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CONSTI

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Civil Liberties Union vs. Executive Secretary
G.R. No. 83896. Frbeuary 22, 1991.*
CIVIL LIBERTIES UNION, petitioner, vs. THE EXECUTIVE SECRETARY, respondent.
G.R. No. 83815. February 22, 1991.*
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners, vs. PHILIP ELLA C. JUICO, as Secretary
of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture; LOURDES QUISUMBING, as Secretary of
Education, Culture and Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment and Natural Resources; VICENTE
V. JAYME, as Secretary of Finance; SEDFREY ORDONEZ, as Secretary of Justice; FRANKLIN N. DRILON, as Secretary of
Labor and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as Secretary of National
Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO FERRER, as Secretary of Public Works and Highways;
ANTONIO ARRIZABAL, as Secretary of Science and Technology; JOSE CONCEPCION, as Secretary of Trade and Industry;
JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of Health; REINERIO D. REYES,
as Secretary of Transportation and Communication; GUILLERMO CARAGUE, as Commissioner of the Budget; and SOLITA
MONSOD, as Head of the National Economic Development Authority, respondents.
Constitutional Law; Statutory Construction; Executive Order No. 284; The Court in construing a constitution should bear
in mind the object sought to be accomplished by its adoption and the evils if any sought to be prevented or remedied; A
doubtful provision will be examined in the light of the history of the times and the condition and circumstances under
which the Constitution was formed.A foolproof yardstick in constitutional construction is the intention underlying the
provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the
object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful
provision will be examined in
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* EN BANC.
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the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The
object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that
reason and calculated to effect that purpose.
Same; Same; Same; Same; The intent of the framers of the Constitution was to impose a stricter prohibition on the
President and his official family in so far as holding other offices or employment in the government or elsewhere is
concerned.Evidently, from this move as well as in the different phraseologies of the constitutional provisions in
question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President and his
official family in so far as holding other offices or employment in the government or elsewhere is concerned.
Same; Same; Same; Same; Such intent is underscored by a comparison of Section 13, Article VII when other provisions of
the Constitution on the disqualifications of certain public officials or employees from holding other offices or
employment.Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of
the Constitution on the disqualifications of certain public officials or employees from holding other offices or
employment. Under Section 13, Article VI, (N)o Senator or Member of the House of Representatives may hold any
other office or employment in the Government . . .. Under Section 5(4), Article XVI, (N)o member of the armed forces
in the active service shall, at any time, be appointed in any capacity to a civilian position in the Government, including
government-owned or controlled corporations or any of their subsidiaries. Even Section 7 (2), Article IX-B, relied upon
by respondents provides (U)nless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government.
Same; Same; Same; Same; The prohibition imposed on the President and his official family is therefore all-embracing
and covers both public and private office or employment.It is quite notable that in all these provisions on
disqualifications to hold other office or employment, the prohibition pertains to an office or employment in the
government and government-owned or controlled corporations or their subsidiaries. In striking contrast is the wording
of Section 13, Article VII which states that (T)he President, Vice-President, the Members
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of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other
office or employment during their tenure. In the latter provision, the disqualification is absolute, not being qualified by
the phrase in the Government. The prohibition imposed on the President and his official family is therefore all-
embracing and covers both public and private office or employment.
Same; Same; Same; Same; Same; The all-embracing prohibition imposed on the President and his official family are
proof of the intent of the 1987 Constitution to treat them as a class by itself and to impose upon said class stricter
prohibitions.Going further into Section 13, Article VII, the second sentence provides: They shall not, during said
tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. These sweeping,
all-embracing prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed
on other public officials or employees such as the Members of Congress, members of the civil service in general and
members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official
family as a class by itself and to impose upon said class stricter prohibitions.
Same; Same; Same; Same; While all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the primary functions of their
positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the
Constitution itself.Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the primary functions of their
positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the
Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective
and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only
to the President, the Vice-President, Members of the Cabinet, their deputies and assistants.
Same; Same; Same; Same; Executive Order No. 284 is unconstitutional as it allows Cabinet members, undersecretaries
or assistant
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secretaries to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article
VII of the 1987 Constitution prohibiting them from doing so.In the light of the construction given to Section 13, Article
VII in relation to Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is
unconstitutional. Ostensibly restricting the number of positions that Cabinet members, undersecretaries or assistant
secretaries may hold in addition to their primary position to not more than two (2) positions in the government and
government corporations, Executive Order No. 284 actually allows them to hold multiple offices or employment in direct
contravention of the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing so,
unless otherwise provided in the 1987 Constitution itself.
Same; Same; Same; Same; Same; De facto officers; During their tenure in the questioned position, respondents may be
considered de facto officers and as such entitled to emoluments for actual services rendered.During their tenure in
the questioned positions, respondents may be considered de facto officers and as such entitled to emoluments for
actual services rendered. It has been held that in cases where there is no de jure, officer, a de facto officer, who, in
good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the
emoluments of the office, and may in an appropriate action recover the salary, fees and other compensations attached
to the office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the public should
benefit by the services of an officer de facto and then be freed from all liability to pay any one for such services. Any per
diem, allowances or other emoluments received by the respondents by virtue of actual services rendered in the
questioned positions may therefore be retained by them.
PETITIONS to review the order of the Executive Secretary.

The facts are stated in the opinion of the Court.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.
FERNAN, C.J.:

These two (2) petitions were consolidated per resolution dated
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August 9, 19881 and are being resolved jointly as both seek a declaration of the unconstitutionality of Executive Order
No. 284 issued by President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the assailed Executive Order
are:
SECTION 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet, undersecretary
or assistant secretary or other appointive officials of the Executive Department may, in addition to his primary position,
hold not more than two positions in the government and government corporations and receive the corresponding
compensation therefor; Provided, that this limitation shall not apply to ad hoc bodies or committees, or to boards,
councils or bodies of which the President is the Chairman.
SECTION 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the
Executive Department holds more positions than what is allowed in Section 1 hereof, they (sic) must relinquish the
excess position in favor of the subordinate official who is next in rank, but in no case shall any official hold more than
two positions other than bis primary position.
SECTION 3. In order to fully protect the interest of the government in government-owned or controlled corporations, at
least one-third (1/3) of the members of the boards of such corporation should either be a secretary, or undersecretary,
or assistant secretary.
Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries
and assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit
subject to the limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution,2 which
provides as follows:
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during
said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in
any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or in-
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1 P. 71, Rollo in G.R. No. 83815 and p. 28, Rollo in G.R. No. 83896.
2 Italics supplied.
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strumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet, along
with the other public officials enumerated in the list attached to the petitions as Annex C in G.R. No. 83815 3 and as
Annex B in G.R. No. 83896 4 from holding any other office or employment during their tenure. In addition to seeking a
declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the Philippines further
seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition and mandamus, as well as a temporary
restraining order directing public respondents therein to cease and desist from holding, in addition to their primary
positions, dual or multiple positions other than those authorized by the 1987 Constitution and from receiving any
salaries, allowances, per diems and other forms of privileges and the like appurtenant to their questioned positions, and
compelling public respondents to return, reimburse or refund any and all amounts or benefits that they may have
received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted absolute and
self-executing provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordonez, construing Section 13,
Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987,5
declaring that Cabinet members, their deputies (undersecretaries) and assistant secretaries may hold other public office,
including membership in the boards of government corporations: (a) when directly provided for in the Constitution as in
the case of the Secretary of Justice who is made an ex-officio member of the Judicial and Bar Council under Section 8,
paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of their respective positions;
and that on the basis of
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3 pp. 29-30, Rollo.
4 pp. 10-21, Rollo.
5 Annex A, Petition, G.R. No. 83815, pp. 21-24, Rollo.
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this Opinion, the President of the Philippines, on July 25, 1987, or two (2) days before Congress convened on July 27,
1987, promulgated Executive Order No. 284.6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as they
allegedly lumped together Section 13, Article VII and the general provision in another article, Section 7, par. (2), Article
IX-B. This strained linkage between the two provisions, each addressed to a distinct and separate group of public
officersone, the President and her official family, and the other, public servants in generalallegedly abolished the
clearly separate, higher, exclusive, and mandatory constitutional rank assigned to the prohibition against multiple jobs
for the President, the Vice-President, the members of the Cabinet, and their deputies and subalterns, who are the
leaders of government expected to lead by example,7 Article IX-B, Section 7, par. (2)8 provides:
Sec. 7. xxx xxx xxx
Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other
office or employment in the government or any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries.
The Solicitor General counters that Department of Justice (DOJ) Opinion No. 73, series of 1987, as further elucidated and
clarified by DOJ Opinion No. 129, series of 19879 and DOJ Opinion No. 155, series of 1988,10 being the first official con-
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6 Thereby, petitioner alleges, eliciting adverse published commentaries from CONCOM Commissioners Fr. Joaquin G.
Bernas, S. J. and Regalado E. Maambong, Congressman Rodolfo Albano of Isabela, and retired Supreme Court Justice
Felix Q. Antonio, Annexes D, E and F, Petition, G.R. No. 83815, pp. 40-64, Rollo. CONCOM Vice-President Ambrosio
B. Padilla, in a published article cited in the annexes, also commented on EO 284.
7 p. 11, Rollo in G.R. No. 83815.
8 Italics supplied.
9 Annex I, Comment, G.R. No. 83896, pp. 62-67, Rollo.
10 Annex 2, Ibid., pp. 68-71, Rollo.
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struction and interpretation by the Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article IX-B of
the Constitution, involving the same subject of appointments or designations of an appointive executive official to
positions other than his primary position, is reasonably valid and constitutionally firm, and that Executive Order No.
284, promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is worth noting that
DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitation imposed by E.O.
No. 284 as not applying to ex-officio positions or to positions which, although not so designated as ex-officio are allowed
by the primary functions of the public official, but only to the holding of multiple positions which are not related to or
necessarily included in the position of the public official concerned (disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal submission
that it adds exceptions to Section 13, Article VII other than those provided in the (Constitution. According to petitioners,
by virtue of the phrase unless otherwise provided in this Constitution, the only exceptions against holding any other
office or employment in Government are those provided in the Constitution, namely: (1) The Vice-President may be
appointed as a Member of the Cabinet under Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an
ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article IX-B on the Civil Service
Commission applies to officers and employees of the Civil Service in general and that said exceptions do not apply and
cannot be extended to Section 13, Article VII which applies specifically to the President, Vice-President, Members of the
Cabinet and their deputies or assistants.
There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet and their
deputies or assistants from holding dual or multiple positions in the Government admits of certain exceptions. The
disagreement between petitioners and public respondents lies on the constitutional basis of the exception. Petitioners
insist that
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because of the phrase unless otherwise provided in this Constitution used in Section 13 of Article VII, the exception
must be expressly provided in the Constitution, as in the case of the Vice-President being allowed to become a Member
of the Cabinet under the second paragraph of Section 3, Article VII or the Secretary of Justice being designated an ex-
officio member of the Judicial and Bar Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand,
maintain that the phrase unless otherwise provided in the Constitution in Section 13, Article VII makes reference to
Section 7, par. (2), Article IX-B insofar as the appointive officials mentioned therein are concerned.
The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as
Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials
in general under Section 7, par. (2), Article IX-B which, for easy reference is quoted anew, thus: Unless otherwise
allowed by law or by the primary functions of his position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporation or their subsidiaries.
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it
has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by
its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light
of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is
to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose
sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and
calculated to effect that purpose.11
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11 Maxwell vs. Dow, 176 U.S. 581, 20 Sup. Ct. 448,44 L. Ed. 597.
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The practice of designating members of the Cabinet, their deputies and assistants as members of the governing bodies
or boards of various government agencies and instrumentalities, including government-owned and controlled
corporations, became prevalent during the time legislative powers in this country were exercised by former President
Ferdinand E. Marcos pursuant to his martial law authority. There was a proliferation of newly-created agencies,
instrumentalities and government-owned and controlled corporations created by presidential decrees and other modes
of presidential issuances where Cabinet members, their deputies or assistants were designated to head or sit as
members of the board with the corresponding salaries, emoluments, per diems, allowances and other perquisites of
office. Most of these instrumentalities have remained up to the present time.
This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public
officials who took advantage of this scheme for purposes of self-enrichment. In fact, the holding of multiple offices in
government was strongly denounced on the floor of the Batasang Pambansa.12 This condemnation came in reaction to
the published report of the Commission on Audit, entitled 1983 Summary Annual Audit Report on: Government-owned
and Controlled Corporations, Self-Governing Boards and Commissions which carried as its Figure No. 4 a Roaster of
Membership in Governing Boards of Government-owned and Controlled Corporations as ofDecember 31, 1983.
Particularly odious and revolting to the peoples sense of propriety and morality in government service were the data
contained therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29) governmental
agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two
(22); Arturo R. Taneo, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C.
Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roo of twelve (12) each;
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12 R.B. No. 95, Monday, March 11, 1985, Record of the Batasan, Volume IV, pp. 835-836.
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Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q.
Pea of ten (10) each.13
The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was
therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the people successfully unseated former President Marcos, should
draft into its proposed Constitution the provisions under consideration which are envisioned to remedy, if not correct,
the evils that flow from the holding of multiple governmental offices and employment. In fact, as keenly observed by
Mr. Justice Isagani A. Cruz during the deliberations in these cases, one of the strongest selling points of the 1987
Constitution during the campaign for its ratification was the assurance given by its proponents that the scandalous
practice of Cabinet members holding multiple positions in the government and collecting unconscionably excessive
compensation therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7, Article IX-B already contains a blanket prohibition
against the holding of multiple offices or employment in the government subsuming both elective and appointive public
officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically
prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other
office or employment during their tenure, unless otherwise provided in the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent
of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as
holding other offices or employment in the government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the Constitution
on the disqualifications of certain public officials or employees
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13 pp. 11-14.
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from holding other offices or employment. Under Section 13, Article VI, (N)o Senator or Member of the House of
Representatives may hold any other office or employment in the Government . . .. Under Section 5(4), Article XVI, (N)o
member of the armed forces in the active service shall, at any time, be appointed in any capacity to a civilian position in
the Government, including government-owned or controlled corporations or any of their subsidiaries. Even Section 7
(2), Article IX-B, relied upon by respondents provides (U)nless otherwise allowed by law or by the primary functions of
his position, no appointive official shall hold any other office or employment in the Government.
It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition
pertains to an office or employment in the government and government-owned or controlled corporations or their
subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that (T)he President, Vice-
President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure. In the latter provision, the disqualification is
absolute, not being qualified by the phrase in the Government. The prohibition imposed on the President and his
official family is therefore all-embracing and covers both public and private office or employment.
Going further into Section 13, Article VII, the second sentence provides: They shall not, during said tenure, directly or
indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or
in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries. These sweeping, all-embracing
prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on other
public officials or employees such as the Members of Congress, members of the civil service in general and members of
the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class
by itself and to impose upon said class stricter prohibitions.
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Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also
succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor
deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally found in the
General Provisions and the anticipated report on the Executive Department. Commissioner Foz Commented, We
actually have to be stricter with the President and the members of the Cabinet because they exercise more powers and,
therefore, more checks and restraints on them are called for because there is more possibility of abuse in their case.14
Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the
government during their tenure when such is allowed by law or by the primary functions of their positions, members of
the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other
words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective and appointive public
officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the
Vice-President, Members of the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase unless otherwise provided in this Constitution in Section 13, Article VII
cannot possibly refer to the broad exceptions provided under Section 7, Article IX-B of the 1987 Constitution. To
construe said qualifying phrase as respondents would have us do, would render nugatory and meaningless the manifest
intent and purpose of the framers of the Constitution to impose a stricter prohibition on the President, Vice-President,
Members of the Cabinet, their deputies and assistants with respect to holding other offices or employment in the
government during their tenure. Respon-dents interpretation that Section 13 of Article VII admits of the exceptions
found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers of the
Constitution as to when the high-ranking officials of the Execu-
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14 Record of the 1986 Constitutional Commission, Vol. I, p. 553.
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tive Branch from the President to Assistant Secretary, on the one hand, and the generality of civil servants from the rank
immediately below Assistant Secretary downwards, on the other, may hold any other office or position in the
government during their tenure.
Moreover, respondents reading of the provisions in question would render certain parts of the Constitution inoperative.
This observation applies particularly to the Vice-President who, under Section 13 of Article VII is allowed to hold other
office or employment when so authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1)
of Article IX-B is absolutely ineligible for appointment or designation in any capacity to any public office or position
during his tenure. Surely, to say that the phrase unless otherwise provided in this Constitution found in Section 13,
Article VII has reference to Section 7, par. (1) of Article IX-B would render meaningless the specific provisions of the
Constitution authorizing the Vice-President to become a member of the Cabinet,15 and to act as President without
relinquishing the Vice-Presidency where the President shall not have been chosen or fails to qualify.16 Such absurd
consequence can be avoided only by interpreting the two provisions under consideration as one, i.e., Section 7, par. (1)
of Article IX-B providing the general rule and the other, i.e., Section 13, Article VII as constituting the exception thereto.
In the same manner must Section 7, par. (2) of Article IX-B be construed vis-a-vis Section 13, Article VII.
It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated
from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be
brought into view and to be so interpreted as to effectuate the great purposes of the instrument.17 Sections bearing on
a particular subject should be considered and interpreted together as to effectuate the whole purpose of the
Constitution18 and one section is not to be
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15 Sec. 3, Ibid.
16 Sec. 7, Article VII.
17 Old Wayne Mut. Life Asso. vs. McDonough, 204 U.S. 8, 51 L Ed 345, 27 S Ct 236; Wallace vs. Payne, 197 Cal 539, 241
P. 879.
18 Grantz vs. Grauman (Ky) 320 SW 2d 364; Runyon vs. Smith,
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allowed to defeat another, if by any reasonable construction, the two can be made to stand together.19
In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render
every word operative, rather than one which may make the words idle and nugatory.20
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President,
Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or
employment in the government during their tenure, the exception to this prohibition must be read with equal severity.
On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a
positive and unequivocal negation of the privilege of holding multiple government offices or employment. Verily,
wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and
unequivocal negation.21 The phrase unless otherwise provided in this Constitution must be given a literal
interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-Presi-dent being
appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances
provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the
Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution
must not, however, be construed as applying to posts occupied by the Executive officials specified therein without
additional compensation in an ex-officio capacity as provided by law and as
_______________

308 Ky 73, 212 SW 2d 521.
19 People vs. Wright, 6 Col. 92.
20 Thomas M. Colley, A Treatise on the Constitutional Limitations, Vol. I, p. 128, citing Attorney-General vs. Detroit and
Erin Plank Road Co., 2 Mich. 114; People vs. Burns, 5 Mich. 114 ; District Township vs. Dubuque, 7 Iowa 262.
21 Varney vs. Justice, 86 Ky 596; 6 S.W. 457; Hunt vs. State, 22 Tex. App. 396, 3 S.W. 233.
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SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary
required22 by the primary functions of said officials office. The reason is that these posts do no comprise any other
office within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and
functions on said officials.23 To characterize these posts otherwise would lead to absurd consequences, among which
are: The President of the Philippines cannot chair the National Security Council reorganized under Executive Order No.
115 (December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries of National
Defense, Justice, Labor and Employment and Local Government sit in this Council, which would then have no reason to
exist for lack of a chairperson and members. The respective undersecretaries and assistant secretaries, would also be
prohibited.
The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth
Council (NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are attached to his
department for policy coordination and guidance. Neither can his Undersecretaries and Assistant Secretaries chair these
agencies. The Secretaries of Finance and Budget cannot sit in the Monetary Board.24 Neither can their respective
undersecretaries and assistant secretaries. The Central Bank Governor would then be assisted by lower ranking
employees in providing policy direction in the areas of money, banking and credit.25
Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed as a
continuously operative charter of government, is not to be interpreted as demanding the impossible or the
impracticable; and unreasonable or absurd consequences, if possible, should
_______________

22 As opposed to the term allowed used in Section 7, par. (2), Article IX-B of the Constitution, which is permissive.
Required suggests an imposition, and therefore, obligatory in nature.
23 Martin v. Smith, 140 A.L.R. 1073; Ashmore v. Greater Green-ville Sewer District, 173 A.L.R. 407.
24 Executive Order No. 16, May 9, 1986, 82 O.G. 2117.
25 Sec. 20, Art. XII, 1987 Constitution.
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Civil Liberties Union vs. Executive Secretary
be avoided.26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without
additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the
concerned officials office. The term ex-officio means from office; by virtue of office. It refers to an authority derived
from official character merely, not expressly conferred upon the individual character, but rather annexed to the official
position. Ex-officio likewise denotes an act done in an official character, or as a consequence of office, and without any
other appointment or authority than that conferred by the office.27 An ex-officio member of a board is one who is a
member by virtue of his title to a certain office, and without further warrant or appointment.28 To illustrate, by express
provision of law, the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the
Philippine Ports Authority,29 and the Light Rail Transit Authority.30
The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel Control
and Inspection Board,31 thus: An examination of section 2 of the questioned statute (R.A. 3137) reveals that for the
chairman and members of the Board to qualify they need only be designated by the respective department heads. With
the exception of the representative from the private sector, they sit ex-officio. In order to be designated they must
already be holding positions in the offices mentioned in the law. Thus, for instance, one who does not hold a previous
appointment in the Bureau of Customs, cannot, under the act, be designated a representative from that office. The
same is true with respect to the represen-
_______________

26 Hirabayashi vs. United States, 320 U.S. 81, 87 L.Ed. 1774, 63 S. Ct. 1375; Opp Cotton Mills, Inc. vs. Administrator of
Wage and Hour Div., 312 U.S. 126,85 L. Ed. 624,61 S. Ct. 524; Gage vs. Jordan, 23 Cal 2d 794, 174 P 2d, 287 cited in 16
Am Jur 2d, pp. 100, 464.
27 Blacks Law Dictionary, p. 516; 15A Words and Phrases, p. 392.
28 15A Words and Phrases, p. 392.
29 Sec. 7, E.O. 778.
30 Sec. 1, E.O. 210.
31 21 SCRA 336 (1967).
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Civil Liberties Union vs. Executive Secretary
tatives from the order offices. No new appointments are neces sary. This is as it should be, because the representatives
so designated merely perform duties in the Board in addition to those already performed under their original
appointments.32
The term primary used to describe functions refers to the order of importance and thus means chief or principal
function. The term is not restricted to the singular but may refer to the plural.33 The additional duties must not only be
closely related to, but must be required by the officials primary functions. Examples of designations to positions by
virtue of ones primary functions are the Secretaries of Finance and Budget sitting as members of the Monetary Board,
and the Secretary of Transportation and Communications acting as Chairman of the Maritime Industry Authority34 and
the Civil Aeronautics Board. If the functions required to be performed are merely incidental, remotely related,
inconsistent, incompatible, or otherwise alien to the primary function of a cabinet official, such additional functions
would fall under the purview of any other office prohibited by the Constitution. An example would be the Press
Undersecretary sitting as a member of the Board of the Philippine Amusement and Gaming Corporation. The same rule
applies to such positions which confer on the cabinet official management functions and/or monetary compensation,
such as but not limited to chairmanships or directorships in government-owned or controlled corporations and their
subsidiaries.
Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or
assistants which are not inconsistent with those already prescribed by their offices or appointments by virtue of their
special knowledge, expertise and skill in their respective executive offices is a practice long-recognized in many
jurisdictions. It is a practice justified by the demands of efficiency, policy direction, continuity and coordination among
the different offices in the Execu-
_______________

32 Italics supplied.
33 33A Words and Phrases, p. 210, citing Collector of Revenue vs. Louisiana Ready Mix Co., La. App., 197 S. 2d 141, 145.
34 Sec. 7, P.D. No. 474.
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Civil Liberties Union vs. Executive Secretary
tive Branch in the discharge of its multifarious tasks of executing and implementing laws affecting national interest and
general welfare and delivering basic services to the people. It is consistent with the power vested on the President and
his alter egos, the Cabinet members, to have control of all the executive departments, bureaus and offices and to ensure
that the laws are faithfully executed.35 Without these additional duties and functions being assigned to the President
and his official family to sit in the governing bodies or boards of governmental agencies or instrumentalities in an ex-
officio capacity as provided by law and as required by their primary functions, they would be deprived of the means for
control and supervision, thereby resulting in an unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties or functions may not transgress the prohibition
embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required by the
primary functions of the official concerned, who is to perform the same in an ex-officio capacity as provided by law,
without receiving any additional compensation therefor.
The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official
concerned has no right to receive additional compensation for his services in the said position. The reason is that these
services are already paid for and covered by the compensation attached to his principal office. It should be obvious that
if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is actually
and in legal contemplation performing the primary function of his principal office in defining policy in monetary and
banking matters, which come under the jurisdiction of his department. For such attendance, therefore, he is not entitled
to collect any extra compensation, whether it be in the form of a per diem or an honorarium or an allowance, or some
other such euphemism. By whatever name it is designated, such additional compensation is prohibited by the
Constitution.
It is interesting to note that during the floor deliberations on
_______________

35 Section 17, Article VII.
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Civil Liberties Union vs. Executive Secretary
the proposal of Commissioner Christian Monsod to add to Section 7, par. (2), Article IX-B, originally found as Section 3 of
the General Provisions, the exception unless required by the functions of his position,36 express reference to certain
high-ranking appointive public officials like members of the Cabinet were made.37 Responding to a query of
Commissioner Bias Ople, Commissioner Monsod pointed out that there are instances when although not required by
current law, membership of certain high-ranking executive officials in other offices and corporations is necessary by
reason of said officials primary functions. The example given by Commissioner Monsod was the Minister of Trade and
Industry.38
While this exchange between Commissioners Monsod and Ople may be used as authority for saying that additional
functions and duties flowing from the primary functions of the official may be imposed upon him without offending the
constitutional prohibition; under consideration, it cannot, however, be taken as authority for saying that this exception
is by virtue of Section 7, par. (2) of Article IX-B. This colloquy between the two Commissioners took place in the plenary
session of September 27,1986. Under consideration then was Section 3 of Committee Resolution No. 531 which was the
proposed article on General Provisions.39 At that time, the article on the Civil Service Commission had been approved
on third reading on July 22, 1986,40 while the article on the Executive Department, containing the more specific
prohibition in Section 13, had also been earlier approved on third reading on August 26, 1986.41 It was only after the
draft Constitution had undergone reformatting and styling by the Committee on Style that said Section 3 of the
General Provisions became Section 7, par. (2) of Article IX-B
_______________

36 The phrase that appears in the Constitution is not Unless required by the primary functions but Unless otherwise
allowed by law or by the primary functions . . .
37 Record of the 1986 Constitutional Commission, Vol. V, pp 165-166.
38 Italics supplied, Ibid., p. 165.
39 Ibid., Vol. V., pp. 80-81.
40 Ibid., Vol. II, p. 94.
41 Ibid., Vol. III, p. 710.
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and reworded Unless otherwise allowed by law or by the primary functions of his position. . .
What was clearly being discussed then were general principles which would serve as constitutional guidelines in the
absence of specific constitutional provisions on the matter. What was primarily at issue and approved on that occasion
was the adoption of the qualified and delimited phrase primary functions as the basis of an exception to the general
rule covering all appointive public officials. Had the Constitutional Commission intended to dilute the specific prohibition
in said Section 13 of Article VII, it could have re-worded said Section 13 to conform to the wider exceptions provided in
then Section 3 of the proposed general Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service
Commission.
That this exception would in the final analysis apply also to the President and his official family is by reason of the legal
principles governing additional functions and duties of public officials rather than by virtue of Section 7, par. 2, Article IX-
B. At any rate, we have made it clear that only the additional functions and duties required, as opposed to allowed,
by the primary functions may be considered as not constituting any other office.
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in
order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other
guides fail42 as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates
in the constitutional convention are of value as showing the views of the individual members, and as indicating the
reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the
mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer
to construe the constitution from what appears upon its face.43 The proper interpretation therefore depends more on
how it was understood by the people
_______________

42 16 Corpus Juris Secundum, 2. 31, p. 105.
43 Commonwealth vs. Ralph, 111 Pa. 365, 3 Atl 220.
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SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union us. Executive Secretary
adopting it than in the framerss understanding thereof.44
It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President,
Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or
employment in the government, except in those cases specified in the Constitution itself and as above clarified with
respect to posts held without additional compensation in an ex-officio capacity as provided by law and as required by
the primary functions of their office, the citation of Cabinet members (then called Minis-ters) as examples during the
debate and deliberation on the general rule laid down for all appointive officials should be considered as mere personal
opinions which cannot override the constitutions manifest intent and the people understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the 1987
Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of
positions that Cabinet members, undersecretaries or assistant sec-retaries may hold in addition to their primary position
to not more than two (2) positions in the government and government corporations, Executive Order No. 284 actually
allows them to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article
VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that will result from a strict application of the
prohibition mandated under Section 13, Article VII on the operations of the Government, considering that Cabinet
members would be stripped of their offices held in an ex-officio capacity, by reason of their primary positions or by
virtue of legislation. As earlier clarified in this decision, ex-officio posts held by the executive official concerned without
additional compensation as provided by law and as required by the primary functions of
_______________

44 Household Finance Corporation vs. Shaffner, 203, S.W 2d 734 356 Mo. 808.
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VOL. 194, FEBRUARY 22, 1991
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Civil Liberties Union vs. Executive Secretary
his office do not fall under the definition of any other office within the contemplation of the constitutional prohibition.
With respect to other offices or employment held by virtue of legislation, including chairmanships or directorships in
government-owned or controlled corporations and their subsidiaries, suffice it to say that the feared impractical
consequences are more apparent than real. Being head of an executive department is no mean job. It is more than a
full-time job, requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived
from a department heads ability and expertise, he should be allowed to attend to his duties and responsibilities without
the distraction of other governmental offices or employment. He should be precluded from dissipating his efforts,
attention and energy among too many positions of responsibility, which may result in haphaz-ardness and inefficiency.
Surely the advantages to be derived from this concentration of attention, knowledge and expertise, particularly at this
stage of our national and economic development, far outweigh the benefits, if any, that may be gained from a
department head spreading himself too thin and taking in more than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of
Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government45 Luis Santos, Secretary of
National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo
Carague to immediately relinquish their other offices or employment, as herein defined, in the government, including
government-owned or controlled corporations and their subsidiaries. With respect to the other named respondents, the
petitions have become moot and aca-demic as they are no longer occupying the positions complained of.
During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled to
emoluments for actual services rendered.46 It has been held
_______________

45 Now Department of Interior and Local Governments.
46 Castillo vs. Arrieta, G.R. No. L-31444, November 13, 1974, 61 SCRA 55.
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SUPREME COURT REPORTS ANNOTATED
Civil Liberties Union vs. Executive Secretary
that in cases where there is no de jure, officer, a de facto officer, who, in good faith has had possession of the office
and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an
appropriate action recover the salary, fees and other compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by the services of an
officer de facto and then be freed from all liability to pay any one for such services.47 Any per diem, allowances or other
emoluments received by the respondents by virtue of actual services rendered in the questioned positions may
therefore be retained by them.
WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No. 284 is hereby
declared null and void and is accordingly set aside.
SO ORDERED.
Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Medialdea, Regalado and Davide,
Jr., JJ., concur.
Paras, J., I concur because cabinet members like the members of the Supreme Court are not supermen.
Sarmiento and Grio-Aquino, JJ., No part.
Petitions granted.
Note.View that the language of the Constitution should be read in a sense most obvious to the common
understanding at the time of its adoption (People vs. Muoz, 170 SCRA 107).
o0o

_______________

47 Patterson vs. Benson, 112 Pac. 801, 32 L.R.A. (NS) 949. [Civil Liberties Union vs. Executive Secretary, 194 SCRA
317(1991)]


VOL. 156, DECEMBER 17, 1987
549
Sarmiento III vs. Mison
No. L-79974. December 17, 1987.*
ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners, vs. SALVADOR MISON, in his capacity as
COMMISSIONER OF THE BUREAU OF CUSTOMS, AND GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE
DEPARTMENT OF BUDGET, respondents, COMMISSION ON APPOINTMENTS, intervenor.
Statutory Construction; Constitution; Intent of the framers of the constitution and of the people adopting it must be
given effect.The fundamental principle of constitutional construction is to give ef fect to the intent of the framers of
the organic law and of the people adopting it. The intention to which force is to be given is that which is embodied and
expressed in the constitutional provisions themselves. The Court will thus construe the applicable constitutional
provisions, not in accordance with how the executive or the legislative department may want them construed, but in
accordance with what they say and provide.
Same; Same; Same; 1935 Constitution requires confirmation by the Commission on Appointments of all presidential
appointments, under the 1973 constitution the president has absolute power of appointment while under the 1987
Constitution, only the first group of appointments requires confirmation of the Commission on Appointments.In the
1935 Constitution, almost all presidential appointments required the consent (confirmation) of the Commission on
Appointments, It is now a sad part of our political history that the power of confirmation by the Commission on
Appointments, under the 1935 Constitution, transformed that commission, many times, into a venue of "horse-trading"
and similar malpractices. On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it
was molded and re-molded by successive amendments, placed the absolute power of appointment in the President with
hardly any check on the part of the legislature. Given the above two (2) extremes, one, in the 1935 Constitution and the
other, in the 1973 Constitution, it is not difficult for the Court to state that the framers of the 1987 Constitution and the
people adopting it, struck a "middle ground" by requiring the consent (confirmation) of the Commission on
Appointments for the first group of appointments and
_______________

* EN BANC.
550

550
SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
leaving to the President, without such confirmation, the appointment of other officers, i.e., those in the second and
third groups as well as those in the fourth group, i.e., officers of lower rank.
Same; Same; Same; Same; Under the 1987 Constitution, the clear and expressed intent of its framers is to exclude
presidential appointments from confirmation on the Commission on Appointments except appointments to offices
mentioned in the first sentence of Sec. 16 Article VII.In the 1987 Constitution, however, as already pointed out, the
clear and expressed intent of its framers was to exclude presidential appointments from confirmation by the
Commission on Appointments, except appointments to offices expressly mentioned in the first sentence of Sec. 16,
Article VII. Consequently, there was no reason to use in the third sentence of Sec. 16, Article VII the word "alone" after
the word "President" in providing that Congress may by law vest the appointment of lower-ranked officers in the
President alone, or in the courts, or in the heads of departments, because the power to appoint officers whom he (the
President) may be authorized by law to appoint is already vested in the President, without need of confirmation by the
Commission on Appointments, in the second sentence of the same Sec. 16, Article VII.
Same; Same; Same; Same; Same; The word "alone" in the third sentence of Sec. 16 Art. VII of the 1987 Constitution is a
redundancy in the light of the second sentence of Sec. 16 Article VII.Therefore, the third sentence of Sec. 16, Article
VII could have stated merely that, in the case of lower-ranked officers, the Congress may by law vest their appointment
in the President, in the courts, or in the heads of various departments of the government. In short, the word "alone" in
the third sentence of Sec. 16, Article VII of the 1987 Constitution, as a literal import from the last part of par. 3, section
10, Article VII of the 1935 Constitution, appears to be redundant in the light of the second sentence of Sec. 16, Article
VII. And, this redundancy cannot prevail over the clear and positive intent of the framers of the 1987 Constitution that
presidential appointments, except those mentioned in the first sentence of Sec. 16, Article VII, are not subject to
confirmation by the Commission on Appointments.
Commission on Appointments; Confirmation of the appointment of Commissioners of the Bureau of Customs by the
Commission on Appointments not required.Coming now to the immediate question before the Court, it is evident that
the position of Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first group of
appointments where the consent of the Commission on
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VOL. 156, DECEMBER 17, 1987
551
Sarmiento III vs. Mison
Appointments is required. As a matter of fact, as already pointed out, while the 1935 Constitution includes "heads of
bureaus" among those officers whose appointments need the consent of the Commission on Appointments, the 1987
Constitution, on the other hand, deliberately excluded the position of "heads of bureaus" from appointments that need
the consent (confirmation) of the Commission on Appointments.
Same; Same; Appointment of respondent Savlador Mison as Commissioner of the Bureau of Customs without submitting
his nomination to the Commission on Appointments is within the constitutional authority of the President of the
Philippines.Consequently, we rule that the President of the Philippines acted within her constitutional authority and
power in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without submitting his
nomination to the Commission on Appointments for confirmation. He is thus entitled to exercise the full authority and
functions of the of fice and to receive all the salaries and emoluments pertaining thereto.
PADILLA, J.:

Once more the Court is called upon to delineate constitutional boundaries. In this petition for prohibition, the
petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the Philippines and professors of
Constitutional Law, seek to enjoin the respondent Salvador Mison from performing the functions of the Office of
Commissioner of the Bureau of Customs and the respondent Guillermo Carague, as Secretary of the Department of
Budget, from effecting disbursements in payment of Mison's salaries and emoluments, on the ground that Mison's
appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of its not having been confirmed
by the Commission on Appointments. The respondents, on the other hand, maintain the constitutionality of respondent
Mison's appointment without the conf irmation of the Commission on Appointments.
Because of the demands of public interest, including the need for stability in the public service, the Court resolved to
give due course to the petition and decide, setting aside the finer procedural questions of whether prohibition is the
proper
552

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SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
remedy to test respondent Mison's right to the Office of Commissioner of the Bureau of Customs and of whether the
petitioners have a standing to bring this suit.
By the same token, and for the same purpose, the Court allowed the Commission on Appointments to intervene and file
a petition in intervention. Comment was required of respondents on said petition. The comment was filed, followed by
intervenor's reply thereto. The parties were also heard in oral argument on 8 December 1987.
This case assumes added significance because, at bottom line, it involves a conflict between two (2) great departments
of government, the Executive and Legislative Departments. It also occurs early in the life of the 1987 Constitution.
The task of the Court is rendered lighter by the existence of relatively clear provisions in the Constitution. In cases like
this, we follow what the Court, speaking through Mr. Justice (later, Chief Justice) Jose Abad Santos stated in Gold Creek
Mining Corp. vs. Rodriguez,1 that:
'The fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law
and of the people adopting it. The intention to which force is to be given is that which is embodied and expressed in the
constitutional provisions themselves."
The Court will thus construe the applicable constitutional provisions, not in accordance with how the executive or the
legislative department may want them construed, but in accordance with what they say and provide.
Section 16, Article VII of the 1987 Constitution says:
"The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank
of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also
appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those
_______________

1 66 Phil. 259, at 264.
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VOL. 156, DECEMBER 17, 1987
553
Sarmiento III vs. Mison
whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower
in rank in the President alone, in the courts, or in the heads of the departments, agencies, commissions or boards.
"The President shall have the power to make appointments during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or
until the next adjournment of the Congress."
It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are four (4) groups of officers
whom the President shall appoint. These four (4) groups, to which we will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed
forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this
Constitution;2
Second, all other officers of the Government whose appointments are not otherwise provided for by law;3
Third, those whom the President may be authorized by law to appoint;
_______________

2 The "other officers" whose appointments are vested in the President in the 1987 Constitution are:
1. Regular members of the Judicial and Bar Council (ART. VIII, Sec. 8(2);
2. Chairman and Commissioners of the Civil Service Commission (ART. IX-B, Sec. 1(2);
3. Chairman and Commissioners of the Commission on Elections (ART. IX-C, Sec. 1(2);
4. Chairman and Commissioners of the Commission on Audit (ART. IX-D, Sec. 1(2): and,
5. Members of the regional consultative commission (ART. X, Sec. 18)
3 When Congress creates inferior offices and omits to provide for appointments to them, or provides in an
unconstitutional way for such appointment, the officers are within the meaning of the clause "officers of the
Government whose appointments are not otherwise provided for by law" and the power to appoint such officers
devolves on the President. (USC, Const., Par. II, p. 529, citing Op., Atty. Gen. 213.)
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SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
Fourth, officers lower in rank4 whose appointments the Congress may by law vest in the President alone.
The first group of officers is clearly appointed with the consent of the Commission on Appointments. Appointments of
such officers are initiated by nomination and, if the nomination is confirmed by the Commission on Appointments, the
President appoints.5
The second, third and fourth groups of officers are the present bone of contention. Should they be appointed by the
President with or without the consent (confirmation) of the Commission on Appointments? By following the accepted
rule in constitutional and statutory construction that an express enumeration of subjects excludes others not
enumerated, it would follow that only those appointments to positions expressly stated in the first group require the
consent (confirmation) of the Commission on Appointments. But we need not rely solely on this basic rule of
constitutional construction. We can refer to historical background as well as to the records of the 1986 Constitutional
Commission to determine, with more accuracy, if not precision, the intention of the framers of the 1987 Constitution
and the people adopting it, on whether the appointments by the President, under the second, third and fourth groups,
require the consent (confirmation) of the Commission on Appointments. Again, in this task, the following advice of Mr.
Chief Justice J. Abad Santos in Gold Creek is apropos:
"In deciding this point, it should be borne in mind that a constitutional provision must be presumed to have been
framed and adopted in the light and understanding of prior and existing laws and with reference to them. "Courts are
bound to presume that the people adopting a constitution are familiar with the previous and existing
_______________

4 The 1935 Constitution says "inferior officers" while the 1987 Constitution states "officers lower in rank."
5 Example: Sen. Raul S. Manglapus was first nominated by the President for the position of Secretary of the Department
of Foreign Affairs (an executive department). After his nomination was confirmed by the Commission on Appointments,
the President appointed him Secretary of Foreign Affairs.
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laws upon the subjects to which its provisions relate, and upon which they express their judgment and opinion in its
adoption." (Barry vs. Truax, 13 N.D., 131; 99 N.W., 769:65 L. R. A., 762.)6"
It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that
x x x x x
"(3) The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of
the executive departments and bureaus, officers of the army from the rank of colonel, of the Navy and Air Forces from
the rank of captain or commander, and all other officers of the Government whose appointments are not herein
otherwise provided for, and those whom he may be authorized by law to appoint; but the Congress may by law vest the
appointment of inferior officers, in the President alone, in the courts, or in the heads of departments.
"(4) The President shall have the power to make appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
x x x x x
"(7) x x x, and with the consent of the Commission on Appointments, shall appoint ambassadors, other public ministers
and consuls x x x."
Upon the other hand, the 1973 Constitution provides that
"Section 10. The President shall appoint the heads of bureaus and offices, the officers of the Armed Forces of the
Philippines from the rank of Brigadier General or Commodore, and all other officers of the government whose
appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint.
However, the Batasang Pambansa may by law vest in the Prime Minister, members of the Cabinet, the Executive
Committee, Courts, Heads of Agencies, Commissions, and Boards the power to appoint inferior officers in their
respective offices."
Thus, in the 1935 Constitution, almost all presidential appointments required the consent (confirmation) of the Commis-
_______________

6 66 Phil. 259, at 265.
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sion on Appointments. It is now a sad part of our political history that the power of confirmation by the Commission on
Appointments, under the 1935 Constitution, transformed that commission, many times, into a venue of "horse-trading"
and similar malpractices.
On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it was molded and
remolded by successive amendments, placed the absolute power of appointment in the President with hardly any check
on the part of the legislature.
Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973 Constitution, it is not difficult
for the Court to state that the framers of the 1987 Constitution and the people adopting it, struck a "middle ground" by
requiring the consent (confirmation) of the Commission on Appointments for the first group of appointments and
leaving to the President, without such confirmation, the appointment of other officers, i.e., those in the second and
third groups as well as those in the fourth group, i.e., officers of lower rank.
The proceedings in the 1986 Constitutional Commission support this conclusion. The original text of Section 16, Article
VII, as proposed by the Committee on the Executive of the 1986 Constitutional Commission, read as follows:
"Section 16. The president shall nominate and, with the consent of a Commission on Appointment, shall appoint the
heads of the executive departments and bureaus, ambassadors, other public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval captain and all other officers of the Government whose appointments
are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may by
law vest the appointment of inferior officers in the President alone, in the courts, or in the heads of departments"7
[Emphasis supplied].
The above text is almost a verbatim copy of its counterpart provision in the 1935 Constitution. When the frames
discussed on the floor of the Commission the proposed text of Section 16,
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7 Pp. 384-385, Vol. II, RECORD OF THE CONSTITUTIONAL COMMISSION OF 1986.
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Sarmiento III vs. Mison
Article VII, a feeling was manifestly expressed to make the power of the Commission on Appointments over presidential
appointments more limited than that held by the Commission in the 1935 Constitution, Thus
"Mr. Rama: x x x May I ask that Commissioner Monsod be recogized.
The President: We will call Commissioner Davide later. Mr. Monsod: With the Chair's indulgence, I just want to take a
few minutes of our time to lay the basis for some of the amendments that I would like to propose to the Committee this
morning.
x x x x x x x x x
On Section 16, / would like to suggest that the power of the Commission on Appointments be limited to the department
heads, ambassadors, generals and so on but not to the levels of bureau heads and colonels.
x x x x x x x x"8 (Emphasis supplied.)
In the course of the debates on the text of Section 16, there were two (2) major changes proposed and approved by the
Commission. These were (1) the exclusion of the appointments of heads of bureaus from the requirement of
confirmation by the Commission on Appointments; and (2) the exclusion of appointments made under the second
sentence9 of the section from the same requirement. The records of the deliberations of the Contitutional Commission
show the following:
"MR. ROMULO: I ask that Commissioner Foz be recognized.
THE PRESIDENT: Commissioner Foz is recognized.
MR. FOZ: Madam President, my proposed amendment is on page 7, Section 16, line 26 which is to delete the words 'and
bureaus,' and on line 28 of the same page, to change the phrase 'colonel or naval captain' to MAJOR GENERAL OR REAR
ADMIRAL. This last amendment which is co-authored by Commissioner de Castro is
_______________

8 Pp. 433-435, Vol. II, RECORD OF THE 1986 CONSTITUTIONAL COMMISSION.
9 The second sentence of Sec. 16, ART. VII of the 1987 Constitution refers to what this Decision calls the second and
third groups of officers appointed by the President.
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to put a period (.) after the word ADMIRAL, and on line 29 of the same page, start a new sentence with: HE SHALL ALSO
APPOINT, et cetera.
MR. REGALADO. May we have the amendments one by one. The first proposed amendment is to delete the words 'and
bureaus' on line 26,
MR. FOZ: That is correct.
MR. REGALADO: For the benefit of the other Commissioners, what would be the justification of the proponent for such a
deletion?
MR. FOZ: The position of bureau director is actually quite low in the executive department, and to require further
confirmation of presidential appointment of heads of bureaus would subject them to political influence.
MR. REGALADO: The Commissioner's proposed amendment by deletion also includes regional directors as distinguished
from merely staff directors, because the regional directors have quite a plenitude of powers within the regions as
distinguished from staff directors who only stay in the office.
MR. FOZ: Yes, but the regional directors are under the supervision of the staff bureau directors.
x x x x x x x x x
MR. MAAMBONG: May I direct a question to Commissioner Foz? The Commissioner proposed an amendment to delete
'and bureaus' on Section 16. Who will then appoint the bureau directors if it is not the President?
MR. FOZ: It is still the President who will appoint them but their appointment shall no longer be subject to confirmation
by the Commission on Appointments.
MR. MAAMBONG: In other words, it is in line with the same answer of Commissioner de Castro?
MR. FOZ: Yes.
MR. MAAMBONG: Thank you.
THE PRESIDENT: Is this clear now? What is the reaction of the Committee?
x x x x x x x x x
MR. REGALADO: Madam President, the Committee feels that this matter should be submitted to the body for a vote.
MR. DE CASTRO: Thank you.
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MR. REGALADO: We will take the amendments one by one. We will first vote on the deletion of the phrase 'and bureaus'
on line 26, such that appointments of bureau directors no longer need confirmation by the Commission on
Appointment.
Section 16, therefore, would read: 'The President shall nominate, and with the consent of a Commission on
Appointments, shall appoint the heads of the executive departments, ambassadors. . , .'
THE PRESIDENT: Is there any objection to delete the phrase 'and bureaus' on page 7, line 26? (Silence) The Chair hears
none; the amendments is approved.
x x x x x x x x x
MR. ROMULO: Madam President.
THE PRESIDENT: The Acting Floor Leader is recognized.
THE PRESIDENT: Commissioner Foz is recognized.
MR. FOZ: Madam President, this is the third proposed amendment on page 7, line 28.1 propose to put a period (.) after
'captain' and on line 29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT ANY.
MR. REGALADO: Madam President, the Committee accepts the proposed amendment because it makes it clear that
those other officers mentioned therein do not have to be confirmed by the Commission on Appointments.
MR. DAVIDE: Madam President.
THE PRESIDENT: Commissioner Davide is recognized.
x x x x x x x x x
MR. DAVIDE: So would the proponent accept an amendment to his amendment, so that after 'captain' we insert the
following words: AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION?
FR. BERNAS: It is a little vague.
MR. DAVIDE: In other words, there are positions provided for in the Constitution whose appointments are vested in the
President, as a matter of fact like those of the different constitutional commissions.
FR. BERNAS: That is correct. This list of officials found in Section 16 is not an exclusive list of those appointments which
constitutionally require confirmation of the Commission on Appointments.
MR. DAVIDE: That is the reason I seek the incorporation of
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the words I proposed.
FR, BERNAS: Will Commissioner Davide restate his proposed amendment?
MR. DAVIDE: After 'captain,' add the following: AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN
THIS CONSTITUTION.
FR. BERNAS: How about: 'AND OTHER OFFICERS WHOSE APPOINTMENTS REQUIRE CONFIRMATION UNDER THIS
CONSTITUTION'?
MR. DAVIDE: Yes, Madam President, that is modified by the Committee.
FR. BERNAS: That will clarify things.
THE PRESIDENT: Does the Committee accept?
MR. REGALADO: Just for the record, of course, that excludes those officers which the Constitution does not require
confirmation by the Commission on Appointments, like the members of the judiciary and the Ombudsman.
MR. DAVIDE: That is correct. That is very clear from the modification made by Commissioner Bernas. THE PRESIDENT: So
we have now this proposed amendment of Commissioners Foz and Davide.
x x x x x x x x x
THE PRESIDENT: Is there any objection to this proposed amendment of Commissioners Foz and Davide as accepted by
the Committee? (Silence) The Chair hears none; the amendment, as amended, is approved"10 (Emphasis supplied).
It is, therefore, clear that appointments to the second and third groups of officers can be made by the President without
the consent (confirmation) of the Commission on Appointments.
It is contended by amicus curiae, Senator Neptali Gonzales, that the second sentence of Sec. 16, Article VII reading
". . . He (the President) shall also appoint all other officers of the Government whose appointments are not otherwise
provided for by law and those whom he may be authorized by law to appoint . . .
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10 Pp. 514-521, Vol. II, RECORD OF THE 1986 CONSTITUTIONAL COMMISSION.
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x x x" (Emphasis supplied)
with particular reference to the word "also," implies that the President shall "in like manner" appoint the officers
mentioned in said second sentence. In other words, the President shall appoint the officers mentioned in said second
sentence in the same manner as he appoints officers mentioned in the first sentence, that is, by nomination and with
the consent (confirmation) of the Commission on Appointments.
Amicus curiae's reliance on the word "also" in said second sentence is not necessarily supportive of the conclusion he
arrives at. For, as the Solicitor General argues, the word "also" could mean "in addition; as well; besides, too" (Webster's
International Dictionary, p. 62, 1981 edition) which meanings could, on the contrary, stress that the word "also" in said
second sentence means that the President, in addition to nominating and, with the consent of the Commission on
Appointments, appointing the officers enumerated in the first sentence, can appoint (without such consent
(confirmation) the off icers mentioned in the second sentence.
Rather than limit the area of consideration to the possible meanings of the word "also" as used in the context of said
second sentence, the Court has chosen to derive significance from the fact that the first sentence speaks of nomination
by the President and appointment by the President with the consent of the Commission on Appointments, whereas, the
second sentence speaks only of appointment by the President. And, this use of different language in two (2) sentences
proximate to each other underscores a difference in message conveyed and perceptions established, in line with Judge
Learned Hand's observation that "words are not pebbles in alien juxtaposition" but, more so, because the recorded
proceedings of the 1986 Constitutional Commission clearly and expressly justify such differences.
As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there are officers whose
appointments require no confirmation of the Commission on Appointments, even if such officers may be higher in rank,
compared to some officers whose appointments have to be confirmed by the
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Sarmiento III vs. Mison
Commission on Appointments under the first sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the appointment
of the Central Bank Governor requires no confirmation by the Commission on Appointments, even if he is higher in rank
than a colonel in the Armed Forces of the Philippines or a consul in the Consular Service.
But these contrasts, while initially impressive, merely underscore the purposive intention and deliberate judgment of
the framers of the 1987 Constitution that, except as to those officers whose appointments require the consent of the
Commission on Appointments by express mandate of the first sentence in Sec., 16, Art. VII, appointments of other
officers are left to the President without need of confirmation by the Commission on Appointments. This conclusion is
inevitable, if we are to presume, as we must, that the framers of the 1987 Constitution were knowledgeable of what
they were doing and of the foreseable effects thereof.
Besides, the power to appoint is fundamentally executive or presidential in character. Limitations on or qualifications of
such power should be strictly construed against them. Such limitations or qualifications must be clearly stated in order
to be recognized. But, it is only in the first sentence of Sec. 16, Art. VII where it is clearly stated that appointments by the
President to the positions therein enumerated require the consent of the Commission on Appointments.
As to the fourth group of officers whom the President can appoint, the intervenor Commission on Appointments
underscores the third sentence in Sec. 16, Article VII of the 1987 Constitution, which reads:
"The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or
in the heads of departments, agencies, commissions, or boards." [Emphasis supplied].
and argues that, since a law is needed to vest the appointment of lower-ranked officers in the President alone, this
implies that, in the absence of such a law, lower-ranked officers have to be appointed by the President subject to
confirmation by the Commission on Appointments; and, if this is so, as to lower-
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563
Sarmiento III vs. Mison
ranked officers, it follows that higher-ranked officers should be appointed by the President, subject also to confirmation
by the Commission on Appointments.
The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII, abovequoted, merely declares
that, as to lower-ranked officers, the Congress may by law vest their appointment in the President, in the courts, or in
the heads of the various departments, agencies, commissions, or boards in the government. No reason however is
submitted for the use of the word' 'alone'' in said third sentence.
The Court is not impressed by both arguments. It is of the considered opinion, after a careful study of the deliberations
of the 1986 Constitutional Commission, that the use of the word "alone" after the word "President" in said third
sentence of Sec. 16, Article VII is, more than anything else, a slip or lapsus in draftmanship. It will be recalled that, in the
1935 Constitution, the following provision appears at the end of par. 3, section 10, Article VII thereof
"x x x ; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in
the heads of departments." [Emphasis supplied].
The above provision in the 1935 Constitution appears immediately after the provision which makes practically all
presidential appointments subject to confirmation by the Commission on Appointments, thus
"3. The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of
the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and Air Forces from
the rank of captain or commander, and all other officers of the Government whose appointments are not herein
provided for, and those whom he may be authorized by law to appoint; x x x"
In other words, since the 1935 Constitution subjects, as a general rule, presidential appointments to confirmation by the
Commission on Appointments, the same 1935 Constitution saw fit, by way of an exception to such rule, to provide that
Congress may, however, by law vest the appointment of in-
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ferior officers (equivalent to "officers lower in rank" referred to in the 1987 Constitution) in the President alone, in the
courts, or in the heads of departments,
In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its framers was to exclude
presidential appointments from confirmation by the Commission on Appointments, except appointments to offices
expressly mentioned in the first sentence of Sec. 16, Article VII. Consequently, there was no reason to use in the third
sentence of Sec. 16, Article VII the word "alone" after the word "President" in providing that Congress may by law vest
the appointment of lower-ranked officers in the President alone, or in the courts, or in the heads of departments,
because the power to appoint officers whom he (the President) may be authorized by law to appoint is already vested in
the President, without need of confirmation by the Commission on Appointments, in the second sentence of the same
Sec. 16, Article VII.
Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case of lower-ranked officers,
the Congress may by law vest their appointment in the President, in the courts, or in the heads of various departments
of the government. In short, the word "alone" in the third sentence of Sec. 16, Article VII of the 1987 Constitution, as a
literal import from the last part of par. 3, section 10, Article VII of the 1935 Constitution, appears to be redundant in the
light of the second sentence of Sec. 16, Article VII. And, this redundancy cannot prevail over the clear and positive intent
of the framers of the 1987 Constitution that presidential appointments, except those mentioned in the first sentence of
Sec. 16, Article VII, are not subject to confirmation by the Commission on Appointments.
Coming now to the immediate question before the Court, it is evident that the position of Commissioner of the Bureau
of Customs (a bureau head) is not one of those within the first group of appointments where the consent of the
Commission on Appointments is required. As a matter of fact, as already pointed out, while the 1935 Constitution
includes "heads of bureaus" among those officers whose appointments need the consent of the Commission on
Appointments, the 1987 Con-
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565
Sarmiento III vs, Mison
stitution, on the other hand, deliberately excluded the position of "heads of bureaus" from appointments that need the
consent (confirmation) of the Commission on Appointments.
Moreover, the President is expressly authorized by law to appoint the Commissioner of the Bureau of Customs. The
original text of Sec. 601 of Republic Act No. 1937, otherwise known as the Tariff and Customs Code of the Philippines,
which was enacted by the Congress of the Philippines on 22 June 1957, reads as follows:
"601. Chief Officials of the Bureau.The Bureau of Customs shall have one chief and one assistant chief, to be known
respectively as the Commissioner (hereinafter known as the 'Commissioner') and Assistant Commissioner of Customs,
who shall each receive an annual compensation in accordance with the rates prescribed by existing laws. The Assistant
Commissioner of Customs shall be appointed by the proper department head.''
Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential Decree No. 34, amending the Tariff
and Customs Code of the Philippines. Sec. 601, as thus amended, now reads as follows:
"Sec. 601. Chief Officials of the Bureau of Customs.The Bureau of Customs shall have one chief and one assistant chief,
to be known respectively as the Commissioner (hereinafter known as Commissioner) and Deputy Commissioner of
Customs, who shall each receive an annual compensation in accordance with the rates prescribed by existing law. The
Commissioner and the Deputy Commissioner of Customs shall be appointed by the President of the Philippines "
(Emphasis supplied.)
Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the effectivity of the 1935 Constitution,
under which the President may nominate and, with the consent of the Commission on Appointments, appoint the heads
of bureaus, like the Commissioner of the Bureau of Customs.
After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34 have to be read in harmony
with Sec. 16, Art. VII, with the result that, while the appointment of the Commissioner of the Bureau of Customs is one
that devolves on the President, as an appointment he is authorized
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Sarmiento III vs. Mison
by law to make, such appointment, however, no longer needs the confirmation of the Commission on Appointments.
Consequently, we rule that the President of the Philippines acted within her constitutional authority and power in
appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without submitting his nomination to
the Commission on Appointments for confirmation. He is thus entitled to exercise the full authority and functions of the
office and to receive all the salaries and emoluments pertaining thereto.
WHEREFORE, the petition and petition in intervention should be, as they are, hereby DISMISSED. Without costs.
SO ORDERED.
Yap, Fernan, Narvasa, Paras, Feliciano, Gancayco, Bidin and Corts, JJ., concur.
Teehankee (C.J.), see brief statement.
Melencio-Herrera, J., concurring in a separate opinion.
Gutierrez, Jr., J., please see separate opinion.
Cruz, J., see dissent.
Sarmiento, J., concurring in a separate opinion.
TEEHANKEE, C.J., concurring:

The Court has deemed it necessary and proper, in consonance with its constitutional duty, to adjudicate promptly the
issue at bar and to rule that the direct appointment of respondent Salvador Mison as Commissioner of the Bureau of
Customs (without need of submitting a prior nomination to the Commission on Appointments and securing its
confirmation) is valid and in accordance with the President's constitutional authority to so appoint officers of the
Government as defined in Article VII, section 16 of the 1987 Constitution. The paramount public interest and the
exigencies of the public service demand that any doubts over the validity of such appointments be resolved
expeditiously in the test case at bar.
It should be noted that the Court's decision at bar does not mention nor deal with the Manifestation of December 1,
1987
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Sarmiento III vs. Mison
filed by the intervenor that Senate Bill No. 137 entitled "An Act Providing For the Confirmation By the Commission on
Appointments of All Nominations and Appointments Made by the President of the Philippines" was passed on 23
October 1987 and was "set for perusal by the House of Representatives." This omission has been deliberate. The Court
has resolved the case at bar on the basis of the issues joined by the parties. The contingency of approval of the bill
mentioned by intervenor clearly has no bearing on and cannot affect retroactively the validity of the direct appointment
of respondent Mison and other appointees similarly situated as in G.R. No. 80071, "Alex G. Almario vs. Hon. Miriam
Defensor-Santiago." The Court does not deal with constitutional questions in the abstract and without the same being
properly raised before it in a justiciable case and after thorough discussion of the various points of view that would
enable it.to render judgment after mature deliberation. As stressed at the hearing of December 8, 1987, any discussion
of the reported bill and its validity or invalidity is premature and irrelevant and outside the scope of the issues resolved
in the case at bar,
MELENCIO-HERRERA, J., concurring:.

I concur with the majority opinion and with the concurring opinion of Justice Sarmiento, and simply wish to add my own
reading of the Constitutional provision involved,
Section 16, Article VII, of the 1987 Constitution provides:
'The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank
of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution.
He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law,
and those whom he may be authorized by law to appoint.
The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or
in the heads of the departments, agencies, commissions or boards.
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Sarmiento III vs. Mison
"The President shall have the power to make appointments during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or
until the next adjournment of the Congress" (Emphasis and 1st three paragraphings, supplied).
The difference in language used is significant. Under the first sentence it is clear that the President "nominates,' and
with the consent of the Commission on Appointments "appoints" the officials enumerated. The second sentence,
however, significantly uses only the term "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. Deliberately eliminated was
any reference to nomination.
Thus, the intent of the framers of the Constitution to exclude the appointees mentioned in the second sentence from
confirmation by the Commission on Appointments is, to my mind, quite clear. So also is the fact that the term "appoint"
used in said sentence was not meant to include the three distinct acts in the appointing process, namely, nomination,
appointment, and commission. For if that were the intent, the same terminologies in the first sentence could have been
easily employed.
There should be no question either that the participation of the Commission on Appointments in the appointment
process has been deliberately decreased in the 1987 Constitution compared to that in the 1935 Constitution, which
required that all presidential appointments be with the consent of the Commission on Appointments.
The interpretation given by the majority may, indeed, lead to some incongruous situations as stressed in the dissenting
opinion of Justice Cruz. The remedy therefor addresses itself to the future. The task of constitutional construction is to
ascertain the intent of the framers of the Constitution and thereafter to assure its realization (J.M. Tuason & Co., Inc. vs.
Land Tenure Administration, G.R. No. 21064, February 18, 1970, 31 SCRA 413). And the primary source from which to
ascertain constitutional intent is the language of the Constitution itself,
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VOL. 156, DECEMBER 17, 1987
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Sarmiento III vs. Mison
SARMIENTO, J., Concurring:

I concur. It is clear from the Constitution itself that not all Presidential appointments are subject to prior Congressional
confirmation, thus:
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 recess of the Congress, whether voluntary or
compulsory, but such appointment shall be effective only until disapproval by the Commission on Appointments or until
the next adjournment of the Congress.1
By its plain language, the Constitution has intended that only those grouped under the first sentence are required to
undergo a consenting process. This is a significant departure from the procedure set forth in the 1935 Charter:
(3) The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of
the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and Air Forces from
the rank of captain to commander, and all other officers of the Government whose appointments are not herein
otherwise provided for, and those whom he may be authorized by law to appoint; but the Congress may by law vest the
appointment of inferior officers, in the President alone, in the courts, or in the heads of departments.2
under which, as noted by the majority, "almost all presidential
_______________

1 CONST., art. VII, sec. 16.
2 CONST. (1935), art. VII, sec. 10(3).
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appointments required the consent (confirmation) of the Commission on Appointments."3 As far as the present Charter
is concerned, no extrinsic aid is necessary to ascertain its meaning. Had its framers intended otherwise, that is to say, to
require all Presidential appointments clearance from the Commission on Appointments, they could have simply
reenacted the Constitution's 1935 counterpart.4
I agree that the present Constitution classifies four types of appointments that the President may make: (1)
appointments of heads of executive departments, ambassadors, other public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval captain, and those of other officers whose appointments are vested in
him under the Constitution, including the regular members of the Judicial and Bar Council,5 the Chairman and
Commissioners of the Civil Service Commission,6 the Chairman and Commissioners of the Commission on Elections,7
and the Chairman and Commissioners of the Commission on Audit;8 (2) those officers whose appointments are not
otherwise provided for by law; (3) those whom he may be authorized by law to appoint; and (4) officers lower in rank
whose appointments the Congress may vest in the President alone.
But like Justice Cruz in his dissent, I too am aware that authors of the fundamental law have written a "rather confused
Constitution"9 with respect, to a large extent, to its other parts, and with respect, to a certain extent, to the appointing
clause itself, in the sense that it leaves us for instance, with the incongruous situation where a consul's appointment
needs confirmation whereas that of Undersecretary of Foreign
_______________

3 Sarmiento v. Mison, G.R. No. 79974, 6.
4 As Justice Padilla further notes, Section 16, of Article VII, was originally a verbatim copy of the 1935 provisions. Upon
further deliberations of the Constitutional Commission, however, the consensus was reached to amend the same to its
present form.
5 CONST., art. VIII, sec. 8(2).
6 Supra, art. IX (B), sec. 1 (2).
7 Supra, art. IX (C), sec. 1 (2).
8 Supra, art. IX (D), sec. 1 (2).
9 Sarmiento v. Mison, supra, Cruz., J., Dissenting, 5.
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VOL. 156, DECEMBER 17, 1987
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Sarmiento III vs. Mison
Affairs, his superior, does not. But the idiosyncracies, as it were, of the Charter is not for us to judge, That is a question
addressed to the electorate, and who, despite those "eccentricities," have stamped their approval on that Charter. "The
Court," avers the majority, "will thus construe the applicable constitutional provisions, not in accordance with how the
executive or the legislative department may want them construed, but in accordance with what they say and
provide.''10
It must be noted that the appointment of public officials is essentially an exercise of executive power.11 The fact that
the Constitution has provided for a Commission on Appointments does not minimize the extent of such a power, much
less, make it a shared executive-legislative prerogative. In Concepcion v. Paredes, we stated in no uncertain terms that
"[a]ppointment to office is intrinsically an executive act involving the exercise of discretion."12 Springer v. Philippine
Islands13 on the other hand, underscored the fact that while the legislature may create a public office, it cannot name
the official to discharge the functions appurtenant thereto. And while it may prescribe the qualifications therefor, it
cannot circumscribe such qualifications, which would unduly narrow the President's choice. In that event, it is as if it is
the legislature itself conferring the appointment.
Thus, notwithstanding the existence of a Commission on
_______________

10 Supra, 3.
11 Concepcion v. Paredes, 42 Phil. 599 (1921); Government v. Springer, 50 Phil. 259 (1927); Springer v. P.I., 277 U.S. 189
(1929). The Supreme Court has been vested with the power to "[a]ppoint all officials of the Judiciary in accordance with
the Civil Service Law" [CONST., art. VIII, sec. 5(6)] but that is by fiat of the Constitution itself. (See also supra, art. VII, sec.
16.). In Government v. Springer, supra, we recognized the authority of the legislature to appoint its officers but only as
"an incident to the discharge of its functions." (At 278). When the Constitution authorizes Congress to vest in the
President the appointment of other officers, it is not Congress being empowered to make the appointments; the
President retains his appointing power, through, however, a procedure established by Congress.
12 Supra, at 603.
13 Supra.
572

572
SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
Appointments, the Chief Executive retains his supremacy as the appointing authority. In case of doubt, the same should
be resolved in f avor of the appointing power,
It is the essence of a republican form of government, like ours, that "[e]ach department of the government has exclusive
cognizance of matters within its jurisdiction."14 But like all genuine republican systems, no power is absolutely separate
from the other. For republicanism operates on a process of checks and balances as well, not only to guard against
excesses by one branch, but more importantly, "to secure coordination in the workings of the various departments of
the government."15 Viewed in that light, the Commission on Appointments acts as a restraint against abuse of the
appointing authority, but not as a means with which to hold the Chief Executive hostage by a possibly hostile Congress,
an unhappy lesson as the majority notes, in our history under the regime of the 1935 Constitution.
The system of checks and balances is not peculiar to the provision on appointments. The prohibition, for instance,
against the enactment of a bill of attainder operates as a bar against legislative encroachment upon both judicial and
executive domains, since the determination of guilt and punishment of the guilty address judicial and executive
functions, respectively,16
And then, the cycle of checks and balances pervading the Constitution is a sword that cuts both ways. In a very real
sense, the power of appointment constitutes a check against legislative authority. In Springer v. Philippine Islands,17 we
are told that "Congress may not control the law enforcement process by retaining a power to appoint the individual who
will execute the laws."18 This is so, according to one authority, because "the appointments clause, rather than 'merely
dealing with etiquette or protocol,' seeks to preserve an executive check upon legislative authority in the interest of
avoiding an
_______________

14 Angara v. Electoral Commission, 63 Phil. 139,156 (1936).
15 Angara v. Electoral Commission, supra.
16 TRIBE, AMERICAN CONSTITUTIONAL LAW, 184-185 (1978), citing Buckley v. Valeo. 424 US 1 (1976)
17 Supra.
18 TRIBE, id, 184.
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VOL. 156, DECEMBER 17, 1987
573
Sarmiento III vs. Mison
undue concentration of power in Congress. "19
The President has sworn to "execute [the] laws.20 For that matter, no other department of the Government may
discharge that function, least of all, Congress. Accordingly, a statute conferring upon a commission the responsibility of
administering that very legislation and whose members have been determined therein, has been held to be repugnant
to the Charter."21 Execution of the laws, it was held, is the concern of the President, and in going about this business, he
acts by himself or through his men and women, and no other.
The President, on the other hand, cannot remove his own appointees "except for cause provided by law."22
Parenthetically, this represents a deviation from the rule prevailing in American jurisdiction that "the power of removal.
. . [is] incident to the power of appointment,"23 although this has since been tempered in a subsequent case,24 where it
was held that the President may remove only "purely executive officers,"25 that is, officers holding office at his pleasure.
In Ingles v. Mutuc,26 this Court held that the President may remove incumbents of offices confidential in nature, but we
likewise made clear that in such a case, the incumbent is not "removed" within the meaning of civil service laws, but that
his term merely expires.
It is to be observed, indeed, that the Commission on Appointments, as constituted under the 1987 Constitution, is itself
subject to some check. Under the Charter, "[t]he Commission shall act on all appointments submitted to it within thirty
session days of the Congress from their submission."27 Accordingly, the failure of the Commission to either consent or
_______________

19 Id., 184-185, citing Buckley v. Valeo, supra,
20 CONST., art. VII, sec. 5.
21 Buckley v. Valeo, supra,
22 CONST., art. IX (B), sec. 2 (3).
23 Myers v. United States, 272 US 52 (1926).
24 TRIBE, id., at 188, citing Humphrey's Executor v. United States, 295 US 602 (1935).
25 Id.
26 No. L-20390, November 29,1968, 26 SCRA 171 (1968).
27 CONST., art. VI, sec. 18.
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SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
not consent to the appointments preferred before it within the prescribed period results in a de facto confirmation
thereof.
Certainly, our founding fathers have fashioned a Constitution where the boundaries of power are blurred by the
predominance of checks and counterchecks, yet amid such a rubble of competing powers emerges a structure whose
parts are at times jealous of each other, but which are ultimately necessary in assuring a dynamic, but stable, society. As
Mr. Justice Holmes had so elegantly articulated:
x x x x x x x x x
The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of
them are found to terminate in a penumbra shading gradually from one extreme to the other. x x x When we come to
the fundamental distinctions it is still more obvious that they must be received with a certain latitude or our government
could not go on.
x x x x x x x x x
It does not seem to need argument to show that however we may disguise it by veiling words we do not and cannot
carry out the distinction between legislative and executive action with mathematical precision and divide the branches
into watertight compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the
Constitution requires.28
x x x x x x x x x
We are furthermore told:
x x x x x x x x x
x x x [I]t will be vital not to forget that all of these "checks and counterpoises, which Newton might readily have
recognized as suggestive of the mechanism of the heavens," [W. Wilson, Constitutional Government in the United States
56 (1908)] can represent only the scaffolding of a far more subtle "vehicle of life." (Id. at 192: "The Constitution cannot
be regarded as a mere legal document, to be read as a will or a contract would be. It must, of the necessity of the case,
be a vehicle of life.") The great difficulty of any theory less rich, Woodrow Wilson once warned, "is that government is
not a
_______________

28 Holmes, J., Dissenting, Springer v. Philippine Islands, supra, 210-212.
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VOL. 156, DECEMBER 17, 1987
575
Sarmiento III vs. Mison
machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is
accountable to Darwin, not to Newton. It is . . . shaped to its functions by the sheer pressure of life. No living thing can
have its organs offset against each other as checks, and live." (Id. at 56.) Yet because no complex society can have its
centers of power not "offset against each other as checks," and resist tyranny, the Model of Separated and Divided
Powers offers continuing testimony to the undying dilemmas of progress and justice.29
x x x x x x x x x
As a closing observation, I wish to clear the impression that the 1973 Constitution deliberately denied the legislature
(the National Assembly under the 1971 draft Constitution) the power to check executive appointments, and hence,
granted the President absolute appointing power.30 As a delegate to, and Vice-President of, the ill-fated 1971
Constitutional Convention, and more so as the presiding officer of most of its plenary session, I am aware that the
Convention did not provide for a commission on appointments on the theory that' the Prime Minister, the head of the
Government and the sole appointing power, was himself a member of parliament. For this reason, there was no
necessity for a separate body to scrutinize his appointees. But should such appointees forfeit the confidence of the
assembly, they are, by tradition, required to resign, unless they should otherwise have been removed by the Prime
Minister.31 In effect, it is parliament itself that "approves" such appointments. Unfortunately, supervening events
forestalled our parliamentary experiment, and beginning with the 1976 amendments and some 140 or so amendments
thereafter, we had reverted to the presidential form,32 without provisions for a commission on appointments.
In fine, while Presidential appointments, under the first sentence of Section 16, of Article VII of the present Constitution,
must pass prior Congressional scrutiny, it is a test
_______________

29 TRIBE, id., 18-19; emphasis in original.
30 Sarmiento v. Mison, supra, 6.
31 CONST. (1973), art. IX, sec. 4; art. XII (B), sec. 3.
32 See Free Telephone Workers Union v. Minister of Labor and Employment, No. L-58184, October 30, 1981, 108 SCRA
757 (1981).
576

576
SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
that operates as a mere safeguard against abuse with respect to those appointments. It does not accord Congress any
more than the power to check, but not to deny, the Chief Executive's appointing power or to supplant his appointees
with its own. It is but an exception to the rule. In limiting the Commission's scope of authority, compared to that under
the 1935 Constitution, I believe that the 1987 Constitution has simply recognized the reality of that exception.
GUTIERREZ, JR., J., dissenting opinion

I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution, as the supreme law of the land, should never
have any of its provisions interpreted in a manner that results in absurd or irrational consequences.
The Commission on Appointments is an important constitutional body which helps give fuller expression to the
principles inherent in our presidential system of government. Its functions cannot be made innocuous or unreasonably
diminished to the confirmation of a limited number of appointees. In the same manner that the President shares in the
enactment of laws which govern the nation, the legislature, through its Commission on Appointments, gives assurance
that only those who can pass the scrutiny of both the President and Congress will help run the country as officers
holding high appointive positions. The third sentence of the first paragraph"x x x 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."specifies only "officers lower in rank" as those who may, by law, be appointed by
the President alone, If as expounded in the majority opinion, only the limited number of officers in the first sentence of
Section 16 require confirmation, the clear intent of the third sentence is lost. In fact both the second and third sentences
become meaningless or superfluous. Superfluity is not to be read into such an important part of the Constitution.
I agree with the intervenor that all provisions of the Constitution on appointments must be read together. In providing
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VOL. 156, DECEMBER 17, 1987
577
Sarmiento III vs. Mison
for the appointment of members of the Supreme Court and judges of lower courts (Section 9, Article VIII), the
Ombudsman and his deputies (Section 9, Article XI), the Vice President as a member of cabinet (Section 3, Article VII)
and, of course, those who by law the President alone may appoint, the Constitution clearly provides no need for
confirmation. This can only mean that all other appointments need confirmation. Where there is no need for
confirmation or where there is an alternative process to confirmation, the Constitution expressly so declares. Without
such a declaration, there must be confirmation.
The 1973 Constitution dispensed with confirmation by a Commission on Appointments because the government it set
up was supposed to be a parliamentary one. The Prime Minister, as head of government, was constantly accountable to
the legislature. In our presidential system, the interpretation which Justice Cruz and myself espouse, is more democratic
and more in keeping with the system of government organized under the Constitution.
I, theref ore vote to grant the petition.
CRUZ, J., dissenting:

The view of the respondent, as adopted by the majority opinion, is briefly as follows: Confirmation is required only for
the officers mentioned in the first sentence of Section 16, to wit: (1) the heads of the executive departments; (2)
ambassadors, other public ministers and consuls; (3) officers of the armed forces from the rank of colonel or naval
captain; and (4) other officers whose appointments are vested in the President in the Constitution. No confirmation is
required under the second sentence for (1) all other officers whose appointments are not otherwise provided for by law,
and (2) those whom the President may be authorized by law to appoint. Neither is confirmation required by the third
sentence for those other officers lower in rank whose appointment is vested by law in the President alone.
Following this interpretation, the Undersecretary of Foreign Affairs, who is not the head of his department, does not
578

578
SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
have to be confirmed by the Commission on Appointments, but the ordinary consul, who is under his jurisdiction, must
be confirmed. The colonel is by any standard lower in rank than the Chairman of the Commission on Human Rights,
which was created by the Constitution; yet the former is subject to confirmation but the latter is not because he does
not come under the first sentence. The Special Prosecutor, whose appointment is not vested by the Constitution in the
President, is not subject to confirmation under the first sentence, and neither are the Governor of the Central Bank and
the members of the Monetary Board because they fall under the second sentence as interpreted by the majority
opinion. Yet in the case of the multi-sectoral members of the regional consultative commission, whose appointment is
vested by the Constitution in the President under Article X, Section 18, their confirmation is required although their rank
is decidedly lower.
I do not think these discrepancies were intended by the framers as they.would lead to the absurd consequences we
should avoid in interpreting the Constitution.
There is no question that bureau directors are not required to be confirmed under the first sentence of Section 16, but
that is not the provision we ought to interpret. It is the second sentence we must understand for a proper resolution of
the issues now before us. Significantly, although there was a long discussion of the first sentence in the Constitutional
Commission, there is none cited on the second sentence either in the Solicitor-General's comment or in the majority
opinion. We can therefore only speculate on the correct interpretation of this provision in the light of the first and third
sentences of Section 16 or by reading this section in its totality.
The majority opinion says that the second sentence is the exception to the first sentence and holds that the two sets of
officers specified therein may be appointed by the President wihout the concurrence of the Commission on
Appointments. This interpretation is pregnant with mischievous if not also ridiculous results that presumably were not
envisioned by the framers.
One may wonder why it was felt necessary to include the second sentence at all, considering the majority opinion that
the
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VOL. 156, DECEMBER .17, 1987
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Sarmiento III vs. Mison
enumeration in the first sentence of the officers subject to confirmation is exclusive on the basis of expressio unius est
exclusio alterius. If that be so, the first sentence would have been sufficient by itself to convey the idea that all other
appointees of the President would not need confirmation.
One may also ask why, if the officers mentioned in the second sentence do not need confirmation, it was still felt
necessary to provide in the third sentence that the appointment of the other officers lower in rank will also not need
confirmation as long as their appointment is vested by law in the President esident alone. The third sentence would
appear to be superfluous, too, again in view of the first sentence.
More to the point, what will follow if Congress does not see fit to vest in the President alone the appointment of those
other officers lower in rank mentioned in the third sentence? Conformably to the language thereof, these lower officers
will need the confirmation of the Commission on Appointments while, by contrast, the higher officers mentioned in the
second sentence will not.
Thus, a regional director in the Department of Labor and the labor arbiters, as officers lower in rank than the bureau
director, will have to be confirmed if the Congress does not vest their appointment in the President alone under the
third sentence. On the other hand, their superior, the bureau director himself, will not need to be confirmed because,
according to the majority opinion, he falls not under the first sentence but the second. This is carefulness in reverse, like
checking the bridesmaids but forgetting the bride.
It must be borne in mind that one of the purposes of the Constitutional Commission was to restrict the powers of the
Presidency and so prevent the recurrence of another dictatorship. Among the many measures taken was the restoration
of the Commission on Appointments to check the appointing power which had been much abused by President Marcos.
We are now told that even as this body was revived to limit appointments, the scope of its original authority has itself
been limited in the new Constitution. I have to disagree.
My own reading is that the second sentence is but a continuation of the idea expressed in the first sentence and simply
580

580
SUPREME COURT REPORTS ANNOTATED
Sarmiento III vs. Mison
mentions the other officers appointed by the President who are also subject to confirmation. The second sentence is the
later expression of the will of the framers and so must be interpreted as complementing the rule embodied in the first
sentence or, if necessary, reversing the original intention to exempt bureau directors from confirmation. I repeat that
there were no debates on this matter as far as I know, which simply means that my humble conjecture on the meaning
of Section 16 is as arguable, at least, as the suppositions of the majority. We read and rely on the same records. At any
rate, this view is more consistent with the general purpose of Article VII, which, to repeat, was to reduce the powers of
the Presidency,
The respondent cites the following exchange reported in page 520, Volume II, of the Record of the Constitutional
Convention:
Mr. Foz: Madam President, this is the third proposed amendment on page 7, line 28, I propose to put a period (.) after
'captain' and on line 29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT ANY.
Mr. Regalado: Madam President, the Committee accepts the proposed amendment because it makes it clear that those
other officers mentioned therein do not have to be confirmed by the Commission on Appointments.
However, the records do not show what particular part of Section 16 the committee chairman was referring to, and a
reading in its entirety of this particular debate will suggest that the body was considering the first sentence of the said
section, which I reiterate is not the controversial provision. In any case, although the excerpt shows that the proposed
amendment of Commissioner Foz was accepted by the committee, it is not reflected, curiously enough, in the final
version of Section 16 as a perusal thereof will readily reveal Whether it was deleted later in the session or reworded by
the style committee or otherwise replaced for whatever reason will need another surmise on this rather confused
Constitution.
I need only add that the records of the Constitutional Commission are merely extrinsic aids and are at best persuasive
only and not necessarily conclusive. Interestingly, some quarters have observed that the Congress is not prevented from
adding
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VOL. 156, DECEMBER 17, 1987
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Sarmiento III vs. Mison
to the list of officers subject to confirmation by the Commission on Appointments and cite the debates on this matter in
support of this supposition. It is true enough that there was such a consensus, but it is equally true that this thinking is
not at all expressed, or even only implied, in the language of Section 16 of Article VII. Which should prevail thenthe
provision as worded or the debates?
It is not disputed that the power of appointment is executive in nature, but there is no question either that it is not
absolute or unlimited. The rule re-established by the new Constitution is that the power requires confirmation by the
Commission on Appointments as a restraint on presidential excesses, in line with the system of checks and balances. I
submit it is the exception to this rule, and not the rule, that should be strictly construed.
In my view, the only officers appointed by the President who are not subject to confirmation by the Commission on
Appointments are (1) the members of the judiciary and the Ombudsman and his deputies, who are nominated by the
Judicial and Bar Council; (2) the Vice-President when he is appointed to the Cabinet; and (3) "other officers lower in
rank," but only when their appointment is vested by law in the President alone. It is clear that this enumeration does not
include the respondent Commissioner of Customs who, while not covered by the first sentence of Section 16, comes
under the second sentence thereof as I would interpret it and so is also subject to confirmation.
I vote to grant the petition.
Petition dismissed.
Notes.Appointment is an essential discretionary power and must be performed by the officer in which it is vested
according to his best lights, the only condition being that the appointee should possess the qualifications required by
law. (Luego vs. Civil Service Commission, 143 SCRA 327.)
Civil Service Commission is not empowered to determine the kind of nature of appointment. (Luego vs. Civil Service
Commission, 143 SCRA 327.)
o0o [Sarmiento III vs. Mison, 156 SCRA 549(1987)]


SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
G.R. No. 78239. February 9, 1989.*
SALVACION A. MONSANTO, petitioner, vs. FULGENCIO S. FACTORAN, JR., respondent.
Criminal Law; Pardon, Effects of; Administrative Law; Public Officers; Pardon does not ipso facto restore a convicted
felon to public office necessarily relinquished or forfeited by reason of such conviction.Pardon granted after
conviction frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. But
unless expressly grounded on the persons innocence (which is rare), it cannot bring back lost reputation for honesty,
integrity and fair dealing. This must be constantly kept in mind lest we lose track of the true character and purpose of
the privilege. Thus, notwithstanding the expansive and effusive language of the Garland case, we are in full agreement
with the commonly-held opinion that pardon does not ipso facto restore a convicted felon to public office necessarily
relinquished or forfeited by reason of the conviction although such pardon undoubtedly restores his eligibility for
appointment to that office.
Same; Same; Same; Same; Same; The pardon granted to petitioner resulted in removing her disqualification from
holding public employment, but to regain her former post, she must reapply and undergo the usual procedure required
for a new appointment.For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility
from public office forms part of the punishment prescribed by the Revised Penal Code for estafa thru falsification of
public documents. It is clear from the authorities referred to that when her guilt and punishment were expunged by her
pardon, this
_______________

* EN BANC.
191

VOL. 170, FEBRUARY 9, 1989
191
Monsanto vs. Factoran, Jr.
particular disability was likewise removed. Henceforth, petitioner may apply for reappointment to the office which was
forfeited by reason of her conviction. And in considering her qualifications and suitability for the public post, the facts
constituting her offense must be and should be evaluated and taken into account to determine ultimately whether she
can once again be entrusted with public funds. Stated differently, the pardon granted to petitioner has resulted in
removing her disqualification from holding public employment but it cannot go beyond that. To regain her former post
as assistant city treasurer, she must reapply and undergo the usual procedure required for a new appointment.
Same; Same; Same; Civil Liability, Extinction Of; The pardon granted to herein petitioner did not extinguish the civil
liability arising from the crime she has been convicted of.Finally, petitioner has sought exemption from the payment
of the civil indemnity imposed upon her by the sentence. The Court cannot oblige her. Civil liability arising from crime is
governed by the Revised Penal Code. It subsists notwithstanding service of sentence, or for any reason the sentence is
not served by pardon, amnesty or commutation of sentence. Petitioners civil liability may only be extinguished by the
same causes recognized in the Civil Code, namely: payment, loss of the thing due, remission of the debt, merger of the
rights of creditor and debtor, compensation and novation.
Same; Same; Same; Acceptance of Pardon; Petitioner is deemed to have abandoned her appeal when she accepted the
pardon granted to her.The 1981 amendments had deleted the earlier rule that clemency could be extended only upon
final conviction, implying that clemency could be given even before conviction. Thus, petitioners unconditional pardon
was granted even as her appeal was pending in the High Court. It is worth mentioning that under the 1987 Constitution,
the former limitation of final conviction was restored. But be that as it may, it is our view that in the present case, it is
not material when the pardon was bestowed, whether before or after conviction, for the result would still be the same.
Having accepted the pardon, petitioner is deemed to have abandoned her appeal and her unreversed conviction by the
Sandiganbayan assumed the character of finality.
PADILLA, J., Separate opinion:

Criminal Law; Pardon, Effects of; Administrative Law; Public Officers; A public officer, like herein petitioner, who has
been convicted of Estafa Through Falsification of Public Documents, though
192

192
SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
subsequently pardoned, is deemed to have lost her right to public office, unless such right is expressly restored by the
pardon.An examination of the presidential pardon in question shows that, while petitioner was granted an absolute
and unconditional pardon and restored to full civil and political rights, yet, nothing therein expressly provides that the
right to hold public office was thereby restored to the petitioner. In view of the express exclusion by Art. 36, R.P.C., of
the right to hold public office, notwithstanding a pardon unless the right is expressly restored by the pardon, it is my
considered opinion that, to the extent that the pardon granted to the petitioner did not expressly restore the right to
hold public office as an effect of such pardon, that right must be kept away from the petitioner. It is a recognized
principle in public lawhopefully to be honored more in its compliance rather than in its breachthat a public office is
a public trust. The restoration of the right to hold public office to one who has lost such right by reason of conviction in
a criminal case, but subsequently pardoned, cannot be left to inference, no matter how intensely arguable, but must be
stated in express, explicit, positive and specific language. To require this would not be asking too much.
FELICIANO, J., concurring:

Criminal Law; Pardon, Effects Of; Administrative Law; Public Officers; The pardon granted to herein petitioner is
ineffective to restore her right to hold public office.In other words, the mere grant of a pardon to a public officer or
employee who has been unfaithful to the public trust and sentenced to disqualification from voting and from holding
such office, does not create the presumption that the recipient of the pardon has thereby suddenly become morally
eligible once more to exercise the right to vote and to hold public office. In my view, the pardon extended to petitioner
was ineffective to restore to her the right to hold public office and on this ground, I vote to DENY the Petition for Review
and to AFFIRM the assailed Resolution of the then Executive Secretary Fulgencio S. Factoran, Jr.
PETITION to review the resolution of the Deputy Executive Secretary.

The facts are stated in the opinion of the Court.
FERNAN, C.J.:

The principal question raised in this petition for review is
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VOL. 170, FEBRUARY 9, 1989
193
Monsanto vs. Factoran, Jr.
whether or not a public officer, who has been granted an absolute pardon by the Chief Executive, is entitled to
reinstatement to her former position without need of a new appointment.
In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner Salvacion A. Monsanto (then
assistant treasurer of Calbayog City) and three other accused, of the complex crime of estafa thru falsification of public
documents and sentenced them to imprisonment of four (4) years, two (2) months and one (1) day of prision
correccional as minimum, to ten (10) years and one (1) day of prision mayor as maximum, and to pay a fine of P3,500.
They were further ordered to jointly and severally indemnify the government in the sum of P4,892.50 representing the
balance of the amount defrauded and to pay the costs proportionately.
Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed the same. She then filed a
motion for reconsideration but while said motion was pending, she was extended on December 17, 1984 by then
President Marcos absolute pardon which she accepted on December 21, 1984.
By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be restored to her former
post as assistant city treasurer since the same was still vacant.
Petitioners letter-request was referred to the Ministry of Finance for resolution in view of the provision of the Local
Government Code transferring the power of appointment of treasurers from the city governments to the said Ministry.
In its 4th Indorsement dated March 1, 1985, the Finance Ministry ruled that petitioner may be reinstated to her position
without the necessity of a new appointment not earlier than the date she was extended the absolute pardon. It also
directed the city treasurer to see to it that the amount of P4,892.50 which the Sandiganbayan had required to be
indemnified in favor of the government as well as the costs of the litigation, be satisfied.1
Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April 17, 1985 stressing that the full
pardon bestowed on her has wiped out the crime which implies
_______________

1 Rollo at 14-15.
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194
SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
that her service in the government has never been interrupted and therefore the date of her reinstatement should
correspond to the date of her preventive suspension which is August 1, 1982; that she is entitled to backpay for the
entire period of her suspension; and that she should not be required to pay the proportionate share of the amount of
P4,892.50.2
The Ministry of Finance, however, referred petitioners letter to the Office of the President for further review and
action. On April 15, 1986, said Office, through Deputy Executive Secretary Fulgenio S. Factoran, Jr. held:
We disagree with both the Ministry of Finance and the petitioner because, as borne out by the records, petitioner was
convicted of the crime for which she was accused. In line with the governments crusade to restore absolute honesty in
public service, this Office adopts, as a juridical guide (Miranda v. Imperial, 77 Phil. 1966), the Resolution of the
Sandiganbayan, 2nd Division, in People v. Lising, Crim. Case No. 6675, October 4, 1985, that acquittal, not absolute
pardon, of a former public officer is the only ground for reinstatement to his former position and entitlement to
payment of his salaries, benefits and emoluments due to him during the period of his suspension pendente lite.
In fact, in such a situation, the former public official must secure a reappointment before he can reassume his former
position. xxx.
Anent the civil liability of Monsanto, the Revised Penal Code expressly provides that a pardon shall in no case exempt
the culprit from payment of the civil indemnity imposed upon him by the sentence. (Sec. 36, par. 2).
IN VIEW OF THE FOREGOING, this Office holds that Salvacion A. Monsanto is not entitled to an automatic reinstatement
on the basis of the absolute pardon granted her but must secure an appointment to her former position and that,
notwithstanding said absolute pardon, she is liable for the civil liability concomitant to her previous conviction.3
Her subsequent motion for reconsideration having been denied, petitioner filed the present petition in her behalf. We
gave due course on October 13, 1987.
_______________

2 Rollo at 18-19.
3 Rollo at 21-22.
195

VOL. 170, FEBRUARY 9, 1989
195
Monsanto vs. Factoran, Jr.
Petitioners basic theory is that the general rules on pardon cannot apply to her case by reason of the fact that she was
extended executive clemency while her conviction was still pending appeal in this Court. There having been no final
judgment of conviction, her employment therefore as assistant city treasurer could not be said to have been terminated
or forfeited. In other words, without that final judgment of conviction, the accessory penalty of forfeiture of office did
not attach and the status of her employment remained suspended. More importantly, when pardon was issued before
the final verdict of guilt, it was an acquittal because there was no offense to speak of. In effect, the President has
declared her not guilty of the crime charged and has accordingly dismissed the same.4
It is well to remember that petitioner had been convicted of the complex crime of estafa thru falsification of public
documents and sentenced to imprisonment of four years, two months and one day of prision correccional as minimum,
to ten years and one day of prision mayor as maximum. The penalty of prision mayor carries the accessory penalties of
temporary absolute disqualification and perpetual special disqualification from the right of suffrage, enforceable during
the term of the principal penalty.5 Temporary absolute disqualification bars the convict from public office or
employment, such disqualification to last during the term of the sentence.6 Even if the offender be pardoned, as to the
principal penalty, the accessory penalties remain unless the same have been expressly remitted by the pardon.7 The
penalty of prision correccional carries, as one of its accessory penalties, suspension from public office.8
The propositions earlier advanced by petitioner reveal her inadequate understanding of the nature of pardon and its
legal consequences. This is not totally unexpected considering that the authorities on the subject have not been wholly
consistent particularly in describing the effects of pardon.
_______________

4 Rollo at 73.
5 Article 42, Revised Penal Code.
6 Article 30, supra.
7 Article 36, supra.
8 Article 43, supra.
196

196
SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
The benign mercy of pardon is of British origin, conceived to temper the gravity of the Kings wrath. But Philippine
jurisprudence on the subject has been largely influenced by American case law.
Pardon is defined as an act of grace, proceeding from the power entrusted with the execution of the laws, which
exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is
the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended,
and not communicated officially to the Court. x x x. A pardon is a deed, to the validity of which delivery is essential, and
delivery is not complete without acceptance.8-a
At the time the antecedents of the present case took place, the pardoning power was governed by the 1973
Constitution as amended in the April 7, 1981 plebiscite. The pertinent provision reads:
The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and
forfeitures, and with the concurrence of the Batasang Pambansa, grant amnesty.9
The 1981 amendments had deleted the earlier rule that clemency could be extended only upon final conviction,
implying that clemency could be given even before conviction. Thus, petitioners unconditional pardon was granted even
as her appeal was pending in the High Court. It is worth mentioning that under the 1987 Constitution, the former
limitation of final conviction was restored. But be that as it may, it is our view that in the present case, it is not material
when the pardon was bestowed, whether before or after conviction, for the result would still be the same. Having
accepted the pardon, petitioner is deemed to have abandoned her appeal and her unreversed conviction by the
Sandiganbayan assumed the char-
_______________

8-a United States v. Wilson, 7 Pet. 150, 160-1, cited in Bernas, The 1973 Philippine Constitution, Notes and Cases, Part I,
1974 Ed., p. 355.
9 Article VII, Section 11.
197

VOL. 170, FEBRUARY 9, 1989
197
Monsanto vs. Factoran, Jr.
acter of finality.
Having disposed of that preliminary point, we proceed to discuss the effects of a full and absolute pardon in relation to
the decisive question of whether or not the plenary pardon had the effect of removing the disqualifications prescribed
by the Revised Penal Code.
In Pelobello v. Palatino,10 we find a reiteration of the stand consistently adopted by the courts on the various
consequences of pardon: x x x we adopt the broad view expressed in Cristobal v. Labrador, G.R. No. 47941, December
7, 1940, that subject to the limitations imposed by the Constitution, the pardoning power cannot be restricted or
controlled by legislative action; that an absolute pardon not only blots out the crime committed but removes all
disabilities resulting from the conviction. x x x. (W)e are of the opinion that the better view in the light of the
constitutional grant in this jurisdiction is not to unnecessarily restrict or impair the power of the Chief Executive who,
after an inquiry into the environmental facts, should be at liberty to atone the rigidity of the law to the extent of
relieving completely the party x x x concerned from the accessory and resultant disabilities of criminal conviction.
The Pelobello v. Palatino and Cristobal v. Labrador cases,11 and several others12 show the unmistakable application of
the doctrinal case of Ex Parte Garland,13 whose sweeping generalizations to this day continue to hold sway in our
jurisprudence despite the fact that much of its relevance has been downplayed by later American decisions.
Consider the following broad statements:
A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is
full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as
innocent as if he had never committed the offense. If granted before conviction, it prevents any
_______________

10 72 Phil. 441.
11 Supra.
12 In re Lontok, 43 Phil. 293; Pendon v. Diasnes, 91 Phil. 848 and Mijares v. Custorio, 73 Phil. 507.
13 4 Wall. 333, 18 L. Ed. 366.
198

198
SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
of the penalties and disabilities, consequent upon conviction, from attaching; if granted after conviction, it removes the
penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new
credit and capacity.14
Such generalities have not been universally accepted, recognized or approved.15 The modern trend of authorities now
rejects the unduly broad language of the Garland case (reputed to be perhaps the most extreme statement which has
been made on the effects of a pardon). To our mind, this is the more realistic approach. While a pardon has generally
been regarded as blotting out the existence of guilt so that in the eye of the law the offender is as innocent as though he
never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or
remission of guilt. Pardon implies guilt. It does not erase the fact of the commission of the crime and the conviction
thereof. It does not wash out the moral stain. It involves forgiveness and not forgetfulness.16
The better considered cases regard full pardon (at least one not based on the offenders innocence) as relieving the
party from all the punitive consequences of his criminal act, including the disqualifications or disabilities based on the
finding of guilt.17 But it relieves him from nothing more. To say, however, that the offender is a new man, and as
innocent as if he had never committed the offense; is to ignore the difference between the crime and the criminal. A
person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment,
though left unpunished; and the law may regard him as more dangerous to society than one never found guilty of crime,
though it places no restraints upon him following his conviction.18
_______________

14 Ex Parte Garland, supra at 367.
15 67 C. J. S. 576-577.
16 67 C. J. S. 576-577; Page vs. Watson, 192 So. 205, 126 A.L.R. 249, 253.
17 Comm. of Met. Dist. Com. v. Director of Civil Service, 203 N.E. 2d 95.
18 State v. Cullen, 127 P. 2d 257, cited in 67 C.J.S. 577, note 18.
199

VOL. 170, FEBRUARY 9, 1989
199
Monsanto vs. Factoran, Jr.
A pardon looks to the future. It is not retrospective.19 It makes no amends for the past. It affords no relief for what has
been suffered by the offender. It does not impose upon the government any obligation to make reparation for what has
been suffered. Since the offense has been established by judicial proceedings, that which has been done or suffered
while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be
required.20 This would explain why petitioner, though pardoned, cannot be entitled to receive backpay for lost
earnings and benefits.
Petitioner maintains that when she was issued absolute pardon, the Chief Executive declared her not guilty of the crime
for which she was convicted. In the case of State v. Hazzard,21 we find this strong observation: To assume that all or
even a major number of pardons are issued because of innocence of the recipients is not only to indict our judicial
system, but requires us to assume that which we all know to be untrue. The very act of forgiveness implies the
commission of wrong, and that wrong has been established by the most complete method known to modern civilization.
Pardons may relieve from the disability of fines and forfeitures attendant upon a conviction, but they cannot erase the
stain of bad character, which has been definitely fixed.22
In this ponencia, the Court wishes to stress one vital point: While we are prepared to concede that pardon may remit all
the penal consequences of a criminal indictment if only to give meaning to the fiat that a pardon, being a presidential
prerogative, should not be circumscribed by legislative action, we do not subscribe to the fictitious belief that pardon
blots out the guilt of an individual and that once he is absolved, he should be treated as if he were innocent. For
whatever may have been the judicial dicta in the past, we cannot perceive how pardon can produce such moral
changes as to equate a pardoned convict in character and conduct with one who has constantly
_______________

19 Morris v. Hartsfield, 197 S.E. 251.
20 Illinois C.R. Co. v. Bosworth, 133 U.S. 92, 33 L. Ed. 550, 554-555, citing Knote v. United States, 95 U.S. 149.
21 247 p. 957.
22 See also State v. Serfling, 230 P. 847.
200

200
SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
maintained the mark of a good, law-abiding citizen.
Pardon cannot mask the acts constituting the crime. These are historical facts which, despite the public manifestation
of mercy and forgiveness implicit in pardon, ordinary, prudent men will take into account in their subsequent dealings
with the actor.23
Pardon granted after conviction frees the individual from all the penalties and legal disabilities and restores him to all his
civil rights. But unless expressly grounded on the persons innocence (which is rare), it cannot bring back lost reputation
for honesty, integrity and fair dealing.24 This must be constantly kept in mind lest we lose track of the true character
and purpose of the privilege.
Thus, notwithstanding the expansive and effusive language of the Garland case, we are in full agreement with the
commonly-held opinion that pardon does not ipso facto restore a convicted felon to public office necessarily
relinquished or forfeited by reason of the conviction25 although such pardon undoubtedly restores his eligibility for
appointment to that office.26
The rationale is plainly evident. Public offices are intended primarily for the collective protection, safety and benefit of
the common good. They cannot be compromised to favor private interests. To insist on automatic reinstatement
because of a mistaken notion that the pardon virtually acquitted one from the offense of estafa would be grossly
untenable. A pardon, albeit full and plenary, cannot preclude the appointing power from refusing appointment to
anyone deemed to be of bad character, a poor moral risk, or who is unsuitable by reason of the pardoned conviction.
For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility from public office forms part
of
_______________

23 Comm. of Met. Dist. Com. v. Director of Civil Service, 203 N.E. 2d 95.
24 Ibid.
25 Illinois C.R. Co. v. Bosworth, 133 U.S. 92, 33 L.E. 550; Page v. Watson, 192 So. 205, 126 ALR, 249; State v. Hazzard, 247
P. 957 and In re Stephenson, 10 So. 2d 1.
26 59 Am. Jur. 2d 40.
201

VOL. 170, FEBRUARY 9, 1989
201
Monsanto vs. Factoran, Jr.
the punishment prescribed by the Revised Penal Code for estafa thru falsification of public documents. It is clear from
the authorities referred to that when her guilt and punishment were expunged by her pardon, this particular disability
was likewise removed. Henceforth, petitioner may apply for reappointment to the office which was forfeited by reason
of her conviction. And in considering her qualifications and suitability for the public post, the facts constituting her
offense must be and should be evaluated and taken into account to determine ultimately whether she can once again be
entrusted with public funds. Stated differently, the pardon granted to petitioner has resulted in removing her
disqualification from holding public employment but it cannot go beyond that. To regain her former post as assistant city
treasurer, she must reapply and undergo the usual procedure required for a new appointment.
Finally, petitioner has sought exemption from the payment of the civil indemnity imposed upon her by the sentence.
The Court cannot oblige her. Civil liability arising from crime is governed by the Revised Penal Code. It subsists
notwithstanding service of sentence, or for any reason the sentence is not served by pardon, amnesty or commutation
of sentence. Petitioners civil liability may only be extinguished by the same causes recognized in the Civil Code, namely:
payment, loss of the thing due, remission of the debt, merger of the rights of creditor and debtor, compensation and
novation.27
WHEREFORE, the assailed resolution of former Deputy Executive Secretary Fulgencio S. Factoran, Jr., dated April 15,
1986, is AFFIRMED. No costs.
So ordered.
Narvasa, Paras, Gancayco, Bidin, Corts, Grio-Aquino, Medialdea and Regalado, JJ., concur.
Melencio-Herrera, J., In the result and in the Separate Opinions of Justices Padilla and Feliciano.
Gutierrez, Jr., J., I join Justice Feliciano in his concurring opinion.
_______________

27 Articles 36, 112-113, Revised Penal Code.
202

202
SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
Cruz, J., I concur subject to Mr. Justice Felicianos reservation in his separate opinion.
Feliciano, J., Please see separate concurring opinion.
Padilla, J., Please see separate opinion.
Sarmiento, J., I join the separate opinion of Justices Padilla and Feliciano.
SEPARATE OPINION
PADILLA, J.:

I concur in the result but on grounds different from those relied upon by the majority opinion.
Petitioner Salvacion A. Monsanto was Assistant Treasurer of Calbayog City. Together with three (3) other accused, she
was charged before the Sandiganbayan with the complex crime of Estafa through falsification of public documents. After
trial, the accused were convicted and sentenced to imprisonment of four (4) years, two (2) months and one (1) day of
prision correccional, as minimum, to ten (10) years and one (1) day of prision correccional, as maximum, and to pay a
fine of P3,500.00. They were also ordered to jointly and severally indemnify the government in the sum of P4,892.50
representing the balance of the amount defrauded and to pay the costs proportionately.
Petitioner appealed the judgment of conviction to this Court which affirmed the same. Petitioner then filed a motion for
reconsideration but while said motion was pending, President Ferdinand E. Marcos extended to her on 17 December
1984 an absolute pardon which she accepted on 21 December 1984.
By reason of said absolute pardon, petitioner in representations before the City Treasurer of Calbayog, the Ministry of
Finance and the Office of the President, asked that she be allowed to re-assume her former office, as of 1 August 1982
(the date of her preventive suspension), that she be paid her back salaries for the entire period of her suspension, and
that she be not required to pay her proportionate share of the amount of P4,892.50.
Respondent Assistant Executive Secretary denied petitioners request for automatic reinstatement as well as her other
claims, because of which denial, this petition for review on certiorari
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VOL. 170, FEBRUARY 9, 1989
203
Monsanto vs. Factoran, Jr.
was filed before the Court seeking the setting aside and reversal of the decision of the respondent Assistant Executive
Secretary, on the main contention that, as a public officer who has been granted an absolute pardon by the President,
she is entitled to reinstatement to her former position without need of a new appointment, and to the other reliefs
prayed for.
There can be no dispute that the pardon extinguished petitioners criminal liability. At the same time, Art. 36 of the
Revised Penal Code categorically covers the effects of a pardon on the pardoneds right to hold office, suffrage and on
his civil liability. It states:
ART. 36. Pardon; its effects.A pardon shall not work the restoration of the right to hold public office, or the right of
suffrage, unless such rights be expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the
sentence. (Italics supplied)
Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind, clear that the pardon extended by the
President to the petitioner did not per se entitle her to again hold public office (including therefore the office of
Assistant Treasurer, Calbayog City) or to suffrage; nor did such pardon extinguish her civil liability for the criminal
conviction, subject matter of the pardon.
An examination of the presidential pardon in question shows that, while petitioner was granted an absolute and
unconditional pardon and restored to full civil and political rights, yet, nothing therein expressly provides that the right
to hold public office was thereby restored to the petitioner. In view of the express exclusion by Art. 36, R.P.C., of the
right to hold public office, notwithstanding a pardon unless the right is expressly restored by the pardon, it is my
considered opinion that, to the extent that the pardon granted to the petitioner did not expressly restore the right to
hold public office as an effect of such pardon, that right must be kept away from the petitioner.
It is a recognized principle in public lawhopefully to be honored more in its compliance rather than in its breachthat
a public office is a public trust. The restoration of the right to
204

204
SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
hold public office to one who has lost such right by reason of conviction in a criminal case, but subsequently pardoned,
cannot be left to inference, no matter how intensely arguable, but must be stated in express, explicit, positive and
specific language. To require this would not be asking too much.
I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341 and Pelobello vs. Palatino, 72 Phil. 441
which may be understood to mean that an absolute pardon, without qualification, restores full civil rights which have
been construed, in turn, to include the right to hold public office (Versoza vs. Fernandez, 55 Phil. 323).
If such be the message of said cases, then I submit that a modification is in order, so that an absolute pardon to work a
restoration of the right to hold public office must expressly so state, in order to give substance and meaning to the
sound provisions of Article 36 of the Revised Penal Code, particularly in the light of our times and experience.
ACCORDINGLY, I vote to DENY the petition.
FELICIANO, J.: Concurring:

I concur in the result reached in the important and eloquent opinion of the Chief Justice. I also join in the separate
concurring opinion of Mr. Justice Padilla. At the same time, I would add a few brief statements, basically for my own
clarification. Article 36 of the Revised Penal Code states:
Article 36. Pardon; its effects.A pardon shall not work the restoration of the right to hold public office, or the right of
suffrage, unless such rights be expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the
sentence. (Italic supplied)
It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times by the Revised Penal Code in its
following provisions:
Article 40. DeathIts accessory penalties.The death penalty, when it is not executed by reason of commutation or
pardon shall carry with it that of perpetual absolute disqualification and
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VOL. 170, FEBRUARY 9, 1989
205
Monsanto vs. Factoran, Jr.
that of civil interdiction during thirty years following the date of sentence, unless such accessory penalties have been
expressly remitted in the pardon.
Article 41. Reclusion perpetua and reclusion temporal.Their accessory penalties.The penalties of reclusion
perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the
sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though
pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
Article 42. Prision mayorIts accessory penalties.The penalty of prision mayor shall carry with it that of temporary
absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender shall
suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
Article 43. Prision correccionalIts accessory penalties.The penalty of prision correccional shall carry with it that of
suspension from public office, from the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The
offender shall suffer the disqualification provided in this article although pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the pardon. (Italics supplied)
The Chief Justice points out that the penalty imposed upon petitioner for the complex crime of estafa through
falsification of public documents, included the accessory penalties of temporary absolute disqualification from public
office or employment and perpetual special disqualification from the right of suffrage. The 17 December 1984 pardon
extended to petitioner in the instant case was written on a standard printed form which states in printed words that it
was an absolute and unconditional pardon *which+ restored *petitioner+ to full civil and political rights.1 While the
right of suffrage and the right to hold public office or employment are commonly regarded as political rights,2 it must
be noted that there are other political rights3 and that the pardon given to petitioner did not
_______________

1 Rollo, p. 90.
2 Vera v. Avelino, 77 Phil. 192 (1946).
3 Malcolm and Laurel, The Constitutional Law of the Philippines, p. 378 (1936).
206

206
SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
expressly and in printers ink restore to petitioner the particular right to hold public office and the specific right to vote
at elections and plebiscites.
I join in the basic point of Mr. Justice Padilla that because of the nature of a public office as a public trust, Articles 36 and
40-43 appropriately require a very high degree of explicitness if a pardon is to work the restoration of such right to
petitioner. Exactly the same point may, of course, be made in respect of the restoration of the right to vote.
Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in our statute books since 1930. I believe that
they have been left intact by the constitutional provisions on pardon, whether one refers to the 1935 Constitution or to
the 1973 and 1987 Constitutions. I do not believe that Articles 36, et al. collided with any provision or principle
embodied in either of our prior constitutions. The Chief Justice appears to agree with this position when he referred to
Article 36 of the Revised Penal Code (Opinion, p. 5). He goes on, however, to say (in page 13) that: the pardon granted
to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond
that.
It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code have not been shown to be an
unconstitutional restriction on the pardoning power of the President. The limitation on the Presidents pardoning
power, if limitation it be, does not appear to be an unreasonably onerous one. Articles 36, et al. merely require the
President to become completely explicit if the pardon he extends is intended to wipe out not merely the principal but
also the accessory penalty of disqualification from holding public office and from voting and to restore the recipient of
the pardon to the exercise of such fundamental political rights. Such requirement of explicitness seems entirely in line
with the fundamental point made by the Chief Justice that a pardon does not blot out the factual guilt of the recipient of
the pardon. In other words, the mere grant of a pardon to a public officer or employee who has been unfaithful to the
public trust and sentenced to disqualification from voting and from holding such office, does not create the presumption
that the recipient of the pardon has thereby suddenly become morally eligible once more to exercise the right to vote
207

VOL. 170, FEBRUARY 9, 1989
207
Phil. National Construction Corp. vs. NLRC
and to hold public office.
In my view, the pardon extended to petitioner was ineffective to restore to her the right to hold public office and on this
ground, I vote to DENY the Petition for Review and to AFFIRM the assailed Resolution of the then Executive Secretary
Fulgencio S. Factoran, Jr.
Resolution affirmed.
Note.Acquittal in a criminal case does not operate to dismiss a separate civil action filed on the basis of the same facts
alleged in the criminal case. (Salta vs. De Veyra, 117 SCRA 212).
o0o

Copyright 2014 Central Book Supply, Inc. All rights reserved. [Monsanto vs. Factoran, Jr., 170 SCRA 190(1989)]

ELEANOR DELA CRUZ, FEDERICO LUCHICO, JR., SOLEDAD EMILIA CRUZ,
JOEL LUSTRIA, HENRY PAREL, HELENA HABULAN, PORFIRIO VILLENA,
JOSEPH FRANCIA, CARMELLA TORRES, JOB DAVID, CESAR MEJIA, MA.
LOURDES V. DEDAL, ALICE TIONGSON, REYDELUZ CONFERIDO,
PHILIPPE LIM, NERISSA SANCHEZ, MARY LUZ ELAINE PURACAN,
RODOLFO QUIMBO, TITO GENILO and OSCAR ABUNDO, as members of the
Board of the National Housing Authority from the period covering 1991-
1996, petitioners, vs. COMMISSION ON AUDIT, represented by its
Commissioners, respondents.
D E C I S I O N
SANDOVAL-GUTIERREZ, J .:
This petition for certiorari
[1]
assails the Decision No. 98-381 dated September 22, 1998, rendered by the
Commission on Audit (COA), denying petitioners appeal from the Notice of Disallowance No. 97-011-061
issued by the NHA Resident Auditor on October 23, 1997. Such Notice disallowed payment to petitioners of
their representation allowances and per diems for the period from August 19, 1991 to August 31, 1996 in the
total amount of P276,600.00.
Petitioners, numbering 20, were members of the Board of Directors of the National Housing Authority
(NHA) from 1991 to 1996.
On September 19, 1997, the COA issued Memorandum No. 97-038
[2]
directing all unit heads/auditors/team
leaders of the national government agencies and government-owned and controlled corporations which have
effected payment of any form of additional compensation or remuneration to cabinet secretaries, their deputies
and assistants, or their representatives, in violation of the rule on multiple positions, to (a) immediately cause
the disallowance of such additional compensation or remuneration given to and received by the concerned
officials, and (b) effect the refund of the same from the time of the finality of the Supreme Court En
Banc Decision in the consolidated cases of Civil Liberties Union vs. Exexcutive Secretary and Anti-Graft
League of the Philippines, Inc. et al. vs. Secretary of Agrarian Reform, et al.,promulgated on February 22,
1991.
[3]
The COA Memorandum further stated that the said Supreme Court Decision, which became final and
executory on August 19, 1991,
[4]
declared Executive Order No. 284 unconstitutional insofar as it allows Cabinet
members, their deputies and assistants to hold other offices, in addition to their primary offices, and to receive
compensation therefor.
Accordingly, on October 23, 1997, NHA Resident Auditor Salvador J. Vasquez issued Notice of
Disallowance No. 97-011-061
[5]
disallowing in audit the payment of representation allowances and per diems of
"Cabinet members who were the ex- officio members of the NHA Board of Directors and/or their respective
alternates who actually received the payments." The total disallowed amount of P276,600 paid as representation
allowances and per diems to each of the petitioners named below, covering the period from August 19, 1991 to
August 31, 1996, is broken down as follows:

[6]

NATIONAL HOUSING AUTHORITY
SCHEDULE OF PAID REPRESENTATION/PER DIEM OF THE BOARD OF
DIRECTORS
For the period August 19, 1991 to August 31, 1996
AGENCY MEMBERS OF BOARD OF AMOUNT DISALLOWED
DIRECTORS
DOF Eleanor dela Cruz P25,200.00
(1991-1993)
DTI Federico Luchico, Jr. 36,450.00
(1991-1992)
DOF Soledad Emilia Cruz 57,300.00
(1992-1995)
DOLE Joel Lustria 4,500.00
(1992)
DOLE Henry Parel 2,250.00
(1992)
DOF Helena Habulan 4,050.00
(1993-1994)
DOF Porfirio Villena 6,750.00
(1993)
DTI Joseph Francia 73,500.00
(1993-1995)
DOLE Carmela Torres 4,500.00
(1993)
DPWH Job David 6,750.00
(1993-1994)
DPWH Cesar Mejia 3,150.00
(1993)
DOF Ma. Lourdes V. Dedal 2,250.00
(1993)
DTI Alice Tiongson 900.00
(1994)
DOLE Reynaluz Conferido 11,250.00
(1994-1995)
DOLE Philippe Lim 4,500.00
(1994-1995)
DOF Nerissa Sanchez 2,700.00
(1995)
DOF Mary Luz Elaine Puracan 1,800.00
(1995)
DOLE Rodolfo Quimbo 7,200.00
(1995)
DOLE Tito Genilo 14,400.00
(1995)
DPWH Oscar Abundo 7,200.00
(1995-1996) _____________
P276,600.00
============
Petitioners, through then Chairman Dionisio C. Dela Serna of the NHA Board of Directors, appealed from
the Notice of Disallowance to the Commission on Audit
[7]
based on the following grounds:
1. The Decision of the Supreme Court in Civil Liberties Union and Anti-Graft League of the Philippines,
Inc. was clarified in the Resolution of the Court En Banc on August 1, 1991, in that the constitutional ban
against dual or multiple positions applies only to the members of the Cabinet, their deputies or assistants. It
does not cover other appointive officials with equivalent rank or those lower than the position of Assistant
Secretary; and
2. The NHA Directors are not Secretaries, Undersecretaries or Assistant Secretaries and that they occupy
positions lower than the position of Assistant Secretary.
On September 22, 1998, the COA issued Decision No. 98-381
[8]
denying petitioners' appeal, thus:
After circumspect evaluation of the facts and issues raised herein, this Commission finds the
instant appeal devoid of merit. It must be stressed at the outset that the Directors concerned were
not sitting in the NHA Board in their own right but as representatives of cabinet members and who
are constitutionally prohibited from holding any other office or employment and receive
compensation therefor, during their tenure (Section 13, Article VII, Constitution; Civil Liberties
Union vs. Executive Secretary, 194 SCRA 317).
It may be conceded that the directors concerned occupy positions lower than Assistant Secretary
which may exempt them from the prohibition (under) the doctrine enunciated in Civil Liberties
Union vs. Executive Secretary, supra. However, their positions are merely derivative; they derive
their authority as agents of the authority they are representing; their power and authority is sourced
from the power and authority of the cabinet members they are sitting for. Sans the cabinet
members, they are non-entities, without power and without personality to act in any manner with
respect to the official transactions of the NHA. The agent or representative can only validly act and
receive benefits for such action if the principal authority he is representing can legally do so for the
agent can only do so much as his principal can do. The agent can never be larger than the
principal. If the principal is absolutely barred from holding any position in and absolutely
prohibited from receiving any remuneration from the NHA or any government agency, for that
matter, so must the agent be. Indeed, the water cannot rise above its source.
[9]

Hence, this petition.
Presidential Decree No. 757 is the law "Creating the National Housing Authority and dissolving the
existing housing agencies, defining its powers and functions, providing funds therefor, and for other purposes."
Section 7 thereof provides:
SEC. 7. Board of Directors. - The Authority shall be governed by a Board of Directors,
hereinafter referred to as the Board, which shall be composed of the Secretary of Public Works,
Transportation and Communication, the Director-General of the National Economic and
Development Authority, the Secretary of Finance, the Secretary of Labor, the Secretary of
Industry, the Executive Secretary and the General Manager of the Authority. From among
the members, the President will appoint a chairman. The members of the Board may have
their respective alternates who shall be the officials next in rank to them and whose acts shall be
considered the acts of their principals with the right to receive their benefit: Provided, that in the
absence of the Chairman, the Board shall elect a temporary presiding officer. x x x (Emphasis
ours)
It bears stressing that under the above provisions, the persons mandated by law to sit as members of the
NHA Board are the following: (1) the Secretary of Public Works, Transportation and Communications, (2) the
Director-General of the National Economic and Development Authority, (3) the Secretary of Finance, (4) the
Secretary of Labor, (5) the Secretary of Industry, (6) the Executive Secretary, and (7) the General Manager of
the NHA. While petitioners are not among those officers, however, they are alternates of the said officers,
whose acts shall be considered the acts of their principals.
On this point, Section 13, Art. VII of the 1987 Constitution, provides:
SEC. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during their tenure, directly or indirectly practice
any other profession, participate in any business, or be financially interested in any contract with, or
in any franchise, or special privilege granted by the Government or any subdivision, agency or
instrumentality thereof, including any government-owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
The spouse and relatives by consanguinity or affinity within the fourth civil degree of the
President shall not during his tenure be appointed as Members of the Constitutional Commissions,
or the Office of Ombudsman, or as Secretaries, Undersecretaries, Chairmen, or heads of bureaus of
offices, including government-owned or controlled corporations and their subsidiaries.
Interpreting the foregoing Constitutional provisions, this Court, in Civil Liberties Union and Anti-Graft
League of the Philippines, Inc.,
[10]
held:
The prohibition against holding dual or multiple offices or employment under Section 13, Article
VII of the Constitution must not, however, be construed as applying to posts occupied by the
Executive officials specified therein without additional compensation in an ex-officiocapacity as
provided by law and as required by the primary functions of said officials' office. The reason is
that these posts do not comprise any other office within the contemplation of the constitutional
prohibition but are properly an imposition of additional duties and functions on said officials. x x x
x x x x x x x x x
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering
positions held without additional compensation in ex-officio capacities as provided by law and as
required by the primary functions of the concerned officials office. The term ex-officio means
from office; by virtue of office. It refers to an authority derived from official character merely,
not expressly conferred upon the individual character, but rather annexed to the official
position. Ex-officio likewise denotes an act done in an official character, or as a consequence of
office, and without any other appointment or authority than that conferred by the office. An ex-
officio member of a board is one who is a member by virtue of his title to a certain office, and
without further warrant or appointment. To illustrate, by express provision of law, the Secretary of
Transportation and Communications is the ex-officio Chairman of the Board of the Philippine Ports
Authority, and the Light Rail Transit Authority.
x x x x x x x x x
The ex-officio position being actually and in legal contemplation part of the principal office,
it follows that the official concerned has no right to receive additional compensation for his
services in the said position. The reason is that these services are already paid for and
covered by the compensation attached to his principal office. It should be obvious that if,
say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-
officio member thereof, he is actually and in legal contemplation performing the primary
function of his principal office in defining policy in monetary banking matters, which come
under the jurisdiction of his department. For such attendance, therefore, he is not entitled to
collect any extra compensation, whether it be in the form of a per diem or an honorarium or
an allowance, or some other such euphemism. By whatever name it is designated, such
additional compensation is prohibited by the Constitution.
x x x x x x x x x
(Emphasis ours)
Since the Executive Department Secretaries, as ex-oficio members of the NHA Board, are prohibited from
receiving extra (additional) compensation, whether it be in the form of a per diem or an honorarium or an
allowance, or some other such euphemism," it follows that petitioners who sit as their alternates cannot likewise
be entitled to receive such compensation. A contrary rule would give petitioners a better right than their
principals.
We thus rule that in rendering its challenged Decision, the COA did not gravely abuse its discretion.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.

EN BANC
[G.R. No. 141284. August 15, 2000]
INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B.
ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and GEN.
ANGELO REYES, respondents.
D E C I S I O N
KAPUNAN, J .:
At bar is a special civil action for certiorari and prohibition with prayer for issuance of a
temporary restraining order seeking to nullify on constitutional grounds the order of
President Joseph Ejercito Estrada commanding the deployment of the Philippine Marines
(the Marines) to join the Philippine National Police (the PNP) in visibility patrols around
the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like
robberies, kidnappings and carnappings, the President, in a verbal directive, ordered the
PNP and the Marines to conduct joint visibility patrols for the purpose of crime prevention
and suppression. The Secretary of National Defense, the Chief of Staff of the Armed
Forces of the Philippines (the AFP), the Chief of the PNP and the Secretary of the
Interior and Local Government were tasked to execute and implement the said order. In
compliance with the presidential mandate, the PNP Chief, through Police Chief
Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/2000
[1]
(the LOI)
which detailed the manner by which the joint visibility patrols, called Task
Force Tulungan, would be conducted.
[2]
Task Force Tulungan was placed under the
leadership of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment of the
Marines in a Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the
AFP and the PNP Chief.
[3]
In the Memorandum, the President expressed his desire to
improve the peace and order situation in Metro Manila through a more effective crime
prevention program including increased police patrols.
[4]
The President further stated that
to heighten police visibility in the metropolis, augmentation from the AFP is
necessary.
[5]
Invoking his powers as Commander-in-Chief under Section 18, Article VII of
the Constitution, the President directed the AFP Chief of Staff and PNP Chief to
coordinate with each other for the proper deployment and utilization of the Marines to
assist the PNP in preventing or suppressing criminal or lawless violence.
[6]
Finally, the
President declared that the services of the Marines in the anti-crime campaign are merely
temporary in nature and for a reasonable period only, until such time when the situation
shall have improved.
[7]

The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as
follows:
x x x
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the
Philippine Marines partnership in the conduct of visibility patrols in Metro Manila for the
suppression of crime prevention and other serious threats to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals
but also by organized syndicates whose members include active and former police/military
personnel whose training, skill, discipline and firepower prove well-above the present
capability of the local police alone to handle. The deployment of a joint PNP NCRPO-
Philippine Marines in the conduct of police visibility patrol in urban areas will reduce the
incidence of crimes specially those perpetrated by active or former police/military
personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM
visibility patrols to keep Metro Manila streets crime-free, through a sustained street
patrolling to minimize or eradicate all forms of high-profile crimes especially those
perpetrated by organized crime syndicates whose members include those that are well-
trained, disciplined and well-armed active or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital
Regional Police Office] and the Philippine Marines to curb criminality in Metro Manila and
to preserve the internal security of the state against insurgents and other serious threat to
national security, although the primary responsibility over Internal Security Operations still
rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms of high-
profile crimes perpetrated by organized crime syndicates operating in Metro Manila. This
concept requires the military and police to work cohesively and unify efforts to ensure a
focused, effective and holistic approach in addressing crime prevention. Along this line,
the role of the military and police aside from neutralizing crime syndicates is to bring a
wholesome atmosphere wherein delivery of basic services to the people and development
is achieved. Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local
Police Units are responsible for the maintenance of peace and order in their locality.
c. To ensure the effective implementation of this project, a provisional Task Force
TULUNGAN shall be organized to provide the mechanism, structure, and procedures for
the integrated planning, coordinating, monitoring and assessing the security situation.
xxx.
[8]

The selected areas of deployment under the LOI are: Monumento Circle, North Edsa
(SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial
Center, LRT/MRT Stations and the NAIA and Domestic Airport.
[9]

On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant
petition to annul LOI 02/2000 and to declare the deployment of the Philippine Marines, null
and void and unconstitutional, arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE
OF THE CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY,
EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW
ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN DEROGATION OF
ARTICLE II, SECTION 3 OF THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY
IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN
DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE
MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION
IS UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT
SHOULD REALLY BE UNDER THE CONSTITUTION.
[10]

Asserting itself as the official organization of Filipino lawyers tasked with the bounden
duty to uphold the rule of law and the Constitution, the IBP questions the validity of the
deployment and utilization of the Marines to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution,
[11]
dated 25
January 2000, required the Solicitor General to file his Comment on the petition. On 8
February 2000, the Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the
President in deploying the Marines, contending, among others, that petitioner has no legal
standing; that the question of deployment of the Marines is not proper for judicial scrutiny
since the same involves a political question; that the organization and conduct of police
visibility patrols, which feature the team-up of one police officer and one Philippine Marine
soldier, does not violate the civilian supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal
standing; (2) Whether or not the Presidents factual determination of the necessity of
calling the armed forces is subject to judicial review; and, (3) Whether or not the calling of
the armed forces to assist the PNP in joint visibility patrols violates the
constitutional provisions on civilian supremacy over the military and the civilian character
of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of
standing to raise the issues in the petition. Second, the President did not commit grave
abuse of discretion amounting to lack or excess of jurisdiction nor did he commit a
violation of the civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to
wit:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise its
power of judicial review only if the following requisites are complied with, namely: (1) the
existence of an actual and appropriate case; (2) a personal and substantial interest of the
party raising the constitutional question; (3) the exercise of judicial review is pleaded at the
earliest opportunity; and (4) the constitutional question is the lis mota of the case.
[12]

The IBP has not sufficiently complied with the requisites of standing in this case.
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.
[13]
The term interest means a material
interest, an interest in issue affected by the decree, as distinguished from mere interest in
the question involved, or a mere incidental interest.
[14]
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 issues upon which
the court depends for illumination of difficult constitutional questions.
[15]

In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to
uphold the rule of law and the Constitution. Apart from this declaration, however, the IBP
asserts no other basis in support of its locus standi. The mere invocation by the IBP of its
duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient
to clothe it with standing in this case. This is too general an interest which is shared by
other groups and the whole citizenry. Based on the standards above-stated, the IBP has
failed to present a specific and substantial interest in the resolution of the case. Its
fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court, is to
elevate the standards of the law profession and to improve the administration of justice is
alien to, and cannot be affected by the deployment of the Marines. It should also be noted
that the interest of the National President of the IBP who signed the petition, is his alone,
absent a formal board resolution authorizing him to file the present action. To be sure,
members of the BAR, those in the judiciary included, have varying opinions on the issue.
Moreover, the IBP, assuming that it has duly authorized the National President to file the
petition, has not shown any specific injury which it has suffered or may suffer by virtue of
the questioned governmental act. Indeed, none of its members, whom the IBP
purportedly represents, has sustained any form of injury as a result of the operation of the
joint visibility patrols. Neither is it alleged that any of its members has been arrested or
that their civil liberties have been violated by the deployment of the Marines. What the
IBP projects as injurious is the supposed militarization of law enforcement which might
threaten Philippine democratic institutions and may cause more harm than good in the
long run. Not only is the presumed injury not personal in character, it is likewise too
vague, highly speculative and uncertain to satisfy the requirement of standing. Since
petitioner has not successfully established a direct and personal injury as a consequence
of the questioned act, it does not possess the personality to assail the validity of the
deployment of the Marines. This Court, however, does not categorically rule that the IBP
has absolutely no standing to raise constitutional issues now or in the future. The IBP
must, by way of allegations and proof, satisfy this Court that it has sufficient stake to
obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the discretion
to take cognizance of a suit which does not satisfy the requirement of legal standing when
paramount interest is involved.
[16]
In not a few cases, the Court has adopted a liberal
attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people.
[17]
Thus, when the issues raised are of
paramount importance to the public, the Court may brush aside technicalities of
procedure.
[18]
In this case, a reading of the petition shows that the IBP has advanced
constitutional issues which deserve the attention of this Court in view of their seriousness,
novelty and weight as precedents. Moreover, because peace and order are under
constant threat and lawless violence occurs in increasing tempo, undoubtedly aggravated
by the Mindanao insurgency problem, the legal controversy raised in the petition almost
certainly will not go away. It will stare us in the face again. It, therefore, behooves the
Court to relax the rules on standing and to resolve the issue now, rather than later.
The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factual determination of the
President of the necessity of calling the armed forces, particularly the Marines, to aid the
PNP in visibility patrols. In this regard, the IBP admits that the deployment of the military
personnel falls under the Commander-in-Chief powers of the President as stated in
Section 18, Article VII of the Constitution, specifically, the power to call out the armed
forces to prevent or suppress lawless violence, invasion or rebellion. What the IBP
questions, however, is the basis for the calling of the Marines under the aforestated
provision. According to the IBP, no emergency exists that would justify the need for the
calling of the military to assist the police force. It contends that no lawless violence,
invasion or rebellion exist to warrant the calling of the Marines. Thus, the IBP prays that
this Court review the sufficiency of the factual basis for said troop [Marine] deployment.
[19]

The Solicitor General, on the other hand, contends that the issue pertaining to the
necessity of calling the armed forces is not proper for judicial scrutiny since it involves a
political question and the resolution of factual issues which are beyond the review powers
of this Court.
As framed by the parties, the underlying issues are the scope of presidential powers
and limits, and the extent of judicial review. But, while this Court gives considerable
weight to the parties formulation of the issues, the resolution of the controversy may
warrant a creative approach that goes beyond the narrow confines of the issues
raised. Thus, while the parties are in agreement that the power exercised by the
President is the power to call out the armed forces, the Court is of the view that the power
involved may be no more than the maintenance of peace and order and promotion of the
general welfare.
[20]
For one, the realities on the ground do not show that there exist a state
of warfare, widespread civil unrest or anarchy. Secondly, the full brunt of the military is
not brought upon the citizenry, a point discussed in the latter part of this decision. In the
words of the late Justice Irene Cortes in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the Presidents powers as protector of
the peace. [Rossiter, The American Presidency]. The power of the President to keep the
peace is not limited merely to exercising the commander-in-chief powers in times of
emergency or to leading the State against external and internal threats to its
existence. The President is not only clothed with extraordinary powers in times of
emergency, but is also tasked with attending to the day-to-day problems of maintaining
peace and order and ensuring domestic tranquility in times when no foreign foe appears
on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in
times of peace is not in any way diminished by the relative want of an emergency
specified in the commander-in-chief provision. For in making the President commander-in-
chief the enumeration of powers that follow cannot be said to exclude the Presidents
exercising as Commander-in-Chief powers short of the calling of the armed forces, or
suspending the privilege of the writ of habeas corpus or declaring martial law, in order to
keep the peace, and maintain public order and security.
xxx
[21]

Nonetheless, even if it is conceded that the power involved is the Presidents power to
call out the armed forces to prevent or suppress lawless violence, invasion or rebellion,
the resolution of the controversy will reach a similar result.
We now address the Solicitor Generals argument that the issue involved is not
susceptible to review by the judiciary because it involves a political question, and thus,
not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is
appropriate for court review.
[22]
It pertains to issues which are inherently susceptible of
being decided on grounds recognized by law. Nevertheless, the Court does not
automatically assume jurisdiction over actual constitutional cases brought before it even in
instances that are ripe for resolution. One class of cases wherein the Court hesitates to
rule on are political questions. The reason is that political questions are concerned with
issues dependent upon the wisdom, not the legality, of a particular act or measure being
assailed. Moreover, the political question being a function of the separation of powers, the
courts will not normally interfere with the workings of another co-equal branch unless the
case shows a clear need for the courts to step in to uphold the law and the Constitution.
As Taada v. Cuenco
[23]
puts it, political questions refer to those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of government. Thus, if an issue is clearly identified by the text of the
Constitution as matters for discretionary action by a particular branch of government or to
the people themselves then it is held to be a political question. In the classic formulation
of Justice Brennan in Baker v. Carr,
[24]
[p]rominent on the surface of any case held to
involve a political question is found a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a
courts undertaking independent resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of embarassment from multifarious
pronouncements by various departments on the one question.
The 1987 Constitution expands the concept of judicial review by providing that (T)he
Judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law. Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government.
[25]
Under this definition, the Court cannot agree with the Solicitor General
that the issue involved is a political question beyond the jurisdiction of this Court to
review. When the grant of power is qualified, conditional or subject to limitations, the
issue of whether the prescribed qualifications or conditions have been met or the
limitations respected, is justiciable - the problem being one of legality or validity, not its
wisdom.
[26]
Moreover, the jurisdiction to delimit constitutional boundaries has been given to
this Court.
[27]
When political questions are involved, the Constitution limits the
determination as to whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of the official whose action is being
questioned.
[28]

By grave abuse of discretion is meant simply capricious or whimsical exercise of
judgment that is patent and gross as to amount to an evasion of positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where
the power is exercised in an arbitrary and despotic manner by reason of passion or
hostility.
[29]
Under this definition, a court is without power to directly decide matters over
which full discretionary authority has been delegated. But while this Court has no power
to substitute its judgment for that of Congress or of the President, it may look into the
question of whether such exercise has been made in grave abuse of discretion.
[30]
A
showing that plenary power is granted either department of government, may not be an
obstacle to judicial inquiry, for the improvident exercise or abuse thereof may give rise to
justiciable controversy.
[31]

When the President calls the armed forces to prevent or suppress lawless violence,
invasion or rebellion, he necessarily exercises a discretionary power solely vested in his
wisdom. This is clear from the intent of the framers and from the text of the Constitution
itself. The Court, thus, cannot be called upon to overrule the Presidents wisdom or
substitute its own. However, this does not prevent an examination of whether such power
was exercised within permissible constitutional limits or whether it was exercised in a
manner constituting grave abuse of discretion. In view of the constitutional intent to give
the President full discretionary power to determine the necessity of calling out the armed
forces, it is incumbent upon the petitioner to show that the Presidents decision is totally
bereft of factual basis. The present petition fails to discharge such heavy burden as there
is no evidence to support the assertion that there exist no justification for calling out the
armed forces. There is, likewise, no evidence to support the proposition that grave abuse
was committed because the power to call was exercised in such a manner as to violate
the constitutional provision on civilian supremacy over the military. In the performance of
this Courts duty of purposeful hesitation
[32]
before declaring an act of another branch as
unconstitutional, only where such grave abuse of discretion is clearly shown shall the
Court interfere with the Presidents judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the President
full discretionary power to call out the armed forces and to determine the necessity for the
exercise of such power. Section 18, Article VII of the Constitution, which embodies the
powers of the President as Commander-in-Chief, provides in part:
The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus, or place the Philippines or any part thereof under
martial law.
x x x
The full discretionary power of the President to determine the factual basis for the
exercise of the calling out power is also implied and further reinforced in the rest of
Section 18, Article VII which reads, thus:
x x x
Within forty-eight hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all
its Members in regular or special session, may revoke such proclamation or suspension,
which revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such proclamation
or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon
within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be released.
Under the foregoing provisions, Congress may revoke such proclamation or
suspension and the Court may review the sufficiency of the factual basis
thereof. However, there is no such equivalent provision dealing with the revocation or
review of the Presidents action to call out the armed forces. The distinction places the
calling out power in a different category from the power to declare martial law and the
power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the
Constitution would have simply lumped together the three powers and provided for their
revocation and review without any qualification. Expressio unius est exclusio
alterius. Where the terms are expressly limited to certain matters, it may not, by
interpretation or construction, be extended to other matters.
[33]
That the intent of the
Constitution is exactly what its letter says, i.e., that the power to call is fully discretionary
to the President, is extant in the deliberation of the Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a graduated power
of the President as Commander-in-Chief. First, he can call out such Armed Forces as
may be necessary to suppress lawless violence; then he can suspend the privilege of the
writ of habeas corpus, then he can impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of the
writ of habeas corpus, his judgment is subject to review. We are making it subject to
review by the Supreme Court and subject to concurrence by the National Assembly. But
when he exercises this lesser power of calling on the Armed Forces, when he says it is
necessary, it is my opinion that his judgment cannot be reviewed by anybody.
x x x
FR. BERNAS. Let me just add that when we only have imminent danger, the matter can
be handled by the first sentence: The President may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion. So we feel that that is
sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the
matter can be handled by the First Sentence: The President....may call out such Armed
Forces to prevent or suppress lawless violence, invasion or rebellion. So we feel that that
is sufficient for handling imminent danger, of invasion or rebellion, instead of imposing
martial law or suspending the writ of habeas corpus, he must necessarily have to call the
Armed Forces of the Philippines as their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is it
subject to judicial review.
[34]

The reason for the difference in the treatment of the aforementioned powers highlights
the intent to grant the President the widest leeway and broadest discretion in using the
power to call out because it is considered as the lesser and more benign power compared
to the power to suspend the privilege of the writ of habeas corpus and the power to
impose martial law, both of which involve the curtailment and suppression of certain basic
civil rights and individual freedoms, and thus necessitating safeguards by Congress and
review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power
to suspend the privilege of the writ of habeas corpus or to impose martial law, two
conditions must concur: (1) there must be an actual invasion or rebellion and, (2) public
safety must require it. These conditions are not required in the case of the power to call
out the armed forces. The only criterion is that whenever it becomes necessary, the
President may call the armed forces to prevent or suppress lawless violence, invasion or
rebellion." The implication is that the President is given full discretion and wide latitude in
the exercise of the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President acted
without factual basis, then this Court cannot undertake an independent investigation
beyond the pleadings. The factual necessity of calling out the armed forces is not easily
quantifiable and cannot be objectively established since matters considered for satisfying
the same is a combination of several factors which are not always accessible to the
courts. Besides the absence of textual standards that the court may use to judge
necessity, information necessary to arrive at such judgment might also prove
unmanageable for the courts. Certain pertinent information might be difficult to verify, or
wholly unavailable to the courts. In many instances, the evidence upon which the
President might decide that there is a need to call out the armed forces may be of a nature
not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence
network to gather information, some of which may be classified as highly confidential or
affecting the security of the state. In the exercise of the power to call, on-the-spot
decisions may be imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. Indeed, the decision to call out the military
to prevent or suppress lawless violence must be done swiftly and decisively if it were to
have any effect at all. Such a scenario is not farfetched when we consider the present
situation in Mindanao, where the insurgency problem could spill over the other parts of the
country. The determination of the necessity for the calling out power if subjected to
unfettered judicial scrutiny could be a veritable prescription for disaster, as such power
may be unduly straitjacketed by an injunction or a temporary restraining order every time it
is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in
his judgment it is necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion. Unless the petitioner can show that the exercise of such discretion
was gravely abused, the Presidents exercise of judgment deserves to be accorded
respect from this Court.
The President has already determined the necessity and factual basis for calling the
armed forces. In his Memorandum, he categorically asserted that, [V]iolent crimes like
bank/store robberies, holdups, kidnappings and carnappings continue to occur in Metro
Manila...
[35]
We do not doubt the veracity of the Presidents assessment of the situation,
especially in the light of present developments. The Court takes judicial notice of the
recent bombings perpetrated by lawless elements in the shopping malls, public utilities,
and other public places. These are among the areas of deployment described in the LOI
2000. Considering all these facts, we hold that the President has sufficient factual basis to
call for military aid in law enforcement and in the exercise of this constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause nor
does it infringe the civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the calling
of the Marines, the IBP asserts that by the deployment of the Marines, the civilian task of
law enforcement is militarized in violation of Section 3, Article II
[36]
of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the
civilian supremacy clause. The calling of the Marines in this case constitutes permissible
use of military assets for civilian law enforcement. The participation of the Marines in the
conduct of joint visibility patrols is appropriately circumscribed. The limited participation of
the Marines is evident in the provisions of the LOI itself, which sufficiently provides the
metes and bounds of the Marines authority. It is noteworthy that the local police forces
are the ones in charge of the visibility patrols at all times, the real authority belonging to
the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine
Marines joint visibility patrols.
[37]
Under the LOI, the police forces are tasked to brief or
orient the soldiers on police patrol procedures.
[38]
It is their responsibility to direct and
manage the deployment of the Marines.
[39]
It is, likewise, their duty to provide the
necessary equipment to the Marines and render logistical support to these soldiers.
[40]
In
view of the foregoing, it cannot be properly argued that military authority is supreme over
civilian authority. Moreover, the deployment of the Marines to assist the PNP does not
unmake the civilian character of the police force. Neither does it amount to an insidious
incursion of the military in the task of law enforcement in violation of Section 5(4), Article
XVI of the Constitution.
[41]

In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the
AFP, by his alleged involvement in civilian law enforcement, has been virtually appointed
to a civilian post in derogation of the aforecited provision. The real authority in these
operations, as stated in the LOI, is lodged with the head of a civilian institution, the PNP,
and not with the military. Such being the case, it does not matter whether the AFP Chief
actually participates in the Task Force Tulungansince he does not exercise any authority
or control over the same. Since none of the Marines was incorporated or enlisted as
members of the PNP, there can be no appointment to civilian position to speak
of. Hence, the deployment of the Marines in the joint visibility patrols does not destroy the
civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than
assistance required in conducting the patrols. As such, there can be no insidious
incursion of the military in civilian affairs nor can there be a violation of the civilian
supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various
forms persists in Philippine jurisdiction. The Philippine experience reveals that it is not
averse to requesting the assistance of the military in the implementation and execution of
certain traditionally civil functions. As correctly pointed out by the Solicitor General,
some of the multifarious activities wherein military aid has been rendered, exemplifying
the activities that bring both the civilian and the military together in a relationship of
cooperation, are:
1. Elections;
[42]

2. Administration of the Philippine National Red Cross;
[43]

3. Relief and rescue operations during calamities and disasters;
[44]

4. Amateur sports promotion and development;
[45]

5. Development of the culture and the arts;
[46]

6. Conservation of natural resources;
[47]

7. Implementation of the agrarian reform program;
[48]

8. Enforcement of customs laws;
[49]

9. Composite civilian-military law enforcement activities;
[50]

10. Conduct of licensure examinations;
[51]

11. Conduct of nationwide tests for elementary and high school students;
[52]

12. Anti-drug enforcement activities;
[53]

13. Sanitary inspections;
[54]

14. Conduct of census work;
[55]

15. Administration of the Civil Aeronautics Board;
[56]

16. Assistance in installation of weather forecasting devices;
[57]

17. Peace and order policy formulation in local government units.
[58]

This unquestionably constitutes a gloss on executive power resulting from a
systematic, unbroken, executive practice, long pursued to the knowledge of Congress
and, yet, never before questioned.
[59]
What we have here is mutual support and
cooperation between the military and civilian authorities, not derogation of civilian
supremacy.
In the United States, where a long tradition of suspicion and hostility towards the use
of military force for domestic purposes has persisted,
[60]
and whose Constitution, unlike
ours, does not expressly provide for the power to call, the use of military personnel by
civilian law enforcement officers is allowed under circumstances similar to those
surrounding the present deployment of the Philippine Marines. Under the Posse
Comitatus Act
[61]
of the US, the use of the military in civilian law enforcement is generally
prohibited, except in certain allowable circumstances. A provision of the Act states:
1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, willfully uses any part of the Army or the Air Force
as posse comitatus or otherwise to execute the laws shall be fined not more than $10,000
or imprisoned not more than two years, or both.
[62]

To determine whether there is a violation of the Posse Comitatus Act in the use of
military personnel, the US courts
[63]
apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement officers at
Wounded Knee in such a manner that the military personnel subjected the citizens to the
exercise of military power which was regulatory, proscriptive, or compulsory
[64]
George
Washington Law Review, pp. 404-433 (1986), which discusses the four divergent standards for assessing acceptable
involvement of military personnel in civil law enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL
AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in
nature, either presently or prospectively?
x x x
When this concept is transplanted into the present legal context, we take it to mean
that military involvement, even when not expressly authorized by the Constitution or a
statute, does not violate the Posse Comitatus Act unless it actually regulates, forbids or
compels some conduct on the part of those claiming relief. A mere threat of some future
injury would be insufficient. (emphasis supplied)
Even if the Court were to apply the above rigid standards to the present case to
determine whether there is permissible use of the military in civilian law enforcement, the
conclusion is inevitable that no violation of the civilian supremacy clause in the
Constitution is committed. On this point, the Court agrees with the observation of the
Solicitor General:
3. The designation of tasks in Annex A
[65]
does not constitute the exercise of regulatory, proscriptive, or
compulsory military power. First, the soldiers do not control or direct the operation. This is evident from Nos.
6,
[66]
8(k)
[67]
and 9(a)
[68]
of Annex A. These soldiers, second, also have no power to prohibit or condemn. In No.
9(d)
[69]
of Annex A, all arrested persons are brought to the nearest police stations for proper disposition. And last,
these soldiers apply no coercive force. The materials or equipment issued to them, as shown in No. 8(c)
[70]
of Annex
A, are all low impact and defensive in character. The conclusion is that there being no exercise of regulatory,
proscriptive or compulsory military power, the deployment of a handful of Philippine Marines constitutes no
impermissible use of military power for civilian law enforcement.
[71]

It appears that the present petition is anchored on fear that once the armed forces are
deployed, the military will gain ascendancy, and thus place in peril our cherished
liberties. Such apprehensions, however, are unfounded. The power to call the armed
forces is just that - calling out the armed forces. Unless, petitioner IBP can show, which it
has not, that in the deployment of the Marines, the President has violated the fundamental
law, exceeded his authority or jeopardized the civil liberties of the people, this Court is not
inclined to overrule the Presidents determination of the factual basis for the calling of the
Marines to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not a
single citizen has complained that his political or civil rights have been violated as a result
of the deployment of the Marines. It was precisely to safeguard peace, tranquility and the
civil liberties of the people that the joint visibility patrol was conceived. Freedom and
democracy will be in full bloom only when people feel secure in their homes and in the
streets, not when the shadows of violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-
Santiago, and De Leon, Jr., JJ., concur.
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Quisumbing, J., joins the opinion of J. Mendoza.
SEPARATE OPINION
PUNO, J .:
If the case at bar is significant, it is because of the government attempt to foist
the political question doctrine to shield an executive act done in the exercise of the
commander-in-chief powers from judicial scrutiny. If the attempt succeeded, it would
have diminished the power of judicial review and weakened the checking authority
of this Court over the Chief Executive when he exercises his commander-in-chief
powers. The attempt should remind us of the tragedy that befell the country when
this Court sought refuge in the political question doctrine and forfeited its most
important role as protector of the civil and political rights of our people. The
ongoing conflict in Mindanao may worsen and can force the Chief Executive to
resort to the use of his greater commander-in-chief powers, hence, this Court
should be extra cautious in assaying similar attempts. A laid back posture may not
sit well with our people considering that the 1987 Constitution strengthened the
checking powers of this Court and expanded its jurisdiction precisely to stop any
act constituting xxx grave abuse of jurisdiction xxx on the part of any branch or
instrumentality of the Government.
1

The importance of the issue at bar includes this humble separate opinion. We can
best perceive the different intersecting dimensions of the political question doctrine by
viewing them from the broader canvass of history. Political questions are defined as
those questions which under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated to
the legislative or executive branch of government.
2
They have two aspects: (1) those
matters that are to be exercised by the people in their primary political capacity and (2)
matters which have been specifically delegated to some other department or particular
office of the government, with discretionary power to act.
3
The exercise of the
discretionary power of the legislative or executive branch of government was often the
area where the Court had to wrestle with the political question doctrine.
4

A brief review of some of our case law will thus give us a sharper perspective of the
political question doctrine. This question confronted the Court as early as 1905 in the
case of Barcelon v. Baker.
5
The Governor-General of the Philippine Islands, pursuant to
a resolution of the Philippine Commission, suspended the privilege of the writ of habeas
corpus in Cavite and Batangas based on a finding of open insurrection in said
provinces. Felix Barcelon, who was detained by constabulary officers in Batangas, filed a
petition for the issuance of a writ of habeas corpus alleging that there was no open
insurrection in Batangas. The issue to resolve was whether or not the judicial department
may investigate the facts upon which the legislative (the Philippine Commission) and
executive (the Governor-General) branches of government acted in suspending the
privilege of the writ.
The Court ruled that under our form of government, one department has no authority
to inquire into the acts of another, which acts are performed within the discretion of the
other department.
6
Surveying American law and jurisprudence, it held that whenever a
statute gives discretionary power to any person, to be exercised by him upon his own
opinion of certain facts, the statute constitutes him the sole judge of the existence of
those facts.
7
Since the Philippine Bill of 1902 empowered the Philippine Commission and
the Governor-General to suspend the privilege of the writ of habeas corpus, this power
is exclusively within the discretion of the legislative and executive branches of
government. The exercise of this discretion is conclusive upon the courts.
8

The Court further held that once a determination is made by the executive and
legislative departments that the conditions justifying the assailed acts exists, it will
presume that the conditions continue until the same authority decide that they no longer
exist.
9
It adopted the rationale that the executive branch, thru its civil and military
branches, are better situated to obtain information about peace and order from every
corner of the nation, in contrast with the judicial department, with its very limited
machinery.
10
The seed of the political question doctrine was thus planted in
Philippine soil.
The doctrine barring judicial review because of the political question doctrine
was next applied to the internal affairs of the legislature. The Court refused to
interfere in the legislative exercise of disciplinary power over its own members. In the
1924 case of Alejandrino v. Quezon,
11
Alejandrino, who was appointed Senator by the
Governor-General, was declared by Senate Resolution as guilty of disorderly conduct for
assaulting another Senator in the course of a debate, and was suspended from office for
one year. Senator Alejandrino filed a petition for mandamus and injunction to compel the
Senate to reinstate him. The Court held that under the Jones Law, the power of the
Senate to punish its members for disorderly behavior does not authorize it to suspend an
appointive member from the exercise of his office. While the Court found that the
suspension was illegal, it refused to issue the writ of mandamus on the ground that "the
Supreme Court does not possess the power of coercion to make the Philippine Senate
take any particular action. [T]he Philippine Legislature or any branch thereof cannot be
directly controlled in the exercise of their legislative powers by any judicial process."
12

The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v.
Avelino,
13

three senators-elect who had been prevented from taking their oaths of office by
a Senate resolution repaired to this Court to compel their colleagues to allow them to
occupy their seats contending that only the Electoral Tribunal had jurisdiction over
contests relating to their election, returns and qualifications. Again, the Court refused to
intervene citing Alejandrino and affirmed the inherent right of the legislature to determine
who shall be admitted to its membership.
In the 1947 case of Mabanag v. Lopez-Vito,
14
three Senators and eight
representatives who were proclaimed elected by Comelec were not allowed by Congress
to take part in the voting for the passage of the Parity amendment to the Constitution. If
their votes had been counted, the affirmative votes in favor of the proposed amendment
would have been short of the necessary three-fourths vote in either House of Congress to
pass the amendment. The amendment was eventually submitted to the people for
ratification. The Court declined to intervene and held that a proposal to amend the
Constitution is a highly political function performed by Congress in its sovereign legislative
capacity.
15

In the 1955 case of Arnault v. Balagtas,
16
petitioner, a private citizen, assailed the
legality of his detention ordered by the Senate for his refusal to answer questions put to
him by members of one of its investigating committees. This Court refused to order his
release holding that the process by which a contumacious witness is dealt with by the
legislature is a necessary concomitant of the legislative process and the legislature's
exercise of its discretionary authority is not subject to judicial interference.
In the 1960 case of Osmena v. Pendatun,
17
the Court followed the traditional line.
Congressman Sergio Osmena, Jr. was suspended by the House of Representatives for
serious disorderly behavior for making a privilege speech imputing "malicious charges"
against the President of the Philippines. Osmena, Jr. invoked the power of review of this
Court but the Court once more did not interfere with Congress' power to discipline its
members.
The contours of the political question doctrine have always been tricky. To be sure,
the Court did not always stay its hand whenever the doctrine is invoked. In the 1949 case
of Avelino v. Cuenco,
18
Senate President Jose Avelino, who was deposed and replaced,
questioned his successor's title claiming that the latter had been elected without a quorum.
The petition was initially dismissed on the ground that the selection of Senate President
was an internal matter and not subject to judicial review.
19
On reconsideration, however,
the Court ruled that it could assume jurisdiction over the controversy in light of subsequent
events justifying intervention among which was the existence of a quorum.
20
Though the
petition was ultimately dismissed, the Court declared respondent Cuenco as the legally
elected Senate President.
In the 1957 case of Tanada v. Cuenco,
21
the Court assumed jurisdiction over a
dispute involving the formation and composition of the Senate Electoral Tribunal. It
rejected the Solicitor General's claim that the dispute involved a political question. Instead,
it declared that the Senate is not clothed with "full discretionary authority" in the choice of
members of the Senate Electoral Tribunal and the exercise of its power thereon is subject
to constitutional limitations which are mandatory in nature.
22
It held that under the
Constitution, the membership of the Senate Electoral Tribunal was designed to insure the
exercise of judicial impartiality in the disposition of election contests affecting members of
the lawmaking body.
23
The Court then nullified the election to the Senate Electoral Tribunal
made by Senators belonging to the party having the largest number of votes of two of their
party members but purporting to act on behalf of the party having the second highest
number of votes.
In the 1962 case of Cunanan v. Tan, Jr.,
24
the Court passed judgment on whether
Congress had formed the Commission on Appointments in accordance with the
Constitution and found that it did not. It declared that the Commission on Appointments is
a creature of the Constitution and its power does not come from Congress but from the
Constitution.
The 1967 case of Gonzales v. Comelec
25
and the 1971 case of Tolentino v.
Comelec
26
abandoned Mabanag v. Lopez-Vito. The question of whether or not
Congress, acting as a constituent assembly in proposing amendments to the Constitution
violates the Constitution was held to be a justiciable and not a political
issue. In Gonzales, the Court ruled:
"It is true that in Mabanag v. Lopez-Vito, this Court characterizing the issue submitted
thereto as a political one, declined to pass upon the question whether or not a given
number of votes cast in Congress in favor of a proposed amendment to the Constitution-
which was being submitted to the people for ratification-satisfied the three-fourths vote
requirement of the fundamental law. The force of this precedent has been weakened,
however, by Suanes v. Chief Accountant of the Senate, Avelino v. Cuenco, Tanada v.
Cuenco, and Macias v. Commission on Elections. In the first, we held that the officers and
employees of the Senate Electoral Tribunal are under its supervision and control, not of
that of the Senate President, as claimed by the latter; in the second, this Court proceeded
to determine the number of Senators necessary for a quorum in the Senate; in the third,
we nullified the election, by Senators belonging to the party having the largest number of
votes in said chamber, purporting to act on behalf of the party having the second largest
number of votes therein, of two (2) Senators belonging to the first party, as members, for
the second party, of the Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the representative districts for
the House of Representatives upon the ground that the apportionment had not been made
as may be possible according to the number of inhabitants of each province. Thus, we
rejected the theory, advanced in these four cases, that the issues therein raised were
political questions the determination of which is beyond judicial review.
27

The Court explained that the power to amend the Constitution or to propose
amendments thereto is not included in the general grant of legislative powers to Congress.
As a constituent assembly, the members of Congress derive their authority from the
fundamental law and they do not have the final say on whether their acts are within or
beyond constitutional limits.
28
This ruling was reiterated in Tolentino which held that acts
of a constitutional convention called for the purpose of proposing amendments to the
Constitution are at par with acts of Congress acting as a constituent assembly.
29

In sum, this Court brushed aside the political question doctrine and assumed
jurisdiction whenever it found constitutionally-imposed limits on the exercise of
powers conferred upon the Legislature.
30

The Court hewed to the same line as regards the exercise of Executive
power. Thus, the respect accorded executive discretion was observed in Severino v.
Governor-General,
31
where it was held that the Governor-General, as head of the
executive department, could not be compelled by mandamus to call a special election in
the town of Silay for the purpose of electing a municipal president. Mandamus and
injunction could not lie to enforce or restrain a duty which is discretionary. It was held that
when the Legislature conferred upon the Governor-General powers and duties, it did so
for the reason that he was in a better position to know the needs of the country than any
other member of the executive department, and with full confidence that he will perform
such duties as his best judgment dictates.
32

Similarly, in Abueva v. Wood,
33
the Court held that the Governor-General could not be
compelled by mandamus to produce certain vouchers showing the various expenditures of
the Independence Commission. Under the principle of separation of powers, it ruled that it
was not intended by the Constitution that one branch of government could encroach upon
the field of duty of the other. Each department has an exclusive field within which it can
perform its part within certain discretionary limits.
34
It observed that "the executive and
legislative departments of government are frequently called upon to deal with what are
known as political questions, with which the judicial department of government has no
intervention. In all such questions, the courts uniformly refused to intervene for the
purpose of directing or controlling the actions of the other department; such questions
being many times reserved to those departments in the organic law of the state."
35

In Forties v. Tiaco,
36
the Court also refused to take cognizance of a case enjoining
the Chief Executive from deporting an obnoxious alien whose continued presence in the
Philippines was found by him to be injurious to the public interest. It noted that sudden
and unexpected conditions may arise, growing out of the presence of untrustworthy aliens,
which demand immediate action. The President's inherent power to deport undesirable
aliens is universally denominated as political, and this power continues to exist for the
preservation of the peace and domestic tranquility of the nation.
37

In Manalang v. Quitoriano,
38
the Court also declined to interfere in the exercise of the
President's appointing power. It held that the appointing power is the exclusive
prerogative of the President, upon which no limitations may be imposed by Congress,
except those resulting from the need of securing concurrence of the Commission on
Appointments and from the exercise of the limited legislative power to prescribe
qualifications to a given appointive office.
We now come to the exercise by the President of his powers as Commander-in-
Chief vis-a-vis the political question doctrine. In the 1940's, this Court has held that as
Commander-in-Chief of the Armed Forces, the President has the power to determine
whether war, in the legal sense, still continues or has terminated. It ruled that it is within
the province of the political department and not of the judicial department of government
to determine when war is at end.
39

In 1952, the Court decided the landmark case of Montenegro v.
Castaneda.
40
President Quirino suspended the privilege of the writ of habeas corpus for
persons detained or to be detained for crimes of sedition, insurrection or rebellion. The
Court, citing Barcelon, declared that the authority to decide whether the exigency has
arisen requiring the suspension of the privilege belongs to the President and his decision
is final and conclusive on the courts.
41

Barcelon was the ruling case law until the 1971 case of Lansang v.
Garcia came.
42
Lansang reversed the previous cases and held that the suspension of the
privilege of the writ of habeas corpus was not a political question. According to the Court,
the weight of Barcelon was diluted by two factors: (1) it relied heavily on Martin v. Mott,
which involved the U.S. President's power to call out the militia which is a much broader
power than suspension of the privilege of the writ; and (2) the privilege was suspended by
the American Governor-General whose act, as representative of the sovereign affecting
the freedom of its subjects, could not be equated with that of the President of the
Philippines dealing with the freedom of the sovereign Filipino people.
The Court declared that the power to suspend the privilege of the writ of habeas
corpus is neither absolute nor unqualified because the Constitution sets limits on
the exercise of executive discretion on the matter. These limits are: (1) that the
privilege must not be suspended except only in cases of invasion, insurrection or rebellion
or imminent danger thereof; and (2) when the public safety requires it, in any of which
events the same may be suspended wherever during such period the necessity for the
suspension shall exist. The extent of the power which may be inquired into by courts is
defined by these limitations.
43

On the vital issue of how the Court may inquire into the President's exercise of power,
it ruled that the function of the Court is not to supplant but merely to check the Executive;
to ascertain whether the President has gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to determine the wisdom of his
act. Judicial inquiry is confined to the question of whether the President did not act
arbitrarily.
44
Using this yardstick, the Court found that the President did not.
The emergency period of the 1970's flooded the Court with cases which raised the
political question defense. The issue divided the Court down the middle. Javellana v.
Executive Secretary
45
showed that while a majority of the Court held that the issue of
whether or not the 1973 Constitution had been ratified in accordance with the 1935
Constitution was justiciable, a majority also ruled that the decisive issue of whether the
1973 Constitution had come into force and effect, with or without constitutional ratification,
was a political question.
46

The validity of the declaration of martial law by then President Marcos was next
litigated before the Court. In Aquino, Jr. v. Enrile,
47
it upheld the President's declaration
of martial law. On whether the validity of the imposition of martial law was a political or
justiciable question, the Court was almost evenly divided. One-half embraced the political
question position and the other half subscribed to the justiciable position in
Lansang. Those adhering to the political question doctrine used different methods of
approach to it.
48

In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v.
Enrile.
49
The petitioners therein were arrested and detained by the Philippine
Constabulary by virtue of a Presidential Commitment Order (PCO). Petitioners sought the
issuance of a writ of habeas corpus. The Court found that the PCO had the function of
validating a person's detention for any of the offenses covered in Proclamation No. 2045
which continued in force the suspension of the privilege of the writ of habeas corpus. It
held that the issuance of the PCO by the President was not subject to judicial inquiry.
50
It
went further by declaring that there was a need to re-examine Lansang with a view to
reverting to Barcelon and Montenegro. It observed that in times of war or national
emergency, the President must be given absolute control for the very life of the nation and
government is in great peril. The President, it intoned, is answerable only to his
conscience, the people, and God.
51

But barely six (6) days after Garcia-Padilla, the Court promulgated Morales, Jr. v.
Enrile
52
reiterating Lansang. It held that by the power of judicial review, the Court must
inquire into every phase and aspect of a person's detention from the moment he was
taken into custody up to the moment the court passes upon the merits of the
petition. Only after such a scrutiny can the court satisfy itself that the due process clause
of the Constitution has been met.
53

It is now history that the improper reliance by the Court on the political question
doctrine eroded the people's faith in its capacity to check abuses committed by the
then Executive in the exercise of his commander-in-chief powers, particularly
violations against human rights. The refusal of courts to be pro-active in the
exercise of its checking power drove the people to the streets to resort to extralegal
remedies. They gave birth to EDSA.
Two lessons were not lost to the members of the Constitutional Commission that
drafted the 1987 Constitution. The first was the need to grant this Court the express
power to review the exercise of the powers as commander-in-chief by the President
and deny it of any discretion to decline its exercise. The second was the need to
compel the Court to be pro-active by expanding its jurisdiction and, thus, reject its laid
back stance against acts constituting grave abuse of discretion on the part of any branch
or instrumentality of government. Then Chief Justice Roberto Concepcion, a member of
the Constitutional Commission, worked for the insertion of the second paragraph of
Section 1, Article VIII in the draft Constitution,
54
which reads:
"Sec. 1. x x x.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government."
The language of the provision clearly gives the Court the power to strike down acts
amounting to grave abuse of discretion of both the legislative and executive branches of
government.
We should interpret Section 18, Article VII of the 1987 Constitution in light of our
constitutional history. The provision states:
"Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces
to prevent or suppress lawless violence, invasion or rebellion. In case of invasion
or rebellion, when the public safety requires it, he may, for a period not exceeding
sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ of habeas corpus,
the President shall submit a report in person or in writing to Congress. The Congress,
voting jointly, by a vote of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which revocation shall not be set
aside by the President. Upon the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension for a period to be determined by
Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
x x x."
It is clear from the foregoing that the President, as Commander-in-Chief of the
armed forces of the Philippines, may call out the armed forces subject to two
conditions: (1) whenever it becomes necessary; and (2) to prevent or suppress
lawless violence, invasion or rebellion. Undeniably, these conditions lay down
the sine qua requirement for the exercise of the power and the objective sought to
be attained by the exercise of the power. They define the constitutional parameters
of the calling out power. Whether or not there is compliance with these parameters
is a justiciable issue and is not a political question.
I am not unaware that in the deliberations of the Constitutional Commission,
Commissioner Bernas opined that the President's exercise of the "calling out power,"
unlike the suspension of the privilege of the writ of habeas corpus and the declaration of
martial law, is not a justiciable issue but a political question and therefore not subject to
judicial review.
It must be borne in mind, however, that while a member's opinion expressed on the
floor of the Constitutional Convention is valuable, it is not necessarily expressive of the
people's intent.
55
The proceedings of the Convention are less conclusive on the proper
construction of the fundamental law than are legislative proceedings of the proper
construction of a statute, for in the latter case it is the intent of the legislature the courts
seek, while in the former, courts seek to arrive at the intent of the people through the
discussions and deliberations of their representatives.
56
The conventional wisdom is that
the Constitution does not derive its force from the convention which framed it, but from the
people who ratified it, the intent to be arrived at is that of the people.
57

It is true that the third paragraph of Section 18, Article VII of the 1987
Constitution expressly gives the Court the power to review the sufficiency of the
factual bases used by the President in the suspension of the privilege of the writ of
habeas corpus and the declaration of martial law. It does not follow, however, that
just because the same provision did not grant to this Court the power to review the
exercise of the calling out power by the President, ergo, this Court cannot pass
upon the validity of its exercise.
Given the light of our constitutional history, this express grant of power merely
means that the Court cannot decline the exercise of its power because of the
political question doctrine as it did in the past. In fine, the express grant simply
stresses the mandatory duty of this Court to check the exercise of the commander-
in-chief powers of the President. It eliminated the discretion of the Court not to
wield its power of review thru the use of the political question doctrine.
It may be conceded that the calling out power may be a "lesser power" compared to
the power to suspend the privilege of the writ of habeas corpus and the power to declare
martial law. Even then, its exercise cannot be left to the absolute discretion of the Chief
Executive as Commander-in-Chief of the armed forces, as its impact on the rights of our
people protected by the Constitution cannot be downgraded. We cannot hold that acts of
the commander-in-chief cannot be reviewed on the ground that they have lesser impact
on the civil and political rights of our people. The exercise of the calling out power may be
"benign" in the case at bar but may not be so in future cases.
The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and
Concurring Opinion in Lansang that it would be dangerous and misleading to push the
political question doctrine too far, is apropos. It will not be complementary to the Court if it
handcuffs itself to helplessness when a grievously injured citizen seeks relief from a
palpably unwarranted use of presidential or military power, especially when the question
at issue falls in the penumbra between the "political" and the "justiciable. "
58

We should not water down the ruling that deciding whether a matter has been
committed by the Constitution to another branch of government, or whether the action of
that branch exceeds whatever authority has been committed, is a delicate exercise in
constitutional interpretation, and is a responsibility of the Court as ultimate interpreter
of the fundamental law.
59
When private justiciable rights are involved in a suit, the
Court must not refuse to assume jurisdiction even though questions of extreme political
importance are necessarily involved.
60
Every officer under a constitutional government
must act according to law and subject to the controlling power of the people, acting
through the courts, as well as through the executive and legislative. One department is
just as representative of the other, and the judiciary is the department which is charged
with the special duty of determining the limitations which the law places upon all official
action.
61
This historic role of the Court is the foundation stone of a government of laws
and not of men.
62

I join the Decision in its result.


De Rama vs. Court of Appeals G.R. No. 131136 February 28, 2001
Facts of the Case


Upon his assumption to the position of Mayor of Pagbilao Quezon, petitioner Conrado de Rama wrote a letter to the Civil
Service Commission (CSC) seeking the recall of the appointments of fourteen (14) municipal employees. Petitioner
justified that his recall request were on allegation that the appointments of the said employees were midnight
appointments of the former mayor, Ma. Evelyn S. Abeja done in violation of Article VII, Section 15 of the 1987
Constitution which provides:

Sec. 15, Article VII

Two months immediately before the next presidential elections and up to the end of his term, the President or Acting
President shall not make appointments except temporary appointments to executive positions when continued vacancies
therein will prejudice public service or endanger public safety.


While the matter was pending before CSC, three of the employees filed with the CSC a claim of their salary payments,
alleging that although appointments were declared by Conrado Gulim, Director II of CSC Field Office; petitioner withheld
their salaries and benefits pursuant to Office Order No. 95-01 which was issued on June 30, 1995 wherein appointments of
said 14 employees were recalled.

On April 30, the CSC denied petitioners request for lack of merit. Petitioner then filed a motion for reconsideration to
which CSC denied. Aside from the fact that petitioner failed to present evidence to revocation of said appointments, the
CSC reiterated in its ruling that these subject appointments are deemed valid.


Issue


Whether or not 14 municipal employees should be recalled.


Court Ruling


Recall of appointments may be done on the following grounds:

Non- compliance with the procedures of the criteria
Failure to pass through the agencys Selection and Promotion Board
Violation of the existing collective agreement between management and employees relative to promotion and
Violation of other existing civil service laws, rules and regulations


In the case at bar, the only reason advanced by the petitioner to justify the recall was that these are midnight
appointments. Sec. 15 of Article VII only states that midnight appointments were specifically those made within two
months immediately prior to the next presidential elections applies only to President and Acting President.


CONRADO L. DE RAMA, petitioner, vs. THE COURT OF APPEALS (NINTH
DIVISION, THE CIVIL SERVICE COMMISSION), ELADIO MARTINEZ,
DIVINO DE JESUS, MORELL AYALA, ARISTEO CATALLA, DAISY PORTA,
FLORDELIZA ORIASEL, GRACIELA GLORY, FELECIDAD ORINDAY, MA.
PETRA MUFFET LUCE, ELSA MARINO, BERNARDITA MENDOZA, JANE
MACATANGAY, ADELFO GLODOVIZA and FLORINO RAMOS, respondents.
D E C I S I O N
YNARES-SANTIAGO, J .:
Upon his assumption to the position of Mayor of Pagbilao, Quezon, petitioner Conrado L. de
Rama wrote a letter dated July 13, 1995 to the Civil Service Commission (or CSC), seeking the
recall of the appointments of fourteen (14) municipal employees, namely:
NAME POSITION DATE OF
APPOINTMENT
Eladio Martinez Registration Officer I June 1, 1995
Divino de Jesus Bookbinder III June 1, 1995
Morell Ayala Accounting Clerk III June 16, 1995
Daisy Porta Clerk IV June 27, 1995
Aristeo Catalla Gen. Services Officer June 19, 1995
Elsa Marino Mun. Agriculturist June 19, 1995
Gracella Glory Bookkeeper II June 27, 1995
Ma. Petra Muffet Lucce Accounting Clerk III June 27, 1995
Felicidad Orindag Accounting Clerk II June 27, 1995
Bernardita Mendoza Agricultural Technologist June 27, 1995
Flordeliza Oriazel Clerk I June 27, 1995
Jane Macatangay Day Care Worker I June 27, 1995
Adolfo Glodoviza Utility Worker II June 27, 1995
Florencio Ramos Utility Foreman June 27, 1995
[1]

Petitioner de Rama justified his recall request on the allegation that the appointments of the
said employees were midnight appointments of the former mayor, Ma. Evelyn S. Abeja, done in
violation of Article VII, Section 15 of the 1987 Constitution, which provides:
Section 15. Two months immediately before the next presidential elections and up to the end of his
term, a President or Acting President shall not make appointments, except temporary appointments
to executive positions when continued vacancies therein will prejudice public service or endanger
public safety. (Underscoring supplied)
While the matter was pending before the CSC, three of the above-named employees, namely:
Elsa Marino, Morell Ayala, and Flordeliza Oriazel, filed with the CSC a claim for payment of their
salaries, alleging that although their appointments were declared permanent by Conrado Gulim,
Director II of the CSC Field Office based in Quezon, petitioner de Rama withheld the payment of
their salaries and benefits pursuant to Office Order No. 95-01, which was issued on June 30, 1995,
wherein the appointments of the said fourteen (14) employees were recalled.
Based on the documents submitted by Marino, Ayala and Oriazel, the Legal and Quasi-Judicial
Division of the CSC issued an Order
[2]
finding that since the claimants-employees had assumed
their respective positions and performed their duties pursuant to their appointments, they are
therefore entitled to receive the salaries and benefits appurtenant to their positions. Citing Rule V,
Section 10 of the Omnibus Rules
[3]
which provides, in part, that if the appointee has assumed the
duties of the position, he shall be entitled to receive his salary at once without awaiting the approval
of his appointment by the Commission, the CSC Legal and Quasi-Judicial Division ruled that the
said employees cannot be deprived of their salaries and benefits by the unilateral act of the newly-
assumed mayor.
On April 30, 1996, the CSC denied petitioners request for the recall of the appointments of the
fourteen employees, for lack of merit. The CSC also cited Rule V, Sections 9 and 10 of the
Omnibus Rules, and declared that the appointments of the said employees were issued in
accordance with pertinent laws. Thus, the same were effective immediately, and cannot be
withdrawn or revoked by the appointing authority until disapproved by the CSC. The CSC also
dismissed petitioners allegation that these were midnight appointments, pointing out that the
Constitutional provision relied upon by petitioner prohibits only those appointments made by an
outgoing President and cannot be made to apply to local elective officials. Thus, the CSC opined,
the appointing authority can validly issue appointments until his term has expired, as long as the
appointee meets the qualification standards for the position.
[4]

The CSC upheld the validity of the appointments on the ground that they had already been
approved by the Head of the CSC Field Office in Lucena City, and for petitioners failure to present
evidence that would warrant the revocation or recall of the said appointments.
Petitioner moved for the reconsideration of the CSCs Resolution, as well as the Order of the
CSC Legal and Quasi-Judicial Division, averring that the CSC was without jurisdiction: (1) to
refuse to revoke the subject appointments; and (2) to uphold the validity of said appointments, even
assuming that there was failure to present evidence that would prove that these appointments
contravened existing laws or rules. He also posited that the CSC erred in finding the appointments
valid despite the existence of circumstances showing that the same were fraudulently issued and
processed.
On November 21, 1996, the CSC denied petitioners motion for reconsideration. The CSC
reiterated its ruling that:
In the absence of any showing that these alleged midnight appointments were defective in form and
in substance, nor is there evidence presented to show that subject appointments were issued in
contravention of law or rules, these appointments are deemed valid and in effect.
x x x x x x x x x
Mayor de Rama failed to present evidence that subject appointments should be revoked or recalled
because of any of the abovementioned grounds enumerated. As a matter of fact, said appointments
were even approved by the Head, Civil Service Field Office, Lucena City when submitted for
attestation. In the absence of a clear showing that these appointments were issued in violation of
any of these grounds, the Commission has no other recourse but to uphold their
validity. (Underscoring supplied)
The CSC also cited the Supreme Court ruling in the case of Aquino v. Civil Service
Commission
[5]
wherein this Court held that:
It is well-settled that once an appointment is issued and the moment the appointee assumes a
position in the civil service under a completed appointment, he acquires a legal, not merely
equitable right (to the position), which is protected not only by statute, but also by the Constitution,
and cannot be taken away from him either by revocation of the appointment, or by removal, except
for cause, and with previous notice and hearing. (Emphasis supplied)
Consequently, petitioner filed a petition for review before the Court of Appeals, arguing that
the CSC arrived at the erroneous conclusion after it ignored his supplement to the consolidated
appeal and motion for reconsideration wherein he laid out evidence showing that the subject
appointments were obtained through fraud.
After reviewing the facts and issues raised by petitioner, the Court of Appeals issued a
Resolution
[6]
dated May 16, 1997 which held that there was no abuse of the power of appointment on the part of the outgoing
mayor.
The Court of Appeals further held that the fact that the appointments of Marino, Ayala, Ramos,
Mendoza and Glory were made more than four (4) months after the publication of the vacancies to
which they were appointed is of no moment. Setting aside petitioners suppositions, the Court of
Appeals ruled that Republic Act No. 7041 does not provide that every appointment to the local
government service must be made within four (4) months from publication of the vacancies. It
cited Section 80 of said Act, to wit:
Section 80. Public Notice of Vacancy: Personnel Selection Board. (a) Whenever a local chief
executive decides to fill a vacant career position, there shall be posted notices of the vacancy in at
least three (3) conspicuous public places in the local government unit concerned for a period of not
less than fifteen (15) days.
(b) There shall be established in every province, city or municipality a personnel selection board to
assist the local chief executive in the judicious and objective selection of personnel for employment
as well as for promotion, and in the formulation of such policies as would contribute to employee
welfare.
(c) The personnel selection board shall be headed by the local sanggunian concerned. A
representative of the Civil Service Commission, if any, and the personnel officer of the local
government unit concerned shall be ex officio members of the board.
[7]

Likewise, neither did the CSCs own Circular Order No. 27, Section 7, Series of 1991, require
that vacant positions published in a government quarterly must be filled up before the advent of the
succeeding quarter.
On the basis of all the foregoing findings, the Court of Appeals denied for lack of merit the
petition for review.
Petitioner filed a motion for reconsideration arguing that the appellate court erred in upholding
the CSCs resolutions despite the following defects:
I. No screening process and no criteria were adopted by the Personnel Selection Board in
nominating the respondents;
II. No posting in three (3) conspicuous public places of notice of vacancy as required by the
rules and the law;
III. Merit and fitness requirements were not observed by the selection board and by the
appointing authority as required by the Civil Service rules;
IV. Petitioner has valid grounds to recall the appointments of respondents.
[8]

In a Resolution dated October 20, 1997, the Court of Appeals denied the motion for
reconsideration.
Hence, the instant petition for review on certiorari on the following assigned errors:
I. THE PUBLIC RESPONDENT COURT OF APPEALS, GRAVELY AND SERIOUSLY
ERRED IN FINDING THAT THE CIVIL SERVICE COMMISSION WAS CORRECT IN NOT
UPHOLDING THE PETITIONERS RECALL OF THE APPOINTMENTS OF PRIVATE
RESPONDENTS IN THE FACE OF FRAUD AND VIOLATION OF RULES AND LAWS ON
ISSUANCE OF APPOINTMENTS.
II. THE PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING
THAT THE PARTICULAR GROUNDS NAMELY:
I. No screening process and no criteria were adopted by the Personnel Selection Board
in nominating the respondents;
II. No posting in three (3) conspicuous public places of notice of vacancy as required by
the rules and the law;
III. Merit and fitness requirements were not observed by the selection board and by the
appointing authority as required by the Civil Service rules;
IV. Petitioner has valid grounds to recall the appointments of respondents.
ARE NEW ISSUES BECAUSE THE GROUNDS FOR RECALL OF THE APPOINTMENTS BY
THE PETITIONER WERE PRECISELY THE VIOLATION OF LAWS AND REGULATIONS
ON ISSUANCE OF APPOINTMENTS AS RAISED BEFORE THE RESPONDENT CIVIL
SERVICE COMMISSION.
Petitioner assails the findings of both the CSC and the Court of Appeals for being contrary to
law and not being supported by the evidence on record.
This argument is too specious to be given credence. The records reveal that when the petitioner
brought the matter of recalling the appointments of the fourteen (14) private respondents before the
CSC, the only reason he cited to justify his action was that these were midnight appointments
that are forbidden under Article VII, Section 15 of the Constitution. However, the CSC ruled, and
correctly so, that the said prohibition applies only to presidential appointments. In truth and in fact,
there is no law that prohibits local elective officials from making appointments during the last days
of his or her tenure. Petitioner certainly did not raise the issue of fraud on the part of the outgoing
mayor who made the appointments. Neither did he allege that the said appointments were tainted
by irregularities or anomalies that breached laws and regulations governing appointments. His
solitary reason for recalling these appointments was that they were, to his personal belief,
midnight appointments which the outgoing mayor had no authority to make.
Even in petitioners consolidated appeal and motion for reconsideration, he did not make any
assertion that these appointments were violative of civil service rules and procedures. Indeed, he
harped on the CSCs alleged lack of jurisdiction to refuse to recall the subject appointments. After
first invoking the authority of the CSC to approve or affirm his act, he then contradicted himself by
arguing that the CSC had no jurisdiction to do so, but only after the CSC had ruled that the recall
was without legal basis. He emphasized that he alone has sole discretion to appoint and recall the
appointment of municipal employees, an authority which, he stressed, the CSC cannot usurp. Yet,
nowhere in said pleading did he cite any other ground, much less present proof that would warrant
the recall of said appointments.
Perhaps realizing the weakness of his arguments, albeit belatedly, petitioner filed a supplement
to the appeal and motion for reconsideration where, for the very first time, he alleged that the
appointments were fraught with irregularities for failing to comply with CSC rules and
regulations. Nevertheless, the CSC overruled petitioners assertions, holding that no new evidence
had been presented to warrant a reversal of its earlier resolution.
Thus, in a petition for review before the Court of Appeals, petitioner questioned the CSCs
conclusion because it had ignored the allegations and documents he presented in the supplement to
his earlier consolidated appeal and motion for reconsideration. He argued that these form part of
the records of the case and that the CSC erred in failing to consider the assertions he raised
therein. The appellate court, however, agreed with the CSC when it ruled that the documents
presented by petitioner in the supplemental pleading did not constitute new evidence that would
convince the CSC to reverse its earlier ruling. In fine, the Court of Appeals, as did the CSC, simply
dismissed petitioners allegations and documents attached to the supplemental pleading for they did
not constitute new evidence that a court, board or tribunal may entertain.
Herein lies the inconsistency of petitioners arguments. He faults the Court of Appeals and the
CSC for ignoring his supplemental pleading, while at the same time arguing that the grounds for
recall such as violations of laws and regulations on issuance of appointments are not new issues
because he had timely raised them before the CSC.
There is no question that parties may file supplemental pleadings to supply deficiencies in aid
of an original pleading, but which should not entirely substitute the latter.
[9]
The propriety and
substance of supplemental pleadings are prescribed under Rule 10, Section 6 of the 1997 Rules of
Civil Procedure, which provides:
Sec. 6. Supplemental Pleadings. - Upon motion of a party the court may, upon reasonable notice
and upon such terms as are just, permit him to serve a supplemental pleading setting forth
transactions, occurrences or events which have happened since the date of the pleading sought to be
supplemented. The adverse party may plead thereto within ten (10) days from notice of the order
admitting the supplemental pleading.
Supplemental pleadings must be with reasonable notice, and it is discretionary upon the court
or tribunal to allow the same or not. Thus, the CSC was under no obligation to admit the
supplemental pleading, or even to consider the averments therein.
Secondly, a supplemental pleading must state transactions, occurrences or events which took
place since the time the pleading sought to be supplemented was filed. In the instant case,
petitioner alleged fraud and irregularities that supposedly occurred contemporaneous to the
execution of the appointments. They should have been raised at the very first opportunity. They
are not new events which petitioner could not have originally included as grounds for the recall of
the appointments.
Accordingly, the CSC, as well as the Court of Appeals, found that the allegations in his
supplemental pleading did not constitute new evidence that can be the proper subject of a
supplemental pleading. These were old facts and issues which he failed to raise
earlier. Consequently, the CSC and the Court of Appeals did not err in refusing to give credence to
the supplemental pleading.
Be that as it may, these alleged irregularities were considered by the CSC and the Court of
Appeals as new issues which were raised for the first time on appeal. It is rather too late for
petitioner to raise these issues for the first time on appeal. It is well-settled that issues or questions
of fact cannot be raised for the first time on appeal.
[10]
We have consistently held that matters,
theories or arguments not brought out in the original proceedings cannot be considered on review
or appeal where they are raised for the first time.
[11]
To consider the alleged facts and arguments
raised belatedly in the supplemental pleading to the appeal at this very late stage in the proceedings
would amount to trampling on the basic principles of fair play, justice and due process.
[12]

The grounds for the recall of the appointments that petitioner raised in his supplemental
pleading to the consolidated appeal and motion for reconsideration are that: (1) the rules on
screening of applicants based on adopted criteria were not followed; (2) there was no proper
posting of notice of vacancy; and (3) the merit and fitness requirements set by the civil service rules
were not observed. These are grounds that he could have stated in his order of recall, but which he
did not. Neither did he raise said grounds in his original appeal, but only by way of a supplemental
pleading. Failure of the petitioner to raise said grounds and to present supporting documents
constitute a waiver thereof, and the same arguments and evidence can no longer be entertained on
appeal before the CSC, nor in the Court of Appeals, and much less in a petition for review before
the Supreme Court.
[13]
In fine, the raising of these factual issues for the first time in a pleading
which is supplemental only to an appeal is barred by estoppel.
[14]

Petitioner asks this Court to appreciate and consider these factual issues. It must be recalled
that the jurisdiction of the Supreme Court in a petition for review on certiorari under Rule 45 of the
Revised Rules of Court is limited to reviewing only errors of law, not of fact.
[15]
That is, of course,
unless the factual findings assailed by petitioner are devoid of support by the evidence on record or
the impugned judgment is based on a misapprehension of facts.
[16]

A thorough perusal of the records reveal that the CSCs ruling is supported by the evidence and
the law. The fourteen (14) employees were duly appointed following two meetings of the
Personnel Selection Board held on May 31 and June 26, 1995. There is no showing that any of the
private respondents were not qualified for the positions they were appointed to. Moreover, their
appointments were duly attested to by the Head of the CSC field office at Lucena City. By virtue
thereof, they had already assumed their appointive positions even before petitioner himself
assumed his elected position as town mayor. Consequently, their appointments took effect
immediately and cannot be unilaterally revoked or recalled by petitioner.
It has been held that upon the issuance of an appointment and the appointees assumption of the
position in the civil service, he acquires a legal right which cannot be taken away either by
revocation of the appointment or by removal except for cause and with previous notice and
hearing.
[17]
Moreover, it is well-settled that the person assuming a position in the civil service under
a completed appointment acquires a legal, not just an equitable, right to the position. This right is
protected not only by statute, but by the Constitution as well, which right cannot be taken away by
either revocation of the appointment, or by removal, unless there is valid cause to do so, provided
that there is previous notice and hearing.
[18]

Petitioner admits that his very first official act upon assuming the position of town mayor was
to issue Office Order No. 95-01 which recalled the appointments of the private respondents. There
was no previous notice, much less a hearing accorded to the latter. Clearly, it was petitioner who
acted in undue haste to remove the private respondents without regard for the simple requirements
of due process of law. In doing so, he overstepped the bounds of his authority. While he argues
that the appointing power has the sole authority to revoke said appointments, there is no debate that
he does not have blanket authority to do so. Neither can he question the CSCs jurisdiction to
affirm or revoke the recall.
Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative
Code specifically provides that an appointment accepted by the appointee cannot be withdrawn or
revoked by the appointing authority and shall remain in force and in effect until disapproved by the
Commission. Thus, it is the CSC that is authorized to recall an appointment initially approved,
but only when such appointment and approval are proven to be in disregard of applicable
provisions of the civil service law and regulations.
[19]

Moreover, Section 10 of the same rule provides:
Sec. 10. An appointment issued in accordance with pertinent laws and rules shall take effect
immediately upon its issuance by the appointing authority, and if the appointee has assumed the
duties of the position, he shall be entitled to receive his salary at once without awaiting the approval
of his appointment by the Commission. The appointment shall remain effective until disapproved
by the Commission. In no case shall an appointment take effect earlier than he date of its issuance.
Section 20 of Rule VI also provides:
Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any
of the following grounds:
(a) Non-compliance with the procedures/criteria provided in the agencys Merit Promotion Plan;
(b) Failure to pass through the agencys Selection/Promotion Board;
(c) Violation of the existing collective agreement between management and employees relative to promotion; or
(d) Violation of other existing civil service law, rules and regulations.
Accordingly, the appointments of the private respondents may only be recalled on the above-
cited grounds. And yet, the only reason advanced by the petitioner to justify the recall was that
these were midnight appointments. The CSC correctly ruled, however, that the constitutional
prohibition on so-called midnight appointments, specifically those made within two (2) months
immediately prior to the next presidential elections, applies only to the President or Acting
President.
If ever there were other procedural or legal requirements that were violated in implementing the
appointments of the private respondents, the same were not seasonably brought before the Civil
Service Commission. These cannot be raised for the first time on appeal.
WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED and
the Resolution of the Court of Appeals in CA-G.R. SP No. 42896 affirming CSC Resolutions Nos.
96-2828 and 96-7527 is hereby AFFIRMED in toto.
No pronouncement as to costs.
SO ORDERED.

GR No. 170165, August 15, 2006 [Article VI Sec. 22: Congress' Power of Inquiry; Legislative Investigation]

FACTS:
The Senate invited Gen. Gudani and Lt. Col. Balutan to clarify allegations of 2004 election fraud and the surfacing of the
Hello Garci tapes. PGMA issued EO 464 enjoining officials of the executive department including the military
establishment from appearing in any legislative inquiry without her consent. AFP Chief of Staff Gen. Senga issued a
Memorandum, prohibiting Gen. Gudani, Col. Balutan et al from appearing before the Senate Committee without
Presidential approval. However, the two appeared before the Senate in spite the fact that a directive has been given to
them. As a result, the two were relieved of their assignments for allegedly violating the Articles of War and the time
honoured principle of the Chain of Command. Gen. Senga ordered them to be subjected before the General Court
Martial proceedings for willfuly violating an order of a superior officer.

ISSUE:
Whether or not the President has the authority to issue an order to the members of the AFP preventing them from
testifying before a legislative inquiry.

RULING:
Yes. The SC hold that President has constitutional authority to do so, by virtue of her power as commander-in-chief, and
that as a consequence a military officer who defies such injunction is liable under military justice. At the same time, any
chamber of Congress which seeks the appearance before it of a military officer against the consent of the President has
adequate remedies under law to compel such attendance. Any military official whom Congress summons to testify
before it may be compelled to do so by the President. If the President is not so inclined, the President may be
commanded by judicial order to compel the attendance of the military officer. Final judicial orders have the force of the
law of the land which the President has the duty to faithfully execute.
SC ruled in Senate v. Ermita that the President may not issue a blanket requirement of prior consent on executive
officials summoned by the legislature to attend a congressional hearing. In doing so, the Court recognized the
considerable limitations on executive privilege, and affirmed that the privilege must be formally invoked on specified
grounds. However, the ability of the President to prevent military officers from testifying before Congress does not turn
on executive privilege, but on the Chief Executives power as commander-in-chief to control the actions and speech of
members of the armed forces. The Presidents prerogatives as commander-in-chief are not hampered by the same
limitations as in executive privilege.

At the same time, the refusal of the President to allow members of the military to appear before Congress is still subject
to judicial relief. The Constitution itself recognizes as one of the legislatures functions is the conduct of inquiries in aid
of legislation. Inasmuch as it is ill-advised for Congress to interfere with the Presidents power as commander-in-chief, it
is similarly detrimental for the President to unduly interfere with Congresss right to conduct legislative inquiries. The
impasse did not come to pass in this petition, since petitioners testified anyway despite the presidential prohibition. Yet
the Court is aware that with its pronouncement today that the President has the right to require prior consent from
members of the armed forces, the clash may soon loom or actualize.

The duty falls on the shoulders of the President, as commander-in-chief, to authorize the appearance of the military
officers before Congress. Even if the President has earlier disagreed with the notion of officers appearing before the
legislature to testify, the Chief Executive is nonetheless obliged to comply with the final orders of the courts.

Senate vs. Ermita G.R. No. 169777 April 20, 2006 Case Digest

Facts of the Case


These consolidated cases are petitions for certiorari stating that the President has abused her power by issuing
Executive Order No. 464 dated September 28, 2005. Petitioners herein pray that such order be declared as null and void
for being unconstitutional.


In the exercise of its legislative power, the Senate of the Philippines through its various Committees conducts inquiries
and investigations in aid of legislation which call for attendance of officials and employees of the executive department,
bureaus, and offices including those employed in the Government Owned and Controlled Corporations, the Armed
Forces of the Philippines (AFP) and the Philippine National Police (PNP).


On September 21 - 23, 2005 the Committee of the Senate issued invitations to various officials of the Executive
Department for them to appear on September 29, 2005 as resource speakers in a public hearing on the railway project
of North Luzon Railways Corporation with the China National Machinery Group. Such railway project is called the North
Railway Project.


The Senate issued invitations on several AFP officials for them to attend as resource persons in a public hearing
scheduled on Sept. 28, 2005 for the privilege speech of the following senators: Sen. Aquilino Pimentel, Jr., Sen. Jinggoy
Estrada, Sen. Rodolfo Biazon, Sen. Jamby Madrigal, Sen. Biazon. Also invited to the hearing was the AFP Chief of Staff,
General Generoso Senga who by letter dated September 28, 2005 requested for its postponement due to a pressing
operational situation that demands his utmost attention.


On September 28, 2005 Senate Franklin Drilon received from Executive Secretary Eduardo Ermita a letter respectfully
requesting for the postponement of the hearing to which various executive officials have been invited in order for said
officials to study and prepare for various issues so they can better enlighten the Senate Committee on its investigation.


Senate Pres. Drilon however was unable to grant such request because it was sent belatedly and all preparations are
complete within that week. He also received a letter from NorthRail project President Jose L. Cortes Jr. requesting that
the hearing of the NorthRail project be postponed or cancelled until a copy of the report of UP Law Center on contract
agreements related to the project had been secured.


On Sept. 28, 2005, the President issued Executive Order # 464 entitled Ensuring Observance of Principle of Separation
of Powers, Adherence to Rule on Executive Privilege and Respect for Rights of Public Officials Appearing in Legislative
Inquiries in Aid of Legislation under the Constitution and for other Purposes", which states that all heads of the
executive branch shall secure the consent of the President prior to appearing before either house of the Congress; public
officials may not divulge confidential classified information officially known to them by reason of their office and not
made available to the public to prejudice the public interest and that executive matters shall only be conducted in
executive session.


On September 28, Sen. Pres. Franklin Drilon received from Executive Secretary Eduardo Ermita a copy of E.O. 464 and
that executive officials invited were not able to attend because they failed to secure the required consent from the
President.


On October 3, 2005, three petitions docketed as G.R. No. 169659 (Bayan Muna vs. Eduardo Ermita), 169660 (Francisco
Chavez vs. Eduardo Ermita) and 169667 (Alternative Law Groups vs. Eduardo Ermita) were filed before the court also
challenging the constitutionality of E.O. 464.


In G.R. No. 169659 Bayan Muna v. Eduardo Ermita, partylist Bayan Muna and HR members Satur Ocampo, Crispin
Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, COURAGE = organization of Govt employees and
CODAL (Counsels for Defense of Liberties) pray that E.O. 464 be declared unconstitutional and that Executive Sec.
Eduardo Ermita be prohibited from imposing sanctions on officials who appear before Congress due to congressional
summons. They also contend that E.O. 464 infringes on their rights and impedes them to fulfil their respective
obligations.


In G.R. No. 169660 Francisco Chavez vs. Eduardo Ermita, Francisco Chavez claims that his constitutional rights as a citizen
and taxpayer and law practicioner are affected by the enforcement of E.O. 464 thus he prays that such order be
declared null and unconstitutional.


In G.R. No. 169667 Alternative Law Groups vs. Eduardo Ermita, ALG claims that the group has legal standing to institute
the petition to enforce its constitutional right to information on matters of public concern.


On October 11, 2005, Senate of the Philippines alleging that it has a vital interest in the resolution of the issue of validity
in E.O. 464, claims that it prohibits the valid exercise of the Senates powers and functions and conceals information of
great public interest and concern.


On October 14, 2005, PDP- Laban a registered political party w/ members elected in the Congress filed a similar petition.


Issue:


Whether respondents committed grave abuse of discretion in executing E.O. 464.
Whether E.O. 464 violates the following provisions of the Constitution: Art. II Sec. 28, Art. III Sec. 4, Art. III Sec. 7, Art. VI
Sec. I, Art. VI, Sec. 21, Art. VI Sec. 22, Article XI sec. 1 and Art. XIII sec. 16.
Whether E.O. 464 contravenes the power of inquiry vested in the Congress.
Whether E.O. 464 violates the right of the people to information on matters of public concern.


Court Ruling:


E.O. 464 to the extent that it bars the appearance of executive officials before the Congress, deprives the Congress of
the information in the possession of these officials. The power of inquiry, a power vested in the Congress, is expressly
recognized in Sec. 21 of Article VI because, according to the Court, a legislative body cannot legislate wisely or effectively
in the absence of information respecting the conditions which the legislation intended to affect or change; thus, making
it an essential and appropriate auxiliary to the legislative function.


However, even when the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry
which exemptions fall under the rubric of executive privilege.


The executive privilege, whether asserted against Congress, the courts, or the public; is recognized only in relation to
certain types of information of a sensitive character. Executive privilege per se is not meant to cover up embarrassing
information. It is a relative concept, the validity of its assertion to a great extent depends upon the political situation of
the country.
AMPATUAN v. PUNO

October 26, 2012 Leave a comment

June 7, 2011 (G.R. No. 190259)

PARTIES:
Petitioners: DATU ZALDY UY AMPATUAN, ANSARUDDIN ADIONG, REGIE SAHALI-GENERALE
Respondents : HON. RONALDO PUNO, ARMED FORCES OF THE PHILIPPINES, PHILIPPINE NATIONAL POLICE

FACTS:
On November 24, 2009, the day after the gruesome massacre of 57 men and women, then President Gloria Macapagal-
Arroyo issued Proclamation 1946, placing the Provinces of Maguindanao and Sultan Kudarat and the City of Cotabato
under a state of emergency. She directed the AFP and the PNP to undertake such measures as may be allowed by the
Constitution and by law to prevent and suppress all incidents of lawless violence in the named places. Under AO 273,
she also delegated to the DILG the supervision of the ARMM.
The petitioners claimed that the Presidents issuances encroached the ARMMs autonomy, that it constitutes an invalid
exercise of emergency powers, and that the President had no factual basis for declaring a state of emergency, especially
in the Province of Sultan Kudarat and the City of Cotabato, where no critical violent incidents occurred. They want Proc.
1946 and AO 273 be declared unconstitutional.

The respondents, however, said that its purpose was not to deprive the ARMM of its autonomy, but to restore peace
and order in subject places. It is pursuant to her calling out power as Commander-in-Chief. The determination of the
need to exercise this power rests solely on her wisdom.

The President merely delegated her supervisory powers over the ARMM to the DILG Secretary who was her alter ego
any way. The delegation was necessary to facilitate the investigation of the mass killings


ISSUE:
WON President Arroyo invalidly exercised emergency powers when she called out the AFP and the PNP to prevent and
suppress all incidents of lawless violence in Maguindanao, Sultan Kudarat, and Cotabato City
HELD: NO. The President did not proclaim a national emergency, only a state of emergency in the three places
mentioned. And she did not act pursuant to any law enacted by Congress that authorized her to exercise extraordinary
powers. The calling out of the armed forces to prevent or suppress lawless violence in such places is a power that the
Constitution directly vests in the President. She did not need a congressional authority to exercise the same.

ISSUE (2): WON there is factual basis on the calling out of the Armed Forces.
HELD: Yes. The Presidents call on the armed forces to prevent or suppress lawless violence springs from the power
vested in her under Section 18, Article VII of the Constitution. While it is true that the Court may inquire into the factual
bases for the Presidents exercise of the above power, unless it is shown that such determination was attended by grave
abuse of discretion, the Court will accord respect to the Presidents judgment.



EN BANC


DATU ZALDY UY AMPATUAN, G.R. No. 190259
ANSARUDDIN ADIONG, REGIE
SAHALI-GENERALE
Petitioners, Present:

CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
- versus - BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.
HON. RONALDO PUNO, in his capacity
as Secretary of the Department of Interior
and Local Government and alter-ego of
President Gloria Macapagal-Arroyo,
and anyone acting in his stead and on
behalf of the President of the Philippines,
ARMED FORCES OF THE PHILIPPINES
(AFP), or any of their units operating in
the Autonomous Region in Muslim
Mindanao (ARMM), and PHILIPPINE
NATIONAL POLICE, or any of their Promulgated:
units operating in ARMM,
Respondents. June 7, 2011

x ---------------------------------------------------------------------------------------- x




DECI SI ON

ABAD, J.:


On November 24, 2009, the day after the gruesome massacre of 57 men and women,
including some news reporters, then President Gloria Macapagal-Arroyo issued Proclamation
1946,
[1]
placing the Provinces of Maguindanao and Sultan Kudarat and the City
of Cotabato under a state of emergency. She directed the Armed Forces of the Philippines
(AFP) and the Philippine National Police (PNP) to undertake such measures as may be allowed
by the Constitution and by law to prevent and suppress all incidents of lawless violence in the
named places.

Three days later or on November 27, President Arroyo also issued Administrative Order
273 (AO 273)
[2]
transferring supervision of the Autonomous Region of Muslim Mindanao
(ARMM) from the Office of the President to the Department of Interior and Local Government
(DILG). But, due to issues raised over the terminology used in AO 273, the President issued
Administrative Order 273-A (AO 273-A) amending the former, by delegating instead of
transferring supervision of the ARMM to the DILG.
[3]


Claiming that the Presidents issuances encroached on the ARMMs autonomy,
petitioners Datu Zaldy Uy Ampatuan, Ansaruddin Adiong, and Regie Sahali-Generale, all
ARMM officials,
[4]
filed this petition for prohibition under Rule 65. They alleged that the
proclamation and the orders empowered the DILG Secretary to take over ARMMs operations
and seize the regional governments powers, in violation of the principle of local autonomy
under Republic Act 9054 (also known as the Expanded ARMM Act) and the Constitution. The
President gave the DILG Secretary the power to exercise, not merely administrative
supervision, but control over the ARMM since the latter could suspend ARMM officials and
replace them.
[5]


Petitioner ARMM officials claimed that the President had no factual basis for declaring a
state of emergency, especially in the Province of Sultan Kudarat and the City of Cotabato,
where no critical violent incidents occurred. The deployment of troops and the taking over of
the ARMM constitutes an invalid exercise of the Presidents emergency powers.
[6]
Petitioners
asked that Proclamation 1946 as well as AOs 273 and 273-A be declared unconstitutional and
that respondents DILG Secretary, the AFP, and the PNP be enjoined from implementing them.

In its comment for the respondents,
[7]
the Office of the Solicitor General (OSG) insisted
that the President issued Proclamation 1946, not to deprive the ARMM of its autonomy, but to
restore peace and order in subject places.
[8]
She issued the proclamation pursuant to her
calling out power
[9]
as Commander-in-Chief under the first sentence of Section 18, Article VII
of the Constitution. The determination of the need to exercise this power rests solely on her
wisdom.
[10]
She must use her judgment based on intelligence reports and such best
information as are available to her to call out the armed forces to suppress and prevent
lawless violence wherever and whenever these reared their ugly heads.

On the other hand, the President merely delegated through AOs 273 and 273-A her
supervisory powers over the ARMM to the DILG Secretary who was her alter ego any
way. These orders did not authorize a take over of the ARMM. They did not give him blanket
authority to suspend or replace ARMM officials.
[11]
The delegation was necessary to facilitate
the investigation of the mass killings.
[12]
Further, the assailed proclamation and administrative
orders did not provide for the exercise of emergency powers.
[13]


Although normalcy has in the meantime returned to the places subject of this petition, it
might be relevant to rule on the issues raised in this petition since some acts done pursuant to
Proclamation 1946 and AOs 273 and 273-A could impact on the administrative and criminal
cases that the government subsequently filed against those believed affected by such
proclamation and orders.

The Issues Presented

The issues presented in this case are:

1. Whether or not Proclamation 1946 and AOs 273 and 273-A violate the principle of
local autonomy under Section 16, Article X of the Constitution, and Section 1, Article V of the
Expanded ARMM Organic Act;

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

3. Whether or not the President had factual bases for her actions.

The Rulings of the Court

We dismiss the petition.

One. The claim of petitioners that the subject proclamation and administrative orders
violate the principle of local autonomy is anchored on the allegation that, through them, the
President authorized the DILG Secretary to take over the operations of the ARMM and assume
direct governmental powers over the region.

But, in the first place, the DILG Secretary did not take over control of the powers of the
ARMM. After law enforcement agents took respondent Governor of ARMM into custody for
alleged complicity in the Maguindanao massacre, the ARMM Vice-Governor, petitioner
Ansaruddin Adiong, assumed the vacated post on December 10, 2009 pursuant to the rule on
succession found in Article VII, Section 12,
[14]
of RA 9054. In turn, Acting Governor Adiong
named the then Speaker of the ARMM Regional Assembly, petitioner Sahali-Generale, Acting
ARMM Vice-Governor.
[15]
In short, the DILG Secretary did not take over the administration or
operations of the ARMM.

Two. Petitioners contend that the President unlawfully exercised emergency powers
when she ordered the deployment of AFP and PNP personnel in the places mentioned in the
proclamation.
[16]
But such deployment is not by itself an exercise of emergency powers as
understood under Section 23 (2), Article VI of the Constitution, which provides:

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

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

Three. The Presidents call on the armed forces to prevent or suppress lawless violence
springs from the power vested in her under Section 18,

Article VII of the Constitution, which
provides.
[17]


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

While it is true that the Court may inquire into the factual bases for the Presidents
exercise of the above power,
[18]
it would generally defer to her judgment on the matter. As
the Court acknowledged in Integrated Bar of the Philippines v. Hon. Zamora,
[19]
it is clearly to
the President that the Constitution entrusts the determination of the need for calling out the
armed forces to prevent and suppress lawless violence. Unless it is shown that such
determination was attended by grave abuse of discretion, the Court will accord respect to the
Presidents judgment. Thus, the Court said:

If the petitioner fails, by way of proof, to support the assertion that the
President acted without factual basis, then this Court cannot undertake an
independent investigation beyond the pleadings. The factual necessity of calling
out the armed forces is not easily quantifiable and cannot be objectively
established since matters considered for satisfying the same is a combination of
several factors which are not always accessible to the courts. Besides the absence
of textual standards that the court may use to judge necessity, information
necessary to arrive at such judgment might also prove unmanageable for the
courts. Certain pertinent information might be difficult to verify, or wholly
unavailable to the courts. In many instances, the evidence upon which the
President might decide that there is a need to call out the armed forces may be of a
nature not constituting technical proof.

On the other hand, the President, as Commander-in-Chief has a vast
intelligence network to gather information, some of which may be classified as
highly confidential or affecting the security of the state. In the exercise of the
power to call, on-the-spot decisions may be imperatively necessary in emergency
situations to avert great loss of human lives and mass destruction of property.
Indeed, the decision to call out the military to prevent or suppress lawless violence
must be done swiftly and decisively if it were to have any effect at all. x x x.
[20]


Here, petitioners failed to show that the declaration of a state of emergency in the
Provinces of Maguindanao, Sultan Kudarat and Cotabato City, as well as the Presidents
exercise of the calling out power had no factual basis. They simply alleged that, since not all
areas under the ARMM were placed under a state of emergency, it follows that the take over
of the entire ARMM by the DILG Secretary had no basis too.
[21]


But, apart from the fact that there was no such take over to begin with, the OSG also
clearly explained the factual bases for the Presidents decision to call out the armed forces, as
follows:

The Ampatuan and Mangudadatu clans are prominent families engaged in
the political control of Maguindanao. It is also a known fact that both families have
an arsenal of armed followers who hold elective positions in various parts of the
ARMM and the rest of Mindanao.

Considering the fact that the principal victims of the brutal bloodshed are
members of the Mangudadatu family and the main perpetrators of the brutal
killings are members and followers of the Ampatuan family, both the military and
police had to prepare for and prevent reported retaliatory actions from the
Mangudadatu clan and additional offensive measures from the Ampatuan clan.

x x x x

The Ampatuan forces are estimated to be approximately two thousand four
hundred (2,400) persons, equipped with about two thousand (2,000) firearms,
about four hundred (400) of which have been accounted for. x x x

As for the Mangudadatus, they have an estimated one thousand eight
hundred (1,800) personnel, with about two hundred (200) firearms. x x x

Apart from their own personal forces, both clans have Special Civilian
Auxiliary Army (SCAA) personnel who support them: about five hundred (500) for
the Ampatuans and three hundred (300) for the Mangudadatus.

What could be worse than the armed clash of two warring clans and their
armed supporters, especially in light of intelligence reports on the potential
involvement of rebel armed groups (RAGs).

One RAG was reported to have planned an attack on the forces of Datu
Andal Ampatuan, Sr. to show support and sympathy for the victims. The said attack
shall worsen the age-old territorial dispute between the said RAG and the
Ampatuan family.

x x x x

On the other hand, RAG faction which is based in Sultan Kudarat was
reported to have received three million pesos (P3,000,000.00) from Datu Andal
Ampatuan, Sr. for the procurement of ammunition. The said faction is a force to
reckon with because the group is well capable of launching a series of violent
activities to divert the attention of the people and the authorities away from the
multiple murder case. x x x

In addition, two other factions of a RAG are likely to support the
Mangudadatu family. The Cotabato-based faction has the strength of about five
hundred (500) persons and three hundred seventy-two (372) firearms while the
Sultan Kudarat-based faction has the strength of about four hundred (400) persons
and three hundred (300) firearms and was reported to be moving towards
Maguindanao to support the Mangudadatu clan in its armed fight against the
Ampatuans.
[22]


In other words, the imminence of violence and anarchy at the time the President issued
Proclamation 1946 was too grave to ignore and she had to act to prevent further bloodshed
and hostilities in the places mentioned. Progress reports also indicated that there was
movement in these places of both high-powered firearms and armed men sympathetic to the
two clans.
[23]
Thus, to pacify the peoples fears and stabilize the situation, the President had to
take preventive action. She called out the armed forces to control the proliferation of loose
firearms and dismantle the armed groups that continuously threatened the peace and security
in the affected places.

Notably, the present administration of President Benigno Aquino III has not withdrawn
the declaration of a state of emergency under Proclamation 1946. It has been reported
[24]
that
the declaration would not be lifted soon because there is still a need to disband private armies
and confiscate loose firearms. Apparently, the presence of troops in those places is still
necessary to ease fear and tension among the citizenry and prevent and suppress any violence
that may still erupt, despite the passage of more than a year from the time of the
Maguindanao massacre.

Since petitioners are not able to demonstrate that the proclamation of state of
emergency in the subject places and the calling out of the armed forces to prevent or suppress
lawless violence there have clearly no factual bases, the Court must respect the Presidents
actions.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

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