from the vice of
vagueness; (b) it dispenses with the "reasonable doubt"
standard in criminal prosecutions; and, (c) it abolishes the
element of mens rea in crimes already punishable under
The Revised Penal Code, all of which are purportedly clear
violations of the fundamental rights of the accused to due
process and to be informed of the nature and cause of the
accusation against him.
Does the Plunder Law suffer vice from vagueness?
ANSWER: NO.
Petitioner bewails the failure of the law to provide for the
statutory definition of the terms "combination" and
"series" in the key phrase "a combination or series of overt
or criminal acts" found in Sec. 1, par. (d), and Sec. 2, and
the word "pattern" in Sec. 4. These omissions, according to
petitioner, render the Plunder Law unconstitutional for
being impermissibly vague and overbroad and deny him
the right to be informed of the nature and cause of the
accusation against him, hence, violative of his fundamental
right to due process.
A statute is not rendered uncertain and void merely
because general terms are used therein, or because of
the employment of terms without defining them;
much less do we have to define every word we use.
Besides, there is no positive constitutional or statutory
command requiring the legislature to define each and
every word in an enactment. Congress is not restricted in
the form of expression of its will, and its inability to so
define the words employed in a statute will not necessarily
result in the vagueness or ambiguity of the law so long as
the legislative will is clear, or at least, can be gathered from
the whole act, which is distinctly expressed in the Plunder
Law. Moreover, it is a well-settled principle of legal
hermeneutics that words of a statute will be interpreted in
their natural, plain and ordinary acceptation and
signification, unless it is evident that the legislature
intended a technical or special legal meaning to those
words.
The intention of the lawmakers — who are, ordinarily,
untrained philologists and lexicographers — to use
statutory phraseology in such a manner is always
presumed. Further, that Congress intended the words
"combination" and "series" to be understood in their
popular meanings is pristinely evident from the legislative
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
deliberations on the bill which eventually became RA 7080
or the Plunder Law.
Petitioner's reliance on the "void-for-vagueness" doctrine
is manifestly misplaced. The doctrine has been formulated
in various ways, but is most commonly stated to the effect
that a statute establishing a criminal offense must de ne
the offense with sufficient definiteness that persons of
ordinary intelligence can understand what conduct is
prohibited by the statute. It can only be invoked against
that specie of legislation that is utterly vague on its face,
i.e., that which cannot be clarified either by a saving clause
or by construction. A statute or act may be said to be vague
when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its
meaning and differ in its application.
In such instance, the statute is repugnant to the
Constitution in two (2) respects — it violates due process
for failure to accord persons, especially the parties
targeted by it, fair notice of what conduct to avoid; and, it
leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the
Government muscle. But the doctrine does not apply as
against legislations that are merely couched in imprecise
language but which nonetheless specify a standard though
defectively phrased; or to those that are apparently
ambiguous yet fairly applicable to certain types of
activities. The first may be "saved" by proper construction,
while no challenge may be mounted as against the second
whenever directed against such activities. With more
reason, the doctrine cannot be invoked where the assailed
statute is clear and free from ambiguity, as in this case. The
test in determining whether a criminal statute is void for
uncertainty is whether the language conveys a sufficiently
definite warning as to the proscribed conduct when
measured by common understanding and practice. It must
be stressed, however, that the "vagueness" doctrine
merely requires a reasonable degree of certainty for the
statute to be upheld — not absolute precision or
mathematical exactitude, as petitioner seems to suggest.
Flexibility, rather than meticulous specificity, is permissible
as long as the metes and bounds of the statute are clearly
delineated.
An act will not be held invalid merely because it might have
been more explicit in its wordings or detailed in its
provisions, especially where, because of the nature of the
act, it would be impossible to provide all the details in
advance as in all other statutes. Ambiguity, where none
exists, cannot be created by dissecting parts and words in
the statute to furnish support to critics who cavil at the
want of scientific precision in the law. Every provision of
the law should be construed in relation and with reference
to every other part. To be sure, it will take more than
nitpicking to overturn the well-entrenched presumption of
constitutionality and validity of the Plunder Law. A fortiori,
petitioner cannot feign ignorance of what the Plunder Law
is all about. Being one of the Senators who voted for its
passage, petitioner must be aware that the law was
extensively deliberated upon by the Senate and its
appropriate committees by reason of which he even
registered his affirmative vote with full knowledge of its
legal implications and sound constitutional anchorage.
Moreover, we agree with, hence we adopt, the
observations of Mr. Justice Vicente V. Mendoza during the
deliberations of the Court that the allegations that the
Plunder Law is vague and overbroad do not justify a facial
review of its validity —
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
The void-for-vagueness doctrine states that "a statute
which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its
application, violates the first essential of due process
of law." The overbreadth doctrine, on the other hand,
decrees that "a governmental purpose may not be
achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected
freedoms.''
A facial challenge is allowed to be made to a vague
statute and to one which is overbroad because of
possible "chilling effect" upon protected speech. The
theory is that "[w]hen statutes regulate or proscribe
speech and no readily apparent construction suggests
itself as a vehicle for rehabilitating the statutes in a
single prosecution, the transcendent value to all
society of constitutionally protected expression is
deemed to justify allowing attacks on overly broad
statutes with no requirement that the person making
the attack demonstrate that his own conduct could
not be regulated by a statute drawn with narrow
specificity." The possible harm to society in permitting
some unprotected speech to go unpunished is outweighed
by the possibility that the protected speech of others may
be deterred and perceived grievances left to fester
because of possible inhibitory effects of overly broad
statutes.
This rationale does not apply to penal statutes. Criminal
statutes have general in terrorem effect resulting from
their very existence, and, if facial challenge is allowed for
this reason alone, the State may well be prevented from
enacting laws against socially harmful conduct. In the area
of criminal law, the law cannot take chances as in the area
of free speech.
The overbreadth and vagueness doctrines then have
special application only to free speech cases. They are
inapt for testing the validity of penal statutes. As the
U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, "we have not recognized an 'overbreadth'
doctrine outside the limited context of the First
Amendment." In Broadrick v. Oklahoma, the Court ruled
that "claims of facial overbreadth have been entertained in
cases involving statutes which, by their terms, seek to
regulate only spoken words" and, again, that "overbreadth
claims, if entertained at all, have been curtailed when
invoked against ordinary criminal laws that are sought to
be applied to protected conduct." For this reason, it has
been held that "a facial challenge to a legislative act is the
most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances
exists under which the Act would be valid." As for the
vagueness doctrine, it is said that a litigant may challenge
a statute on its face only if it is vague in all its possible
applications. "A plaintiff who engages in some conduct that
is clearly proscribed cannot complain of the vagueness of
the law as applied to the conduct of others.''
In sum, the doctrines of strict scrutiny, overbreadth, and
vagueness are analytical tools developed for testing "on
their faces" statutes in free speech cases or, as they are
called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a
criminal statute. With respect to such statute, the
established rule is that "one to whom application of a
statute is constitutional will not be heard to attack the
statute on the ground that impliedly it might also be taken
as applying to other persons or other situations in which
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
its application might be unconstitutional." As has been
pointed out, "vagueness challenges in the First
Amendment context, like overbreadth challenges
typically produce facial invalidation, while statutes
found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular
defendant.'' Consequently, there is no basis for
petitioner's claim that this Court review the Anti-Plunder
Law on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in
striking them down entirely on the ground that they might
be applied to parties not before the Court whose activities
are constitutionally protected. It constitutes a departure
from the case and controversy requirement of the
Constitution and permits decisions to be made without
concrete factual settings and in sterile abstract contexts.
But, as the U.S. Supreme Court pointed out in Younger v.
Harris:
[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies
before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the
relative remoteness of the controversy, the impact on the
legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-
line analysis of detailed statutes, . . . ordinarily results in a
kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be
decided.
For these reasons, "on its face" invalidation of statutes has
been described as "manifestly strong medicine," to be
employed "sparingly and only as a last resort," and is
generally disfavored. In determining the constitutionality
of a statute, therefore, its provisions which are alleged to
have been violated in a case must be examined in the light
of the conduct with which the defendant is charged.
RAISED IN THE EARLIEST POSSIBLE OPPORTUNITY
General Rule: The constitutional question must be raised
at the earliest possible opportunity in the case.
Exceptions:
In criminal cases, the question can be raised at any time at
the discretion of the court;
In civil cases, the question can be raised at any stage of the
proceedings if necessary for the determination of the case
itself;
In every case, except where there is estoppel, it can be
raised at any stage if it involves the jurisdiction of the court.
2 kinds of estoppel:
1. A person is barred from questioning a particular
act after where he has benefited from the same
act.
2. Where a person is prevented from exercising a
right, after a certain period he has slept that
right.
UMALI v. GUINGONA
Petitioner was appointed Regional Director of the Bureau
of Internal Revenue. In 1994, then President Fidel V.
Ramos, received a confidential memorandum against
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petitioner for alleged violations of internal revenue laws,
rules and regulations. Immediately, he was placed under
preventive suspension and a complaint against him was
referred to the Presidential Commission on Anti-Graft and
Corruption (PCAGC), for investigation. The PCAGC found
prima facie evidence to support six (6) charges of
malfeasance, misfeasance, and nonfeasance against
petitioner. Acting upon the recommendation of the
PCAGC, President Ramos issued an Administrative Order
dismissing petitioner with forfeiture of retirement and all
benefits under the law. His motion for reconsideration
having been denied by the Office of the President,
petitioner brought a petition for certiorari, prohibition and
injunction before the RTC of Makati which dismissed the
same. The Court of Appeals likewise dismissed the petition
when its jurisdiction was invoked, hence, petitioner found
its way to the Supreme Court.
On his MR in the RTC, Umali raised the constitutionality of
the creation of the PGAGC?
Was the issue raised against PGAGC valid?
ANSWER: NO.
As regards the issue of constitutionality of the PCAGC, it
was only posed by petitioner in his motion for
reconsideration before the Regional Trial Court of Makati.
It was certainly too late to raise the said issue for the first
time at such late stage of the proceedings below.
“LIS MOTA” OF THE CASE
Lis mota - essence of the subject matter of the case.
LAUREL v. GARCIA
The case involves the Roponggi property of the Philippines
in Japan. It questions the validity of the President’s order to
possibly sell or lease the Roponggi property to non-
Filipinos. Ojeda, another petitioner, also alleged that the
executive order contravenes the constitutional mandate to
conserve and develop the national patrimony stated in the
Preamble of the 1987 Constitution.
Should the Supreme Court decide on the constitutional
question?
ANSWER: NO.
Having declared a need for a law or formal declaration to
withdraw the Roppongi property from public domain to
make it alienable and a need for legislative authority to
allow the sale of the property, we see no compelling reason
to tackle the constitutional issue raised by petitioner
Ojeda.
The Court does not ordinarily pass upon constitutional
questions unless these questions are properly raised in
appropriate cases and their resolution is necessary for the
determination of the case (People v. Vera, 65 Phil. 56
[1937]). The Court will not pass upon a constitutional
question although property presented by the record if the
case can be disposed of on some other ground such as the
application of a statute or general law (Siler v. Louisville
and Nashville R. Co., 213 U.S. 175, [1909], Railroad
Commission v. Pullman Co., 312 U.S. 496 [1941]).
HACIENDA LUISITA v. PRESIDENTIAL AGRARIAN REFORM
On July 5, 2011, this Court promulgated a Decision 3 in the
above-captioned case, denying the petition led by HLI
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
and affirming Presidential Agrarian Reform Council (PARC)
Resolution No. 2005-32-01 dated December 22, 2005 and
PARC Resolution No. 2006-3401 dated May 3, 2006 with the
modification that the original 6,296 qualified farmworker-
beneficiaries of Hacienda Luisita (FWBs) shall have the
option to remain as stockholders of HLI.
Can the Court be compelled to rule on the constitutionality
of Section 31, RA 6657?
ANSWER: NO.
FARM insists that the issue of constitutionality of Sec. 31 of
RA 6657 is the lis mota of the case, raised at the earliest
opportunity, and not to be considered as moot and
academic. 25 This contention is unmeritorious.
As We have succinctly discussed in Our July 5, 2011
Decision:
While there is indeed an actual case or controversy,
intervenor FARM, composed of a small minority of 27
farmers, has yet to explain its failure to challenge the
constitutionality of Sec. 31 of RA 6657, since as early as
November 21, 1989 when PARC approved the SDP of
Hacienda Luisita or at least within a reasonable time
thereafter and why its members received benefits from the
SDP without so much of a protest. It was only on December
4, 2003 or 14 years after approval of the SDP via PARC
Resolution No. 89-122 dated November 21, 1989 that said
plan and approving resolution were sought to be revoked,
but not, to stress, by FARM or any of its members, but by
petitioner AMBALA. Furthermore, the AMBALA petition did
NOT question the constitutionality of Sec. 31 of RA 6657,
but concentrated on the purported flaws and gaps in the
subsequent implementation of the SDP. Even the public
respondents, as represented by the Solicitor General, did
not question the constitutionality of the provision. On the
other hand, FARM, whose 27 members formerly belonged
to AMBALA, raised the constitutionality of Sec. 31 only on
May 3, 2007 when it filed its Supplemental Comment with
the Court. Thus, it took FARM some eighteen (18) years
from November 21, 1989 before it challenged the
constitutionality of Sec. 31 of RA 6657 which is quite too
late in the day. The FARM members slept on their rights
and even accepted benefits from the SDP with nary a
complaint on the alleged unconstitutionality of Sec. 31
upon which the benefits were derived. The Court cannot
now be goaded into resolving a constitutional issue that
FARM failed to assail after the lapse of a long period of time
and the occurrence of numerous events and activities
which resulted from the application of an alleged
unconstitutional legal provision.
It has been emphasized in a number of cases that the
question of constitutionality will not be passed upon by the
Court unless it is properly raised and presented in an
appropriate case at the first opportunity. FARM is,
therefore, remiss in belatedly questioning the
constitutionality of Sec. 31 of RA 6657. The second
requirement that the constitutional question should be
raised at the earliest possible opportunity is clearly
wanting.
The last but the most important requisite that the
constitutional issue must be the very lis mota of the case
does not likewise obtain. The lis mota aspect is not present,
the constitutional issue tendered not being critical to the
resolution of the case. The unyielding rule has been to
avoid, whenever plausible, an issue assailing the
constitutionality of a statute or governmental act. If some
other grounds exist by which judgment can be made
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without touching the constitutionality of a law, such
recourse is favored. Garcia v. Executive Secretary explains
why:
Lis Mota — the fourth requirement to satisfy before this
Court will undertake judicial review — means that the
Court will not pass upon a question of unconstitutionality,
although properly presented, if the case can be disposed
of on some other ground, such as the application of the
statute or the general law. The petitioner must be able to
show that the case cannot be legally resolved unless the
constitutional question raised is determined. This
requirement is based on the rule that every law has in its
favor the presumption of constitutionality; to justify its
nullification, there must be a clear and unequivocal breach
of the Constitution, and not one that is doubtful,
speculative, or argumentative.
The lis mota in this case, proceeding from the basic
positions originally taken by AMBALA (to which the FARM
members previously belonged) and the Supervisory
Group, is the alleged non-compliance by HLI with the
conditions of the SDP to support a plea for its revocation.
And before the Court, the lis mota is whether or not PARC
acted in grave abuse of discretion when it ordered the
recall of the SDP for such non-compliance and the fact that
the SDP, as couched and implemented, offends certain
constitutional and statutory provisions. To be sure, any of
these key issues may be resolved without plunging into the
constitutionality of Sec. 31 of RA 6657. Moreover, looking
deeply into the underlying petitions of AMBALA, et al., it is
not the said section per se that is invalid, but rather it is the
alleged application of the said provision in the SDP that is
flawed.
It may be well to note at this juncture that Sec. 5 of RA 9700,
amending Sec. 7 of RA 6657, has all but superseded Sec. 31
of RA 6657 vis-Ã -vis the stock distribution component of
said Sec. 31. In its pertinent part, Sec. 5 of RA 9700
provides: "[T]hat after June 30, 2009, the modes of
acquisition shall be limited to voluntary offer to sell and
compulsory acquisition." Thus, for all intents and
purposes, the stock distribution scheme under Sec. 31 of
RA 6657 is no longer an available option under existing law.
The question of whether or not it is unconstitutional
should be a moot issue. (Citations omitted; emphasis in the
original.)
Based on the foregoing disquisitions, We maintain that this
Court is NOT compelled to rule on the constitutionality of
Sec. 31 of RA 6657. In this regard, We clarify that this Court,
in its July 5, 2011 Decision, made no ruling in favor of the
constitutionality of Sec. 31 of RA 6657.
There was, however, a determination of the existence of
an apparent grave violation of the Constitution that may
justify the resolution of the issue of constitutionality, to
which this Court ruled in the negative. Having clarified this
matter, all other points raised by both FARM and AMBALA
concerning the constitutionality of RA 6657 deserve scant
consideration.
EFFECTS OF DECLARATION OF UNCONSTITUTIONALITY
Article 7, Civil Code: Laws are repealed only by
subsequent ones, and their violation or non-observance
shall not be excused by disuse, or custom or practice to the
contrary. When the courts declared a law to be
inconsistent with the Constitution, the former shall be void
and the latter shall govern.
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
Orthodox View - The law is void if on its face it does not
enjoy any presumption of validity because it is patently
offensive to the Constitution. It produces no effect, creates
no effect, and produces no duty.
If the law is inconsistent with the Constitution, then the
latter shall govern. If the law has been declared
unconstitutional, it is presumed that no law existed at all.
It is the traditional view.
An unconstitutional act is not a law; it confers no rights; it
imposes no duties; it affords no protection; it creates no
office; it is, in legal contemplation, as inoperative as though
it had never been passed.
Modern View - The law is voidable if on its face it enjoys
the presumption of unconstitutionality. The law becomes
inoperative only upon the judicial declaration of its
invalidity. The declaration produces no retroactive effect.
Under this view, the court in passing upon the question of
constitutionality does not annul or repeal the statute if it
finds it in conflict with the Constitution. It simply refuses to
recognize it and determines the rights of the parties just as
if such statute had no existence. But certain legal effects of
the statute prior to its declaration of unconstitutionality
may be recognized.
DE AGBAYANI v. PHILIPPINE NATIONAL BANK
Plaintiff Francisca Serrano de Agbayani, now appellee, was
able to obtain a favorable judgment in her suit against
defendant, now appellant Philippine National Bank,
permanently enjoining the other defendant, the Provincial
Sheriff of Pangasinan, from proceeding with an
extrajudicial foreclosure sale of land belonging to plaintiff
mortgaged to appellant Bank to secure a loan declared no
longer enforceable, the prescriptive period having lapsed.
There was thus a failure to sustain the defense raised by
appellant that if the moratorium under an Executive Order
and later an Act subsequently found unconstitutional were
to be counted in the computation, then the right to
foreclose the mortgage was still subsisting.
Does the period wherein the assailed law and executive
order was effective, prior to the judicial decision of its
invalidity, tolled the prescription?
ANSWER: YES.
The decision now on appeal reflects the orthodox view that
an unconstitutional act, for that matter an executive order
or a municipal ordinance likewise suffering from that
infirmity, cannot be the source of any legal rights or duties.
Nor can it justify any official act taken under it. Its
repugnancy to the fundamental law once judicially
declared results in its being to all intents and purposes a
mere scrap of paper. As the new Civil Code puts it: "When
the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall
govern. Administrative or executive acts, orders and
regulations shall be valid only when they are not contrary
to the laws of the Constitution. It is understandable why it
should be so, the Constitution being supreme and
paramount. Any legislative or executive act contrary to its
terms cannot survive.
Such a view has support in logic and possesses the merit
of simplicity. It may not however be sufficiently realistic. It
does not admit of doubt that prior to the declaration of
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nullity such challenged legislative or executive act must
have been in force and had to be complied with. This is so
as until after the judiciary, in an appropriate case, declares
its invalidity, it is entitled to obedience and respect. Parties
may have acted under it and may have changed their
positions. What could be more fitting than that in a
subsequent litigation regard be had to what has been done
while such legislative or executive act was in operation and
presumed to be valid in all respects. It is now accepted as
a doctrine that prior to its being nullified, its existence as a
fact must be reckoned with. This is merely to reflect
awareness that precisely because the judiciary is the
governmental organ which has the final say on whether or
not a legislative or executive measure is valid, a period of
time may have elapsed before it can exercise the power of
judicial review that may lead to a declaration of nullity. It
would be to deprive the law of its quality of fairness and
justice then, if there be no recognition of what had
transpired prior to such adjudication.
The error of the lower court in sustaining plaintiff's suit is
thus manifest. From July 19, 1944, when her loan matured,
to July 13, 1959, when extra-judicial foreclosure
proceedings were started by appellant Bank, the time
consumed is six days short of fifteen years. The
prescriptive period was tolled, however, from March 10,
1945, the effectivity of Executive Order No. 32, to May 18,
1953, when the decision of Rutter v. Esteban was
promulgated, covering eight years, two months and eight
days. Obviously then, when resort was had extra-judicially
to the foreclosure of the mortgage obligation, there was
time to spare before prescription could be availed of as a
defense.
HACIENDA LUISITA v. PRESIDENTIAL AGRARIAN REFORM
On Doctrine of Operative Fact: Contrary to the stance of
respondents, the operative fact doctrine does not only
apply to laws subsequently declared unconstitutional or
unlawful, as it also applies to executive acts subsequently
declared as invalid.
Bearing in mind that PARC Resolution No. 89-12-2 10 ——
an executive act —— was declared invalid in the instant
case, the operative fact doctrine is clearly applicable.
Evidently, the operative fact doctrine is not con ned to
statutes and rules and regulations issued by the executive
department that are accorded the same status as that of a
statute or those which are quasi-legislative in nature. Even
assuming that De Agbayani initially applied the operative
fact doctrine only to executive issuances like orders and
rules and regulations, said principle can nonetheless be
applied, by analogy, to decisions made by the President or
the agencies under the executive department. This
doctrine, in the interest of justice and equity, can be
applied liberally and in a broad sense to encompass said
decisions of the executive branch. In keeping with the
demands of equity, the Court can apply the operative fact
doctrine to acts and consequences that resulted from the
reliance not only on a law or executive act which is quasi-
legislative in nature but also on decisions or orders of the
executive branch which were later nullified. This Court is
not unmindful that such acts and consequences must be
recognized in the higher interest of justice, equity and
fairness.
Significantly, a decision made by the President or the
administrative agencies has to be complied with because
it has the force and effect of law, springing from the
powers of the President under the Constitution and
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
existing laws. Prior to the nullification or recall of said
decision, it may have produced acts and consequences in
conformity to and in reliance of said decision, which must
be respected. It is on this score that the operative fact
doctrine should be applied to acts and consequences that
resulted from the implementation of the PARC Resolution
approving the SDP of HLI.
PARTIAL DECLARATION OF UNCONSTITUTIONALITY
Requisites for partial unconstitutionality:
(1) The Legislature must be willing to retain the valid
portion(s), usually shown by the presence of a separability
clause in the law;
(2) The valid portion can stand independently as law.
SALAZAR v. ACHACOSO
This case declared the unconstitutionality of Article 38 of
the Labor Code, or the authority of the Secretary of Labor
to issue warrants of arrest.
Can a law be partially declared as unconstitutional?
ANSWER: YES.
We reiterate that the Secretary of Labor, not being a judge,
may no longer issue search or arrest warrants. Hence, the
authorities must go through the judicial process. To that
extent, we declare Article 38, paragraph (c), of the Labor
Code, unconstitutional and of no force and effect.
POWERS OF THE SUPREME COURT
SECTION 5. The Supreme Court shall have the following
powers:
(1) Exercise original jurisdiction over cases affecting
ambassadors, other public ministers and consuls, and over
petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may provide,
final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or
validity of any treaty, international or executive
agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or
regulation is in question.
(b) All cases involving the legality of any tax,
impost, assessment, or toll, or any penalty
imposed in relation thereto.
(c) All cases in which the jurisdiction of any lower
court is in issue.
(d) All criminal cases in which the penalty
imposed is reclusion perpetua or higher.
(e) All cases in which only an error or question of
law is involved.
(3) Assign temporarily judges of lower courts to other
stations as public interest may require. Such temporary
assignment shall not exceed six months without the
consent of the judge concerned.
(4) Order a change of venue or place of trial to avoid a
miscarriage of justice.
(5) Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
the practice of law, the Integrated Bar, and legal assistance
to the underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of the
same grade, and shall not diminish, increase, or modify
substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless
disapproved by the Supreme Court.
(6) Appoint all officials and employees of the Judiciary in
accordance with the Civil Service Law.
QUESTION: Is prohibiting plea bargaining under the
Comprehensive Dangerous Drugs Law violative of the rule-
making power of the Supreme Court? YES.
ESTIPONA v. HON. LOBRIGO
Excerpt: The Supreme Court's sole prerogative to issue,
amend, or repeal procedural rules is limited to the
preservation of substantive rights, i.e., the former should
not diminish, increase or modify the latter. "Substantive
law is that part of the law which creates, defines and
regulates rights, or which regulates the right and duties
which give rise to a cause of action; that part of the law
which courts are established to administer; as opposed to
adjective or remedial law, which prescribes the method of
enforcing rights or obtain redress for their invasions."
Fabian v. Hon. Desierto laid down the test for determining
whether a rule is substantive or procedural in nature.
In determining whether a rule prescribed by the Supreme
Court, for the practice and procedure of the lower courts,
abridges, enlarges, or modifes any substantive right, the
test is whether the rule really regulates procedure, that is,
the judicial process for enforcing rights and duties
recognized by substantive law and for justly administering
remedy and redress for a disregard or infraction of them.
If the rule takes away a vested right, it is not procedural. If
the rule creates a right such as the right to appeal, it may
be classified as a substantive matter; but if it operates as a
means of implementing an existing right then the rule
deals merely with procedure.
OTHER POWERS OF THE SUPREME COURT
a. Power to review the sufficiency of the factual basis of the
declaration of martial law – Article VII, Section 18(3)
b. Power to act as the Presidential Electoral Tribunal –
Article VII, Section 4(7)
c. Power to review on certiorari ALL decisions of the
Constitutional Commissions (COMELEC, COA and CSC) –
Article IX-A, Section 7
QUESTION: Can the Supreme Court validly make the Court
of Appeals take cases of crimes with penalty carrying
reclusion perpetua? YES.
PEOPLE v. MATEO
Excerpt: Up until now, the Supreme Court has assumed the
direct appellate review over all criminal cases in which the
penalty imposed is death, reclusion perpetua or life
imprisonment (or lower but involving offenses committed
on the same occasion or arising out of the same
occurrence that gave rise to the more serious offense for
which the penalty of death, reclusion perpetua, or life
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
imprisonment is imposed). The practice finds justification
in the 1987 Constitution:
Article VIII, Section 5:
(2) Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may provide,
final judgments and orders of lower courts in:
(d) All criminal cases in which the penalty imposed is
reclusion perpetua or higher.
While the Fundamental Law requires a mandatory review
by the Supreme Court of cases where the penalty imposed
is reclusion perpetua, life imprisonment, or death,
nowhere, however, has it proscribed an intermediate
review. If only to ensure utmost circumspection before the
penalty of death, reclusion perpetua or life imprisonment
is imposed, the Court now deems it wise and compelling to
provide in these cases a review by the Court of Appeals
before the case is elevated to the Supreme Court. Where
life and liberty are at stake, all possible avenues to
determine his guilt or innocence must be accorded an
accused, and no care in the evaluation of the facts can ever
be overdone. A prior determination by the Court of
Appeals on, particularly, the factual issues, would minimize
the possibility of an error of judgment. If the Court of
Appeals should affirm the penalty of death, reclusion
perpetua or life imprisonment, it could then render
judgment imposing the corresponding penalty as the
circumstances so warrant, refrain from entering judgment
and elevate the entire records of the case to the Supreme
Court for its final disposition.
Under the Constitution, the power to amend rules of
procedure is constitutionally vested in the Supreme Court
— Article VIII, Section 5. The Supreme Court shall have the
following powers:"
(5) constitutional rights, pleading, practice, and procedure
in all courts." Procedural matters, first and foremost, fall
more squarely within the rule-making prerogative of the
Supreme Court than the law-making power of Congress.
The rule here announced additionally allowing an
intermediate review by the Court of Appeals, a subordinate
appellate court, before the case is elevated to the Supreme
Court on automatic review, is such a procedural matter.
CONGRESSIONAL POWER OVER JURISDICTION OF THE
SUPREME COURT
ARTICLE VI, SECTION 30. No law shall be passed
increasing the appellate jurisdiction of the Supreme Court
as provided in this Constitution without its advice and
concurrence.
ARTICLE VIII, SECTION 2. The Congress shall have the
power to define, prescribe, and apportion the jurisdiction
of various courts but may not deprive the Supreme Court
of its jurisdiction over cases enumerated in Section 5
hereof.
MANNER OF SITTING & VOTES REQUIRED
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 divisions of three, five, or seven
Members. Any vacancy shall be filled within ninety days
from the occurrence thereof.
(2) All cases involving the constitutionality of a treaty,
international or executive agreement, or law, which shall
46
Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
be heard by the Supreme Court en banc, and all other
cases which under the Rules of Court are required to be
heard en banc, including those involving the
constitutionality, application, or operation of presidential
decrees, proclamations, orders, instructions, ordinances,
and other regulations, shall be decided with the
concurrence of a majority of the Members who actually
took part in the deliberations on the issues in the case and
voted thereon.
(3) Cases or matters heard by a division shall be decided or
resolved with the concurrence of a majority of the
Members who actually took part in the deliberations on
the issues in the case and voted thereon, and in no case,
without the concurrence of at least three of such
Members. When the required number is not obtained, the
case shall be decided en banc: Provided, that no doctrine
or principle of law laid down by the court in a decision
rendered en banc or in division may be modified or
reversed except by the court sitting en banc.
REQUIREMENT AS TO DECISIONS
SECTION 13. The conclusions of the Supreme Court in any
case submitted to it for decision en banc or in division shall
be reached in consultation before the case is assigned to a
Member for the writing of the opinion of the Court. A
certification to this effect signed by the Chief Justice shall
be issued and a copy thereof attached to the record of the
case and served upon the parties. Any Member who took
no part, or dissented, or abstained from a decision or
resolution must state the reason therefor. The same
requirements shall be observed by all lower collegiate
courts.
SECTION 14. No decision shall be rendered by any court
without expressing therein clearly and distinctly the facts
and the law on which it is based. No petition for review or
motion for reconsideration of a decision of the court shall
be refused due course or denied without stating the legal
basis therefor.
MANDATORY PERIODS FOR DECIDING CASES
ARTICLE VIII, SECTION 15. (1) All cases or matters filed
after the effectivity of this Constitution must be decided or
resolved within twenty-four months from date of
submission for the Supreme Court, and, unless reduced by
the Supreme Court, twelve months for all lower collegiate
courts, and three months for all other lower courts.
(2) A case or matter shall be deemed submitted for
decision or resolution upon the filing of the last pending,
brief, or memorandum required by the Rules of Court or
by the court itself.
(3) Upon the expiration of the corresponding period, a
certification to this effect signed by the Chief Justice or the
presiding judge shall forthwith be issued and a copy
thereof attached to the record of the case or matter, and
served upon the parties. The certification shall state why a
decision or resolution has not been rendered or issued
within said period.
(4) Despite the expiration of the applicable mandatory
period, the court, without prejudice to such responsibility
as may have been incurred in consequence thereof, shall
decide or resolve the case or matter submitted thereto for
determination, without further delay.
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
SECTION 18 (3). The Supreme Court may review, in an
appropriate proceeding filed by any citizen, the sufficiency
of the factual basis of the proclamation of martial law or
the suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within
thirty days from its filing.
ADMINISTRATIVE POWERS
SUPERVISION OF LOWER COURTS
SECTION 6. The Supreme Court shall have administrative
supervision over all courts and the personnel thereof.
SECTION 11. The Members of the Supreme Court and
judges of lower courts shall hold office during good
behavior until they reached the age of seventy years or
become incapacitated to discharge the duties of their
office. The Supreme Court en banc shall have the power to
discipline judges of lower courts, or order their dismissal
by a vote of a majority of the Members who actually took
part in the deliberations on the issues in the case and
voted thereon.
QUESTION: Does the Ombudsman have power over
judges? NO.
MACEDA v. VASQUEZ
Excerpt: in the absence of any administrative action taken
against him by this Court with regard to his certificates of
service, the investigation being conducted by the
Ombudsman encroaches into the Court's power of
administrative supervision over all courts and its
personnel, in violation of the doctrine of separation of
powers.
Article VIII, section 6 of the 1987 Constitution exclusively
vests in the Supreme Court administrative supervision
over all courts and court personnel, from the Presiding
Justice of the Court of Appeals down to the lowest
municipal trial court clerk. By virtue of this power, it is only
the Supreme Court that can oversee the judges' and court
personnel's compliance with all laws, and take the proper
administrative action against them if they commit any
violation thereof. No other branch of government may
intrude into this power, without running afoul of the
doctrine of separation of powers.
The Ombudsman cannot justify its investigation of
petitioner on the powers granted to it by the Constitution,
for such a justification not only runs counter to the specific
mandate of the Constitution granting supervisory powers
to the Supreme Court over all courts and their personnel,
but likewise undermines the independence of the
judiciary.
Thus, the Ombudsman should first refer the matter of
petitioner's certificates of service to this Court for
determination of whether said certificates reflected the
true status of his pending case load, as the Court has the
necessary records to make such a determination. The
Ombudsman cannot compel this Court, as one of the three
branches of government, to submit its records, or to allow
its personnel to testify on this matter, as suggested by
public respondent Abiera in his affidavit-complaint.
In fine, where a criminal complaint against a Judge or other
court employee arises from their administrative duties, the
Ombudsman must defer action on said complaint and
refer the same to this Court for determination whether
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
said Judge or court employee had acted within the scope
of their administrative duties.
TEMPORARY ASSIGNMENT OF JUDGES
SECTION 5(3). Assign temporarily judges of lower courts to
other stations as public interest may require. Such
temporary assignment shall not exceed six months
without the consent of the judge concerned.
CHANGE OF VENUE
SECTION 5(4). Order a change of venue or place of trial to
avoid a miscarriage of justice.
APPOINTMENT OF OFFICIALS & EMPLOYEES
SECTION 5(6). Appoint all officials and employees of the
Judiciary in accordance with the Civil Service Law.
RULE-MAKING POWERS
SECTION 5(5). Promulgate rules concerning the protection
and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the
practice of law, the Integrated Bar, and legal assistance to
the underprivileged. Such rules shall provide a simplified
and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade,
and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-
judicial bodies shall remain effective unless disapproved
by the Supreme Court.
NOTE: It cannot be changed by Congress unlike under the
previous Constitutions. e.g. exclusive power to admit to the
practice of law, the Integrated Bar.
New tools to protect constitutional rights:
Writ of Amparo - The petition for a writ of amparo is a
remedy available to any person whose right to life, liberty
and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or
of a private individual or entity.
Amparo means protection.
The difference between these two writs is that habeas
corpus is designed to enforce the right to freedom of the
person, whereas amparo is designed to protect those
other fundamental human rights enshrined in the
Constitution but not covered by the writ of habeas corpus.
Writ of Habeas Data - is a constitutional right to protect,
per lawsuit filed in court, to protect the image, privacy,
honour, information self-determination and freedom of
information of a person.
Habeas data literally means ‘to have the data.’
NOTE: These two are supplementary writs against the
inefficacy of the habeas corpus.
GARCIA v. DE VERA
This case involves IBP officers questioning the fitness and
the legality of change in chapter membership of De Vera in
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
the IBP. They said that De Vera is not fit and violated the
domicile rule.
Does the Supreme Court have jurisdiction over the case?
ANSWER: YES.
Section 5, Article VIII of the 1987 Constitution confers on
the Supreme Court the power to promulgate rules
affecting the IBP. Implicit in this constitutional grant is the
power to supervise all the activities of the IBP, including the
election of its officers. The authority of the Supreme Court
over the IBP has its origins in the 1935 Constitution.
Section 13, Art. VIII thereof granted the Supreme Court the
power to promulgate rules concerning the admission to
the practice of law. The above-quoted sections in both the
1987 and 1935 Constitutions and the similarly worded
provision in the intervening 1973 Constitution through all
the years have been the sources of this Court's authority
to supervise individual members of the Bar. The term "Bar"
refers to the "collectivity of all persons whose names
appear in the Roll of Attorneys."
Pursuant to this power of supervision, the Court initiated
the integration of the Philippine Bar by creating on October
5, 1970 the Commission on Bar Integration, which was
tasked to ascertain the advisability of unifying the
Philippine Bar. Not long after, Republic Act No. 6397 was
enacted and it confirmed the power of the Supreme Court
to effect the integration of the Philippine Bar. Finally, on
January 1, 1973, in the per curiam Resolution of this Court
captioned "In the Matter of the Integration of the Bar to the
Philippines," we ordained the Integration of the Philippine
Bar in accordance with Rule 139A, of the Rules of Court,
which we promulgated pursuant to our rule-making power
under the 1935 Constitution. The IBP By-Laws, the
document invoked by respondent De Vera in asserting IBP
independence from the Supreme Court, ironically
recognizes the full range of the power of supervision of the
Supreme Court over the IBP. For one, Section 77 of the IBP
By-Laws vests on the Court the power to amend, modify or
repeal the IBP By-Laws, either motu propio or upon
recommendation of the Board of Governors of the IBP.
Also in Section 15, the Court is authorized to send
observers in IBP elections, whether local or national.
Section 44 empowers the Court to have the final decision
on the removal of the members of the Board of Governors.
PROHIBITION AGAINST QUASI-JUDICIAL OR
ADMINISTRATIVE WORKS
SECTION 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.
REPORT ON JUDICIARY
SECTION 16. The Supreme Court shall, within thirty days
from the opening ofeach regular session of the Congress,
submit to the President and the Congress an annual report
on the operations and activities of the Judiciary.
THE LOWER COURTS
QUALIFICATIONS & APPOINTMENTS
SECTION 7. (1) No person shall be appointed Member of
the Supreme Court or any lower collegiate court unless he
is a natural-born citizen of the Philippines. A Member of
the Supreme Court must be at least forty years of age, and
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Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
must have been for fifteen years or more a judge of a lower
court or engaged in the practice of law in the Philippines.
(2) The Congress shall prescribe the qualifications of
judges of lower courts, but no person may be appointed
judge thereof unless he is a citizen of the Philippines and a
member of the Philippine Bar.
SECTION 8(5) The Council shall have the principal function
of recommending appointees to the Judiciary. It may
exercise such other functions and duties as the Supreme
Court may assign to it.
SECTION 9. The Members of the Supreme Court and
judges of lower courts shall be appointed by the President
from a list of at least three nominees prepared by the
Judicial and Bar Council for every vacancy. Such
appointments need no confirmation. For the lower courts,
the President shall issue the appointments within ninety
days from the submission of the list.
SALARY
SECTION 10. The salary of the Chief Justice and of the
Associate Justices of the Supreme Court, and of judges of
lower courts shall be fixed by law. During their continuance
in office, their salary shall not be decreased.
CONGRESSIONAL POWER TO REORGANIZE, REMOVAL
& SECURITY OF TENURE
SECTION 11. The Members of the Supreme Court and
judges of lower courts shall hold office during good
behavior until they reached the age of seventy years or
become incapacitated to discharge the duties of their
office. The Supreme Court en banc shall have the power to
discipline judges of lower courts, or order their dismissal
by a vote of a majority of the Members who actually took
part in the deliberations on the issues in the case and
voted thereon.
JURISDICTION
SECTION 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be
established by law.
Judicial power includes 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.
PREPARATION OF DECISIONS
SECTION 14. No decision shall be rendered by any court
without expressing therein clearly and distinctly the facts
and the law on which it is based. No petition for review or
motion for reconsideration of a decision of the court shall
be refused due course or denied without stating the legal
basis therefor.
MANDATORY PERIOD OF DECIDING
SECTION 15. (1) All cases or matters filed after the
effectivity of this Constitution must be decided or resolved
within twenty-four months from date of submission for the
Supreme Court, and, unless reduced by the Supreme
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
Court, twelve months for all lower collegiate courts, and
three months for all other lower courts.
(2) A case or matter shall be deemed submitted for
decision or resolution upon the filing of the last pending,
brief, or memorandum required by the Rules of Court or
by the court itself.
(3) Upon the expiration of the corresponding period, a
certification to this effect signed by the Chief Justice or the
presiding judge shall forthwith be issued and a copy
thereof attached to the record of the case or matter, and
served upon the parties. The certification shall state why a
decision or resolution has not been rendered or issued
within said period.
(4) Despite the expiration of the applicable mandatory
period, the court, without prejudice to such responsibility
as may have been incurred in consequence thereof, shall
decide or resolve the case or matter submitted thereto for
determination, without further delay.
THE JUDICIAL AND BAR COUNCIL
RATIONALE & COMPOSITION
SECTION 8. (1) A Judicial and Bar Council is hereby created
under the supervision of the Supreme Court composed of
the Chief Justice as ex officio Chairman, the Secretary of
Justice, and a representative of the Congress as ex officio
Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court,
and a representative of the private sector.
(2) The regular Members of the Council shall be appointed
by the President for a term of four years with the consent
of the Commission on Appointments. Of the Members first
appointed, the representative of the Integrated Bar shall
serve for four years, the professor of law for three years,
the retired Justice for two years, and the representative of
the private sector for one year.
(3) The Clerk of the Supreme Court shall be the Secretary
ex officio of the Council and shall keep a record of its
proceedings.
(4) The regular Members of the Council shall receive such
emoluments as may be determined by the Supreme Court.
The Supreme Court shall provide in its annual budget the
appropriations for the Council.
(5) The Council shall have the principal function of
recommending appointees to the Judiciary. It may exercise
such other functions and duties as the Supreme Court may
assign to it.
QUESTION: How should the Senate and the House of
Representatives be represented in the Council? ONLY 1
REPRESENTATIVE FOR CONGRESS, NOT EACH CHAMBER.
CHAVEZ v. JBC
Does the first paragraph of Section 8, Article VIII of the
1987 Constitution allow more than one (1) member of
Congress to sit in the JBC?
ANSWER: YES.
As petitioner correctly posits, the use of the singular letter
"a" preceding "representative of Congress" is unequivocal
and leaves no room for any other construction. It is
indicative of what the members of the Constitutional
49
Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I
Commission had in mind, that is, Congress may designate
only one (1) representative to the JBC. Had it been the
intention that more than one (1) representative from the
legislature would sit in the JBC, the Framers could have, in
no uncertain terms, so provided.
At this juncture, it is worthy to note that the seven-member
composition of the JBC serves a practical purpose, that is,
to provide a solution should there be a stalemate in voting.
This underlying reason leads the Court to conclude that a
single vote may not be divided into half (1/2), between two
representatives of Congress, or among any of the sitting
members of the JBC for that matter. This unsanctioned
practice can possibly cause disorder and eventually
muddle the JBC's voting process, especially in the event a
tie is reached. The aforesaid purpose would then be
rendered illusory, defeating the precise mechanism which
the Constitution itself created. While it would be
unreasonable to expect that the Framers provide for every
possible scenario, it is sensible to presume that they knew
that an odd composition is the best means to break a
voting deadlock.
It is clear, therefore, that the Constitution mandates that
the JBC be composed of seven (7) members only. Thus, any
inclusion of another member, whether with one whole
vote or half (1/2) of it, goes against that mandate. Section
8 (1), Article VIII of the Constitution, providing Congress
with an equal voice with other members of the JBC in
recommending appointees to the Judiciary is explicit. Any
circumvention of the constitutional mandate should not be
countenanced for the Constitution is the supreme law of
the land.
QUESTION: Can the Supreme Court review the action of
the JBC? YES.
JARDALEZA v. SERENO
Section 8, Article VIII of the 1987 Constitution provides for
the creation of the JBC. The Court was given supervisory
authority over it. Section 8 reads:
Section 8. A Judicial and Bar Council is hereby created
under the supervision of the Supreme Court composed of
the Chief Justice as ex officio Chairman, the Secretary of
Justice, and a representative of the Congress as ex officio
Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court,
and a representative of the private sector.
As a meaningful guidepost, jurisprudence provides the
definition and scope of supervision. It is the power of
oversight, or the authority to see that subordinate officers
perform their duties. It ensures that the laws and the rules
governing the conduct of a government entity are
observed and complied with. Supervising officials see to it
that rules are followed, but they themselves do not lay
down such rules, nor do they have the discretion to modify
or replace them. If the rules are not observed, they may
order the work done or redone, but only to conform to
such rules. They may not prescribe their own manner of
execution of the act. They have no discretion on this matter
except to see to it that the rules are followed.
Based on this, the supervisory authority of the Court over
the JBC covers the overseeing of compliance with its rules.
In this case, Jardeleza's principal allegations in his petition
merit the exercise of this supervisory authority.
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW
Outline from Atty. G. D. Malig-on
The Court is compelled to rule that Jardeleza should have
been included in the shortlist submitted to the President
for the vacated position of Associate Justice Abad. This
consequence arose not from the unconstitutionality of
Section 2, Rule 10 of JBC-009, per se, but from the violation
by the JBC of its own rules of procedure and the basic
tenets of due process. By no means does the Court intend
to strike down the "unanimity rule" as it reflects the JBC's
policy and, therefore, wisdom in its selection of nominees.
Even so, the Court refuses to turn a blind eye on the
palpable defects in its implementation and the ensuing
treatment that Jardeleza received before the Council. True,
Jardeleza has no vested right to a nomination, but this does
not prescind from the fact that the JBC failed to observe
the minimum requirements of due process.
QUESTION: Can the President appoint a judge or justice
from a list of nominees in another grouping not
recommended in that particular court? YES.
AGUINALDO v. AQUINO
[There were 6 vacancies in the Sandiganbayan, and the JBC
clustered people in each vacancy – in effect making only
one person nominated to a specific posts and not to the
entire 6 vacancies]
RULING:
The clustering of nominees for the six vacancies in the
Sandiganbayan by the JBC impaired the President's power
to appoint members of the Judiciary and to determine the
seniority of the newly-appointed Sandiganbayan
Associate Justices.
Noteworthy is the fact that the Court unanimously voted
that in this case of six simultaneous vacancies for
Sandiganbayan Associate Justice, the JBC acted beyond its
constitutional mandate in clustering the nominees into six
separate short lists and President Aquino did not commit
grave abuse of discretion in disregarding the said
clustering.
The JBC invokes its independence, discretion, and wisdom,
and maintains that it deemed it wiser and more in accord
with Article VIII, Section 9 of the 1987 Constitution to
cluster the nominees for the six simultaneous vacancies
for Sandiganbayan Associate Justice into six separate short
lists. The independence and discretion of the JBC, however,
is not without limits. It cannot impair the President's power
to appoint members of the Judiciary and his statutory
power to determine the seniority of the newly-appointed
Sandiganbayan Associate Justices. The Court cannot
sustain the strained interpretation of Article VIII, Section 9
of the 1987 Constitution espoused by the JBC, which
ultimately curtailed the President's appointing power.
In its Decision dated November 29, 2016, the Court ruled
that the clustering impinged upon the President's
appointing power in the following ways: The President's
option for every vacancy was limited to the five to seven
nominees in each cluster. Once the President had
appointed a nominee from one cluster, then he was
proscribed from considering the other nominees in the
same cluster for the other vacancies. All the nominees
applied for and were found to be qualified for
appointment to any of the vacant Associate Justice
positions in the Sandiganbayan, but the JBC failed to
explain why one nominee should be considered for
appointment to the position assigned to one specific
cluster only. Correspondingly, the nominees' chance for
50
Datu Esma Mikee.P. Maruhom CONSTITUTIONAL LAW I Outline from Atty. G. D. Malig-on

appointment was restricted to the consideration of the one
cluster in which they were included, even though they
applied and were found to be qualified for all the
vacancies. Moreover, by designating the numerical order
of the vacancies, the JBC established the seniority or order
of preference of the new Sandiganbayan Associate
Justices, a power which the law (Section 1, paragraph 3 of
Presidential Decree No. 1606), rules (Rule II, Section 1 (b) of
the Revised Internal Rules of the Sandiganbayan), and
jurisprudence (Re: Seniority among the Four Most Recent
Appointments to the Position of Associate Justices of the
Court of Appeals), vest exclusively upon the President.
cogent reason in its Motion for Reconsideration-in-
Intervention for assigning a nominee to a particular
cluster/vacancy. The Court highlights that without
objective criteria, standards, or guidelines in determining
which nominees are to be included in which cluster, the
clustering of nominees for specific vacant posts seems to
be at the very least, totally arbitrary. The lack of such
criteria, standards, or guidelines may open the clustering
to manipulation to favor or prejudice a qualified nominee.

Clustering can be used as a device to favor or prejudice a

qualified nominee.

The JBC avers that it has no duty to increase the chances of

appointment of every candidate it has adjudged to have
met the minimum qualifications for a judicial post. The
Court does not impose upon the JBC such duty, it only
requires that the JBC gives all qualified nominees fair and
equal opportunity to be appointed. The clustering by the
JBC of nominees for simultaneous or closely successive
vacancies in collegiate courts can actually be a device to
favor or prejudice a particular nominee. A favored
nominee can be included in a cluster with no other strong
contender to ensure his/her appointment; or conversely, a
nominee can be placed in a cluster with many strong
contenders to minimize his/her chances of appointment.

It would be safe to say that all the aforementioned six

nominees were strong contenders. If all six nominees were
placed in the same cluster, then only one of them would
have been actually appointed as Sandiganbayan Associate
Justice and the other five could no longer be considered for
the still unfilled vacancies.

There are no objective criteria, standards, or guidelines

for the clustering of nominees by the JBC.

The problem is that the JBC has so far failed to present a

legal, objective, and rational basis for determining which
nominee shall be included in a cluster. Simply saying that
it is the result of the deliberation and voting by the JBC for
every vacancy is unsatisfactory.

It is also interesting to note that all the nominees were

listed only once in just one cluster, and all the nominees
subsequently appointed as Sandiganbayan Associate
Justice were distributed among the different clusters,
except only for respondents Econg and Musngi. Was this
by chance or was there already an agreement among the
Chief Justice and the regular JBC Members to limit the
nomination of a candidate to a specific cluster for one
specific vacancy, thus, excluding the same candidate from
again being nominated in a different cluster for another
vacancy?

The Court emphasizes that the requirements and

qualifications, as well as the powers, duties, and
responsibilities are the same for all vacant posts in a
collegiate court, such as the Sandiganbayan; and if an
individual is found to be qualified for one vacancy, then
he/she is found to be qualified for all the other vacancies
— there are no distinctions among the vacant posts. It is
improbable that the nominees expressed their desire to be
appointed to only a specific vacant position and not the
other vacant positions in the same collegiate court, when
neither the Constitution nor the law provides a specific
designation or distinctive description for each vacant
position in the collegiate court. The JBC did not cite any

51
UNIVERSITY OF SAN JOSE–RECOLETOS
SCHOOL OF LAW