Gaminde v. Commission on Audit G.R. No.

140335 (December 13, 2000)

FACTS: On June 11, 1993, the President appointed petitioner as Commissioner of the CSC for a term expiring on February 2, 1999. She took her oath of office on June 22, 1993 and was confirmed by the Commission on Appointments on September 7, 1993. The Commission on Audit issued a decision that her term expired on Feb. 2, 1999. HELD: The constitution adopted a rotational system for the appointment of the Chairman and Commissioners of the Constitutional Commissions. The operation of the rotational plan requires that the terms of the first Commissioners should start on a common date and any vacancy before the expiration of the term should be filled only for the unexpired balance of the term. Consequently, the term of the first Chairman and Commissioners of the Constitutional Commissions must start on a common date, irrespective of variations in the dates of appointments and qualifications of the appointees in order that the expiration of the first terms should lead to the regular recurrence of the two-year interval between the expiration of the terms. February 2, 1987 is the proper starting point of the terms of office of the first appointees to the Constitutional Commission, as the beginning of the term of office is understood to coincide with the effectivity of the Constitution upon its ratification.

G.R. No. 108886 May 5, 1995 AQUILES U. REYES, petitioner, vs. REGIONAL TRIAL COURT OF ORIENTAL MINDORO, BRANCH XXXIX, COMMISSION ON ELECTIONS, ADOLFO G. COMIA, AND THE SANGGUNIANG BAYAN OF NAUJAN, ORIENTAL MINDORO, respondents.
MENDOZA, J.: This is a petition for certiorari, prohibition and mandamus which seeks (1) the annulment of the decision, dated June 23, 1992, of the Regional Trial Court (Br. 39) of Calapan, Oriental Mindoro, annuling the proclamation of petitioner as the eighth member of the Sangguniang Bayan of Naujan, Oriental Mindoro; (2) the annulment of the decision of the Commission on Elections (COMELEC), dated January 22, 1993,
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dismissing petitioner's appeal from the trial court's decision; (3) the issuance of a writ of mandamus to compel respondent Sangguniang Bayan to recognize petitioner as the duly elected member thereof; and (4) the issuance of a writ of prohibition against respondent Adolfo G. Comia, enjoining him from continuing in office as member of the Sangguniang Bayan of Naujan, Oriental Mindoro. The facts are as follows: Petitioner Aquiles Reyes and private respondent Adolfo Comia were candidates for the position of member of the Sangguniang Bayan of Naujan, Oriental Mindoro in the May 11, 1992 synchronized elections. On May 13, 1992, during the proceedings of the Municipal Board of Canvassers, private respondent moved for the exclusion of certain election returns, on the ground of serious irregularity in counting in favor of petitioner Aquiles Reyes votes cast for "Reyes" only, considering that there was another candidate (Epitacio Reyes) bearing the same surname. However, without resolving his petition, the Municipal Board of Canvassers proclaimed on the same day petitioner as the eighth winning candidate with 7,205 votes. On May 25, 1992 petitioner took his oath of office. On June 1, 1992, private respondent filed an election protest before the trial court. He alleged that "a vital mistake [had been] committed by the Board of Canvassers in the mathematical computation of the total number of votes garnered by petitioner [now private respondent];" Private respondent alleged: 5. That in the said Statement of Votes by City/Municipality or Precinct or C.E. Form No. 20-A, it is reflected therein that the total number of votes garnered by the petitioner is only 858 votes, when in fact and in truth, after reviewing and correcting the computation of the actual votes garnered by the petitioner the total votes to be counted in his favor is 915 votes; 6. That the Municipal Board of Canvassers and the Election Registrar of Naujan, Oriental Mindoro, after having been informed of the said discrepancies, manifested in the presence of Municipal Trial Court Judge TOMAS C. LEYNES, that it was an honest mistake committed in the computation and the addition of the total number of votes appearing in C.E. Form No. 20-A.; 7. That after correcting the total number of votes garnered by the petitioner, it appears now that the total votes cast in his favor in all precincts is 7,233 votes which is more than 28 votes over the total of 7,205 votes garnered by respondent Aquiles U. Reyes, who was proclaimed as Elected Sangguniang Bayan Member of Naujan, Oriental Mindoro occupying the 8th position.

On June 4, 1992, petitioner filed a motion to dismiss private respondent's petition on the ground that it was filed beyond the reglementary period of ten days from proclamation. On June 15, 1992, however, the trial court denied his motion. On the other hand, the Municipal Board of Canvassers file its answer in which it admitted that it had made a mistake in crediting private respondent with only 858 votes when he was entitled to 915 votes in the Statement of Votes (C.E. Form No. 20-A). On June 23, 1992, the trial court rendered its decision annuling the proclamation of petitioner and declaring private respondent as the eighth winning candidate for the position of councilor of the Sangguniang Bayan of Naujan, Oriental Mindoro. A copy of the decision was served on petitioner on June 26, 1992. Petitioner filed a notice of appeal to the COMELEC. In addition, he filed a petition for mandamus and prohibition in the Court of Appeals, to compel the Sangguniang Bayan to recognize him as the duly proclaimed member of that body and prohibit it from further recognizing private respondent. On August 26, 1992, the Court of Appeals dismissed the petition because of petitioner's pending appeal in the COMELEC. The appellate court cited Supreme Court Circular 2891 which prohibits the filing of multiple petitions involving the same issues. Petitioner filed a motion for reconsideration but his motion was denied. The appellate court's decision became final and executory on December 10, 1992. Meanwhile, the Sangguniang Bayan met in inaugural session on July 3, 1992, during which private respondent was recognized as the eighth member of the body and thereafter allowed to assume office and discharge its functions. On July 13, 1992, it informed petitioner that it had recognized the private respondent as its member. On the other hand, the COMELEC's First Division dismissed on January 22, 1993 petitioner's appeal on the ground that he had failed to pay the appeal fee within the prescribed period. Petitioner then brought the present action. Petitioner contends that both the trial court and the COMELEC's First Division committed a grave abuse of discretion, the first, by assuming jurisdiction over the election contest filed by private respondent despite the fact that the case was filed more than ten days after petitioner's proclamation, and the second i.e., the COMELEC's First Division, by dismissing petitioner's appeal from the decision of the trial court for late payment of the appeal fee. We find the petition to be without merit. First. The Solicitor General, in behalf of the COMELEC, raises a fundamental question. He contends that the filing of the present petition, without petitioner first filing a motion for reconsideration before the COMELEC en banc, violates Art. IX, A, 7 of the
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Constitution 1 because under this provision only decisions of the COMELEC en bancmay be brought to the Supreme Court on certiorari. This is correct. It is now settled that in providing that the decisions, orders and rulings of COMELEC "may be brought to the Supreme Court on certiorari" the Constitution in its Art. IX, A, 7 means the special civil action ofcertiorari under Rule 65, 1. 2 Since a basic condition for bringing such action is that the petitioner first file a motion for reconsideration, 3 it follows that petitioner's failure to file a motion for reconsideration of the decision of the First Division of the COMELEC is fatal to his present action. Petitioner argues that this requirement may be dispensed with because the only question raised in his petition is a question of law. This is not correct. The questions raised by petitioner involve the interpretation of constitutional and statutory provisions in light of the facts of this case. The questions tendered are, therefore, not pure questions of law. Moreover, that a motion for reconsideration before the COMELEC en banc is required for the filing of a petition forcertiorari is clear from the following provisions of the Constitution: Art. IX, C, 2. The Commission on Elections shall exercise the following powers and functions: xxx xxx xxx (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. Id. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.
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Conformably to these provisions of the Constitution all election cases, including preproclamation controversies, must be decided by the COMELEC in division. Should a party be dissatisfied with the decision, he may file a motion for reconsideration before the COMELEC en banc. It is, therefore, the decision, order or ruling of the COMELEC en banc that, in accordance with Art. IX, A, 7, "may be brought to the Supreme Court on certiorari." 4 Second Even on the merits we think the First Division of the COMELEC properly dismissed petitioner's appeal from the decision of the trial court because of his failure to pay the appeal fee within the time for perfecting an appeal. Rule 22, 9 of the COMELEC Rules of Procedure expressly provides: Sec. 9. Grounds for dismissal of appeal. The appeal may be dismissed upon motion of either party or at the instance of the Commission on any of the following grounds: (a) Failure of the appellant to pay the appeal fee; . . . In accordance with 2(b) of COMELEC Resolution No. 2108-A, the appeal fee must be paid within the period to perfect the appeal. Thus: Sec. 2. When docket and other fees shall be paid. xxx xxx xxx (b) The appeal fees prescribed in section 3 of Rule 22 of the COMELEC Rules of Procedures shall be paid within the period to perfect the appeal. . .. The period to perfect the appeal is understood to be the period within which to file the notice of appeal. On the other hand, Rule 22, 3 of the Rules of Procedure of the COMELEC provides: Notice of Appeal. Within five (5) days after promulgation of the decision of the court, the aggrieved party may file with said court a notice of appeal, and serve a copy thereof upon the attorney of record of the adverse party. This resolution, which was promulgated on July 14, 1989, superseded COMELEC Resolution No. 1456 5 on which petitioner relies for his contention that the fee is to be paid only upon the filing of the appeal brief. The records show that petitioner received a copy of the decision of the trial court on June 26, 1992. However, he paid the appeal fee of P1,020.00 only on August 6, 1992. In other words, petitioner allowed forty (40) days to lapse when the appeal fee should have been paid within five (5) days after promulgation of the trial court's decision.
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Petitioner claims that he acted on advice, presumably of COMELEC officials, to wait until the records of the appealed case was received from the Regional Trial Court, so that it could be docketed and given a case number before paying the appeal fee. But there is nothing in the record to show this or that petitioner offered to pay the appeal fee within the appeal period. He has not identified the person who allegedly gave him the erroneous advice. Petitioner also prays that a re-canvass be conducted in all the electoral precincts of Naujan, Oriental Mindoro in view of the joint-affidavit executed by the members of the Municipal Board of Canvassers on October 12, 1993 in which they stated: That the respondent Board, per verification from the Comelec records of Naujan, after receipt of the sworn letter-complaint of Mr. Aquiles U. Reyes, aside from the matters already alluded to above found that the "40" votes he garnered in Precinct No. 37, and the "31" votes in Precinct 41-A that should have been credited, transcribed or recorded in complainant's favor in the Statement of Votes (C.E. Form No. 22-A) on the basis of the Election Returns (C.E. Form No. 9), thru honest mistake was erroneously and inadvertently transcribed or recorded in good faith and without malice due to mental and physical fatigue and exhaustion by the Board of Canvassers and its staff in favor of candidate Jeremias Nacorda of Sangguniang Bayan Member of the Municipality of Naujan in the Statement of Votes (C.E. Form No. 22-A) of said precincts, and what should have been credited and reflected as candidate Nacorda's vote in the Statement of Votes (C.E. Form No. 22-A) on the basis of the Election Returns (C.E. Form No. 9) are "9" votes in Precinct 37 not "40" votes, and "8" votes in Precinct No. 41-A and not "31" votes, certification is hereto attached issued by the Election Officer of Naujan that candidate Nacorda per Comelec records shown in the Election Returns (C.E. Form No. 9) only garnered "9" votes in Precinct 37, and "8" votes in Precinct 41-A and marked as Annex "1" and made as integral part of his joint-affidavit. This issue was raised in the Addendum to Appellant's Brief 6 in the COMELEC Case EAC No. 9-92. With the dismissal of that case by the COMELEC's First Division, there is no basis for petitioner's present contention. Third. Petitioner also assails the decision of the trial court as having been rendered without jurisdiction. He contends that the election protest of private respondent was filed more than ten days after his (petitioner's) proclamation. Petitioner is, however, estopped to raise this question now. He did not only appeal from the decision of the trial court to the COMELEC raising this question, but he also filed a petition for mandamus and prohibition in the Court of Appeals. Having decided on this course of action, he should not be allowed to file the present petition just because he lost in those cases.

WHEREFORE, the petition is DISMISSED for lack of merit. SO ORDERED.

G.R. No. 157013, July 10 2003

FACTS: Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal, a member of the Philippine Bar, seeking a declaration that certain provisions of Republic Act No. 9189 (The Overseas Absentee Voting Act of 2003) suffer from constitutional infirmity. Claiming that he has actual and material legal interest in the subject matter of this case in seeing to it that public funds are properly and lawfully used and appropriated, petitioner filed the instant petition as a taxpayer and as a lawyer. ISSUES: (1) Whether or not Section 5(d) of Republic Act No. 9189 violates the residency requirement in Section 1 of Article V of the Constitution. (2) Whether or not Section 18.5 of the same law violates the constitutional mandate under Section 4, Article VII of the Constitution that the winning candidates for President and the Vice-President shall be proclaimed as winners by Congress. (3) Whether or not Congress may, through the Joint Congressional Oversight Committee created in Section 25 of Rep. Act No. 9189, exercise the power to review, revise, amend, and approve the Implementing Rules and Regulations that the Commission on Elections, promulgate without violating the independence of the COMELEC under Section 1, Article IX-A of the Constitution. HELD: (1) No. Section 5 of RA No. 9189 enumerates those who are disqualified voting under this Act. It disqualifies an immigrant or a permanent resident who is recognized as such in the host country. However, an exception is provided i.e. unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than 3 years from approval of registration. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia.
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Petitioner claims that this is violative of the residency requirement in Section 1 Article V of the Constitution which requires the voter must be a resident in the Philippines for at least one yr, and a resident in the place where he proposes to vote for at least 6 months immediately preceding an election. However, OSG held that ruling in said case does not hold water at present, and that the Court may have to discard that particular ruling. Panacea of the controversy: Affidavit for without it, the presumption of abandonment of Phil domicile shall remain. The qualified Filipino abroad who executed an affidavit is deemed to have retained his domicile in the Philippines and presumed not to have lost his domicile by his physical absence from this country. Section 5 of RA No. 9189 does not only require the promise to resume actual physical permanent residence in the Philippines not later than 3 years after approval of registration but it also requires the Filipino abroad, WON he is a green card holder, a temporary visitor or even on business trip, must declare that he/she has not applied for citizenship in another country. Thus, he/she must return to the Philippines otherwise consequences will be met according to RA No. 9189. Although there is a possibility that the Filipino will not return after he has exercised his right to vote, the Court is not in a position to rule on the wisdom of the law or to repeal or modify it if such law is found to be impractical. However, it can be said that the Congress itself was conscious of this probability and provided for deterrence which is that the Filipino who fails to return as promised stands to lose his right of suffrage. Accordingly, the votes he cast shall not be invalidated because he was qualified to vote on the date of the elections. Expressum facit cessare tacitum: where a law sets down plainly its whole meaning, the Court is prevented from making it mean whatthe Court pleases. In fine, considering that underlying intent of the Constitution, as is evident in its statutory construction and intent of the framers, which is to grant Filipino immigrants and permanent residents abroad the unquestionable right to exercise the right of suffrage (Section 1 Article V) the Court finds that Section 5 of RA No. 9189 is not constitutionally defective. (2) Yes. Congress should not have allowed COMELEC to usurp a power that constitutionally belongs to it. The canvassing of the votes and the proclamation of the winning candidates for President and Vice President for the entire nation must remain in the hands of Congress as its duty and power under Section 4 of Article VII of the
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Constitution. COMELEC has the authority to proclaim the winning candidates only for Senators and Party-list Reps. (3) No. By vesting itself with the powers to approve, review, amend and revise the Implementing Rules & Regulations for RA No. 9189, Congress went beyond the scope of its constitutional authority. Congress trampled upon the constitutional mandate of independence of the COMELEC. Under such a situation, the Court is left with no option but to withdraw from its usual silence in declaring a provision of law unconstitutional

SANTIAGO V COMELEC
G.R. No. 127325, March 19, 1997

Constitutional provision on People's Initiative is not self-executory Principle of Non-delegation of Powers, Exceptions

FACTS: Petitioners in this case sought to amend certain provisions of the Constitution, specifically lifting the limit of terms of elective officials, through peoples initiative. Santiago et al. opposed on the ground that the constitutional provision on peoples initiative to amend the Constitution can only be implemented by law to be passed by Congress. There is no law passed yet and RA 6735, which provides for initiative on statues and local legislation but not initiative on the Constitution. ISSUE:

Whether or not RA 6735 adequately provided for peoples initiative on Constitution

RULING:
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Constitutional provision on peoples initiative is not self-executory Sec. 2 of Art. XVII of the Constitution...is not self-executory. xxx Bluntly stated, the right of the people to directly propose amendments to the Constitution through the system of initiative would remain entombed in the cold niche of the Constitution until Congress provides for its implementation. Stated otherwise, while the Constitution has recognized or granted that right, the people cannot exercise it if Congress, for whatever reason, does not provide for its implementation. Has Congress provided for the implementation of the exercise of this right? There is, of course, no other better way for Congress to implement the exercise of the right than through the passage of a statute or legislative act. xxx We agree that RA 6735 was, as its history reveals, intended to cover initiative to propose amendments to the Constitution. But is RA 6735 a full compliance with the power and duty of Congress to provide for the implementation of the exercise of the right? A careful scrutiny of the Act yields a negative answer.

First. Contrary to the assertion of public respondents COMELEC, Sec. 2 of the Act does
not suggest an initiative on amendments to the Constitution. The said section reads: SECTION 2. Statement and Policy. The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. The inclusion of the word Constitution therein was a delayed afterthought. That word is neither germane nor relevant to said section, which exclusively relates to initiative and referendum on national laws and local laws, ordinances, and resolutions. That section is silent as to amendments on the Constitution. As pointed out earlier, initiative on the Constitution is confined only to proposals to AMEND. The people are not accorded the power to directly propose, enact, approve, or reject, in whole or in part, the Constitution through the system of initiative. They can only do so with respect to laws, ordinances, or resolutions. xxx
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Second. It is true that Sec. 3 (Definition of Terms) of the Act defines initiative

on amendments to the Constitution and mentions it as one of the three systems of initiative, and that Sec. 5 (Requirements) restates the constitutional requirements as to the percentage of the registered voters who must submit the proposal. But unlike in the case of the other systems of initiative, the Act does not provide for the contents of a petition for initiative on the Constitution. Sec. 5, paragraph (c) requires, among other things, statement of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be. It does not include, as among the contents of the petition, the provisions of the Constitution sought to be amended, in the case of initiative on the Constitution. xxx

Third. While the Act provides subtitles for National Initiative and Referendum

(Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and referendum on national and local laws. If Congress intended RA 6735 to fully provide for the implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle therefor, considering that in the order of things, the primacy of interest, or hierarchy of values, the right of the people to directly propose amendments to the Constitution is far more important than the initiative on national and local laws. xxx The foregoing brings us to the conclusion that RA 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be cured by empowering the COMELEC to promulgate such rules and regulations as may be necessary to carry out the purposes of the Act. Principle of non-delegation of power The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas delegata non delegari potest. The recognized exceptions to the rule are as follows:

1. 2. 3. 4.

Delegation Delegation Delegation Delegation

of tariff powers to the President under Sec. 28(2), Art. VI; of emergency powers to the President under Sec. 23(2), Art. VI; to the people at large; to local governments; and
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5. Delegation to administrative bodies.

Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules and regulations is a form of delegation of legislative authority under no. 5 above. However, in every case of permissible delegation, there must be a showing that the delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard the limits of which are sufficiently determinate and determinable to which the delegate must conform in the performance of his functions. A sufficient standard is one which defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. Insofar as initiative to propose amendments to the Constitution is concerned, RA 6735 miserably failed to satisfy both requirements in subordinate legislation. The delegation of the power to the COMELEC is then invalid.

Lambino Vs. Comelec G.R. No. 174153

Oct. 25 2006

Facts: Petitioners (Lambino group) commenced gathering signatures for an initiative petition to change the 1987 constitution, they filed a petition with the COMELEC to hold a plebiscite that will ratify their initiative petition under RA 6735. Lambino group alleged that the petition had the support of 6M individuals fulfilling what was provided by art 17 of the constitution. Their petition changes the 1987 constitution by modifying sections 17 of Art 6 and sections 1-4 of Art 7 and by adding Art 18. the proposed changes will shift the present bicameral- presidential form of government to unicameral- parliamentary. COMELEC denied the petition due to lack of enabling law governing initiative petitions and invoked the Santiago Vs. Comelec ruling that RA 6735 is inadequate to implement the initiative petitions.

Issue:
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Whether or Not the Lambino Groups initiative petition complies with Section 2, Article XVII of the Constitution on amendments to the Constitution through a peoples initiative.

Whether or Not this Court should revisit its ruling in Santiago declaring RA 6735 incomplete, inadequate or wanting in essential terms and conditions to implement the initiative clause on proposals to amend the Constitution.

Whether or Not the COMELEC committed grave abuse of discretion in denying due course to the Lambino Groups petition.

Held: According to the SC the Lambino group failed to comply with the basic requirements for conducting a peoples initiative. The Court held that the COMELEC did not grave abuse of discretion on dismissing the Lambino petition.

1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on Direct Proposal by the People

The petitioners failed to show the court that the initiative signer must be informed at the time of the signing of the nature and effect, failure to do so is deceptive and misleading which renders the initiative void.

2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision through Initiatives

The framers of the constitution intended a clear distinction between amendment and revision, it is intended that the third mode of stated in sec 2 art 17 of the constitution may propose only amendments to the constitution. Merging of the legislative and the executive is a radical change, therefore a constitutes a revision.

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3. A Revisit of Santiago v. COMELEC is Not Necessary

Even assuming that RA 6735 is valid, it will not change the result because the present petition violated Sec 2 Art 17 to be a valid initiative, must first comply with the constitution before complying with RA 6735

Petition is dismissed.

Gonzales vs COMELEC G.R. No. L-28196 21 SCRA 774

November 9, 1967

Petitioner: Ramon A. Gonzalez / Philippine Constitution Association (PHILCONSA) Respondent: Commission on Elections (COMELEC)

FACTS: This case is composed of consolidated cases filed separately by Petitioner Gonzalez and PHILCONSA assailing for the declaration of nullity of RA. No. 4913 and R.B.H. No. 1 and 3. On March 16, 1967, the Senate and the House of Representatives passed the following resolutions (Resolution of Both Houses/R.B.H.):

1. R.B.H No. 1: Proposes that Sec 5, Art VI of Constitution be amended so as to increase the membership of the House of Representatives from a maximum of 120 in accordance with the present Constitution, to a maximum of 180, to be apportioned among several provinces and that each province shall have at least one (1) member.

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2. R.B.H. No. 2: Calls for a convention to propose amendments to the Constitution, which will be composed of two (2) elective delegates from each representative district, to be "elected in the general elections to be held on the second Tuesday of November 1971.

3. R.B.H. No. 3: Proposes that Sec 16, Art VI of the Constitution be amended so as to authorize Senators and Members of the House of Representatives to become delegates to the aforementioned constitutional convention, without the need to forfeit their respective seats in Congress.

Subsequently, Congress passed a bill, which became RA No. 4913, providing that the amendments to the Constitution proposed in the aforementioned Resolutions No. 1 and 3 be submitted, for approval by the people at the general elections on November 14, 1967. This act fixes the date and manner of elevtion for the proposed amendments to be voted upon by the people, and appropriates funds for said election.

Petitioners assail the validity/constitutionality of RA No. 4913 and for the prohibition with preliminary injunction to restrain COMELEC from implementing or complying with the said law. PHILCONSA also assails R.B.H No. 1 and 3.

ISSUE: 1.) Whether or not RA No. 4913 is unconstitutional. 2.) Whether or not the issue involves a political question.

HELD:

1.) Pursuant to Article XV of the 1935 Constitution, SC held that there is nothing in this provision that states that the election referred to is special, different from the general election. The Congress deemed it best to submit the amendments for ratification in accordance with the provisions of the Constitution. It does not negate its authority to submit proposed amendments for ratification in general elections. Petition is therefore DENIED.

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2.) SC also noted that the issue is a political question because it attacks the wisdom of the action taken by Congress and not the authority to take it. A political question is not subject to review by the Court.

Constitutional Law 1: CH 2: Constitution; Political vs Justiciable Question (Textbook: Cruz, Professor: Atty. Usita)

TOLENTINO VS. COMELEC G.R. No. L-34150, October 16 1971, 41 SCRA 702
FACTS: The 1971 Constitutional Convention came into being by virtue of two resolutions of the Congress approved in its capacity as a constituent assembly convened for the purpose of calling a convention to propose amendments to the Constitution. After election of delegates held on November 10, 1970, the Convention held its inaugural session on June 1, 1971. In the morning of September 28, 1970, the Convention approved Organic Resolution No. 1 which is entitled as, "A RESOLUTION AMENDING SECTION 1 OF ARTICLE V OF THE CONSTITUTION SO AS TO LOWER THE VOTING AGE TO 18." On September 30, 1971, the COMELEC "resolved" to follow the mandate of the Convention, that it will hold the said plebiscite together with the senatorial elections on November 8, 1971 .

Petitioner, Arturo Tolentino, filed a petition for prohibition, its main thrust being that Organic Resolution No. 1 and the necessary implementing resolutions subsequently approved have no force and effect as laws in so far as they provide for the holding of a plebiscite co-incident with the senatorial elections, on the ground that the calling and holding of such a plebiscite is, by the Constitution, a power lodged exclusively in Congress as a legislative body and may not be exercised by the Convention, and
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that, under Article XV Section 1 of the 1935 Constitution, the proposed amendment in question cannot be presented to the people for ratification separately from each and all other amendments to be drafted and proposed by the Constitution.

ISSUE: Whether or not the Organic Resolution 1971Constitutional Convention violative to the Constitution. No. 1 of the

HELD: NO. All the amendments to be proposed by the same Convention must be submitted to the people in a single "election" or plebiscite. In order that a plebiscite for the ratification of a Constitutional amendment may be validly held, it must provide the voter not only sufficient time but ample basis for an intelligent appraisal of the nature of the amendment per se but as well as its relation to the other parts of the Constitution with which it has to form a harmonious whole. In the present context, where the Convention has hardly started considering the merits, if not thousands, of proposals to amend the existing Constitution, to present to the people any single proposal or a few of them cannot comply with this requirement.

FRANCISCO VS. HOUSE OF REPRESENTATIVES G.R. NO. 160261 NOV. 10, 2003
Facts: On 28 November 2001, the 12th Congress of the House of Representatives adopted and approved the Rules of Procedure in Impeachment Proceedings, superseding the previous House Impeachment Rules approved by the 11th Congress. On 22 July 2002, the House of Representatives adopted a Resolution,
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which directed the Committee on Justice "to conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF). On 2 June 2003, former President Joseph E. Estrada filed an impeachment complaint (first impeachment complaint) against Chief Justice Hilario G.Davide Jr. and seven Associate Justices of the Supreme Court for "culpable violation of the Constitution, betrayal of the public trust and other high crimes." The complaint was endorsed by House Representatives, and was referred to the House Committee on Justice on 5 August 2003 in accordance with Section 3(2) of Article XI of the Constitution. The House Committee on Justice ruled on 13 October 2003 that the first impeachment complaint was "sufficient inform," but voted to dismiss the same on 22 October 2003 for being insufficient in substance. Four months and three weeks since the filing of the first complaint or on 23 October 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment complaint was filed with the Secretary General of the House by House Representatives against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry initiated by above-mentioned House Resolution. The second impeachment complaint was accompanied by a" Resolution of Endorsement/Impeachment" signed by at least 1/3 of all the Members of the House of Representatives.Various petitions for certiorari, prohibition, and mandamus were filed with the Supreme Court against the House of Representatives, et. al., most of which petitions contend that the filing of the second impeachment complaint is unconstitutional as it violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year."

Issue: Whether the power of judicial review extends to those arising from impeachment proceedings.

Held: The Court's power of judicial review is conferred on the judicial branch of the government in Section 1, Article VIII of our present 1987 Constitution. The "moderating power" to "determine the proper allocation of powers" of the different branches of government and "to direct the course of government along constitutional channels" is inherent in all courts as a necessary consequence of the judicial power itself, which is "the power of the court to settle actual controversies involving rights which are legally demandable and enforceable." As indicated in Angara v. Electoral Commission, judicial review is indeed an integral component of the delicate system of checks and balances which, together with the corollary principle of separation of powers, forms the bedrock of our republican form of government and insures that its vast powers are utilized only for
18

the benefit of the people for which it serves. The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution. The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality. There are also glaring distinctions between the U.S.

Constitution and the Philippine Constitution with respect to the power of the House of Representatives over impeachment proceedings. While the U.S. Constitution bestows sole power of impeachment to the House of Representatives without limitation, our Constitution, though vesting in the House of Representatives the exclusive power to initiate impeachment cases, provides for several limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of filing, required vote to impeach, and the one year bar on the impeachment of one and the same official. The people expressed their will when they instituted the above-mentioned safeguards in the Constitution. This shows that the Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-defined limits, or "judicially discoverable standards" for determining the validity of the exercise of such discretion, through the power of judicial review. There is indeed a plethora of cases in which this Court exercised the power of judicial review over congressional action. Finally, there exists no constitutional basis for the contention that the exercise of judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat another." Both are integral components of the calibrated system of independence

19

and interdependence that insures that no branch of government act beyond the powers assigned to it by the Constitution.

[G.R. No. 159940. February 16, 2005] OFFICE OF THE OMBUDSMAN, petitioner, vs. CIVIL SERVICE COMMISSION, respondent.
DECISION
CARPIO-MORALES, J.:

Before this Court is a petition for certiorari under Rule 65 of the 1997 Revised Rules of Court seeking to set aside and nullify Resolution No. 030919 of the Civil Service Commission (CSC) dated August 28, 2003. The antecedents of the case are as follows: By letter dated March 7, 1994 addressed to then Ombudsman Conrado M. Vasquez, the CSC approved the Qualification Standards for several positions in the Office of the Ombudsman (petitioner) including that for Graft Investigation Officer III. The Qualification Standards for said position are:
[1]

EDUCATION: Bachelor of Laws EXPERIENCE: 5 years of experience in the practice of law, counseling, investigation/ prosecution of cases, hearings of administrative/ criminal cases, legal research or other related work. TRAINING: 24 hours of relevant training ELIGIBILITY: RA 1080 (Bar) The Career Executive Service Board (CESB) subsequently advised the Ombudsman, by letter of May 29, 1996, that pursuant to CSC Memorandum Circular No. 21, s.1994, the position of Graft Investigation Officer III, among
[2]

20

other positions in petitioner therein mentioned, was classified as a Career Executive Service (CES) position, hence, governed by the rules of the CES pertaining to eligibility, appointment to CES ranks, and performance evaluation, among other things. On September 29, 1999, the members of the Constitutional Fiscal Autonomy Group (CFAG), namely: the Commission on Elections (COMELEC), CSC, Commission on Audit (COA), Commission on Human Rights (CHR), petitioner and this Court adopted Joint Resolution No. 62 reading:
[3]

JOINT RESOLUTION NO. 62 WHEREAS, the independence of the members of the Constitutional Fiscal Autonomy Group (CFAG) is guaranteed by the Constitution; WHEREAS, the Constitution has several provisions that guarantee and protect such independence, among which are Sections 4 and 5 of Article IX, A thereof, which respectively grant them Fiscal Autonomy and authorize them to appoint their own officials and employees in accordance with law; WHEREAS, Section 7(3), Title I, Book V of the Administrative Code of 1987 enumerates exclusively and restrictively the specific positions under the Career Executive Service, all the holders of which are appointed by the President and are required to have CES eligibility; WHEREAS, in case of Home Insurance Guaranty Corporation vs. Civil Service Commission and Daniel Cruz, G.R. No. 95450, dated 19 March 1993, the Supreme Court nullified the classification by the CSC of the position of Corporate Vice President as belonging to the third level of the Career Executive Services; WHEREAS, the Court declared in the above cited case that said position is not among those enumerated by law as falling under the third level, nor one of those identified by the CES Board as equivalent rank to those listed by law, nor was the incumbent appointed by the President; WHEREAS, in the case of Sixto Brillantes, Jr. vs. Haydee T. Yorac, G.R. No. 93867, dated 18 December 1990, the Supreme Court ruled that Article IX-A, Sec. 1 of the Constitution expressly describes all Constitutional Commissions as Independent. Although essentially executive in nature, they are not under the control of the President of the Philippines in the discharge of their respective functions.

21

WHEREAS, only the Chairmen and Commissioners of the Constitutional Commissions, the Commission on Human Rights, Justices and Judges, as well as the Ombudsman and his Deputies, are appointed by the President; WHEREAS, the Constitutional Commissions, the Supreme Court, the Commission on Human Rights, and the Office of the Ombudsman are empowered to appoint officials and employees to positions belonging to first level up to third level of their respective agencies, and that they are notpresidential appointees; WHEREAS, Section 22 par. 1, Chapter 5, Subtitle A, Title I, Book V, of the Administrative Code of 1987, provides in part that [t]he degree of qualifications of an officer or employee shall be determined by the appointing authority on the basis of the qualification standard for the particular positions[,] and par. 2 thereof prov ides that [t]he establishment, administration and maintenance of qualification standards shall be the responsibility of the department or agency, with the assistance and approval of the Civil Service Commission; NOW, THEREFORE, the CFAG jointly resolves:
1. That all third level positions under each member agency are career positions; 2. That, where appropriate and proper, taking into consideration the organizational set-up of the agency concerned, the overall screening and selection process for these positions shall be a collegial undertaking, provided that the appointment paper shall be signed only by the Head of the member agency; 3. That all career third level positions identified and classified by each of the member agency are not embraced within the Career Executive Service (CES) and as such shall not require Career Service Executive Eligibility (CSEE) or Career Executive Service (CES) Eligibility for purposes of permanent appointment; 4. That should CFAG member agencies develop their respective eligibility requirements for the third level positions, the test of fitness shall be jointly undertaken by the CFAG member agencies in coordination with the CSC; 5. That in case the test of fitness shall be in written form, the CSC shall prepare the questionnaires and conduct the examinations designed to ascertain the general aptitude of the examinees while the member agency shall likewise prepare the questionnaires and conduct in conjunction with the CSC, the examinations to determine the technical capabilities and expertise of the examinees suited to its functions; 6. That the resulting eligibility acquired after passing the aforementioned examination shall appropriate for permanent appointment only to third level positions in the CFAG member agencies;

22

7. That the member agencies shall regularly coordinate with the CSC for the conferment of the desired eligibility in accordance with this Resolution; However this is without prejudice to those incumbents who wish to take the Career Service Executive Examination given by the Civil Service Commission or the Management Aptitude Test Battery given by the Career Executive Service Board. (Underscoring in the original omitted; emphasis, italics and underscoring supplied)

On July 31, 2002, Melchor Arthur H. Carandang, Paul Elmer M. Clemente and Jose Tereso U. de Jesus, Jr. were appointed Graft Investigation Officers III of petitioner by the Ombudsman. The CSC approved the appointments on the condition that for the appointees to acquire security of tenure, they must obtain CES or Civil Service Executive (CSE) eligibility which is governed by the CESB. By January 2, 2003 letter to the CSC, the Ombudsman requested for the change of status, from temporary to permanent, of the appointments of Carandang, Clemente and De Jesus effective December 18, 2002. Invoking the Court of Appeals ruling in Khem N. Inok v. Hon. Corazon Alma de Leon, et al. (CA-G.R. SP No. 49699), as affirmed by the Supreme Court, the Ombudsman wrote: xxx In the Decision of the Court of Appeals dated January 28, 2001 on CA G.R. SP No. 49699 as affirmed by the Supreme Court with finality on July 2, 2002 in G.R. No. 148782 entitled Khem N. Inok vs. Civil Service Commission, it stated in said Decision that the letter and intent of the law is to circumscribe the Career Executive Service (CES) to CES positions in the Executive Branch of Government, and that the Judiciary, the Constitutional Commissions, the Office of the Ombudsman and the Commission on Human Rights are not covered by the CES governed by the Career Executive Service Board. Said Decision thereby effectively granted the petition of Mr. Inok for security of tenure as Director II of the Commission on Audit despite the absence of a CES eligibility. (Emphasis and italics supplied)
[4]

The relevant portions of the cited CA decision read: Presidential Decree No. 807, otherwise known as the Civil Service Decree of the Philippines, provides the following levels of position in the career service, viz: SEC. 7. Classes of Positions in the Career Service.

23

(a) Classes of positions in the career service appointment to which requires examinations shall be grouped into three major levels as follows: (1) The first level shall include clerical, trades, crafts, and custodial service positions which involve non-professional or sub professional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies; (2) The second level shall include professional, technical, and scientific positions which involve professional; technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and (3) The third level shall cover positions in the Career Executive Service. (b) Except as herein otherwise provided, entrance to the first two levels shall be through competitive examinations, which shall be open to those inside and outside the service who meet the minimum qualification requirements. Entrance to a higher level does not require previous qualification in a lower level. Entrance to the third level shall be prescribed by the Career Executive Service Board. (c) Within the same level, no civil service examination shall be required for promotion to a higher position in one or more related occupational groups. A candidate for promotion should however, have previously passed the examination for that level. The last sentence of Section 7(b) of P.D. No. 807 is similar to the provision of P.D. No. 1, Article IV, par. IV, par. 5(a), to wit: (a) Membership. A person who meets such managerial experience and other requirements and passes such examinations as may be prescribed by the Board shall be included in the register of career service eligibles and, upon appointment to an appropriate class in the Career Executive Service, become an active member in the Service. In exceptional cases, the Board may give unassembled examinations for eligibility. The area of recruitment shall be government-wide, with provisions to allow qualified or outstanding men from outside the government to enter the service. Thus, it could be gleaned from P.D. No. 1 of the Career Executive Service (CES), which has been [d]rafted into Executive Order No. 292, that the letter and intent of the law is to circumscribe the Career Executive Service to CES positions in the Executive Branch of government. Verily, consistent with the principle of the ejusdem generis in legal hermeneutics, the phrase other officers of equivalent rank could encompass only such persons occupying positions in the Executive Department. In the

24

contemporaneous case of the The Secretary of Justice Serafin R. Cuevas, et. al. vs. Atty. Josefina G. Bacal, the Supreme Court lent credence to this postulate, viz: Security of tenure in the career executive service is acquired with respect to rank and not to position. The guarantee of security of tenure to members of the CES does not extend to the particular positions to which they may be appointed a concept which is applicable only to frst and second level employees in the civil service but to the rank to which they are appointed by the President. x x x Prescinding from the foregoing disquisition, We are loathe to stamp our imprimatur to the Commissions stance that the positions of Director III, including that of the COA, belong to the third level. Hence, appointees thereto should possess the x x x Career Executive Service (CES) Eligibility in accordance with the Qualification Standard of the said position. Ineluctably, the judiciary, the Constitutional Commissions, the Office of the Ombudsman, and the Commission on Human Rights are not covered by the CES governed by the CESB. The power of these constitutional offices to appoint their own officers and employees is mainly intended to safeguard their independence, which is the same power of appointment of all officials and employees of the judiciary granted to the Supreme Court. As commented by a noted constitutionalist: The authority of the Supreme Court to appoint its own officials and employees is another measure intended to safeguard the independence of the judiciary. However, the Courts appointing authority must be exercised in accordance with the Civil Service Law. Irrefragrably, inherent in the power to appoint is the power to administratively supervise the officials and employees in the constitutional offices in the same manner that the express power to appoint carries with it the implied power to remove the personnel appointed in said offices. x x x xxx Parenthetically, the power to administratively supervise is designed to strengthen the independence of the constitutional offices. A respected authority on political law underscored the multifarious factors that are integral to the independence of the constitutional offices, scilicet: There are several factors that preserve the independence of the three Commissions: xxx
25

(3) Their appointment must be in a permanent capacity. (4) The Commissions enjoy their own fiscal autonomy. The independence of these constitutional offices serves to exempt their respective officials and employees from the coverage of the CES under the administrative authority of the CESB. to be sure, they are embraced by the civil service system. However, the administrative functions belong to the constitutional offices, instead of the CESB in the same manner that the Supreme Court administers the judiciarys civil service. x x x (Italics and emphasis in the original; underscoring partly in the original and partly supplied; citations omitted)
[5]

It appears that Carandang and Clemente were in the meantime conferred with CSE Eligibility pursuant to CSC Resolution No. 03-0665 dated June 6, 2003.
[6]

Petitioner subsequently reclassified several positions by Resolution No. 02-03 dated August 18, 2003 including Graft Investigation Officer III which was reclassified to Graft Investigation and Prosecution Officer III. The Ombudsman thereupon requested the approval of the proposed Qualification Standards for the reclassified positions. With respect to the reclassified Graft Investigation and Prosecution Officer III position, the Qualification Standards were the same as those for Graft Investigation Officer III. Subsequently, the CSC, by the challenged Resolution of August 28, 2003, changed the status of Carandangs and Clementes appointments to permanent effective June 6, 2003, but not with respect to De Jesus on the ground that he has not met the eligibility requirements. The pertinent portion of the questioned Resolution reads: Relevant to the matter are Sections 4 and 6, Rule III and Rule VI, respectively, of the Omnibus Rules on Appointments and Other Personnel Action, which state: SEC. 4. Nature of Appointment. The nature of appointment shall be as follows: xxx i. Change of status:

26

1. temporary to permanent the appointment issued to a temporary employee when he acquires the appropriate eligibility or becomes fully qualified for the position to which he is appointed. xxx SEC. 6. In cases where the appointee fully qualifies for the position to which he is temporarily appointed, the appointing authority shall no longer issue an appointment for change of status from temporary to permanent. Upon the appointees presentation of the required document/s, such change may be effected as a footnote on the temporary appointment issued, copy furnished the Commission. It is explicitly provided therein that the change of status from temporary to permanent can be effected only once the appointee becomes fully qualified to the position to which he is appointed. xxx The pronouncement of the Court of Appeals in the Inok case cannot be made the basis for changing the employment status of De Jesus. Let it be stressed that nowhere in the aforesaid decision states that the Office of the Ombudsman or the other constitutional agencies mentioned therein are exempt or are not covered by the Civil Service Law and Rules. On the contrary, the same decision declares that these bodies are covered by the civil service system. Basic is the rule that all appointments in the government service, particularly the career service, must be in accordance with the qualification requirements as laid down under existing civil service rules and regulations. Such policy is in line with the Commissions mandate to professionalize the civil service. The requirements spelled out in the Qualification Standards (QS) Manual are designed to determine the fitness of the appointee in a certain position. These requirements are indispensable in order to satisfy the Constitutional mandate that appointment in the civil service shall be made according to merit and fitness. While it is true that constitutional agencies such as the Office of the Ombudsman has the authority to appoint its officials in accordance with law, such law does not necessarily imply that their appointment will not be subject to Civil Service Law and Rules; otherwise, these independent bodies will arrogate upon themselves a power that properly belongs to the Civil Service Commission. Had the intention of the framers of the Constitution been to isolate and grant full independence to Constitutional Commissions in the matter of appointments, it would have been so provided. But that is not the case. the Philippine Constitution provides: The Constitutional Commissions shall appoint their officials and employees in accordance
27

with law (Article IX-A, Section 4). Specifically, Section 6, Article XI of the Constitution states that The officials, shall be appointed by the Ombudsman according to the Civil Service Law. And since all matters pertaining to appointments are within the realm of expertise to the CSC, all laws, rules and regulations it issues on appointments must be complied with. The Constitution speaks of only one civil service, to encompass the first, second, and third levels. It is subject to the same set of laws, rules and regulations in the manner of observing and ensuring that the merit and fitness principle, unless otherwise exempted therefrom by the Constitution or law, is the guiding factor in issuing appointments. Hence, until and unless there is a law or rule exempting one category of public officials from the test in determining merit and fitness, all levels in the government are deemed subject to it. Simply put, the third level eligibility requirement for third level officials in all agencies is mandatory. Further, let it be clarified that the ruling enunciated in Inok case was with regard to the authority of the Career Executive Service Board to prescribe and to administer the Career Executive Service Eligibility and it did not specifically nor particularly take away the functions of the Civil Service Commission. This is evident from the afore quoted decision in the Inok case, to wit: The independence of these constitutional offices serves to exempt their respective officials and employees from the coverage of the CES under the administrative authority of the CESB. To be sure, they are embraced by the civil service system. However, the administrative functions belong to the constitutional offices, instead of the CESB in the manner that the Supreme Court administers the judiciarys civil service. Pursuant to the QS Manual, a Graft Investigation Officer III position is a career service position requiring a Career Service Eligibility or Career Service Executive Eligibility. Considering that De Jesus has not met the eligibility requirement, the change of status of his appointment from temporary to permanent cannot be effected. As held in Achacoso vs. Macaraig, 195 SCRA 235: It is settled that a permanent appointment can be issued only to a person who meets all the requirements for the position to which he is appointed, including the appropriate eligibility prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. x x x (Underscoring partly in the original and partly supplied; emphasis supplied)
28

Hence, the present petition anchored on the following ground: THE GENERAL POWER OF RESPONDENT CIVIL SERVICE COMMISSION (CSC) TO ADMINISTER THE CIVIL SERVICE CANNOT CONSTITUTIONALLY AND VALIDLY CURTAIL THE SPECIFIC DISCRETIONARY POWER OF APPOINTMENT, INCLUDING THE GRANT OF SECURITY OF TENURE, BY THE OMBUDSMAN AS AN INDEPENDENT CONSTITUTIONAL BODY IN FAVOR OF THE LATTERS OWN OFFICIALS, AND ANY SUCH CURTAILMENT BY THE RESPONDENT CSC, AS IN ITS IMPUGNED RESOLUTION NO. 030919 DATED 26 AUGUST 2003, IS CONSTITUTIONALLY AND LEGALLY INFIRM. Petitioner contends that the CSC misreads the ratio of the appellate court decision in Inok. It contends that the Ombudsman, as an appointing authority, is specifically tasked by the Constitution to choose his own qualified personnel, which includes the lesser power of granting security of tenure to his appointees once the basic qualification requirements are satisfied.
[7]

Petitioner likewise contends that its constitutional discretion as an independent appointing authority cannot be curtailed by the CSC which has no authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications.
[8]

Petitioner further contends that the CES Eligibility, as administered by the respondent CESB, cannot be validly made a requisite for the attainment of security of tenure on qualified career officials of petitioner who are not legally part of the CES. Finally, petitioner argues that its officials which are appointed by the Ombudsman are technically classified as belonging to the Closed Career Service, the positions being unique and highly technical as they involve investigatorial, quasi-judicial and prosecutorial functions, in much the same way as judges are involved in judicial functions. Hence, petitioner concludes, appointment to such positions is likewise characterized by security of tenure. During the pendency of the case before this Court, the CSC, by Resolution No. 040738 dated July 6, 2004, approved the proposed Qualification Standards for Graft Investigation and Prosecution Officer I, II and III. As proposed, the following Qualification Standards for Graft Investigation and Prosecution Officer III were approved:
[9]

Education : Bachelor of Laws Experience : Five (5) years of experience in the practice of law, counseling, investigation/ prosecution of cases,
29

Training Eligibility

: :

hearings of administrative/criminal cases, legal research or other related works 24 hours of relevant training RA 1080 (BAR)

The petition is impressed with merit. That the positions subject of the present case are unique and highly technical in nature, as are those of the Judiciary, is recognized by the constitutional offices under the earlier quoted Joint Resolution No. 62 of the CFAG of which CSC is a member.
[10]

Inok cannot be invoked as precedent in arriving at the question raised in this petition. This Court dismissed the petition of the CSC in theInok case on a technicality therein petitioner CSCs failure to file a reply within the required period and not on the merits. Book V, Title I, Subtitle A of the Administrative Code of 1987 provides: SECTION 7. Career Service. The Career Service shall be characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure. The Career Service shall include: 1) Open Career positions for appointment to which prior qualification in an appropriate examination is required; (2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems; (3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President; x x x (Emphasis and underscoring supplied) From the above-quoted provision of the Administrative Code, persons occupying positions in the CES are presidential appointees. A person
30

occupying the position of Graft Investigation Officer III is not, however, appointed by the President but by the Ombudsman as provided in Article IX of the Constitution, to wit: SECTION 6. THE OFFICIALS AND EMPLOYEES OF THE OMBUDSMAN, OTHER THAN THE DEPUTIES, SHALL BE APPOINTED BY THE OMBUDSMAN ACCORDING TO THE CIVIL SERVICE LAW. To classify the position of Graft Investigation Officer III as belonging to the CES and require an appointee thereto to acquire CES or CSE eligibility before acquiring security of tenure would be absurd as it would result either in 1) vesting the appointing power for said position in the President, in violation of the Constitution; or 2) including in the CES a position not occupied by a presidential appointee, contrary to the Administrative Code. It bears emphasis that that under P.D. No 807, Sec. 9(h) which authorizes the CSC to approve appointments to positions in the civil service, except those specified therein, its authority is limited only to [determine] whether or not the appointees possess the legal qualifications and the appropriate eligibility, nothing else.
[11]

It is not disputed that, except for his lack of CES or CSE eligibility, De Jesus possesses the basic qualifications of a Graft Investigation Officer III, as provided in the earlier quoted Qualification Standards. Such being the case, the CSC has the ministerial duty to grant the request of the Ombudsman that appointment be made permanent effective December 18, 2002. To refuse to heed the request is a clear encroachment on the discretion vested solely on the Ombudsman as appointing authority. It goes without saying that the status of the appointments of Carandang and Clemente, who were conferred CSE eligibility pursuant to CSC Resolution No. 03-0665 dated June 6, 2003, should be changed to permanent effective December 18, 2002 too.
[12]

In a Supplemental Memorandum received by this Court on January 5, 2005, the CSC alleged that, inter alia:
[13]

. . . the reclassified G[raft] I[nvestigation and] P[rosecution] O[fficer] III position is the same position which is the subject of the herein case. Suffice it to state thatthe eligibility requirement under the new QS is no longer third level eligibility but RA 1080 (BAR) instead. However, notwithstanding the said approval of the new QS for GIPO III, CSC prays that the issues raised by the Office of Ombudsman relative to the authority of the CSC to administer the Civil Service Executive Examination for third level positions and to prescribe third level eligibility to third level positions in the Office of the Ombudsman be resolved.
31

As the Court takes note of the information of the CSC in its Supplemental Memorandum, it holds that third level eligibility is not required for third level officials of petitioner appointed by the Ombudsman in light of the provisions of the Constitution vis a vis the Administrative Code of 1987 as discussed above. WHEREFORE, the petition is hereby GRANTED. Resolution No. 030919 of the Civil Service Commission dated August 28, 2003 is hereby SET ASIDE. The appointment of Jose Tereso U. de Jesus, Jr., as well as those of Melchor Arthur H. Carandang, Paul Elmer M. Clemente, is hereby ordered made permanent effective December 18, 2002. SO ORDERED.

FIRST DIVISION
[G.R.. No. 121017. February 17, 1997]

OLIVIA B. CAMANAG, petitioner, vs. THE HONORABLE JESUS F. GUERRERO IN HIS OFFICIAL CAPACITY AS CITY PROSECUTOR OF MANILA, NESTOR GONZALES, IN HIS OFFICIAL CAPACITY AS ASSISTANT PROSECUTOR OF MANILA, THE HONORABLE MARlNO DELA CRUZ IN HIS OFFICIAL CAPACITY AS PRESIDING JUDGE OF BRANCH 22 OF THE REGIONAL TRIAL COURT OF MANILA, respondents. DECISION HERMOSISIMA, JR., J.: This case asks for and includes: (1) a Petition for Declaratory Relief under Rule 64 of the Revised Rules of Court which seeks the declaration of nullity of Sections 15 and 17 of the Ombudsman Act (R.A. No. 6770), insofar as it empowers the Ombudsman to conduct preliminary investigations and to directly undertake criminal prosecutions; (2) a Petition for Certiorari to declare as null and void, for allegedly having been rendered with grave abuse of discretion, the Resolution dated June 21, 1995 rendered in I.S. No. 95-D-12930 by respondent Assistant City Prosecutor Nestor D. Gonzales and approved by respondent City Prosecutor Jesus F. Guerrero; (3) a Petition for Mandamus to compel respondents City Prosecutor and Assistant City Prosecutor to conduct a preliminary investigation on the complaint for Falsification of Public Documents filed against petitioner; and (4) a Petition for Prohibition to enjoin respondent judge of the City of Manila from further proceeding with the cases stemming from the information

32

charging petitioner with three (3) counts of falsification lodged with the trial court and to order the dismissal thereof. The facts, as summarized in the Comment of the Office of the Solicitor General, are as follows: "On August 2, 1993, the Professional Regulations Commission (PRC) issued the Table of Results of those who failed the May, 1993 Certified Public Accountant (CPA) Licensure Examinations. On Page 11 thereof, Sequence No. 493, petitioner Olivia B. Camanag was listed as having failed with a general average of 50.00% (Annex "1"). However, on December 15, 1993, petitioner in accomplishing her Personal Data sheet (CSC form No. 212) as employee of the Bureau of Internal Revenue (BIR) indicated under question No. 18 that she passed the May, 1993 Board Examinations with a rating of 75.42% (Annex "2"). On July 4, 1994, an anonymous letter was sent to PRC Chairman Hermogenes P. Pobre 'claiming that certain BIR employees allegedly passed the CPA Licensure Exams under anomalous circumstances' (Annex "3"). Still, on July 28, 1994, petitioner claimed to have received what was purportedly a 'Certified True Copy' of her passing rating sheet, allegedly signed by PRC Acting Assistant Chief Leandro O. Ordenes (Mr. Leandro O. Ordenes is actually the Records Officer of the PRC) (Pet., Annex "C"). On August 24, 1994, PRC Chairman Pobre wrote Ombudsman Conrado Vasquez that BIR employees Marilyn Lee, Connie Dimapilis, Eilene Purification, Elenita Villamor, Lodiminda Crizaldo, petitioner Olivia Camanag and Maria Rosario de los Reyes, did not actually pass the CPA licensure examinations (Annex "3"). On October 5, 1994, Associate Ombudsman Investigator (AOI) Joaquin S. Bumanlag set the fact-finding investigation of the matter on October 11, 1994 at 10:00 a.m. He also issued a Subpoena Duces Tecum to the Chief of the BIR Personnel Division (Annex "4"). On December 1, 1994, AOI Bumanglag concluded his fact-finding investigation with a Report finding probable cause against petitioner for violation of Article 171(4) of the Revised Penal Code. AOI Bumanglag recommended a preliminary investigation (Annex "5") to be conducted on the case, and at the same time, he executed under oath the corresponding affidavit-complaint against petitioner (Annex "6"). On December 19, 1994, Ombudsman Investigator (OI) Rainier C. Almazan, acting on the said affidavit-complaint, directed petitioner to submit her counter-affidavit (Annex "7"). On January 13, 1995, petitioner submitted her counter-affidavit with annexes alleging that she passed the CPA licensure examinations with a grade of 75.42% (Annex "8"). On January 31, 1995, PRC Records Section Chief Leandro O. Ordenes, issued a Certification, stating that petitioner failed in the CPA licensure examinations (Annex "9").
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On February 27, 1995, OI Almazan issued a Resolution, finding '. . . sufficient ground to engender a well-founded belief that the crimes of falsification of public documents . . . have been committed . . .' (Petition, Annex "F"). Under a 1st Indorsement of even date, Deputy Ombudsman for the Armed Forces of the Philippines (AFP) Manuel B. Casaclang deputized respondent City Prosecutor of Manila Jesus Guerrero to file the corresponding charges against petitioner and to handle the prosecution of the cases (Annex "10"). On April 11, 1995, the Office of the City Prosecutor of Manila docketed the case as IS No. 95-D12930 and herein respondent Nestor Gonzales, Assistant City Prosecutor of Manila, set it for another round of preliminary investigation on May 5 and 12, 1995 (Annex "11"). While the preliminary investigation was ongoing before the City Prosecutor, petitioner filed a motion to reset preliminary investigation (Annexes "11-A" and "12"), Motion to Issue Subpoena and Subpoena Duces Tecum to Leandro Ordenes [OIC, Records Section] and Ernesto Jaurique [Exec. Director] (Petition, Annex "G"); and a Comment/Manifestation stating, among others, that 'another round of preliminary investigation should be conducted by the City Prosecutor.' Why petitioner should demand another round of preliminary investigation while one was already on-going is not clear on record. At any rate, the preliminary investigation conducted by the City Prosecutor yielded additional evidence of falsification against petitioner, to wit: Ordenes' Certification (Annex "9"), and the Table of Results-Failed, CPA Licensure Exams (Annex "1"), both submitted by the PRC showing that petitioner did flunk the CPA Licensure Exam of May, 1993. On June 21, 1995, respondent City Prosecutor issued the questioned Resolution, 'x x x finding sufficient ground to hold petitioner for trial' and ordering the filing of the Information in court (Pet., Annex "I"). On July 17, 1995, three (3) Informations for falsification of public documents were filed against petitioner docketed as Criminal Cases No. 95-143922-24. The cases were raffled off to the sala of respondent Judge Marino M. dela Cruz, Regional Trial Court, Branch 22, Manila (Annex "13A" - "13-C"). On July 25, 1995, petitioner filed a Motion to Reduce Bail Bond (Annex "14"). But even before respondent judge could act on his motion to reduce bail bond, petitioner filed the instant petition. Thereafter, petitioner posted her cash bond with 'Waiver' viz: "'Pursuant to Letter of Instructions No. 40 dated November 10, 1972, issued by the President of the Philippines, following annotation is hereby incorporated in the CASH BOND posted for the account in the above-entitled cases.

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The herein accused hereby agreed that in case she jumps bail or fails to appear for trial/arraignment despite due notice to her counsel, her right to be present is deemed waived, which failure shall to all intents and purposes authorize the Court to proceed with the hearing as if she were personally present."[1] The issues raised in the instant case are the following: I "WHETHER OR NOT SECTIONS 15 AND 17 OF REPUBLIC ACT 6770 WHICH EMPOWERS (SIC) THE OMBUDSMAN TO CONDUCT PRELIMINARY INVESTIGATIONS OF MATTERS AND/OR REFERRED TO IT IS (SIC) NULL AND VOID FOR BEING CONTRARY TO AND VIOLATIVE OF THE PROVISIONS OF THE CONSTITUTION. II "WHETHER OR NOT UNDER THE CIRCUMSTANCES OBTAINING IN THE INSTANT CASE, THE HONORABLE PUBLIC RESPONDENTS CITY PROSECUTOR AND ASSISTANT CITY PROSECUTOR ARE DUTY BOUND AS SUCH TO BE DIRECTED TO CONDUCT THE REQUISITE PRELIMINARY INVESTIGATION OF THE ANONYMOUS COMPLAINT FILED AGAINST HEREIN PETITIONER. III WHETHER OR NOT THE INFORMATIONS FILED BEFORE THE SALA OF THE HONORABLE RESPONDENT JUDGE WITHOUT THE BENEFIT OF A PRELIMINARY INVESTIGATION CONDUCTED BY RESPONDENT CITY PROSECUTOR ARE CHARACTERIZED BY SUCH FATAL DEFECTS AS TO WARRANT A WRIT OF PROHIBITION TO ENJOIN RESPONDENT JUDGE FROM TAKING ANY FURTHER ACTION THEREON EXCEPT TO ORDER THE OUTRIGHT DISMISSAL THEREOF." I As to the first issue, petitioner assails as unconstitutional Sections 15 and 17 of the Ombudsman Act (R.A. No. 6770) insofar as it empowers the Office of the Ombudsman to conduct preliminary investigation and to directly undertake criminal prosecutions on three grounds: (1) such grant of powers to the Office of the Ombudsman has no constitutional basis and runs directly counter to the intent of the framers of the Constitution; (2) it violates the principle of separation of powers; and (3) it is in direct contravention of Article XI, Section 7 of the Constitution. The assailed provisions of the Ombudsman Act read: "SEC. 15. Powers, functions and duties. The Office of the Ombudsman shall have the following powers, functions and duties:

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(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases; xxx xxx xxx

(3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in Section 21 of this Act; Provided, That the refusal of any officer without just cause to comply with an order of the Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who neglects to perform an act or discharge a duty required by law shall be ground for disciplinary action against said officer." xxx xxx xxx

"SEC. 17. Immunities. In all hearings, inquiries, and proceedings of the Ombudsman, including preliminary investigations of offenses, no person subpoenaed to testify as a witness shall be excused from attending and testifying or from producing books, papers, correspondence, memoranda and/or other records on the ground that the testimony or evidence, documentary or otherwise, required of him, may tend to incriminate him or subject him to prosecution: Provided, That no person shall be prosecuted criminally for or on account of any matter concerning which he is compelled, after having claimed the privilege against self-incrimination, to testify and produce evidence, documentary or otherwise. Under such terms and conditions as it may determine, taking into account the pertinent provisions of the Rules of Court, the Ombudsman may grant immunity from criminal prosecution to any person whose testimony or whose possession and production of documents or other evidence may be necessary to determine the truth in any hearing, inquiry or proceedings being conducted by the Ombudsman or under its authority, in the performance of or in the furtherance of its constitutional functions and statutory objectives. The immunity granted under this and the immediately preceding paragraph shall not exempt the witness from criminal prosecution for perjury or false testimony nor shall he be exempt from demotion or removal from office. Any refusal to appear or testify pursuant to the foregoing provisions shall be subject to punishment for contempt and removal of the immunity from criminal prosecution." The Ombudsman Act, petitioner concedes, clearly empowers the Office of the Ombudsman to conduct preliminary investigation and to prosecute individuals on matters and/or complaints referred to it or filed before the said government agency. But, the vesting of powers to the Office of the Ombudsman to conduct preliminary investigations and to directly undertake criminal prosecutions, petitioner argues, is
36

totally bereft of any constitutional basis. In support of this stand, petitioner cites that, under the 1987 Philippine Constitution, specifically in Section 13, Article XI, entitled "Accountability of Public Officers," the only powers of the present day Ombudsman are enumerated as follows: "Section 13. The Office of the Ombudsman shall have the following powers, functions and duties: (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. (2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct, any abuse or impropriety in the performance of duties. (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. (6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence. (7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in government and make recommendation for their elimination and the observance of high standards of ethics and efficiency. (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. (Emphasis supplied). From the above-quoted provision of the 1987 Philippine Constitution, petitioner claims that the powers of the Ombudsman are clearly defined or delineated. More particularly, petitioner alleges that the extent of the power of the Ombudsman, insofar as criminal prosecutions are concerned, is clearly spelled out in paragraphs (1) and (3) as emphasized. But while, petitioner alleges, Section 13, paragraph (1) of the afore cited Article XI of the Constitution duly empowers the Ombudsman to conduct
37

investigations, the power to directly undertake criminal prosecutions has been clearly withheld by the framers of the Constitution from the Ombudsman in no uncertain terms under paragraph (3) of the afore cited article, which merely empowers the Office of the Ombudsman "to direct the officer concerned to take appropriate action and recommend prosecution". Thus, according to petitioner, while it is clear that the Office of the Ombudsman has no power to directly undertake criminal prosecutions, there is a question as to whether the power lodged in it to investigate under paragraph (1) is tantamount to a grant of power to conduct preliminary investigations. Petitioner submits that consonant to the withholding of the power to directly undertake criminal proceedings, the Ombudsman does not possess the power to conduct formal preliminary investigation proceedings for the simple reason that formal preliminary investigation proceedings constitute an integral part of the process of criminal prosecutions. This is so, according to petitioner, inasmuch as the term prosecution is defined by Black's Law Dictionary as: "x x x (a) criminal action: a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime x x x"[2] More precisely, petitioner continues, "to prosecute" has been defined as "to begin and to carry on a legal proceeding,"[3] and "it marks the commencement of a criminal prosecution and precedes and determines the filing of an information."[4] Additionally, petitioner asserts that the unqualified grant of prosecutorial powers to the Ombudsman runs directly against the intent of the framers of the Constitution, particularly, to lodge prosecutorial powers in other governmental officers, i.e., the public prosecutors. In further support of this argument, petitioner relies heavily on the records of the proceedings of the Constitutional Commission of 1986, particularly, on the debates and interpellations of the Committee on Accountable Officers which drafted Section 13, Article XI of the 1987 Philippine Constitution. Indeed, the proceedings so indicate: "MR.. RODRIGO: The President: Madam President. Commissioner (Francisco A.) Rodrigo is recognized.

MR. RODRIGO: I noticed that the proposed provisions on the Ombudsman retain the Tanodbayan, and there seems to be an overlapping in the functions of the Tanodbayan and the Ombudsman. What is the clear-cut dividing line between the functions of the Ombudsman and the Tanodbayan, so that our people will know when to go to the Tanodbayan and when to go to the Ombudsman? MR. MONSOD: Madam President, essentially, the difference lies in one being a prosecutory arm and the other a champion of the citizen who is not bound by legal technicalities or legal forms, but I would like to ask Commissioner Nolledo to explain this in detail.
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MR. NOLLEDO: If we go over the provision of P.D. No. 1607, which amended P.D. No. 1487, creating the Office of the Tanodbayan, also called by Mr. Marcos as Ombudsman, there are two parts in the functions of the Tanodbayan: First, to act as prosecutor of anti-graft cases, and to entertain complaints from the public. The second part constitutes the basic function of the Ombudsman. And if we turn to page 3 of the report of the Committee, Section 5 provides and I quote: 'The Tanodbayan created pursuant to the mandate of Section 6 of Article XIII of the Constitution shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the office of the Ombudsman created under this constitution.' This means that we are removing the second part of the functions of the Tanodbayan and vesting the same in the office of the Ombudsman; and therefore, the Tanodbayan shall continue to discharge his functions under the first party merely as prosecutor, like a fiscal, of anti-graft cases, which are filed with the Anti-Graft Court. MR. RODRIGO: So, the Ombudsman cannot prosecute? MR. NOLLEDO: No, he cannot. He can refer the cases that should be prosecuted to the appropriate official he may be the Tanodbayan or he may be the ordinary fiscal. MR. RODRIGO: Has the Ombudsman any power to compel the prosecuting arm to prosecute or can he only recommend? MR. NOLLEDO: He can direct. MR. RODRIGO: Can he command? MR. NOLLEDO: That is equivalent to commanding the fiscal if the fiscal refuses to file the case. And then in that case, if the fiscal refuses, then there are available remedies. He may appeal to the Ministry of Justice. MR. RODRIGO: Can the Ombudsman act on his own? MR. NOLLEDO: Yes, even without a complaint. MR. RODRIGO: If the fiscal refuses to file the information, can the Ombudsman file the information? MR. NOLLEDO: No. I understand he will appeal to the Minister of Justice and the Ministry of Justice will correspondingly decide on the appeal. If the Ministry of Justice, for example, upholds the Ombudsman, there is no question about that. But if the Ministry of Justice does not uphold him, the Ombudsman perhaps, based on the presidential form of government, may appeal to the President. And the President, where the Ministry of Justice is merely his alter ego, may overrule the Minister of Justice . . . .xxx." [5]

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In view of the above-quoted records of the proceedings of the Constitutional, Commission, it is clear, petitioner argues, that the power of the Ombudsman is limited to the mere issuance of the directives to the appropriate officer, i.e., the Prosecutor, to cause the filing of the information and the prosecution thereof. This allegedly clearly portrays the intent of the Constitutional Commission members to withhold prosecutorial powers from the Ombudsman and to lodge it with other governmental officers. Anent the second ground, petitioner argues that the unqualified grant of prosecutorial powers to the Office of the Ombudsman violates the principle of separation of powers enshrined in the Constitution. This, inasmuch as, according to petitioner, the Office of the Ombudsman is a constitutional body, and is a part neither of the legislative, executive nor judiciary branches. As such, petitioner claims, in the absence of an express constitutional provision to the contrary, it is not empowered to conduct preliminary investigations, as these pertain exclusively to the executive branch. Anent the third ground, which petitioner claims as perhaps the strongest argument against the constitutionality of R.A. No. 6770, petitioners argues that the unqualified grant of prosecutorial powers on the Office of the Ombudsman is in direct contravention of Article XI, Section 7 of the 1987 Philippine Constitution. Article XI, Section 7 of the 1987 Philippine Constitution reads: "Section 7. The existing Tanodbayan shall hereafter be known as the office of the Special Prosecutor. It shall continue to function and exercise its power as now or hereafter may be provided by law, except those conferred on the office of the Ombudsman created under this Constitution." In support of this argument, petitioner claims that in the interpretation of this particular provision and those pertaining to the office of the Ombudsman, Fr. Joaquin Bernas, an eminent authority on constitutional law and a member of the 1986 Constitutional Commission, had occasion to write: "The 1973 Constitution also enjoined the Batasang Pambansa to create an office of the Ombudsman or Tanodbayan. Again the Batasang Pambansa was anticipated by the President in P.D. 1630 creating the office then of Tanodbayan. The broad discretion of the legislative authority to expand or contract the power of the Tanodbayan under the 1973 Constitution was recognized in Inting v. Tanodbayan. The 1987 Constitution changed much of that. The title Tanodbayan has been retained for the Ombudsman. He has also been given one over-all deputy and at least one deputy each for Luzon, Visayas, and Mindanao. He retains the functions of the Tanodbayan of the 1973 Constitution except the prosecutorial functions. The Ombudsman and his deputies are appointed by the President from a list of nominees presented by the judicial and Bar Council and they have rank of Chairman and Member respectively of the Constitutional Commissions. They serve for a term of seven years.

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The prosecutorial functions have been given over to a Special Prosecutor from the Ombudsman. (The Constitution of the Republic of the Philippines, Bernas, Joaquin, Vol. II, 1990 p. 408) [emphasis supplied]"[6] If prosecutorial functions have in fact been retained by the Office of the Special Prosecutor, petitioner opines, the unqualified grant of power to exercise such prosecutorial functions given by R.A. No. 6770 to the office of the Ombudsman invariably diminishes the authority and power lodged in the office of the Special Prosecutor. In this light, petitioner argues, R.A. No. 6770, insofar as it unqualifiedly vests prosecutorial functions to the office of the Ombudsman, infringes on Section 7, Article XI of the fundamental law, and is hence, unconstitutional. We are visibly impressed by the ratiocinations of petitioner, but, unfortunately, we are bound by stare decisis. I Anent petitioner's contention that the vesting of prosecutorial powers to the Ombudsman finds no basis in the 1987 Constitution and that it runs counter to the intent of the framers of the Constitution to withhold such powers from the Ombudsman, suffice it to state that a similar contention had already been overruled by this Court in the case of Acop v. Office of the Ombudsman.[7] In upholding the validity of the grant of prosecutorial powers on the Ombudsman, notwithstanding the intent of the framers of the 1987 Constitution to withhold such powers from him, this Court declared, that: "xxx (w)hile the intention to withhold prosecutorial powers from the Ombudsman was indeed present, the Commission did not hesitate to recommend that the Legislature could, through statute, prescribe such other powers, functions and duties to the Ombudsman. Paragraph 6, Section 12 of the original draft of the proposed Article on Accountability of Public Officers, which the Committee recommended for incorporation in the Constitution, reads: xxx xxx xxx

(6) To exercise such powers and perform such functions or duties as may be provided by law (2 Record, 264). As finally approved by the Commission after several amendments, this is now embodied in paragraph 8, Section 13, Article XI (Accountability of Public Officers) of the Constitution, which provides: Section 13. duties: xxx The Office of the Ombudsman shall have the following powers, functions, and

xxx

xxx

Promulgate its rules and procedure and exercise such other functions or duties as may be provided by law. (emphasis supplied)
41

Expounding on this power of Congress to prescribe other powers, functions, and duties to the Ombudsman, we quote Commissioners Colayco and Monsod during interpellation by Commissioner Rodrigo: MR. RODRIGO: Let us go back to the division between the powers of the Tanodbayan and the Ombudsman which says that: The Tanodbayan . . . shall continue to function and exercise its powers as provided by law, except those conferred on the office of the Ombudsman created under this Constitution. The powers of the Ombudsman are enumerated in Section 12. MR. COLAYCO: They are not exclusive. MR. RODRIGO: So, these powers can also be exercised by the Tanodbayan? MR. COLAYCO: No, I was saying that the powers enumerated here for the Ombudsman are not exclusive. MR. RODRIGO: Precisely, I am coming to that. The last enumerated functions of the Ombudsman is: 'to exercise such powers or perform such functions or duties as may be provided by law. 'So, the legislature may vest him with powers taken away from the Tanodbayan, may it not? MR. COLAYCO: Yes. MR. MONSOD: Yes. MR. RODRIGO: And it is possible that pretty soon the Tanodbayan will be a useless appendage and will lose all his powers. MR. COLAYCO: No. I am afraid the Gentleman has the wrong perception of the system. We are leaving to the Tanodbayan the continuance of his functions and the exercise of the jurisdiction given to him pursuant to . . . MR. RODRIGO:

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Law. MR. COLAYCO: No. Pursuant first to the Constitution and the law which mandated the creation of the office. MR. RODRIGO: Madam President. Section 5 reads: 'The Tanodbayan shall continue to function and exercise its powers as provided by law.' MR. COLAYCO: That is correct, because it is under P.D. No. 1630. MR. RODRIGO: So, if it is provided by law, it can be taken away by law, I suppose. MR. COLAYCO: That is correct. MR. RODRIGO: And precisely, Section 12(6) says that among the functions that can be performed by the Ombudsman are 'such functions or duties as may be provided by law.' The sponsors admitted that the legislature later on might remove some powers from the Tanodbayan and transfer these to the Ombudsman. MR. COLAYCO: Madam President, that is correct. MR. MONSOD: Madam President, perhaps it might be helpful if we give the spirit and intendment of the Committee. What we wanted to avoid is the situation where it deteriorates into a prosecution arm. We wanted to give the idea of the Ombudsman a chance, with prestige and persuasive powers, and also a chance to really function as a champion of the citizen. However, we do not want to foreclose the possibility that in the future, The Assembly, as it may see fit, may have to give additional powers to the Ombudsman; we want to give the concept of a pure Ombudsman a chance under the Constitution. MR. RODRIGO: Madam President, what I am worried about is if we create a constitutional body which has neither punitive nor prosecutory powers but only persuasive powers, we might be raising the hopes of our people too much and then disappoint them.
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MR. MONSOD: I agree with the Commissioner. MR. RODRIGO: Anyway, since we state that the powers of the Ombudsman can later on be implemented by the legislature, why not leave this to the legislature? MR. MONSOD: Yes, because we want to avoid what happened in 1973. I read the committee report which recommended the approval of the 27 resolutions for the creation of the office of the Ombudsman, but notwithstanding the explicit purpose enunciated in that report, the implementing law the last one, P.D. No. 1630 did not follow the main thrust; instead it created the Tanodbayan, (2 record, 270-271. ) (Emphasis supplied) xxx MR. MONSOD: xxx xxx

(reacting to statements of Commissioner Blas Ople):

May we just state that perhaps the honorable Commissioner has looked at it in too much of an absolutist position, The Ombudsman is seen as a civil advocate or a champion of the citizens against the bureaucracy, not against the President. On one hand, we are told he has no teeth and he lacks other things. On the other hand, there is the interpretation that he is a competitor to the President, as if he is being brought up to the same level as the President. With respect to the argument that he is a toothless animal, we would like to say that we are promoting the concept in its form at the present, but we are also saying that he can exercise such powers and functions as may be provided by law in accordance with the direction of the thinking of Commissioner Rodrigo. We did not think that at this time we should prescribe this, but we leave it up to Congress at some future time if it feels that it may need to designate what powers the Ombudsman need in order that he be more effective. This is not foreclosed. So, his is a reversible disability, unlike that of a eunuch; it is not an irreversible disability (Emphasis supplied)."[8] The inevitable conclusion is that the Ombudsman, under the 1987 Constitution, particularly under paragraph 8, Section 13, Article XI, [9] may be validly empowered with prosecutorial functions by the legislature, and this the latter did when it passed R.A. No. 6670, which gave the Ombudsman, among others, the power to investigate and prosecute individuals on matters and/or complaints referred or filed before it. II Turning now to the second ground, petitioner contends that the Office of the Ombudsman, being a constitutional body, cannot exercise executive functions, such as conducting preliminary investigation in criminal cases. The contention is devoid of merit.
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As conceded by the petitioner, the Office of the Ombudsman is a distinct constitutional body whose duties and functions are provided for by the Constitution itself. Considering that the power of the Ombudsman to investigate and prosecute criminal cases emanates as it does from the Constitution itself, particularly, under paragraph 8, Section 13, Article XI as above-quoted, which empowers the Ombudsman to "exercise such other powers or perform such other functions or duties" as Congress may prescribe through legislation, it cannot be logically argued that such power or the exercise thereof is unconstitutional or violative of the principle of separation of powers enshrined in the Constitution. Equally devoid of merit is the contention of petitioner that R.A. No. 6770, insofar as it unqualifiedly vests prosecutorial functions on the Ombudsman, infringes on Section 7, Article XI of the Constitution, in that it invariably diminishes the authority and power lodged in the Office of the Special Prosecutor. This ground relied upon by petitioner, like the first ground, has also been extensively dealt with and answered in, the aforecited case of Acop v. Office of the Ombudsman.[10] Addressing the contention raised by petitioners that the Office of the Special Prosecutor is not subordinate to the Ombudsman and is, in fact, separate and distinct from the Ombudsman, such that Congress may not, under the present Constitution, validly place the Office of the Special Prosecutor under the Office of the Ombudsman, this court has upheld not only the power of Congress to so place the Office of the Special Prosecutor under the Ombudsman, but also the power of the Congress to remove some of the powers granted to the then Tanodbayan, now Office of the Special Prosecutor, under P.D. 1630, and transfer them to the Ombudsman. Thus, this Court said: "xxx Section 7 of Article XI expressly provides that the then existing Tanodbayan, to be henceforth known as the Office of the Special Prosecutor, 'shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution.' The underscored phrase evidently refers to the Tanodbayan's powers under P.D. No. 1630 or subsequent amendatory legislation. It follows then that Congress may remove any of the Tanodbayan's/Special Prosecutor's powers under P.D. No. 1630 or grant it other powers, except those powers conferred by the Constitution on the Office of the Ombudsman."[11] Continuing, this Court further said: "Pursuing the present line of reasoning, when one considers that by express mandate of paragraph 8, Section 13, Article XI of the Constitution, the Ombudsman may 'exercise such other powers or perform functions or duties as may be provided by law,' it is indubitable then that Congress has the power to place the Office of the Special Prosecutor under the Office of the Ombudsman. In the same vein, Congress may remove some of the powers granted to the Tanodbayan by P.D. No. 1630 and transfer them to the Ombudsman; or grant the Office of the Special Prosecutor such other powers and functions and duties as Congress may deem fit and wise. This Congress did through the passage of R.A. No. 6770" (Emphasis supplied).[12] III

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The other question raised herein pertains to whether or not under the circumstances obtaining in the instant case, public respondents City Prosecutor and Assistant City Prosecutor are duty bound to conduct another preliminary investigation of the anonymous complaint filed against herein petitioner. Substantially, petitioner alleges that, inasmuch as the refusal by respondents City Prosecutor and Assistant City Prosecutor to conduct a preliminary investigation was predicated on the assumption that R.A. No. 6770 duly empowers the Office of the Ombudsman to conduct a preliminary investigation, which petitioner asserts is unconstitutional, said respondents are compellable by mandamus to conduct their own preliminary investigation, and their refusal to a preliminary investigation of the charges against petitioner is tantamount to a denial of due process. Additionally, petitioner alleges that the conduct of a preliminary investigation is mandated further by the inherent weakness in complainant's case These contentions of petitioner are devoid of merit. Firstly, as have been extensively discussed above, petitioner's attack on the validity or constitutionality of R.A. No. 6770 is without merit. Thus, there is no more question on the validity or constitutionality of the power of the Ombudsman to conduct the preliminary investigation of the charges against respondent. It is not pretended further by petitioner that the Ombudsman did not actually conduct a preliminary investigation of the charges against her, although petitioner alleged certain defects in the conduct of the preliminary investigation. In the second place, as correctly observed by the Office of the Solicitor General in its Comment, there is sufficient showing that another round of preliminary investigation, apart from the one conducted by the Office of the Ombudsman, was actually conducted by the Office of the City Prosecutor of Manila in the cases a quo. Thus, on record are petitioner's various Motions filed before the City Prosecutor to reset preliminary investigation[13] and to subpoena a certain witness.[14] Petitioner had likewise filed her comment on the cases against her then pending with the City Prosecutor.[15] Complainant PRC also submitted evidence against petitioner in the same proceedings. Finally, a memo of preliminary investigation conducted by the City Prosecutor was attached to the Informations eventually filed against petitioner before the Ombudsman.[16]These pieces of evidence clearly indicate that a second round of preliminary investigation was conducted by the City Prosecutor. There is no basis, therefore, to petitioner's allegations, and petitioner cannot validly claim, that she had been denied due process either by the Office of the Ombudsman or by the City Prosecutor. Neither is the alleged inherent weakness of complainant' s case, a ground to compel the City Prosecutor to conduct another preliminary investigation, apart from the one already conducted and the one conducted earlier by the Ombudsman. On this score, suffice it to state that this Court has adopted a policy of non-interference in the conduct of preliminary investigations, and leaves to the investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitute sufficient evidence as will establish "probable cause" for filing of information against a supposed offender. In Tabujara v. Office of the Special Prosecutor,[17] it was ruled that:

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"Courts cannot interfere with the discretion of the (fiscal) Ombudsman to determine the specificity and adequacy of the averments of the offense charged. He may xxx proceed with the investigation of the complaint if it is, in his view, in due and proper form. xxx xxx xxx

"The Ombudsman x x x is the proper adjudicator of the question as to the existence of a case warranting the filing of information in court."[18] As this Court held in the case of Cruz, Jr. v. People,[19] "(t)he rule is based not only upon the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant." IV With respect to the issue as to whether or not the Informations filed before the sala of respondent judge, allegedly without the benefit of a preliminary investigation conducted by respondent City Prosecutor, are characterized by such fatal defects that would warrant a writ of prohibition to enjoin respondent judge from taking any further action thereon except to order the case's outright dismissal, suffice it to state that the pronouncements of this court aforesaid, for obvious reasons, no longer need a discussion as to the merit or the lack thereof. Besides, petitioner's prayer for injunction to restrain the criminal action against her is not legally permissible: "xxx an injunction will not generally lie to restrain a criminal action (Paderanga v. Drilon, 196 SCRA 86 [1991]; Brocka v. Enriel, 192 SCRA 183 [1990]; Crespo v. Mogul, 151 SCRA 462 [1987]). In the Brocka case, we laid the following exceptions to the rule (1) when the injunction is necessary to afford adequate protection to the constitutional rights of the accused; (2) when it is necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; (3) when there is a prejudicial question which is subjudice; (4) when the acts of the officer are without or in excess of authority; (5) where the prosecution is under an invalid law, ordinance or regulation; (6) when double jeopardy is clearly apparent; (7) where the Court has no jurisdiction over the offense; (8) where it is a case of persecution rather than prosecution; (9) where the charges are manifestly false and motivated by the lust for vengeance; and (10) when there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied."[20] Petitioner has not shown that her case falls within any of the recognized exceptions. Perforce, her prayer for injunction to restrain the criminal actions against her must be denied. WHEREFORE, for lack of merit, the instant Petition is DENIED.
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SO ORDERED.

Matibag vs Benipayo Case Digest

Here are some digested cases from the Jurisprudence regarding issues related to the Executive Department. I know, I digested it differently but this is how I remember things easily. You still have to read the whole Jurisprudence. You will never understand the things I wrote below, maybe some but perhaps most of the things I jot down are only the important ones and I might even forgot some important key factors, unless you have read the original text. Do not rely too much ion this. These digested cases will just help you remember things out during oral recitations. God bless future lawyers!

Matibag vs Benipayo GR No. 149036 April 2, 2002 Maria J. Angelina G. Matibag questions the constitutionality of the appointment by President Arroyo of Benipayo (Chairman of the Commission on Elections), and Bora and Tuason (COMELEC Commissioners). She questions the legality of appointment by Benipayo of Velma J. Cinco as Director IV of the Comelecs EID and reassigning her to the Law department. Issues: 1. Instant petition satisfies all requirements 2. Assumption of office by Benipayo, Bora and Tuason; ad interim appointments amounts to a temporary appointment prohibited by Sec 1 (2), Article IX-C of the Constitution 3. Renewal of ad interim violated the prohibition on reappointment under Sec 1 (2), Article IX-C of the Constitution 4. Benipayos removal of petitioner is illegal

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5. OIC of COMELECs Finance Services Department acting in excess jurisdiction Matibags Argument: 1. Failure to consult for reassignment 2. Civil Service Commission Memorandum Circular No 7; transferring and detailing employees are prohibited during the election period beginning January 2 until June 13, 2001 3. Reassignment violated Sec 261 of the Omnibus Election Code, COMELEC Resolution No. 3258 4. Ad interim appointments of Benipayo, Bora and Tuason violated the constitutional provisions on the independence of the COMELEC 5. Illegal removal or reassignment 6. Challenges the designation of Cinco 7. Questions the disbursement made by COMELEC 8. No ad interim appointment to the COMELEC or to Civil Service Commission and COA 9. Sec 1 (2) of Article IX-C; an ad interim appointee cannot assume office until confirmed by the Commission on Appointments Benipayos Argument: 1. Comelec Resolution No. 3300 2. Petitioner does not have personal interest, not directly injured 3. Failure to question constitutionality of ad interim appointments at the earliest opportunity. She filed only after third time of reappointments 4. Ad interim is not the lis mota because the real issue is the legality of petitioners reassignment. Rules of Court: 1. Real issue is whether or not Benipayo is the lawful Chairman of the Comelec 2. Petitioner has a personal and material stake. 3. It is not the date of filing of the petition that determines whether the constitutional issue was raised at the earliest point. The earliest opportunity to raise a constitutional issue is to raise it in the pleading. 4. Questioned the constitutionality of the ad interim appointments which is the earliest opportunity for pleading the constitutional issue before a competent body. 5. Ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn. It is not the nature of appointment but the manner on which 49

appointment was made. It will avoid interruptions that would result to prolonged vacancies. It is limited the evil sought to be avoided. 6. Termination of Ad interim appointment (Sword of Damocles); (1) disapproval (2) recess 7. Two modes of appointment: (1) in session (2) in recess 8. By-passed appointments (1) lack of time/failure of the Commission on Appointments to organize, (2) subject of reconsideration, (3) can be revived since there is no final disapproval 9. Four situations in for a term of seven years without replacement: (1) serves his full seven-year term, (2) serves a part of his term and then resigns before his seven-year term, (3) served the unexpired term of someone who died or resigned, (4) served a term of less than seven years, and a vacancy arises from death or resignation. Not one of the four situation applies to the case of Benipayo, Borra or Tuason 10. Reappointment cannot be applied; (1) appointed by president, (2) confirmed by Commission on Appointments 11. Without reappointment means: (first phrase) prohibits reappointment of any person previously appointed for a term of seven years (second phrase) prohibits reappointment of any person previously appointed for a term of 5 or 3 years pursuant to the first set of appointees 12. Reasons for prohibition of reappointments: (1) prevent second appointment (2) not serve beyond the fixed term 13. Two important amendments: (1) requiring the consent by Commission of Appointments (2) prohibition on serving beyond the fixed term of 7 years 14. Twin Prohibition (ironclad): (1) prohibition of reappointments (2) prohibition of temporary or acting appointments 15. Third issue not violation because the previous appointments were not confirmed by the Commission on Appointments. 16. Benipayo is the de jure COMELEC Chairman. He is not required by law to secure the approval of the COMELEC en banc. 17. The petitioner is acting only temporary because a permanent appointment can be issued only upon meeting all the requirements. COMELEC Resolution No. 3300 refers only to COMELEC field personnel not to head office personnel.

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Pimentel vs. Ermita, G.R. No. 164978, October 13, 2005.

EN BANC
AQUILINO Q. PIMENTEL, JR., EDGARDO J. ANGARA, JUAN PONCE ENRILE, LUISA P. EJERCITO-ESTRADA, JINGGOY E. ESTRADA, PANFILO M. LACSON, ALFREDO S. LIM, JAMBY A.S. MADRIGAL, and SERGIO R. OSMEA III, Petitioners, - versus G.R. No. 164978

Present: Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio Morales,

EXEC. SECRETARY EDUARDO R. ERMITA, FLORENCIO B. ABAD, AVELINO J. CRUZ, JR., MICHAEL T. DEFENSOR,

Callejo, Sr., Azcuna, Tinga, Chico-Nazario, and

51

JOSEPH DURANO, Garcia, JJ. RAUL M. GONZALEZ, ALBERTO G. ROMULO, RENE ARTHUR C. YAP, Respondents. October 13, 2005 x-----------------------------------------------------x C. VILLA,

H.

and Promulgated:

DECISION
CARPIO, J.:

The Case

This is a petition for certiorari and prohibition[1] with a prayer for the issuance of a writ of preliminary injunction to declare unconstitutional the appointments issued by President Gloria Macapagal-Arroyo (President Arroyo) through Executive Secretary Eduardo R. Ermita (Secretary Ermita) to Florencio B. Abad, Avelino J. Cruz, Jr., Michael T. Defensor, Joseph H. Durano, Raul M. Gonzalez, Alberto G. Romulo, Rene C. Villa, and Arthur C. Yap (respondents) as
52

acting secretaries of their respective departments. The petition also seeks to prohibit respondents from performing the duties of department secretaries.

Antecedent Facts

The Senate and the House of Representatives (Congress) commenced their regular session on 26 July 2004. The Commission on Appointments, composed of Senators and Representatives, was constituted on 25 August 2004. Meanwhile, President Arroyo issued appointments[2] to respondents as acting secretaries of their respective departments.
Appointee Arthur C. Yap Alberto G. Romulo Raul M. Gonzalez Florencio B. Abad Avelino J. Cruz, Jr. Rene C. Villa Joseph H. Durano Michael T. Defensor Department Agriculture Foreign Affairs Justice Education National Defense Agrarian Reform Tourism Environment and Natural Resources Date of Appointment 15 August 2004 23 August 2004

23 August 2004
23 August 2004 23 August 2004 23 August 2004 23 August 2004 23 August 2004

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The appointment papers are uniformly worded as follows:

Sir:

Pursuant to the provisions of existing laws, you are hereby appointed ACTING SECRETARY, DEPARTMENT OF (appropriate department) vice (name of person replaced).

By virtue hereof, you may qualify and enter upon the performance of the duties and functions of the office, furnishing this Office and the Civil Service Commission with copies of your Oath of Office.

(signed)
Gloria Arroyo

Respondents took their oath of office and assumed duties as acting secretaries.

On 8 September 2004, Aquilino Q. Pimentel, Jr. (Senator Pimentel), Edgardo J. Angara (Senator Angara), Juan Ponce Enrile (Senator Enrile),
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Luisa P. Ejercito-Estrada (Senator Ejercito-Estrada), Jinggoy E. Estrada (Senator Estrada), Panfilo M. Lacson (Senator Lacson), Alfredo S. Lim (Senator Lim), Jamby A.S. Madrigal (Senator Madrigal), and Sergio R. Osmea, III (Senator Osmea) (petitioners) filed the present petition as Senators of the Republic of the Philippines.

Congress adjourned on 22 September 2004. On 23 September 2004, President Arroyo issued ad interim appointments[3] to respondents as secretaries of the departments to which they were previously appointed in an acting capacity. The appointment papers are uniformly worded as follows:
Sir:

Pursuant to the provisions of existing laws, you are hereby appointed SECRETARY [AD INTERIM], DEPARTMENT OF (appropriate department).

By virtue hereof, you may qualify and enter upon the performance of the duties and functions of the office, furnishing this Office and the Civil Service Commission with copies of your oath of office.

(signed)

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Gloria Arroyo

Issue

The petition questions the constitutionality of President Arroyos appointment of respondents as acting secretaries without the consent of the Commission on Appointments while Congress is in session.

The Courts Ruling

The petition has no merit.

Preliminary Matters

On the Mootness of the Petition

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The Solicitor General argues that the petition is moot because President Arroyo had extended to respondents ad interimappointments on 23 September 2004 immediately after the recess of Congress. As a rule, the writ of prohibition will not lie to enjoin acts already done. [4] However, as an exception to the rule on mootness, courts will decide a question otherwise moot if it is capable of repetition yet evading review.[5] In the present case, the mootness of the petition does not bar its resolution. The question of the constitutionality of the Presidents appointment of department secretaries in an acting capacity while Congress is in session will arise in every such appointment.

On the Nature of the Power to Appoint

The power to appoint is essentially executive in nature, and the legislature may not interfere with the exercise of this executive power except in those instances when the Constitution expressly allows it to interfere.[6] Limitations on the executive power to appoint are construed strictly against the legislature.[7] The scope of the legislatures interference in the executives power to appoint is li mited to the power to prescribe the qualifications to an appointive office. Congress cannot appoint a person to an office in the guise of prescribing qualifications to
57

that office. Neither may Congress impose on the President the duty to appoint any particular person to an office.[8] However, even if the Commission on Appointments is composed of members of Congress, the exercise of its powers is executive and not legislative. The Commission on Appointments does not legislate when it exercises its power to give or withhold consent to presidential appointments. Thus:
xxx The Commission on Appointments is a creature of the Constitution. Although its membership is confined to members of Congress, said Commission is independent of Congress. The powers of the Commission do not come from Congress, but emanate directly from the Constitution. Hence, it is not an agent of Congress. In fact, the functions of the Commissioner are purely executive in nature. xxx[9]

On Petitioners Standing

The Solicitor General states that the present petition is a quo warranto proceeding because, with the exception of Secretary Ermita, petitioners effectively seek to oust respondents for unlawfully exercising the powers of department secretaries. The Solicitor General further states that petitioners may not claim standing as Senators because no power of the Commission on Appointments has been infringed upon or violated by the President. xxx If at all,

58

the Commission on Appointments as a body (rather than individual members of the Congress) may possess standing in this case.[10] Petitioners, on the other hand, state that the Court can exercise its certiorari jurisdiction over unconstitutional acts of the President.[11] Petitioners further contend that they possess standing because President Arroyos appointment of department secretaries in an acting capacity while Congress is in session impairs the powers of Congress. Petitioners cite Sanlakas v. Executive Secretary[12] as basis, thus:
To the extent that the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution. An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial injury, which can be questioned by a member of Congress. In such a case, any member of Congress can have a resort to the courts.

Considering the independence of the Commission on Appointments from Congress, it is error for petitioners to claim standing in the present case as members of Congress. President Arroyos issuance of acting appointments while Congress is in session impairs no power of Congress. Among the petitioners, only the following are members of the Commission on Appointments of the 13th Congress: Senator Enrile as Minority Floor Leader, Senator Lacson as
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Assistant Minority Floor Leader, and Senator Angara, Senator Ejercito-Estrada, and Senator Osmea as members. Thus, on the impairment of the prerogatives of members of the Commission on Appointments, only Senators Enrile, Lacson, Angara, Ejercito-Estrada, and Osmea have standing in the present petition. This is in contrast to Senators Pimentel, Estrada, Lim, and Madrigal, who, though vigilant in protecting their perceived prerogatives as members of Congress, possess no standing in the present petition. The Constitutionality of President Arroyos Issuance of Appointments to Respondents as Acting Secretaries

Petitioners contend that President Arroyo should not have appointed respondents as acting secretaries because in case of a vacancy in the Office of a Secretary, it is only an Undersecretary who can be designated as Acting Secretary.[13] Petitioners base their argument on Section 10, Chapter 2, Book IV of Executive Order No. 292 (EO 292),[14] which enumerates the powers and duties of the undersecretary. Paragraph 5 of Section 10 reads:
SEC. 10. Powers and Duties of the Undersecretary. - The Undersecretary shall: xxx

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(5) Temporarily discharge the duties of the Secretary in the latters absence or inability to discharge his duties for any cause or in case of vacancy of the said office, unless otherwise provided by law. Where there are more than one Undersecretary, the Secretary shall allocate the foregoing powers and duties among them. The President shall likewise make the temporary designation of Acting Secretary from among them; and xxx

Petitioners further assert that while Congress is in session, there can be no appointments, whether regular or acting, to a vacant position of an office needing confirmation by the Commission on Appointments, without first having obtained its consent.[15] In sharp contrast, respondents maintain that the President can issue appointments in an acting capacity to department secretaries without the consent of the Commission on Appointments even while Congress is in session. Respondents point to Section 16, Article VII of the 1987 Constitution. Section 16 reads:
SEC. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such
61

appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.

Respondents also rely on EO 292, which devotes a chapter to the Presidents power of appointment. Sections 16 and 17, Chapter 5, Title I, Book III of EO 292 read:
SEC. 16. Power of Appointment. The President shall exercise the power to appoint such officials as provided for in the Constitution and laws. SEC. 17. Power to Issue Temporary Designation. (1) The President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch, appointment to which is vested in him by law, when: (a) the officer regularly appointed to the office is unable to perform his duties by reason of illness, absence or any other cause; or (b) there exists a vacancy[.] (2) The person designated shall receive the compensation attached to the position, unless he is already in the government service in which case he shall receive only such additional compensation as, with his existing salary, shall not exceed the salary authorized by law for the position filled. The compensation hereby authorized shall be paid out of the funds appropriated for the office or agency concerned. (3) In no case shall a temporary designation exceed one (1) year. (Emphasis supplied)

Petitioners and respondents maintain two diametrically opposed lines of thought. Petitioners assert that the President cannot issue appointments in an acting capacity to department secretaries while Congress is in session because the law does not give the President such power. In contrast, respondents insist that the

62

President can issue such appointments because no law prohibits such appointments. The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap measure intended to fill an office for a limited time until the appointment of a permanent occupant to the office.[16] In case of vacancy in an office occupied by analter ego of the President, such as the office of a department secretary, the President must necessarily appoint an alter ego of her choice as acting secretary before the permanent appointee of her choice could assume office. Congress, through a law, cannot impose on the President the obligation to appoint automatically the undersecretary as her temporary alter ego. An alter

ego, whether temporary or permanent, holds a position of great trust and confidence. Congress, in the guise of prescribing qualifications to an office, cannot impose on the President who her alter ego should be. The office of a department secretary may become vacant while Congress is in session. Since a department secretary is thealter ego of the President, the acting appointee to the office must necessarily have the Presidents confidence. Thus, by the very nature of the office of a department secretary, the President must appoint in an acting capacity a person of her choice even while Congress is in session.
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That person may or may not be the permanent appointee, but practical reasons may make it expedient that the acting appointee will also be the permanent appointee. The law expressly allows the President to make such acting appointment. Section 17, Chapter 5, Title I, Book III of EO 292 states that [t]he President may temporarily designate an officer already in the government service or any other competent personto perform the functions of an office in the executive branch. Thus, the President may even appoint in an acting capacity a person not yet in the government service, as long as the President deems that person competent. Petitioners assert that Section 17 does not apply to appointments vested in the President by the Constitution, because it only applies to appointments vested in the President by law. Petitioners forget that Congress is not the only source of law. Law refers to the Constitution, statutes or acts of Congress, municipal ordinances, implementing rules issued pursuant to law, and judicial decisions.[17] Finally, petitioners claim that the issuance of appointments in an acting capacity is susceptible to abuse. Petitioners fail to consider that acting

appointments cannot exceed one year as expressly provided in Section 17(3), Chapter 5, Title I, Book III of EO 292. The law has incorporated this safeguard to prevent abuses, like the use of acting appointments as a way to circumvent confirmation by the Commission on Appointments.
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In distinguishing ad interim appointments from appointments in an acting capacity, a noted textbook writer on constitutional law has observed:
Ad-interim appointments must be distinguished from appointments in an acting capacity. Both of them are effective upon acceptance. But ad-interim appointments are extended only during a recess of Congress, whereas acting appointments may be extended any time there is a vacancy. Moreover ad-interim appointments are submitted to the Commission on Appointments for confirmation or rejection; acting appointments are not submitted to the Commission on Appointments. Acting appointments are a way of temporarily filling important offices but, if abused, they can also be a way of circumventing the need for confirmation by the Commission on Appointments.[18]

However, we find no abuse in the present case. The absence of abuse is readily apparent from President Arroyos issuance of ad interim appointments to respondents immediately upon the recess of Congress, way before the lapse of one year. WHEREFORE, prohibition. we DISMISS the present petition for certiorari and

SO ORDERED.

65

Professor Randolf S. David, et. al. vs. Macapagal-Arroyo, et. al.

G.R. No. 171396 Gutierrez, J. 03 May 2006 Ponente: Sandoval-

OVERVIEW: This is a case of seven consolidated petitions for certiorari and prohibition alleging that in issuing Presidential Proclamation No. 1017 and General Order No. 5, President Arroyo committed grave abuse of discretion.

FACTS: On February 24, 2006, President Arroyo issued PP1017 declaring a State of National Emergency invoking Section 18, Article 7 of the 1987 Constitution. On the same day, she also issued GO no. 5 AFP and PNP to immediately carry out appropriate actions to suppress and prevent the lawless violence by invoking Section 4, Article 2 of the same. She did so citing the following bases: The elements of the elements of the Extreme Left (NDF-CPP-NPA) and Extreme Right are now in alliance threatening to bring down the President; Being magnified by the media, said acts are adversely affecting the economy thus representing clear and present danger to the safety and integrity of the State A week later, the President lifted PP1017 via PP1021. It must be noted that before the said proclamations, the following course of events ensued: February 17, 2006 : authorities got hold of a document entitled Oplan Hackle I detailing the plans for bombing more particularly that which was to occur in the PMA Homecoming in Baguio City which the President was to attend. February 21, 2006 : Lt. San Juan recaptured a communist safehouse where 2 flash disks containing information that Magdalos D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I. February 23, 2006 : PNP Chief Lomibao intercepted information that members of the PNP-SAF were planning to defect. Also, it was discovered that B/Gen. Danilo Lim and Col. Ariel Querubin were plotting to break the AFP chain of command for a movement against the Arroyo administration. The two were later taken into custody by Gen. Senga. However, statements were being released from the CPP-NPA and NDF on the increasing number of anti-Arroyo groups within the police and military. The bombing of telecommunication towers and cell sites in Bulacan and Bataan. The effects of PP1017 and GO No. 5 are as follows:

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Protest by the KMU, NAFLU-KMU despite the cancellation of programs and activities for the 20th celebration of Edsa I as well as revocation of rally permits resulting in the violent disposal of the said groups and warrantless arrest of petitioner Randolf David and Ronald Llamas. Raid of the Daily Tribune, Malaya and Abante offices and confiscation of news stories and various documents Arrest of Congressman Crispin Beltran (Anakpawis Party) by the police showing a 1985 warrant from the Marcos regime and attempts on the arrest of Satur Ocampo, Rafael Mariano, et. al. The petitioners assail that various rights stated in Article III of the 1987 Constitution have been violated, thus the case at hand.

ISSUES: 1. Whether PP 1021 in lifting PP 1017 renders the petitions moot and academic; 2. Whether the Court may review the factual bases of PP1017 on the petitioners contention that the said proclamation has none of it; 3. Whether PP 1017 and GO no. 5 are unconstitutional for their insofar as it allegedly violates the right of the people against unreasonable search and seizures, the right against warrantless arrest, the freedom of speech, of expression, of the press, and to peaceably assemble. HELD: 1. The court held that President Arroyos issuance of PP 1021 did not render the present petitions moot and academic. During the eight days that PP 1017 was operative, the police officers committed illegal acts implementing it. There is no question that the issues being raised affect the publics interest i nvolving as they do the peoples basic rights to freedom of expression, of assembly and of the press. An otherwise moot case may still be decided provided that the party raising it continues to be prejudiced or damaged as a direct result of its issuance (Sanlakas v. Executive Secretary) which is applicable in the present case. 2. Yes, the Court may do so. As to how the Court may inquire into the Presidents exercise of power, it must be proven that the President did not act arbitrarily. It is incumbent upon the petitioner to show that the Presidents decision is totally bereft of factual basis as the Court cannot undertake an independent investigation beyond the pleadings. This, however, was something that the petitioners failed to prove. 3. Since there is no law defining acts of terrorism, it is President Arroyo alone, under G.O. No. 5 who has the discretion to determine what acts constitute terrorism, without restrictions. Certainly, the effects which may be implicated by such violate the due process clause of the Constitution. Thus, the acts of terrorism portion of G.O. No. 5 is unconstitutional. The plain import of the
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language of the Constitution provides that searches, seizures and arrests are normally unreasonable without a search warrant or warrant of arrest. A warrantless arrest shall only be done if the offense is committed in ones presence or it has just been committed based on personal knowledge both of which are not present in Davids warrantless arrest. This being done during the dispersal and arrest of the members of KMU, et. al. is also violative of the right of the people to peaceably assemble. The wholesale cancellation of all permits to rally is a blatant disregard of the principle that freedom of assembly is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that the State has a right to prevent. Revocation of such permits may only be done after due notice and hearing. In the Daily Tribune case, the search and seizure of materials for publication, the stationing of policemen in the vicinity of The Daily Tribune offices, and the arrogant warning of government officials to media are plain censorship. It is that officious functionary of the repressive government who tells the citizen that he may speak only if allowed to do so, and no more. When in implementing its provisions, pursuant to G.O. No. 5, the military and the police committed acts which violate the citizens rights under the Constitution, the Court has to declare such acts unconstitutional and illegal.

Lacson Vs. Perez

357 SCRA 756 G.R. No. 147780 May 10, 2001

Facts: President Macapagal-Arroyo declared a State of Rebellion (Proclamation No. 38) on May 1, 2001 as well as General Order No. 1 ordering the AFP and the PNP to suppress the rebellion in the NCR. Warrantless arrests of several alleged leaders and promoters of the rebellion were thereafter effected. Petitioner filed for prohibition, injunction, mandamus and habeas corpus with an application for the issuance of temporary restraining order and/or writ of preliminary injunction. Petitioners assail the declaration of Proc. No. 38 and the warrantless arrests allegedly effected by virtue thereof. Petitioners furthermore pray that the appropriate court, wherein the information against them were filed, would desist arraignment and trial until this instant petition is
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resolved. They also contend that they are allegedly faced with impending warrantless arrests and unlawful restraint being that hold departure orders were issued against them.

Issue: Whether or Not Proclamation No. 38 is valid, along with the warrantless arrests and hold departure orders allegedly effected by the same.

Held: President Macapagal-Arroyo ordered the lifting of Proc. No. 38 on May 6, 2006, accordingly the instant petition has been rendered moot and academic. Respondents have declared that the Justice Department and the police authorities intend to obtain regular warrants of arrests from the courts for all acts committed prior to and until May 1, 2001. Under Section 5, Rule 113 of the Rules of Court, authorities may only resort to warrantless arrests of persons suspected of rebellion in suppressing the rebellion if the circumstances so warrant, thus the warrantless arrests are not based on Proc. No. 38. Petitioners prayer for mandamus and prohibition is improper at this time because an individual warrantlessly arrested has adequate remedies in law: Rule 112 of the Rules of Court, providing for preliminary investigation, Article 125 of the Revised Penal Code, providing for the period in which a warrantlessly arrested person must be delivered to the proper judicial authorities, otherwise the officer responsible for such may be penalized for the delay of the same. If the detention should have no legal ground, the arresting officer can be charged with arbitrary detention, not prejudicial to claim of damages under Article 32 of the Civil Code. Petitioners were neither assailing the validity of the subject hold departure orders, nor were they expressing any intention to leave the country in the near future. To declare the hold departure orders null and void ab initio must be made in the proper proceedings initiated for that purpose. Petitioners prayer for relief regarding their alleged impending warrantless arrests is premature being that no complaints have been filed against them for any crime, furthermore, the writ of habeas corpus is uncalled for since its purpose is to relieve unlawful restraint which Petitioners are not subjected to.

Petition is dismissed. Respondents, consistent and congruent with their undertaking earlier adverted to, together with their agents, representatives, and all persons acting in their behalf, are hereby enjoined from arresting Petitioners without the required judicial warrants for all acts committed in relation to or in connection with the May 1, 2001 siege of Malacaang.

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SANLAKAS Vs. Executive Secretary

421 SCRA 656 G.R. No. 159085 February 3, 2004 Facts: During the wee hours of July 27, 2003, some three-hundred junior officers and enlisted men of the AFP, acting upon instigation, command and direction of known and unknown leaders have seized the Oakwood Building in Makati. Publicly, they complained of the corruption in the AFP and declared their withdrawal of support for the government, demanding the resignation of the President, Secretary of Defense and the PNP Chief. These acts constitute a violation of Article 134 of the Revised Penal Code, and by virtue of Proclamation No. 427 and General Order No. 4, the Philippines was declared under the State of Rebellion. Negotiations took place and the officers went back to their barracks in the evening of the same day. On August 1, 2003, both the Proclamation and General Orders were lifted, and Proclamation No. 435, declaring the Cessation of the State of Rebellion was issued. In the interim, however, the following petitions were filed: (1) SANLAKAS AND PARTIDO NG MANGGAGAWA VS. EXECUTIVE SECRETARY, petitioners contending that Sec. 18 Article VII of the Constitution does not require the declaration of a state of rebellion to call out the AFP, and that there is no factual basis for such proclamation. (2)SJS Officers/Members v. Hon. Executive Secretary, et al, petitioners contending that the proclamation is a circumvention of the report requirement under the same Section 18, Article VII, commanding the President to submit a report to Congress within 48 hours from the proclamation of martial law. Finally, they contend that the presidential issuances cannot be construed as an exercise of emergency powers as Congress has not delegated any such power to the President. (3) Rep. Suplico et al. v. President Macapagal-Arroyo and Executive Secretary Romulo, petitioners contending that there was usurpation of the power of Congress granted by Section 23 (2), Article VI of the Constitution. (4) Pimentel v. Romulo, et al, petitioner fears that the declaration of a state of rebellion "opens the door to the unconstitutional implementation of warrantless arrests" for the crime of rebellion. Issue: Whether or Not Proclamation No. 427 and General Order No. 4 are constitutional? Whether or Not the petitioners have a legal standing or locus standi to bring suit?

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Held: The Court rendered that the both the Proclamation No. 427 and General Order No. 4 are constitutional. Section 18, Article VII does not expressly prohibit declaring state or rebellion. The President in addition to its Commander-in-Chief Powers is conferred by the Constitution executive powers. It is not disputed that the President has full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. While the Court may examine whether the power was exercised within constitutional limits or in a manner constituting grave abuse of discretion, none of the petitioners here have, by way of proof, supported their assertion that the President acted without factual basis. The issue of the circumvention of the report is of no merit as there was no indication that military tribunals have replaced civil courts or that military authorities have taken over the functions of Civil Courts. The issue of usurpation of the legislative power of the Congress is of no moment since the President, in declaring a state of rebellion and in calling out the armed forces, was merely exercising a wedding of her Chief Executive and Commander-in-Chief powers. These are purely executive powers, vested on the President by Sections 1 and 18, Article VII, as opposed to the delegated legislative powers contemplated by Section 23 (2), Article VI. The fear on warrantless arrest is unreasonable, since any person may be subject to this whether there is rebellion or not as this is a crime punishable under the Revised Penal Code, and as long as a valid warrantless arrest is present. Legal standing or locus standi has been defined as 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 gist of the question of standing is whether a party alleges "such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of Issue upon which the court depends for illumination of difficult constitutional questions. Based on the foregoing, petitioners Sanlakas and PM, and SJS Officers/Members have no legal standing to sue. Only petitioners Rep. Suplico et al. and Sen. Pimentel, as Members of Congress, have standing to challenge the subject issuances. It sustained its decision in Philippine Constitution Association v. Enriquez, that the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution.

Case Digest on Bayan v. Zamora (Visiting Forces Agreement) G.R. NO. 138570 (October 10. 2000)

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The Visiting Forces Agreement, for which Senate concurrence was sought and received on May 27, 1999, is the subject of a number of Constitutional challenges. Issue 1: Do the Petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the constitutionality of the VFA? Petitioners Bayan Muna, etc. have no standing. A party bringing a suit challenging the Constitutionality of a law must show not only that the law is invalid, but that he has sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. Petitioners have failed to show that they are in any danger of direct injury as a result of the VFA. As taxpayers, they have failed to establish that the VFA involves the exercise by Congress of its taxing or spending powers. A taxpayers suit refers to a case where the act complained of directly involves the illegal disbursement of public funds derived from taxation. Before he can invoke the power of judicial review, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he will sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to all members of the public. Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence of any allegation by petitioners that public funds are being misspent or illegally expended, petitioners, as taxpayers, have no legal standing to assail the legality of the VFA. Similarly, the petitioner-legislators (Tanada, Arroyo, etc.) do not possess the requisite locus standi to sue. In the absence of a clear showing of any direct injury to their person or to the institution to which they belong, they cannot sue. The Integrated Bar of the Philippines (IBP) is also stripped of standing in these cases. The IBP lacks the legal capacity to bring this suit in the absence of a board resolution from its Board of Governors authorizing its National President to commence the present action. Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised, the Court may brush aside the procedural barrier and takes cognizance of the petitions. Issue 2: Is the VFA governed by section 21, Art. VII, or section 25, Art. XVIII of the Constitution? Section 25, Art XVIII, not section 21, Art. VII, applies, as the VFA involves the presence of foreign military troops in the Philippines. The Constitution contains two provisions requiring the concurrence of the Senate on treaties or international agreements. Section 21, Article VII reads: [n]o treaty or international agreement shall be valid and effective unless concurred in by at least twothirds of all the Members of the Senate. Section 25, Article XVIII, provides:[a]fter the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes

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cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State. Section 21, Article VII deals with treaties or international agreements in general, in which case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the treaty valid and binding to the Philippines. This provision lays down the general rule on treaties. All treaties, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be valid and effective. In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render compliance with the constitutional requirements and to consider the agreement binding on the Philippines. Sec 25 further requires that foreign military bases, troops, or facilities may be allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by Congress, and recognized as such by the other contracting state. On the whole, the VFA is an agreement which defines the treatment of US troops visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the US and RP government in the matter of criminal jurisdiction, movement of vessel and aircraft, import and export of equipment, materials and supplies. Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops, or facilities, should apply in the instant case. To a certain extent, however, the provisions of Section 21, Article VII will find applicability with regard to determining the number of votes required to obtain the valid concurrence of the Senate. It is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the reason that there is no permanent placing of structure for the establishment of a military base. The Constitution makes no distinction between transient and permanent. We find nothing in Section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines. When no distinction is made by law; the Court should not distinguish. We do not subscribe to the argument that Section 25, Article XVIII is not controlling since no foreign military bases, but merely foreign troops and facilities, are involved in the VFA. The proscription covers foreign military bases, troops, or facilities. Stated differently, this prohibition is not limited to the entry of troops and facilities without any foreign bases being established. The clause does not refer to foreign military bases, troops, or facilities collectively but treats them as separate and independent subjects, such that three different situations are contemplated a military treaty the subject of which

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could be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities any of the three standing alone places it under the coverage of Section 25, Article XVIII. Issue 3: Was Sec 25 Art XVIIIs requisites satisfied to make the VFA effective? Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by Congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state. There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the Senate through Resolution No. 18 is in accordance with the Constitution, as there were at least 16 Senators that concurred. As to condition (c), the Court held that the phrase recognized as a treaty means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the US to submit the VFA to the US Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase. Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use. The records reveal that the US Government, through Ambassador Hubbard, has stated that the US has fully committed to living up to the terms of the VFA. For as long as the US accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its treaty obligations, there is indeed 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 and unequivocal expression of our nations consent to be bound by said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder. Ratification is generally held to be an executive act, undertaken by the head of the state, through which the formal acceptance of the treaty is proclaimed. A State may provide in its domestic legislation the process of ratification of a treaty. In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification. With the ratification of the VFA it now becomes obligatory and incumbent on our part, under principles of international law (pacta sunt servanda), to be bound by the terms of the agreement. Thus, no less than Section 2, Article II 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.

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De Jesus vs COA, G.R. No. 149154. June 10, 2003

EN BANC

[G.R. No. 149154. June 10, 2003]

RODOLFO S. DE JESUS, EDELWINA DG. PARUNGAO, HERMILO S. BALUCAN, AVELINO C. CASTILLO, DANILO B. DE LEON (Interim Board of Directors, Catbalogan Water District), and ALICE MARIE C. OSORIO (Board Secretary), petitioners, vs. COMMISSION ON AUDIT, respondent. DECISION
CARPIO, J.:

The Case This is a petition for certiorari to annul the Decision dated 12 September 2000 of the Commission on Audit (COA) and its Resolution dated 5 July 2001. The COA affirmed the disallowance of payment of allowances and bonuses to members of the interim Board of Directors of the Catbalogan Water District.
[1]

The Antecedents An auditing team from the COA Regional Office No. VIII in Candahug, Palo, Leyte, audited the accounts of the Catbalogan Water District (CWD) in Catbalogan, Samar. The auditing team discovered that between May to December 1997 and April to June 1998, members of CWDs interim Board of Directors (Board) granted themselves the following benefits: Representation and Transportation Allowance (RATA), Rice Allowance, Productivity Incentive Bonus, Anniversary Bonus, Year-End Bonus and cash gifts. These allowances and bonuses were authorized under Resolution No. 313, series of 1995, of the Local Water Utilities Administration (LWUA).
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During the audit, the COA audit team issued two notices of disallowance dated 1 October 1998 disallowing payment of the allowances and bonuses received by petitioners, namely: Rodolfo S. De Jesus, Edelwina DG. Parungao, Hermilo S. Balucan, Avelino C. Castillo and Danilo B. De Leon as members of the CWD Board as well as Alice Marie C. Osorio as the Boards secretary (collectively petitioners). The audit team disallowed the allowances and bonuses on the ground that they run counter to Section 13 of Presidential Decree No. 198 (PD 198). Petitioners appealed to the COA Regional Office No. VIII but COA Regional Director Dominador T. Tersol denied the appeal. Aggrieved, petitioners filed a petition for review with the COA which in a decision dated 12 September 2000 denied the petition. The COA also denied on 5July 2001 petitioners motion for reconsideration. Hence, the instant petition. The COAs Ruling The COA explained that members of the CWD Board cannot receive compensation and other benefits in addition to the per diems allowed by Section 13 of PD 198. We quote the relevant portion of the COAs decision: Resolution No. 313, s. 1995, as amended, which grants compensation and other benefits to the members of the Board of Directors of CWD is not in harmony with the aforequoted provisions of Sec. 13, PD 198, which speaks only of per diems, the amount of which is subject to approval by the administrator if more than P50.00 each for every meeting. It is a fundamental rule in statutory construction that if a statute is clear, plain and free from ambiguity, it must be given literal meaning and applied without attempted interpretation. Thus, any resolution granting allowances to directors of Water Districts other than that authorized in Sec. 13 of PD 198 is null and void. A statutorily proscribed benefit may not be amended by a mere administrative fiat.
[2]

The Issues Petitioners contend that the COA committed grave abuse of discretion amounting to lack or excess of jurisdiction in -

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1. Motu proprio exercising jurisdiction to declare LWUA Board Resolution No. 313, Series of 1995, as amended, not in conformity with Section 13 of PD 198, as amended; 2. Ruling that Section 13 of PD 198, as amended, prohibits payment to petitioners of RATA, extraordinary and miscellaneous expenses (EME), and other allowances and bonuses; 3. Demanding the refund of the disallowed allowances and bonuses received by petitioners as interim members and secretary of the CWD Board.

The Courts Ruling The petition is meritorious in part. The Catbalogan Water District was created pursuant to PD 198, as amended, otherwise known as the Provincial Water Utilities Act of 1973. PD 198 authorized the local legislative bodies, through an enabling resolution, to create their respective water districts, subject to the guidelines and regulations under PD 198. PD 198 further created the Local Water Utilities Administration (LWUA), a national agency, and granted LWUA regulatory powers necessary to optimize public service from water districts.
[3]

COA s Authority to Disallow Allowances and Benefits Granted under LWUA Board Resolution No. 313, Series 1995 For authority to grant themselves additional allowances and bonuses, petitioners rely on LWUA Resolution No. 131, series of 1995, entitledPolicy Guidelines on Compensation and Other Benefits to WD Board of Directors. Petitioners assert that LWUA is the government agency tasked to regulate and control water districts created pursuant to PD 198 and that LWUA has the power to issue regulations to implement effectively PD 198. Petitioners claim that the COA has no jurisdiction to construe any provision of PD 198 on the compensation and other benefits granted to LWUA-designated members of the board of water districts. By exercising motu proprio plenary jurisdiction to construe and apply Section 13 of PD 198, the COA encroached on the powers of the LWUA. The COA also violated the presumption of legality and regularity generally accorded to policy circulars issued by the administrative agency entrusted to enforce the law. Petitioners further claim that it is the Department of Budget and Management (DBM), not the COA, that has the power to administer the
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compensation and classification system of the government service and to revise it as necessary. Finally, citing Eslao v. COA, petitioners contend that the COA can do no less than to faithfully observe and carry into effect the mandate of LWUA Board Resolution No. 313, until it is declared void in the proper forum.
[4]

Petitioners contentions are untenable. Section 2, Subdivision D, Article IX of the 1987 Constitution expressly provides: Sec. 2(1). The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to the Government, or any of its subdivisions, agencies or instrumentalities, including government-owned and controlled corporations with original charters, and on a post audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this constitution; (b) autonomous state colleges and state universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d) such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the government, which are required by law or the granting institution to submit such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special preaudit, as are necessary and appropriate to correct the deficiencies. It shall keep the general accounts of the government and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto. (2) The Commission shall have exclusive authority, subject to the limitations in this article, to define the scope of its audit and examination, establish the techniques and methods required therefore, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties. (Emphasis supplied) The Constitution and existing laws mandate the COA to audit all government agencies, including government-owned and controlled corporations with original charters. Indeed, the Constitution specifically vests in the COA the authority to determine whether government entities comply with laws and regulations in disbursing government funds, and to disallow illegal or irregular disbursements of government funds. This independent
[5] [6]

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constitutional body is tasked to be vigilant and conscientious in safeguarding the proper use of the governments, and ultimately, the peoples property.
[7]

The Court already ruled in several cases that a water district is a government-owned and controlled corporation with a special charter since it is created pursuant to a special law, PD 198. The COA has the authority to investigate whether directors, officials or employees of government-owned and controlled corporations, receiving additional allowances and bonuses, are entitled to such benefits under applicable laws. Thus, water districts are subject to the jurisdiction of the COA.
[8] [9]

We cannot sustain petitioners claim that the COA usurped the functi ons of the LWUA in construing PD 198 and disallowing payment of the additional allowances and bonuses. Such a theory leads to the absurd situation where the board of an administrative agency, by the mere act of issuing a resolution, can put to naught the broad and extensive powers granted to the COA by the Constitution. This will prevent the COA from discharging its constitutional duty as an effective, efficient and independent watchdog of the financial operations of the government.
[10]

Petitioners reliance on Eslao is misplaced. In Eslao, the Department of Environment and Natural Resources and the Pangasinan State University entered into an agreement to evaluate government reforestation programs. The Asian Development Bank granted a loan to fund the implementation of the agreement. The personnel involved in the project were paid under the DBM-issued National Compensation Circular No.53, which dealt with foreignassisted projects. The COA disallowed the payment on the ground that the compensation should fall under the DBM-issued Compensation Policy Guidelines No. 80-4, which governs all projects and provides for lower compensation rates. In reversing the COA, the Court held that National Compensation Circular No. 53 amended Compensation Policy Guidelines No. 80-4 by excepting from the latters scope foreign-assisted projects. The Court declared that the COA cannot substitute its own judgment for any applicable x x x administrative regulation with the wisdom or propriety of which, however, it does not agree, at least not before such x x x regulation is set aside by the x x x courts x x x.
[11]

Clearly, Eslao is not in point. The difference is that in Eslao, the COA accepted the wisdom of Compensation Policy Guidelines No. 80-4 but refused to accept the propriety of the exception to the circular embodied in National Compensation Circular No. 53. The DBM issued both compensation regulations under its legislative authority to classify positions and determine appropriate salaries for specific position classes and. review appropriate
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salaries for specific position classes and review the compensation benefits programs of agencies x x x. Clearly, the COA had ample legislative authority to issue both compensation regulations. In the instant case, the COA was simply exercising its constitutional duty to examine and audit disbursements of public funds that are patently beyond what the law allows.
[12]

Petitioners confuse the COA which is an independent constitutional body with the DBM which is under the executive branch of the government. The DBM is responsible for formulating and implementing the national budget. It is tasked to [13]

assist the President in the preparation of a national resources and expenditures budget, preparation, execution and control of the National budget, preparation and maintenance of accounting systems essential to the budgetary process, achievement of more economy and efficiency in the management of government operations, administration of compensation and position classification systems, assessment of organization effectiveness and review and evaluation of legislative proposals having budgetary or organizational implications.
[14]

While the DBM is the government agency tasked to release government funds, the duty to examine and audit government accounts and expenditure properly pertains to the COA.
[15]

PD 198 Expressly Prohibits the Grant of RATA, EME, and Bonuses to Members of the Board of Water Districts Section 13 of PD 198, as amended, reads as follows: Compensation. - Each director shall receive a per diem, to be determined by the board, for each meeting of the board actually attended by him, but no director shall receive per diems in any given month in excess of the equivalent of the total per diems of four meetings in any given month. No director shall receive other compensation for services to the district. Any per diem in excess of P50 shall be subject to approval of the Administration. (Emphasis supplied) Petitioners argue that the term compensation in Section 13 of PD 198 does not include RATA, EME, bonuses and other similar benefits disallowed in this case.
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This issue was already resolved in the similar case of Baybay Water District v. Commission on Audit. In Baybay Water District, the members of the board of Baybay Water District also questioned the disallowance by the COA of payment of RATA, rice allowance and excessive per diems. The Court ruled that PD 198 governs the compensation of members of the board of water districts. Thus, members of the board of water districts cannot receive allowances and benefits more than those allowed by PD 198. Construing Section 13 of PD 198, the Court declared:
[16]

xxx Under S 13 of this Decree, per diem is precisely intended to be the compensation of members of board of directors of water districts. Indeed, words and phrases in a statute must be given their natural, ordinary, and commonly-accepted meaning, due regard being given to the context in which the words and phrases are used. By specifying the compensation which a director is entitled to receive and by limiting the amount he/she is allowed to receive in a month, and, in the same paragraph, providing No director shall receive other compensation than the amount provided for per diems, the law quite clearly indicates that directors of water districts are authorized to receive only the per diem authorized by law and no other compensation or allowance in whatever form. Section 13 of PD 198 is clear enough that it needs no interpretation. It expressly prohibits the grant of compensation other than the payment of per diems, thus preempting the exercise of any discretion by water districts in paying other allowances and bonuses.
[17]

Refund of the Allowances and Benefits Received in Good Faith Relying mainly on Civil Liberties Union v. Executive Secretary, petitioners claim that the COA grossly erred in requiring them to refund the allowances and bonuses they received in good faith. In Civil Liberties Union, the Court declared Executive Order No. 284 unconstitutional as it allows Cabinet members, undersecretaries or assistant secretaries to hold multiple positions in violation of the express prohibition in Section 13, Article VII of the 1987 Constitution. However, the Court held that during their tenure in the questioned positions, respondents are de facto officers and entitled to emoluments for actual services rendered. The Court explained that in cases were there is no de jure officer, a de facto officer, who in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees and other compensations attached
[18]

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to the office. The Court considered it unjust that the public should benefit from the services of a de facto officer and then be freed from all liability to pay for such, services. Thus, the Court ruled that any per diem, allowances or other emoluments received by the respondents in Civil Liberties Union for actual services rendered in the questioned positions may be retained by them.
[19]

The scenario in petitioners case is different. The CWD Board appointed petitioners pursuant to PD 198. Petitioners received allowances and bonuses other than those granted to their office by PD 198. Petitioners cannot claim any compensation other than the per diem provided by PD 198 precisely because no other compensation is attached to their office. Nevertheless, our pronouncement in Blaquera v. Alcala supports petitioners position on the refund of the benefits they received. InBlaquera, the officials and employees of several government departments and agencies were paid incentive benefits which the COA disallowed on the ground that Administrative Order No. 29 dated 19 January 1993 prohibited payment of these benefits. While the Court sustained the COA on the disallowance, it nevertheless declared that:
[20]

Considering, however, that all the parties here acted in good faith, we cannot countenance the refund of subject incentive benefits for the year 1992, which amounts the petitioners have already received. Indeed, no indicia of bad faith can be detected under the attendant facts and circumstances. The officials and chiefs of offices concerned disbursed such incentive benefits in the honest belief that the amounts given were due to the recipients and the latter accepted the same with gratitude, confident that they richly deserve such benefits. This ruling in Blaquera applies to the instant case. Petitioners here received the additional allowances and bonuses in good faith under the honest belief that LWUA Board Resolution No. 313 authorized such payment. At the time petitioners received the additional allowances and bonuses, the Court had not yet decided Baybay Water District. Petitioners had no knowledge that such payment was without legal basis. Thus, being in good faith, petitioners need not refund the allowances and bonuses they received but disallowed by the COA.
[21]

WHEREFORE, the Decision of the Commission on Audit dated 12 September 2000 as well as its Resolution dated 5 July 2001 are AFFIRMED with MODIFICATION. Petitioners need not refund the Representation and Transportation Allowance, Rice Allowance, Productivity Incentive Bonus, Anniversary Bonus, Year-End Bonus and cash gifts, received per Resolution

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No. 313, series of 1995, of the Local Water Utilities Administration, between May to December 1997 and April to June 1998. SO ORDERED.

MACALINO vs. SANDIGANBAYAN [G.R. Nos. 140199-200, February 6, 2002] FACTS OF THE CASE: Petitioner Felicito S. Macalino was the Assistant Manager of the Treasury Division and the Head of the Loans Administration and Insurance Section of the Philippines National Construction Corporation (PNCC), a government-controlled corporation. On September 16, 1992, the Special Prosecutor, Office of the Ombudsman, with the approval of the Ombudsman, filed with the Sandiganbayan two informations against the petitioner and his spouse Liwayway S. Tan charging them with estafa through falsification of official documents and frustrated estafa through falsification of mercantile documents. During the initial presentation of evidence for the defense, petitioner moved for leave to file a motion dismiss on the ground that the Sandiganbayan has no jurisdiction over him since he is not a public officer because the Philippine National Construction Corporation (PNCC), formerly Construction and Development Corporation of the Philippines (CDCP), is not a government-owned or controlled corporation with the original character. The Sandiganbayan denied petitioners motion to dismiss. ISSUE: Whether or not the Sandiganbayan has jurisdiction over the petitioner. HELD: No. Inasmuch as the PNCC has no original character as it was incorporated under the general law on corporation, it follows inevitably that petitioner is not a public officer within the coverage of RA 3019, as amended. Thus, the Sandiganbayan has no jurisdiction over him. The only instance when the Sandiganbayan has jurisdiction over a private individual is when the complaint charges him either as a co-principal, accomplice, or accessory of a public officer who has been charged with a crime within the jurisdiction of the Sandiganbayan.
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The cases cited by respondent People of the Philippines are inapplicable because they were decided under the provision of the 1973 Constitution which included as public officers, officials, and employees of corporations owned and controlled by the government through organized and existing under the general corporation law. The 1987 Constitution excluded such corporations. The crime charged against petitioner was committed in 1989 and 1990. The criminal actions were instituted in 1992. It is well-settled that the jurisdiction of a court to try a criminal case is determined by the law in force at the institution of the action.

Garcia v Mojica
G.R. No. 139043 September 10, 1999 Facts: On May 7, 1998, petitioner, in his capacity as Cebu City mayor, signed a contract with F.E. Zuellig for the supply of asphalt to the city. The contract covers the period 1998-2001, which was to commence on September 1998 upon F.E. Zuelligs first delivery. Sometime in March 1999, news reports came out regarding the alleged anomalous purchase of asphalt by Cebu City, through the contract signed by petitioner. This prompted the Office of the Ombudsman (Visayas) to conduct an inquiry into the matter. Respondent Jesus Rodrigo T. Tagaan, special prosecution officer of the Office of the Ombudsman, was assigned to conduct the inquiry, docketed as INQ-VIS-99-0132. After investigation, he recommended that the said inquiry be upgraded to criminal and administrative cases against petitioner and the other city officials involved. Respondent Arturo C. Mojica, Deputy Ombudsman for the Visayas, approved this recommendation Issues: 1. Whether Garcia may be held administratively liable.

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2. Whether the Ombudsman was stripped of its powers by virtue of the Local Government Code. Held: 1. No. As previously held, a reelected local official may not be held administratively accountable for misconduct committed during his prior term of office. The rationale is that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such is considered a condonation of his past misdeeds. However, in the present case, respondents point out that the contract entered into by petitioner with F.E. Zuellig was signed just 4 days before the date of the elections. It was not made an issue during the election, and so the electorate could not be said to have voted for petitioner with knowledge of this particular aspect of his life and character. Petitioner can no longer be held administratively liable for an act done during his previous term. The agreement between petitioner and F.E. Zuellig was perfected on the date the contract was signed, during petitioners prior term. At that moment, petitioner already acceded to the terms of the contract, including stipulations now alleged to be prejudicial to the city government. Thus, any culpability petitioner may have in signing the contract already became extant on the day the contract was signed. It hardly matters that the deliveries under the contract are supposed to have been made months later. While petitioner can no longer be held administratively liable for signing the contract with F. E. Zuellig, this should not prejudice the filing of any case, other than administrative, against petitioner. The ruling does not mean the total exoneration of petitioners wrongdoing, if any, that might have been committed in signing the subject contract. The ruling is now limited to the question of his administrative liability therefore, and it is our considered view that he may not. 2. No. There is nothing in the LGC to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other. The decision of the Ombudsman (6 month suspension) will prevail over the LGC (60day suspension) if the evidence of guilt is strong. The power to preventively suspend is available not only to the Ombudsman but also to the Deputy Ombudsman.

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