.R. No.

183533 September 25, 2012

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND THE WRIT OF HABEAS
DATA IN FAVOR OF FRANCIS SAEZ, Petitioner,
vs.
GLORIA MACAPAGAL ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO
RAZON, 22ND MICO, CAPT. LAWRENCE BANAAG, SGT. CASTILLO, CAPT. ROMMEL
GUTIERREZ, CAPT. JAKE OBLIGADO, CPL. ROMAN ITO QUINT ANA, PVT. JERICO DUQUIL,
CPL. ARIEL FONTANILLA, A CERTAIN CAPT. ALCA YDO, A CERTAIN FIRST SERGEANT,
PVT. ZALDY OSlO, A CERTAIN PFC. SONNY, A CERTAIN CPL. JAMES, A CERTAIN JOEL,
RODERICK CLANZA and JEFFREY GOMEZ, Respondents.

For action by the Court is the Motion for Reconsideration1 dated September 26, 2010 filed by
petitioner Francis Saez of our Resolution2 dated August 31, 2010 denying the Petition for Review3 he
filed on July 21, 2008.

The Office of the Solicitor General (OSG) filed its Comment4 thereon stating that it does not find
cogent grounds to warrant setting aside our decision.

Antecedent Facts

On March 6, 2008, the petitioner filed with the Court a petition to be granted the privilege of the writs
of amparo and habeas data with prayers for temporary protection order, inspection of place and
production of documents.5 In the petition, he expressed his fear of being abducted and killed; hence,
he sought that he be placed in a sanctuary appointed by the Court. He likewise prayed for the
military to cease from further conducting surveillance and monitoring of his activities and for his
name to be excluded from the order of battle and other government records connecting him to the
Communist Party of the Philippines (CPP).

Without necessarily giving due course to the petition, the Court issued the writ of amparo
commanding the respondents to make a verified return, and referred the case to the Court of
Appeals (CA) for hearing and decision.The case before the CA was docketed as CA-G.R. SP No.
00024 WOA.

In the Return of the Writ,6 the respondents denied the assignment in the units of Captains Lawrence
Banaag and Rommel Gutierrez and Corporal Ariel Fontanilla. The respondents also alleged that the
names and descriptions of "Capt. Alcaydo," "a certain First Sergeant," "Cpl. James," "Pfc. Sonny,"
and "Joel" were insufficient to properly identify some of the persons sought to be included as among
the respondents in the petition.

On the other hand, respondents General Hermogenes Esperon, Jr. (Gen. Esperon), Capt. Jacob
Thaddeus Obligado, Pvt. Rizaldy A. Osio (Pvt. Osio), Pfc. Romanito C. Quintana, Jr. and Pfc. Jerico
Duquil submitted their affidavits.

The CA conducted hearings with an intent to clarify what actually transpired and to determine
specific acts which threatened the petitioners right to life, liberty or security.

During the hearings, the petitioner narrated that starting April 16, 2007, he noticed that he was
always being followed by a certain "Joel," a former colleague at Bayan Muna. "Joel" pretended
peddling pandesal in the vicinity of the petitioners store. Three days before the petitioner was
apprehended, "Joel" approached and informed him of his marital status and current job as a baker in
Calapan, Mindoro Oriental. "Joel" inquired if the petitioner was still involved with ANAKPAWIS.
When asked by the CA justices during the hearing if the petitioner had gone home to Calapan after
having filed the petition, he answered in the negative explaining that he was afraid of Pvt. Osio who
was always at the pier.

CA-G.R. SP No. 00024 WOA

On July 9, 2008, the CA rendered its Decision,7 denying on formal and substantial grounds the reliefs
prayed for in the petition and dropping former President Gloria Macapagal Arroyo as a respondent.
The CA ratiocinated:
There was no attempt at all to clarify how petitioner came to know about Zaldy Osios presence at
their pier if the former had not gone home since the petition was filed and what Zaldy Osio was doing
there to constitute violation or threat to violate petitioners right to life, liberty or security. This Court
cannot just grant the privilege of the writs without substantial evidence to establish petitioners
entitlement thereto. This Court cannot grant the privilege of the writs applied for on mere speculation
or conjecture. This Court is convinced that the Supreme Court did not intend it to be so when the
rules on the writs of Amparo and Habeas Data were adopted. It is the impression of this Court that
the privilege of the writs herein prayed for should be considered as extraordinary remedies available
to address the specific situations enumerated in the rules and no other.

xxxx

Not only did the petition and the supporting affidavit x x x fail to allege how the supposed threat or
violation of petitioners [right to] life, liberty and security is committed. Neither is there any narration
of any circumstances attendant to said supposed violation or threat to violatepetitioners right to life,
liberty or security to warrant entitlement to the privilege of the writs prayed for.

xxxx

A reading of the petition will show that the allegations therein do not comply with the aforestated
requirements of Section 6 Rule on the Writ of Habeas Data of the pertinent rule. The petition is
bereft of any allegation stating with specific definiteness as to how petitioners right to privacy was
violated or threatened to be violated. He did not include any allegation as to what recourses he
availed of to obtain the alleged documents from respondents. Neither did petitioner allege what
specific documents he prays for and from whom or [sic] from what particular office of the government
he prays to obtain them. The petition prays "to order respondents to produce any documents
submitted to any of them in the matter of any report on the case of FRANCIS SAEZ, including all
military intelligence reports."

xxxx

Both the rules on the writs of Amparo and Habeas Data (Section 17, A.M. No. 07-9-12-SC and
Section 16, A.M. No. 08-1-16-SC) provide that the parties shall establish their claims by substantial
evidence. Not only was petitioner unable to establish his entitlement to the privilege of the writs
applied for, the exigency thereof was negated by his own admission that nothing happened between
him and Joel after July 21, 2007. The filing of the petition appears to have been precipitated by his
fear that something might happen to him, not because of any apparent violation or visible threat to
violate his right to life, liberty or security. Petitioner was, in fact, unable to establish likewise who
among the respondents committed specific acts defined under the rules on both writs to constitute
violation or threat to violate petitioners rights to life, liberty or security or his right to privacy thereof.

xxxx

x x x The ruling in David, et al. vs. Gloria Macapagal Arroyo, et al. (G.R. No. 171396, May 3, 2006,
489 SCRA 160, 224) is aptly instructive:

"Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not
be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law.
It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged
into court litigations while serving as such. Furthermore, it is important that he be freed from any
form of harassment, hindrance or distraction to enable him to fully attend to the performance of his
official duties and functions. x x x."

xxxx

IV. The petition lacks proper verification in violation of Section 12, 2004 Rules on Notarial Practice.8

On July 21, 2008, Petition for Review was filed assailing the foregoing CA decision with the following
issues submitted for resolution:

WHETHER OR NOT THE CA COMMITTED REVERSIBLE ERROR IN DISMISSING THE PETITION

AND DROPPING GLORIA MACAPAGAL ARROYO AS PARTY RESPONDENT.
WHETHER OR NOT THE NOTARIAL OFFICERS OMISSION OF REQUIRING FROM THE
PETITIONER IDENTIFICATION CARDS RELATIVE TO THE LATTERS EXECUTION OF THE
VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING JUSTIFIES THE DENIAL OF
THE PETITION.

WHETHER OR NOT THE CA COMMITTED GROSS ABUSE OF DISCRETION WHEN IT FAILED

TO CONCLUDE FROM THE EVIDENCE OFFERED BY THE PETITIONER THE FACT THAT BY
BEING PLACED IN THE ORDER OF BATTLE LIST, THREATS AND VIOLATIONS TO THE
LATTERS LIFE, LIBERTY AND SECURITY WERE ACTUALLY COMMITTED BY THE
RESPONDENTS.9

Courts Resolution dated August 31, 2010

On August 31, 2010, the Court issued the Resolution10 denying the petition for review for the following
reasons, viz:

A careful perusal of the subject petition shows that the CA correctly found that the petition was bereft
of any allegation as to what particular acts or omission of respondents violated or threatened
petitioners right to life, liberty and security. His claim that he was incommunicado lacks credibility as
he was given a cellular phone and allowed to go back to Oriental Mindoro. The CA also correctly
held that petitioner failed to present substantial evidence that his right to life, liberty and security
were violated, or how his right to privacy was threatened by respondents. He did not specify the
particular documents to be secured, their location or what particular government office had custody
thereof, and who has possession or control of the same. He merely prayed that the respondents be
ordered "to produce any documents submitted to any of them in the matter of any report on the case
of FRANCIS SAEZ, including all military intelligence reports."

Petitioner assails the CA in failing to appreciate that in his Affidavit and Fact Sheet, he had
specifically detailed the violation of his right to privacy as he was placed in the Order of Battle and
promised to have his record cleared if he would cooperate and become a military asset. However,
despite questions propounded by the CA Associate Justices during the hearing, he still failed to
enlighten the appellate court as to what actually transpired to enable said court to determine whether
his right to life, liberty or security had actually been violated or threatened. Records bear out the
unsubstantiated claims of petitioner which justified the appellate courts dismissal of the petition.

As to petitioners argument that the CA erred in deleting the President as party-respondent, we find
the same also to be without merit. The Court has already made it clear in David v. Macapagal-Arroyo
that the President, during his or her tenure of office or actual incumbency, may not be sued in any
civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade
the dignity of the high office of the President, the Head of State, if the President can be dragged into
court litigations while serving as such. Furthermore, it is important that the President be freed from
any form of harassment, hindrance or distraction to enable the President to fully attend to the
performance of official duties and functions.11 (Citation omitted)

Hence, the petitioner filed the instant motion for reconsideration.12

Petitioners Arguments

Contrary to the CAs findings, it had been shown by substantial evidence and even by the
respondents own admissions that the petitioners life, liberty and security were threatened. Military
personnel, whom the petitioner had named and described, knew where to get him and they can do
so with ease. He also became a military asset, but under duress, as the respondents had documents
allegedly linking him to the CPP and including him in the order of battle. The petitioner claims that
the foregoing circumstances were not denied by the respondents.

The petitioner likewise challenges the CAs finding that he was not rendered incommunicado as he
was even provided with a cellular phone. The petitioner argues that the phone was only given to him
for the purpose of communicating with the respondents matters relative to his infiltration activities of
target legal organizations.

The petitioner cites Secretary of National Defense v. Manalo,13 which pronounced that "in the amparo
context, it is more correct to say that the right to security is actually the freedom from
threat".14 According to the petitioner, his freedom from fear was undoubtedly violated, hence, to him
pertains a cause of action. Anent the quantum of proof required in a petition for the issuance of the
writ of amparo, mere substantial evidence is sufficient. The petition "is not an action to determine
criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring
preponderance of evidence, or administrative responsibility requiring substantial evidence that will
require full and exhaustive proceedings".15

Sadly, in the petitioners case, the court not only demanded a greater quantum of proof than what
the rules require, but it also accorded special preference for the respondents evidence.

The petitioner also cites a speech delivered in Siliman University by former Chief Justice Reynato
Puno who expressed that "the remedy of habeas data can be used by any citizen against any
governmental agency or register to find out what information is held about his or her person." The
person can likewise "request the rectification or even the destruction of erroneous data gathered and
kept against him or her." In the petitioners case, he specifically sought the production of the order of
battle, which allegedly included his name, and other records which supposedly contain erroneous
data relative to his involvement with the CPP.

OSGs Comment

In the respondents comment16 filed by the OSG, it is generally claimed that the petitioner advances
no cogent grounds to justify the reversal of the Courts Resolution dated August 31, 2010.

The Courts Disquisition

While the issuance of the writs sought by the petitioner cannot be granted, the Court nevertheless
finds ample grounds to modify the Resolution dated August 31, 2010.

The petition conforms to the

requirements of the Rules on the
Writs of Amparo and Habeas Data

Section 517 of A.M. No. 07-9-12-SC (Rule on the Writ of Amparo) and Section 618 of A.M. 08-1-16-SC
(Rule on the Writ of Habeas Data) provide for what the said petitions should contain.

In the present case, the Court notes that the petition for the issuance of the privilege of the writs of
amparo and habeas data is sufficient as to its contents. The petitioner made specific allegations
relative to his personal circumstances and those of the respondents. The petitioner likewise
indicated particular acts, which are allegedly violative of his rights and the participation of some of
the respondents in their commission. As to the pre-requisite conduct and result of an investigation
prior to the filing of the petition, it was explained that the petitioner expected no relief from the
military, which he perceived as his oppressors, hence, his request for assistance from a human
rights organization, then a direct resort to the court. Anent the documents sought to be the subject of
the writ of habeas data prayed for, the Court finds the requirement of specificity to have been
satisfied. The documents subject of the petition include the order of battle, those linking the
petitioner to the CPP and those he signed involuntarily, and military intelligence reports making
references to him. Although the exact locations and the custodians of the documents were not
identified, this does not render the petition insufficient. Section 6(d) of the Rule on the Writ of
Habeas Data is clear that the requirement of specificity arises only when the exact locations and
identities of the custodians are known. The Amparo Rule was not promulgated with the intent to
make it a token gesture of concern for constitutional rights.19 Thus, despite the lack of certain
contents, which the Rules on the Writs of Amparo and Habeas Data generally require, for as long as
their absence under exceptional circumstances can be reasonably justified, a petition should not be
susceptible to outright dismissal.

From the foregoing, the Court holds that the allegations stated in the petition for the privilege of the
writs of amparo and habeas data filed conform to the rules. However, they are mere allegations,
which the Court cannot accept "hook, line and sinker", so to speak, and whether substantial
evidence exist to warrant the granting of the petition is a different matter altogether.

No substantial evidence exists to

prove the petitioners claims
The Court has ruled that in view of the recognition of the evidentiary difficulties attendant to the filing
of a petition for the privilege of the writs of amparo and habeas data, not only direct evidence, but
circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to
conclusions consistent with the admissible evidence adduced.20

With the foregoing in mind, the Court still finds that the CA did not commit a reversible error in
declaring that no substantial evidence exist to compel the grant of the reliefs prayed for by the
petitioner. The Court took a second look on the evidence on record and finds no reason to
reconsider the denial of the issuance of the writs prayed for.

In the hearing before the CA, it was claimed that "Joel" once inquired from the petitioner if the latter
was still involved with ANAKPAWIS. By itself, such claim cannot establish with certainty that the
petitioner was being monitored. The encounter happened once and the petitioner, in his pleadings,
nowhere stated that subsequent to the time he was asked about his involvement with ANAKPAWIS,
he still noticed "Joel" conducting surveillance operations on him. He alleged that he was brought to
the camp of the 204th Infantry Brigade in Naujan, Oriental Mindoro but was sent home at 5:00 p.m.
The petitioner and the respondents have conflicting claims about what transpired thereafter. The
petitioner insisted that he was brought against his will and was asked to stay by the respondents in
places under the latters control. The respondents, on the other hand, averred that it was the
petitioner who voluntarily offered his service to be a military asset, but was rejected as the former
still doubted his motives and affiliations.

Section 19 of both the Rules on the Writ of Amparo and Habeas Data is explicit that questions of fact
and law can be raised before the Court in a petition for review on certiorari under Rule 45. As a rule
then, the Court is not bound by the factual findings made by the appellate court which rendered the
judgment in a petition for the issuance of the writs of amparo and habeas data. Be that as it may, in
the instant case, the Court agrees with the CA that the petitioner failed to discharge the burden of
proof imposed upon him by the rules to establish his claims. It cannot be overemphasized that
Section 1 of both the Rules on the Writ of Amparo and Habeas Data expressly include in their
coverage even threatened violations against a persons right to life, liberty or security. Further, threat
and intimidation that vitiate the free will although not involving invasion of bodily integrity
nevertheless constitute a violation of the right to security in the sense of "freedom from threat".21

It must be stressed, however, that such "threat" must find rational basis on the surrounding
circumstances of the case. In this case, the petition was mainly anchored on the alleged threats
against his life, liberty and security by reason of his inclusion in the militarys order of battle, the
surveillance and monitoring activities made on him, and the intimidation exerted upon him to compel
him to be a military asset. While as stated earlier, mere threats fall within the mantle of protection of
the writs of amparo and habeas data, in the petitioners case, the restraints and threats allegedly
made allegations lack corroborations, are not supported by independent and credible evidence, and
thus stand on nebulous grounds.

The Court is cognizant of the evidentiary difficulties attendant to a petition for the issuance of the
writs. Unlike, however, the unique nature of cases involving enforced disappearances or extra-
judicial killings that calls for flexibility in considering the gamut of evidence presented by the parties,
this case sets a different scenario and a significant portion of the petitioners testimony could have
been easily corroborated. In his Sinumpaang Salaysay22dated March 5, 2008 and the Fact Sheet
dated December 9, 200723 executed before the Alliance for the Advancement of Peoples Rights-
Southern Tagalog (KARAPATAN-ST), the petitioner stated that when he was invited and
interrogated at the military camp in Naujan, Oriental Mindoro, he brought with him his uncle Norberto
Roxas, Barangay Captain Mario Ilagan and two of his bodyguards, and Edwardo Estabillo five
witnesses who can attest and easily corroborate his statement but curiously, the petitioner did not
present any piece of evidence, whether documentary or testimonial, to buttress such claim nor did
he give any reason for their non-presentation.This could have made a difference in light of the
denials made by the respondents as regards the petitioners claims.

The existence of an order of battle and inclusion of the petitioners name in it is another allegation by
the petitioner that does not find support on the evidence adduced. The Court notes that such
allegation was categorically denied by respondent Gen. Avelino I. Razon, Jr. who, in his Affidavit
dated March 31, 2008, stated that he "does not have knowledge about any Armed Forces of the
Philippines (AFP) order of battle which allegedly lists the petitioner as a member of the CPP."24 This
was also denied by Pvt. Osio, who the petitioner identified as the one who told him that he was
included in the order of battle.25 The 2nd Infantry (Jungle Fighter) Division of the Philippine Army also
conducted an investigation pursuant to the directive of AFP Chief of Staff Gen. Esperon,26 and it was
shown that the persons identified by the petitioners who allegedly committed the acts complained of
were not connected or assigned to the 2nd Infantry Division.27

Moreover, the evidence showed that the petitioners mobility was never curtailed. From the time he
was allegedly brought to Batangas in August of 2007 until the time he sought the assistance of
KARAPATAN-ST, there was no restraint upon the petitioner to go home, as in fact, he went home to
Mindoro on several instances. And while he may have been wary of Pvt. Osios presence at the pier,
there was no claim by the petitioner that he was threatened or prevented by Pvt. Osio from boarding
any vehicle that may transport him back home. The petitioner also admitted that he had a mobile
phone; hence, he had unhampered access to communication and can readily seek assistance from
non-governmental organizations and even government agencies.

The respondents also belied the petitioners claim that they forced him to become a military
informant and instead, alleged that it was the petitioner who volunteered to be one. Thus, in his
Sinumpaang Salaysay28 executed on March 25, 2008, Pvt. Osio admitted that he actually knew the
petitioner way back in 1998 when they were still students. He also stated that when he saw the
petitioner again in 2007, the latter manifested his intention to become a military informant in
exchange for financial and other forms of assistance.

The petitioner also harps on the alleged "monitoring" activities being conducted by a certain "Joel",
e.g., the latters alleged act of following him, pretending to peddle pandesal and asking him about his
personal circumstances. Such allegation by the petitioner, however, is, at best, a conclusion on his
part, a mere impression that the petitioner had, based on his personal assessment of the
circumstances. The petitioner even admitted in his testimony before the CA that when he had a
conversation with "Joel" sometime in July 2007, the latter merely asked him whether he was still
connected with ANAKPAWIS, but he was not threatened "with anything" and no other incident
occurred between them since then.29 There is clearly nothing on record which shows that "Joel"
committed overt acts that will unequivocally lead to the conclusion arrived at by the petitioner,
especially since the alleged acts committed by "Joel" are susceptible of different interpretations.

Given that the totality of the evidence presented by the petitioner failed to support his claims, the
reliefs prayed for, therefore, cannot be granted. The liberality accorded to amparo and habeas data
cases does not mean that a claimant is dispensed with the onus of proving his case. "Indeed, even
the liberal standard of substantial evidence demands some adequate evidence."30

The President cannot be

automatically dropped as a
respondent pursuant to the doctrine
of command responsibility

In Noriel Rodriguez v. Gloria Macapagal Arroyo, et al.,31 the Court stated:

a. Command responsibility of the President

Having established the applicability of the doctrine of command responsibility in amparo

proceedings, it must now be resolved whether the president, as commander-in-chief of the military,
can be held responsible or accountable for extrajudicial killings and enforced disappearances. We
rule in the affirmative.

To hold someone liable under the doctrine of command responsibility, the following elements must
obtain:

a. the existence of a superior-subordinate relationship between the accused as superior and

the perpetrator of the crime as his subordinate;

b. the superior knew or had reason to know that the crime was about to be or had been
committed; and

c. the superior failed to take the necessary and reasonable measures to prevent the criminal
acts or punish the perpetrators thereof.

The president, being the commander-in-chief of all armed forces, necessarily possesses control over
the military that qualifies him as a superior within the purview of the command responsibility doctrine.
On the issue of knowledge, it must be pointed out that although international tribunals apply a strict
standard of knowledge, i.e., actual knowledge, such may nonetheless be established through
circumstantial evidence. In the Philippines, a more liberal view is adopted and superiors may be
charged with constructive knowledge. This view is buttressed by the enactment of Executive Order
No. 226, otherwise known as the Institutionalization of the Doctrine of Command Responsibility in
all Government Offices, particularly at all Levels of Command in the

Philippine National Police and other Law Enforcement Agencies (E.O. 226). Under E.O. 226, a
government official may be held liable for neglect of duty under the doctrine of command
responsibility if he has knowledge that a crime or offense shall be committed, is being committed, or
has been committed by his subordinates, or by others within his area of responsibility and, despite
such knowledge, he did not take preventive or corrective action either before, during, or immediately
after its commission. Knowledge of the commission of irregularities, crimes or offenses is presumed
when (a) the acts are widespread within the government officials area of jurisdiction; (b) the acts
have been repeatedly or regularly committed within his area of responsibility; or (c) members of his
immediate staff or office personnel are involved.

Meanwhile, as to the issue of failure to prevent or punish, it is important to note that as the
commander-in-chief of the armed forces, the president has the power to effectively command,
control and discipline the military. (Citations omitted)

Pursuant to the doctrine of command responsibility, the President, as the Commander-in-Chief of the
AFP, can be held liable for affront against the petitioners rights to life, liberty and security as long as
substantial evidence exist to show that he or she had exhibited involvement in or can be imputed
with knowledge of the violations, or had failed to exercise necessary and reasonable diligence in
conducting the necessary investigations required under the rules. 1w phi 1

The Court also stresses that rule that the presidential immunity from suit exists only in concurrence
with the presidents incumbency.32

Conversely, this presidential privilege of immunity cannot be invoked by a non-sitting president even
for acts committed during his or her tenure.33 Courts look with disfavor upon the presidential privilege
of immunity, especially when it impedes the search for truth or impairs the vindication of a right.34

The petitioner, however, is not exempted from the burden of proving by substantial evidence his
allegations against the President to make the latter liable for either acts or omissions violative of
rights against life, liberty and security. In the instant case, the petitioner merely included the
Presidents name as a party respondent without any attempt at all to show the latters actual
involvement in, or knowledge of the alleged violations. Further, prior to the filing of the petition, there
was no request or demand for any investigation that was brought to the Presidents attention. Thus,
while the President cannot be completely dropped as a respondent in a petition for the privilege of
the writs of amparo and habeas data merely on the basis of the presidential immunity from suit, the
petitioner in this case failed to establish accountability of the President, as commander-in-chief,
under the doctrine of command responsibility.

Compliance with technical rules of

procedure is ideal but it cannot be
accorded primacy

Among the grounds cited by the CA in denying the petition for the issuance of the writs of amparo
and habeas data was the defective verification which was attached to the petition. In
Tagitis,35 supporting affidavits required under Section 5(c) of the Rule on the Writ of Amparo were not
submitted together with the petition and it was ruled that the defect was fully cured when the
petitioner and the witness personally testified to prove the truth of their allegations in the hearings
held before the CA. In the instant case, the defective verification was not the sole reason for the
CAs denial of the petition for the issuance of the writs of amparo and habeas data. Nonetheless, it
must be stressed that although rules of procedure play an important rule in effectively administering
justice, primacy should not be accorded to them especially in the instant case where there was at
least substantial compliance with the requirements and where petitioner himself testified in the
hearings to attest to the veracity of the claims which he stated in his petition.

To conclude, compliance with technical rules of procedure is ideal but it cannot be accorded
primacy. In the proceedings before the CA, the petitioner himself testified to prove the veracity of his
allegations which he stated in the petition. Hence, the defect in the verification attached to the
petition. Hence, the defect in the verification attached to the petition was deemed cured.

WHEREFORE, premises considered, the petitioner's motion for reconsideration is DENIED WITH
FINALITY.

SO ORDERED.
G.R. No. 163193 June 15, 2004

SIXTO S. BRILLANTES, JR., petitioner,

JOSE CONCEPCION, JR., JOSE DE VENECIA, EDGARDO J. ANGARA, DR. JAIME Z. GALVEZ-
TAN, FRANKLIN M. DRILON, FRISCO SAN JUAN, NORBERTO M. GONZALES, HONESTO M.
GUTIERREZ, ISLETA, AND JOSE A. BERNAS, Petitioners-in-Intervention,
vs.
COMMISSION ON ELECTIONS, respondent.

DECISION

CALLEJO, SR., J.:

Before us is the petition for certiorari and prohibition under Rule 65 of the Rules of Court filed by
Atty. Sixto S. Brillantes, Jr., a voter and taxpayer, seeking to nullify, for having been issued with
grave abuse of discretion amounting to lack or excess of jurisdiction, Resolution No. 6712 dated
April 28, 2004 approved by the Commission on Elections

(COMELEC) En Banc captioned GENERAL INSTRUCTIONS FOR THE ELECTRONIC

TRANSMISSION AND CONSOLIDATION OF ADVANCED RESULTS IN THE MAY 10, 2004
ELECTIONS.1 The petitioner, likewise, prays for the issuance of a temporary restraining order and,
after due proceedings, a writ of prohibition to permanently enjoin the respondent COMELEC from
enforcing and implementing the questioned resolution.

After due deliberation, the Court resolved to require the respondent to comment on the petition and
to require the parties to observe the status quo prevailing before the issuance by the COMELEC of
the assailed resolution. The parties were heard on oral arguments on May 8, 2004. The respondent
COMELEC was allowed during the hearing to make a presentation of the Electronic Transmission,
Consolidation and Dissemination (PHASE III) program of the COMELEC, through Mr. Renato V. Lim
of the Philippine Multi-Media System, Inc. (PMSI).

The Court, thereafter, resolved to maintain the status quo order issued on May 6, 2004 and
expanded it to cover any and all other issuances related to the implementation of the so-called
election quick count project. In compliance with the resolution of the Court, the respondent, the
petitioner and the petitioners-in-intervention submitted the documents required of them.

The Antecedents

On December 22, 1997, Congress enacted Republic Act No. 84362 authorizing the COMELEC to
use an automated election system (AES) for the process of voting, counting of votes and
canvassing/consolidating the results of the national and local elections. It also mandated the
COMELEC to acquire automated counting machines (ACMs), computer equipment, devices and
materials; and to adopt new electoral forms and printing materials.

The COMELEC initially intended to implement the automation during the May 11, 1998 presidential
elections, particularly in the Autonomous Region in Muslim Mindanao (ARMM). The failure of the
machines to read correctly some automated ballots, however, deferred its implementation.3

In the May 2001 elections, the counting and canvassing of votes for both national and local positions
were also done manually, as no additional ACMs had been acquired for that electoral exercise
because of time constraints.

On October 29, 2002, the COMELEC adopted, in its Resolution No. 02-0170, a modernization
program for the 2004 elections consisting of three (3) phases, to wit:

(1) PHASE I Computerized system of registration and voters validation or the so-called
"biometrics" system of registration;

(2) PHASE II Computerized voting and counting of votes; and

(3) PHASE III Electronic transmission of results.

It resolved to conduct biddings for the three phases.

On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172,4 which
allocated the sum of 2,500,000,000 to exclusively fund the AES in time for the May 10, 2004
elections.

On January 28, 2003, the COMELEC issued an Invitation to Bid5 for the procurement of supplies,
equipment, materials and services needed for the complete implementation of all three phases of the
AES with an approved budget of 2,500,000,000.

On February 10, 2003, upon the request of the COMELEC, President Gloria Macapagal-Arroyo
issued Executive Order No. 175,6 authorizing the release of a supplemental 500 million budget for
the AES project of the COMELEC. The said issuance, likewise, instructed the Department of Budget
and Management (DBM) to ensure that the aforementioned additional amount be used exclusively
for the AES prescribed under Rep. Act No. 8436, particularly "the process of voting, counting of
votes and canvassing/consolidation of results of the national and local elections."7

On April 15, 2003, the COMELEC promulgated Resolution No. 6074 awarding the contract for Phase
II of the AES to Mega Pacific Consortium and correspondingly entered into a contract with the latter
to implement the project. On the same day, the COMELEC entered into a separate contract with
Philippine Multi-Media System, Inc. (PMSI) denominated "ELECTRONIC TRANSMISSION,
CONSOLIDATION & DISSEMINATION OF ELECTION RESULTS PROJECT CONTRACT. 8 The
contract, by its very terms, pertains to Phase III of the respondent COMELECs AES modernization
program. It was predicated on a previous bid award of the contract, for the lease of 1,900 units of
satellite-based Very Small Aperture Terminals (VSAT) each unit consisting of an indoor and outdoor
equipment, to PMSI for possessing the legal, financial and technical expertise necessary to meet the
projects objectives. The COMELEC bound and obliged itself to pay PMSI the sum of
298,375,808.90 as rentals for the leased equipment and for its services.

In the meantime, the Information Technology Foundation of the Philippines (ITFP), filed a petition for
certiorari and prohibition in this Court for the nullification of Resolution No. 6074 approving the
contract for Phase II of AES to Mega Pacific Consortium, entitled and docketed as Information
Technology Foundation of the Philippines, et al. vs. COMELEC, et al., G.R. No. 159139. While the
case was pending in this Court, the COMELEC paid the contract fee to the PMSI in trenches.

On January 13, 2004, this Court promulgated its Decision nullifying COMELEC Resolution No. 6074
awarding the contract for Phase II of the AES to Mega Pacific Consortium. Also voided was the
subsequent contract entered into by the respondent COMELEC with Mega Pacific Consortium for
the purchase of computerized voting/counting machines for the purpose of implementing the second
phase of the modernization program. Phase II of the AES was, therefore, scrapped based on the
said Decision of the Court and the COMELEC had to maintain the old manual voting and counting
system for the May 10, 2004 elections.

On the other hand, the validation scheme under Phase I of the AES apparently encountered
problems in its implementation, as evinced by the COMELECs pronouncements prior to the
elections that it was reverting to the old listing of voters. Despite the scrapping of Phase II of the
AES, the COMELEC nevertheless ventured to implement Phase III of the AES through an electronic
transmission of advanced "unofficial" results of the 2004 elections for national, provincial and
municipal positions, also dubbed as an "unofficial quick count."

Senate President Franklin Drilon had misgivings and misapprehensions about the constitutionality of
the proposed electronic transmission of results for the positions of President and Vice-President, and
apprised COMELEC Chairman Benjamin Abalos of his position during their meeting on January 28,
2004. He also wrote Chairman Abalos on February 2, 2004. The letter reads:

Dear Chairman Abalos,

This is to confirm my opinion which I relayed to you during our meeting on January 28th that
the Commission on Elections cannot and should not conduct a "quick count" on the results of
the elections for the positions of President and Vice-President.

Under Section 4 of Article VII of the Constitution, it is the Congress that has the sole and
exclusive authority to canvass the votes for President and Vice-President. Thus, any quick
count to be conducted by the Commission on said positions would in effect constitute a
canvass of the votes of the President and Vice-President, which not only would be pre-
 emptive of the authority of the Congress, but also would be lacking of any Constitutional
authority. You conceded the validity of the position we have taken on this point.

In view of the foregoing, we asked the COMELEC during that meeting to reconsider its plan
to include the votes for President and Vice-President in the "quick count", to which you
graciously consented. Thank you very much.9

The COMELEC approved a Resolution on February 10, 2004 referring the letter of the Senate
President to the members of the COMELEC and its Law Department for study and recommendation.
Aside from the concerns of the Senate President, the COMELEC had to contend with the primal
problem of sourcing the money for the implementation of the project since the money allocated by
the Office of the President for the AES had already been spent for the acquisition of the equipment.
All these developments notwithstanding, and despite the explicit specification in the project contract
for Phase III that the same was functionally intended to be an interface of Phases I and II of the AES
modernization program, the COMELEC was determined to carry out Phase III of the AES. On April
6, 2004, the COMELEC, in coordination with the project contractor PMSI, conducted a field test of
the electronic transmission of election results.

On April 27, 2004, the COMELEC met en banc to update itself on and resolve whether to proceed
with its implementation of Phase III of the AES.10 During the said meeting, COMELEC Commissioner
Florentino Tuason, Jr. requested his fellow Commissioners that "whatever is said here should be
confined within the four walls of this room and the minutes so that walang masyadong
problema.11 Commissioner Tuason, Jr. stated that he had no objection as to the Phase III of the
modernization project itself, but had concerns about the budget. He opined that other funds of the
COMELEC may not be proper for realignment. Commissioners
Resurreccion Z. Borra and Virgilio Garcillano also expressed their concerns on the budget for the
project. Commissioner Manuel Barcelona, Jr. shared the sentiments of Commissioners Garcillano
and Tuason, Jr. regarding personnel and budgetary problems. Commissioner Sadain then
manifested that the consideration for the contract for Phase III had already been almost fully paid
even before the Courts nullification of the contract for Phase II of the AES, but he was open to the
possibility of the realignment of funds of the COMELEC for the funding of the project. He added that
if the implementation of Phase III would not be allowed to continue just because Phase II was
nullified, then it would be 300,000,000 down the drain, in addition to the already allocated
disbursement on Phase II of the AES.12 Other concerns of the Commissioners were on the legality of
the project considering the scrapping of Phase II of the AES, as well as the operational constraints
related to its implementation.

Despite the dire and serious reservations of most of its members, the COMELEC, the next day, April
28, 2004, barely two weeks before the national and local elections, approved the assailed resolution
declaring that it "adopts the policy that the precinct election results of each city and municipality shall
be immediately transmitted electronically in advance to the COMELEC, Manila."13 For the purpose,
respondent COMELEC established a National Consolidation Center (NCC), Electronic Transmission
Centers (ETCs) for every city and municipality, and a special ETC at the COMELEC, Manila, for the
Overseas Absentee Voting.14

Briefly, the procedure for this electronic transmission of precinct results is outlined as follows:

I. The NCC shall receive and consolidate all precinct results based on the data transmitted to
it by each ETC;15

II. Each city and municipality shall have an ETC "where votes obtained by each candidate for
all positions shall be encoded, and shall consequently be transmitted electronically to the
NCC, through Very Small Aperture Terminal (VSAT) facilities."16 For this purpose, personal
computers shall be allocated for all cities and municipalities at the rate of one set for every
one hundred seventy-five (175) precincts;17

III. A Department of Education (DepEd) Supervisor shall be designated in the area who will be
assigned in each polling center for the purpose of gathering from all Board of Election Inspectors
(BEI) therein the envelopes containing the Copy 3 of the Election Returns (ER) for national positions
and Copy 2 of the ER for local positions, both intended for the COMELEC, which shall be used as
basis for the encoding and transmission of advanced precinct results.18

The assailed resolution further provides that written notices of the date, time and place of the
electronic transmission of advanced precinct results shall be given not later than May 5, 2004 to
candidates running for local positions, and not later than May 7, 2004 to candidates running for
national positions, as well as to political parties fielding candidates, and parties,
organizations/coalitions participating under the party-list system.19

In relation to this, Section 13 of the assailed resolution provides that the encoding proceedings were
ministerial and the tabulations were "advanced unofficial results." The entirety of Section 13, reads:

Sec. 13. Right to observe the ETC proceedings. Every registered political party or coalition
of parties, accredited political party, sectoral party/organization or coalition thereof under the
party-list, through its representative, and every candidate for national positions has the right
to observe/witness the encoding and electronic transmission of the ERs within the authorized
perimeter.

Provided, That candidates for the sangguniang panlalawigan, sangguniang

panglungsod or sangguniang bayanbelonging to the same slate or ticket shall collectively be entitled
to only one common observer at the ETC.

The citizens arm of the Commission, and civic, religious, professional, business, service, youth and
other similar organizations collectively, with prior authority of the Commission, shall each be entitled
to one (1) observer. Such fact shall be recorded in the Minutes.

The observer shall have the right to observe, take note of and make observations on the
proceedings of the team. Observations shall be in writing and, when submitted, shall be attached to
the Minutes.

The encoding proceedings being ministerial in nature, and the tabulations being advanced unofficial
results, no objections or protests shall be allowed or entertained by the ETC.

In keeping with the "unofficial" character of the electronically transmitted precinct results, the
assailed resolution expressly provides that "no print-outs shall be released at the ETC and at the
NCC."20 Instead, consolidated and per-precinct results shall be made available via the Internet, text
messaging, and electronic billboards in designated locations. Interested parties may print the result
published in the COMELEC web site.21

When apprised of the said resolution, the National Citizens Movement for Free Elections
(NAMFREL), and the heads of the major political parties, namely, Senator Edgardo J. Angara of
the Laban ng Demokratikong Pilipino(LDP) and Chairman of the Koalisyon ng mga Nagkakaisang
Pilipino (KNP) Executive Committee, Dr. Jaime Z. Galvez Tan of the Aksyon Demokratiko, Frisco
San Juan of the Nationalist Peoples Coalition (NPC), Gen. Honesto M. Isleta of Bangon Pilipinas,
Senate President Franklin Drilon of the Liberal Party, and Speaker Jose de Venecia of the Lakas-
Christian Muslim Democrats (CMD) and Norberto M. Gonzales of the Partido Demokratiko
Sosyalista ng Pilipinas, wrote the COMELEC, on May 3, 2004 detailing their concerns about the
assailed resolution:

This refers to COMELEC Resolution 6712 promulgated on 28 April 2004.

NAMFREL and political parties have the following concerns about Resolution 6712 which arose
during consultation over the past week[:]

a) The Resolution disregards RA 8173, 8436, and 7166 which authorize only the citizens
arm to use an election return for an unofficial count; other unofficial counts may not be based
on an election return; Indeed, it may be fairly inferred from the law that except for the copy of
the citizens arm, election returns may only be used for canvassing or for receiving dispute
resolutions.

b) The Commissions copy, the second or third copy of the election return, as the case may
be, has always been intended to be an archived copy and its integrity preserved until
required by the Commission to resolve election disputes. Only the Board of Election
Inspectors is authorized to have been in contact with the return before the Commission
unseals it.

c) The instruction contained in Resolution 6712, to break the seal of the envelope containing
copies Nos. 2 and 3 will introduce a break in the chain of custody prior to its opening by the
 Commission on Election[s]. In the process of prematurely breaking the seal of the Board of
Election Inspectors, the integrity of the Commissions copy is breached, thereby rendering it
void of any probative value.

To us, it does appear that the use of election returns as prescribed in Resolution 6712 departs from
the letters and spirit of the law, as well as previous practice. More importantly, questions of legalities
aside, the conduct of an advanced count by the COMELEC may affect the credibility of the elections
because it will differ from the results obtained from canvassing. Needless to say, it does not help
either that Resolution 6712 was promulgated only recently, and perceivably, on the eve of the
elections.

In view of the foregoing, we respectfully request the Commission to reconsider Resolution 6712
which authorizes the use of election returns for the consolidation of the election results for the May
10, 2004 elections.22

The Present Petition

On May 4, 2004, the petition at bar was filed in this Court.

Jose Concepcion, Jr., Jose De Venecia, Edgardo J. Angara, Dr. Jaime Z. Galvez-Tan, Franklin M.
Drilon, Frisco San Juan, Norberto M. Gonzales, Honesto M. Isleta and Jose A. Bernas, filed with this
Court their Motion to Admit Attached Petition-in-Intervention. In their petition-in-intervention,
movants-petitioners urge the Court to declare as null and void the assailed resolution and
permanently enjoin the respondent COMELEC from implementing the same. The Court granted the
motion of the petitioners-in-intervention and admitted their petition.

In assailing the validity of the questioned resolution, the petitioner avers in his petition that there is
no provision under Rep. Act No. 8436 which authorizes the COMELEC to engage in the
biometrics/computerized system of validation of voters (Phase I) and a system of electronic
transmission of election results (Phase III). Even assuming for the nonce that all the three (3) phases
are duly authorized, they must complement each other as they are not distinct and separate
programs but mere stages of one whole scheme. Consequently, considering the failed
implementation of Phases I and II, there is no basis at all for the respondent COMELEC to still push
through and pursue with Phase III. The petitioner essentially posits that the counting and
consolidation of votes contemplated under Section 6 of Rep. Act No. 8436 refers to the official
COMELEC count under the fully automated system and not any kind of "unofficial" count via
electronic transmission of advanced results as now provided under the assailed resolution.

The petitioners-in-intervention point to several constitutional infractions occasioned by the assailed

resolution. They advance the view that the assailed resolution effectively preempts the sole and
exclusive authority of Congress under Article VII, Section 4 of the Constitution to canvass the votes
for President and Vice-President. Further, as there has been no appropriation by Congress for the
respondent COMELEC to conduct an "unofficial" electronic transmission of results of the May 10,
2004 elections, any expenditure for the said purpose contravenes Article VI, Section 29 (par. 1) of
the Constitution.

On statutory grounds, the petitioner and petitioners-in-intervention contend that the assailed
resolution encroaches upon the authority of NAMFREL, as the citizens accredited arm, to conduct
the "unofficial" quick count as provided under pertinent election laws. It is, likewise, impugned for
violating Section 52(i) of the Omnibus Election Code, relating to the requirement of notice to the
political parties and candidates of the adoption of technological and electronic devices during the
elections.

For its part, the COMELEC preliminarily assails the jurisdiction of this Court to pass upon the
assailed resolutions validity claiming that it was promulgated in the exercise of the respondent
COMELECs executive or administrative power. It asserts that the present controversy involves a
"political question;" hence, beyond the ambit of judicial review. It, likewise, impugns the standing of
the petitioner to file the present petition, as he has not alleged any injury which he would or may
suffer as a result of the implementation of the assailed resolution.

On the merits, the respondent COMELEC denies that the assailed resolution was promulgated
pursuant to Rep. Act No. 8436, and that it is the implementation of Phase III of its modernization
program. Rather, as its bases, the respondent COMELEC invokes the general grant to it of the
power to enforce and administer all laws relative to the conduct of elections and to promulgate rules
and regulations to ensure free, orderly and honest elections by the Constitution, the Omnibus
Election Code, and Rep. Acts Nos. 6646 and 7166. The COMELEC avers that
granting arguendo that the assailed resolution is related to or connected with Phase III of the
modernization program, no specific law is violated by its implementation. It posits that Phases I, II
and III are mutually exclusive schemes such that, even if the first two phases have been scrapped,
the latter phase may still proceed independently of and separately from the others. It further argues
that there is statutory basis for it to conduct an "unofficial" quick count. Among others, it invokes the
general grant to it of the power "to ensure free, orderly, honest, peaceful and credible elections."
Finally, it claims that it had complied with Section 52(i) of the Omnibus Election Code, as the political
parties and all the candidates of the 2004 elections were sufficiently notified of the electronic
transmission of advanced election results.

The COMELEC trivializes as "purely speculative" these constitutional concerns raised by the
petitioners-in-intervention and the Senate President. It maintains that what is contemplated in the
assailed resolution is not a canvass of the votes but merely consolidation and transmittal thereof. As
such, it cannot be made the basis for the proclamation of any winning candidate. Emphasizing that
the project is "unofficial" in nature, the COMELEC opines that it cannot, therefore, be considered as
preempting or usurping the exclusive power of Congress to canvass the votes for President and
Vice-President.

The Issues

At the said hearing on May 8, 2004, the Court set forth the issues for resolution as follows:

1. Whether the petitioner and the petitioners-intervenors have standing to sue;

2. Assuming that they have standing, whether the issues they raise are political in nature
over which the Court has no jurisdiction;

3. Assuming the issues are not political, whether Resolution No. 6712 is void:

(a) for preempting the sole and exclusive authority of Congress under Art. VII, Sec. 4
of the 1987 Constitution to canvass the votes for the election of President and Vice-
President;

(b) for violating Art. VI, Sec. 29 (par. 1) of the 1987 Constitution that "no money shall
be paid out of the treasury except in pursuance of an appropriation made by law;"

(c) for disregarding Rep. Acts Nos. 8173, 8436 and 7166 which authorize only the
citizens arm to use an election return for an "unofficial" count;

(d) for violation of Sec. 52(i) of the Omnibus Election Code, requiring not less than
thirty (30) days notice of the use of new technological and electronic devices; and,

(e) for lack of constitutional or statutory basis; and,

4. Whether the implementation of Resolution No. 6712 would cause trending, confusion and
chaos.

The Ruling of the Court

The issues, as earlier defined, shall now be resolved in seriatim:

The Petitioners And Petitioners-In-Intervention Possess The Locus Standi To Maintain The
Present Action

The gist of the question of standing is whether a party has "alleged such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of difficult constitutional
questions.23 Since the implementation of the assailed resolution obviously involves the expenditure
of funds, the petitioner and the petitioners-in-intervention, as taxpayers, possess the requisite
standing to question its validity as they have sufficient interest in preventing the illegal expenditure of
money raised by taxation.24 In essence, taxpayers are allowed to sue where there is a claim of illegal
disbursement of public funds, or that public
money is being deflected to any improper purpose, or where the petitioners seek to restrain the
respondent from wasting public funds through the enforcement of an invalid or unconstitutional law.25

Most of the petitioners-in-intervention are also representatives of major political parties that have
participated in the May 10, 2004 elections. On the other hand, petitioners-in-intervention Concepcion
and Bernas represent the National Citizens Movement for Free Elections (NAMFREL), which is the
citizens arm authorized to conduct an "unofficial" quick count during the said elections. They have
sufficient, direct and personal interest in the manner by which the respondent COMELEC would
conduct the elections, including the counting and canvassing of the votes cast therein.

Moreover, the petitioners-in-intervention Drilon and De Venecia are, respectively, President of the
Senate and Speaker of the House of Representatives, the heads of Congress which is exclusively
authorized by the Constitution to canvass the votes for President and Vice-President. They have the
requisite standing to prevent the usurpation of the constitutional prerogative of Congress.

The Issue Raised By The Petition Is Justiciable

Article VIII, Section 1 of the 1987 Constitution expands the concept of judicial review by providing
that:

SEC. 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.

The Court does not agree with the posture of the respondent COMELEC that the issue
involved in the present petition is a political question beyond the jurisdiction of this Court to
review. As the leading case of Taada vs. Cuenco26 put it, political questions are concerned
with "issues dependent upon the wisdom, not legality of a particular measure."

The issue raised in the present petition does not merely concern the wisdom of the assailed
resolution but focuses on its alleged disregard for applicable statutory and constitutional provisions.
In other words, that the petitioner and the petitioners-in-intervention are questioning the legality of
the respondent COMELECs administrative issuance will not preclude this Court from exercising its
power of judicial review to determine whether or not there was grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of the respondent COMELEC in issuing Resolution No.
6712. Indeed, administrative issuances must not override, supplant or modify the law, but must
remain consistent with the law they intend to carry out.27 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.28 In the present petition, the Court must pass upon the petitioners contention
that Resolution No. 6712 does not have adequate statutory or constitutional basis.

Although not raised during the oral arguments, another procedural issue that has to be addressed is
whether the substantive issues had been rendered moot and academic. Indeed, the May 10, 2004
elections have come and gone. Except for the President and Vice-President, the newly- elected
national and local officials have been proclaimed. Nonetheless, the Court finds it necessary to
resolve the merits of the substantive issues for future guidance of both the bench and bar.29 Further,
it is settled rule that courts will decide a question otherwise moot and academic if it is "capable of
repetition, yet evading review."30

The Respondent COMELEC Committed Grave Abuse Of Discretion Amounting To Lack Or

Excess Of Jurisdiction In Issuing Resolution No. 6712

The preliminary issues having been thus resolved, the Court shall proceed to determine whether the
respondent COMELEC committed grave abuse of discretion amounting to lack or excess of
jurisdiction in promulgating the assailed resolution.

The Court rules in the affirmative.

An administrative body or tribunal acts without jurisdiction if it does not have the legal power to
determine the matter before it; there is excess of jurisdiction where the respondent, being clothed
with the power to determine the matter, oversteps its authority as determined by law.31 There is
grave abuse of discretion justifying the issuance of the writ of certiorari when there is a capricious
and whimsical exercise of his judgment as is equivalent to lack of jurisdiction.32

First. The assailed resolution usurps, under the guise of an "unofficial" tabulation of election results
based on a copy of the election returns, the sole and exclusive authority of Congress to canvass the
votes for the election of President and Vice-President. Article VII, Section 4 of the Constitution
provides in part:

The returns of every election for President and Vice-President duly certified by the board of
canvassers of each province or city, shall be transmitted to the Congress, directed to the
President of the Senate. Upon receipt of the certificates of canvass, the President of the
Senate shall, not later than thirty days after the day of the election, open all the certificates in
the presence of the Senate and the House of Representatives in joint public session, and the
Congress, upon determination of the authenticity and due execution thereof in the manner
provided by law, canvass the votes.

As early as January 28, 2004, Senate President Franklin M. Drilon already conveyed to Chairman
Benjamin S. Abalos, Sr. his deep-seated concern that the respondent COMELEC could not and
should not conduct any "quick count" of the votes cast for the positions of President and Vice-
President. In his Letter dated February 2, 200433addressed to Chairman Abalos, Senate President
Drilon reiterated his position emphasizing that "any quick count to be conducted by the Commission
on said positions would in effect constitute a canvass of the votes of the President and Vice-
President, which not only would be pre-emptive of the authority of Congress, but would also be
lacking of any constitutional authority."34

Nonetheless, in disregard of the valid objection of the Senate President, the COMELEC proceeded
to promulgate the assailed resolution. Such resolution directly infringes the authority of Congress,
considering that Section 4 thereof allows the use of the third copy of the Election Returns (ERs) for
the positions of President, Vice-President, Senators and Members of the House of Representatives,
intended for the COMELEC, as basis for the encoding and transmission of advanced precinct
results, and in the process, canvass the votes for the President and Vice-President, ahead of the
canvassing of the same votes by Congress.

Parenthetically, even the provision of Rep. Act No. 8436 confirms the constitutional undertaking of
Congress as the sole body tasked to canvass the votes for the President and Vice-President.
Section 24 thereof provides:

SEC. 24. Congress as the National Board of Canvassers for President and Vice-President. --
The Senate and the House of Representatives, in joint public session, shall compose the
national board of canvassers for president and vice-president. The returns of every election
for president and vice-president duly certified by the board of canvassers of each province or
city, shall be transmitted to the Congress, directed to the president of the Senate. Upon
receipt of the certificates of canvass, the president of the Senate shall, not later than thirty
(30) days after the day of the election, open all the certificates in the presence of the Senate
and the House of Representatives in joint public session, and the Congress upon
determination of the authenticity and the due execution thereof in the manner provided by
law, canvass all the results for president and vice-president by consolidating the results
contained in the data storage devices submitted by the district, provincial and city boards of
canvassers and thereafter, proclaim the winning candidates for president and vice-president.

The contention of the COMELEC that its tabulation of votes is not prohibited by the Constitution and
Rep. Act No. 8436 as such tabulation is "unofficial," is puerile and totally unacceptable. If the
COMELEC is proscribed from conducting an official canvass of the votes cast for the President and
Vice-President, the COMELEC is, with more reason, prohibited from making an "unofficial" canvass
of said votes.

The COMELEC realized its folly and the merits of the objection of the Senate President on the
constitutionality of the resolution that it decided not to conduct an "unofficial" quick count of the
results of the elections for President and Vice-President. Commissioner Sadain so declared during
the hearing:
 JUSTICE PUNO:

The word you are saying that within 36 hours after election, more or less, you will be able to
tell the people on the basis of your quick count, who won the election, is that it?

COMM. SADAIN:

Well, its not exactly like that, Your Honor. Because the fact of winning the election would
really depend on the canvassed results, but probably, it would already give a certain degree
of comfort to certain politicians to people rather, as to who are leading in the elections, as far
as Senator down are concerned, but not to President and Vice-President.

JUSTICE PUNO:

So as far as the Senatorial candidates involved are concerned, but you dont give this
assurance with respect to the Presidential and Vice-Presidential elections which are more
important?

COMM. SADAIN:

In deference to the request of the Senate President and the House Speaker, Your Honor.
According to them, they will be the ones canvassing and proclaiming the winner, so it is their
view that we will be pre-empting their canvassing work and the proclamation of the winners
and we gave in to their request.35

JUSTICE CALLEJO, [SR.]:

Perhaps what you are saying is that the system will minimize "dagdag-bawas" but not totally
eradicate "dagdag-bawas"?

COMM. SADAIN:

Yes, Your Honor.

JUSTICE CALLEJO, [SR.]:

Now, I heard either Atty. Bernas or Atty. Brillantes say (sic) that there was a conference
between the Speaker and the Senate President and the Chairman during which the Senate
President and the Speaker voice[d] their objections to the electronic transmission results
system, can you share with us the objections of the two gentlemen?

COMM. SADAIN:

These was relayed to us Your Honor and their objection or request rather was for us to
refrain from consolidating and publishing the results for presidential and vice-presidential
candidates which we have already granted Your Honors. So, there is going to be no
consolidation and no publication of the

COMM. SADAIN:

Reason behind being that it is actually Congress that canvass that the official canvass for
this and proclaims the winner.36

Second. The assailed COMELEC resolution contravenes the constitutional provision that "no money
shall be paid out of the treasury except in pursuance of an appropriation made by law."37

By its very terms, the electronic transmission and tabulation of the election results projected under
Resolution No. 6712 is "unofficial" in character, meaning "not emanating from or sanctioned or
acknowledged by the government or government body.38 Any disbursement of public funds to
implement this project is contrary to the provisions of the Constitution and Rep. Act No. 9206, which
is the 2003 General Appropriations Act. The use of the COMELEC of its funds appropriated for the
AES for the "unofficial" quick count project may even be considered as a felony under Article 217 of
the Revised Penal Code, as amended.39

Irrefragably, the implementation of the assailed resolution would entail, in due course, the hiring of
additional manpower, technical services and acquisition of equipment, including computers and
software, among others. According to the COMELEC, it needed 55,000,000 to operationalize the
project, including the encoding process.40Hence, it would necessarily involve the disbursement of
public funds for which there must be the corresponding appropriation.

The COMELEC posited during the hearing that the 2003 General Appropriations Act has
appropriated the amount needed for its "unofficial" tabulation. We quote the transcript of
stenographic notes taken during the hearing:

JUSTICE VITUG:

And you mentioned earlier something about 55 million not being paid as yet?

COMM. SADAIN:

This is an extra amount that we will be needing to operationalize.

JUSTICE VITUG:

And this has not yet been done?

COMM. SADAIN:

It has not yet been done, Your Honor.

JUSTICE VITUG:

Would you consider the funds that were authorized by you under the General Appropriations
Act as capable of being used for this purpose?

COMM. SADAIN:

Yes, thats our position, Your Honor.41

But then the COMELEC, through Commissioner Sadain, admitted during the said hearing that
although it had already approved the assailed resolution, it was still looking for the 55,000,000
needed to operationalize the project:

JUSTICE CARPIO:

Just a clarification. You stated that you signed already the main contract for 300 million but
you have not signed the 55 million supplemental contract for the encoding?

COMM. SADAIN:

Yes, Your Honor.

JUSTICE CARPIO:

Because you still dont have the money for that?

COMM. SADAIN:

Well, yes, we are trying to determine where we can secure the money.

JUSTICE CARPIO:
 Now, the encoding is crucial; without the encoding, the entire project collapses?

COMM. SADAIN:

Yes.42

Inexplicably, Commissioner Sadain contradicted himself when he said that its Financial Department
had already found the money, but that proper documentation was forthcoming:

JUSTICE CARPIO:

Just a clarification. You stated that you signed already the main contract for 300 million but
you have not signed the 55 million supplemental contract for the encoding?

COMM. SADAIN:

Yes, Your Honor.

JUSTICE CARPIO:

Because you still dont have the money for that?

COMM. SADAIN:

Well, yes, we are trying to determine where we can secure the money.

JUSTICE CARPIO:

Now, the encoding is crucial; without the encoding, the entire project collapses?

COMM. SADAIN:

Yes.

JUSTICE CARPIO:

So, you have two (2) days to look for the 55 million, you have signed the contract on the
main contract and if you dont get that 55 million, that 300 million main contract goes to
waste, because you cannot encode?

COMM. SADAIN:

Its just a matter of proper documentation, Your Honor, because I was informed by our
Finance Department that the money is there.

JUSTICE CARPIO:

So, you have found the money already?

COMM. SADAIN:

Yes, Your Honor.43

Earlier, during the April 27, 2004 meeting of the COMELEC En Banc, the Commissioners expressed
their serious concerns about the lack of funds for the project, the propriety of using the funds for
Phase III of its modernization, and the possibility of realigning funds to finance the project:

Comm. Tuason:

May I just request all the parties who are in here na whatever is said here should be confined
within the four walls of this room and the minutes so that walang masyadong problema.
Comm. Borra:

Sa akin lang, we respect each others opinion. I will not make any observations. I will just
submit my own memo to be incorporated in the minutes.

Comm. Tuason:

Commissioner Borra will submit a comment to be attached to the minutes but not on the
resolution. Ako naman, I will just make it on record my previous reservation. I do not have
any objection as to the Phase III modernization project itself. My main concern is the budget.
I would like to make it on record that the budget for Phase III should be taken from the
modernization program fund because Phase III is definitely part of the modernization project.
Other funds, for instance other funds to be used for national elections may not be proper for
realignment. That is why I am saying that the funds to be used for Phase III should properly
come from the modernization. The other reservation is that the Election Officers are now
plagued with so much work such as the preparation of the list of voters and their concern in
their respective areas. They were saying to me, specially so in my own region, that to burden
them with another training at this point in time will make them loose (sic) focus on what they
are really doing for the national elections and what they are saying is that they should not be
subjected to any training anymore. And they also said that come canvassing time, their
priority would be to canvass first before they prepare the certificate of votes to be fed to the
encoders [to be fed to the encoders] for electronic transmission. I share the sentiments of our
people in the field. That is also one of my reservations. Thank you.

Comm. Garcillano:

I also have my observations regarding the financial restraint that we are facing if the money
that is going to be used for this is taken from the Phase II, I dont think there is money left.

Comm. Borra:

There is no more money in Phase II because the budget for Phase II is 1.3 Billion. The
award on the contract for Phase II project is 1.248 billion. So the remaining has been
allocated for additional expenses for the technical working group and staff for Phase II.

Comm. Garcillano:

I also have one problem. We have to have additional people to man this which I think is
already being taken cared of. Third is, I know that this will disrupt the canvassing that is
going to be handled by our EO and Election Assistant. I do not know if it is given to
somebody (inaudible)

Comm. Tuason:

Those are your reservations.

Comm. Barcelona:

As far as I am concerned, I also have my reservations because I have the same experience
as Commissioner Tuason when I went to Region IX and Caraga. Our EOs and PES
expressed apprehension over the additional training period that they may have to undergo
although, they say, that if that is an order they will comply but it will be additional burden on
them. I also share the concern of Commissioner Tuason with regard to the budget that
should be taken from the modernization budget.

Comm. Borra:

For the minutes, my memo is already prepared. I will submit it in detail. On three
counts naman yan eh legal, second is technical/operational and third is financial.

Comm. Sadain:
 Ako naman, for my part as the CIC for Phase III, we were left with no choice but to
implement Phase III inasmuch as expenses has already been incurred in Phase III to the
tune of almost 100% at the time when the Phase II contract was nullified. So if we stop the
implementation of Phase III just because Phase II was nullified, which means that there
would be no consolidation and accounting consolidation for the machines, then it would be
again 300 million pesos down the drain. Necessarily there would be additional expense but
we see this as a consequence of the loss of Phase II. I share the view of Comm. Tuason that
as much as possible this should be taken from the modernization fund as much as this is
properly modernization concern. However, I would like to open myself to the possibility na in
case wala talaga, we might explore the possibility of realigning funds although that might
not (inaudible). Now with regards the legality, I think what Commissioner Borra has derived
his opinion but I would like to think the legality issue must have been settled already as early
as when we approved the modernization program involving all three phases although we
also grant the benefit of the argument for Commissioner Borra if he thinks that there is going
to be a legal gap for the loss of Phase II. With regards the concern with the Election Officers,
I also share the same concern. In fact, on this matter alone, we try to make the GI as simple
as possible so that whatever burden we will be giving to the EOs and EAs will be minimized.
As in fact, we will be recommending that the EOs will no longer be bothered to attend the
training. They can probably just sit in for the first hour and then they can go on with their
normal routine and then leave the encoders as well as the reception officers to attend the
training because there (sic) are the people who will really be doing the ministerial, almost
mechanical, work of encoding and transmitting the election results. Yun lang.44

We have reviewed Rep. Act No. 9206, the General Appropriations Act, which took effect on April 23,
2003 and find no appropriation for the project of the COMELEC for electronic transmission of
"unofficial" election results. What is appropriated therein is the amount of 225,000,000 of the capital
outlay for the modernization of the electoral system.

B. PROJECTS Maintenance & Other Capital Total

Operating Expenses Outlays
I. Locally-Funded Projects
a. For the Modernization of
225,000,000 225,000,000
Electoral System
b. FY 2003 Preparatory Activities
250,000,000 250,000,000
for National Elections
c. Upgrading of Voters Database 125,000,000 125,000,000
d. Conduct of Special Election to
fill the vacancy in the Third District 6,500,000 6,500,000
of Cavite
e. Implementation of Absentee
300,000,000 300,000,000
Voting Act of 2003 (RA 9189)
========== ========= ==========
Sub-Total, Locally-Funded Projects 681,500,000 225,000,000 300,000,000 45

Under paragraph 3 of the special provisions of Rep. Act No. 9206, the amount of 225,000,000 shall
be used primarily for the establishment of the AES prescribed under Rep. Act No. 8436, viz:

3. Modernization of Electoral System. The appropriations herein authorized for the

Modernization of the Electoral System in the amount of Two Hundred Twenty-Five Million
Pesos (225,000,000.00) shall be used primarily for the establishment of the automated
election system, prescribed under Republic Act No. 8436, particularly for the process of
voting, counting of votes and canvassing/consolidation of results of the national and local
elections.46

Section 52 of Rep. Act No. 9206 proscribes any change or modification in the expenditure items
authorized thereunder. Thus:
 Sec. 52. Modification of Expenditure Components. Unless specifically authorized in this Act,
no change or modification shall be made in the expenditure items in this Act and other
appropriations laws unless in cases of augmentation from savings in appropriations as
authorized under Section 25(5), Article VI of the 1987 Philippine Constitution.

Neither can the money needed for the project be taken from the COMELECs savings, if any,
because it would be violative of Article VI, Section 25 (5)47 of the 1987 Constitution.

The power to augment from savings lies dormant until authorized by law.48 In this case, no law has,
thus, far been enacted authorizing the respondent COMELEC to transfer savings from another item
in its appropriation, if there are any, to fund the assailed resolution. No less than the Secretary of the
Senate certified that there is no law appropriating any amount for an "unofficial" count and tabulation
of the votes cast during the May 10, 2004 elections:

CERTIFICATION

I hereby certify that per records of the Senate, Congress has not legislated any appropriation
intended to defray the cost of an unofficial count, tabulation or consolidation of the votes cast
during the May 10, 2004 elections.

May 11, 2004. Pasay City, Philippines.

What is worrisome is that despite the concerns of the Commissioners during its En Banc meeting on
April 27, 2004, the COMELEC nevertheless approved the assailed resolution the very next day. The
COMELEC had not executed any supplemental contract for the implementation of the project with
PMSI. Worse, even in the absence of a certification of availability of funds for the project, it approved
the assailed resolution.

Third. The assailed resolution disregards existing laws which authorize solely the duly-accredited
citizens arm to conduct the "unofficial" counting of votes. Under Section 27 of Rep. Act No. 7166, as
amended by Rep. Act No. 8173,49 and reiterated in Section 18 of Rep. Act No. 8436,50 the accredited
citizens arm - in this case, NAMFREL - is exclusively authorized to use a copy of the election
returns in the conduct of an "unofficial" counting of the votes, whether for the national or the local
elections. No other entity, including the respondent COMELEC itself, is authorized to use a copy of
the election returns for purposes of conducting an "unofficial" count. In addition, the second or third
copy of the election returns, while required to be delivered to the COMELEC under the
aforementioned laws, are not intended for undertaking an "unofficial" count. The aforesaid
COMELEC copies are archived and unsealed only when needed by the respondent COMELEC to
verify election results in connection with resolving election disputes that may be imminent. However,
in contravention of the law, the assailed Resolution authorizes the so-called Reception Officers
(RO), to open the second or third copy intended for the respondent COMELEC as basis for the
encoding and transmission of advanced "unofficial" precinct results. This not only violates the
exclusive prerogative of NAMFREL to conduct an "unofficial" count, but also taints the integrity of the
envelopes containing the election returns, as well as the returns themselves, by creating a gap in its
chain of custody from the Board of Election Inspectors to the COMELEC.

Fourth. Section 52(i) of the Omnibus Election Code, which is cited by the COMELEC as the statutory
basis for the assailed resolution, does not cover the use of the latest technological and election
devices for "unofficial" tabulations of votes. Moreover, the COMELEC failed to notify the authorized
representatives of accredited political parties and all candidates in areas affected by the use or
adoption of technological and electronic devices not less than thirty days prior to the effectivity of the
use of such devices. Section 52(i) reads:

SEC. 52. Powers and functions of the Commission on Elections. In addition to the powers
and functions conferred upon it by the Constitution, the Commission shall have exclusive
charge of the enforcement and administration of all laws relative to the conduct of elections
for the purpose of ensuring free, orderly and honest elections, and shall :

(i) Prescribe the use or adoption of the latest technological and electronic devices,
taking into account the situation prevailing in the area and the funds available for the
purpose: Provided, That the Commission shall notify the authorized representatives
 of accredited political parties and candidates in areas affected by the use or adoption
of technological and electronic devices not less than thirty days prior to the effectivity
of the use of such devices.

From the clear terms of the above provision, before the COMELEC may resort to and adopt the
latest technological and electronic devices for electoral purposes, it must act in accordance with the
following conditions:

(a) Take into account the situation prevailing in the area and the funds available for the
purpose; and,

(b) Notify the authorized representatives of accredited political parties and candidates in
areas affected by the use or adoption of technological and electronic devices not less than
thirty days prior to the effectivity of the use of such devices.

It is quite obvious that the purpose of this provision is to accord to all political parties and all
candidates the opportunity to object to the effectiveness of the proposed technology and devices,
and, if they are so minded not to object, to allow them ample time to field their own trusted personnel
especially in far flung areas and to take other necessary measures to ensure the reliability of the
proposed electoral technology or device.

As earlier pointed out, the assailed resolution was issued by the COMELEC despite most of the
Commissioners apprehensions regarding the legal, operational and financial impediments thereto.
More significantly, since Resolution No. 6712 was made effective immediately a day after its
issuance on April 28, 2004, the respondent COMELEC could not have possibly complied with the
thirty-day notice requirement provided under Section 52(i) of the Omnibus Election Code. This
indubitably violates the constitutional right to due process of the political parties and candidates. The
Office of the Solicitor General (OSG) concedes this point, as it opines that "the authorized
representatives of accredited political parties and candidates should have been notified of the
adoption of the electronic transmission of election returns nationwide at the latest on April 7, 2004,
April 8 and 9 being Holy Thursday and Good Friday, pursuant to Section 52(i) of the Omnibus
Election Code."51 Furthermore, during the hearing on May 18, 2004, Commissioner Sadain, who
appeared for the COMELEC, unabashedly admitted that it failed to notify all the candidates for the
2004 elections, as mandated by law:

JUSTICE CARPIO:

You stated that you have notified in writing all the political parties and candidates as required
in Section 52 (i)?

COMM. SADAIN:

Yes, Your Honor.

JUSTICE CARPIO:

Now, how many candidates are there nationwide now?

COMM. SADAIN:

I must admit you Honor we were not able to notify the candidates but we notified the
politicians.

JUSTICE CARPIO:

Yes, but what does the law state? Read the law please.

COMM. SADAIN:

Yes, Your Honor. I understand that it includes candidates.

JUSTICE CARPIO:
 And there are how many candidates nationwide running in this election?

COMM. SADAIN:

Hundreds of thousands, Your Honor.

JUSTICE CARPIO:

Hundreds of thousands, so you mean you just notified the political parties not the
candidates?

COMM. SADAIN:

Yes, Your Honor.

JUSTICE CARPIO:

And you think that is substantial compliance, you would notify how many political parties as
against hundreds of thousands of candidates?

COMM. SADAIN:

Yes, Your Honor, we notified the major political parties, Your Honor.

JUSTICE CARPIO:

Only the major political parties?

COMM. SADAIN:

Including party list?

JUSTICE CARPIO:

But not the candidates, individual candidates?

COMM. SADAIN:

We were not able to do that, Your Honor, I must admit.

JUSTICE CARPIO:

So, you did not notify hundreds of thousands of candidates?

COMM. SADAIN:

No, Your Honors.52

The respondent COMELEC has, likewise, failed to submit any resolution or document to prove that it
had notified all political parties of the intended adoption of Resolution No. 6712, in compliance with
Section 52(i) of the Omnibus Election Code. This notwithstanding the fact that even long before the
issuance of the assailed resolution, it had admittedly entered into a contract on April 15, 200353 and
acquired facilities pertaining to the implementation of the electronic transmission and official
tabulation of election results. As correctly pointed out by the petitioners-in-intervention, the
invitations dated January 15, 2004 regarding the January 20, 2004 COMELEC Conference with the
political parties on election security measures did not mention electronic transmission of advanced
results, much less the formal adoption of the purpose of the conference. Such "notices" merely
invited the addressee thereof or its/his authorized representative to a conference where the
COMELEC would show a sample of the official ballot to be used in the elections, discuss various
security measures that COMELEC had put in place, and solicit suggestions to improve the
administration of the polls.54 Further, the invitations purportedly sent out to the political
parties regarding the April 6, 2004 Field Test of the Electronic Transmission, Consolidation and
Dissemination System to be conducted by the COMELEC appear to have been sent out in the late
afternoon of April 5, 2004, after office hours. There is no showing that all the political parties
attended the Field Test, or received the invitations. More importantly, the said invitations did not
contain a formal notice of the adoption of a technology, as required by Section 52(i) of the Omnibus
Election Code.55

Fifth. The assailed resolution has no constitutional and statutory basis. That respondent COMELEC
is the sole body tasked to "enforce and administer all laws and regulations relative to the conduct of
an election, plebiscite, initiative, referendum and recall"56 and to ensure "free, orderly, honest,
peaceful and credible elections"57 is beyond cavil. That it possesses the power to promulgate rules
and regulations in the performance of its constitutional duties is, likewise, undisputed. However, the
duties of the COMELEC under the Constitution, Rep. Act No. 7166, and other election laws are
carried out, at all times, in its official capacity. There is no constitutional and statutory basis for the
respondent COMELEC to undertake a separate and an "unofficial" tabulation of results, whether
manually or electronically. Indeed, by conducting such "unofficial" tabulation of the results of the
election, the COMELEC descends to the level of a private organization, spending public funds for
the purpose. Besides, it is absurd for the COMELEC to conduct two kinds of electoral counts a
slow but "official" count, and an alleged quicker but "unofficial" count, the results of each may
substantially differ.

Clearly, the assailed resolution is an implementation of Phase III of the modernization program of the
COMELEC under Rep. Act No. 8436. Section 2 of the assailed resolution expressly refers to the
Phase III-Modernization Project of the COMELEC. Since this Court has already scrapped the
contract for Phase II of the AES, the COMELEC cannot as yet implement the Phase III of the
program. This is so provided in Section 6 of Rep. Act No. 8436.

SEC. 6. Authority to Use an Automated Election System. -- To carry out the above-stated policy, the
Commission on Elections, herein referred to as the Commission, is hereby authorized to use an
automated election system, herein referred to as the System, for the process of voting, counting of
votes and canvassing/consolidation of results of the national and local elections: Provided, however,
That for the May 11, 1998 elections, the System shall be applicable in all areas within the country
only for the positions of president, vice-president, senators and parties, organizations or coalitions
participating under the party-list system.

To achieve the purpose of this Act, the Commission is authorized to procure by purchase, lease or
otherwise, any supplies, equipment, materials and services needed for the holding of the elections
by an expedited process of public bidding of vendors, suppliers or lessors: Provided, That the
accredited political parties are duly notified of and allowed to observe but not to participate in the
bidding. If in spite of its diligent efforts to implement this mandate in the exercise of this authority, it
becomes evident by February 9, 1998 that the Commission cannot fully implementthe automated
election system for national positions in the May 11, 1998 elections, the elections for both national
and local positions shall be done manually except in the Autonomous Region in Muslim Mindanao
(ARMM) where the automated election system shall be used for all positions.

The AES provided in Rep. Act No. 8436 constitutes the entire "process of voting, counting of votes
and canvassing/consolidation of results of the national and local elections" corresponding to the
Phase I, Phase II and Phase III of the AES of the COMELEC. The three phases cannot be effected
independently of each other. The implementation of Phase II of the AES is a condition sine qua
non to the implementation of Phase III. The nullification by this Court of the contract for Phase II of
the System effectively put on hold, at least for the May 10, 2004 elections, the implementation of
Phase III of the AES.

Sixth. As correctly observed by the petitioner, there is a great possibility that the "unofficial" results
reflected in the electronic transmission under the supervision and control of the COMELEC would
significantly vary from the results reflected in the COMELEC official count. The latter follows the
procedure prescribed by the Omnibus Election Code, which is markedly different from the procedure
envisioned in the assailed resolution.

Under the Omnibus Election Code, after the votes are cast and the polls closed, the Board of
Election Inspectors (BEI) for each precinct is enjoined to publicly count the votes and record the
same simultaneously on the tally boards and on two sets of ERs. Each set of the ER is prepared in
eight (8) copies. After the ERs are accomplished, they are forwarded to the Municipal Board of
Canvassers (MBC), which would canvass all the ERs and proclaim the elected municipal officials. All
the results in the ERs are transposed to the statements of votes (SOVs) by precinct. These SOVs
are then transferred to the certificates of canvass (COCs) which are, in turn, brought to the
Provincial Board of Canvassers (PBC). Subsequently, the PBC would canvass all the COCs from
various municipalities and proclaim the elected provincial officials, including those to the House of
Representatives. The PBC would then prepare two sets of Provincial Certificates of Canvass
(PCOCs). One set is forwarded to Congress for its canvassing of the results for the President and
Vice-President. The other set is forwarded to the COMELEC for its canvassing of the results for
Senators.

As the results are transposed from one document to another, and as each document undergoes the
procedure of canvassing by various Boards of Canvassers, election returns and certificates of
canvass are objected to and at times excluded and/or deferred and not tallied, long after the pre-
proclamation controversies are resolved by the canvass boards and the COMELEC.

On the other hand, under the assailed resolution, the precinct results of each city and municipality
received by the ETCs would be immediately electronically transmitted to the NCC. Such data,
which have not undergone the process of canvassing, would expectedly be dissimilar to the data on
which the official count would be based.

Resultantly, the official and unofficial canvass, both to be administered by the respondent
COMELEC, would most likely not tally. In the past elections, the "unofficial" quick count conducted
by the NAMFREL had never tallied with that of the official count of the COMELEC, giving rise to
allegations of "trending" and confusion. With a second "unofficial" count to be conducted by the
official election body, the respondent COMELEC, in addition to its official count, allegations of
"trending," would most certainly be aggravated. As a consequence, the electoral process would be
undermined.

The only intimated utility claimed by the COMELEC for the "unofficial" electronic transmission count
is to avert the so-called "dagdag-bawas." The purpose, however, as the petitioner properly
characterizes it, is a total sham. The Court cannot accept as tenable the COMELECs profession
that from the results of the "unofficial" count, it would be able to validate the credibility of the official
tabulation. To sanction this process would in effect allow the COMELEC to preempt or prejudge an
election question or dispute which has not been formally brought before it for quasi-judicial
cognizance and resolutions.

Moreover, the Court doubts that the problem of "dagdag-bawas" could be addressed by the
implementation of the assailed resolution. It is observed that such problem arises because of the
element of human intervention. In the prevailing set up, there is human intervention because the
results are manually tallied, appreciated, and canvassed. On the other hand, the electronic
transmission of results is not entirely devoid of human intervention. The crucial stage of encoding the
precinct results in the computers prior to the transmission requires human intervention. Under the
assailed resolution, encoding is accomplished by employees of the PMSI. Thus, the problem of
"dagdag-bawas" could still occur at this particular stage of the process.

As it stands, the COMELEC "unofficial" quick count would be but a needless duplication of the
NAMFREL "quick" count, an illegal and unnecessary waste of government funds and effort.

Conclusion

The Court is mindful of the salutary goals that the respondent COMELEC had envisioned in
promulgating the assailed resolution, to wit: [t]o renew the publics confidence in the Philippine
Electoral System by:

1. Facilitating transparency in the process;

2. Ensuring the integrity of the results;

3. Reducing election results manipulation;

4. Providing timely, fast and accurate information to provide the public re election results;

5. Enabling the validation of its own official count and other counts;
 6. Having an audit trail in its own account.58

Doubtless, these are laudable intentions. But the rule of law requires that even the best intentions
must be carried out within the parameters of the Constitution and the law. Verily, laudable purposes
must be carried out by legal methods.59

WHEREFORE, the petition is GRANTED. The assailed Resolution No. 6712 dated April 28, 2004
issued by the Commission on Elections (COMELEC) En Banc is hereby declared NULL AND VOID.

SO ORDERED.
G.R. No. 83896 February 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 ORDOEZ, 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.

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.:p

These two (2) petitions were consolidated per resolution dated 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:

Sec. 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.

Sec. 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 his
primary position.

Sec. 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 instrumentality 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.
838153 and as Annex "B" in G.R. No. 838964 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 Ordoez, 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 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 I-XB. This "strained linkage" between the two provisions,
each addressed to a distinct and separate group of public officers one, the President and her
official family, and the other, public servants in general allegedly "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. . . . . .

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 construction and interpretation by the Secretary of Justice of
Section 13, Article VII and par. (2) of Section 7, Article I-XB 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 I-XB 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 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
I-XB 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 I-XB
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

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 of December 31, 1983."

Particularly odious and revolting to the people's 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. Tanco, 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; 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 I-XB 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 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.

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
cheeks 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 I-XB 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 I-XB 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. Respondents' interpretation that Section 13 of Article VII admits of the exceptions
found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the
framers of the Constitution as to when the high-ranking officials of the Executive Branch from the
President to Assistant Secretary, on the one hand, and the generality of civil servants from the rank
immediately below Assistant Secretary downwards, on the other, may hold any other 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 I-XB 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 I-XB 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 nave 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 I-XB
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 I-XB 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 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-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII;
or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and,
the Secretary of Justice being ex-officiomember 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 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 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 official's 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-officioChairman 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 representatives from the other offices. No new
appointments are necessary. 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 official's primary
functions. Examples of designations to positions by virtue of one's 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 Executive
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
supervision, thereby deprived of the means for control and 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 them
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 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 Blas 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 I-XB. 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 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
1w phi 1

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 adopting it than in the framers's
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 Ministers) 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 constitution's 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
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.

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 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 head's
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
haphazardness 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 academic 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 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.
G.R. No. 146710-15 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS
AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC.,
LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.

----------------------------------------

G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, respondent.

PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada
alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is
the President. The warring personalities are important enough but more transcendental are the
constitutional issues embedded on the parties' dispute. While the significant issues are many, the
jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine
style.

First, we take a view of the panorama of events that precipitated the crisis in the office of the
President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while
respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos
voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and the
respondent were to serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that
slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000.
Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and
accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.1

The expos immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto
Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech
entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from
Governor Singson from November 1998 to August 2000. He also charged that the petitioner took
from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege
speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then
headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator
Renato Cayetano) for joint investigation.2

The House of Representatives did no less. The House Committee on Public Order and Security,
then headed by Representative Roilo Golez, decided to investigate the expos of Governor Singson.
On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor
spearheaded the move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin
issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking
petitioner to step down from the presidency as he had lost the moral authority to govern.3 Two days
later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the
resignation of the petitioner.4 Four days later, or on October 17, former President Corazon C. Aquino
also demanded that the petitioner take the "supreme self-sacrifice" of resignation.5 Former President
Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as
Secretary of the Department of Social Welfare and Services6 and later asked for petitioner's
resignation.7 However, petitioner strenuously held on to his office and refused to resign.
The heat was on. On November 1, four (4) senior economic advisers, members of the Council of
Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime
Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip.8 On November 2,
Secretary Mar Roxas II also resigned from the Department of Trade and Industry.9 On November 3,
Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47
representatives defected from the ruling coalition, Lapian ng Masang Pilipino.10

The month of November ended with a big bang. In a tumultuous session on November 13, House
Speaker Villar transmitted the Articles of Impeachment11 signed by 115 representatives, or more
than 1/3 of all the members of the House of Representatives to the Senate. This caused political
convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as
Senate President. Speaker Villar was unseated by Representative Fuentebella.12 On November 20,
the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took
their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13

The political temperature rose despite the cold December. On December 7, the impeachment trial
started.14 The battle royale was fought by some of the marquee names in the legal profession.
Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and
Representatives Joker Arroyo, Wigberto Taada, Sergio Apostol, Raul Gonzales, Oscar Moreno,
Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They
were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez
and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice
Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City
Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried
Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and
during its course enjoyed the highest viewing rating. Its high and low points were the constant
conversational piece of the chattering classes. The dramatic point of the December hearings was the
testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she
was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on
documents involving a P500 million investment agreement with their bank on February 4, 2000.15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas.
When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On
January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness
stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan
who was facing charges of insider trading.16 Then came the fateful day of January 16, when by a
vote of 11-1017 the senator-judges ruled against the opening of the second envelope which allegedly
contained evidence showing that petitioner held P3.3 billion in a secret bank account under the
name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In
disgust, Senator Pimentel resigned as Senate President.18 The ruling made at 10:00 p.m. was met
by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had
assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner
and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their
collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.19Senator Raul Roco quickly moved for the indefinite postponement of the
impeachment proceedings until the House of Representatives shall have resolved the issue of
resignation of the public prosecutors. Chief Justice Davide granted the motion.20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer
line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on
Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding
petitioner's resignation. Students and teachers walked out of their classes in Metro Manila to show
their concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics
of persuasion, attracted more and more people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner
informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the
Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a
snap election for President where he would not be a candidate. It did not diffuse the growing crisis.
At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the
chiefs of all the armed services went to the EDSA Shrine.22 In the presence of former Presidents
Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared
that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to
announce that we are withdrawing our support to this government."23 A little later, PNP Chief,
Director General Panfilo Lacson and the major service commanders gave a similar stunning
announcement.24 Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau
chiefs quickly resigned from their posts.25 Rallies for the resignation of the petitioner exploded in
various parts of the country. To stem the tide of rage, petitioner announced he was ordering his
lawyers to agree to the opening of the highly controversial second envelope.26There was no turning
back the tide. The tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the
peaceful and orderly transfer of power started at Malacaang'' Mabini Hall, Office of the Executive
Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing,
Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head
of the Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was
represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo
and now Secretary of Justice Hernando Perez.27 Outside the palace, there was a brief encounter at
Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing and caused
minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice
Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President
of the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacaang Palace.29 He
issued the following press statement:30

"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of
unity and order in our civil society.

It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in to promotion of a constructive national

spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter:31

"Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20.23 Another
copy was transmitted to Senate President Pimentel on the same day although it was received only at
9:00 p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the
powers the duties of the Presidency. On the same day, this Court issued the following Resolution in
Administrative Matter No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-Arroyo to Take
her Oath of Office as President of the Republic of the Philippines before the Chief Justice
Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as
President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by
a letter to the Court, dated January 20, 2001, which request was treated as an administrative
matter, the court Resolve unanimously to confirm the authority given by the twelve (12)
members of the Court then present to the Chief Justice on January 20, 2001 to administer
the oath of office of Vice President Gloria Macapagal-Arroyo as President of the Philippines,
at noon of January 20, 2001.

This resolution is without prejudice to the disposition of any justiciable case that may be filed
by a proper party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.34 Recognition of respondent Arroyo's government by foreign governments swiftly followed.
On January 23, in a reception or vin d' honneur at Malacaang, led by the Dean of the Diplomatic
Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the
government of respondent Arroyo.35 US President George W. Bush gave the respondent a telephone
call from the White House conveying US recognition of her government.36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37The House then passed Resolution No. 175 "expressing the full support of the
House of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo,
President of the Philippines."38 It also approved Resolution No. 176 "expressing the support of the
House of Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo
as President of the Republic of the Philippines, extending its congratulations and expressing its
support for her administration as a partner in the attainment of the nation's goals under the
Constitution."39

On January 26, the respondent signed into law the Solid Waste Management Act.40 A few days later,
she also signed into law the Political Advertising ban and Fair Election Practices Act.41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and
John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge on the
legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-
Oreta and Robert Barbers were absent.44 The House of Representatives also approved Senator
Guingona's nomination in Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice
President two (2) days later.46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court
is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the
record" that she voted against the closure of the impeachment court on the grounds that the Senate
had failed to decide on the impeachment case and that the resolution left open the question of
whether Estrada was still qualified to run for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked
up from 16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey conducted by
the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide
accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that
President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71%
in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted
by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass
class, and 54% among the E's or very poor class.50
After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several
cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1)
OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft
and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption
on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct, violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-
00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder,
forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756
filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use
of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera,
et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829,
PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on
December 4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to investigate
the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P.
Gervasio with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo
Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an
Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as well as
other supporting documents in answer to the aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No.
146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to
enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-
00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his
office, until after the term of petitioner as President is over and only if legally warranted." Thru
another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for
judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the
Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have
taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to
the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same day,
February 6, required the respondents "to comment thereon within a non-extendible period expiring
on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15
and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February
15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the
hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves
on motion of petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of
counsel Saguisag that they have "compromised themselves by indicating that they have thrown their
weight on one side" but nonetheless inhibited themselves. Thereafter, the parties were given the
short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous
replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and press
statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue a
press statement justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain
of being cited for contempt to refrain from making any comment or discussing in public the
merits of the cases at bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his office
against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news
reports that the respondent Ombudsman may immediately resolve the cases against
petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001,
which action will make the cases at bar moot and academic."53
The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted
for decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a
President on leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still
President, whether he is immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial
publicity.

We shall discuss the issues in seriatim.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political question, and
hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress that
respondent Arroyo ascended the presidency through people power; that she has already taken her
oath as the 14th President of the Republic; that she has exercised the powers of the presidency and
that she has been recognized by foreign governments. They submit that these realities on ground
constitute the political thicket, which the Court cannot enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the
shroud on political question but its exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which rests on the principle of separation of
powers and on prudential considerations, continue to be refined in the mills of constitutional law.55 In
the United States, the most authoritative guidelines to determine whether a question is political were
spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz:

"x x x Prominent 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 non-
judicial discretion; or the impossibility of a court's 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
embarrassment from multifarious pronouncements by various departments on question.
Unless one of these formulations is inextricable from the case at bar, there should be no
dismissal for non justiciability on the ground of a political question's presence. The doctrine
of which we treat is one of 'political questions', not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer
delineation of the inner and outer perimeters of a political question.57 Our leading case is Tanada v.
Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held that 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 the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987
Constitution has narrowed the reach of the political question doctrine when it expanded the power of
judicial review of this court not only to settle actual controversies involving rights which are legally
demandable and enforceable but also 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 government.59 Heretofore, the judiciary has focused on the "thou shalt not's" of
the Constitution directed against the exercise of its jurisdiction.60With the new provision, however,
courts are given a greater prerogative to determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
government. Clearly, the new provision did not just grant the Court power of doing nothing. In
sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so
called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this
Court in limpid language to "x x x 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 (of habeas corpus) or the extension thereof x x x."

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A.
Lozano v. President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that
since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they
present a political question. A more cerebral reading of the cited cases will show that they are
inapplicable. In the cited cases, we held that the government of former President Aquino was the
result of a successful revolution by the sovereign people, albeit a peaceful one. No less than
the Freedom Constitution63 declared that the Aquino government was installed through a direct
exercise of the power of the Filipino people "in defiance of the provisions of the 1973
Constitution, as amended." In is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial scrutiny for that government automatically
orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo
is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the
1987 Constitution.64 In her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under
the authority of the 1987 Constitution.1wphi1.nt

In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA
I involves the exercise of the people power of revolution which overthrew the whole
government. EDSA II is an exercise of people power of freedom of speech and freedom of
assembly to petition the government for redress of grievances which only affected the office
of the President. EDSA I is extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the
resignation of the sitting President that it caused and the succession of the Vice President as
President are subject to judicial review. EDSA I presented a political question; EDSA II involves
legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition
the government for redress of grievance which are the cutting edge of EDSA People Power II is
not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was
one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the
clarion call for the recognition of freedom of the press of the Filipinos and included it as among "the
reforms sine quibus non."65 The Malolos Constitution, which is the work of the revolutionary
Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to
freely express his ideas or opinions, orally or in writing, through the use of the press or other similar
means; (2) of the right of association for purposes of human life and which are not contrary to public
means; and (3) of the right to send petitions to the authorities, individually or collectively." These
fundamental rights were preserved when the United States acquired jurisdiction over the
Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by
President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and petition the
Government for redress of grievances." The guaranty was carried over in the Philippine Bill, the Act
of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966.66
Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution.
These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for
redress of grievances."

The indispensability of the people's freedom of speech and of assembly to democracy is now self-
evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means
of assuring individual fulfillment; second, it is an essential process for advancing knowledge and
discovering truth; third, it is essential to provide for participation in decision-making by all members
of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable
community of maintaining the precarious balance between healthy cleavage and necessary
consensus."69 In this sense, freedom of speech and of assembly provides a framework in
which the "conflict necessary to the progress of a society can take place without destroying
the society."70In Hague v. Committee for Industrial Organization,71 this function of free speech
and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the American
Bar Association which emphasized that "the basis of the right of assembly is the substitution of the
expression of opinion and belief by talk rather than force; and this means talk for all and by
all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court similar stressed that
" it should be clear even to those with intellectual deficits that when the sovereign people
assemble to petition for redress of grievances, all should listen. For in a democracy, it is the
people who count; those who are deaf to their grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions. The principal issues for
resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably
section 1 of Article II,74 and section 875 of Article VII, and the allocation of governmental powers
under section 1176 of Article VII. The issues likewise call for a ruling on the scope of presidential
immunity from suit. They also involve the correct calibration of the right of petitioner against
prejudicial publicity. As early as the 1803 case of Marbury v. Madison,77 the doctrine has been laid
down that "it is emphatically the province and duty of the judicial department to say what the
law is . . ." Thus, respondent's in vocation of the doctrine of political question is but a foray in the
dark.

II

Whether or not the petitioner

Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political
question. Indeed, it involves a legal question whose factual ingredient is determinable from the
records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that
he suffers from a permanent disability. Hence, he submits that the office of the President was not
vacant when respondent Arroyo took her oath as President.

The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which
provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the
President, the Vice President shall become the President to serve the unexpired term. In
case of death, permanent disability, removal from office, or resignation of both the President
and Vice President, the President of the Senate or, in case of his inability, the Speaker of the
House of Representatives, shall then act as President until the President or Vice President
shall have been elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered resigned as
of January 20, 2001 when respondent took her oath as the 14th President of the Public. Resignation
is not a high level legal abstraction. It is a factual question and its elements are beyond
quibble: there must be an intent to resign and the intent must be coupled by acts of
relinquishment.78 The validity of a resignation is not government by any formal requirement as to
form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation
is clear, it must be given legal effect.
In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before
he evacuated Malacaang Palace in the afternoon of January 20, 2001 after the oath-taking of
respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his
act and omissions before, during and after January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and circumstantial evidence bearing a material
relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow
the succession of events after the expos of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher chance of succeeding snowballed. In
express speed, it gained the signatures of 115 representatives or more than 1/3 of the House of
Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo
quit as Secretary of Social Welfare. Senate President Drilon and former Speaker Villar defected with
47 representatives in tow. Then, his respected senior economic advisers resigned together with his
Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation intensified.
The call reached a new crescendo when the eleven (11) members of the impeachment tribunal
refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of
January 16 was over, the EDSA Shrine was swarming with people crying for redress of their
grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the
countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals
that in the morning of January 19, petitioner's loyal advisers were worried about the swelling of the
crowd at EDSA, hence, they decided to create an ad hoc committee to handle it. Their worry would
worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential
residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious.
Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap
presidential election and stressed he would not be a candidate. The proposal for a snap
election for president in May where he would not be a candidate is an indicium that petitioner
had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the
sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced
the AFP's withdrawal of support from the petitioner and their pledge of support to respondent Arroyo.
The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he
asked Senator Pimentel to advise petitioner to consider the option of "dignified exit or
resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful
and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to
go abroad with enough funds to support him and his family.83 Significantly, the petitioner
expressed no objection to the suggestion for a graceful and dignified exit but said he would
never leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie
(Reyes) guaranteed that I would have five days to a week in the palace."85 This is proof that
petitioner had reconciled himself to the reality that he had to resign. His mind was already
concerned with the five-day grace period he could stay in the palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary
Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure
a) peaceful and orderly transfer of power."86 There was no defiance to the request. Secretary
Angara readily agreed. Again, we note that at this stage, the problem was already about a
peaceful and orderly transfer of power. The resignation of the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m.
of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the
transition period of five days after the petitioner's resignation; (2) the guarantee of the safety of the
petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name
of the petitioner.87 Again, we note that the resignation of petitioner was not a disputed point.
The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m.,
he briefed the petitioner on the three points and the following entry in the Angara Diary shows the
reaction of the petitioner, viz:

"x x x

I explain what happened during the first round of negotiations. The President immediately
stresses that he just wants the five-day period promised by Reyes, as well as to open the
second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod
na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this
it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear
when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the
following happened:

"Opposition's deal

7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene
Corona. For this round, I am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20 January 2001, that will
be effective on Wednesday, 24 January 2001, on which day the Vice President will assume
the Presidency of the Republic of the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice President to various
positions and offices of the government shall start their orientation activities in coordination
with the incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function
under the Vice President as national military and police authority effective immediately.

4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the
security of the President and his family as approved by the national military and police
authority (Vice President).

5. It is to be noted that the Senate will open the second envelope in connection with the
alleged savings account of the President in the Equitable PCI Bank in accordance with the
rules of the Senate, pursuant to the request to the Senate President.

Our deal

We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and undertake
as follows:

'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria
Macapagal-Arroyo.
 '2. In return, President Estrada and his families are guaranteed security and safety of their
person and property throughout their natural lifetimes. Likewise, President Estrada and his
families are guarantee freedom from persecution or retaliation from government and the
private sector throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through
the Chief of Staff, as approved by the national military and police authorities Vice President
(Macapagal).

'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will
authorize the opening of the second envelope in the impeachment trial as proof that the
subject savings account does not belong to President Estrada.

'4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the
'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing
from the outgoing Cabinet officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police (PNP) shall function
Vice President (Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all
the necessary signatures as affixed to this agreement and insure faithful implementation and
observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in "Annex A" heretofore attached to this agreement."89

The second round of negotiation cements the reading that the petitioner has resigned. It will be
noted that during this second round of negotiation, the resignation of the petitioner was again treated
as a given fact. The only unsettled points at that time were the measures to be undertaken by the
parties during and after the transition period.

According to Secretary Angara, the draft agreement, which was premised on the resignation of the
petitioner was further refined. It was then, signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing
by the party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the
fateful events, viz;90

"xxx

11:00 a.m. Between General Reyes and myself, there is a firm agreement on the five
points to effect a peaceful transition. I can hear the general clearing all these points with a
group he is with. I hear voices in the background.

Agreement.

The agreement starts: 1. The President shall resign today, 20 January 2001, which
resignation shall be effective on 24 January 2001, on which day the Vice President will
assume the presidency of the Republic of the Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20
January 2001, wherein persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety
and security of the President and his families throughout their natural lifetimes as approved
by the national military and police authority Vice President.
'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President
as national military and police authorities.

'5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject savings
account does not belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex
"B" heretofore attached to this agreement.

11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed by
our side and awaiting the signature of the United opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided
that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What
about the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this matter
is already moot and academic. Within moments, Macel erases the first provision and faxes
the documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel
and General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of
the other side, as it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal

12 noon Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. The PSG distributes firearms to some people inside the compound.

The president is having his final meal at the presidential Residence with the few friends and
Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola.
Only the PSG is there to protect the Palace, since the police and military have already
withdrawn their support for the President.

1 p.m. The President's personal staff is rushing to pack as many of the Estrada family's
personal possessions as they can.

During lunch, Ronnie Puno mentions that the president needs to release a final statement
before leaving Malacaang.

The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo
took her oath as President of the Republic of the Philippines. While along with many other
legal minds of our country, I have strong and serious doubts about the legality and
 constitutionality of her proclamation as President, I do not wish to be a factor that will prevent
the restoration of unity and order in our civil society.

It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his
leaving Malacaang. In the press release containing his final statement, (1) he acknowledged the
oath-taking of the respondent as President of the Republic albeit with reservation about its legality;
(2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and
in order to begin the healing process of our nation. He did not say he was leaving the Palace due to
any kind inability and that he was going to re-assume the presidency as soon as the disability
disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without
doubt, he was referring to the past opportunity given him to serve the people as President (4) he
assured that he will not shirk from any future challenge that may come ahead in the same service of
our country. Petitioner's reference is to a future challenge after occupying the office of the president
which he has given up; and (5) he called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of
reconciliation and solidarity could not be attained if he did not give up the presidency. The press
release was petitioner's valedictory, his final act of farewell. His presidency is now in the part tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave dated January
20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited.
Again, we refer to the said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the
cases at bar did not discuss, may even intimate, the circumstances that led to its preparation.
Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral
argument. It strikes the Court as strange that the letter, despite its legal value, was never referred to
by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its
existence when he issued his final press release. It was all too easy for him to tell the Filipino people
in his press release that he was temporarily unable to govern and that he was leaving the reins of
government to respondent Arroyo for the time bearing. Under any circumstance, however, the
mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press
release of the petitioner clearly as a later act. If, however, it was prepared after the press released,
still, it commands scant legal significance. Petitioner's resignation from the presidency cannot be the
subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his
reputation by the people. There is another reason why this Court cannot given any legal significance
to petitioner's letter and this shall be discussed in issue number III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that he could not
resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft
and Corrupt Practices Act, which allegedly prohibits his resignation, viz:
 "Sec. 12. No public officer shall be allowed to resign or retire pending an investigation,
criminals or administrative, or pending a prosecution against him, for any offense under this
Act or under the provisions of the Revised Penal Code on bribery."

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner.
RA No. 3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted
to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However,
in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose
during the period of amendments the inclusion of a provision to the effect that no public official who
is under prosecution for any act of graft or corruption, or is under administrative investigation, shall
be allowed to voluntarily resign or retire."92 During the period of amendments, the following provision
was inserted as section 15:

"Sec. 15. Termination of office No public official shall be allowed to resign or retire pending
an investigation, criminal or administrative, or pending a prosecution against him, for any
offense under the Act or under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official form office shall not be a bar to his
prosecution under this Act for an offense committed during his incumbency."93

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second
paragraph of the provision and insisted that the President's immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed.
Section 15 above became section 13 under the new bill, but the deliberations on this particular
provision mainly focused on the immunity of the President, which was one of the reasons for the
veto of the original bill. There was hardly any debate on the prohibition against the resignation or
retirement of a public official with pending criminal and administrative cases against him. Be that as
it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement
from being used by a public official as a protective shield to stop the investigation of a pending
criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law
or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled
to render service for that would be a violation of his constitutional right.94 A public official has the right
not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a
public official is facing administrative or criminal investigation or prosecution, such resignation or
retirement will not cause the dismissal of the criminal or administrative proceedings against him. He
cannot use his resignation or retirement to avoid prosecution.

There is another reason why petitioner's contention should be rejected. In the cases at bar, the
records show that when petitioner resigned on January 20, 2001, the cases filed against him before
the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-
1758. While these cases have been filed, the respondent Ombudsman refrained from conducting the
preliminary investigation of the petitioner for the reason that as the sitting President then, petitioner
was immune from suit. Technically, the said cases cannot be considered as pending for the
Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be
invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not
suffer from any insuperable legal obstacle like the immunity from suit of a sitting President.

Petitioner contends that the impeachment proceeding is an administrative investigation that, under
section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an
impeachment proceeding is debatable. But even assuming arguendo that it is an administrative
proceeding, it can not be considered pending at the time petitioner resigned because the process
already broke down when a majority of the senator-judges voted against the opening of the second
envelope, the public and private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There
was, in effect, no impeachment case pending against petitioner when he resigned.

III

Whether or not the petitioner Is only temporarily unable to Act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform
the powers and duties of the presidency, and hence is a President on leave. As aforestated, the
inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to
Senate President Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability
of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that
"Congress has the ultimate authority under the Constitution to determine whether the President is
incapable of performing his functions in the manner provided for in section 11 of article VII."95 This
contention is the centerpiece of petitioner's stance that he is a President on leave and respondent
Arroyo is only an Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker
of the House of Representatives his written declaration that he is unable to discharge the
powers and duties of his office, and until he transmits to them a written declaration to the
contrary, such powers and duties shall be discharged by the Vice-President as Acting
President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the
Senate and to the Speaker of the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office, the Vice-President shall
immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker
of the House of Representatives his written declaration that no inability exists, he shall
reassume the powers and duties of his office. Meanwhile, should a majority of all the
Members of the Cabinet transmit within five days to the President of the Senate and to the
Speaker of the House of Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the Congress shall decide the issue.
For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours,
in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in
session, within twelve days after it is required to assemble, determines by a two-thirds vote
of both Houses, voting separately, that the President is unable to discharge the powers and
duties of his office, the Vice-President shall act as President; otherwise, the President shall
continue exercising the powers and duties of his office."

That is the law. Now, the operative facts:

1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as President on
January 20, 2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on January 24,
2001 House Resolution No. 175;96

On the same date, the House of the Representatives passed House Resolution No. 17697 which
states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES

TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-
ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION
AS A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE
CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of former

President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines,
the Philippine National Police and majority of his cabinet had withdrawn support from him;
 WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President
Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001
before Chief Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended

their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of
the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of

national healing and reconciliation with justice for the purpose of national unity and
development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is

divided, thus by reason of the constitutional duty of the House of Representatives as an
institution and that of the individual members thereof of fealty to the supreme will of the
people, the House of Representatives must ensure to the people a stable, continuing
government and therefore must remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to

unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be
an instrument of national reconciliation and solidarity as it is a direct representative of the
various segments of the whole nation;

WHEREAS, without surrending its independence, it is vital for the attainment of all the
foregoing, for the House of Representatives to extend its support and collaboration to the
administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest demanding no less: Now,
therefore, be it

Resolved by the House of Representatives, To express its support to the assumption into
office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, to extend its congratulations and to express its support for her administration as
a partner in the attainment of the Nation's goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which
states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S

NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to
the Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event
of such vacancy shall nominate a Vice President from among the members of the Senate
and the House of Representatives who shall assume office upon confirmation by a majority
vote of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of
the Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true

statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the Philippines qualities which merit his
nomination to the position of Vice President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of

Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of
the Senate signed the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs
unity of purpose and resolve cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in
unity despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President

Gloria Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S

NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and
the House of Representatives who shall assume office upon confirmation by a majority vote
of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;
 WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
Secretary of Justice, Senator of the land - which qualities merit his nomination to the position
of Vice President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto
T. Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate Resolution No.
83101 which states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS

OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court
is functus officioand has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15,
Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the "second
envelope" be transferred to the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof
shall be made only upon written approval of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to be
held simultaneously with the regular election on May 14, 2001 and the Senatorial candidate
garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of
Senator Teofisto T. Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo
as President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from
any sector of government, and without any support from the Armed Forces of the Philippines and the
Philippine National Police, the petitioner continues to claim that his inability to govern is only
momentary.
What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the
premise that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly
rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary inability
of petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing
respondent Arroyo as president of the Philippines. Following Taada v. Cuenco,102 we hold that this
Court cannot exercise its judicial power or this is an issue "in regard to which full discretionary
authority has been delegated to the Legislative xxx branch of the government." Or to use the
language in Baker vs. Carr,103 there is a "textually demonstrable or a lack of judicially discoverable
and manageable standards for resolving it." Clearly, the Court cannot pass upon petitioner's claim of
inability to discharge the power and duties of the presidency. The question is political in nature
and addressed solely to Congress by constitutional fiat. It is a political issue, which cannot be
decided by this Court without transgressing the principle of separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully
claim that he is a President on leave on the ground that he is merely unable to govern
temporarily. That claim has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure, president made by a co-equal branch of government cannot be
reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent
Ombudsman should be prohibited because he has not been convicted in the impeachment
proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal
or civil.

Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In
the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a
Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands.
J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of
Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a writ
of prohibition, this Court, speaking thru Mr. Justice Johnson, held:

" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no
authority to touch the acts of the Governor-General; that he may, under cover of his office,
do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny,
under the guise of the execution of the law, could walk defiantly abroad, destroying rights of
person and of property, wholly free from interference of courts or legislatures. This does not
mean, either that a person injured by the executive authority by an act unjustifiable under the
law has n remedy, but must submit in silence. On the contrary, it means, simply, that the
governors-general, like the judges if the courts and the members of the Legislature, may not
be personally mulcted in civil damages for the consequences of an act executed in the
performance of his official duties. The judiciary has full power to, and will, when the mater is
properly presented to it and the occasion justly warrants it, declare an act of the Governor-
General illegal and void and place as nearly as possible in status quo any person who has
been deprived his liberty or his property by such act. This remedy is assured to every
person, however humble or of whatever country, when his personal or property rights have
been invaded, even by the highest authority of the state. The thing which the judiciary can
not do is mulct the Governor-General personally in damages which result from the
performance of his official duty, any more than it can a member of the Philippine Commission
of the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally
sued at all in relation to acts which he claims to perform as such official. On the contrary, it
clearly appears from the discussion heretofore had, particularly that portion which touched
the liability of judges and drew an analogy between such liability and that of the Governor-
 General, that the latter is liable when he acts in a case so plainly outside of his power and
authority that he can not be said to have exercised discretion in determining whether or not
he had the right to act. What is held here is that he will be protected from personal liability for
damages not only when he acts within his authority, but also when he is without authority,
provided he actually used discretion and judgement, that is, the judicial faculty, in
determining whether he had authority to act or not. In other words, in determining the
question of his authority. If he decide wrongly, he is still protected provided the question of
his authority was one over which two men, reasonably qualified for that position, might
honestly differ; but he s not protected if the lack of authority to act is so plain that two such
men could not honestly differ over its determination. In such case, be acts, not as Governor-
General but as a private individual, and as such must answer for the consequences of his
act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity
from suit, viz"xxx. Action upon important matters of state delayed; the time and substance of the
chief executive spent in wrangling litigation; disrespect engendered for the person of one of the
highest officials of the state and for the office he occupies; a tendency to unrest and disorder
resulting in a way, in distrust as to the integrity of government itself."105

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity.
Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the
1973 Constitution was born. In 1981, it was amended and one of the amendments involved
executive immunity. Section 17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever
shall lie for official acts done by him or by others pursuant to his specific orders during his
tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article
XVII of this Constitution.

In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The
King's Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned
counsel, former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications
effected by this constitutional amendment on the existing law on executive privilege. To quote his
disquisition:

"In the Philippines, though, we sought to do the Americans one better by enlarging and
fortifying the absolute immunity concept. First, we extended it to shield the President not only
form civil claims but also from criminal cases and other claims. Second, we enlarged its
scope so that it would cover even acts of the President outside the scope of official duties.
And third, we broadened its coverage so as to include not only the President but also other
persons, be they government officials or private individuals, who acted upon orders of the
President. It can be said that at that point most of us were suffering from AIDS (or absolute
immunity defense syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of
executive immunity in the 1973 Constitution. The move was led by them Member of Parliament, now
Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to
President Marcos violated the principle that a public office is a public trust. He denounced the
immunity as a return to the anachronism "the king can do no wrong."107 The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People
Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The following explanation was given by
delegate J. Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the
immunity provision for the President. I agree with Commissioner Nolledo that the Committee
did very well in striking out second sentence, at the very least, of the original provision on
immunity from suit under the 1973 Constitution. But would the Committee members not
agree to a restoration of at least the first sentence that the President shall be immune from
 suit during his tenure, considering that if we do not provide him that kind of an immunity, he
might be spending all his time facing litigation's, as the President-in-exile in Hawaii is now
facing litigation's almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history. We reject his argument
that he cannot be prosecuted for the reason that he must first be convicted in the impeachment
proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the
prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001,
the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus
Officio."109 Since, the Impeachment Court is now functus officio, it is untenable for petitioner to
demand that he should first be impeached and then convicted before he can be prosecuted. The
plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to
commend itself for it will place him in a better situation than a non-sitting President who has not been
subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be
sure, the debates in the Constitutional Commission make it clear that when impeachment
proceedings have become moot due to the resignation of the President, the proper criminal and civil
cases may already be filed against him, viz:110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the
President, for example, and the President resigns before judgement of conviction has been
rendered by the impeachment court or by the body, how does it affect the impeachment
proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says, the
criminal and civil aspects of it may continue in the ordinary courts."

This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and tenure"
but not beyond. Considering the peculiar circumstance that the impeachment process against the
petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand
as a condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted
in the impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan112 and
related cases113 are inapropos for they have a different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President.
The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery
and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which
carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president.
Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and
wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an
inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of public
officials are not acts of the State and the officer who acts illegally is not acting as such but stands in
the same footing as any trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination
to expand the privilege especially when it impedes the search for truth or impairs the vindication of a
right. In the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was
subpoenaed to produce certain recordings and documents relating to his conversations with aids
and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to
obstruct Justice and other offenses, which were committed in a burglary of the Democratic National
Headquarters in Washington's Watergate Hotel during the 972 presidential campaign. President
Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the
subpoena on the ground, among others, that the President was not subject to judicial process and
that he should first be impeached and removed from office before he could be made amenable to
judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the
ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based
only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of
due process of law in the fair administration of criminal justice." In the 1982 case of Nixon v.
Fitzgerald,116 the US Supreme Court further held that the immunity of the president from civil
damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate
this doctrine in the case of Clinton v. Jones117 where it held that the US President's immunity from
suits for money damages arising out of their official acts is inapplicable to unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity
in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public
trust.118 It declared as a state policy that "the State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruptio."119 it ordained that
"public officers and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency act with patriotism and justice, and lead modest
lives."120 It set the rule that 'the right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees, shall not be barred by
prescription, latches or estoppel."121 It maintained the Sandiganbayan as an anti-graft court.122 It
created the office of the Ombudsman and endowed it with enormous powers, among which is to
"investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust improper or
inefficient."123 The Office of the Ombudsman was also given fiscal autonomy.124 These constitutional
policies will be devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity
from suit for criminal acts committed during his incumbency.

Whether or not the prosecution of petitioner

Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He
submits that the respondent Ombudsman has developed bias and is all set file the criminal cases
violation of his right to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases.125 The British approach
the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay
and stop criminal trials when the right of an accused to fair trial suffers a threat.126 The American
approach is different. US courts assume a skeptical approach about the potential effect of pervasive
publicity on the right of an accused to a fair trial. They have developed different strains of tests to
resolve this issue, i.e., substantial; probability of irreparable harm, strong likelihood, clear and
present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or
annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in
the case of Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar
pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we
rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure,
responsible reporting enhances accused's right to a fair trial for, as well pointed out, a
responsible press has always been regarded as the criminal field xxx. The press does not
simply publish information about trials but guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and
criticism.
 Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere
fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by
itself prove that the publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial
and other off-court publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our breakfast tables and right
to our bedrooms. These news form part of our everyday menu of the facts and fictions of life.
For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch
with the world. We have not installed the jury system whose members are overly protected
from publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law
and trained to disregard off-court evidence and on-camera performances of parties to
litigation. Their mere exposure to publications and publicity stunts does not per se fatally
infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to
the barrage of publicity that characterized the investigation and trial of the case. In Martelino,
et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the
test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there
must be allegation and proof that the judges have been unduly influenced, not simply that
they might be, by the barrage of publicity. In the case at a bar, the records do not show that
the trial judge developed actual bias against appellants as a consequence of the extensive
media coverage of the pre-trial and trial of his case. The totality of circumstances of the case
does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity,
which is incapable of change even by evidence presented during the trial. Appellant has the
burden to prove this actual bias and he has not discharged the burden.'

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon,
etc.130 and its companion cases, viz:

"Again petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early
invocation considering the substantial risk to their liberty while undergoing a preliminary
investigation.

xxx

The democratic settings, media coverage of trials of sensational cases cannot be avoided
and oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of the case at bar. Our daily
diet of facts and fiction about the case continues unabated even today. Commentators still
bombard the public with views not too many of which are sober and sublime. Indeed, even
the principal actors in the case the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility of media abuses and their
threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press
and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was

xxx

a. The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted,
criminal trials both here and in England had long been presumptively open, thus
giving assurance that the proceedings were conducted fairly to all concerned and
discouraging perjury, the misconduct of participants, or decisions based on secret
bias or partiality. In addition, the significant community therapeutic value of public
trials was recognized when a shocking crime occurs a community reaction of outrage
and public protest often follows, and thereafter the open processes of justice serve
an important prophylactic purpose, providing an outlet for community concern,
hostility and emotion. To work effectively, it is important that society's criminal
process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99
L ED 11, 75 S Ct 11, which can best be provided by allowing people to observe such
process. From this unbroken, uncontradicted history, supported by reasons as valid
today as in centuries past, it must be concluded that a presumption of openness
 inheres in the very nature of a criminal trial under this Nation's system of justice, Cf.,
e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication
on matters relating to the functioning of government. In guaranteeing freedom such
as those of speech and press, the First Amendment can be read as protecting the
right of everyone to attend trials so as give meaning to those explicit guarantees; the
First Amendment right to receive information and ideas means, in the context of
trials, that the guarantees of speech and press, standing alone, prohibit government
from summarily closing courtroom doors which had long been open to the public at
the time the First Amendment was adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an independent right but also as a
catalyst to augment the free exercise of the other First Amendment rights with which
the draftsmen deliberately linked it. A trial courtroom is a public place where the
people generally and representatives of the media have a right to be present, and
where their presence historically has been thought to enhance the integrity and
quality of what takes place.
c. Even though the Constitution contains no provision which be its terms guarantees to
the public the right to attend criminal trials, various fundamental rights, not expressly
guaranteed, have been recognized as indispensable to the enjoyment of enumerated
rights. The right to attend criminal trial is implicit in the guarantees of the First
Amendment: without the freedom to attend such trials, which people have exercised
for centuries, important aspects of freedom of speech and of the press be
eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing
in the records that will prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of
the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the
DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal investigation is a factor to consider in
determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their
26-page Resolution carries no indubitable indicia of bias for it does not appear that they
considered any extra-record evidence except evidence properly adduced by the parties. The
length of time the investigation was conducted despite its summary nature and the
generosity with which they accommodated the discovery motions of petitioners speak well of
their fairness. At no instance, we note, did petitioners seek the disqualification of any
member of the DOJ Panel on the ground of bias resulting from their bombardment of
prejudicial publicity." (emphasis supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to
enjoin the preliminary investigation of the petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile headlines to discharge his burden of proof.131 He needs to
show more weighty social science evidence to successfully prove the impaired capacity of a judge to
render a bias-free decision. Well to note, the cases against the petitioner are still
undergoing preliminary investigation by a special panel of prosecutors in the office of the
respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds
of the members of this special panel have already been infected by bias because of the pervasive
prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and
the Court cannot second guess whether its recommendation will be unfavorable to the petitioner.

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To
quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of
slanted news reports, and he has buckled to the threats and pressures directed at him by the
mobs."132 News reports have also been quoted to establish that the respondent Ombudsman has
already prejudged the cases of the petitioner133 and it is postulated that the prosecutors investigating
the petitioner will be influenced by this bias of their superior.
Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the
news reports referred to by the petitioner cannot be the subject of judicial notice by this Court
especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the
presumption of good faith and regularity in the performance of official duty to which he is
entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the
prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of
Criminal Procedure, give investigation prosecutors the independence to make their own findings and
recommendations albeit they are reviewable by their superiors.134 They can be reversed but they can
not be compelled cases which they believe deserve dismissal. In other words, investigating
prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against the petitioner and the latter believes that the findings
of probable cause against him is the result of bias, he still has the remedy of assailing it before the
proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now acquire a
different dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably,
the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the
minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the
right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial
which has been categorized as the "most fundamental of all freedoms."135To be sure, the duty of a
prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the
preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the
restraint against what Lord Bryce calls "the impatient vehemence of the majority." Rights in a
democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor
are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the
majority is not and should never be the definition of the rule of law. If democracy has proved to be
the best form of government, it is because it has respected the right of the minority to convince the
majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the
key to man's progress from the cave to civilization. Let us not throw away that key just to pander to
some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria
Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.
G.R. No. 88211 October 27, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR., IRENE M.

ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E.
MARCOS, NICANOR YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
represented by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ, MIRIAM
DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of
Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner,
Secretary of National Defense and Chief of Staff, respectively, respondents.

RESOLUTION

EN BANC:

In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven (7), dismissed the
petition, after finding that the President did not act arbitrarily or with grave abuse of discretion in
determining that the return of former President Marcos and his family at the present time and under
present circumstances pose a threat to national interest and welfare and in prohibiting their return to
the Philippines. On September 28, 1989, former President Marcos died in Honolulu, Hawaii. In a
statement, President Aquino said:

In the interest of the safety of those who will take the death of Mr. Marcos in widely
and passionately conflicting ways, and for the tranquility of the state and order of
society, the remains of Ferdinand E. Marcos will not be allowed to be brought to our
country until such time as the government, be it under this administration or the
succeeding one, shall otherwise decide. [Motion for Reconsideration, p. 1; Rollo, p,
443.]

On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the following
major arguments:

1. to bar former President Marcos and his family from returning to the Philippines is to deny them not
only the inherent right of citizens to return to their country of birth but also the protection of the
Constitution and all of the rights guaranteed to Filipinos under the Constitution;

2. the President has no power to bar a Filipino from his own country; if she has, she had exercised it
arbitrarily; and

3. there is no basis for barring the return of the family of former President Marcos. Thus, petitioners
prayed that the Court reconsider its decision, order respondents to issue the necessary travel
documents to enable Mrs. Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee M.
Manotoc, Tommy Manotoc and Gregorio Araneta to return to the Philippines, and enjoin
respondents from implementing President Aquino's decision to bar the return of the remains of Mr.
Marcos, and the other petitioners, to the Philippines.

Commenting on the motion for reconsideration, the Solicitor General argued that the motion for
reconsideration is moot and academic as to the deceased Mr. Marcos. Moreover, he asserts that
"the 'formal' rights being invoked by the Marcoses under the label 'right to return', including the label
'return of Marcos' remains, is in reality or substance a 'right' to destabilize the country, a 'right' to hide
the Marcoses' incessant shadowy orchestrated efforts at destabilization." [Comment, p. 29.] Thus, he
prays that the Motion for Reconsideration be denied for lack of merit.

We deny the motion for reconsideration.

1. It must be emphasized that as in all motions for reconsideration, the burden is upon the movants,
petitioner herein, to show that there are compelling reasons to reconsider the decision of the Court.
2. After a thorough consideration of the matters raised in the motion for reconsideration, the Court is
of the view that no compelling reasons have been established by petitioners to warrant a
reconsideration of the Court's decision.

The death of Mr. Marcos, although it may be viewed as a supervening event, has not changed the
factual scenario under which the Court's decision was rendered. The threats to the government, to
which the return of the Marcoses has been viewed to provide a catalytic effect, have not been shown
to have ceased. On the contrary, instead of erasing fears as to the destabilization that will be caused
by the return of the Marcoses, Mrs. Marcos reinforced the basis for the decision to bar their return
when she called President Aquino "illegal," claiming that it is Mr. Marcos, not Mrs. Aquino, who is the
"legal" President of the Philippines, and declared that the matter "should be brought to all the courts
of the world." [Comment, p. 1; Philippine Star, October 4, 1989.]

3. Contrary to petitioners' view, it cannot be denied that the President, upon whom executive power
is vested, has unstated residual powers which are implied from the grant of executive power and
which are necessary for her to comply with her duties under the Constitution. The powers of the
President are not limited to what are expressly enumerated in the article on the Executive
Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed
intent of the members of the Constitutional Commission of 1986 to limit the powers of the President
as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific
power of the President, particularly those relating to the commander-in-chief clause, but not a
diminution of the general grant of executive power.

That the President has powers other than those expressly stated in the Constitution is nothing new.
This is recognized under the U.S. Constitution from which we have patterned the distribution of
governmental powers among three (3) separate branches.

Article II, [section] 1, provides that "The Executive Power shall be vested in a
President of the United States of America." In Alexander Hamilton's widely accepted
view, this statement cannot be read as mere shorthand for the specific executive
authorizations that follow it in [sections] 2 and 3. Hamilton stressed the difference
between the sweeping language of article II, section 1, and the conditional language
of article I, [section] 1: "All legislative Powers herein granted shall be vested in a
Congress of the United States . . ." Hamilton submitted that "[t]he [article III
enumeration [in sections 2 and 31 ought therefore to be considered, as intended
merely to specify the principal articles implied in the definition of execution power;
leaving the rest to flow from the general grant of that power, interpreted in confomity
with other parts of the Constitution...

In Myers v. United States, the Supreme Court accepted Hamilton's proposition,

concluding that the federal executive, unlike the Congress, could exercise power
from sources not enumerated, so long as not forbidden by the constitutional text: the
executive power was given in general terms, strengthened by specific terms where
emphasis was regarded as appropriate, and was limited by direct expressions where
limitation was needed. . ." The language of Chief Justice Taft in Myers makes clear
that the constitutional concept of inherent power is not a synonym for power without
limit; rather, the concept suggests only that not all powers granted in the Constitution
are themselves exhausted by internal enumeration, so that, within a sphere properly
regarded as one of "executive' power, authority is implied unless there or elsewhere
expressly limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159 (1978).]

And neither can we subscribe to the view that a recognition of the President's implied or residual
powers is tantamount to setting the stage for another dictatorship. Despite petitioners' strained
analogy, the residual powers of the President under the Constitution should not be confused with the
power of the President under the 1973 Constitution to legislate pursuant to Amendment No. 6 which
provides:

Whenever in the judgment of the President (Prime Minister), there exists a grave
emergency or a threat or imminence thereof, or whenever the interim Batasang
Pambansa or the regular National Assembly fails or is unable to act adequately on
any matter for any reason that in his judgment requires immediate action, he may, in
order to meet the exigency, issue the necessary decrees, orders, or letters of
instruction, which shall form part of the law of the land,
There is no similarity between the residual powers of the President under the 1987 Constitution and
the power of the President under the 1973 Constitution pursuant to Amendment No. 6. First of all,
Amendment No. 6 refers to an express grant of power. It is not implied. Then, Amendment No. 6
refers to a grant to the President of the specific power of legislation.

4. Among the duties of the President under the Constitution, in compliance with his (or her) oath of
office, is to protect and promote the interest and welfare of the people. Her decision to bar the return
of the Marcoses and subsequently, the remains of Mr. Marcos at the present time and under present
circumstances is in compliance with this bounden duty. In the absence of a clear showing that she
had acted with arbitrariness or with grave abuse of discretion in arriving at this decision, the Court
will not enjoin the implementation of this decision.

ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of merit."

Separate Opinions

CRUZ, J., dissenting:

Nothing important has happened to change my vote for granting the petition. The death of Marcos
has not plunged the nation into paroxysms of grief as the so-called "loyalists" had hoped. By and
large, it has been met with only passing interest if not outright indifference from the people. Clearly,
the discredited dictator is in death no El Cid. Marcos dead is only an unpleasant memory, not a bolt
of lightning to whip the blood.

This only shows that if he was at all a threat to the national security when he was already moribund
that feeble threat has died with him. As the government stresses, he has been reduced to a non-
person (which makes me wonder why it is still afraid of him). His cadaver is not even regarded as a
symbol of this or that or whatever except by his fanatical followers. It is only a dead body waiting to
be interred in this country.

This is a tempest in a teapot. We have more important things to do than debating over a corpse that
deserves no kinder fate than dissolution and oblivion. I say let it be brought home and buried deep
and let us be done with it forever.

PARAS, J., dissenting on the Motion for Reconsideration:

I find no reason to deviate from the dissenting opinion I have already expressed.

Firstly, the former President, although already dead, is still entitled to certain rights. It is not correct
to say that a dead man, since he is no longer a human being, has ceased to have rights. For
instance, our Revised Penal Code prohibits the commission of libel against a deceased individual.
And even if we were to assume the non- existence anymore of his human rights what about the
human rights of his widow and the other members of his family?

Secondly, up to now, the alleged threats to national security have remained unproved and
consequently, unpersuasive. Our Armed Forces can easily control any possible uprising or political
and military destabilization. In fact, the converse appears to be nearer the truth, that is, if we do not
allow the remains to come, more trouble may be expected.

Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is granted. To
refuse the request can mean a hardening of resistance against the well-intentioned aim of the
administration. Upon the other hand, to grant the petition may well soften the hearts of the
oppositionists; paving the way for a united citizenry.

Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare once
wrote "the quality of mercy is not strained." Surely, compassion is the better part of government.
Remove mercy, and you remove the best reason against civil strife, which if not abated can turn our
country into a mainstream of fiery dissent and in the end, as one great man has put it, the question
will no longer be what is right, but what is left.

PADILLA, J., dissenting:

The death of former President Ferdinand E. Marcos, which supervened after decision in this case
had been rendered, was pre-empted and foreseen in my original dissenting opinion. There I said that
the first cogent and decisive proposition in this case is that "Mr. Marcos is a Filipino and, as such,
entitled to return to, die and be buriedin this country." I have only to add a few statements to that
dissenting opinion.

Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and die
in this country, The remaining right of this Filipino that cries out for vindication at this late hour is the
right to be buried in this country. Will the respondents be allowed to complete the circle of denying
the constitutional and human right of Mr. Marcos to travel which, as stated in my dissenting opinion,
includes the right to return to, die and be buried in this country? The answer should be in the
negative if the Constitution is to still prevail; the answer should be in the negative if we are to avoid
the completely indefensible act of denying a Filipino the last right to blend his mortal remains with a
few square feet of earth in the treasured land of his birth.

Those who would deny this Filipino the only constitutional and human right that can be accorded him
now say that the constitutional and human right to be buried in this country would apply to any
Filipino, except Mr. Marcos, because he was a dictator and he plundered the country. This is the
most irrelevant argument that can be raised at this time. For, our democracy is built on the
fundamental assumption (so we believe) that the Constitution and all its guarantees apply
to all Filipinos, whether dictator or pauper, learned or ignorant, religious or agnostic as long as he is
a Filipino.

It is said that to accord this Filipino the right to be buried in this country would pose a serious threat
to national security and public safety. What threat? As pointed out in my dissenting opinion, the
second cogent and decisive proposition in this case is that respondents have not presented any
"hard evidence" (factual bases) or convincing proof of such threat. "All we have are general
conclusions of national security and public safety' in avoidance of a specific, demandable and
enforceable constitutional and basic human right to return." Recent events have, to my mind, served
to confirm the validity of such dissenting statement.

If a live Marcos returning to this country did not pose a serious threat to national security, the
situation cannot be any worse with a dead Marcos returning. For, a dead Marcos will return to be
buried into mother earth, where there are no protests, "demos", or even dissents, where the rule that
reigns, in the language of Mr. Justice Jackson in Barnette is the "unanimity of the graveyard."

It is said that, while a dead Marcos has been rendered impotent to threaten national security, his
supporters would pose that threat to national security. This argument is untenable as it is without
merit. As I see it, Marcos' supporters pose a greater threat to peace and order, with Marcos deprived
of his right to burial in this country. On the other hand, if the remains of Mr. Marcos are brought to
the country and allowed the burial to which he is constitutionally and humanly entitled, Marcos'
supporters would be deprived of an otherwise potent argumentso conducive to mass protests and
even violencethat their Idol has been cruelly denied the right to be buried in his homeland.

It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak of.
This contention entirely begs the issue. In the first place, one cannot overlook that the right of Mr.
Marcos, as a Filipino, to be buried in this country, is asserted not for the first time after his death. It
was vigorously asserted long before his death. But, more importantly, the right of every Filipino to be
buried in his country, is part of a continuing right that starts from birth and ends only on the day he is
finally laid to rest in his country.

This dissenting opinion does not pretend to deny the Philippine government the right to lay down
conditions for the burial of Mr. Marcos in this country, but I submit that these conditions must, as a
fundamental postulate, recognize the right of the man, as a Filipino, to be buried in this country
NOW.

The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any way
affecting my respect and regard for my brethren and sisters in the majority, I am deeply concerned
and greatly disturbed that, with their decision banning a dead Marcos from burial in this country, they
have passed an opportunity to defuse a constitutional crisis that, in my humble assessment,
threatens to ignite an already divided nation, Regrettably, they have ignored the constitutional
dimension of the problem rooted in the ageless and finest tradition of our people for respect and
deference to the dead. What predictably follows will be a continuing strife, among our people, of
unending hatred, recriminations and retaliations. God save this country!

My vote is for this Court to ORDER the respondents to allow the immediate return and burial in the
Republic of the Philippines of former President Ferdinand E. Marcos, subject to such conditions as
the Philippine government may impose in the interest of peace and order.

SARMIENTO, J., Dissenting:

The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated before,
I can not allow personal emotions to soften my "hardened impartiality" and deny, as a consequence,
the rights of the ex-President's bereaved to bury his remains in his homeland, and for them to return
from exile. As I had, then, voted to grant the petition, so do I vote to grant reconsideration.

I have gone to lengths to locate in the four comers of the Constitution, by direct grant or by
implication, the President's supposed "residual" power to forbid citizens from entering the
motherland reiterated in the resolution of the majority. I have found none. I am not agreed, that:

3. Contrary to petitioners view, it cannot be denied that the President, upon whom
executive power is vested, has unstated residual powers which are implied from the
grant of executive power and which are necessary for her to comply with her duties
under the Constitution. The powers of the President are not limited to what are
expressly enumerated in the article on the Executive Department and in scattered
provisions of the Constitution. This, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr. Marcos, for the result
was a limitation of specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of executive
power.

It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on
specific powers of the President, it has, a fortiori, prescribed a diminution of executive power. The
Charter says that the right may only be restricted by: (1) a court order; or (2) by fiat of law. Had the
fundamental law intended a presidential imprimatur, it would have said so. It would have also
completed the symmetry: judicial, congressional, and executive restraints on the right. No amount of
presumed residual executive power can amend the Charter.

It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative
encroachments on individual liberties, but more so, against presidential intrusions. And especially
so, because the President is the caretaker of the military establishment that has, several times over,
been unkind to part of the population it has also sworn to protect.

That "[t]he threats to the government, to which the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown to have ceased" (Res., 3) is the realm of conjecture,
speculation, and imagination. The military has shown no hard evidence that "the return of the
Marcoses" would indeed interpose a threat to national security. And apparently, the majority itself is
not convinced ("has been viewed...").

That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does not,
so I submit, reinforce alleged fears of a massive destabilization awaiting the nation. The military has
said over and over that Marcos followers are not capable of successful destabilization effort. And
only this morning (October 27, 1989), media reported the assurances given to foreign investors by
no less than the President, of the political and economic stability of the nation, as well as the
Government's capability to quell forces that menace the gains of EDSA.

I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however, are
beside the point. I reiterate that the President has no power to deny requests of Marcos relatives to
bury Marcos in his homeland. As for the former, let them get their just deserts here too. And let the
matter rest.
Separate Opinions

CRUZ, J., dissenting:

Nothing important has happened to change my vote for granting the petition. The death of Marcos
has not plunged the nation into paroxysms of grief as the so-called "loyalists" had hoped. By and
large, it has been met with only passing interest if not outright indifference from the people. Clearly,
the discredited dictator is in death no El Cid. Marcos dead is only an unpleasant memory, not a bolt
of lightning to whip the blood.

This only shows that if he was at all a threat to the national security when he was already moribund
that feeble threat has died with him. As the government stresses, he has been reduced to a non-
person (which makes me wonder why it is still afraid of him). His cadaver is not even regarded as a
symbol of this or that or whatever except by his fanatical followers. It is only a dead body waiting to
be interred in this country.

This is a tempest in a teapot. We have more important things to do than debating over a corpse that
deserves no kinder fate than dissolution and oblivion. I say let it be brought home and buried deep
and let us be done with it forever.

PARAS, J., dissenting on the Motion for Reconsideration:

I find no reason to deviate from the dissenting opinion I have already expressed.

Firstly, the former President, although already dead, is still entitled to certain rights. It is not correct
to say that a dead man, since he is no longer a human being, has ceased to have rights. For
instance, our Revised Penal Code prohibits the commission of libel against a deceased individual.
And even if we were to assume the non- existence anymore of his human rights what about the
human rights of his widow and the other members of his family?

Secondly, up to now, the alleged threats to national security have remained unproved and
consequently, unpersuasive. Our Armed Forces can easily control any possible uprising or political
and military destabilization. In fact, the converse appears to be nearer the truth, that is, if we do not
allow the remains to come, more trouble may be expected.

Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is granted. To
refuse the request can mean a hardening of resistance against the well-intentioned aim of the
administration. Upon the other hand, to grant the petition may well soften the hearts of the
oppositionists; paving the way for a united citizenry.

Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare once
wrote "the quality of mercy is not strained." Surely, compassion is the better part of government.
Remove mercy, and you remove the best reason against civil strife, which if not abated can turn our
country into a mainstream of fiery dissent and in the end, as one great man has put it, the question
will no longer be what is right, but what is left.

PADILLA, J., dissenting:

The death of former President Ferdinand E. Marcos, which supervened after decision in this case
had been rendered, was pre-empted and foreseen in my original dissenting opinion. There I said that
the first cogent and decisive proposition in this case is that "Mr. Marcos is a Filipino and, as such,
entitled to return to, die and be buriedin this country." I have only to add a few statements to that
dissenting opinion.

Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and die
in this country, The remaining right of this Filipino that cries out for vindication at this late hour is the
right to be buried in this country. Will the respondents be allowed to complete the circle of denying
the constitutional and human right of Mr. Marcos to travel which, as stated in my dissenting opinion,
includes the right to return to, die and be buried in this country? The answer should be in the
negative if the Constitution is to still prevail; the answer should be in the negative if we are to avoid
the completely indefensible act of denying a Filipino the last right to blend his mortal remains with a
few square feet of earth in the treasured land of his birth.
Those who would deny this Filipino the only constitutional and human right that can be accorded him
now say that the constitutional and human right to be buried in this country would apply to any
Filipino, except Mr. Marcos, because he was a dictator and he plundered the country. This is the
most irrelevant argument that can be raised at this time. For, our democracy is built on the
fundamental assumption (so we believe) that the Constitution and all its guarantees apply
to all Filipinos, whether dictator or pauper, learned or ignorant, religious or agnostic as long as he is
a Filipino.

It is said that to accord this Filipino the right to be buried in this country would pose a serious threat
to national security and public safety. What threat? As pointed out in my dissenting opinion, the
second cogent and decisive proposition in this case is that respondents have not presented any
"hard evidence" (factual bases) or convincing proof of such threat. "All we have are general
conclusions of national security and public safety' in avoidance of a specific, demandable and
enforceable constitutional and basic human right to return." Recent events have, to my mind, served
to confirm the validity of such dissenting statement.

If a live Marcos returning to this country did not pose a serious threat to national security, the
situation cannot be any worse with a dead Marcos returning. For, a dead Marcos will return to be
buried into mother earth, where there are no protests, "demos", or even dissents, where the rule that
reigns, in the language of Mr. Justice Jackson in Barnette is the "unanimity of the graveyard."

It is said that, while a dead Marcos has been rendered impotent to threaten national security, his
supporters would pose that threat to national security. This argument is untenable as it is without
merit. As I see it, Marcos' supporters pose a greater threat to peace and order, with Marcos deprived
of his right to burial in this country. On the other hand, if the remains of Mr. Marcos are brought to
the country and allowed the burial to which he is constitutionally and humanly entitled, Marcos'
supporters would be deprived of an otherwise potent argumentso conducive to mass protests and
even violencethat their Idol has been cruelly denied the right to be buried in his homeland.

It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak of.
This contention entirely begs the issue. In the first place, one cannot overlook that the right of Mr.
Marcos, as a Filipino, to be buried in this country, is asserted not for the first time after his death. It
was vigorously asserted long before his death. But, more importantly, the right of every Filipino to be
buried in his country, is part of a continuing right that starts from birth and ends only on the day he is
finally laid to rest in his country.

This dissenting opinion does not pretend to deny the Philippine government the right to lay down
conditions for the burial of Mr. Marcos in this country, but I submit that these conditions must, as a
fundamental postulate, recognize the right of the man, as a Filipino, to be buried in this country
NOW.

The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any way
affecting my respect and regard for my brethren and sisters in the majority, I am deeply concerned
and greatly disturbed that, with their decision banning a dead Marcos from burial in this country, they
have passed an opportunity to defuse a constitutional crisis that, in my humble assessment,
threatens to ignite an already divided nation, Regrettably, they have ignored the constitutional
dimension of the problem rooted in the ageless and finest tradition of our people for respect and
deference to the dead. What predictably follows will be a continuing strife, among our people, of
unending hatred, recriminations and retaliations. God save this country!

My vote is for this Court to ORDER the respondents to allow the immediate return and burial in the
Republic of the Philippines of former President Ferdinand E. Marcos, subject to such conditions as
the Philippine government may impose in the interest of peace and order.

SARMIENTO, J., Dissenting:

The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated before,
I can not allow personal emotions to soften my "hardened impartiality" and deny, as a consequence,
the rights of the ex-President's bereaved to bury his remains in his homeland, and for them to return
from exile. As I had, then, voted to grant the petition, so do I vote to grant reconsideration.

I have gone to lengths to locate in the four comers of the Constitution, by direct grant or by
implication, the President's supposed "residual" power to forbid citizens from entering the
motherland reiterated in the resolution of the majority. I have found none. I am not agreed, that:
 3. Contrary to petitioners view, it cannot be denied that the President, upon whom
executive power is vested, has unstated residual powers which are implied from the
grant of executive power and which are necessary for her to comply with her duties
under the Constitution. The powers of the President are not limited to what are
expressly enumerated in the article on the Executive Department and in scattered
provisions of the Constitution. This, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the
President as a reaction to the abuses under the regime of Mr. Marcos, for the result
was a limitation of specific powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of executive
power.

It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on
specific powers of the President, it has, a fortiori, prescribed a diminution of executive power. The
Charter says that the right may only be restricted by: (1) a court order; or (2) by fiat of law. Had the
fundamental law intended a presidential imprimatur, it would have said so. It would have also
completed the symmetry: judicial, congressional, and executive restraints on the right. No amount of
presumed residual executive power can amend the Charter.

It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative
encroachments on individual liberties, but more so, against presidential intrusions. And especially
so, because the President is the caretaker of the military establishment that has, several times over,
been unkind to part of the population it has also sworn to protect.

That "[t]he threats to the government, to which the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown to have ceased" (Res., 3) is the realm of conjecture,
speculation, and imagination. The military has shown no hard evidence that "the return of the
Marcoses" would indeed interpose a threat to national security. And apparently, the majority itself is
not convinced ("has been viewed...").

That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does not,
so I submit, reinforce alleged fears of a massive destabilization awaiting the nation. The military has
said over and over that Marcos followers are not capable of successful destabilization effort. And
only this morning (October 27, 1989), media reported the assurances given to foreign investors by
no less than the President, of the political and economic stability of the nation, as well as the
Government's capability to quell forces that menace the gains of EDSA.

I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however, are
beside the point. I reiterate that the President has no power to deny requests of Marcos relatives to
bury Marcos in his homeland. As for the former, let them get their just deserts here too. And let the
matter rest.
 [G.R. No. 149036. April 2, 2002]

MA. J. ANGELINA G. MATIBAG, petitioner, vs. ALFREDO L. BENIPAYO,

RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.,
VELMA J. CINCO, and GIDEON C. DE GUZMAN in his capacity as
Officer-In-Charge, Finance Services Department of the Commission on
Elections, respondents.

DECISION
CARPIO, J.:

The Case

Before us is an original Petition for Prohibition with prayer for the issuance of a
writ of preliminary injunction and a temporary restraining order under Rule 65 of the
1997 Rules of Civil Procedure. Petitioner Ma. J. Angelina G. Matibag (Petitioner for
brevity) questions the constitutionality of the appointment and the right to hold office
of the following: (1) Alfredo L. Benipayo (Benipayo for brevity) as Chairman of the
Commission on Elections (COMELEC for brevity); and (2) Resurreccion Z. Borra
(Borra for brevity) and Florentino A. Tuason, Jr. (Tuason for brevity) as COMELEC
Commissioners. Petitioner also questions the legality of the appointment of Velma J.
Cinco[1] (Cinco for brevity) as Director IV of the COMELECs Education and
Information Department (EID for brevity).

The Facts

On February 2, 1999, the COMELEC en banc appointed petitioner as Acting

Director IV of the EID. On February 15, 2000, then Chairperson Harriet O. Demetriou
renewed the appointment of petitioner as Director IV of EID in a Temporary
capacity. On February 15, 2001, Commissioner Rufino S.B. Javier renewed again the
appointment of petitioner to the same position in a Temporary capacity.[2]
On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim,
Benipayo as COMELEC Chairman,[3] and Borra[4] and Tuason[5] as COMELEC
Commissioners, each for a term of seven years and all expiring on February 2,
2008. Benipayo took his oath of office and assumed the position of COMELEC
Chairman. Borra and Tuason likewise took their oaths of office and assumed their
positions as COMELEC Commissioners. The Office of the President submitted to the
Commission on Appointments on May 22, 2001 the ad interim appointments of
Benipayo, Borra and Tuason for confirmation.[6] However, the Commission on
Appointments did not act on said appointments.
On June 1, 2001, President Arroyo renewed the ad interim appointments of
Benipayo, Borra and Tuason to the same positions and for the same term of seven
years, expiring on February 2, 2008.[7] They took their oaths of office for a second
time. The Office of the President transmitted on June 5, 2001 their appointments to
the Commission on Appointments for confirmation.[8]
 Congress adjourned before the Commission on Appointments could act on their
appointments. Thus, on June 8, 2001, President Macapagal Arroyo renewed again
the ad interimappointments of Benipayo, Borra and Tuason to the same
positions.[9] The Office of the President submitted their appointments for confirmation
to the Commission on Appointments.[10] They took their oaths of office anew.
In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated
April 11, 2001[11] addressed to petitioner as Director IV of the EID and to Cinco as
Director III also of the EID, designating Cinco Officer-in-Charge of the EID and
reassigning petitioner to the Law Department. COMELEC EID Commissioner-in-
Charge Mehol K. Sadain objected to petitioners reassignment in a Memorandum dated
April 14, 2001[12] addressed to the COMELEC en banc.Specifically, Commissioner
Sadain questioned Benipayos failure to consult the Commissioner-in-Charge of the
EID in the reassignment of petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsider her relief as
Director IV of the EID and her reassignment to the Law Department. [13] Petitioner
cited Civil Service Commission Memorandum Circular No. 7 dated April 10, 2001,
reminding heads of government offices that transfer and detail of employees are
prohibited during the election period beginning January 2 until June 13, 2001.
Benipayo denied her request for reconsideration on April 18, 2001, [14] citing
COMELEC Resolution No. 3300 dated November 6, 2000, which states in part:

NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred

upon it by the Constitution, the Omnibus Election Code and other election laws, as an
exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED,
to appoint, hire new employees or fill new positions and transfer or reassign its
personnel, when necessary in the effective performance of its mandated functions
during the prohibited period, provided that the changes in the assignment of its field
personnel within the thirty-day period before election day shall be effected after due
notice and hearing.

Petitioner appealed the denial of her request for reconsideration to the

COMELEC en banc ina Memorandum dated April 23, 2001.[15] Petitioner also filed an
administrative and criminal complaint[16] with the Law Department[17] against
Benipayo, alleging that her reassignment violated Section 261 (h) of the Omnibus
Election Code, COMELEC Resolution No. 3258, Civil Service Memorandum
Circular No. 07, s. 001, and other pertinent administrative and civil service laws, rules
and regulations.
During the pendency of her complaint before the Law Department, petitioner filed
the instant petition questioning the appointment and the right to remain in office of
Benipayo, Borra and Tuason, as Chairman and Commissioners of the COMELEC,
respectively. Petitioner claims that the ad interim appointments of Benipayo, Borra
and Tuason violate the constitutional provisions on the independence of the
COMELEC, as well as on the prohibitions on temporary appointments and
reappointments of its Chairman and members. Petitioner also assails as illegal her
removal as Director IV of the EID and her reassignment to the Law
Department. Simultaneously, petitioner challenges the designation of Cinco as
Officer-in-Charge of the EID. Petitioner, moreover, questions the legality of the
disbursements made by COMELEC Finance Services Department Officer-in-Charge
Gideon C. De Guzman to Benipayo, Borra and Tuason by way of salaries and other
emoluments.
In the meantime, on September 6, 2001, President Macapagal Arroyo renewed
once again the ad interim appointments of Benipayo as COMELEC Chairman and
Borra and Tuason as Commissioners, respectively, for a term of seven years expiring
on February 2, 2008.[18] They all took their oaths of office anew.

The Issues

The issues for resolution of this Court are as follows:

1. Whether or not the instant petition satisfies all the requirements before this Court may
exercise its power of judicial review in constitutional cases;
2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of
the ad interim appointments issued by the President amounts to a temporary appointment
prohibited by Section 1 (2), Article IX-C of the Constitution;
3. Assuming that the first ad interim appointments and the first assumption of office by
Benipayo, Borra and Tuason are legal, whether or not the renewal of their ad
interim appointments and subsequent assumption of office to the same positions violate the
prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution;
4. Whether or not Benipayos removal of petitioner from her position as Director IV of the EID
and her reassignment to the Law Department is illegal and without authority, having been
done without the approval of the COMELEC as a collegial body;
5. Whether or not the Officer-in-Charge of the COMELECs Finance Services Department, in
continuing to make disbursements in favor of Benipayo, Borra, Tuason and Cinco, is acting
in excess of jurisdiction.

First Issue: Propriety of Judicial Review

Respondents assert that the petition fails to satisfy all the four requisites before
this Court may exercise its power of judicial review in constitutional cases. Out of
respect for the acts of the Executive department, which is co-equal with this Court,
respondents urge this Court to refrain from reviewing the constitutionality of the ad
interim appointments issued by the President to Benipayo, Borra and Tuason unless
all the four requisites are present. These are: (1) the existence of an actual and
appropriate controversy; (2) a personal and substantial interest of the party raising the
constitutional issue; (3) the exercise of the judicial review is pleaded at the earliest
opportunity; and (4) the constitutional issue is the lis mota of the case.[19]
Respondents argue that the second, third and fourth requisites are absent in this
case.Respondents maintain that petitioner does not have a personal and substantial
interest in the case because she has not sustained a direct injury as a result of the ad
interim appointments of Benipayo, Borra and Tuason and their assumption of
office. Respondents point out that petitioner does not claim to be lawfully entitled to
any of the positions assumed by Benipayo, Borra or Tuason. Neither does petitioner
claim to be directly injured by the appointments of these three respondents.
Respondents also contend that petitioner failed to question the constitutionality of
the ad interim appointments at the earliest opportunity. Petitioner filed the petition
only on August 3, 2001 despite the fact that the ad interim appointments of Benipayo,
Borra and Tuason were issued as early as March 22, 2001. Moreover, the petition was
filed after the third time that these three respondents were issued ad
interim appointments.
Respondents insist that the real issue in this case is the legality of petitioners
reassignment from the EID to the Law Department. Consequently, the
constitutionality of the ad interimappointments is not the lis mota of this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she was Acting Director, to
the Law Department, where she was placed on detail service.[20] Respondents claim
that the reassignment was pursuant to x x x Benipayos authority as Chairman of the
Commission on Elections, and as the Commissions Chief Executive
Officer.[21] Evidently, respondents anchor the legality of petitioners reassignment on
Benipayos authority as Chairman of the COMELEC. The real issue then turns on
whether or not Benipayo is the lawful Chairman of the COMELEC. Even if petitioner
is only an Acting Director of the EID, her reassignment is without legal basis if
Benipayo is not the lawful COMELEC Chairman, an office created by the
Constitution.
On the other hand, if Benipayo is the lawful COMELEC Chairman because he
assumed office in accordance with the Constitution, then petitioners reassignment is
legal and she has no cause to complain provided the reassignment is in accordance
with the Civil Service Law. Clearly, petitioner has a personal and material stake in the
resolution of the constitutionality of Benipayos assumption of office. Petitioners
personal and substantial injury, if Benipayo is not the lawful COMELEC Chairman,
clothes her with the requisite locus standi to raise the constitutional issue in this
petition.
Respondents harp on petitioners belated act of questioning the constitutionality of
the ad interim appointments of Benipayo, Borra and Tuason. Petitioner filed the
instant petition only on August 3, 2001, when the first ad interim appointments were
issued as early as March 22, 2001. However, it is not the date of filing of the petition
that determines whether the constitutional issue was raised at the earliest opportunity.
The earliest opportunity to raise a constitutional issue is to raise it in the pleadings
before a competent court that can resolve the same, such that, if it is not raised in the
pleadings, it cannot be considered at the trial, and, if not considered at the trial, it
cannot be considered on appeal.[22] Petitioner questioned the constitutionality of the ad
interimappointments of Benipayo, Borra and Tuason when she filed her petition
before this Court, which is the earliest opportunity for pleading the constitutional
issue before a competent body.Furthermore, this Court may determine, in the exercise
of sound discretion, the time when a constitutional issue may be passed upon. [23] There
is no doubt petitioner raised the constitutional issue on time.
Moreover, the legality of petitioners reassignment hinges on the constitutionality
of Benipayos ad interim appointment and assumption of office. Unless the
constitutionality of Benipayos ad interim appointment and assumption of office is
resolved, the legality of petitioners reassignment from the EID to the Law Department
cannot be determined. Clearly, the lis mota of this case is the very constitutional issue
raised by petitioner.
In any event, the issue raised by petitioner is of paramount importance to the
public. The legality of the directives and decisions made by the COMELEC in the
conduct of the May 14, 2001 national elections may be put in doubt if the
constitutional issue raised by petitioner is left unresolved. In keeping with this Courts
duty to determine whether other agencies of government have remained within the
limits of the Constitution and have not abused the discretion given them, this Court
may even brush aside technicalities of procedure and resolve any constitutional issue
raised.[24] Here the petitioner has complied with all the requisite technicalities.
Moreover, public interest requires the resolution of the constitutional issue raised by
petitioner.

Second Issue: The Nature of an Ad Interim Appointment

Petitioner argues that an ad interim appointment to the COMELEC is a temporary

appointment that is prohibited by Section 1 (2), Article IX-C of the Constitution,
which provides as follows:

The Chairman and the Commissioners shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall hold office for seven
years, two Members for five years, and the last Members for three years, without
reappointment. Appointment to any vacancy shall be only for the unexpired term of
the predecessor. In no case shall any Member be appointed or designated in a
temporary or acting capacity. (Emphasis supplied)

Petitioner posits the view that an ad interim appointment can be withdrawn or revoked
by the President at her pleasure, and can even be disapproved or simply by-passed by
the Commission on Appointments. For this reason, petitioner claims that an ad
interim appointment is temporary in character and consequently prohibited by the last
sentence of Section 1 (2), Article IX-C of the Constitution.
Based on petitioners theory, there can be no ad interim appointment to the
COMELEC or to the other two constitutional commissions, namely the Civil Service
Commission and the Commission on Audit. The last sentence of Section 1 (2), Article
IX-C of the Constitution is also found in Article IX-B and Article IX-D providing for
the creation of the Civil Service Commission and the Commission on Audit,
respectively. Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to
mean that the ad interim appointee cannot assume office until his appointment is
confirmed by the Commission on Appointments for only then does his appointment
become permanent and no longer temporary in character.
The rationale behind petitioners theory is that only an appointee who is confirmed
by the Commission on Appointments can guarantee the independence of the
COMELEC. A confirmed appointee is beyond the influence of the President or
members of the Commission on Appointments since his appointment can no longer be
recalled or disapproved. Prior to his confirmation, the appointee is at the mercy of
both the appointing and confirming powers since his appointment can be terminated at
any time for any cause. In the words of petitioner, a Sword of Damocles hangs over
the head of every appointee whose confirmation is pending with the Commission on
Appointments.
We find petitioners argument without merit.
 An ad interim appointment is a permanent appointment because it takes effect
immediately and can no longer be withdrawn by the President once the appointee has
qualified into office. The fact that it is subject to confirmation by the Commission on
Appointments does not alter its permanent character. The Constitution itself makes
an ad interim appointment permanent in character by making it effective until
disapproved by the Commission on Appointments or until the next adjournment of
Congress. The second paragraph of Section 16, Article VII of the Constitution
provides as follows:

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 supplied)

Thus, the ad interim appointment remains effective until such disapproval or next
adjournment, signifying that it can no longer be withdrawn or revoked by the
President. The fear that the President can withdraw or revoke at any time and for any
reason an ad interim appointment is utterly without basis.
More than half a century ago, this Court had already ruled that an ad
interim appointment is permanent in character. In Summers vs. Ozaeta,[25] decided on
October 25, 1948, we held that:

x x x an ad interim appointment is one made in pursuance of paragraph (4), Section

10, Article VII of the Constitution, which provides that 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. It is an appointment permanent in nature, and
the circumstance that it is subject to confirmation by the Commission on
Appointments does not alter its permanent character. An ad interimappointment is
disapproved certainly for a reason other than that its provisional period has expired.
Said appointment is of course distinguishable from an acting appointment which is
merely temporary, good until another permanent appointment is issued. (Emphasis
supplied)

The Constitution imposes no condition on the effectivity of an ad

interim appointment, and thus an ad interim appointment takes effect
immediately. The appointee can at once assume office and exercise, as a de
jure officer, all the powers pertaining to the office. In Pacete vs. Secretary of the
Commission on Appointments,[26] this Court elaborated on the nature of an ad
interimappointment as follows:

A distinction is thus made between the exercise of such presidential prerogative

requiring confirmation by the Commission on Appointments when Congress is in
session and when it is in recess. In the former, the President nominates, and only upon
the consent of the Commission on Appointments may the person thus named assume
office. It is not so with reference to ad interim appointments. It takes effect at once.
The individual chosen may thus qualify and perform his function without loss of
time. His title to such office is complete. In the language of the Constitution, the
appointment is effective until disapproval by the Commission on Appointments or
until the next adjournment of the Congress.
 Petitioner cites Blacks Law Dictionary which defines the term ad interim to mean
in the meantime or for the time being. Hence, petitioner argues that an ad
interim appointment is undoubtedly temporary in character. This argument is not new
and was answered by this Court in Pamantasan ng Lungsod ng Maynila vs.
Intermediate Appellate Court,[27] where we explained that:

x x x From the arguments, it is easy to see why the petitioner should experience
difficulty in understanding the situation. Private respondent had been extended
several ad interim appointments which petitioner mistakenly understands as
appointments temporary in nature. Perhaps, it is the literal translation of the word ad
interim which creates such belief. The term is defined by Black to mean in the
meantime or for the time being. Thus, an officer ad interim is one appointed to fill a
vacancy, or to discharge the duties of the office during the absence or temporary
incapacity of its regular incumbent (Blacks Law Dictionary, Revised Fourth Edition,
1978). But such is not the meaning nor the use intended in the context of Philippine
law. In referring to Dr. Estebans appointments, the term is not descriptive of the
nature of the appointments given to him. Rather, it is used to denote the manner in
which said appointments were made, that is, done by the President of the
Pamantasan in the meantime, while the Board of Regents, which is originally
vested by the University Charter with the power of appointment, is unable to act. x x
x.(Emphasis supplied)

Thus, the term ad interim appointment, as used in letters of appointment signed by

the President, means a permanent appointment made by the President in the
meantime that Congress is in recess. It does not mean a temporary appointment that
can be withdrawn or revoked at any time. The term, although not found in the text of
the Constitution, has acquired a definite legal meaning under Philippine
jurisprudence. The Court had again occasion to explain the nature of an ad
interim appointment in the more recent case of Marohombsar vs. Court of
Appeals,[28] where the Court stated:

We have already mentioned that an ad interim appointment is not descriptive of the

nature of the appointment, that is, it is not indicative of whether the appointment is
temporary or in an acting capacity, rather it denotes the manner in which the
appointment was made. In the instant case, the appointment extended to private
respondent by then MSU President Alonto, Jr. was issued without condition nor
limitation as to tenure. The permanent status of private respondents appointment as
Executive Assistant II was recognized and attested to by the Civil Service
Commission Regional Office No. 12. Petitioners submission that private respondents
ad interim appointment is synonymous with a temporary appointment which could
be validly terminated at any time is clearly untenable. Ad interim appointments are
permanent but their terms are only until the Board disapproves them. (Emphasis
supplied)

An ad interim appointee who has qualified and assumed office becomes at that
moment a government employee and therefore part of the civil service. He enjoys the
constitutional protection that [n]o officer or employee in the civil service shall be
removed or suspended except for cause provided by law. [29] Thus, an ad
interim appointment becomes complete and irrevocable once the appointee has
qualified into office. The withdrawal or revocation of an ad interimappointment is
possible only if it is communicated to the appointee before the moment he qualifies,
and any withdrawal or revocation thereafter is tantamount to removal from
office.[30]Once an appointee has qualified, he acquires a legal right to the office which
is protected not only by statute but also by the Constitution. He can only be removed
for cause, after notice and hearing, consistent with the requirements of due process.
An ad interim appointment can be terminated for two causes specified in the
Constitution. The first cause is the disapproval of his ad interim appointment by the
Commission on Appointments. The second cause is the adjournment of Congress
without the Commission on Appointments acting on his appointment. These two
causes are resolutory conditions expressly imposed by the Constitution on all ad
interim appointments. These resolutory conditions constitute, in effect, a Sword of
Damocles over the heads of ad interim appointees. No one, however, can complain
because it is the Constitution itself that places the Sword of Damocles over the heads
of the ad interim appointees.
While an ad interim appointment is permanent and irrevocable except as provided
by law, an appointment or designation in a temporary or acting capacity can be
withdrawn or revoked at the pleasure of the appointing power. [31] A temporary or
acting appointee does not enjoy any security of tenure, no matter how briefly. This is
the kind of appointment that the Constitution prohibits the President from making to
the three independent constitutional commissions, including the COMELEC. Thus,
in Brillantes vs. Yorac,[32] this Court struck down
as unconstitutional thedesignation by then President Corazon Aquino of Associate
Commissioner Haydee Yorac as Acting Chairperson of the COMELEC. This Court
ruled that:

A designation as Acting Chairman is by its very terms essentially temporary

and therefore revocable at will. No cause need be established to justify its
revocation. Assuming its validity, the designation of the respondent as Acting
Chairman of the Commission on Elections may be withdrawn by the
President of the Philippines at any time and for whatever reason she sees
fit. It is doubtful if the respondent, having accepted such designation, will not
be estopped from challenging its withdrawal.

xxx

The Constitution provides for many safeguards to the independence of the

Commission on Elections, foremost among which is the security of tenure of
its members. That guarantee is not available to the respondent as Acting
Chairman of the Commission on Elections by designation of the President of
the Philippines.

Earlier, in Nacionalista Party vs. Bautista,[33] a case decided under the 1935
Constitution, which did not have a provision prohibiting temporary or acting
appointments to the COMELEC, this Court nevertheless declared unconstitutional the
designation of the Solicitor General as acting member of the COMELEC. This Court
ruled that the designation of an acting Commissioner would undermine the
independence of the COMELEC and hence violate the Constitution. We declared
then: It would be more in keeping with the intent, purpose and aim of the framers of
the Constitution to appoint a permanent Commissioner than to designate one to act
temporarily. (Emphasis supplied)
 In the instant case, the President did in fact appoint permanent Commissioners to
fill the vacancies in the COMELEC, subject only to confirmation by the Commission
on Appointments.Benipayo, Borra and Tuason were extended permanent
appointments during the recess of Congress. They were not appointed or designated in
a temporary or acting capacity, unlike Commissioner Haydee Yorac in Brillantes vs.
Yorac[34] and Solicitor General Felix Bautista in Nacionalista Party vs.
Bautista.[35] The ad interim appointments of Benipayo, Borra and Tuason are expressly
allowed by the Constitution which authorizes the President, during the recess of
Congress, to make appointments that take effect immediately.
While the Constitution mandates that the COMELEC shall be independent[36], this
provision should be harmonized with the Presidents power to extend ad
interim appointments. To hold that the independence of the COMELEC requires the
Commission on Appointments to first confirm ad interim appointees before the
appointees can assume office will negate the Presidents power to make ad
interim appointments. This is contrary to the rule on statutory construction to give
meaning and effect to every provision of the law. It will also run counter to the clear
intent of the framers of the Constitution.
The original draft of Section 16, Article VII of the Constitution - on the
nomination of officers subject to confirmation by the Commission on Appointments -
did not provide for ad interimappointments. The original intention of the framers of
the Constitution was to do away with ad interim appointments because the plan was
for Congress to remain in session throughout the year except for a brief 30-day
compulsory recess. However, because of the need to avoid disruptions in essential
government services, the framers of the Constitution thought it wise to reinstate the
provisions of the 1935 Constitution on ad interim appointments. The following
discussion during the deliberations of the Constitutional Commission elucidates this:

FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such
circumstances, is it necessary to provide for ad interim appointments? Perhaps there
should be a little discussion on that.

xxx

MS. AQUINO: My concern is that unless this problem is addressed, this might
present problems in terms of anticipating interruption of government business,
considering that we are not certain of the length of involuntary recess or adjournment
of the Congress. We are certain, however, of the involuntary adjournment of the
Congress which is 30 days, but we cannot leave to conjecture the matter of
involuntary recess.

FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the
Commissioner has a formula x x x.

xxx

MR. BENGZON: Madam President, apropos of the matter raised by Commissioner

Aquino and after conferring with the Committee, Commissioner Aquino and I propose
the following amendment as the last paragraph of Section 16, the wordings of which
are in the 1935 Constitution: THE PRESIDENT SHALL HAVE THE POWER TO
MAKE APPOINTMENTS DURING THE RECESS OF CONGRESS WHETHER IT
BE 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.

This is otherwise called the ad interim appointments.

xxx

THE PRESIDENT: Is there any objection to the proposed amendment of

Commissioners Aquino and Bengzon, adding a paragraph to the last paragraph of
Section 16? (Silence) The Chair hears none; the amendment is approved.[37] (Emphasis
supplied)

Clearly, the reinstatement in the present Constitution of the ad interim appointing

power of the President was for the purpose of avoiding interruptions in vital
government services that otherwise would result from prolonged vacancies in
government offices, including the three constitutional commissions. In his concurring
opinion in Guevara vs. Inocentes,[38] decided under the 1935 Constitution, Justice
Roberto Concepcion, Jr. explained the rationale behind ad interimappointments in this
manner:

Now, why is the lifetime of ad interim appointments so limited? Because, if they

expired before the session of Congress, the evil sought to be avoided interruption in
the discharge of essential functions may take place. Because the same evil would
result if the appointments ceased to be effective during the session of Congress and
before its adjournment. Upon the other hand, once Congress has adjourned, the evil
aforementioned may easily be conjured by the issuance of other ad
interim appointments or reappointments. (Emphasis supplied)

Indeed, the timely application of the last sentence of Section 16, Article VII of the
Constitution barely avoided the interruption of essential government services in the
May 2001 national elections. Following the decision of this Court in Gaminde vs.
Commission on Appointments,[39] promulgated on December 13, 2000, the terms of
office of constitutional officers first appointed under the Constitution would have to
be counted starting February 2, 1987, the date of ratification of the Constitution,
regardless of the date of their actual appointment. By this reckoning, the terms of
office of three Commissioners of the COMELEC, including the Chairman, would end
on February 2, 2001.[40]
Then COMELEC Chairperson Harriet O. Demetriou was appointed only on
January 11, 2000 to serve, pursuant to her appointment papers, until February 15,
2002,[41] the original expiry date of the term of her predecessor, Justice Bernardo P.
Pardo, who was elevated to this Court. The original expiry date of the term of
Commissioner Teresita Dy-Liacco Flores was also February 15, 2002, while that of
Commissioner Julio F. Desamito was November 3, 2001.[42] The original expiry dates
of the terms of office of Chairperson Demetriou and Commissioners Flores and
Desamito were therefore supposed to fall after the May 2001 elections. Suddenly and
unexpectedly, because of the Gaminde ruling, there were three vacancies in the seven-
person COMELEC, with national elections looming less than three and one-half
months away. To their credit, Chairperson Demetriou and Commissioner Flores
vacated their offices on February 2, 2001 and did not question any more before this
Court the applicability of the Gaminde ruling to their own situation.
In a Manifestation[43] dated December 28, 2000 filed with this Court in
the Gaminde case, Chairperson Demetriou stated that she was vacating her office on
February 2, 2001, as she believed any delay in choosing her successor might create a
constitutional crisis in view of the proximity of the May 2001 national
elections. Commissioner Desamito chose to file a petition for intervention [44] in
the Gaminde case but this Court denied the intervention. Thus, Commissioner
Desamito also vacated his office on February 2, 2001.
During an election year, Congress normally goes on voluntary recess between
February and June considering that many of the members of the House of
Representatives and the Senate run for re-election. In 2001, the Eleventh Congress
adjourned from January 9, 2001 to June 3, 2001.[45]Concededly, there was no more
time for Benipayo, Borra and Tuason, who were originally extended ad
interim appointments only on March 22, 2001, to be confirmed by the Commission on
Appointments before the May 14, 2001 elections.
If Benipayo, Borra and Tuason were not extended ad interim appointments to fill
up the three vacancies in the COMELEC, there would only have been one division
functioning in the COMELEC instead of two during the May 2001 elections.
Considering that the Constitution requires that all x x x election cases shall be heard
and decided in division,[46] the remaining one division would have been swamped with
election cases. Moreover, since under the Constitution motions for reconsideration
shall be decided by the Commission en banc, the mere absence of one of the four
remaining members would have prevented a quorum, a less than ideal situation
considering that the Commissioners are expected to travel around the country before,
during and after the elections. There was a great probability that disruptions in the
conduct of the May 2001 elections could occur because of the three vacancies in the
COMELEC. The successful conduct of the May 2001 national elections, right after
the tumultuous EDSA II and EDSA III events, was certainly essential in safeguarding
and strengthening our democracy.
Evidently, the exercise by the President in the instant case of her constitutional
power to make ad interim appointments prevented the occurrence of the very evil
sought to be avoided by the second paragraph of Section 16, Article VII of the
Constitution. This power to make ad interimappointments is lodged in the President to
be exercised by her in her sound judgment. Under the second paragraph of Section 16,
Article VII of the Constitution, the President can choose either of two modes in
appointing officials who are subject to confirmation by the Commission on
Appointments. First, while Congress is in session, the President may nominate the
prospective appointee, and pending consent of the Commission on Appointments, the
nominee cannot qualify and assume office. Second, during the recess of Congress, the
President may extend an ad interimappointment which allows the appointee to
immediately qualify and assume office.
Whether the President chooses to nominate the prospective appointee or extend
an ad interimappointment is a matter within the prerogative of the President because
the Constitution grants her that power. This Court cannot inquire into the propriety of
the choice made by the President in the exercise of her constitutional power, absent
grave abuse of discretion amounting to lack or excess of jurisdiction on her part,
which has not been shown in the instant case.
 The issuance by Presidents of ad interim appointments to the COMELEC is a
long-standing practice. Former President Corazon Aquino issued
an ad interim appointment to Commissioner Alfredo E. Abueg. Former President
[47]

Fidel V. Ramos extended ad interim appointments to Commissioners Julio F.

Desamito, Japal M. Guiani, Graduacion A. Reyes-Claravall and Manolo F.
Gorospe.[48] Former President Joseph Estrada also extended ad interim appointments to
Commissioners Abdul Gani M. Marohombsar, Luzviminda Tancangco, Mehol K.
Sadain and Ralph C. Lantion.[49]
The Presidents power to extend ad interim appointments may indeed briefly put
the appointee at the mercy of both the appointing and confirming powers. This
situation, however, is only for a short period - from the time of issuance of the ad
interim appointment until the Commission on Appointments gives or withholds its
consent. The Constitution itself sanctions this situation, as a trade-off against the evil
of disruptions in vital government services. This is also part of the check-and-balance
under the separation of powers, as a trade-off against the evil of granting the President
absolute and sole power to appoint. The Constitution has wisely subjected the
Presidents appointing power to the checking power of the legislature.
This situation, however, does not compromise the independence of the
COMELEC as a constitutional body. The vacancies in the COMELEC are precisely
staggered to insure that the majority of its members hold confirmed appointments, and
not one President will appoint all the COMELEC members.[50] In the instant case, the
Commission on Appointments had long confirmed four[51] of the incumbent
COMELEC members, comprising a majority, who could now be removed from office
only by impeachment. The special constitutional safeguards that insure the
independence of the COMELEC remain in place.[52] The COMELEC enjoys fiscal
autonomy, appoints its own officials and employees, and promulgates its own rules on
pleadings and practice.Moreover, the salaries of COMELEC members cannot be
decreased during their tenure.
In fine, we rule that the ad interim appointments extended by the President to
Benipayo, Borra and Tuason, as COMELEC Chairman and Commissioners,
respectively, do not constitute temporary or acting appointments prohibited by Section
1 (2), Article IX-C of the Constitution.

Third Issue: The Constitutionality of Renewals of Appointments

Petitioner also agues that assuming the first ad interim appointments and the first
assumption of office by Benipayo, Borra and Tuason are constitutional, the renewal of
the their ad interimappointments and their subsequent assumption of office to the
same positions violate the prohibition on reappointment under Section 1 (2), Article
IX-C of the Constitution, which provides as follows:

The Chairman and the Commissioners shall be appointed by the President with the
consent of the Commission on Appointments for a term of seven years without
reappointment. Of those first appointed, three Members shall hold office for seven
years, two Members for five years, and the last members for three years, without
reappointment. X x x. (Emphasis supplied)
Petitioner theorizes that once an ad interim appointee is by-passed by the Commission
on Appointments, his ad interim appointment can no longer be renewed because this
will violate Section 1 (2), Article IX-C of the Constitution which prohibits
reappointments. Petitioner asserts that this is particularly true to permanent appointees
who have assumed office, which is the situation of Benipayo, Borra and Tuason if
their ad interim appointments are deemed permanent in character.
There is no dispute that an ad interim appointee disapproved by the Commission
on Appointments can no longer be extended a new appointment. The disapproval is a
final decision of the Commission on Appointments in the exercise of its checking
power on the appointing authority of the President. The disapproval is a decision on
the merits, being a refusal by the Commission on Appointments to give its consent
after deliberating on the qualifications of the appointee. Since the Constitution does
not provide for any appeal from such decision, the disapproval is final and binding on
the appointee as well as on the appointing power. In this instance, the President can no
longer renew the appointment not because of the constitutional prohibition on
reappointment, but because of a final decision by the Commission on Appointments to
withhold its consent to the appointment.
An ad interim appointment that is by-passed because of lack of time or failure of
the Commission on Appointments to organize is another matter. A by-passed
appointment is one that has not been finally acted upon on the merits by the
Commission on Appointments at the close of the session of Congress. There is no
final decision by the Commission on Appointments to give or withhold its consent to
the appointment as required by the Constitution. Absent such decision, the President is
free to renew the ad interim appointment of a by-passed appointee. This is recognized
in Section 17 of the Rules of the Commission on Appointments, which provides as
follows:

Section 17. Unacted Nominations or Appointments Returned to the

President. Nominations or appointments submitted by the President of the Philippines
which are not finally acted upon at the close of the session of Congress shall be
returned to the President and, unless new nominations or appointments are made,
shall not again be considered by the Commission. (Emphasis supplied)

Hence, under the Rules of the Commission on Appointments, a by-passed

appointment can be considered again if the President renews the appointment.
It is well settled in this jurisdiction that the President can renew
the ad interim appointments of by-passed appointees. Justice Roberto Concepcion, Jr.
lucidly explained in his concurring opinion in Guevara vs. Inocentes[53] why by-
passed ad interim appointees could be extended new appointments, thus:

In short, an ad interim appointment ceases to be effective upon disapproval by the

Commission, because the incumbent can not continue holding office over the positive
objection of the Commission. It ceases, also, upon the next adjournment of the
Congress, simply because the President may then issue new appointments - not
because of implied disapproval of the Commission deduced from its inaction during
the session of Congress, for, under the Constitution, the Commission may affect
adversely the interim appointments only by action, never by omission.If the
adjournment of Congress were an implied disapproval of ad interim appointments
made prior thereto, then the President could no longer appoint those so by-passed by
the Commission.But, the fact is that the President may reappoint them, thus clearly
indicating that the reason for said termination of the ad interim appointments is not
the disapproval thereof allegedly inferred from said omission of the Commission, but
the circumstance that upon said adjournment of the Congress, the President is free
to make ad interim appointments or reappointments. (Emphasis supplied)

Guevara was decided under the 1935 Constitution from where the second paragraph
of Section 16, Article VII of the present Constitution on ad interim appointments was
lifted verbatim.[54] The jurisprudence under the 1935 Constitution governing ad
interim appointments by the President is doubtless applicable to the present
Constitution. The established practice under the present Constitution is that the
President can renew the appointments of by-passed ad interim appointees.This is a
continuation of the well-recognized practice under the 1935 Constitution, interrupted
only by the 1973 Constitution which did not provide for a Commission on
Appointments but vested sole appointing power in the President.
The prohibition on reappointment in Section 1 (2), Article IX-C of the
Constitution applies neither to disapproved nor by-passed ad interim appointments. A
disapproved ad interimappointment cannot be revived by another ad
interim appointment because the disapproval is final under Section 16, Article VII of
the Constitution, and not because a reappointment is prohibited under Section 1 (2),
Article IX-C of the Constitution. A by-passed ad interim appointment can be revived
by a new ad interim appointment because there is no final disapproval under Section
16, Article VII of the Constitution, and such new appointment will not result in the
appointee serving beyond the fixed term of seven years.
Section 1 (2), Article IX-C of the Constitution provides that [t]he Chairman and
the Commissioners shall be appointed x x x for a term of seven years without
reappointment. (Emphasis supplied) There are four situations where this provision
will apply. The first situation is where an ad interim appointee to the COMELEC,
after confirmation by the Commission on Appointments, serves his full seven-year
term. Such person cannot be reappointed to the COMELEC, whether as a member or
as a chairman, because he will then be actually serving more than seven years. The
second situation is where the appointee, after confirmation, serves a part of his term
and then resigns before his seven-year term of office ends. Such person cannot be
reappointed, whether as a member or as a chair, to a vacancy arising from retirement
because a reappointment will result in the appointee also serving more than seven
years. The third situation is where the appointee is confirmed to serve the unexpired
term of someone who died or resigned, and the appointee completes the unexpired
term. Such person cannot be reappointed, whether as a member or chair, to a vacancy
arising from retirement because a reappointment will result in the appointee also
serving more than seven years.
The fourth situation is where the appointee has previously served a term of less
than seven years, and a vacancy arises from death or resignation. Even if it will not
result in his serving more than seven years, a reappointment of such person to serve an
unexpired term is also prohibited because his situation will be similar to those
appointed under the second sentence of Section 1 (2), Article IX-C of the
Constitution. This provision refers to the first appointees under the Constitution whose
terms of office are less than seven years, but are barred from ever being reappointed
under any situation. Not one of these four situations applies to the case of Benipayo,
Borra or Tuason.
 The framers of the Constitution made it quite clear that any person who has served
any term of office as COMELEC member whether for a full term of
seven years, a truncated term of five or three years, or even for an unexpired term of
any length of time can no longer be reappointed to the COMELEC. Commissioner
Foz succinctly explained this intent in this manner:

MR. FOZ. But there is the argument made in the concurring opinion of Justice
Angelo Bautista in the case of Visarra vs. Miraflor, to the effect that the
prohibition on reappointment applies only when the term or tenure is for seven
years. But in cases where the appointee serves only for less than seven years,
he would be entitled to reappointment. Unless we put the qualifying words
without reappointment in the case of those appointed, then it is possible that
an interpretation could be made later on their case, they can still be
reappointed to serve for a total of seven years.

Precisely, we are foreclosing that possibility by making it clear that even in

the case of those first appointed under the Constitution, no reappointment
can be made.[55](Emphasis supplied)

In Visarra vs. Miraflor,[56] Justice Angelo Bautista, in his concurring opinion,

quoted Nacionalista vs. De Vera[57] that a [r]eappointment is not prohibited when a
Commissioner has held office only for, say, three or six years, provided his term will
not exceed nine years in all. This was the interpretation despite the express provision
in the 1935 Constitution that a COMELEC member shall hold office for a term of
nine years and may not be reappointed.
To foreclose this interpretation, the phrase without reappointment appears twice in
Section 1 (2), Article IX-C of the present Constitution. The first phrase prohibits
reappointment of any person previously appointed for a term of seven years. The
second phrase prohibits reappointment of any person previously appointed for a term
of five or three years pursuant to the first set of appointees under the Constitution. In
either case, it does not matter if the person previously appointed completes his term of
office for the intention is to prohibit any reappointment of any kind.
However, an ad interim appointment that has lapsed by inaction of the
Commission on Appointments does not constitute a term of office. The period from
the time the ad interimappointment is made to the time it lapses is neither a fixed term
nor an unexpired term. To hold otherwise would mean that the President by his
unilateral action could start and complete the running of a term of office in the
COMELEC without the consent of the Commission on Appointments. This
interpretation renders inutile the confirming power of the Commission on
Appointments.
The phrase without reappointment applies only to one who has been appointed by
the President and confirmed by the Commission on Appointments, whether or not
such person completes his term of office. There must be a confirmation by the
Commission on Appointments of the previous appointment before the prohibition on
reappointment can apply. To hold otherwise will lead to absurdities and negate the
Presidents power to make ad interim appointments.
In the great majority of cases, the Commission on Appointments usually fails to
act, for lack of time, on the ad interim appointments first issued to appointees. If
such ad interim appointments can no longer be renewed, the President will certainly
hesitate to make ad interim appointments because most of her appointees will
effectively be disapproved by mere inaction of the Commission on
Appointments. This will nullify the constitutional power of the President to make ad
interim appointments, a power intended to avoid disruptions in vital government
services. This Court cannot subscribe to a proposition that will wreak havoc on vital
government services.
The prohibition on reappointment is common to the three constitutional
commissions. The framers of the present Constitution prohibited reappointments for
two reasons. The first is to prevent a second appointment for those who have been
previously appointed and confirmed even if they served for less than seven years. The
second is to insure that the members of the three constitutional commissions do not
serve beyond the fixed term of seven years. As reported in the Journal of the
Constitutional Commission, Commissioner Vicente B. Foz, who sponsored[58]the
proposed articles on the three constitutional commissions, outlined the four important
features of the proposed articles, to wit:

Mr. Foz stated that the Committee had introduced basic changes in the
common provision affecting the three Constitutional Commissions, and which
are: 1) fiscal autonomy which provides (that) appropriations shall be
automatically and regularly released to the Commission in the same manner
(as) provided for the Judiciary; 2) fixed term of office without
reappointment on a staggered basis to ensure continuity of functions and to
minimize the opportunity of the President to appoint all the members during
his incumbency; 3) prohibition to decrease salaries of the members of the
Commissions during their term of office; and 4) appointments of members
would not require confirmation.[59] (Emphasis supplied)

There were two important amendments subsequently made by the Constitutional

Commission to these four features. First, as discussed earlier, the framers of the
Constitution decided to require confirmation by the Commission on Appointments of
all appointments to the constitutional commissions. Second, the framers decided
to strengthen further the prohibition on serving beyond the fixed seven-year term, in
the light of a former chair of the Commission on Audit remaining in office for 12
years despite his fixed term of seven years. The following exchange in the
deliberations of the Constitutional Commission is instructive:

MR. SUAREZ: These are only clarificatory questions, Madam President. May
I call the sponsors attention, first of all, to Section 2 (2) on the Civil Service
Commission wherein it is stated: In no case shall any Member be appointed in
a temporary or acting capacity. I detect in the Committees proposed
resolutions a constitutional hangover, if I may use the term, from the past
administration. Am I correct in concluding that the reason the Committee
introduced this particular provision is to avoid an incident similar to the case
of the Honorable Francisco Tantuico who was appointed in an acting capacity
as Chairman of the Commission on Audit for about 5 years from 1975 until
1980, and then in 1980, was appointed as Chairman with a tenure of another 7
years. So, if we follow that appointment to (its) logical conclusion, he
occupied that position for about 12 years in violation of the Constitution?
 MR. FOZ: It is only one of the considerations. Another is really to make sure
that any member who is appointed to any of the commissions does not serve
beyond 7 years.[60](Emphasis supplied)

Commissioner Christian Monsod further clarified the prohibition on

reappointment in this manner:

"MR. MONSOD. If the (Commissioner) will read the whole Article, she will
notice that there is no reappointment of any kind and, therefore as a whole
there is no way that somebody can serve for more than seven years. The
purpose of the last sentence is to make sure that this does not happen by
including in the appointment both temporary and acting
capacities."[61] (Emphasis supplied)

Plainly, the prohibition on reappointment is intended to insure that there will be no

reappointment of any kind. On the other hand, the prohibition on temporary or acting
appointments is intended to prevent any circumvention of the prohibition on
reappointment that may result in an appointees total term of office exceeding seven
years. The evils sought to be avoided by the twin prohibitions are very specific -
reappointment of any kind and exceeding ones term in office beyond the maximum
period of seven years.
Not contented with these ironclad twin prohibitions, the framers of the
Constitution tightened even further the screws on those who might wish to extend
their terms of office. Thus, the word designated was inserted to plug any loophole that
might be exploited by violators of the Constitution, as shown in the following
discussion in the Constitutional Commission:

MR. DE LOS REYES: On line 32, between the words appointed and in, I propose to
insert the words OR DESIGNATED so that the whole sentence will read: In no case
shall any Member be appointed OR DESIGNATED in a temporary or acting capacity.

THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?

MR. FOZ: But it changes the meaning of this sentence. The sentence reads: In no case
shall any Member be appointed in a temporary or acting capacity.

MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that
some lawyers make a distinction between an appointment and a designation. The
Gentleman will recall that in the case of Commissioner on Audit Tantuico, I think his
term exceeded the constitutional limit but the Minister of Justice opined that it did not
because he was only designated during the time that he acted as Commissioner on
Audit. So, in order to erase that distinction between appointment and designation, we
should specifically place the word so that there will be no more ambiguity. In no case
shall any Member be appointed OR DESIGNATED in a temporary or acting capacity.

MR. FOZ: The amendment is accepted, Mr. Presiding Officer.

MR. DE LOS REYES: Thank you.

THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The
Chair hears none; the amendment is approved.[62]
 The ad interim appointments and subsequent renewals of appointments of
Benipayo, Borra and Tuason do not violate the prohibition on reappointments because
there were no previous appointments that were confirmed by the Commission on
Appointments. A reappointment presupposes a previous confirmed appointment. The
same ad interim appointments and renewals of appointments will also not breach the
seven-year term limit because all the appointments and renewals of appointments of
Benipayo, Borra and Tuason are for a fixed term expiring on February 2,
2008.[63] Any delay in their confirmation will not extend the expiry date of their terms
of office. Consequently, there is no danger whatsoever that the renewal of the ad
interimappointments of these three respondents will result in any of the evils intended
to be exorcised by the twin prohibitions in the Constitution. The continuing renewal of
the ad interim appointment of these three respondents, for so long as their terms of
office expire on February 2, 2008, does not violate the prohibition on reappointments
in Section 1 (2), Article IX-C of the Constitution.

Fourth Issue: Respondent Benipayos Authority to Reassign Petitioner

Petitioner claims that Benipayo has no authority to remove her as Director IV of

the EID and reassign her to the Law Department. Petitioner further argues that only
the COMELEC, acting as a collegial body, can authorize such
reassignment. Moreover, petitioner maintains that a reassignment without her consent
amounts to removal from office without due process and therefore illegal.
Petitioners posturing will hold water if Benipayo does not possess any color of
title to the office of Chairman of the COMELEC. We have ruled, however, that
Benipayo is the de jureCOMELEC Chairman, and consequently he has full authority
to exercise all the powers of that office for so long as his ad
interim appointment remains effective. Under Section 7 (4), Chapter 2, Subtitle C,
Book V of the Revised Administrative Code, the Chairman of the COMELEC is
vested with the following power:

Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who
shall be the Chief Executive Officer of the Commission, shall:

xxx

(4) Make temporary assignments, rotate and transfer personnel in accordance with
the provisions of the Civil Service Law. (Emphasis supplied)

The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on

his own authority to transfer or reassign COMELEC personnel in accordance with the
Civil Service Law.In the exercise of this power, the Chairman is not required by law
to secure the approval of the COMELEC en banc.
Petitioners appointment papers dated February 2, 1999, February 15, 2000 and
February 15, 2001, attached as Annexes X, Y and Z to her Petition, indisputably show
that she held her Director IV position in the EID only in
an acting or temporary capacity.[64] Petitioner is not a Career Executive Service (CES)
officer, and neither does she hold Career Executive Service Eligibility, which are
necessary qualifications for holding the position of Director IV as prescribed in the
Qualifications Standards (Revised 1987) issued by the Civil Service
Commission.[65] Obviously, petitioner does not enjoy security of tenure as Director
IV. In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G. Bacal, [66] this Court
held that:

As respondent does not have the rank appropriate for the position of Chief Public
Attorney, her appointment to that position cannot be considered permanent, and she
can claim no security of tenure in respect of that position. As held in Achacoso v.
Macaraig:

It is settled that a permanent appointment can be issued only to a person who meets
all the requirements for the position to which he is being appointed, including the
appropriate eligibility prescribed. Achacoso did not. At best, therefore, his
appointment could be regarded only as temporary. And being so, it could be
withdrawn at will by the appointing authority and at a moments notice, conformably
to established jurisprudence x x x.

The mere fact that a position belongs to the Career Service does not automatically
confer security of tenure on its occupant even if he does not possess the required
qualifications. Such right will have to depend on the nature of his appointment, which
in turn depends on his eligibility or lack of it. A person who does not have the
requisite qualifications for the position cannot be appointed to it in the first place, or
as an exception to the rule, may be appointed to it merely in an acting capacity in the
absence of appropriate eligibles. The appointment extended to him cannot be regarded
as permanent even if it may be so designated x x x.

Having been appointed merely in a temporary or acting capacity, and not

possessed of the necessary qualifications to hold the position of Director IV, petitioner
has no legal basis in claiming that her reassignment was contrary to the Civil Service
Law. This time, the vigorous argument of petitioner that a temporary or acting
appointment can be withdrawn or revoked at the pleasure of the appointing power
happens to apply squarely to her situation.
Still, petitioner assails her reassignment, carried out during the election period, as
a prohibited act under Section 261 (h) of the Omnibus Election Code, which provides
as follows:

Section 261. Prohibited Acts. The following shall be guilty of an election

offense:

xxx

(h) Transfer of officers and employees in the civil service - Any public official
who makes or causes any transfer or detail whatever of any officer or
employee in the civil service including public school teachers, within the
election period except upon prior approval of the Commission.

Petitioner claims that Benipayo failed to secure the approval of the COMELEC en
banc to effect transfers or reassignments of COMELEC personnel during the election
period.[67] Moreover, petitioner insists that the COMELEC en banc must concur to
every transfer or reassignment of COMELEC personnel during the election period.
 Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC
Resolution No. 3300 dated November 6, 2000,[68] exempting the COMELEC from
Section 261 (h) of the Omnibus Election Code. The resolution states in part:

WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election
Code provides as follows:

xxx

Sec. 261. Prohibited Acts. The following shall be guilty of an election

offense:

xxx

(h) Transfer of officers and employees in the civil service Any public
official who makes or causes any transfer or detail whatever of any
officer or employee in the civil service including public school teachers,
within the election period except upon approval of the Commission.

WHEREAS, the aforequoted provisions are applicable to the national and local
elections on May 14, 2001;

WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the

Commission on Elections during the prohibited period in order that it can carry out its
constitutional duty to conduct free, orderly, honest, peaceful and credible elections;

NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred

upon it by the Constitution, the Omnibus Election Code and other election laws, as an
exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED,
to appoint, hire new employees or fill new positions and transfer or reassign its
personnel, when necessary in the effective performance of its mandated functions
during the prohibited period, provided that the changes in the assignment of its field
personnel within the thirty-day period before election day shall be effected after due
notice and hearing. (Emphasis supplied)

The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing
before any transfer or reassignment can be made within thirty days prior to election
day, refers only to COMELEC field personnel and not to head office personnel like
the petitioner. Under the Revised Administrative Code,[69] the COMELEC Chairman is
the sole officer specifically vested with the power to transfer or reassign COMELEC
personnel. The COMELEC Chairman will logically exercise the authority to transfer
or reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300. The
COMELEC en banc cannot arrogate unto itself this power because that will mean
amending the Revised Administrative Code, an act the COMELEC en banc cannot
legally do.
COMELEC Resolution No. 3300 does not require that every transfer or
reassignment of COMELEC personnel should carry the concurrence of the
COMELEC as a collegial body.Interpreting Resolution No. 3300 to require such
concurrence will render the resolution meaningless since the COMELEC en banc will
have to approve every personnel transfer or reassignment, making the resolution
utterly useless. Resolution No. 3300 should be interpreted for what it is, an approval
to effect transfers and reassignments of personnel, without need of securing a second
approval from the COMELEC en banc to actually implement such transfer or
reassignment.
The COMELEC Chairman is the official expressly authorized by law to transfer
or reassign COMELEC personnel. The person holding that office, in a de
jure capacity, is Benipayo. The COMELEC en banc, in COMELEC Resolution No.
3300, approved the transfer or reassignment of COMELEC personnel during the
election period. Thus, Benipayos order reassigning petitioner from the EID to the Law
Department does not violate Section 261 (h) of the Omnibus Election Code. For the
same reason, Benipayos order designating Cinco Officer-in-Charge of the EID is
legally unassailable.

Fifth Issue: Legality of Disbursements to Respondents

Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-

Charge of the Finance Services Department of the Commission on Elections, did not
act in excess of jurisdiction in paying the salaries and other emoluments of Benipayo,
Borra, Tuason and Cinco.
WHEREFORE, the petition is dismissed for lack of merit. Costs against
petitioner.
SO ORDERED.
AQUILINO Q. PIMENTEL, JR., G.R. No. 164978
EDGARDO J. ANGARA,
JUAN PONCE ENRILE, Present:
LUISA P. EJERCITO-ESTRADA, Davide, Jr., C.J.,
JINGGOY E. ESTRADA, Puno,
PANFILO M. LACSON, Panganiban,
ALFREDO S. LIM, Quisumbing,
JAMBY A.S. MADRIGAL, and Ynares-Santiago,
SERGIO R. OSMEA III, Sandoval-Gutierrez,
Petitioners, Carpio,
Austria-Martinez,
- versus - Corona,
Carpio Morales,
EXEC. SECRETARY EDUARDO Callejo, Sr.,
R. ERMITA, FLORENCIO B. ABAD, Azcuna,
AVELINO J. CRUZ, JR., Tinga,
MICHAEL T. DEFENSOR, Chico-Nazario, and
JOSEPH H. DURANO, Garcia, JJ.
RAUL M. GONZALEZ,
ALBERTO G. ROMULO,
RENE C. VILLA, and Promulgated:
ARTHUR C. YAP,
Respondents. October 13, 2005
x-----------------------------------------------------x

DECISION

CARPIO, J.:

The Case

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

Antecedent Facts
 The Senate and the House of Representatives (Congress) commenced their
regular session on 26 July 2004. The Commission on Appointments, composed of
Senators and Representatives, was constituted on 25 August 2004.

Meanwhile, President Arroyo issued appointments[2] to respondents as acting

secretaries of their respective departments.

Appointee Department Date of Appointment

Arthur C. Yap Agriculture 15 August 2004
Alberto G. Romulo Foreign Affairs 23 August 2004
Raul M. Gonzalez Justice 23 August 2004
Florencio B. Abad Education 23 August 2004
Avelino J. Cruz, Jr. National Defense 23 August 2004
Rene C. Villa Agrarian Reform 23 August 2004
Joseph H. Durano Tourism 23 August 2004
Michael T. Defensor Environment and Natural Resources 23 August 2004

The appointment papers are uniformly worded as follows:

Sir:

Pursuant to the provisions of existing laws, you are hereby

appointed ACTING SECRETARY, DEPARTMENT OF (appropriate
department) vice (name of person replaced).

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

(signed)
Gloria Arroyo

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

On 8 September 2004, Aquilino Q. Pimentel, Jr. (Senator Pimentel), Edgardo J.

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

Congress adjourned on 22 September 2004. On 23 September 2004,

President Arroyo issued ad interim appointments[3] to respondents as secretaries of
the departments to which they were previously appointed in an acting capacity.
The appointment papers are uniformly worded as follows:
Sir:

Pursuant to the provisions of existing laws, you are hereby

appointed SECRETARY [AD INTERIM], DEPARTMENT OF
(appropriate department).

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

(signed)
Gloria Arroyo

Issue

The petition questions the constitutionality of President Arroyos

appointment of respondents as acting secretaries without the consent of the
Commission on Appointments while Congress is in session.

The Courts Ruling

The petition has no merit.

Preliminary Matters
On the Mootness of the Petition

The Solicitor General argues that the petition is moot because President Arroyo

had extended to respondents ad interim appointments on 23 September 2004

immediately after the recess of Congress.

As a rule, the writ of prohibition will not lie to enjoin acts already
done.[4]However, as an exception to the rule on mootness, courts will decide a
question otherwise moot if it is capable of repetition yet evading review.[5]

In the present case, the mootness of the petition does not bar its resolution. The
question of the constitutionality of the Presidents appointment of department
secretaries in an acting capacity while Congress is in session will arise in every

such appointment.

On the Nature of the Power to Appoint

The power to appoint is essentially executive in nature, and the legislature may not
interfere with the exercise of this executive power except in those instances when
the Constitution expressly allows it to interfere.[6] Limitations on the executive

power to appoint are construed strictly against the legislature.[7] The scope of the
legislatures interference in the executives power to appoint is limited to the power
to prescribe the qualifications to an appointive office. Congress cannot appoint a

person to an office in the guise of prescribing qualifications to that office. Neither

may Congress impose on the President the duty to appoint any particular person to
an office.[8]

However, even if the Commission on Appointments is composed of members of

Congress, the exercise of its powers is executive and not legislative. The
Commission on Appointments does not legislate when it exercises its power to

give or withhold consent to presidential appointments. Thus:

 xxx The Commission on Appointments is a creature of the Constitution. Although
its membership is confined to members of Congress, said Commission is
independent of Congress. The powers of the Commission do not come from
Congress, but emanate directly from the Constitution. Hence, it is not an agent of
Congress. In fact, the functions of the Commissioner are purely executive in
nature. xxx[9]

On Petitioners Standing

The Solicitor General states that the present petition is a quo warranto proceeding

because, with the exception of Secretary Ermita, petitioners effectively seek to oust
respondents for unlawfully exercising the powers of department secretaries. The
Solicitor General further states that petitioners may not claim standing as Senators

because no power of the Commission on Appointments has been infringed upon or

violated by the President. xxx If at all, the Commission on Appointments as a body
(rather than individual members of the Congress) may possess standing in this
case.[10]

Petitioners, on the other hand, state that the Court can exercise
its certiorarijurisdiction over unconstitutional acts of the President.[11] Petitioners

further contend that they possess standing because President Arroyos appointment
of department secretaries in an acting capacity while Congress is in session impairs
the powers of Congress. Petitioners cite Sanlakas v. Executive Secretary[12] as

basis, thus:

To the extent that the powers of Congress are impaired, so is the

power of each member thereof, since his office confers a right to
participate in the exercise of the powers of that institution.

An act of the Executive which injures the institution of Congress

causes a derivative but nonetheless substantial injury, which can be
questioned by a member of Congress. In such a case, any member of
Congress can have a resort to the courts.
Considering the independence of the Commission on Appointments from

Congress, it is error for petitioners to claim standing in the present case as

members of Congress. President Arroyos issuance of acting appointments while
Congress is in session impairs no power of Congress. Among the petitioners, only

the following are members of the Commission on Appointments of the

13th Congress: Senator Enrile as Minority Floor Leader, Senator Lacson as
Assistant Minority Floor Leader, and Senator Angara, Senator Ejercito-Estrada,

and Senator Osmea as members.

Thus, on the impairment of the prerogatives of members of the Commission

on Appointments, only Senators Enrile, Lacson, Angara, Ejercito-Estrada, and

Osmea have standing in the present petition. This is in contrast to Senators

Pimentel, Estrada, Lim, and Madrigal, who, though vigilant in protecting their
perceived prerogatives as members of Congress, possess no standing in the present
petition.

The Constitutionality of President Arroyos Issuance

of Appointments to Respondents as Acting Secretaries

Petitioners contend that President Arroyo should not have appointed

respondents as acting secretaries because in case of a vacancy in the Office of a

Secretary, it is only an Undersecretary who can be designated as Acting

Secretary.[13] Petitioners base their argument on Section 10, Chapter 2, Book IV of
Executive Order No. 292 (EO 292),[14] which enumerates the powers and duties of

the undersecretary. Paragraph 5 of Section 10 reads:

SEC. 10. Powers and Duties of the Undersecretary. - The Undersecretary
shall:

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

xxx

Petitioners further assert that while Congress is in session, there can be no

appointments, whether regular or acting, to a vacant position of an office needing

confirmation by the Commission on Appointments, without first having obtained
its consent.[15]

In sharp contrast, respondents maintain that the President can issue appointments
in an acting capacity to department secretaries without the consent of the
Commission on Appointments even while Congress is in session. Respondents
point to Section 16, Article VII of the 1987 Constitution. Section 16 reads:

SEC. 16. The President shall nominate and, with the consent of
the Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or officers
of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution. He
shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he
may be authorized by law to appoint. The Congress may, by law, vest
the appointment of other officers lower in rank in the President alone, in
the courts, or in the heads of departments, agencies, commissions, or
boards.

The President shall have the power to make appointments during

the recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the
Congress.
 Respondents also rely on EO 292, which devotes a chapter to the Presidents
power of appointment. Sections 16 and 17, Chapter 5, Title I, Book III of EO 292

read:
SEC. 16. Power of Appointment. The President shall exercise the power
to appoint such officials as provided for in the Constitution and laws.

SEC. 17. Power to Issue Temporary Designation. (1) The President may
temporarily designate an officer already in the government service or any
other competent person to perform the functions of an office in the executive
branch, appointment to which is vested in him by law, when: (a) the officer
regularly appointed to the office is unable to perform his duties by reason of
illness, absence or any other cause; or (b) there exists a vacancy[.]

(2) The person designated shall receive the compensation attached to the
position, unless he is already in the government service in which case he shall
receive only such additional compensation as, with his existing salary, shall not
exceed the salary authorized by law for the position filled. The compensation
hereby authorized shall be paid out of the funds appropriated for the office or
agency concerned.
(3) In no case shall a temporary designation exceed one (1)
year. (Emphasis supplied)

Petitioners and respondents maintain two diametrically opposed lines of thought.

Petitioners assert that the President cannot issue appointments in an acting capacity
to department secretaries while Congress is in session because the law does not
give the President such power. In contrast, respondents insist that the President can

issue such appointments because no law prohibits such appointments.

The essence of an appointment in an acting capacity is its temporary nature. It is a

stop-gap measure intended to fill an office for a limited time until the appointment
of a permanent occupant to the office.[16] In case of vacancy in an office occupied
by an alter ego of the President, such as the office of a department secretary, the
President must necessarily appoint an alter ego of her choice as acting secretary
before the permanent appointee of her choice could assume office.

Congress, through a law, cannot impose on the President the obligation to

appoint automatically the undersecretary as her temporary alter ego. An alter ego,
whether temporary or permanent, holds a position of great trust and confidence.
Congress, in the guise of prescribing qualifications to an office, cannot impose on

the President who her alter ego should be.

The office of a department secretary may become vacant while Congress is

in session. Since a department secretary is the alter ego of the President, the acting
appointee to the office must necessarily have the Presidents confidence. Thus, by
the very nature of the office of a department secretary, the President must appoint
in an acting capacity a person of her choice even while Congress is in session. That
person may or may not be the permanent appointee, but practical reasons may
make it expedient that the acting appointee will also be the permanent appointee.

The law expressly allows the President to make such acting appointment.
Section 17, Chapter 5, Title I, Book III of EO 292 states that [t]he President may
temporarily designate an officer already in the government service or any other

competent person to perform the functions of an office in the executive branch.

Thus, the President may even appoint in an acting capacity a person not yet in the
government service, as long as the President deems that person competent.

Petitioners assert that Section 17 does not apply to appointments vested in the
President by the Constitution, because it only applies to appointments vested in the
President by law. Petitioners forget that Congress is not the only source of law.

Law refers to the Constitution, statutes or acts of Congress, municipal ordinances,

implementing rules issued pursuant to law, and judicial decisions. [17]

Finally, petitioners claim that the issuance of appointments in an acting capacity is

susceptible to abuse. Petitioners fail to consider that acting appointments cannot
exceed one year as expressly provided in Section 17(3), Chapter 5, Title I, Book III

of EO 292. The law has incorporated this safeguard to prevent abuses, like the use
of acting appointments as a way to circumvent confirmation by the Commission on
Appointments.

In distinguishing ad interim appointments from appointments in an acting

capacity, a noted textbook writer on constitutional law has observed:
Ad-interim appointments must be distinguished from appointments in an
acting capacity. Both of them are effective upon acceptance. But ad-interim
appointments are extended only during a recess of Congress, whereas acting
appointments may be extended any time there is a vacancy. Moreover ad-interim
appointments are submitted to the Commission on Appointments for confirmation
or rejection; acting appointments are not submitted to the Commission on
Appointments. Acting appointments are a way of temporarily filling important
offices but, if abused, they can also be a way of circumventing the need for
confirmation by the Commission on Appointments.[18]

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

WHEREFORE, we DISMISS the present petition for certiorari and

prohibition.

SO ORDERED.
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.

DECISION

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 02/20001 (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:

xxx

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:

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.

xxx21

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. Cuenco23 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.30A 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.

xxx

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:

xxx

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.

xxx

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 II36 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 Tulungan since 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 Act61 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 courts63 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 compulsory64 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?

xxx

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)
1w phi 1

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 A65 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)68of 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.

Footnotes
1
Rollo, pp. 17-21.

2
As of 19 May 2000, the Marines have been recalled from their areas of deployment to join
the military operations in Mindanao, and replaced by Air Force personnel who took over their
functions in the joint visibility patrols. The Air Force personnel, just like the Marines, were
ordered to assist the PNP, also by virtue of LOI 2/2000. Since both the Marines and Air
Force belong to the Armed Forces, the controversy has not been rendered moot and
academic by the replacement of the former by the latter. The validity of the deployment of the
armed forces in the joint visibility patrols thus remain an issue.

3
Rollo, pp. 75-76.

4
Id., at 75.

5
Id.

6
Id.

7
Rollo, p. 75.

8
Id., at 17-18.

9
Id.

10
Rollo, p. 7.

11
Id., at 24.

Philippine Constitution Association v. Enriquez, 235 SCRA 506 (1994)

12

citing Luz Farms v. Secretary of theDepartment of Agrarian Reform, 192 SCRA 51 (1990);
Dumlao v. Commission on Elections, 95 SCRA 392 (1980); and, People v. Vera, 65 Phil. 56
(1937).

13
Joya v. Presidential Commission on Good Govenment, 225 SCRA 568, 576 (1993).

Ibid., citing House International Building Tenants Association, Inc. v. Intermediate Appellate
14

Court, 151 SCRA 703 (1987).

15
Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7L. Ed. 2d 663, 678 (1962).

Joya v. Presidential Commission on Good Government, supra note 13, at

16

579 citing Dumlao v. Commission on Elections, 95 SCRA 392 (1980).

Tatad v. Secretary of the Department of Energy, 281 SCRA 330, 349 (1997)
17

citing Garcia v. ExecutiveSecretary, 211 SCRA 219 (1992); Osmea v. COMELEC, 199
SCRA 750 (1991); Basco v. Pagcor, 197 SCRA 52 (1991); and, Araneta v. Dinglasan, 84
Phil. 368 (1949).

18
Santiago v. COMELEC, 270 SCRA 106 (1997); Joya v. Presidential Commission on Good
Government, 225 SCRA 568 (1993); Daza v. Singson, 180 SCRA 496 (1989). As formulated
by Mr. Justice (now Chief Justice) Hilario G. Davide, Jr. in Kilosbayan, Inc. vs. Guingona, Jr.,
[232 SCRA 110 (1994)] "(a) party's standing before this Court is a procedural technicality
which it may, in the exercise of its discretion, set aside in view of the importance of the
issues raised," favorably citing our ruling in the Emergency Powers Cases [L-2044
(Aranetav. Dinglasan); L-2756 (Araneta v. Angeles); L-3054 (Rodriquez v. Tesorero de
Filipinas); and L-3056 (Barredov. COMELEC), 84 Phil. 368 (1940)] where this Court brushed
aside this technicality because "the transcendental importance to the public of these cases
demands that they be settled promptly and definitely, brushing aside, if we must, technical
rules of procedure." An inflexible rule on locus standi would result in what Mr. Justice
Florentino P. Feliciano aptly described as a "doctrinal ball and chain xxx clamped on our own
limbs." [Kilosbayan, Inc. v. Morato, 250 SCRA 130 (1995)].
19
Rollo, p. 12

20
Article II, Sections 4 and 5 of the Constitution provide:

Sec. 4. The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment
thereof, all citizens may be required, under conditions provided by law, to render
personal, military or civil service.

Sec. 5. The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the enjoyment by
all the people of the blessings of democracy.

21
177 SCRA 668, 694 (1989).

22
WESTS LEGAL THESAURUS/DICTIONARY (Special Deluxe Edition) p. 440 (1986).

23
103 Phil. 1051 (1957).

24
369 U.S. 186, 82 S ct. 691, 7 L. Ed. 2d 663, 678 (1962).

25
Article VIII, Sec. 1 of the 1987 CONSTITUTION.

26
Santiago v. Guingona, Jr., 298 SCRA 756 (1998).

27
Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767 (1991).

Marcos v. Manglapus,, supra note 21, see also Daza v. Singson, 180 SCRA 496 (1988);
28

Coseteng v. Mitra, 187 SCRA 377 (1990).

Sinon v. Civil Service Commission, 215 SCRA 410 (1992); See also Producers
29

Bank v. NLRC, 165 SCRA 284 (1988); Litton Mills v. Galleon Trader, Inc., 163 SCRA 494
(1988).

30
Ledesma v. Court of Appeals, 278 SCRA 659 (1997).

31
Bondoc v. Pineda, 201 SCRA 792 (1991).

32
Drilon v. Lim, 235 SCRA 135 (1994).

33
Sarmiento v. Mison, 156 SCRA 549 (1987).

II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES,

34

pp. 409, 412 (1986).

35
Rollo, p. 75.

36
Section 3, provides:

Civilian authority, is at all times, supreme over the military. The Armed Forces of the
Philippines is the protector of the people and the State. Its goal is to secure the
sovereignty of the State and the integrity of the national territory.

37
No. 9 of the LOI provides: COORDINATING INSTRUCTIONS:

a. RD, NCRPO is designated as Task Force Commander "TULUNGAN".

No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-PHILIPPINE

38

MARINES:
 b. Before their deployment/employment, receiving units shall properly brief/orient the
troops on police patrol/visibility procedures.

39
No. 8 of the LOI provides: TASKS:

k. POLICE DISTRICTS/STATIONS

-Provide direction and manage the deployment of all Philippine Marines personnel
deployed in your AOR for police visibility operations.

-Conduct briefing/orientation to Philippine Marines personnel on the dos and donts

of police visibility patrols.

-Provide transportation to Philippine Marines from districts headquarters to different

stations and PCPs.

-Perform other tasks as directed.

40
No. 8 of the LOI states: TASKS:

c. RLD/R4

-Coordinate with the Directorate for Logistics for the issuance of the following
equipments (sic) to be utilize (sic) by the Philippine Marines personnel: 500 pieces
Probaton, 500 whistle (sic), 500 pieces brazzard blazoned.

-Coordinate with the Directorate for Logistics for the issuance of the following for use
of PNP personnel involved in the visibility patrol operations:

1,000 sets of PNP GOA Uniform

500 each raincoats

500 each Probaton

500 each Whistle

500 each handcuffs

500 each Combat Boots

500 each low cut shoes

-Provide transportation to the Philippine Marines personnel in coordination with LSS,

NHQ PNP.

-Provide additional gas allocation to Philippine Marines members of the Inspection

Teams.

- Perform other tasks as directed.40

41
Sec. 5(4), Article XVI, provides:

No member of the Armed Forces in the active service shall, at any time, be
appointed in the government including government-owned and controlled
corporations or any of their subsidiaries.

CONSTITUTION, Article IX-C, Section 2; Comelec Resolution No. 3071 (1999), which is
42

entitled "In Re Guidelines for the Designation of Registration Centers and the Accountable
Officers for the Polaroid Instant Cameras for Purposes of the Registration of Voters on 8-9
May 1999 in the Autonomous Region in Muslim Mindanao;" Comelec Resolution No. 3059
(1999), which is entitled, "In the Matter of Deputizing the Armed Forces of the Philippines
and the Three (3) AFP Components, Namely: Philippine Army, Philippine Navy and
Philippine Air Force, for the Purpose of Ensuring Free, Orderly, Honest and Peaceful
Precinct Mapping, Registration of Voters and the Holding of the September 13, 1999
Elections in the Autonomous Region in Muslim Mindanao (ARMM);" Republic Act No. 7166
(1991), Section 33, which is entitled "An Act Providing for Synchronized National and Local
Elections and for Electoral Reforms, Authorizing Appropriations therefor, and for other
Purposes;" Administrative Code of 1987, Book V, Title I, Subtitle C, Chapter 1, Sections 2 (4)
and 3; Batas Pambansa Blg. 881, Article VI, Sections 52 (b) and 57 (3) (1985), which is also
known as "Omnibus Election Code."

43
Republic Act No. 95 (1947), Section 5, which is entitled "An Act to Incorporate the
Philippine National Red Cross Section;" Republic Act No. 855 (1953), Section 1, which is
entitled "An Act to Amend Section V of Republic Act Numbered Ninety-Five, entitled "An Act
to Incorporate the Philippine National Red Cross."

44
Republic Act No. 7077 (1991), Article III, Section 7, which is entitled "An Act Providing for
the Development, Administration, Organization, Training, Maintenance and Utilization of the
Citizen Armed Forces of the Armed Forces of the Philippines and for other Purposes."

Republic Act No. 6847 (1990), Section 7, which is entitled "An Act Creating and
45

Establishing The Philippine Sports Commission, Defining its Powers, Functions and
Responsibilities, Appropriating Funds therefor, and for other Purposes."

Republic Act No. 8492 (1998), Section 20, which is entitled "An Act Establishing a National
46

Museum System, Providing for its Permanent Home and for other Purposes."

47
Republic Act No. 8550 (1998), Section 124, which is entitled "An Act Providing for the
Development, Management and Conservation of the Fisheries and Aquatic Resources,
Integrating All Laws Pertinent Thereto, and for other Purposes;" Memorandum Circular No.
150 (1996), which is entitled "Amending Memorandum Circular No. 128, dated July 20, 1995
by Reorganizing the Presidential Task Force on Tubbataha Reef National Marine Park;"
Executive Order No. 544 (1979), Letter I, which is entitled "Creating a Presidential
Committee for the Conservation of the Tamaraw, Defining its Powers and for other
Purposes."

Executive Order No. 129-A (1987) Section 5 (m), which is entitled "Modifying Executive
48

Order No. 129 Reorganizing and Strengthening the Department of Agrarian Reform and for
other Purposes."

Republic Act No. 1937 (1957), Section 2003, which is entitled "An Act to Revised and
49

Codify the Tariff and Customs Laws of the Philippines;" Executive Order No. 45 (1998),
which is entitled "Creating a Presidential Anti-Smuggling Task Force to Investigate and
Prosecute Crimes Involving Large-Scale Smuggling and other Frauds upon Customs and
Providing Measures to Expedite Seizure Proceedings;"

50
These cases involved joint military and civilian law enforcement operations: People v.
Escalante, G.R No. 106633, December 1, 1994; People v. Bernardo, G.R. No. 97393, March
17, 1993; People v. De la Cruz, G.R. No. 83260, April 18, 1990; Guanzon v. de Villa, 181
SCRA 623, 631 (1990). (This case recognizes the complementary roles of the PNP and the
military in conducting anti-crime campaigns, provided that the peoples rights are not violated
in these words: "If the military and the police must conduct concerted campaigns to flush out
and catch criminal elements, such drives must be consistent with the constitutional and
statutory rights of all people affected by such actions." The creation of the Task Force also
finds support in Valmonte v. de Villa, 185 SCRA 665 (1990). Executive Order No. 62 (1999),
which is entitled "Creating the Philippine Center on Transnational Crime to Formulate and
Implement a Concerted Program of Action of All Law Enforcement, Intelligence and other
Agencies for the Prevention and Control of Transnational Crime;" Executive Order No. 8
(1998), which is entitled "Creating a Presidential Anti-Organized Crime Commission and a
Presidential Anti-Organized Crime Task Force, to Investigate and Prosecute Criminal
Elements in the Country;" Executive Order No. 280 (1995), which is entitled "Creating a
Presidential Task Force of Intelligence and Counter-Intelligence to Identify, Arrest and Cause
the Investigation and Prosecution of Military and other Law Enforcement Personnel on their
Former Members and Their Cohorts Involved in Criminal Activities."
 Memorandum Circular No. 141 (1996), which is entitled "Enjoining Government Agencies
51

Concerned to Extend Optimum Support and Assistance to the Professional Regulation

Commission in its Conduct of Licensure Examinations."

52
Memorandum Circular No. 32 (1999), which is entitled "Directing the Government Agencies
Concerned to Extend Maximum Support and Assistance to the National Educational Testing
and Research Center (NETRC) of the Department of Education, Culture and Sports (DECS)
in the Conduct of Tests of National Coverage."

Executive Order No. 61 (1999), which is entitled "Creating the National Drug Law
53

Enforcement and Prevention Coordinating Center to Orchestrate Efforts of national

Government Agencies, Local Government Units, and Non-Government Organizations for a
More Effective Anti-Drug Campaign."

54
Republic Act No. 4089 (1964), which is entitled "An Act Making the City Health Officer of
Bacolod City the Local Civil Registrar, Amending for the Purpose Section Forty-Three of the
Charter of said City;" Republic Act No. 537 (1950), which is entitled "An Act to Revise the
Charter of Quezon City;" Commonwealth Act No. 592 (1940), which is entitled "An Act to
Create the City of Dansalan;" Commonwealth Act No. 509 (1939), which is entitled "An Act to
Create Quezon City;" Commonwealth Act No. 326 (1938), which is entitled "An Act Creating
the City of Bacolod;" Commonwealth Act No. 39 (1936), which is entitled "An Act Creating
the City of Zamboanga;" Commonwealth Act No. 51 (1936), which is entitled "An Act
Creating the City of Davao."

Republic Act No. 36 (1946), which is entitled "Census Act of Nineteen Hundred and Forty-
55

Six."

Republic Act No. 776 (1952), Section 5, which is entitled "An Act to Reorganize the Civil
56

Aeronautics Board and the Civil Aeronautics Administration, To Provide for the Regulation of
Civil Aeronautics in the Philippines and Authorizing the Appropriation of Funds Therefor."

Republic Act No. 6613 (1972), Section 4, which is entitled "An Act Declaring a Policy of the
57

State to Adopt Modern Scientific Methods to Moderate Typhoons and Prevent Destruction by
Floods, Rains and Droughts, Creating a Council on Typhoons and Prevent Destruction by
Flood, Rains and Droughts, Creating a Council on Typhoon Moderation and Flood Control
Research and Development, Providing for its Powers and Functions and Appropriating
Funds Therefor."

58
Local Government Code of 1991, Book I, Title Seven, Section 116.

This theory on gloss of executive power was advanced by Justice Frankfurter in his
59

concurring opinion in Youngstown Sheet and Tube v. Sawyer, 343 US 579, 610-611 (1952).

60
Bissonette v. Haig, 766 F.2d 1384, 1389 (1985).

61
18 U.S.C.A 1385 (1878).

62
Ibid.

63
Bissonette v. Haig, supra note 60, at 1390.

A power regulatory in nature is one which controls or directs. It is proscriptive if it prohibits

64

or condemns and compulsory if it exerts some coercive force. See US v. Yunis, 681 F.Supp.
891 (D.D.C., 1988). See also FOURTH AMENDMENT AND POSSE COMITATUS ACT
RESTRICTIONS ON MILITARY INVOLVEMENT IN CIVIL LAW ENFORCEMENT,

65
L.O.I. 02/2000, "TULUNGAN," Rollo, pp. 17-22.

No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-PHILIPPINE

66

MARINES:

a. The PNP NCPRO thru Police Districts will continue to deploy uniformed PNP
personnel dedicated for police visibility patrols in tandem with the Philippine Marines.
 b. Before their deployment/employment, receiving units shall properly brief/orient the
troops on police patrol/visibility procedures.66

67
Supra note 34.

68
Supra note 32.

69
No. 9 of the LOI states:

d. In case of apprehensions, arrested person/s shall be brought to the nearest police

stations/PCPs.

70
Supra note 35.

71
Rollo, p. 70.

The Lawphil Project - Arellano Law Foundation

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. Comelec25 and the 1971 case of Tolentino v.
Comelec26 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 Secretary45 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.
Enrile52 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 thePhilippines, 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.56The 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.60Every 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.

 [G.R. No. 135457. September 29, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE

PATRIARCA, JR., alias "KA DJANGO," CARLOS NARRA, alias
"KA JESSIE" and TEN (10) JOHN DOES, accused-appellant.

DECISION
BUENA, J.:

Accused-appellant Jose Patriarca, Jr., with the aliases of "Ka Django," "Carlos
Narra" and "Ka Jessie," appeals the decision of the Regional Trial Court at Sorsogon,
Sorsogon, Branch 52, in Criminal Case No. 2773 entitled "People of the Philippines
versus Jose Patriarca, Jr. alias 'Ka Django,' 'Carlos Narra,' 'Ka Jessie,' and 21 John
Does" convicting him of murder and sentencing him to reclusion perpetua.
On August 16, 1990, an information for murder was filed against Jose Patriarca, Jr.,
alias "Ka Django," "Carlos Narra", "Ka Jessie," et al., charging them of murder
committed as follows:

"That on or about the 30th day of June, 1987 at about 10:00 o'clock in the evening in
the Municipality of Donsol, Province of Sorsogon, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused conspiring,
confederating and mutually helping one another, armed with guns, forcibly took away
ALFREDO AREVALO from his residence and brought him to Sitio Abre, Mabini,
Donsol, Sorsogon, and did then and there willfully, unlawfully and feloniously with
intent to kill, with treachery and evident premeditation, attack, assault and shoot
ALFREDO AREVALO thereby inflicting upon him mortal wounds, which directly
caused his death to the damage and prejudice of his legal heirs.

"CONTRARY TO LAW."

Accused-appellant Jose Patriarca, Jr. was also charged with Murder for the killing of
one Rudy de Borja and a certain Elmer Cadag under Informations docketed as Criminal
Cases Nos. 2665 and 2672, respectively.
Upon arraignment on November 25, 1993, accused-appellant, assisted by
his counsel de parte, pleaded not guilty to the crimes charged. Joint trial of the three
cases was conducted considering the substantial identity of the facts and circumstances
of the case.
Prosecution witness Nonito Malto testified that on June 30, 1987, the accused, with
ten (10) armed companions, requested permission to rest in his house, which was
granted. They had with them a person who was hogtied. Accused Patriarca asked that
the lights in Malto's house be extinguished and Malto complied.
Around 2:00 o'clock in the early morning of July 1, 1987, Malto was awakened by a
gunshot. When he looked out, he saw Patriarca holding a gun and ordering the person
who was hogtied to lie down. After several minutes, Malto heard two gunshots. He then
heard the accused direct his companions to carry away the dead man.
Nonito Malto, later on, learned that the dead man was Alfredo Arevalo when
Patriarca went back to his place, together with the military, on March 29, 1990.
The skeletal remains of Alfredo Arevalo were recovered in the property of a
Rubuang Tolosa and were identified by Elisa Arevalo, the mother of the victim.
 The second witness for the prosecution was Elisa Arevalo. She knew Patriarca,
alias "Ka Django", as he told her on March 10, 1987 not to let her son join the
military. She, however, replied that they were only seeking employment. Her son
Alfredo was her companion in attending to their farm and he was a member of the
Civilian Home Defense Force (CHDF) in their locality.
After she was informed by her tenant Alegria Moratelio Alcantara that her son was
abducted by the New People's Army (NPA) led by Patriarca, she reported the matter to
the military and looked for him. She was informed by the residents of the place where
the NPA passed, that they saw her son hogtied, that her son even asked for drinking
water, and complained that he was being maltreated by the NPA. After three days of
searching, a certain Walter Ricafort, an NPA member and a relative of hers, notified her
that her son Alfredo was killed by Jose Patriarca, Jr.
In the municipal building, Nonito Malto likewise informed her of her son's death in
the hands of Ka Django. Consequently, a Death Certificate was issued by the Local
Civil Registrar.
When the skeletal remains of a man were recovered, she was able to identify them
as belonging to her son by reason of the briefs found in the burial site. Her son, Alfredo
Arevalo, used to print his name on the waistband of his briefs so that it would not get
lost.
The defense presented accused Jose Patriarca, Jr. and Francisco Derla who
admitted that accused is a member of the NPA operating in Donsol, Sorsogon, but
denied ever abducting the victims in the three criminal cases filed against him.
On January 20, 1998, a decision was rendered convicting the accused and
imposing the following penalty:

"WHEREFORE, premises considered, the Court finds accused Jose Patriarca, Jr. alias
Ka Django, alias Carlos Narra guilty beyond reasonable doubt of the crime of Murder
for the death of Alfredo Arevalo and hereby sentences him to suffer an imprisonment
of reclusion perpetua with all the accessory provided by law and to pay the amount of
P50,000.00 as civil indemnity to the heirs of the victim Alfredo Arevalo, without
subsidiary imprisonment in case of insolvency and as regards Crim. Case No. 2665
and Crim. Case No. 2672, for failure of the prosecution to prove the guilt of the
accused beyond reasonable doubt, said Jose Patriarca alias Carlos Narra, Ka Django,
is hereby acquitted.

"In the service of his sentence, the accused shall be given full credit of his period of
detention.

"With cost de-oficio.

"SO ORDERED." [1]

Hence, this appeal where accused-appellant assigns the following lone error
allegedly committed by the trial court:

THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF

THE CRIME OF MURDER, AN OFFENSE COMMITTED IN PURSUANCE OR
IN FURTHERANCE OF REBELLION.

Accused-appellant applied for amnesty under Proclamation No. 724 amending

Proclamation No. 347, dated March 25, 1994, entitled "Granting Amnesty to Rebels,
Insurgents, and All Other Persons Who Have or May Have Committed Crimes Against
Public Order, Other Crimes Committed in Furtherance of Political Ends, and Violations
of the Article of War, and Creating a National Amnesty Commission." His application
was favorably granted by the National Amnesty Board. Attached to appellant's brief is
the Notice of Resolution of the National Amnesty Commission (NAC) dated November
17, 1999 which states:

"Quoted below is a resolution of the National Amnesty Commission dated 22 October

1998.[2]

'RESOLUTION NO. D-99-8683 refers to Application No. 02125 of MR. JOSE

NARRA PATRIARCA filed with the Local Amnesty Board of Legazpi City on 18
February 1997.

'Applicant admitted joining the NPA in 1977. He served under the Sandatahang Yunit
Pampropaganda and participated in the following armed activities:

'a) Encounter with the Philippine Army forces at Barangay Hirawon, Donsol, Sorsogon
on 14 February 1986;
'b) Encounter with elements of the Philippine Constabulary at Barangay Godon,
Donsol, Sorsogon on 15 February 1986;
'c) Encounter with the Philippine Army forces at Barangay Banwang, Gurang, Donsol,
Sorsogon in 1987;
'd) Liquidation of ELMER CADAG an alleged military informer at Barangay Boroan,
Donsol, Sorsogon, on 21 March 1987, in which a case of Murder in Criminal Case
No. 2672 was filed against him before the Regional Trial Court, Branch 52,
Sorsogon, Sorsogon;
'e) Liquidation of a certain RUDY DEBORJA, a thief and nuisance of the community, at
Donsol, Sorsogon, on 09 March 1984, in which a case of Murder in Criminal Case
No. 2665 was filed against him before the Regional Trial Court, Branch 52,
Sorsogon, Sorsogon;
'f) Liquidation of a certain ALEJANDRINO MILITANTE for his misconducts at San
Antonio, Donsol, Sorsogon, on 12 February 1986, in which a case of Murder in
Criminal Case No. 2664 was filed against him before the Regional Trial Court,
Branch 52, Sorsogon, Sorsogon;
'g) Liquidation of a certain ALFREDO AREVALO, a former member of the CHDF at
Sitio Abe (sic), Mabini, Donsol, Sorsogon, on 30 June 1987, in which a case of
Murder in Criminal Case No. 2773 was filed against him before the Regional Trial
Court, Branch 52, Sorsogon, Sorsogon;
'h) Liquidation of one DOMINGO DONQUILLO, a barangay captain, at Barangay
Tinanogan, Donsol, Sorsogon, on 20 September 1986 in which a (sic) Criminal
Case No. 2663 was filed against him.

'After a careful verification and evaluation on (sic) the claims of the applicant, the
Local Amnesty Board concluded that his activities were done in the pursuit of his
political beliefs. It thus recommended on 20 May 1998 the grant of his application for
amnesty.

'The Commission, in its deliberation on the application on 22 October 1999, resolved

to approve the recommendation of the Local Amnesty Board.

'WHEREFORE, the application for amnesty of MR. JOSE NARRA PATRIARCA

under Proclamation No. 724 is hereby GRANTED for rebellion constituted by the acts
detailed above, provided they were committed on or before the date he was captured
on 22 June 1988. Let a Certificate of Amnesty be issued in his favor as soon as this
Resolution becomes final. It shall become final after the lapse of fifteen (15) calendar
days from receipt of this Notice, unless a Motion for Reconsideration is filed with the
Commission by any party within said period.'" [3]

On March 9, 2000, Hon. Alfredo F. Tadiar, Chairman of the National Amnesty

Commission, wrote the following letter to the Provincial Prosecutor of Sorsogon,
Sorsogon:

"Notice of Amnesty Grant to Jose N. Patriarca"

"Pursuant to NAC Action No. 95-358-C, we are transmitting herewith the attached
copy of RESOLUTION NO. D-99-8683 granting amnesty to JOSE N.
PATRIARCA. The grantee was accused of the following cases:

"1. Murder in Criminal Case No. 2672 filed before the Regional Trial Court, Branch 52,
Sorsogon, Sorsogon.
"2. Murder in Criminal Case No. 2665 filed before the Regional Trial Court, Branch 52,
Sorsogon, Sorsogon.
"3. Murder in Criminal Case No. 2664 filed before the Regional Trial Court, Branch 52,
Sorsogon, Sorsogon.
"4. Murder in Criminal Case No. 2773 filed before the Regional Trial Court, Branch 52,
Sorsogon, Sorsogon.
"5. Murder in Criminal Case No. 2663 filed before the Regional Trial Court, Branch 52,
Sorsogon, Sorsogon.

"He is currently detained at the Provincial Jail, Sorsogon, Sorsogon.

"The purpose of this transmittal is to provide you, as the chief prosecutor of the
province, the opportunity to take whatever action you may deem appropriate from
receipt of this note. This grant of amnesty shall become final after the lapse of fifteen
(15) calendar days from receipt of this Notice, unless a Motion for Reconsideration is
filed with the Commission by any party within said period.

"Thank you for your continued support for the Peace Process." [4]

The Office of the Solicitor General, in its letter dated June 23, 2000 to the National
Amnesty Commission, requested information as to whether or not a motion for
reconsideration was filed by any party, and the action, if there was any, taken by the
NAC.[5]
In his reply dated June 28, 2000, NAC Chairman Tadiar wrote, among other things,
that there has been no motion for reconsideration filed by any party. [6]
Accused-appellant Jose N. Patriarca, Jr. was granted amnesty under Proclamation
No. 724 dated May 17, 1996. It amended Proclamation No. 347 dated March 25, 1994.
Section 1 of Proclamation No. 724 reads thus:

"Section 1. Grant of Amnesty. - Amnesty is hereby granted to all persons who shall
apply therefor and who have or may have committed crimes, on or before June 1,
1995, in pursuit of their political beliefs, whether punishable under the Revised Penal
Code or special laws, including but not limited to the following: rebellion or
insurrection; coup d'etat; conspiracy and proposal to commit rebellion, insurrection, or
coup d'etat; disloyalty of public officers or employees; inciting to rebellion or
insurrection; sedition; conspiracy to commit sedition; inciting to sedition; illegal
assembly; illegal association; direct assault; indirect assault; resistance and
disobedience to a person in authority or agents of such person; tumults and other
disturbances of public order; unlawful use of means of publication and unlawful
utterances; alarms and scandals; illegal possession of firearms, ammunitions, and
explosives, committed in furtherance of, incident to, or in connection with the crimes
of rebellion and insurrection; and violations of Articles 59 (desertion), 62 (absence
without leave), 67 (mutiny or sedition), 68 (failure to suppress mutiny or sedition), 94
(various crimes), 96 (conduct unbecoming an officer and gentleman), and 97 (general
article) of the Articles of War; Provided, That the amnesty shall not cover crimes
against chastity and other crimes for personal ends."

Amnesty commonly denotes a general pardon to rebels for their treason or other
high political offenses, or the forgiveness which one sovereign grants to the subjects of
another, who have offended, by some breach, the law of nations. [7] Amnesty looks
backward, and abolishes and puts into oblivion, the offense itself; it so overlooks and
obliterates the offense with which he is charged, that the person released by amnesty
stands before the law precisely as though he had committed no offense. [8]
Paragraph 3 of Article 89 of the Revised Penal Code provides that criminal liability
is totally extinguished by amnesty, which completely extinguishes the penalty and all its
effects.
In the case of People vs. Casido,[9] the difference between pardon and amnesty is
given:

"Pardon is granted by the Chief Executive and as such it is a private act which must be
pleaded and proved by the person pardoned, because the courts take no notice thereof;
while amnesty by Proclamation of the Chief Executive with the concurrence of
Congress, is a public act of which the courts should take judicial notice. Pardon is
granted to one after conviction; while amnesty is granted to classes of persons or
communities who may be guilty of political offenses, generally before or after the
institution of the criminal prosecution and sometimes after conviction. Pardon looks
forward and relieves the offender from the consequences of an offense of which he
has been convicted, that is, it abolishes or forgives the punishment, and for that reason
it does 'not work the restoration of the rights to hold public office, or the right of
suffrage, unless such rights be expressly restored by the terms of the pardon,' and it 'in
no case exempts the culprit from the payment of the civil indemnity imposed upon
him by the sentence' (Article 36, Revised Penal Code). While amnesty looks
backward and abolishes and puts into oblivion the offense itself, it so overlooks and
obliterates the offense with which he is charged that the person released by amnesty
stands before the law precisely as though he had committed no offense."

This Court takes judicial notice of the grant of amnesty upon accused-appellant
Jose N. Patriarca, Jr. Once granted, it is binding and effective. It serves to put an end to
the appeal.[10]
WHEREFORE, IN VIEW OF THE FOREGOING, the decision of the Regional Trial
Court at Sorsogon, Sorsogon, Branch 52 in Criminal Case No. 2773 is REVERSED and
SET ASIDE. Accused-appellant Jose N. Patriarca, Jr. is hereby ACQUITTED of the
crime of murder.
Pursuant to Resolution No. D-99-8683,[11] Criminal Case Nos. 2663 and 2664, which
are both filed in the Regional Trial Court, Branch 53, Sorsogon, Sorsogon ,[12] are ordered
DISMISSED. The release of Jose N. Patriarca who is presently detained at the
Provincial Jail of Sorsogon is likewise ORDERED unless he is being detained for some
other legal cause.
The Director of Prisons is ordered to report within ten (10) days his compliance with
this decision.
SO ORDERED.
G.R. No. 180643 September 4, 2008

ROMULO L. NERI, petitioner,

vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS
AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND
COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND
SECURITY, respondents.

RESOLUTION

LEONARDO-DE CASTRO, J.:

Executive privilege is not a personal privilege, but one that adheres to the
Office of the President. It exists to protect public interest, not to benefit a
particular public official. Its purpose, among others, is to assure that the nation
will receive the benefit of candid, objective and untrammeled communication
and exchange of information between the President and his/her advisers in
the process of shaping or forming policies and arriving at decisions in the
exercise of the functions of the Presidency under the Constitution. The
confidentiality of the Presidents conversations and correspondence is not
unique. It is akin to the confidentiality of judicial deliberations. It possesses the
same value as the right to privacy of all citizens and more, because it is
dictated by public interest and the constitutionally ordained separation of
governmental powers.

In these proceedings, this Court has been called upon to exercise its power of
review and arbitrate a hotly, even acrimoniously, debated dispute between the
Courts co-equal branches of government. In this task, this Court should
neither curb the legitimate powers of any of the co-equal and coordinate
branches of government nor allow any of them to overstep the boundaries set
for it by our Constitution. The competing interests in the case at bar are the
claim of executive privilege by the President, on the one hand, and the
respondent Senate Committees assertion of their power to conduct legislative
inquiries, on the other. The particular facts and circumstances of the present
case, stripped of the politically and emotionally charged rhetoric from both
sides and viewed in the light of settled constitutional and legal doctrines,
plainly lead to the conclusion that the claim of executive privilege must be
upheld.

Assailed in this motion for reconsideration is our Decision dated March 25,
2008 (the "Decision"), granting the petition for certiorari filed by petitioner
Romulo L. Neri against the respondent Senate Committees on Accountability
of Public Officers and Investigations,1 Trade and Commerce,2 and National
Defense and Security (collectively the "respondent Committees").3

A brief review of the facts is imperative.

On September 26, 2007, petitioner appeared before respondent Committees

and testified for about eleven (11) hours on matters concerning the National
Broadband Project (the "NBN Project"), a project awarded by the Department
of Transportation and Communications ("DOTC") to Zhong Xing
Telecommunications Equipment ("ZTE"). Petitioner disclosed that then
Commission on Elections ("COMELEC") Chairman Benjamin Abalos offered
him P200 Million in exchange for his approval of the NBN Project. He further
narrated that he informed President Gloria Macapagal Arroyo ("President
Arroyo") of the bribery attempt and that she instructed him not to accept the
bribe. However, when probed further on President Arroyo and petitioners
discussions relating to the NBN Project, petitioner refused to answer, invoking
"executive privilege." To be specific, petitioner refused to answer questions
on: (a) whether or not President Arroyo followed up the NBN Project,4 (b)
whether or not she directed him to prioritize it,5 and (c) whether or not she
directed him to approve it.6

Respondent Committees persisted in knowing petitioners answers to these

three questions by requiring him to appear and testify once more on
November 20, 2007. On November 15, 2007, Executive Secretary Eduardo R.
Ermita wrote to respondent Committees and requested them to dispense with
petitioners testimony on the ground of executive privilege.7 The letter of
Executive Secretary Ermita pertinently stated:

Following the ruling in Senate v. Ermita, the foregoing questions fall

under conversations and correspondence between the President and
public officials which are considered executive privilege (Almonte v.
Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July
9, 2002). Maintaining the confidentiality of conversations of the
President is necessary in the exercise of her executive and policy
decision making process. The expectation of a President to the
confidentiality of her conversations and correspondences, like the value
which we accord deference for the privacy of all citizens, is the
necessity for protection of the public interest in candid, objective, and
even blunt or harsh opinions in Presidential decision-making. Disclosure
of conversations of the President will have a chilling effect on the
President, and will hamper her in the effective discharge of her duties
and responsibilities, if she is not protected by the confidentiality of her
conversations.

The context in which executive privilege is being invoked is that the

information sought to be disclosed might impair our diplomatic as well
as economic relations with the Peoples Republic of China. Given the
confidential nature in which these information were conveyed to the
President, he cannot provide the Committee any further details of these
conversations, without disclosing the very thing the privilege is designed
to protect.

In light of the above considerations, this Office is constrained to invoke

the settled doctrine of executive privilege as refined in Senate v. Ermita,
and has advised Secretary Neri accordingly.

Considering that Sec. Neri has been lengthily interrogated on the

subject in an unprecedented 11-hour hearing, wherein he has answered
all questions propounded to him except the foregoing questions
 involving executive privilege, we therefore request that his testimony on
20 November 2007 on the ZTE / NBN project be dispensed with.

On November 20, 2007, petitioner did not appear before respondent

Committees upon orders of the President invoking executive privilege. On
November 22, 2007, the respondent Committees issued the show-cause letter
requiring him to explain why he should not be cited in contempt. On
November 29, 2007, in petitioners reply to respondent Committees, he
manifested that it was not his intention to ignore the Senate hearing and that
he thought the only remaining questions were those he claimed to be covered
by executive privilege. He also manifested his willingness to appear and
testify should there be new matters to be taken up. He just requested that he
be furnished "in advance as to what else" he "needs to clarify."

Respondent Committees found petitioners explanations unsatisfactory.

Without responding to his request for advance notice of the matters that he
should still clarify, they issued the Order dated January 30, 2008; In Re: P.S.
Res. Nos. 127,129,136 & 144; and privilege speeches of Senator Lacson and
Santiago (all on the ZTE-NBN Project), citing petitioner in contempt of
respondent Committees and ordering his arrest and detention at the Office of
the Senate Sergeant-at-Arms until such time that he would appear and give
his testimony.

On the same date, petitioner moved for the reconsideration of the above
Order.8 He insisted that he had not shown "any contemptible conduct worthy
of contempt and arrest." He emphasized his willingness to testify on new
matters, but respondent Committees did not respond to his request for
advance notice of questions. He also mentioned the petition for certiorari he
previously filed with this Court on December 7, 2007. According to him, this
should restrain respondent Committees from enforcing the order dated
January 30, 2008 which declared him in contempt and directed his arrest and
detention.

Petitioner then filed his Supplemental Petition for Certiorari (with Urgent
Application for TRO/Preliminary Injunction) on February 1, 2008. In the
Courts Resolution dated February 4, 2008, the parties were required to
observe the status quo prevailing prior to the Order dated January 30, 2008.

On March 25, 2008, the Court granted his petition for certiorari on two
grounds: first, the communications elicited by the three (3) questions were
covered by executive privilege; and second, respondent Committees
committed grave abuse of discretion in issuing the contempt order. Anent the
first ground, we considered the subject communications as falling under
the presidential communications privilege because (a) they related to a
quintessential and non-delegable power of the President, (b) they were
received by a close advisor of the President, and (c) respondent Committees
failed to adequately show a compelling need that would justify the limitation of
the privilege and the unavailability of the information elsewhere by an
appropriate investigating authority. As to the second ground, we found that
respondent Committees committed grave abuse of discretion in issuing the
contempt order because (a) there was a valid claim of executive privilege, (b)
their invitations to petitioner did not contain the questions relevant to the
inquiry, (c) there was a cloud of doubt as to the regularity of the proceeding
that led to their issuance of the contempt order, (d) they violated Section 21,
Article VI of the Constitution because their inquiry was not in accordance with
the "duly published rules of procedure," and (e) they issued the contempt
order arbitrarily and precipitately.

On April 8, 2008, respondent Committees filed the present motion for

reconsideration, anchored on the following grounds:

CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS

NO DOUBT THAT THE ASSAILED ORDERS WERE ISSUED BY
RESPONDENT COMMITTEES PURSUANT TO THE EXERCISE OF
THEIR LEGISLATIVE POWER, AND NOT MERELY THEIR
OVERSIGHT FUNCTIONS.

II

CONTRARY TO THIS HONORABLE COURTS DECISION, THERE

CAN BE NO PRESUMPTION THAT THE INFORMATION WITHHELD
IN THE INSTANT CASE IS PRIVILEGED.

III

CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS

NO FACTUAL OR LEGAL BASIS TO HOLD THAT THE
COMMUNICATIONS ELICITED BY THE SUBJECT THREE (3)
QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE,
CONSIDERING THAT:

A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH

EXECUTIVE PRIVILEGE IS CLAIMED CONSTITUTE STATE
SECRETS.

B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT

IN THE DECISION IS APPLIED, THERE IS NO SHOWING THAT THE
ELEMENTS OF PRESIDENTIAL COMMUNICATIONS PRIVILEGE
ARE PRESENT.

C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A

COMPELLING NEED TO JUSTIFY THE DISCLOSURE OF THE
INFORMATION SOUGHT.

D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE

INSTANT CASE WOULD SERIOUSLY IMPAIR THE RESPONDENTS
PERFORMANCE OF THEIR PRIMARY FUNCTION TO ENACT LAWS.

E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO

INFORMATION, AND THE CONSTITUTIONAL POLICIES ON PUBLIC
 ACCOUNTABILITY AND TRANSPARENCY OUTWEIGH THE CLAIM
OF EXECUTIVE PRIVILEGE.

IV

CONTRARY TO THIS HONORABLE COURTS DECISION,

RESPONDENTS DID NOT COMMIT GRAVE ABUSE OF
DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER,
CONSIDERING THAT:

A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN

THE INSTANT CASE.

B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED

REQUIREMENTS LAID DOWN IN SENATE V. ERMITA.

C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN

ACCORDANCE WITH THEIR INTERNAL RULES.

D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS

UNDER ARTICLE VI, SECTION 21 OF THE CONSTITUTION
REQUIRING THAT ITS RULES OF PROCEDURE BE DULY
PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE
COURT CONSIDERED THE OSGS INTERVENTION ON THIS ISSUE
WITHOUT GIVING RESPONDENTS THE OPPORTUNITY TO
COMMENT.

E. RESPONDENTS ISSUANCE OF THE CONTEMPT ORDER IS NOT

ARBITRARY OR PRECIPITATE.

In his Comment, petitioner charges respondent Committees with exaggerating

and distorting the Decision of this Court. He avers that there is nothing in it
that prohibits respondent Committees from investigating the NBN Project or
asking him additional questions. According to petitioner, the Court merely
applied the rule on executive privilege to the facts of the case. He further
submits the following contentions: first, the assailed Decision did not reverse
the presumption against executive secrecy laid down in Senate v.
Ermita; second, respondent Committees failed to overcome the presumption
of executive privilege because it appears that they could legislate even
without the communications elicited by the three (3) questions, and they
admitted that they could dispense with petitioners testimony if certain NEDA
documents would be given to them; third, the requirement of specificity
applies only to the privilege for State, military and diplomatic secrets, not to
the necessarily broad and all-encompassing presidential communications
privilege; fourth, there is no right to pry into the Presidents thought processes
or exploratory exchanges; fifth, petitioner is not covering up or hiding anything
illegal; sixth, the Court has the power and duty to annul the Senate
Rules; seventh, the Senate is not a continuing body, thus the failure of the
present Senate to publish its Rules of Procedure Governing Inquiries in Aid of
Legislation (Rules) has a vitiating effect on them; eighth, the requirement for
a witness to be furnished advance copy of questions comports with due
process and the constitutional mandate that the rights of witnesses be
respected; and ninth, neither petitioner nor respondent has the final say on
the matter of executive privilege, only the Court.

For its part, the Office of the Solicitor General maintains that: (1) there is no
categorical pronouncement from the Court that the assailed Orders were
issued by respondent Committees pursuant to their oversight function; hence,
there is no reason for them "to make much" of the distinction between
Sections 21 and 22, Article VI of the Constitution; (2) presidential
communications enjoy a presumptive privilege against disclosure as earlier
held in Almonte v. Vasquez9 and Chavez v. Public Estates Authority (PEA)10;
(3) the communications elicited by the three (3) questions are covered by
executive privilege, because all the elements of the presidential
communications privilege are present; (4) the subpoena ad
testificandum issued by respondent Committees to petitioner is fatally
defective under existing law and jurisprudence; (5) the failure of the present
Senate to publish its Rules renders the same void; and (6) respondent
Committees arbitrarily issued the contempt order.

Incidentally, respondent Committees objection to the Resolution dated March

18, 2008 (granting the Office of the Solicitor Generals Motion for Leave to
Intervene and to Admit Attached Memorandum) only after the promulgation of
the Decision in this case is foreclosed by its untimeliness.

The core issues that arise from the foregoing respective contentions of the
opposing parties are as follows:

(1) whether or not there is a recognized presumptive presidential

communications privilege in our legal system;

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

(3) whether or not respondent Committees have shown that the

communications elicited by the three (3) questions are critical to the
exercise of their functions; and

(4) whether or not respondent Committees committed grave abuse of

discretion in issuing the contempt order.

We shall discuss these issues seriatim.

There Is a Recognized Presumptive

Presidential Communications Privilege

Respondent Committees ardently argue that the Courts declaration that

presidential communications are presumptively privileged reverses the
"presumption" laid down in Senate v. Ermita11 that "inclines heavily against
executive secrecy and in favor of disclosure." Respondent Committees then
claim that the Court erred in relying on the doctrine in Nixon.

Respondent Committees argue as if this were the first time the presumption in
favor of the presidential communications privilege is mentioned and
adopted in our legal system. That is far from the truth. The Court, in the earlier
case of Almonte v. Vasquez,12 affirmed that the presidential
communications privilege is fundamental to the operation of government
and inextricably rooted in the separation of powers under the Constitution.
Even Senate v. Ermita,13 the case relied upon by respondent Committees,
reiterated this concept. There, the Court enumerated the cases in which the
claim of executive privilege was recognized, among them Almonte v.
Chavez, Chavez v. Presidential Commission on Good Government
(PCGG),14 and Chavez v. PEA.15 The Court articulated in these cases that
"there are certain types of information which the government may withhold
from the public,16" that there is a "governmental privilege against public
disclosure with respect to state secrets regarding military, diplomatic and
other national security matters";17 and that "the right to information does
not extend to matters recognized as privileged information under the
separation of powers, by which the Court meant Presidential
conversations, correspondences, and discussions in closed-door
Cabinet meetings."18

Respondent Committees observation that this Courts Decision reversed the

"presumption that inclines heavily against executive secrecy and in favor of
disclosure" arises from a piecemeal interpretation of the said Decision. The
Court has repeatedly held that in order to arrive at the true intent and meaning
of a decision, no specific portion thereof should be isolated and resorted to,
but the decision must be considered in its entirety.19

Note that the aforesaid presumption is made in the context of the

circumstances obtaining in Senate v. Ermita, which declared void Sections
2(b) and 3 of Executive Order (E.O.) No. 464, Series of 2005. The pertinent
portion of the decision in the said case reads:

From the above discussion on the meaning and scope of executive

privilege, both in the United States and in this jurisprudence, a clear
principle emerges. Executive privilege, whether asserted against
Congress, the courts, or the public, is recognized only in relation
to certain types of information of a sensitive character. While executive
privilege is a constitutional concept, a claim thereof may be valid or not
depending on the ground invoked to justify it and the context in which it
is made. Noticeably absent is any recognition that executive officials are
exempt from the duty to disclose information by the mere fact of being
executive officials. Indeed, the extraordinary character of
the exemptions indicates that the presumption inclines
heavily against executive secrecy and in favor of disclosure.
(Emphasis and underscoring supplied)

Obviously, the last sentence of the above-quoted paragraph in Senate v.

Ermita refers to the "exemption" being claimed by the executive officials
mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their positions in
the Executive Branch. This means that when an executive official, who is one
of those mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be exempt
from disclosure, there can be no presumption of authorization to invoke
executive privilege given by the President to said executive official, such
that the presumption in this situation inclines heavily against executive
secrecy and in favor of disclosure.

Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this

wise:

Section 2(b) in relation to Section 3 virtually provides that, once the

head of office determines that a certain information is privileged, such
determination is presumed to bear the Presidents authority and has the
effect of prohibiting the official from appearing before Congress, subject
only to the express pronouncement of the President that it is allowing
the appearance of such official. These provisions thus allow the
President to authorize claims of privilege by mere silence.

Such presumptive authorization, however, is contrary to the exceptional

nature of the privilege. Executive privilege, as already discussed, is
recognized with respect to information the confidential nature of which
is crucial to the fulfillment of the unique role and responsibilities of the
executive branch, or in those instances where exemption from
disclosure is necessary to the discharge of highly important executive
responsibilities. The doctrine of executive privilege is thus premised on
the fact that certain information must, as a matter of necessity, be kept
confidential in pursuit of the public interest. The privilege being, by
definition, an exemption from the obligation to disclose information, in
this case to Congress, the necessity must be of such high degree as to
outweigh the public interest in enforcing that obligation in a particular
case.

In light of this highly exceptional nature of the privilege, the Court finds it
essential to limit to the President the power to invoke the privilege. She
may of course authorize the Executive Secretary to invoke the privilege
on her behalf, in which case the Executive Secretary must state that the
authority is "By order of the President", which means that he personally
consulted with her. The privilege being an extraordinary power, it must
be wielded only by the highest official in the executive hierarchy. In
other words, the President may not authorize her subordinates to
exercise such power. There is even less reason to uphold such
authorization in the instant case where the authorization is not explicit
but by mere silence. Section 3, in relation to Section 2(b), is further
invalid on this score.

The constitutional infirmity found in the blanket authorization to invoke

executive privilege granted by the President to executive officials in Sec. 2(b)
of E.O. No. 464 does not obtain in this case.
In this case, it was the President herself, through Executive Secretary Ermita,
who invoked executive privilege on a specific matter involving an executive
agreement between the Philippines and China, which was the subject of the
three (3) questions propounded to petitioner Neri in the course of the Senate
Committees investigation. Thus, the factual setting of this case markedly
differs from that passed upon in Senate v. Ermita.

Moreover, contrary to the claim of respondents, the Decision in this present

case hews closely to the ruling in Senate v. Ermita,21 to wit:

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It

has been used even prior to the promulgation of the 1986 Constitution.
Being of American origin, it is best understood in light of how it has been
defined and used in the legal literature of the United States.

Schwart defines executive privilege as "the power of the Government

to withhold information from the public, the courts, and the
Congress. Similarly, Rozell defines it as "the right of the President and
high-level executive branch officers to withhold information from
Congress, the courts, and ultimately the public." x x x In this jurisdiction,
the doctrine of executive privilege was recognized by this Court in
Almonte v. Vasquez. Almonte used the term in reference to the same
privilege subject of Nixon. It quoted the following portion of the Nixon
decision which explains the basis for the privilege:

"The expectation of a President to the confidentiality of his

conversations and correspondences, like the claim of
confidentiality of judicial deliberations, for example, he has all the
values to which we accord deference for the privacy of all citizens and,
added to those values, is the necessity for protection of the public
interest in candid, objective, and even blunt or harsh opinions in
Presidential decision-making. A President and those who assist him
must be free to explore alternatives in the process of shaping policies
and making decisions and to do so in a way many would be unwilling to
express except privately. These are the considerations justifying a
presumptive privilege for Presidential communications. The
privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the
Constitution x x x " (Emphasis and italics supplied)

Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege

for Presidential communication," which was recognized early on in Almonte v.
Vasquez. To construe the passage in Senate v. Ermita adverted to in the
Motion for Reconsideration of respondent Committees, referring to the non-
existence of a "presumptive authorization" of an executive official, to mean
that the "presumption" in favor of executive privilege "inclines heavily against
executive secrecy and in favor of disclosure" is to distort the ruling in
the Senate v. Ermita and make the same engage in self-contradiction.
Senate v. Ermita22 expounds on the constitutional underpinning of the
relationship between the Executive Department and the Legislative
Department to explain why there should be no implied authorization or
presumptive authorization to invoke executive privilege by the Presidents
subordinate officials, as follows:

When Congress exercises its power of inquiry, the only way for
department heads to exempt themselves therefrom is by a valid
claim of privilege. They are not exempt by the mere fact that they
are department heads. Only one executive official may be exempted
from this power - the President on whom executive power is vested,
hence, beyond the reach of Congress except through the power of
impeachment. It is based on he being the highest official of the
executive branch, and the due respect accorded to a co-equal branch of
governments which is sanctioned by a long-standing custom.
(Underscoring supplied)

Thus, if what is involved is the presumptive privilege of presidential

communications when invoked by the President on a matter clearly within the
domain of the Executive, the said presumption dictates that the same be
recognized and be given preference or priority, in the absence of proof of a
compelling or critical need for disclosure by the one assailing such
presumption. Any construction to the contrary will render meaningless the
presumption accorded by settled jurisprudence in favor of executive privilege.
In fact, Senate v. Ermita reiterates jurisprudence citing "the considerations
justifying a presumptive privilege for Presidential communications."23

II

There Are Factual and Legal Bases to

Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege

Respondent Committees claim that the communications elicited by the three

(3) questions are not covered by executive privilege because the elements of
the presidential communications privilegeare not present.

A. The power to enter into an executive agreement is a "quintessential

and non-delegable presidential power."

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

This argument is unpersuasive.

The fact that a power is subject to the concurrence of another entity does not
make such power less executive. "Quintessential" is defined as the most
perfect embodiment of something, the concentrated essence of
substance.24 On the other hand, "non-delegable" means that a power or duty
cannot be delegated to another or, even if delegated, the responsibility
remains with the obligor.25 The power to enter into an executive agreement is
in essence an executive power. This authority of the President to enter into
executive agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine jurisprudence.26 Now, the fact that
the President has to secure the prior concurrence of the Monetary Board,
which shall submit to Congress a complete report of its decision before
contracting or guaranteeing foreign loans, does not diminish the executive
nature of the power.

The inviolate doctrine of separation of powers among the legislative, executive

and judicial branches of government by no means prescribes absolute
autonomy in the discharge by each branch of that part of the governmental
power assigned to it by the sovereign people. There is the corollary doctrine of
checks and balances, which has been carefully calibrated by the Constitution
to temper the official acts of each of these three branches. Thus, by analogy,
the fact that certain legislative acts require action from the President for their
validity does not render such acts less legislative in nature. A good example is
the power to pass a law. Article VI, Section 27 of the Constitution mandates
that every bill passed by Congress shall, before it becomes a law, be
presented to the President who shall approve or veto the same. The fact that
the approval or vetoing of the bill is lodged with the President does not render
the power to pass law executive in nature. This is because the power to pass
law is generally a quintessential and non-delegable power of the Legislature.
In the same vein, the executive power to enter or not to enter into a contract to
secure foreign loans does not become less executive in nature because of
conditions laid down in the Constitution. The final decision in the exercise of
the said executive power is still lodged in the Office of the President.

B. The "doctrine of operational proximity" was laid down precisely to

limit the scope of the presidential communications privilege but, in any
case, it is not conclusive.

Second, respondent Committees also seek reconsideration of the application

of the "doctrine of operational proximity" for the reason that "it maybe
misconstrued to expand the scope of the presidential communications
privilege to communications between those who are operationally proximate
to the President but who may have "no direct communications with her."

It must be stressed that the doctrine of "operational proximity" was laid down
in In re: Sealed Case27precisely to limit the scope of the presidential
communications privilege. The U.S. court was aware of the dangers that a
limitless extension of the privilege risks and, therefore, carefully cabined its
reach by explicitly confining it to White House staff, and not to staffs of the
agencies, and then only to White House staff that has "operational proximity"
to direct presidential decision-making, thus:

We are aware that such an extension, unless carefully circumscribed to

accomplish the purposes of the privilege, could pose a significant risk of
expanding to a large swath of the executive branch a privilege that is
 bottomed on a recognition of the unique role of the President. In order to
limit this risk, the presidential communications privilege should be
construed as narrowly as is consistent with ensuring that the
confidentiality of the Presidents decision-making process is adequately
protected. Not every person who plays a role in the development of
presidential advice, no matter how remote and removed from the
President, can qualify for the privilege. In particular, the privilege
should not extend to staff outside the White House in executive
branch agencies. Instead, the privilege should apply only to
communications authored or solicited and received by those members
of an immediate White House advisors staff who have broad and
significant responsibility for investigation and formulating the advice to
be given the President on the particular matter to which the
communications relate. Only communications at that level are close
enough to the President to be revelatory of his deliberations or to
pose a risk to the candor of his advisers. See AAPS, 997 F.2d at
910 (it is "operational proximity" to the President that matters in
determining whether "[t]he Presidents confidentiality interests" is
implicated).(Emphasis supplied)

In the case at bar, the danger of expanding the privilege "to a large swath of
the executive branch" (a fear apparently entertained by respondents) is
absent because the official involved here is a member of the Cabinet, thus,
properly within the term "advisor" of the President; in fact, her alter ego and a
member of her official family. Nevertheless, in circumstances in which the
official involved is far too remote, this Court also mentioned in the Decision
the organizational test laid down in Judicial Watch, Inc. v. Department of
Justice.28 This goes to show that the operational proximity test used in the
Decision is not considered conclusive in every case. In determining which test
to use, the main consideration is to limit the availability of executive privilege
only to officials who stand proximate to the President, not only by reason of
their function, but also by reason of their positions in the Executives
organizational structure. Thus, respondent Committees fear that the scope of
the privilege would be unnecessarily expanded with the use of the operational
proximity test is unfounded.

C. The Presidents claim of executive privilege is not merely based on a

generalized interest; and in balancing respondent Committees and the
Presidents clashing interests, the Court did not disregard the 1987
Constitutional provisions on government transparency, accountability
and disclosure of information.

Third, respondent Committees claim that the Court erred in upholding the
Presidents invocation, through the Executive Secretary, of executive privilege
because (a) between respondent Committees specific and demonstrated
need and the Presidents generalized interest in confidentiality, there is a need
to strike the balance in favor of the former; and (b) in the balancing of interest,
the Court disregarded the provisions of the 1987 Philippine Constitution on
government transparency, accountability and disclosure of information,
specifically, Article III, Section 7;29 Article II, Sections 2430 and 28;31 Article XI,
Section 1;32 Article XVI, Section 10;33 Article VII, Section 20;34 and Article XII,
Sections 9,35 21,36 and 22.37

It must be stressed that the Presidents claim of executive privilege is not

merely founded on her generalized interest in confidentiality. The Letter dated
November 15, 2007 of Executive Secretary Ermita specified presidential
communications privilege in relation to diplomatic and economic
relations with another sovereign nation as the bases for the claim. Thus,
the Letter stated:

The context in which executive privilege is being invoked is that

the information sought to be disclosed might impair our diplomatic
as well as economic relations with the Peoples Republic of China.
Given the confidential nature in which this information were conveyed to
the President, he cannot provide the Committee any further details of
these conversations, without disclosing the very thing the privilege is
designed to protect. (emphasis supplied)

Even in Senate v. Ermita, it was held that Congress must not require the
Executive to state the reasons for the claim with such particularity as to
compel disclosure of the information which the privilege is meant to protect.
This is a matter of respect for a coordinate and co-equal department.

It is easy to discern the danger that goes with the disclosure of the Presidents
communication with her advisor. The NBN Project involves a foreign country
as a party to the agreement. It was actually a product of the meeting of minds
between officials of the Philippines and China. Whatever the President says
about the agreement - particularly while official negotiations are ongoing - are
matters which China will surely view with particular interest. There is danger in
such kind of exposure. It could adversely affect our diplomatic as well as
economic relations with the Peoples Republic of China. We reiterate the
importance of secrecy in matters involving foreign negotiations as stated
in United States v. Curtiss-Wright Export Corp., 38 thus:

The nature of foreign negotiations requires caution, and their success

must often depend on secrecy, and even when brought to a conclusion,
a full disclosure of all the measures, demands, or eventual concessions
which may have been proposed or contemplated would be extremely
impolitic, for this might have a pernicious influence on future
negotiations or produce immediate inconveniences, perhaps danger
and mischief, in relation to other powers. The necessity of such caution
and secrecy was one cogent reason for vesting the power of making
treaties in the President, with the advice and consent of the Senate, the
principle on which the body was formed confining it to a small number of
members. To admit, then, a right in the House of Representatives to
demand and to have as a matter of course all the papers respecting a
negotiation with a foreign power would be to establish a dangerous
precedent.

US jurisprudence clearly guards against the dangers of allowing Congress

access to all papers relating to a negotiation with a foreign power. In this
jurisdiction, the recent case of Akbayan Citizens Action Party, et al. v. Thomas
G. Aquino, et al.39 upheld the privileged character of diplomatic negotiations.
In Akbayan, the Court stated:

Privileged character of diplomatic negotiations

The privileged character of diplomatic negotiations has been recognized

in this jurisdiction. In discussing valid limitations on the right to
information, the Court in Chavez v. PCGG held that "information on
inter-government exchanges prior to the conclusion of treaties and
executive agreements may be subject to reasonable safeguards for the
sake of national interest." Even earlier, the same privilege was upheld
in Peoples Movement for Press Freedom (PMPF) v.
Manglapus wherein the Court discussed the reasons for the privilege in
more precise terms.

In PMPF v. Manglapus, the therein petitioners were seeking information

from the Presidents representatives on the state of the then on-going
negotiations of the RP-US Military Bases Agreement. The Court denied
the petition, stressing that "secrecy of negotiations with foreign
countries is not violative of the constitutional provisions of freedom of
speech or of the press nor of the freedom of access to information."
The Resolution went on to state, thus:

The nature of diplomacy requires centralization of authority

and expedition of decision which are inherent in executive
action. Another essential characteristic of diplomacy is its
confidential nature. Although much has been said about "open"
and "secret" diplomacy, with disparagement of the latter,
Secretaries of State Hughes and Stimson have clearly analyzed
and justified the practice. In the words of Mr. Stimson:

"A complicated negotiation cannot be carried through

without many, many private talks and discussion, man
to man; many tentative suggestions and
proposals. Delegates from other countries come and
tell you in confidence of their troubles at home and of
their differences with other countries and with other
delegates; they tell you of what they would do under
certain circumstances and would not do under other
circumstances If these reports should become
public who would ever trust American Delegations in
another conference? (United States Department of State,
Press Releases, June 7, 1930, pp. 282-284)

xxxx

There is frequent criticism of the secrecy in which

negotiation with foreign powers on nearly all subjects is
concerned. This, it is claimed, is incompatible with the
substance of democracy. As expressed by one writer, "It can be
 said that there is no more rigid system of silence anywhere in the
world." (E.J. Young, Looking Behind the Censorship, J. B.
Lipincott Co., 1938) President Wilson in starting his efforts for the
conclusion of the World War declared that we must have "open
covenants, openly arrived at." He quickly abandoned his thought.

No one who has studied the question believes that such a method
of publicity is possible. In the moment that negotiations are
started, pressure groups attempt to "muscle in." An ill-timed
speech by one of the parties or a frank declaration of the
concession which are exacted or offered on both sides would
quickly lead to a widespread propaganda to block the
negotiations. After a treaty has been drafted and its terms are
fully published, there is ample opportunity for discussion
before it is approved. (The New American Government and Its
Works, James T. Young, 4th Edition, p. 194) (Emphasis and
underscoring supplied)

Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v.

Curtiss-Wright Export Corp. that the President is the sole organ of the
nation in its negotiations with foreign countries,viz:

"x x x In this vast external realm, with its important, complicated,

delicate and manifold problems, the President alone has the
power to speak or listen as a representative of the nation.
He makes treaties with the advice and consent of the Senate; but
he alone negotiates. Into the field of negotiation the Senate
cannot intrude; and Congress itself is powerless to invade it. As
Marshall said in his great arguments of March 7, 1800, in the
House of Representatives, "The President is the sole organ of
the nation in its external relations, and its sole representative
with foreign nations." Annals, 6th Cong., col. 613 (Emphasis
supplied; underscoring in the original)

Considering that the information sought through the three (3) questions
subject of this Petition involves the Presidents dealings with a foreign nation,
with more reason, this Court is wary of approving the view that Congress may
peremptorily inquire into not only official, documented acts of the President
but even her confidential and informal discussions with her close advisors on
the pretext that said questions serve some vague legislative need. Regardless
of who is in office, this Court can easily foresee unwanted consequences of
subjecting a Chief Executive to unrestricted congressional inquiries done with
increased frequency and great publicity. No Executive can effectively
discharge constitutional functions in the face of intense and unchecked
legislative incursion into the core of the Presidents decision-making process,
which inevitably would involve her conversations with a member of her
Cabinet.

With respect to respondent Committees invocation of constitutional

prescriptions regarding the right of the people to information and public
accountability and transparency, the Court finds nothing in these arguments to
support respondent Committees case.

There is no debate as to the importance of the constitutional right of the

people to information and the constitutional policies on public accountability
and transparency. These are the twin postulates vital to the effective
functioning of a democratic government. The citizenry can become prey to the
whims and caprices of those to whom the power has been delegated if they
are denied access to information. And the policies on public accountability and
democratic government would certainly be mere empty words if access to
such information of public concern is denied.

In the case at bar, this Court, in upholding executive privilege with respect to
three (3) specific questions, did not in any way curb the publics right to
information or diminish the importance of public accountability and
transparency.

This Court did not rule that the Senate has no power to investigate the NBN
Project in aid of legislation. There is nothing in the assailed Decision that
prohibits respondent Committees from inquiring into the NBN Project. They
could continue the investigation and even call petitioner Neri to testify again.
He himself has repeatedly expressed his willingness to do so. Our Decision
merely excludes from the scope of respondents investigation the three (3)
questions that elicit answers covered by executive privilege and rules that
petitioner cannot be compelled to appear before respondents to answer the
said questions. We have discussed the reasons why these answers are
covered by executive privilege. That there is a recognized public interest in
the confidentiality of such information is a recognized principle in other
democratic States. To put it simply, the right to information is not an absolute
right.

Indeed, the constitutional provisions cited by respondent Committees do not

espouse an absolute right to information. By their wording, the intention of the
Framers to subject such right to the regulation of the law is unmistakable. The
highlighted portions of the following provisions show the obvious limitations on
the right to information, thus:

Article III, Sec. 7. The right of the people to information on matters of

public concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official records, and to documents,
and papers pertaining to official acts, transactions, or decisions, as well
as to government research data used as basis for policy development,
shall be afforded the citizen, subject to such limitations as may be
provided by law.

Article II, Sec. 28. Subject to reasonable conditions prescribed by

law, the State adopts and implements a policy of full public disclosure of
all its transactions involving public interest. (Emphasis supplied)

In Chavez v. Presidential Commission on Good Government,40 it was stated

that there are no specific laws prescribing the exact limitations within which
the right may be exercised or the correlative state duty may be obliged.
Nonetheless, it enumerated the recognized restrictions to such rights, among
them: (1) national security matters, (2) trade secrets and banking transactions,
(3) criminal matters, and (4) other confidential information. National security
matters include state secrets regarding military and diplomatic matters, as well
as information on inter-government exchanges prior to the conclusion of
treaties and executive agreements. It was further held that even where
there is no need to protect such state secrets, they must be "examined
in strict confidence and given scrupulous protection."

Incidentally, the right primarily involved here is the right of respondent

Committees to obtain information allegedly in aid of legislation, not the
peoples right to public information. This is the reason why we stressed in the
assailed Decision the distinction between these two rights. As laid down
in Senate v. Ermita, "the demand of a citizen for the production of documents
pursuant to his right to information does not have the same obligatory force as
a subpoena duces tecum issued by Congress" and "neither does the right to
information grant a citizen the power to exact testimony from government
officials." As pointed out, these rights belong to Congress, not to the individual
citizen. It is worth mentioning at this juncture that the parties here are
respondent Committees and petitioner Neri and that there was no prior
request for information on the part of any individual citizen. This Court will not
be swayed by attempts to blur the distinctions between the Legislature's right
to information in a legitimate legislative inquiry and the public's right to
information.

For clarity, it must be emphasized that the assailed Decision did not
enjoin respondent Committees from inquiring into the NBN Project. All
that is expected from them is to respect matters that are covered by
executive privilege.

III.

Respondent Committees Failed to Show That

the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions

In their Motion for Reconsideration, respondent Committees devote an

unusually lengthy discussion on the purported legislative nature of their entire
inquiry, as opposed to an oversight inquiry.

At the outset, it must be clarified that the Decision did not pass upon the
nature of respondent Committees inquiry into the NBN Project. To reiterate,
this Court recognizes respondent Committees power to investigate the NBN
Project in aid of legislation. However, this Court cannot uphold the view that
when a constitutionally guaranteed privilege or right is validly invoked by a
witness in the course of a legislative investigation, the legislative purpose of
respondent Committees questions can be sufficiently supported by the
expedient of mentioning statutes and/or pending bills to which their inquiry as
a whole may have relevance. The jurisprudential test laid down by this Court
in past decisions on executive privilege is that the presumption of privilege
can only be overturned by a showing of compelling need for disclosure of
the information covered by executive privilege.

In the Decision, the majority held that "there is no adequate showing of a

compelling need that would justify the limitation of the privilege and of the
unavailability of the information elsewhere by an appropriate investigating
authority." In the Motion for Reconsideration, respondent Committees argue
that the information elicited by the three (3) questions are necessary in the
discharge of their legislative functions, among them, (a) to consider the three
(3) pending Senate Bills, and (b) to curb graft and corruption.

We remain unpersuaded by respondents assertions.

In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to
balancing against other interests and it is necessary to resolve the competing
interests in a manner that would preserve the essential functions of each
branch. There, the Court weighed between presidential privilege and the
legitimate claims of the judicial process. In giving more weight to the latter, the
Court ruled that the President's generalized assertion of privilege must yield to
the demonstrated, specific need for evidence in a pending criminal trial.

The Nixon Court ruled that an absolute and unqualified privilege would stand
in the way of the primary constitutional duty of the Judicial Branch to do justice
in criminal prosecutions. The said Court further ratiocinated, through its ruling
extensively quoted in the Honorable Chief Justice Puno's dissenting opinion,
as follows:

"... this presumptive privilege must be considered in light of our historic

commitment to the rule of law. This is nowhere more profoundly
manifest than in our view that 'the twofold aim (of criminal justice) is that
guild shall not escape or innocence suffer.' Berger v. United States, 295
U.S., at 88, 55 S.Ct., at 633. We have elected to employ an adversary
system of criminal justice in which the parties contest all issues before a
court of law. The need to develop all relevant facts in the adversary
system is both fundamental and comprehensive. The ends of
criminal justice would be defeated if judgments were to be founded
on a partial or speculative presentation of the facts. The very
integrity of the judicial system and public confidence in the system
depend on full disclosure of all the facts, within the framework of
the rules of evidence. To ensure that justice is done, it is
imperative to the function of courts that compulsory process be
available for the production of evidence needed either by the
prosecution or by the defense.

xxx xxx xxx

The right to the production of all evidence at a criminal trial similarly has
constitutional dimensions. The Sixth Amendment explicitly confers upon
every defendant in a criminal trial the right 'to be confronted with the
witness against him' and 'to have compulsory process for obtaining
witnesses in his favor.' Moreover, the Fifth Amendment
 also guarantees that no person shall be deprived of liberty without
due process of law. It is the manifest duty of the courts to vindicate
those guarantees, and to accomplish that it is essential that all relevant
and admissible evidence be produced.

In this case we must weigh the importance of the general privilege

of confidentiality of Presidential communications in performance
of the President's responsibilities against the inroads of such a
privilege on the fair administration of criminal justice. (emphasis
supplied)

xxx xxx xxx

...the allowance of the privilege to withhold evidence that

is demonstrably relevant in a criminal trial would cut deeply into
the guarantee of due process of law and gravely impair the basic
function of the courts. A President's acknowledged need for
confidentiality in the communications of his office is general in nature,
whereas the constitutional need for production of relevant evidence
in a criminal proceeding is specific and central to the fair
adjudication of a particular criminal case in the administration of
justice. Without access to specific facts a criminal prosecution may
be totally frustrated. The President's broad interest in
confidentiality of communication will not be vitiated by disclosure
of a limited number of conversations preliminarily shown to have
some bearing on the pending criminal cases.

We conclude that when the ground for asserting privilege as to

subpoenaed materials sought for use in a criminal trial is based only on
the generalized interest in confidentiality, it cannot prevail over the
fundamental demands of due process of law in the fair
administration of criminal justice. The generalized assertion of
privilege must yield to the demonstrated, specific need for evidence in
a pending criminal trial. (emphasis supplied)

In the case at bar, we are not confronted with a courts need for facts in order
to adjudge liability in a criminal case but rather with the Senates need for
information in relation to its legislative functions. This leads us to consider
once again just how critical is the subject information in the discharge of
respondent Committees functions. The burden to show this is on the
respondent Committees, since they seek to intrude into the sphere of
competence of the President in order to gather information which, according
to said respondents, would "aid" them in crafting legislation.

Senate Select Committee on Presidential Campaign Activities v.

Nixon41 expounded on the nature of a legislative inquiry in aid of legislation in
this wise:

The sufficiency of the Committee's showing of need has come to

depend, therefore, entirely on whether the subpoenaed materials are
critical to the performance of its legislative functions. There is a clear
 difference between Congress' legislative tasks and the responsibility of
a grand jury, or any institution engaged in like functions. While fact-
finding by a legislative committee is undeniably a part of its task,
legislative judgments normally depend more on the predicted
consequences of proposed legislative actions and their political
acceptability, than on precise reconstruction of past events;
Congress frequently legislates on the basis of conflicting information
provided in its hearings. In contrast, the responsibility of the grand jury
turns entirely on its ability to determine whether there is probable cause
to believe that certain named individuals did or did not commit specific
crimes. If, for example, as in Nixon v. Sirica, one of those crimes is
perjury concerning the content of certain conversations, the grand jury's
need for the most precise evidence, the exact text of oral statements
recorded in their original form, is undeniable. We see no comparable
need in the legislative process, at least not in the circumstances of
this case. Indeed, whatever force there might once have been in the
Committee's argument that the subpoenaed materials are necessary to
its legislative judgments has been substantially undermined by
subsequent events. (Emphasis supplied)

Clearly, the need for hard facts in crafting legislation cannot be equated with
the compelling or demonstratively critical and specific need for facts which is
so essential to the judicial power to adjudicate actual controversies. Also, the
bare standard of "pertinency" set in Arnault cannot be lightly applied to the
instant case, which unlike Arnault involves a conflict between two (2)
separate, co-equal and coordinate Branches of the Government.

Whatever test we may apply, the starting point in resolving the conflicting
claims between the Executive and the Legislative Branches is the recognized
existence of the presumptive presidential communications privilege. This is
conceded even in the Dissenting Opinion of the Honorable Chief Justice
Puno, which states:

A hard look at Senate v. Ermita ought to yield the conclusion that it

bestowed a qualified presumption in favor of the Presidential
communications privilege. As shown in the previous discussion, U.S. v.
Nixon, as well as the other related Nixon cases Sirica and Senate
Select Committee on Presidential Campaign Activities, et al., v.
Nixon in the D.C. Court of Appeals, as well as subsequent cases all
recognize that there is a presumptive privilege in favor of Presidential
communications. The Almonte case quoted U.S. v. Nixon and
recognized a presumption in favor of confidentiality of Presidential
communications.

The presumption in favor of Presidential communications puts the burden on

the respondent Senate Committees to overturn the presumption by
demonstrating their specific need for the information to be elicited by the
answers to the three (3) questions subject of this case, to enable them to craft
legislation. Here, there is simply a generalized assertion that the information is
pertinent to the exercise of the power to legislate and a broad and non-
specific reference to pending Senate bills. It is not clear what matters relating
to these bills could not be determined without the said information sought by
the three (3) questions. As correctly pointed out by the Honorable Justice
Dante O. Tinga in his Separate Concurring Opinion:

If respondents are operating under the premise that the

president and/or her executive officials have committed
wrongdoings that need to be corrected or prevented from
recurring by remedial legislation, the answer to those three
questions will not necessarily bolster or inhibit respondents from
proceeding with such legislation. They could easily presume the
worst of the president in enacting such legislation.

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

CHIEF JUSTICE PUNO

So can you tell the Court how critical are these questions to the
lawmaking function of the Senate. For instance, question Number
1 whether the President followed up the NBN project. According
to the other counsel this question has already been asked, is that
correct?

ATTY. AGABIN

Well, the question has been asked but it was not answered, Your
Honor.

CHIEF JUSTICE PUNO

Yes. But my question is how critical is this to the lawmaking

function of the Senate?

ATTY. AGABIN

I believe it is critical, Your Honor.

CHIEF JUSTICE PUNO

Why?

ATTY. AGABIN

For instance, with respect to the proposed Bill of Senator Miriam

Santiago, she would like to indorse a Bill to include Executive
Agreements had been used as a device to the circumventing the
Procurement Law.
CHIEF JUSTICE PUNO

But the question is just following it up.

ATTY. AGABIN

I believe that may be the initial question, Your Honor, because if

we look at this problem in its factual setting as counsel for
petitioner has observed, there are intimations of a bribery scandal
involving high government officials.

CHIEF JUSTICE PUNO

Again, about the second question, were you dictated to prioritize

this ZTE, is that critical to the lawmaking function of the Senate?
Will it result to the failure of the Senate to cobble a Bill without this
question?

ATTY. AGABIN

I think it is critical to lay the factual foundations for a proposed

amendment to the Procurement Law, Your Honor, because the
petitioner had already testified that he was offered a P200 Million
bribe, so if he was offered a P200 Million bribe it is possible that
other government officials who had something to do with the
approval of the contract would be offered the same amount of
bribes.

CHIEF JUSTICE PUNO

Again, that is speculative.

ATTY. AGABIN

That is why they want to continue with the investigation, Your

Honor.

CHIEF JUSTICE PUNO

How about the third question, whether the President said to go

ahead and approve the project after being told about the alleged
bribe. How critical is that to the lawmaking function of the Senate?
And the question is may they craft a Bill a remedial law without
forcing petitioner Neri to answer this question?

ATTY. AGABIN

Well, they can craft it, Your Honor, based on mere speculation.
And sound legislation requires that a proposed Bill should have
some basis in fact.42
The failure of the counsel for respondent Committees to pinpoint the specific
need for the information sought or how the withholding of the information
sought will hinder the accomplishment of their legislative purpose is very
evident in the above oral exchanges. Due to the failure of the respondent
Committees to successfully discharge this burden, the presumption in favor of
confidentiality of presidential communication stands. The implication of the
said presumption, like any other, is to dispense with the burden of proof as to
whether the disclosure will significantly impair the Presidents performance of
her function. Needless to state this is assumed, by virtue of the presumption.

Anent respondent Committees bewailing that they would have to "speculate"

regarding the questions covered by the privilege, this does not evince a
compelling need for the information sought. Indeed, Senate Select Committee
on Presidential Campaign Activities v. Nixon43 held that while fact-finding by a
legislative committee is undeniably a part of its task, legislative judgments
normally depend more on the predicted consequences of proposed legislative
actions and their political acceptability than on a precise reconstruction of past
events. It added that, normally, Congress legislates on the basis of conflicting
information provided in its hearings. We cannot subscribe to the respondent
Committees self-defeating proposition that without the answers to the three
(3) questions objected to as privileged, the distinguished members of the
respondent Committees cannot intelligently craft legislation.

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

In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:

The "allocation of constitutional boundaries" is a task that this

Court must perform under the Constitution. Moreover, as held in a
recent case, "the political question doctrine neither interposes an
obstacle to judicial determination of the rival claims. The jurisdiction to
delimit constitutional boundaries has been given to this Court. It cannot
abdicate that obligation mandated by the 1987 Constitution, although
said provision by no means does away with the applicability of the
principle in appropriate cases.46 (Emphasis supplied)

There, the Court further ratiocinated that "the contemplated inquiry by

respondent Committee is not really in aid of legislation because it is not
related to a purpose within the jurisdiction of Congress, since the aim of
the investigation is to find out whether or not the relatives of the
President or Mr. Ricardo Lopa had violated Section 5 of R.A. No. 3019,
the Anti-Graft and Corrupt Practices Act, a matter that appears more
within the province of the courts rather than of the
Legislature."47 (Emphasis and underscoring supplied)

The general thrust and the tenor of the three (3) questions is to trace the
alleged bribery to the Office of the President.48 While it may be a worthy
endeavor to investigate the potential culpability of high government officials,
including the President, in a given government transaction, it is simply not a
task for the Senate to perform. The role of the Legislature is to make laws, not
to determine anyones guilt of a crime or wrongdoing. Our Constitution has not
bestowed upon the Legislature the latter role. Just as the Judiciary cannot
legislate, neither can the Legislature adjudicate or prosecute.

Respondent Committees claim that they are conducting an inquiry in aid of

legislation and a "search for truth," which in respondent Committees view
appears to be equated with the search for persons responsible for
"anomalies" in government contracts.

No matter how noble the intentions of respondent Committees are, they

cannot assume the power reposed upon our prosecutorial bodies and courts.
The determination of who is/are liable for a crime or illegal activity, the
investigation of the role played by each official, the determination of who
should be haled to court for prosecution and the task of coming up with
conclusions and finding of facts regarding anomalies, especially the
determination of criminal guilt, are not functions of the Senate. Congress is
neither a law enforcement nor a trial agency. Moreover, it bears stressing that
no inquiry is an end in itself; it must be related to, and in furtherance of, a
legitimate task of the Congress, i.e. legislation. Investigations conducted
solely to gather incriminatory evidence and "punish" those investigated are
indefensible. There is no Congressional power to expose for the sake of
exposure.49In this regard, the pronouncement in Barenblatt v. United
States50 is instructive, thus:

Broad as it is, the power is not, however, without limitations. Since

Congress may only investigate into the areas in which it may potentially
legislate or appropriate, it cannot inquire into matters which are within
the exclusive province of one of the other branches of the government.
Lacking the judicial power given to the Judiciary, it cannot inquire into
matters that are exclusively the concern of the Judiciary. Neither can it
supplant the Executive in what exclusively belongs to the Executive.
(Emphasis supplied.)

At this juncture, it is important to stress that complaints relating to the NBN

Project have already been filed against President Arroyo and other
personalities before the Office of the Ombudsman. Under our Constitution, it
is the Ombudsman who has the duty "to investigate any act or omission of
any public official, employee, office or agency when such act or
omission appears to be illegal, unjust, improper, or inefficient."51 The
Office of the Ombudsman is the body properly equipped by the Constitution
and our laws to preliminarily determine whether or not the allegations of
anomaly are true and who are liable therefor. The same holds true for our
courts upon which the Constitution reposes the duty to determine criminal guilt
with finality. Indeed, the rules of procedure in the Office of the Ombudsman
and the courts are well-defined and ensure that the constitutionally
guaranteed rights of all persons, parties and witnesses alike, are
protected and safeguarded.

Should respondent Committees uncover information related to a possible

crime in the course of their investigation, they have the constitutional duty to
refer the matter to the appropriate agency or branch of government. Thus, the
Legislatures need for information in an investigation of graft and corruption
cannot be deemed compelling enough to pierce the confidentiality of
information validly covered by executive privilege. As discussed above, the
Legislature can still legislate on graft and corruption even without the
information covered by the three (3) questions subject of the petition.

Corollarily, respondent Committees justify their rejection of petitioners claim

of executive privilege on the ground that there is no privilege when the
information sought might involve a crime or illegal activity, despite the
absence of an administrative or judicial determination to that effect.
Significantly, however, in Nixon v. Sirica,52 the showing required to overcome
the presumption favoring confidentiality turned, not on the nature of the
presidential conduct that the subpoenaed material might reveal, but,
instead, on the nature and appropriateness of the function in the
performance of which the material was sought, and the degree to which
the material was necessary to its fulfillment.

Respondent Committees assert that Senate Select Committee on Presidential

Campaign Activities v. Nixon does not apply to the case at bar because,
unlike in the said case, no impeachment proceeding has been initiated at
present. The Court is not persuaded. While it is true that no impeachment
proceeding has been initiated, however, complaints relating to the NBN
Project have already been filed against President Arroyo and other
personalities before the Office of the Ombudsman. As the Court has said
earlier, the prosecutorial and judicial arms of government are the bodies
equipped and mandated by the Constitution and our laws to determine
whether or not the allegations of anomaly in the NBN Project are true and, if
so, who should be prosecuted and penalized for criminal conduct.

Legislative inquiries, unlike court proceedings, are not subject to the exacting
standards of evidence essential to arrive at accurate factual findings to which
to apply the law. Hence, Section 10 of the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation provides that "technical rules of
evidence applicable to judicial proceedings which do not affect substantive
rights need not be observed by the Committee." Court rules which prohibit
leading, hypothetical, or repetitive questions or questions calling for a hearsay
answer, to name a few, do not apply to a legislative inquiry. Every person,
from the highest public official to the most ordinary citizen, has the right to be
presumed innocent until proven guilty in proper proceedings by a competent
court or body.

IV
 Respondent Committees Committed Grave
Abuse of Discretion in Issuing the Contempt Order

Respondent Committees insist that they did not commit grave abuse of
discretion in issuing the contempt order because (1) there is no legitimate
claim of executive privilege; (2) they did not violate the requirements laid down
in Senate v. Ermita; (3) they issued the contempt order in accordance with
their internal Rules; (4) they did not violate the requirement under Article VI,
Section 21 of the Constitution requiring the publication of their Rules; and (5)
their issuance of the contempt order is not arbitrary or precipitate.

We reaffirm our earlier ruling.

The legitimacy of the claim of executive privilege having been fully discussed
in the preceding pages, we see no reason to discuss it once again.

Respondent Committees second argument rests on the view that the ruling
in Senate v. Ermita, requiring invitations or subpoenas to contain the "possible
needed statute which prompted the need for the inquiry" along with the "usual
indication of the subject of inquiry and the questions relative to and in
furtherance thereof" is not provided for by the Constitution and is merely an
obiter dictum.

On the contrary, the Court sees the rationale and necessity of compliance with
these requirements.

An unconstrained congressional investigative power, like an unchecked

Executive, generates its own abuses. Consequently, claims that the
investigative power of Congress has been abused (or has the potential for
abuse) have been raised many times.53 Constant exposure to congressional
subpoena takes its toll on the ability of the Executive to function effectively.
The requirements set forth in Senate v. Ermita are modest mechanisms that
would not unduly limit Congress power. The legislative inquiry must be
confined to permissible areas and thus, prevent the "roving commissions"
referred to in the U.S. case, Kilbourn v. Thompson.54 Likewise, witnesses
have their constitutional right to due process. They should be adequately
informed what matters are to be covered by the inquiry. It will also allow them
to prepare the pertinent information and documents. To our mind, these
requirements concede too little political costs or burdens on the part of
Congress when viewed vis--vis the immensity of its power of inquiry. The
logic of these requirements is well articulated in the study conducted by
William P. Marshall,55 to wit:

A second concern that might be addressed is that the current system

allows committees to continually investigate the Executive without
constraint. One process solution addressing this concern is to
require each investigation be tied to a clearly stated purpose. At
present, the charters of some congressional committees are so broad
that virtually any matter involving the Executive can be construed to fall
within their province. Accordingly, investigations can proceed without
articulation of specific need or purpose. A requirement for a more
 precise charge in order to begin an inquiry should immediately work to
limit the initial scope of the investigation and should also serve to
contain the investigation once it is instituted. Additionally, to the
extent clear statements of rules cause legislatures to pause and
seriously consider the constitutional implications of proposed
courses of action in other areas, they would serve that goal in the
context of congressional investigations as well.

The key to this reform is in its details. A system that allows a

standing committee to simply articulate its reasons to investigate
pro forma does no more than imposes minimal drafting burdens.
Rather, the system must be designed in a manner that imposes
actual burdens on the committee to articulate its need for
investigation and allows for meaningful debate about the merits of
proceeding with the investigation.(Emphasis supplied)

Clearly, petitioners request to be furnished an advance copy of questions is a

reasonable demand that should have been granted by respondent
Committees.

Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007

made no specific reference to any pending Senate bill. It did not also inform
petitioner of the questions to be asked. As it were, the subpoena merely
commanded him to "testify on what he knows relative to the subject matter
under inquiry."

Anent the third argument, respondent Committees contend that their Rules of
Procedure Governing Inquiries in Aid of Legislation (the "Rules") are beyond
the reach of this Court. While it is true that this Court must refrain from
reviewing the internal processes of Congress, as a co-equal branch of
government, however, when a constitutional requirement exists, the Court has
the duty to look into Congress compliance therewith. We cannot turn a blind
eye to possible violations of the Constitution simply out of courtesy. In this
regard, the pronouncement in Arroyo v. De Venecia56 is enlightening, thus:

"Cases both here and abroad, in varying forms of expression, all deny to
the courts the power to inquire into allegations that, in enacting a law, a
House of Congress failed to comply with its own rules, in the absence of
showing that there was a violation of a constitutional provision or the
rights of private individuals.

United States v. Ballin, Joseph & Co., the rule was stated thus: The
Constitution empowers each House to determine its rules of
proceedings. It may not by its rules ignore constitutional restraints
or violate fundamental rights, and there should be a reasonable
relation between the mode or method of proceeding established by
the rule and the result which is sought to be attained."

In the present case, the Courts exercise of its power of judicial review is
warranted because there appears to be a clear abuse of the power of
contempt on the part of respondent Committees. Section 18 of the Rules
provides that:

"The Committee, by a vote of majority of all its members, may punish

for contempt any witness before it who disobey any order of the
Committee or refuses to be sworn or to testify or to answer proper
questions by the Committee or any of its members." (Emphasis
supplied)

In the assailed Decision, we said that there is a cloud of doubt as to the

validity of the contempt order because during the deliberation of the three (3)
respondent Committees, only seven (7) Senators were present. This number
could hardly fulfill the majority requirement needed by respondent Committee
on Accountability of Public Officers and Investigations which has a
membership of seventeen (17) Senators and respondent Committee on
National Defense and Security which has a membership of eighteen (18)
Senators. With respect to respondent Committee on Trade and
Commerce which has a membership of nine (9) Senators, only three (3)
members were present.57These facts prompted us to quote in the Decision the
exchanges between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr.
whereby the former raised the issue of lack of the required majority to
deliberate and vote on the contempt order.

When asked about such voting during the March 4, 2008 hearing before this
Court, Senator Francis Pangilinan stated that any defect in the committee
voting had been cured because two-thirds of the Senators effectively signed
for the Senate in plenary session.58

Obviously the deliberation of the respondent Committees that led to the

issuance of the contempt order is flawed. Instead of being submitted to a full
debate by all the members of the respondent Committees, the contempt order
was prepared and thereafter presented to the other members for signing. As a
result, the contempt order which was issued on January 30, 2008 was not a
faithful representation of the proceedings that took place on said date.
Records clearly show that not all of those who signed the contempt order
were present during the January 30, 2008 deliberation when the matter was
taken up.

Section 21, Article VI of the Constitution states that:

The Senate or the House of Representatives or any of its respective

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

All the limitations embodied in the foregoing provision form part of the witness
settled expectation. If the limitations are not observed, the witness settled
expectation is shattered. Here, how could there be a majority vote when the
members in attendance are not enough to arrive at such majority? Petitioner
has the right to expect that he can be cited in contempt only through a
majority vote in a proceeding in which the matter has been fully deliberated
upon. There is a greater measure of protection for the witness when the
concerns and objections of the members are fully articulated in such
proceeding. We do not believe that respondent Committees have the
discretion to set aside their rules anytime they wish. This is especially true
here where what is involved is the contempt power. It must be stressed that
the Rules are not promulgated for their benefit. More than anybody else, it is
the witness who has the highest stake in the proper observance of the Rules.

Having touched the subject of the Rules, we now proceed to respondent

Committees fourth argument. Respondent Committees argue that the Senate
does not have to publish its Rules because the same was published in 1995
and in 2006. Further, they claim that the Senate is a continuing body; thus, it
is not required to republish the Rules, unless the same is repealed or
amended.

On the nature of the Senate as a "continuing body," this Court sees fit to issue
a clarification. Certainly, there is no debate that the Senate as an
institution is "continuing", as it is not dissolved as an entity with each national
election or change in the composition of its members. However, in the conduct
of its day-to-day business the Senate of each Congress acts separately and
independently of the Senate of the Congress before it. The Rules of the
Senate itself confirms this when it states:

RULE XLIV
UNFINISHED BUSINESS

SEC. 123. Unfinished business at the end of the session shall be taken
up at the next session in the same status.

All pending matters and proceedings shall terminate upon the

expiration of one (1) Congress, but may be taken by the succeeding
Congress as if present for the first time. (emphasis supplied)

Undeniably from the foregoing, all pending matters and proceedings, i.e.
unpassed bills and even legislative investigations, of the Senate of a particular
Congress are considered terminated upon the expiration of that Congress
and it is merely optional on the Senate of the succeeding Congress to take up
such unfinished matters, not in the same status, but as if presented for the
first time. The logic and practicality of such a rule is readily apparent
considering that the Senate of the succeeding Congress (which will typically
have a different composition as that of the previous Congress) should not be
bound by the acts and deliberations of the Senate of which they had no part. If
the Senate is a continuing body even with respect to the conduct of its
business, then pending matters will not be deemed terminated with the
expiration of one Congress but will, as a matter of course, continue into the
next Congress with the same status.

This dichotomy of the continuity of the Senate as an institution and of the

opposite nature of the conduct of its business is reflected in its Rules. The
Rules of the Senate (i.e. the Senates main rules of procedure) states:
 RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES

SEC. 136. At the start of each session in which the Senators elected in
the preceding elections shall begin their term of office, the President
may endorse the Rules to the appropriate committee for amendment or
revision.

The Rules may also be amended by means of a motion which should be

presented at least one day before its consideration, and the vote of the
majority of the Senators present in the session shall be required for its
approval. (emphasis supplied)

RULE LII
DATE OF TAKING EFFECT

SEC. 137. These Rules shall take effect on the date of their adoption
and shall remain in force until they are amended or repealed. (emphasis
supplied)

Section 136 of the Senate Rules quoted above takes into account the new
composition of the Senate after an election and the possibility of the
amendment or revision of the Rules at the start of eachsession in which the
newly elected Senators shall begin their term.

However, it is evident that the Senate has determined that its main rules are
intended to be valid from the date of their adoption until they are amended or
repealed. Such language is conspicuously absent from the Rules.
The Rules simply state "(t)hese Rules shall take effect seven (7) days after
publication in two (2) newspapers of general circulation."59 The latter does not
explicitly provide for the continued effectivity of such rules until they are
amended or repealed. In view of the difference in the language of the two sets
of Senate rules, it cannot be presumed that the Rules (on legislative inquiries)
would continue into the next Congress. The Senate of the next Congress may
easily adopt different rules for its legislative inquiries which come within the
rule on unfinished business.

The language of Section 21, Article VI of the Constitution requiring that the
inquiry be conducted in accordance with the duly published rules of
procedure is categorical. It is incumbent upon the Senate to publish the rules
for its legislative inquiries in each Congress or otherwise make the published
rules clearly state that the same shall be effective in subsequent Congresses
or until they are amended or repealed to sufficiently put public on notice.

If it was the intention of the Senate for its present rules on legislative inquiries
to be effective even in the next Congress, it could have easily adopted the
same language it had used in its main rules regarding effectivity.

Lest the Court be misconstrued, it should likewise be stressed that not all
orders issued or proceedings conducted pursuant to the subject Rules are null
and void. Only those that result in violation of the rights of witnesses should
be considered null and void, considering that the rationale for the publication
is to protect the rights of witnesses as expressed in Section 21, Article VI of
the Constitution. Sans such violation, orders and proceedings are considered
valid and effective.

Respondent Committees last argument is that their issuance of the contempt

order is not precipitate or arbitrary. Taking into account the totality of
circumstances, we find no merit in their argument.

As we have stressed before, petitioner is not an unwilling witness, and

contrary to the assertion of respondent Committees, petitioner did not assume
that they no longer had any other questions for him. He repeatedly manifested
his willingness to attend subsequent hearings and respond to new matters.
His only request was that he be furnished a copy of the new questions in
advance to enable him to adequately prepare as a resource person. He did
not attend the November 20, 2007 hearing because Executive Secretary
Ermita requested respondent Committees to dispense with his testimony on
the ground of executive privilege. Note that petitioner is an executive official
under the direct control and supervision of the Chief Executive. Why punish
petitioner for contempt when he was merely directed by his superior? Besides,
save for the three (3) questions, he was very cooperative during the
September 26, 2007 hearing.

On the part of respondent Committees, this Court observes their haste and
impatience. Instead of ruling on Executive Secretary Ermitas claim of
executive privilege, they curtly dismissed it as unsatisfactory and ordered the
arrest of petitioner. They could have informed petitioner of their ruling and
given him time to decide whether to accede or file a motion for
reconsideration. After all, he is not just an ordinary witness; he is a high-
ranking official in a co-equal branch of government. He is an alter ego of the
President. The same haste and impatience marked the issuance of the
contempt order, despite the absence of the majority of the members of the
respondent Committees, and their subsequent disregard of petitioners motion
for reconsideration alleging the pendency of his petition for certiorari before
this Court.

On a concluding note, we are not unmindful of the fact that the Executive and
the Legislature are political branches of government. In a free and democratic
society, the interests of these branches inevitably clash, but each must treat
the other with official courtesy and respect. This Court wholeheartedly concurs
with the proposition that it is imperative for the continued health of our
democratic institutions that we preserve the constitutionally mandated checks
and balances among the different branches of government.

In the present case, it is respondent Committees contention that their

determination on the validity of executive privilege should be binding on the
Executive and the Courts. It is their assertion that theirinternal procedures and
deliberations cannot be inquired into by this Court supposedly in accordance
with the principle of respect between co-equal branches of government.
Interestingly, it is a courtesy that they appear to be unwilling to extend to the
Executive (on the matter of executive privilege) or this Court (on the matter of
judicial review). It moves this Court to wonder: In respondent Committees
paradigm of checks and balances, what are the checks to the Legislatures all-
encompassing, awesome power of investigation? It is a power, like any other,
that is susceptible to grave abuse.

While this Court finds laudable the respondent Committees well-intentioned

efforts to ferret out corruption, even in the highest echelons of government,
such lofty intentions do not validate or accord to Congress powers denied to it
by the Constitution and granted instead to the other branches of government.

There is no question that any story of government malfeasance deserves an

inquiry into its veracity. As respondent Committees contend, this is founded
on the constitutional command of transparency and public accountability. The
recent clamor for a "search for truth" by the general public, the religious
community and the academe is an indication of a concerned citizenry, a
nation that demands an accounting of an entrusted power. However, the best
venue for this noble undertaking is not in the political branches of government.
The customary partisanship and the absence of generally accepted rules on
evidence are too great an obstacle in arriving at the truth or achieving justice
that meets the test of the constitutional guarantee of due process of law. We
believe the people deserve a more exacting "search for truth" than the
process here in question, if that is its objective.

WHEREFORE, respondent Committees Motion for Reconsideration dated

April 8, 2008 is hereby DENIED.

SO ORDERED.
OCTOBER TERM, 1996

Syllabus

CLINTON v. JONES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH

CIRCUIT

No. 95-1853. Argued January 13, 1997-Decided May 27,1997

Respondent sued under 42 U. S. C. 1983 and 1985 and Arkansas law to recover
damages from petitioner, the current President of the United States, alleging, inter
alia, that while he was Governor of Arkansas, petitioner made "abhorrent" sexual
advances to her, and that her rejection of those advances led to punishment by her
supervisors in the state job she held at the time. Petitioner promptly advised the Federal
District Court that he would file a motion to dismiss on Presidential immunity grounds,
and requested that all other pleadings and motions be deferred until the immunity issue
was resolved. After the court granted that request, petitioner filed a motion to dismiss
without prejudice and to toll any applicable statutes of limitation during his Presidency.
The District Judge denied dismissal on immunity grounds and ruled that discovery could
go forward, but ordered any trial stayed until petitioner's Presidency ended. The Eighth
Circuit affirmed the dismissal denial, but reversed the trial postponement as the
"functional equivalent" of a grant of temporary immunity to which petitioner was not
constitutionally entitled. The court explained that the President, like other officials, is
subject to the same laws that apply to all citizens, that no case had been found in which
an official was granted immunity from suit for his unofficial acts, and that the rationale
for official immunity is inapposite where only personal, private conduct by a President is
at issue. The court also rejected the argument that, unless immunity is available, the
threat of judicial interference with the Executive Branch would violate separation of
powers.

Held:

1. This Court need not address two important constitutional issues not encompassed
within the questions presented by the certiorari petition: (1) whether a claim comparable
to petitioner's assertion of immunity might succeed in a state tribunal, and (2) whether a
court may compel the President's attendance at any specific time or place. Pp. 689-692.

2. Deferral of this litigation until petitioner's Presidency ends is not constitutionally

required. Pp.692-710.

(a) Petitioner's principal submission-that in all but the most exceptional cases, the
Constitution affords the President temporary immu-

682

Syllabus

nity from civil damages litigation arising out of events that occurred before he took
office-cannot be sustained on the basis of precedent. The principal rationale for
affording Presidents immunity from damages actions based on their official acts-i. e., to
enable them to perform their designated functions effectively without fear that a
particular decision may give rise to personal liability, see, e. g., Nixon v. Fitzgerald,
457 U. S. 731, 749, 752, and n. 32-provides no support for an immunity
for unofficial conduct. Moreover, immunities for acts clearly within official capacity are
grounded in the nature of the function performed, not the identity of the actor who
performed it. Forrester v. White, 484 U. S. 219, 229. The Court is also unpersuaded by
petitioner's historical evidence, which sheds little light on the question at issue, and is
largely canceled by conflicting evidence that is itself consistent with both the doctrine of
Presidential immunity as set forth in Fitzgerald, and rejection of the immunity claim in
this case. Pp. 692-697.

(b) The separation-of-powers doctrine does not require federal courts to stay all private
actions against the President until he leaves office. Even accepting the unique
importance of the Presidency in the constitutional scheme, it does not follow that that
doctrine would be violated by allowing this action to proceed. The doctrine provides a
self-executing safeguard against the encroachment or aggrandizement of one of the
three coequal branches of Government at the expense of
another. Buckley v. Valeo, 424 U. S. 1, 122. But in this case there is no suggestion that
the Federal Judiciary is being asked to perform any function that might in some way be
described as "executive." Respondent is merely asking the courts to exercise their core
Article III jurisdiction to decide cases and controversies, and, whatever the outcome,
there is no possibility that the decision here will curtail the scope of the Executive
Branch's official powers. The Court rejects petitioner's contention that this case-as well
as the potential additional litigation that an affirmance of the Eighth Circuit's judgment
might spawn-may place unacceptable burdens on the President that will hamper the
performance of his official duties. That assertion finds little support either in history, as
evidenced by the paucity of suits against sitting Presidents for their private actions, or in
the relatively narrow compass of the issues raised in this particular case. Of greater
significance, it is settled that the Judiciary may severely burden the Executive Branch by
reviewing the legality of the President's official conduct, see, e. g., Youngstown
Sheet & Tube Co. v. Sawyer, 343 U. S. 579, and may direct appropriate process to the
President himself, see, e. g., United States v. Nixon, 418 U. S. 683. It must follow that
the federal courts have power to determine the legality of the President's unofficial
conduct. The rea-

683

sons for rejecting a categorical rule requiring federal courts to stay private actions
during the President's term apply as well to a rule that would, in petitioner's words,
require a stay "in all but the most exceptional cases." Pp.697-706.

(c) Contrary to the Eighth Circuit's ruling, the District Court's stay order was not the
"functional equivalent" of an unconstitutional grant of temporary immunity. Rather, the
District Court has broad discretion to stay proceedings as an incident to its power to
control its own docket. See, e. g., Landis v. North American Co., 299 U. S. 248, 254.
Moreover, the potential burdens on the President posed by this litigation are appropriate
matters for that court to evaluate in its management of the case, and the high respect
owed the Presidency is a matter that should inform the conduct of the entire proceeding.
Nevertheless, the District Court's stay decision was an abuse of discretion because it
took no account of the importance of respondent's interest in bringing the case to trial,
and because it was premature in that there was nothing in the record to enable a judge
to assess whether postponement of trial after the completion of discovery would be
warranted. Pp.706-708.
(d) The Court is not persuaded of the seriousness of the alleged risks that this decision
will generate a large volume of politically motivated harassing and frivolous litigation and
that national security concerns might prevent the President from explaining a legitimate
need for a continuance, and has confidence in the ability of federal judges to deal with
both concerns. If Congress deems it appropriate to afford the President stronger
protection, it may respond with legislation. Pp. 708-710.

72 F.3d 1354, affirmed.

STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and
O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined.
BREYER, J., filed an opinion concurring in the judgment, post, p. 710.

Robert S. Bennett argued the cause for petitioner. With him on the briefs were Carl S.
Rauh, Alan Kriegel, Amy R. Sabrin, and David A. Strauss.

Acting Solicitor General Dellinger argued the cause for the United States as amicus
curiae urging reversal. With him on the brief were Assistant Attorney General Hunger,
Deputy Solicitor General Kneedler, Malcolm L. Stewart, and Douglas N. Letter.

684

Gilbert K. Davis argued the cause for respondent. With him on the brief was Joseph
Cammarata. *

JUSTICE STEVENS delivered the opinion of the Court. This case raises a constitutional
and a prudential question concerning the Office of the President of the United States.
Respondent, a private citizen, seeks to recover damages from the current occupant of
that office based on actions allegedly taken before his term began. The President
submits that in all but the most exceptional cases the Constitution requires federal
courts to defer such litigation until his term ends and that, in any event, respect for the
office warrants such a stay. Despite the force of the arguments supporting the
President's submissions, we conclude that they must be rejected.

Petitioner, William Jefferson Clinton, was elected to the Presidency in 1992, and
reelected in 1996. His term of office expires on January 20, 2001. In 1991 he was the
Governor of the State of Arkansas. Respondent, Paula Corbin Jones, is a resident of
California. In 1991 she lived in Arkansas, and was an employee of the Arkansas
Industrial Development Commission.

On May 6, 1994, she commenced this action in the United States District Court for the
Eastern District of Arkansas by filing a complaint naming petitioner and Danny
Ferguson, a former Arkansas State Police officer, as defendants. The

* John C. Jeffries, Jr., and Pamela S. Karlan filed a brief for Law Professors as amicus
curiae urging reversal.

Christopher A. Hansen and Steven R. Shapiro filed a brief for the American Civil
Liberties Union as amicus curiae urging affirmance.
Briefs of amicus curiae were filed for the Coalition of American Veterans by Laurence A.
Elgin; and for Law Professors by Ronald D. Rotunda, Albert E. Jenner, Jr., Stephen B.
Burbank, William Cohen, Geoffrey P. Miller, Robert F. Nagel, and Richard Parker.

685

complaint alleges two federal claims, and two state-law claims over which the federal
court has jurisdiction because of the diverse citizenship of the parties.1 As the case
comes to us, we are required to assume the truth of the detailedbut as yet untested-
factual allegations in the complaint.

Those allegations principally describe events that are said to have occurred on the
afternoon of May 8, 1991, during an official conference held at the Excelsior Hotel in
Little Rock, Arkansas. The Governor delivered a speech at the conference; respondent-
working as a state employee-staffed the registration desk. She alleges that Ferguson
persuaded her to leave her desk and to visit the Governor in a business suite at the
hotel, where he made "abhorrent" 2 sexual advances that she vehemently rejected. She
further claims that her superiors at work subsequently dealt with her in a hostile and
rude manner, and changed her duties to punish her for rejecting those advances.
Finally, she alleges that after petitioner was elected President, Ferguson defamed her
by making a statement to a reporter that implied she had accepted petitioner's alleged
overtures, and that various persons authorized to speak for the President publicly
branded her a liar by denying that the incident had occurred.

Respondent seeks actual damages of $75,000 and punitive damages of $100,000. Her
complaint contains four counts. The first charges that petitioner, acting under color of
state law, deprived her of rights protected by the Constitution, in violation of Rev. Stat.
1979, 42 U. S. C. 1983. The second charges that petitioner and Ferguson engaged in
a conspiracy to violate her federal rights, also actionable under federal law. See Rev.
Stat. 1980, 42 U. S. C. 1985. The third is a state common-law claim for intentional
infliction of emotional distress, grounded primarily on the incident at the

1 See 28 U. S. C. 1332. Jurisdiction over the federal claims is authorized by 28 U. S.

C. 1331 and 1343.

2 Complaint' 26.

686

hotel. The fourth count, also based on state law, is for defamation, embracing both the
comments allegedly made to the press by Ferguson and the statements of petitioner's
agents. Inasmuch as the legal sufficiency of the claims has not yet been challenged, we
assume, without deciding, that each of the four counts states a cause of action as a
matter of law. With the exception of the last charge, which arguably may involve
conduct within the outer perimeter of the President's official responsibilities, it is
perfectly clear that the alleged misconduct of petitioner was unrelated to any of his
official duties as President of the United States and, indeed, occurred before he was
elected to that office.3

II
In response to the complaint, petitioner promptly advised the District Court that he
intended to file a motion to dismiss on grounds of Presidential immunity, and requested
the court to defer all other pleadings and motions until after the immunity issue was
resolved.4 Relying on our cases holding that immunity questions should be decided at
the earliest possible stage of the litigation, 858 F. Supp. 902, 905 (ED Ark. 1994), our
recognition of the "'singular importance of the President's duties,'" id., at 904
(quoting Nixon v. Fitzgerald, 457 U. S. 731, 751 (1982)), and the fact that the question
did not require any analysis of the allegations of the complaint, 858 F. Supp., at 905, the
court granted the request. Petitioner thereupon filed a motion "to dismiss ... without
prejudice and to toll any statutes of limitation [that may be applicable] until he is no
longer President, at which time the plaintiff

3 As the matter is not before us, see Jones v. Clinton, 72 F.3d 1354, 1359, n.
7 (CA8 1996), we do not address the question whether the President's immunity from
damages liability for acts taken within the "outer perimeter" of his official responsibilities
provides a defense to the fourth count of the complaint. See Nixon v. Fitzgerald, 457 U.
S. 731, 756 (1982).

4 Record, Doc. No.9; see 858 F. Supp. 902, 904 (ED Ark. 1994).

687

may refile the instant suit." Record, Doc. No. 17. Extensive submissions were made to
the District Court by the parties and the Department of Justice.5

The District Judge denied the motion to dismiss on immunity grounds and ruled that
discovery in the case could go forward, but ordered any trial stayed until the end of
petitioner's Presidency. 869 F. Supp. 690 (ED Ark. 1994). Although she recognized that
a "thin majority" in Nixon v. Fitzgerald, 457 U. S. 731 (1982), had held that "the
President has absolute immunity from civil damage actions arising out of the execution
of official duties of office," she was not convinced that "a President has absolute
immunity from civil causes of action arising prior to assuming the office." 6 She was,
however, persuaded by some of the reasoning in our opinion in Fitzgerald that deferring
the trial if one were required would be appropriate.7 869 F. Supp., at 699-700. Relying
in part on the fact that respondent had failed to bring her complaint until two days before
the 3-year period of limitations expired, she concluded that the public interest in
avoiding litigation that might hamper the President in conducting the duties of his office
outweighed any demonstrated need for an immediate trial. Id., at 698-699.

Both parties appealed. A divided panel of the Court of Appeals affirmed the denial of the
motion to dismiss, but because it regarded the order postponing the trial until the

5 See App. to Pet. for Cert. 53.

6869 F. Supp., at 698. She explained: "Nowhere in the Constitution, congressional acts,
or the writings of any judge or scholar, may any credible support for such a proposition
be found. It is contrary to our form of government, which asserts as did the English in
the Magna Carta and the Petition of Right, that even the sovereign is subject to God
and the law." Ibid.

7 Although, as noted above, the District Court's initial order permitted discovery to go
forward, the court later stayed discovery pending the outcome of the appeals on the
immunity issue. 879 F. Supp. 86 (ED Ark. 1995).
688

President leaves office as the "functional equivalent" of a grant of temporary immunity, it

reversed that order. 72 F.3d 1354, 1361, n. 9, 1363 (CA8 1996). Writing for the majority,
Judge Bowman explained that "the President, like all other government officials, is
subject to the same laws that apply to all other members of our society," id., at 1358,
that he could find no "case in which any public official ever has been granted any
immunity from suit for his unofficial acts," ibid., and that the rationale for official immunity
"is inapposite where only personal, private conduct by a President is at issue," id., at
1360. The majority specifically rejected the argument that, unless immunity is available,
the threat of judicial interference with the Executive Branch through scheduling orders,
potential contempt citations, and sanctions would violate separation-of-powers
principles. Judge Bowman suggested that "judicial case management sensitive to the
burdens of the presidency and the demands of the President's schedule" would avoid
the perceived danger. Id., at 1361.

In dissent, Judge Ross submitted that even though the holding in Fitzgerald involved
official acts, the logic of the opinion, which "placed primary reliance on the prospect that
the President's discharge of his constitutional powers and duties would be impaired if he
were subject to suits for damages," applies with equal force to this case. 72 F. 3d, at
1367. In his view, "unless exigent circumstances can be shown," all private actions for
damages against a sitting President must be stayed until the completion of his
term. Ibid. In this case, Judge Ross saw no reason why the stay would prevent
respondent from ultimately obtaining an adjudication of her claims.

In response to the dissent, Judge Beam wrote a separate concurrence. He suggested

that a prolonged delay may well create a significant risk of irreparable harm to
respondent because of an unforeseeable loss of evidence or the possible

689

death of a party. Id., at 1363-1364. Moreover, he argued that in civil rights cases
brought under 1983 there is a "public interest in an ordinary citizen's timely vindication
of ... her most fundamental right against alleged abuse of power by government
officials." Id., at 1365. In his view, the dissent's concern about judicial interference with
the functioning of the Presidency was "greatly overstated." Ibid. Neither the involvement
of prior Presidents in litigation, either as parties or as witnesses, nor the character of
this "relatively uncomplicated civil litigation," indicated that the threat was serious. Id., at
1365-1366. Finally, he saw "no basis for staying discovery or trial of the claims against
Trooper Ferguson." Id., at 1366.8

III

The President, represented by private counsel, filed a petition for certiorari. The Acting
Solicitor General, representing the United States, supported the petition, arguing that
the decision of the Court of Appeals was "fundamentally mistaken" and created "serious
risks for the institution of the Presidency." 9 In her brief in opposition to certiorari,
respondent argued that this "one-of-a-kind case is singularly inappropriate" for the
exercise of our certiorari jurisdiction because it did not create any conflict among the
Courts of Appeals, it "does not pose any conceivable threat to the functioning of the
Executive Branch," and there is no precedent supporting the President's position.10
While our decision to grant the petition, 518 U. S. 1016 (1996), expressed no judgment
concerning the merits of the case, it does reflect our appraisal of its importance. The

8 Over the dissent of Judge McMillian, the Court of Appeals denied a suggestion for
rehearing en bane. 81 F.3d 78 (CA8 1996).

9 Brief for United States in Support of Petition 5.

10 Brief in Opposition 8, 10, 23.

690

representations made on behalf of the Executive Branch as to the potential impact of

the precedent established by the Court of Appeals merit our respectful and deliberate
consideration.

It is true that we have often stressed the importance of avoiding the premature
adjudication of constitutional questions.ll That doctrine of avoidance, however, is
applicable to the entire Federal Judiciary, not just to this Court, cf. Arizonansfor Official
English v. Arizona, ante, p. 43, and comes into play after the court has acquired
jurisdiction of a case. It does not dictate a discretionary denial of every certiorari petition
raising a novel constitutional question. It does, however, make it appropriate to identify
two important constitutional issues not encompassed within the questions presented by
the petition for certiorari that we need not address today. 12

11 As we have explained: '''If there is one doctrine more deeply rooted than any other in
the process of constitutional adjudication, it is that we ought not to pass on questions of
constitutionality ... unless such adjudication is unavoidable.' Spector Motor
Service v. McLaughlin, 323 U. S. 101, 105 [(1944)]. It has long been the Court's
'considered practice not to decide abstract, hypothetical or contingent questions ... or to
decide any constitutional question in advance of the necessity for its decision ... or to
formulate a rule of constitutional law broader than is required by the precise facts to
which it is to be applied ... or to decide any constitutional question except with reference
to the particular facts to which it is to be applied ... .' Alabama State Federation of
Labor v. McAdory, 325 U. S. 450, 461 [(1945)]. 'It is not the habit of the court to decide
questions of a constitutional nature unless absolutely necessary to a decision of the
case.' Burton v. United States, 196 U. S. 283, 295 [(1905)]." Rescue Army v. Municipal
Court of Los Angeles, 331 U. S. 549, 570, n. 34 (1947).

12The two questions presented in the certiorari petition are: "1. Whether the litigation of
a private civil damages action against an incumbent President must in all but the most
exceptional cases be deferred until the President leaves office"; and "2. Whether a
district court,

691

First, because the claim of immunity is asserted in a federal court and relies heavily on
the doctrine of separation of powers that restrains each of the three branches of the
Federal Government from encroaching on the domain of the other two, see, e. g.,
Buckley v. Valeo, 424 U. S. 1, 122 (1976) (per curiam), it is not necessary to consider or
decide whether a comparable claim might succeed in a state tribunal. If this case were
being heard in a state forum, instead of advancing a separation-of-powers argument,
petitioner would presumably rely on federalism and comity concerns, 13 as well as the
interest in protecting federal officials from possible local prejudice that underlies the
authority to remove certain cases brought against federal officers from a state to a
federal court, see 28 U. S. C. 1442(a); Mesa v. California, 489 U. S. 121, 125-126
(1989). Whether those concerns would present a more compelling case for immunity is
a question that is not before us.

Second, our decision rejecting the immunity claim and allowing the case to proceed
does not require us to confront the question whether a court may compel the
attendance of the President at any specific time or place. We assume that the testimony
of the President, both for discovery and for use at trial, may be taken at the White
House at a time that

as a proper exercise of judicial discretion, may stay such litigation until the President
leaves office." Our review is confined to these issues. See this Court's Rule 14.1(a).

13 Because the Supremacy Clause makes federal law "the supreme Law of the Land,"
Art. VI, cl. 2, any direct control by a state court over the President, who has principal
responsibility to ensure that those laws are "faithfully executed," Art. II, 3, may
implicate concerns that are quite different from the interbranch separation-of-powers
questions addressed here. Cf., e. g., Hancock v. Train, 426 U. S. 167, 178-179
(1976); Mayo v. United States, 319 U. S. 441, 445 (1943). See L. Tribe, American
Constitutional Law 513 (2d ed. 1988) ("[A]bsent explicit congressional consent no state
may command federal officials ... to take action in derogation of their ... federal
responsibilities").

692

will accommodate his busy schedule, and that, if a trial is held, there would be no
necessity for the President to attend in person, though he could elect to do SO.14

IV

Petitioner's principal submission-that "in all but the most exceptional cases," Brief for
Petitioner i, the Constitution affords the President temporary immunity from civil
damages litigation arising out of events that occurred before he took office-cannot be
sustained on the basis of precedent.

Only three sitting Presidents have been defendants in civil litigation involving their
actions prior to taking office. Complaints against Theodore Roosevelt and Harry Truman
had been dismissed before they took office; the dismissals were affirmed after their
respective inaugurations.15 Two companion cases arising out of an automobile
accident were filed against John F. Kennedy in 1960 during the Presidential
campaign.16 After taking office, he unsuccessfully argued that his status as
Commander in Chief gave him a right to a stay under the Soldiers' and Sailors' Civil
Relief Act of 1940, 50 U. S. C. App. 501-525. The motion for a stay was denied by
the District Court, and the matter was settled out of court.17 Thus, none of those cases
sheds any light on the constitutional issue before us.

The principal rationale for affording certain public servants immunity from suits for
money damages arising out of
14 Although Presidents have responded to written interrogatories, given depositions,
and provided videotaped trial testimony, see infra, at 704705, no sitting President has
ever testified, or been ordered to testify, in open court.

15 See People ex rel. Hurley v. Roosevelt, 179 N. Y. 544, 71 N. E. 1137 (1904);

DeVault v. Truman, 354 Mo. 1193, 194 S. W. 2d 29 (1946).

16 See Complaints in Bailey v. Kennedy, No. 757,200, and Hills v. Kennedy, No.
757,201 (Cal. Super. Ct., filed Oct. 27, 1960).

17 See 72 F. 3d, at 1362, n. 10.

693

their official acts is inapplicable to unofficial conduct. In cases involving prosecutors,

legislators, and judges we have repeatedly explained that the immunity serves the
public interest in enabling such officials to perform their designated functions effectively
without fear that a particular decision may give rise to personal liability. 18 We explained
in Ferri v. Ackerman, 444 U. S. 193 (1979):

"As public servants, the prosecutor and the judge represent the interest of society as a
whole. The conduct of their official duties may adversely affect a wide variety of different
individuals, each of whom may be a potential source of future controversy. The societal
interest in providing such public officials with the maximum ability to deal fearlessly and
impartially with the public at large has long been recognized as an acceptable
justification for official immunity. The point of immunity for such officials is to forestall an
atmosphere of intimidation that would conflict with their resolve to perform their
designated functions in a principled fashion." Id., at 202-204.

That rationale provided the principal basis for our holding that a former President of the
United States was "entitled to absolute immunity from damages liability predicated on
his official acts," Fitzgerald, 457 U. S., at 749. See id., at 752
(citing Ferri v. Ackerman). Our central concern was to

18 Some of these cases defined the immunities of state and local officials in actions
filed under 42 U. S. C. 1983. See, e. g., Imbler v. Pachtman, 424 U. S. 409,422-423
(1976) (prosecutorial immunity); Tenney v. Brandhove, 341 U. S. 367, 376-377 (1951)
(legislative immunity); Pierson v. Ray, 386 U. S. 547, 554-555 (1967) (judicial
immunity). The rationale underlying our official immunity jurisprudence in cases alleging
constitutional violations brought against federal officials is similar.
See, e. g., Butz v. Economou, 438 U. S. 478, 500-501 (1978).

694

avoid rendering the President "unduly cautious in the discharge of his official duties."
457 U. S., at 752, n. 32.19

This reasoning provides no support for an immunity for unofficial conduct. As we

explained in Fitzgerald, "the sphere of protected action must be related closely to the
immunity's justifying purposes." Id., at 755. Because of the President's broad
responsibilities, we recognized in that case an immunity from damages claims arising
out of official acts extending to the "outer perimeter of his authority." Id., at 757. But we
have never suggested that the President, or any other official, has an immunity that
extends beyond the scope of any action taken in an official capacity. See id., at 759
(Burger, C. J., concurring) (noting that "a President, like Members of Congress, judges,
prosecutors, or congressional aides-all having absolute immunity-are not immune for
acts outside official duties"); see also id., at 761, n. 4.

Moreover, when defining the scope of an immunity for acts clearly taken within an
official capacity, we have applied a functional approach. "Frequently our decisions have
held that an official's absolute immunity should extend only to acts in performance of
particular functions of his office." Id., at 755. Hence, for example, a judge's absolute
immunity does not extend to actions performed in a purely administra-

19Petitioner draws our attention to dicta in Fitzgerald, which he suggests are helpful to
his cause. We noted there that "[b]ecause of the singular importance of the President's
duties, diversion of his energies by concern with private lawsuits would raise unique
risks to the effective functioning of government," 457 U. S., at 751, and suggested
further that "[c]ognizance of ... personal vulnerability frequently could distract a
President from his public duties," id., at 753. Petitioner argues that in this aspect the
Court's concern was parallel to the issue he suggests is of great importance in this
case, the possibility that a sitting President might be distracted by the need to
participate in litigation during the pendency of his office. In context, however, it is clear
that our dominant concern was with the diversion of the President's attention during the
decisionmaking process caused by needless worry as to the possibility of damages
actions stemming from any particular official decision. Moreover, Fitzgerald did not
present the issue raised in this case because that decision involved claims against
a former President.

695

tive capacity. See Forrester v. White, 484 U. S. 219, 229-230 (1988). As our opinions
have made clear, immunities are grounded in "the nature of the function performed, not
the identity of the actor who performed it." Id., at 229.

Petitioner's effort to construct an immunity from suit for unofficial acts grounded purely
in the identity of his office is unsupported by precedent.

We are also unpersuaded by the evidence from the historical record to which petitioner
has called our attention. He points to a comment by Thomas Jefferson protesting the
subpoena duces tecum Chief Justice Marshall directed to him in the Burr trial,20 a
statement in the diaries kept by Senator William Maclay of the first Senate debates, in
which thenVice President John Adams and Senator Oliver Ellsworth are recorded as
having said that "the President personally [is] not ... subject to any process whatever,"
lest it be "put ... in the power of a common Justice to exercise any Authority over him
and Stop the Whole Machine of Government," 21 and to a quotation from Justice
Story's Commentaries on the Constitution.22 None of these sources sheds much light
on the question at hand.23
20 In Jefferson's view, the subpoena jeopardized the separation of powers by subjecting
the Executive Branch to judicial command. See 10 Works of Thomas Jefferson 404, n.
(P. Ford ed. 1905); Fitzgerald, 457 U. S., at 751,

219 Documentary History of First Federal Congress of the United States 168 (K.
Bowling & H. Veit eds. 1988) (Diary of William Maclay).

22 See 3 J. Story, Commentaries on the Constitution of the United States 1563, pp.
418-419 (1833).

23Jefferson's argument provides little support for petitioner's position.

As we explain later, the prerogative Jefferson claimed was denied him by the Chief
Justice in the very decision Jefferson was protesting, and this Court has subsequently
reaffirmed that holding. See United States v. Nixon, 418 U. S. 683(1974). The
statements supporting a similar proposition recorded in Senator Maclay's diary are
inconclusive of the issue before us here for the same reason. In addition, this material is
hardly proof of the unequivocal common understanding at the time of the founding.
Immediately after mentioning the positions of Adams and Ellsworth,

696

Respondent, in turn, has called our attention to conflicting historical evidence. Speaking
in favor of the Constitution's adoption at the Pennsylvania Convention, James
Wilsonwho had participated in the Philadelphia Convention at which the document was
drafted-explained that, although the President "is placed [on] high," "not a single
privilege is annexed to his character; far from being above the laws, he is amenable to
them in his private character as a citizen, and in his public character by impeachment."
2 J. Elliot, Debates on the Federal Constitution 480 (2d ed. 1863) (emphasis deleted).
This description is consistent with both the doctrine of Presidential immunity as set forth
in Fitzgerald and rejection of the immunity claim in this case. With respect to acts taken
in his "public character"-that is, official actsthe President may be disciplined principally
by impeachment, not by private lawsuits for damages. But he is otherwise subject to the
laws for his purely private acts.

In the end, as applied to the particular question before us, we reach the same
conclusion about these historical materials that Justice Jackson described when
confronted with an issue concerning the dimensions of the President's power.

Maclay went on to point out in his diary that he virulently disagreed with them,
concluding that his opponents' view "[s]hows clearly how amazingly fond of the old
leven many People are." Diary of Maclay 168.

Finally, Justice Story's comments in his constitutional law treatise provide no substantial
support for petitioner's position. Story wrote that because the President's "incidental
powers" must include "the power to perform [his duties], without any obstruction," he
"cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the
discharge of the duties of his office; andfor this purpose his person must be deemed, in
civil cases at least, to possess an official inviolability." 3 Story 1563, at 418-419
(emphasis added). Story said only that "an official inviolability," ibid. (emphasis added),
was necessary to preserve the President's ability to perform the functions of the office;
he did not specify the dimensions of the necessary immunity. While we have held that
an immunity from suits grounded on official acts is necessary to serve this purpose,
see Fitzgerald, 457 U. S., at 749, it does not follow that the broad immunity from all civil
damages suits that petitioner seeks is also necessary.

697

"Just what our forefathers did envision, or would have envisioned had they foreseen
modern conditions, must be divined from materials almost as enigmatic as the dreams
Joseph was called upon to interpret for Pharoah. A century and a half of partisan debate
and scholarly speculation yields no net result but only supplies more or less apt
quotations from respected sources on each side .... They largely cancel each
other." Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 634-635 (1952)
(concurring opinion).

VI

Petitioner's strongest argument supporting his immunity claim is based on the text and
structure of the Constitution. He does not contend that the occupant of the Office of the
President is "above the law," in the sense that his conduct is entirely immune from
judicial scrutiny.24 The President argues merely for a postponement of the judicial
proceedings that will determine whether he violated any law. His argument is grounded
in the character of the office that was created by Article II of the Constitution, and relies
on separation-of-powers principles that have structured our constitutional arrangement
since the founding.

As a starting premise, petitioner contends that he occupies a unique office with powers
and responsibilities so vast and important that the public interest demands that he
devote his undivided time and attention to his public duties. He submits that-given the
nature of the office-the doctrine of separation of powers places limits on the authority of
the

24 For that reason, the argument does not place any reliance on the English ancestry
that informs our common-law jurisprudence; he does not claim the prerogatives of the
monarchs who asserted that "[t]he King can do no wrong." See 1 W. Blackstone,
Commentaries *246. Although we have adopted the related doctrine of sovereign
immunity, the common-law fiction that "[t]he king ... is not only incapable of doing wrong,
but even of thinking wrong," ibid., was rejected at the birth of the Republic. See, e. g.,
Nevada v. Hall, 440 U. S. 410, 415, and nn. 7-8 (1979); Langford v. United States, 101
U. S. 341, 342-343 (1880).

698

Federal Judiciary to interfere with the Executive Branch that would be transgressed by
allowing this action to proceed.

We have no dispute with the initial premise of the argument. Former Presidents, from
George Washington to George Bush, have consistently endorsed petitioner's
characterization of the office.25 After serving his term, Lyndon Johnson observed: "Of
all the 1,886 nights I was President, there were not many when I got to sleep before 1 or
2 a.m., and there were few mornings when I didn't wake up by 6 or 6:30."26 In 1967, the
Twenty-fifth Amendment to the Constitution was adopted to ensure continuity in the
performance of the powers and duties of the office; 27 one of the sponsors of that
Amendment stressed the importance of providing that "at all times" there be a President
"who has complete control and will be able to perform" those duties.28 As Justice
Jackson has pointed out, the Presidency concentrates executive authority "in a single
head in whose choice the whole Nation has a part, making him the focus of public
hopes and expectations. In drama, magnitude and finality his decisions so far
overshadow any others that almost alone he fills the public eye and ear." Youngstown
Sheet & Tube Co. v. Sawyer, 343 U. S., at 653 (concurring opinion). We have, in short,
long recognized the "unique position in the constitutional scheme" that this office
occupies. Fitzgerald,

25 See, e. g., A. Tourtellot, The Presidents on the Presidency 346-374 (1964) (citing
comments of, among others, George Washington, John Quincy Adams, Benjamin
Harrison, Theodore Roosevelt, William Howard Taft, and Woodrow Wilson); H. Finer,
The Presidency: Crisis and Regeneration 35-37 (1960) (citing similar remarks by a
number of Presidents, including James Monroe, James K. Polk, and Harry Truman).

26 L. Johnson, The Vantage Point 425 (1971).

27The Amendment sets forth, inter alia, an elaborate procedure for Presidential
succession in the event that the Chief Executive becomes incapacitated. See U. S.
Const., Arndt. 25, 3-4.

28111 Congo Rec. 15595 (1965) (remarks of Sen. Bayh).

699

457 U. S., at 749.29 Thus, while we suspect that even in our modern era there remains
some truth to Chief Justice Marshall's suggestion that the duties of the Presidency are
not entirely "unremitting," United States v. Burr, 25 F. Cas. 30, 34 (No. 14,692d) (CC
Va. 1807), we accept the initial premise of the Executive's argument.

It does not follow, however, that separation-of-powers principles would be violated by

allowing this action to proceed. The doctrine of separation of powers is concerned with
the allocation of official power among the three coequal branches of our Government.
The Framers "built into the tripartite Federal Government ... a self-executing safeguard
against the encroachment or aggrandizement of one branch at the expense of the
other." Buckley v. Valeo, 424 U. S., at 122.30 Thus, for example, the Congress may not
exercise the judicial power to revise final judgments, Plaut v. Spendthrift

29We noted in Fitzgerald: "Article II, 1, of the Constitution provides that '[t]he
executive Power shall be vested in a President of the United States ... .' This grant of
authority establishes the President as the chief constitutional officer of the Executive
Branch, entrusted with supervisory and policy responsibilities of utmost discretion and
sensitivity. These include the enforcement of federal law-it is the President who is
charged constitutionally to 'take Care that the Laws be faithfully executed'; the conduct
of foreign affairs-a realm in which the Court has recognized that '[i]t would be intolerable
that courts, without the relevant information, should review and perhaps nullify actions
of the Executive taken on information properly held secret'; and management of the
Executive Brancha task for which 'imperative reasons requir[e] an unrestricted power [in
the President] to remove the most important of his subordinates in their most important
duties.''' 457 U. S., at 749-750 (footnotes omitted).
30 See Loving v. United States, 517 U. S. 748,756-757 (1996); Mistretta v. United
States, 488 U. S. 361, 382 (1989) ("[C]oncern of encroachment and aggrandizement ...
has animated our separation-of-powers jurisprudence"); The Federalist No. 51, p. 349
(J. Cooke ed. 1961) ("[T]he great security against a gradual concentration of the several
powers in the same department, consists in giving to those who administer each
department the necessary constitutional means, and personal motives, to resist
encroachments of the others").

700

Farm, Inc., 514 U. S. 211 (1995),31 or the executive power to manage an airport,
see Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft
Noise, Inc., 501 U. S. 252, 276 (1991) (holding that "[i]f the power is executive, the
Constitution does not permit an agent of Congress to exercise it").32 See J. W
Hampton, Jr., & Co. v. United States, 276 U. S. 394, 406 (1928) (Congress may not
"invest itself or its members with either executive power or judicial power"). Similarly,
the President may not exercise the legislative power to authorize the seizure of private
property for public use. Youngstown, 343 U. S., at 588. And, the judicial power to decide
cases and controversies does not include the provision of purely advisory opinions to
the Executive,33 or permit the federal courts to resolve nonjusticiable questions.34

31 See also United States v. Klein, 13 Wall. 128, 147 (1872) (noting that Congress had
"inadvertently passed the limit which separates the legislative from the judicial power").

32 See also Bowsher v. Synar, 478 U. S. 714, 726 (1986) ("structure of the Constitution
does not permit Congress to execute the laws"). Cf. INS v. Chadha, 462 U. S. 919, 958
(1983); Springer v. Philippine Islands, 277 U. S. 189, 202-203 (1928).

33 See United States v. Ferreira, 13 How. 40 (1852); Hayburn's Case, 2 Dall. 409
(1792). As we explained in Chicago & Southern Air Lines, Inc. v. Waterman S.
S. Corp., 333 U. S. 103, 113 (1948): "This Court early and wisely determined that it
would not give advisory opinions even when asked by the Chief Executive." More
generally, "we have broadly stated that 'executive or administrative duties of a
nonjudicial nature may not be imposed on judges holding office under Art. III of the
Constitution.'" Morrison v. Olson, 487 U. S. 654, 677 (1988)
(quoting Buckley v. Valeo, 424 U. S. 1, 123 (1976) (per curiam)). These restrictions on
judicial activities "help ensure the independence of the Judicial Branch and to prevent
the Judiciary from encroaching into areas reserved for the other branches." 487 U. S., at
678; see also Mistretta v. United States, 488 U. S., at 385.

34 We have long held that the federal courts may not resolve such matters. See, e. g.,
Luther v. Borden, 7 How. 1 (1849). As we explained in Nixon v. United States, 506 U. S.
224 (1993): "A controversy is nonjusticiable-i. e., involves a political question-where
there is a 'textually demon-

701

Of course the lines between the powers of the three branches are not always neatly
defined. See Mistretta v. United States, 488 U. S. 361, 380-381 (1989).35 But in this
case there is no suggestion that the Federal Judiciary is being asked to perform any
function that might in some way be described as "executive." Respondent is merely
asking the courts to exercise their core Article III jurisdiction to decide cases and
controversies. Whatever the outcome of this case, there is no possibility that the
decision will curtail the scope of the official powers of the Executive Branch. The
litigation of questions that relate entirely to the unofficial conduct of the individual who
happens to be the President poses no perceptible risk of misallocation of either judicial
power or executive power.

Rather than arguing that the decision of the case will produce either an aggrandizement
of judicial power or a narrowing of executive power, petitioner contends that-as a
byproduct of an otherwise traditional exercise of judicial power-burdens will be placed
on the President that will hamper the performance of his official duties. We have
recognized that "[e]ven when a branch does not arrogate power to itself ... the
separation-of-powers doctrine requires that a branch not impair another in the
performance of its constitutional duties." Loving v. United States, 517 U. S. 748, 757
(1996); see also Nixon v. Administrator of General Services, 433 U. S. 425, 443 (1977).
As a factual matter, petitioner contends that this particular case-as well as the potential

strable constitutional commitment of the issue to a coordinate political department; or a

lack of judicially discoverable and manageable standards for resolving it ...
.' Baker v. Carr, 369 U. S. 186,217 (1962). But the courts must, in the first instance,
interpret the text in question and determine whether and to what extent the issue is
textually committed. See ibid.; Powell v. McCormack, 395 U. S. 486, 519 (1969)." Id., at
228.

35 See also Olson, 487 U. S., at 693-694; Nixon v. Administrator of General

Services, 433 U. S. 425, 443 (1977); United States v. Nixon, 418 U. S. 683, 707 (1974);
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J.,
concurring).

702

additional litigation that an affirmance of the Court of Appeals judgment might spawn-
may impose an unacceptable burden on the President's time and energy, and thereby
impair the effective performance of his office.

Petitioner's predictive judgment finds little support in either history or the relatively
narrow compass of the issues raised in this particular case. As we have already noted,
in the more than 200- year history of the Republic, only three sitting Presidents have
been subjected to suits for their private actions.36 See supra, at 692. If the past is any
indicator, it seems unlikely that a deluge of such litigation will ever engulf the
Presidency. As for the case at hand, if properly managed by the District Court, it
appears to us highly unlikely to occupy any substantial amount of petitioner's time.

Of greater significance, petitioner errs by presuming that interactions between the

Judicial Branch and the Executive, even quite burdensome interactions, necessarily rise
to the level of constitutionally forbidden impairment of the Executive's ability to perform
its constitutionally mandated functions. "[O]ur ... system imposes upon the Branches a
degree of overlapping responsibility, a duty of interdependence as well as
independence the absence of which 'would preclude the establishment of a Nation
capable of governing itself effectively.'" Mistretta, 488 U. S., at 381 (quoting Buck-
36 In Fitzgerald, we were able to discount the lack of historical support for the
proposition that official-capacity actions against the President posed a serious threat to
the office on the ground that a right to sue federal officials for damages as a result of
constitutional violations had only recently been recognized. See 457 U. S., at 753, n.
33; Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). The situation
with respect to suits against the President for actions taken in his private capacity is
quite different because such suits may be grounded on legal theories that have always
been applicable to any potential defendant. Moreover, because the President has
contact with far fewer people in his private life than in his official capacity, the class of
potential plaintiffs is considerably smaller and the risk of litigation less intense.

703

ley, 424 U. S., at 121). As Madison explained, separation of powers does not mean that
the branches "ought to have no partial agency in, or no controul over the acts of each
other." 37 The fact that a federal court's exercise of its traditional Article III jurisdiction
may significantly burden the time and attention of the Chief Executive is not sufficient to
establish a violation of the Constitution. Two long-settled propositions, first announced
by Chief Justice Marshall, support that conclusion.

First, we have long held that when the President takes official action, the Court has the
authority to determine whether he has acted within the law. Perhaps the most dramatic
example of such a case is our holding that President Truman exceeded his
constitutional authority when he issued an order directing the Secretary of Commerce to
take possession of and operate most of the Nation's steel mills in order to avert a
national catastrophe. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952).
Despite the serious impact of that decision on the ability of the Executive Branch to
accomplish its assigned mission, and the substantial time that the President must
necessarily have devoted to the matter as a result of judicial involvement, we exercised
our Article III jurisdiction to decide whether his official conduct conformed to the law.
Our holding was an application of the principle established in Marbury v. Madison, 1
Cranch 137 (1803), that "[i]t is emphatically the province and duty of the judicial
department to say what the law is." Id., at 177.

Second, it is also settled that the President is subject to judicial process in appropriate
circumstances. Although Thomas Jefferson apparently thought otherwise, Chief Justice
Marshall, when presiding in the treason trial of Aaron Burr, ruled that a subpoena duces
tecum could be directed

37The Federalist No. 47, pp. 325-326 (J. Cooke ed. 1961) (emphasis in original).
See Mistretta, 488 U. S., at 381; Nixon v. Administrator of General Services, 433 U. S.,
at 442, n. 5.

704

to the President. United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807).38
We unequivocally and emphatically endorsed Marshall's position when we held that
President Nixon was obligated to comply with a subpoena commanding him to produce
certain tape recordings of his conversations with his aides. United States v. Nixon,
418 U. S. 683 (1974). As we explained, "neither the doctrine of separation of powers,
nor the need for confidentiality of high-level communications, without more, can sustain
an absolute, unqualified Presidential privilege of immunity from judicial process under all
circumstances." Id., at 706.39

Sitting Presidents have responded to court orders to provide testimony and other
information with sufficient frequency that such interactions between the Judicial and
Executive Branches can scarcely be thought a novelty. President Monroe responded to
written interrogatories, see Rotunda, Presidents and Ex-Presidents as Witnesses: A
Brief Historical Footnote, 1975 U. Ill. L. Forum 1, 5-6, President Nixonas noted above-
produced tapes in response to a subpoena

38 After the decision was rendered, Jefferson expressed his distress in a letter to a
prosecutor at the trial, noting that "[t]he Constitution enjoins [the President's] constant
agency in the concerns of 6. millions of people." 10 Works of Thomas Jefferson 404, n.
(P. Ford ed. 1905). He asked: "Is the law paramount to this, which calls on him on
behalf of a single one?" Ibid.; see also Fitzgerald, 457 U. S., at 751-752, n. 31 (quoting
Jefferson's comments at length). For Chief Justice Marshall, the answer-quite plainly-
was yes.

39 Of course, it does not follow that a court may "'proceed against the president as
against an ordinary individual,'" United States v. Nixon, 418 U. S., at 715
(quoting United States v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (CC Va. 1807)).
Special caution is appropriate if the materials or testimony sought by the court relate to
a President's official activities, with respect to which "[t]he interest in preserving
confidentiality is weighty indeed and entitled to great respect." 418 U. S., at 712. We
have made clear that in a criminal case the powerful interest in the "fair administration of
criminal justice" requires that the evidence be given under appropriate circumstances
lest the "very integrity of the judicial system" be eroded. Id., at 709, 711-712.

705

duces tecum, see United States v. Nixon, President Ford complied with an order to give
a deposition in a criminal trial, United States v. Fromme, 405 F. Supp. 578 (ED Cal.
1975), and President Clinton has twice given videotaped testimony in criminal
proceedings, see United States v. McDougal, 934 F. Supp. 296 (ED Ark. 1996); United
States v. Branscum, No. LRP-CR-96-49 (ED Ark., June 7, 1996). Moreover, sitting
Presidents have also voluntarily complied with judicial requests for testimony. President
Grant gave a lengthy deposition in a criminal case under such circumstances, 1 R.
Rotunda & J. Nowak, Treatise on Constitutional Law 7.1 (2d ed. 1992), and President
Carter similarly gave videotaped testimony for use at a criminal trial, id., 7.1(b) (Supp.
1997).

In sum, "[i]t is settled law that the separation-of-powers doctrine does not bar every
exercise of jurisdiction over the President of the United States." Fitzgerald, 457 U. S., at
753-754. If the Judiciary may severely burden the Executive Branch by reviewing the
legality of the President's official conduct, and if it may direct appropriate process to the
President himself, it must follow that the federal courts have power to determine the
legality of his unofficial conduct. The burden on the President's time and energy that is a
mere byproduct of such review surely cannot be considered as onerous as the direct
burden imposed by judicial review and the occasional invalidation of his official
actions.40 We therefore hold that the doctrine of separation of powers does not
40 There is, no doubt, some truth to Learned Hand's comment that a lawsuit should be
"dread[ed] ... beyond almost anything else short of sickness and death." 3 Association
of the Bar of the City of New York, Lectures on Legal Topics 105 (1926). We recognize
that a President, like any other official or private citizen, may become distracted or
preoccupied by pending litigation. Presidents and other officials face a variety of
demands on their time, however, some private, some political, and some as a result of
official duty. While such distractions may be vexing to those subjected to them, they do
not ordinarily implicate constitutional separation-of-powers concerns.

706

require federal courts to stay all private actions against the President until he leaves
office.

The reasons for rejecting such a categorical rule apply as well to a rule that would
require a stay "in all but the most exceptional cases." Brief for Petitioner i. Indeed, if the
Framers of the Constitution had thought it necessary to protect the President from the
burdens of private litigation, we think it far more likely that they would have adopted a
categorical rule than a rule that required the President to litigate the question whether a
specific case belonged in the "exceptional case" subcategory. In all events, the question
whether a specific case should receive exceptional treatment is more appropriately the
subject of the exercise of judicial discretion than an interpretation of the Constitution.
Accordingly, we turn to the question whether the District Court's decision to stay the trial
until after petitioner leaves office was an abuse of discretion.

VII

The Court of Appeals described the District Court's discretionary decision to stay the
trial as the "functional equivalent" of a grant of temporary immunity. 72 F. 3d, at 1361, n.
9. Concluding that petitioner was not constitutionally entitled to such an immunity, the
court held that it was error to grant the stay. Ibid. Although we ultimately conclude that
the stay should not have been granted, we think the issue is more difficult than the
opinion of the Court of Appeals suggests.

Strictly speaking the stay was not the functional equivalent of the constitutional
immunity that petitioner claimed, because the District Court ordered discovery to
proceed. Moreover, a stay of either the trial or discovery might be justified by
considerations that do not require the recognition of any constitutional immunity. The
District Court has broad discretion to stay proceedings as an incident to its power to
control its own docket. See, e. g., Landis v. North

707

American Co., 299 U. S. 248, 254 (1936). As we have explained, "[e]specially in cases
of extraordinary public moment, [a plaintiff] may be required to submit to delay not
immoderate in extent and not oppressive in its consequences if the public welfare or
convenience will thereby be promoted." Id., at 256. Although we have rejected the
argument that the potential burdens on the President violate separation-of-powers
principles, those burdens are appropriate matters for the District Court to evaluate in its
management of the case. The high respect that is owed to the office of the Chief
Executive, though not justifying a rule of categorical immunity, is a matter that should
inform the conduct of the entire proceeding, including the timing and scope of
discovery.41

Nevertheless, we are persuaded that it was an abuse of discretion for the District Court
to defer the trial until after the President leaves office. Such a lengthy and categorical
stay takes no account whatever of the respondent's interest in bringing the case to trial.
The complaint was filed within the statutory limitations period-albeit near the end of that
period-and delaying trial would increase the danger of

41 Although these claims are in fact analytically distinct, the District Court does not
appear to have drawn that distinction. Rather than basing its decision on particular
factual findings that might have buttressed an exercise of discretion, the District Court
instead suggested that a discretionary stay was supported by the legal conclusion that
such a stay was required by Fitzgerald. See 869 F. Supp., at 699. We therefore reject
petitioner's argument that we lack jurisdiction over respondent's cross-appeal from the
District Court's alternative holding that its decision was "also permitted," inter
alia, "under the equity powers of the Court." Ibid. The Court of Appeals correctly found
that pendent appellate jurisdiction over this issue was proper. See 72 F. 3d, at 1357, n.
4. The District Court's legal ruling that the President was protected by a temporary
immunity from trial-but not discovery-was "inextricably intertwined," Swint v. Chambers
County Comm'n, 514 U. S. 35, 51 (1995), with its suggestion that a discretionary stay
having the same effect might be proper; indeed, "review of the [latter] decision [is]
necessary to ensure meaningful review of the [former]," ibid.

708

prejudice resulting from the loss of evidence, including the inability of witnesses to recall
specific facts, or the possible death of a party.

The decision to postpone the trial was, furthermore, premature. The proponent of a stay
bears the burden of establishing its need. Id., at 255. In this case, at the stage at which
the District Court made its ruling, there was no way to assess whether a stay of trial
after the completion of discovery would be warranted. Other than the fact that a trial
may consume some of the President's time and attention, there is nothing in the record
to enable a judge to assess the potential harm that may ensue from scheduling the trial
promptly after discovery is concluded. We think the District Court may have given undue
weight to the concern that a trial might generate unrelated civil actions that could
conceivably hamper the President in conducting the duties of his office. If and when that
should occur, the court's discretion would permit it to manage those actions in such
fashion (including deferral of trial) that interference with the President's duties would not
occur. But no such impingement upon the President's conduct of his office was shown
here.

VIII

We add a final comment on two matters that are discussed at length in the briefs: the
risk that our decision will generate a large volume of politically motivated harassing and
frivolous litigation, and the danger that national security concerns might prevent the
President from explaining a legitimate need for a continuance.

We are not persuaded that either of these risks is serious.

Most frivolous and vexatious litigation is terminated at the pleading stage or on
summary judgment, with little if any personal involvement by the defendant. See Fed.
Rules Civ. Proc. 12, 56. Moreover, the availability of sanctions provides a significant
deterrent to litigation directed at the President in his unofficial capacity for purposes of
political

709

gain or harassment.42 History indicates that the likelihood that a significant number of
such cases will be filed is remote. Although scheduling problems may arise, there is no
reason to assume that the district courts will be either unable to accommodate the
President's needs or unfaithful to the tradition-especially in matters involving national
securityof giving "the utmost deference to Presidential responsibilities."43 Several
Presidents, including petitioner, have given testimony without jeopardizing the Nation's
security. See supra, at 704-705. In short, we have confidence in the ability of our federal
judges to deal with both of these concerns.

If Congress deems it appropriate to afford the President stronger protection, it may

respond with appropriate legislation. As petitioner notes in his brief, Congress has
enacted more than one statute providing for the deferral of civil litigation to
accommodate important public interests. Brief for Petitioner 34-36. See, e. g., 11 U. S.
C. 362 (litigation against debtor stayed upon filing of bankruptcy petition); Soldiers'
and Sailors' Civil Relief Act of 1940, 50 U. S. C. App. 501-525 (provisions
governing, inter alia, tolling or stay of civil claims by or against military personnel during
course of active duty). If the Constitution embodied the rule that

42 See, e. g., Fed. Rule Civ. Proc. 11; 28 U. S. C. 1927; Chambers v.

NASCa, Inc., 501 U. S. 32, 50 (1991) (noting that "if in the informed discretion of the
court, neither the statute nor the Rules are up to the task, the court may safely rely on
its inherent power" in imposing appropriate sanctions). Those sanctions may be set at a
level "sufficient to deter repetition of such conduct or comparable conduct by others
similarly situated." Fed. Rule Civ. Proc. 11 (c)(2). As Rule 11 indicates, sanctions may
be appropriate where a claim is "presented for any improper purpose, such as to
harass," including any claim based on "allegations and other factual contentions
[lacking] evidentiary support" or unlikely to prove wellgrounded after reasonable
investigation. Rules l1(b)(l), (3).

43 United States v. Nixon, 418 U. S., at 710-711; see also Fitzgerald, 457 U. S., at 753
("Courts traditionally have recognized the President's constitutional responsibilities and
status as factors counseling judicial deference and restraint").

710

BREYER, J., concurring in judgment

the President advocates, Congress, of course, could not repeal it. But our holding today
raises no barrier to a statutory response to these concerns.
The Federal District Court has jurisdiction to decide this case. Like every other citizen
who properly invokes that jurisdiction, respondent has a right to an orderly disposition of
her claims. Accordingly, the judgment of the Court of Appeals is affirmed.

It is so ordered.

JUSTICE BREYER, concurring in the judgment.

I agree with the majority that the Constitution does not automatically grant the President
an immunity from civil lawsuits based upon his private conduct. Nor does the "doctrine
of separation of powers ... require federal courts to stay" virtually "all private actions
against the President until he leaves office." Ante, at 705-706. Rather, as the Court of
Appeals stated, the President cannot simply rest upon the claim that a private civil
lawsuit for damages will "interfere with the constitutionally assigned duties of the
Executive Branch ... without detailing any specific responsibilities or explaining how or
the degree to which they are affected by the suit." 72 F.3d 1354, 1361 (CA8 1996). To
obtain a postponement the President must "bea[r] the burden of establishing its
need." Ante, at 708.

In my view, however, once the President sets forth and explains a conflict between
judicial proceeding and public duties, the matter changes. At that point, the Constitution
permits a judge to schedule a trial in an ordinary civil damages action (where
postponement normally is possible without overwhelming damage to a plaintiff) only
within the constraints of a constitutional principle-a principle that forbids a federal judge
in such a case to interfere with the President's discharge of his public duties. I have no
doubt that the Constitution contains such a principle applicable to civil suits, based upon
Article II's vesting of the entire "executive Power" in a single individual, implemented
through the Con-

711

stitution's structural separation of powers, and revealed both by history and case
precedent.

I recognize that this case does not require us now to apply the principle specifically,
thereby delineating its contours; nor need we now decide whether lower courts are to
apply it directly or categorically through the use of presumptions or rules of
administration. Yet I fear that to disregard it now may appear to deny it. I also fear that
the majority's description of the relevant precedents de-emphasizes the extent to which
they support a principle of the President's independent authority to control his own time
and energy, see, e. g., ante, at 693, 694 (describing the "central concern"
of Nixon v. Fitzgerald, 457 U. S. 731 (1982), as "to avoid rendering the President
'unduly cautious' "); ante, at 695, 696, and n. 23 (describing statements by Story,
Jefferson, Adams, and Ellsworth as providing "little" or "no substantial support" for the
President's position). Further, if the majority is wrong in predicting the future infrequency
of private civil litigation against sitting Presidents, ante, at 702, acknowledgment and
future delineation of the constitutional principle will prove a practically necessary
institutional safeguard. For these reasons, I think it important to explain how the
Constitution's text, history, and precedent support this principle of judicial
noninterference with Presidential functions in ordinary civil damages actions.

I
The Constitution states that the "executive Power shall be vested in a President." Art. II,
1. This constitutional delegation means that a sitting President is unusually busy, that
his activities have an unusually important impact upon the lives of others, and that his
conduct embodies an authority bestowed by the entire American electorate. He (along
with his constitutionally subordinate Vice President) is the only official for whom the
entire Nation votes, and is the only elected officer to represent the entire Nation both
domestically and abroad.

712

BREYER, J., concurring in judgment

This constitutional delegation means still more. Article II makes a single President
responsible for the actions of the Executive Branch in much the same way that the
entire Congress is responsible for the actions of the Legislative Branch, or the entire
Judiciary for those of the Judicial Branch. It thereby creates a constitutional equivalence
between a single President, on the one hand, and many legislators, or judges, on the
other.

The Founders created this equivalence by consciously deciding to vest Executive

authority in one person rather than several. They did so in order to focus, rather than to
spread, Executive responsibility thereby facilitating accountability. They also sought to
encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in
the hands of a single, constitutionally indispensable, individual the ultimate authority
that, in respect to the other branches, the Constitution divides among many. Compare
U. S. Const., Art. II, 1 (vesting power in "a President"), with U. S. Const., Art. I, 1
(vesting power in "a Congress" that "consist[s] of a Senate and House of
Representatives"), and U. S. Const., Art. III, 1 (vesting power in a "supreme Court"
and "inferior Courts").

The authority explaining the nature and importance of this decision is legion.
See, e. g., J. Locke, Second Treatise of Civil Government 144 (J. Gough ed. 1947)
(desirability of a perpetual Executive); 1 W. Blackstone, Commentaries *242*243 (need
for single Executive); The Federalist No. 70, p. 423 (C. Rossiter ed. 1961) (A. Hamilton)
(Executive "[e]nergy" needed for security, "steady administration of the laws,"
"protection of property," "justice," and protection of "liberty"); Ellsworth, The Landholder,
VI, in Essays on the Constitution 161, 163 (P. Ford ed. 1892) ("supreme executive
should be one person, and unfettered otherwise than by the laws he is to
execute"); Morrison v. Olson, 487 U. S. 654, 698-699 (1988) (SCALIA, J., dissenting)
(describing history); id., at 705 (describing textual basis); id., at 729 (describing

713

policy arguments). See also The Federalist No. 71, at 431 (A. Hamilton); P. Kurland,
Watergate and the Constitution 135 (1978) (President is "sole indispensable man in
government" and "should not be called" from his duties "at the instance of any other ...
branch of government"); Calabresi, Some Normative Arguments for the Unitary
Executive, 48 Ark. L. Rev. 23, 37-47 (1995). Cf. T. Roosevelt, An Autobiography 372
(1913).
For present purposes, this constitutional structure means that the President is not like
Congress, for Congress can function as if it were whole, even when up to half of its
members are absent, see U. S. Const., Art. I, 5, cl. 1. It means that the President is
not like the Judiciary, for judges often can designate other judges, e. g., from other
judicial circuits, to sit even should an entire court be detained by personal litigation. It
means that, unlike Congress, which is regularly out of session, U. S. Const., Art. I, 4,
5, 7, the President never adjourns.

More importantly, these constitutional objectives explain why a President, though able
to delegate duties to others, cannot delegate ultimate responsibility or the active
obligation to supervise that goes with it. And the related constitutional equivalence
between President, Congress, and the Judiciary means that judicial scheduling orders
in a private civil case must not only take reasonable account of, say, a particularly busy
schedule, or a job on which others critically depend, or an underlying electoral mandate.
They must also reflect the fact that interference with a President's ability to carry out his
public responsibilities is constitutionally equivalent to interference with the ability of the
entirety of Congress, or the Judicial Branch, to carry out its public obligations.

II

The leading case regarding Presidential immunity from suit

is Nixon v. Fitzgerald. Before discussing Fitzgerald, it is helpful to understand the
historical precedent on which it

714

BREYER, J., concurring in judgment

relies. While later events have called into question some of the more extreme views on
Presidential immunity, the essence of the constitutional principle remains true today.
The historical sources, while not in themselves fully determinative, in conjunction with
this Court's precedent inform my judgment that the Constitution protects the President
from judicial orders in private civil cases to the extent that those orders could
significantly interfere with his efforts to carry out his ongoing public responsibilities.

Three of the historical sources this Court cited in Fitzgerald, 457 U. S., at 749, 750-752,
n. 31-a commentary by Joseph Story, an argument attributed to John Adams and Oliver
Ellsworth, and a letter written by Thomas Jeffersoneach make clear that this is so.

First, Joseph Story wrote in his Commentaries:

"There are ... incidental powers, belonging to the executive department, which are
necessarily implied from the nature of the functions, which are confided to it. Among
those, must necessarily be included the power to perform them, without any obstruction
or impediment whatsoever. The president cannot, therefore, be liable to arrest,
imprisonment, or detention, while he is in the discharge of the duties of his office; and
for this purpose his person must be deemed, in civil cases at least, to possess an
official inviolability." 3 J. Story, Commentaries on the Constitution of the United States
1563, pp. 418-419 (1833) (emphasis added), quoted in Fitzgerald, supra, at 749.
As interpreted by this Court in Nixon v. Fitzgerald, the words "for this purpose" would
seem to refer to the President's need for "official inviolability" in order to "perform" the
duties of his office without "obstruction or impediment." As so read, Story's commentary
does not explicitly define the

715

contours of "official inviolability." But it does suggest that the "inviolability" is time bound
("while ... in the discharge of the duties of his office"); that it applies in private lawsuits
(for it attaches to the President's "person" in "civil cases"); and that it is functional
("necessarily implied from the nature of the [President's] functions").

Since Fitzgerald did not involve a physical constraint, the Court's reliance upon Justice
Story's commentary makes clear, in the Court's view, that the commentary does not
limit the scope of "inviolability" to an immunity from a physical imprisonment, physical
detention, or physical "arrest"-a now abandoned procedure that permitted the arrest of
certain civil case defendants (e. g., those threatened by bankruptcy) during a civil
proceeding.

I would therefore read Story's commentary to mean what it says, namely, that Article II
implicitly grants an "official inviolability" to the President "while he is in the discharge of
the duties of his office," and that this inviolability must be broad enough to permit him "to
perform" his official duties without "obstruction or impediment." As this Court has
previously held, the Constitution may grant this kind of protection implicitly; it need not
do so explicitly. See Fitzgerald, supra, at 750, n. 31; United States v. Nixon, 418 U. S.
683, 705-706, n. 16 (1974); cf. McCulloch v. Maryland, 4 Wheat. 316, 406 (1819).

Second, during the first Congress, then-Vice President John Adams and then-Senator
Oliver Ellsworth expressed a view of an applicable immunity far broader than any
currently asserted. Speaking of a sitting President, they said that the" 'President,
personally, was not the subject to any process whatever .... For [that] would ... put it in
the power of a common justice to exercise any authority over him and stop the whole
machine of Government.'" 457 U. S., at 751, n. 31 (quoting Journal of William Maclay
167 (E. Maclay ed. 1890) (Sept. 26 journal entry reporting exchange between Sen.
Maclay, Adams, and Ellsworth)). They

716

BREYER, J., concurring in judgment

included in their claim a kind of immunity from criminal, as well as civil, process. They
responded to a counterargument-that the President "was not above the laws," and
would have to be arrested if guilty of crimes-by stating that the President would first
have to be impeached, and could then be prosecuted. 9 Documentary History of First
Federal Congress of United States 168 (K. Bowling & H. Veit eds. 1988) (Diary of
William Maclay). This Court's rejection of Adams' and Ellsworth's views in the context of
criminal proceedings, see ante, at 703-704, does not deprive those views of authority
here. See Fitzgerald, supra, at 751-752, n. 31. Nor does the fact that Senator William
Maclay, who reported the views of Adams and Ellsworth, "went on to point out in his
diary that he virulently disagreed with them." Ante, at 696, n. 23. Maclay, unlike Adams
and Ellsworth, was not an important political figure at the time of the constitutional
debates. See Diary of William Maclay xi-xiii.

Third, in 1807, a sitting President, Thomas Jefferson, during a dispute about whether
the federal courts could subpoena his presence in a criminal case, wrote the following to
United States Attorney George Hay:

"The leading principle of our Constitution is the independence of the Legislature,

executive and judiciary of each other, and none are more jealous of this than the
judiciary. But would the executive be independent of the judiciary, if he were subject to
the commands of the latter, & to imprisonment for disobedience; if the several courts
could bandy him from pillar to post, keep him constantly trudging from north to south &
east to west, and withdraw him entirely from his constitutional duties?" 10 Works of
Thomas Jefferson 404, n. (P. Ford ed. 1905) (letter of June 20,1807, from President
Thomas Jefferson to United States Attorney George Hay), quoted in Fitzgerald,
supra, at 751, n. 31.

717

Three days earlier Jefferson had written to the same correspondent:

"To comply with such calls would leave the nation without an executive branch, whose
agency, nevertheless, is understood to be so constantly necessary, that it is the sole
branch which the constitution requires to be always in function. It could not then mean
that it should be withdrawn from its station by any co-ordinate authority." 10 Works of
Thomas Jefferson, at 401 (letter of June 17, 1807, from Thomas Jefferson to George
Hay).

Jefferson, like Adams and Ellsworth, argued strongly for an immunity from both criminal
and civil judicial process-an immunity greater in scope than any immunity, or any
special scheduling factor, now at issue in the civil case before us. The significance of
his views for present purposes lies in his conviction that the Constitution protected a
sitting President from litigation that would "withdraw" a President from his current
"constitutional duties." That concern may not have applied to Mr. Fitzgerald's 1982 case
against a former President, but it is at issue in the current litigation.

Precedent that suggests to the contrary-that the Constitution does not offer a sitting
President significant protections from potentially distracting civil litigation-consists of the
following: (1) In several instances sitting Presidents have given depositions or testified
at criminal trials, and (2) this Court has twice authorized the enforcement of subpoenas
seeking documents from a sitting President for use in a criminal case.

I agree with the majority that these precedents reject any absolute Presidential immunity
from all court process. But they do not cast doubt upon Justice Story's basic conclusion
that "in civil cases," a sitting President "possess[es] an official inviolability" as necessary
to permit him to "perform" the duties of his office without "obstruction or impediment."

718

BREYER, J., concurring in judgment

The first set of precedents tells us little about what the Constitution commands, for they
amount to voluntary actions on the part of a sitting President. The second set of
precedents amounts to a search for documents, rather than a direct call upon
Presidential time. More important, both sets of precedents involve criminal proceedings
in which the President participated as a witness. Criminal proceedings, unlike private
civil proceedings, are public acts initiated and controlled by the Executive Branch;
see United States v. Nixon, 418 U. S., at 693-696; they are not normally subject to
postponement, see U. S. Const., Amdt. 6; and ordinarily they put at risk, not a private
citizen's hope for monetary compensation, but a private citizen's freedom from enforced
confinement, 418 U. S., at 711-712, and n. 19; Fitzgerald, 457 U. S., at 754, n. 37. See
also id., at 758, n. 41. Nor is it normally possible in a criminal case, unlike many civil
cases, to provide the plaintiff with interest to compensate for scheduling delay. See, e.
g., Winter v. Cerro Gordo County Conservation Bd., 925 F.2d 1069, 1073 (CA8
1991); Foley v. Lowell, 948 F.2d 10, 17-18 (CA1 1991); Wooten v. McClendon, 272 Ark.
61, 62-63, 612 S. W. 2d 105, 106 (1981).

The remaining precedent to which the majority refers does not seem relevant in this
case. That precedent, Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 585
(1952), concerns official action. And any Presidential time spent dealing with, or action
taken in response to, that kind of case is part of a President's official duties. Hence court
review in such circumstances could not interfere with, or distract from, official duties.
Insofar as a court orders a President, in any such a proceeding, to act or to refrain from
action, it defines, or determines, or clarifies the legal scope of an official duty. By
definition (if the order itself is lawful), it cannot impede, or obstruct, or interfere with the
President's basic taskthe lawful exercise of his Executive authority. Indeed, if
constitutional principles counsel caution when judges consider an order that directly
requires the President properly

719

to carry out his official duties, see Franklin v. Massachusetts, 505 U. S. 788, 827 (1992)
(SCALIA, J., concurring in part and concurring in judgment) (describing the "apparently
unbroken historical tradition ... implicit in the separation of powers" that a President may
not be ordered by the Judiciary to perform particular Executive acts); id., at 802-803
(plurality opinion of O'CONNOR, J.), so much the more must those principles counsel
caution when such an order threatens to interfere with the President's properly carrying
out those duties.

Case law, particularly, Nixon v. Fitzgerald, strongly supports the principle that judges
hearing a private civil damages action against a sitting President may not issue orders
that could significantly distract a President from his official duties. In Fitzgerald, the
Court held that former President Nixon was absolutely immune from civil damages
lawsuits based upon any conduct within the "outer perimeter" of his official
responsibilities. 457 U. S., at 756. The holding rested upon six determinations that are
relevant here.

First, the Court found that the Constitution assigns the President singularly important
duties (thus warranting an "absolute," rather than a "qualified," immunity). Id., at 750-
751. Second, the Court held that "recognition of immunity" does not require a "specific
textual basis" in the Constitution. Id., at 750, n. 31. Third, although physical constraint of
the President was not at issue, the Court nevertheless considered Justice Story's
constitutional analysis, discussed supra, at 714-715, "persuasive." 457 U. S., at 749.
Fourth, the Court distinguished contrary precedent on the ground that it involved
criminal, not civil, proceedings. Id., at 754, and n. 37. Fifth, the Court's concerns
encompassed the fact that "the sheer prominence of the President's office" could make
him "an easily identifiable target for suits for civil damages." Id., at 752-753. Sixth, and
most important, the Court rested its conclusion in important part upon

720

BREYER, J., concurring in judgment

the fact that civil lawsuits "could distract a President from his public duties, to the
detriment of not only the President and his office but also the Nation that the Presidency
was designed to serve." Id., at 753.

The majority argues that this critical, last-mentioned, feature of the case is
dicta. Ante, at 694, n. 19. In the majority's view, since the defendant was
a former President, the lawsuit could not have distracted him from his official duties;
hence the case must rest entirely upon an alternative concern, namely, that a
President's fear of civil lawsuits based upon his official duties could distort his official
decisionmaking. The majority, however, overlooks the fact that Fitzgerald set forth a
single immunity (an absolute immunity) applicable both to sitting and former Presidents.
Its reasoning focused upon both. Its key paragraph, explaining why the President enjoys
an absolute immunity rather than a qualified immunity, contains seven sentences, four
of which focus primarily upon time and energy distraction and three of which focus
primarily upon official decision distortion. Indeed, that key paragraph begins by stating:

"Because of the singular importance of the President's duties, diversion of his energies
by concern with private lawsuits would raise unique risks to the effective functioning of
government." 457 U. S., at 751.

Moreover, the Court, in numerous other cases, has found the problem of time and
energy distraction a critically important consideration militating in favor of a grant of
immunity. See, e. g., Harlow v. Fitzgerald, 457 U. S. 800, 817-818 (1982) (qualified
immunity for Presidential assistants based in part on "costs of trial" and "burdens of
broad-reaching discovery" that are "peculiarly disruptive of effective
government"); Imbler v. Pachtman, 424 U. S. 409, 423 (1976) (absolute immunity of
prosecutors based in part upon concern about "deflection of the prosecutor's energies
from his public duties"); Tenney v. Brandhove, 341 U. S. 367, 377 (1951) (absolute im-

721

munity for legislators avoids danger they will "be subjected to the cost and
inconvenience and distractions of a trial"). Indeed, cases that provide public officials, not
with immunity, but with special protective procedures such as interlocutory appeals,
rest entirely upon a "time and energy distraction" rationale.
See Behrens v. Pelletier, 516 U. S. 299, 306, 308 (1996) ("[G]overnment official['s] right
... to avoid standing trial [and] to avoid the burdens of such pretrial matters as
discovery" are sufficient to support an immediate appeal from "denial of a claim of
qualified immunity" (citations and internal quotation marks
omitted)); Mitchell v. Forsyth, 472 U. S. 511, 526 (1985) ("[E]ntitlement not to stand trial
or face the other burdens of litigation ... is effectively lost if a case is erroneously
permitted to go to trial" (citing Harlow, supra, at 818)).

It is not surprising that the Court's immunity-related case law should rely
on both distraction and distortion, for the ultimate rationale underlying those cases
embodies both concerns. See Pierson v. Ray, 386 U. S. 547, 554 (1967) (absolute
judicial immunity is needed because of "burden" of litigation, which leads to
"intimidation"); Bradley v. Fisher, 13 Wall. 335, 349 (1872) (without absolute immunity a
judge's "office [would] be degraded and his usefulness destroyed," and he would be
forced to shoulder "burden" of keeping full records for use in defending against suits).
The cases ultimately turn on an assessment of the threat that a civil damages lawsuit
poses to a public official's ability to perform his job properly. And, whether they provide
an absolute immunity, a qualified immunity, or merely a special procedure, they
ultimately balance consequent potential public harm against private need. Distraction
and distortion are equally important ingredients of that potential public harm. Indeed, a
lawsuit that significantly distracts an official from his public duties can distort the content
of a public decision just as can a threat of potential future liability. If the latter concern
can justify an "absolute" immunity in the case of a Pres-

722

BREYER, J., concurring in judgment

ident no longer in office, where distraction is no longer a consideration, so can the

former justify, not immunity, but a postponement, in the case of a sitting President.

III

The majority points to the fact that private plaintiffs have brought civil damages lawsuits
against a sitting President only three times in our Nation's history; and it relies upon the
threat of sanctions to discourage, and "the court's discretion" to manage, such actions
so that "interference with the President's duties would not occur." Ante, at 708. I am less
sanguine. Since 1960, when the last such suit was filed, the number of civil lawsuits
filed annually in Federal District Courts has increased from under 60,000 to about
240,000, see Administrative Office of the United States Courts, Statistical Tables for the
Federal Judiciary 27 (1995); Annual Report of the Director of the Administrative Office
of the United States Courts-1960, p. 224 (1961); the number of federal district judges
has increased from 233 to about 650, see Administrative Office of United States Courts,
Judicial Business of United States Courts 7 (1994); Annual Report of the Director of the
Administrative Office of the United States Courts1960, supra, at 205; the time and
expense associated with both discovery and trial have increased, see, e. g., Bell,
Varner, & Gottschalk, Automatic Disclosure in DiscoveryThe Rush To Reform, 27 Ga. L.
Rev. 1, 9-11 (1992); see also S. Rep. No. 101-416, p. 1 (1990); Judicial Improvements
Act of 1990, Pub. L. 101-650, 104 Stat. 5089; an increasingly complex economy has led
to increasingly complex sets of statutes, rules, and regulations that often create
potential liability, with or without fault. And this Court has now made clear that such
lawsuits may proceed against a sitting President. The consequence, as the Court
warned in Fitzgerald, is that a sitting President, given "the visibility of his office," could
well become "an easily identifiable target for suits for civil damages," 457 U. S., at 753.
The threat of sanctions
723

could well discourage much unneeded litigation, ante, at 708709, but some lawsuits
(including highly intricate and complicated ones) could resist ready evaluation and
disposition; and individual district court procedural rulings could pose a significant threat
to the President's official functions.

I concede the possibility that district courts, supervised by the Courts of Appeals and
perhaps this Court, might prove able to manage private civil damages actions against
sitting Presidents without significantly interfering with the discharge of Presidential
duties-at least if they manage those actions with the constitutional problem in mind.
Nonetheless, predicting the future is difficult, and I am skeptical. Should the majority's
optimism turn out to be misplaced, then, in my view, courts will have to develop
administrative rules applicable to such cases (including postponement rules of the sort
at issue in this case) in order to implement the basic constitutional directive. A
Constitution that separates powers in order to prevent one branch of Government from
significantly threatening the workings of another could not grant a single judge more
than a very limited power to second-guess a President's reasonable determination
(announced in open court) of his scheduling needs, nor could it permit the issuance of a
trial scheduling order that would significantly interfere with the President's discharge of
his duties-in a private civil damages action the trial of which might be postponed without
the plaintiff suffering enormous harm. As Madison pointed out in The Federalist No. 51:
"The great security against a gradual concentration of the several powers in the same
department consists in giving to those who administer each department the necessary
constitutional means and personal motives to resist encroachments of the others. The
provision for defense must in this, as in all other cases, be made commensurate to the
danger of attack." Id., at 321-322 (emphasis added). I agree with the majority's
determination that a constitutional defense must await a more specific showing of need;
I do not agree with what I

724

BREYER, J., concurring in judgment

believe to be an understatement of the "danger." And I believe that ordinary case-

management principles are unlikely to prove sufficient to deal with private civil lawsuits
for damages unless supplemented with a constitutionally based requirement that district
courts schedule proceedings so as to avoid significant interference with the President's
ongoing discharge of his official responsibilities.

IV

This case is a private action for civil damages in which, as the District Court here found,
it is possible to preserve evidence and in which later payment of interest can
compensate for delay. The District Court in this case determined that the Constitution
required the postponement of trial during the sitting President's term. It may well be that
the trial of this case cannot take place without significantly interfering with the
President's ability to carry out his official duties. Yet, I agree with the majority that there
is no automatic temporary immunity and that the President should have to provide the
District Court with a reasoned explanation of why the immunity is needed; and I also
agree that, in the absence of that explanation, the court's postponement of the trial date
was premature. For those reasons, I concur in the result.
 G.R. No. 203372, June 16, 2015

ATTY. CHELOY E. VELICARIA- GARAFIL, Petitioner, v. OFFICE OF THE PRESIDENT AND HON.
SOLICITOR GENERAL JOSE ANSELMO I. CADIZ, Respondents.

[G.R. No. 206290]

ATTY. DINDO G. VENTURANZA, Petitioner, v. OFFICE OF THE PRESIDENT, LEILA M. DE LIMA, IN

HER CAPACITY AS THE SECRETARY OF THE DEPARTMENT OF JUSTICE, CLARO A. ARELLANO, IN
HIS CAPACITY AS THE PROSECUTOR GENERAL, AND RICHARD ANTHONY D. FADULLON, IN HIS
CAPACITY AS THE OFFICER-IN-CHARGE OF THE OFFICE OF THE CITY PROSECUTOR OF QUEZON
CITY, Respondents.

[G.R. No. 209138]

IRMA A. VILLANUEVA AND FRANCISCA B. ROSQUITA, Petitioners, v. COURT OF APPEALS AND THE
OFFICE OF THE PRESIDENT, Respondents.

[G.R. No. 212030]

EDDIE U. TAMONDONG, Petitioner, v. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondent.

DECISION

CARPIO, J.:

The present consolidated cases involve four petitions: G.R. No. 203372 with Atty. Cheloy E. Velicaria-Garafil
(Atty. Velicaria-Garafil), who was appointed State Solicitor II at the Office of the Solicitor General (OSG), as
petitioner; G.R. No. 206290 with Atty. Dindo G. Venturanza (Atty. Venturanza), who was appointed
Prosecutor IV (City Prosecutor) of Quezon City, as petitioner; G.R. No. 209138 with Irma A. Villanueva
(Villanueva), who was appointed Administrator for Visayas of the Board of Administrators of the Cooperative
Development Authority (CDA), and Francisca B. Rosquita (Rosquita), who was appointed Commissioner of
the National Commission of Indigenous Peoples (NCIP), as petitioners; and G.R. No. 212030 with Atty. Eddie
U. Tamondong (Atty. Tamondong), who was appointed member of the Board of Directors of the Subic Bay
Metropolitan Authority (SBMA), as petitioner. All petitions question the constitutionality of Executive Order
No. 2 (EO 2) for being inconsistent with Section 15, Article VII of the 1987 Constitution.

Petitioners seek the reversal of the separate Decisions of the Court of Appeals (CA) that dismissed their
petitions and upheld the constitutionality of EO 2. G.R. No. 203372 filed by Atty. Velicaria-Garafil is a
Petition for Review on Certiorari,1 assailing the Decision2 dated 31 August 2012 of the CA in CA-G.R. SP No.
123662. G.R. No. 206290 filed by Atty. Venturanza is a Petition for Review on Certiorari,3 assailing the
Decision4 dated 31 August 2012 and Resolution5 dated 12 March 2013 of the CA in CA-G.R. SP No. 123659.
G.R. No. 209138 filed by Villanueva and Rosquita is a Petition for Certiorari,6 seeking to nullify the
Decision7 dated 28 August 2013 of the CA in CA-G.R. SP Nos. 123662, 123663, and 123664.8Villanueva and
Rosquita filed a Petition-in-Intervention in the consolidated cases before the CA. G.R. No. 212030 is a
Petition for Review on Certiorari,9 assailing the Decision10 dated 31 August 2012 of the CA in CA-G.R. SP No.
123664 and Resolution11 dated 7 April 2014 of the CA in CA-G.R. SP Nos. 123662, 123663, and 123664.12 chanroble slaw

Facts of the Cases

Prior to the conduct of the May 2010 elections, then President Gloria Macapagal-Arroyo (President
Macapagal-Arroyo) issued more than 800 appointments to various positions in several government offices.

The ban on midnight appointments in Section 15, Article VII of the 1987 Constitution reads: chanRoblesv irtual Lawlib rary

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.chan roblesv irt uallawl ibra ry

Thus, for purposes of the 2010 elections, 10 March 2010 was the cut-off date for valid appointments and the
next day, 11 March 2010, was the start of the ban on midnight appointments. Section 15, Article VII of the
1987 Constitution recognizes as an exception to the ban on midnight appointments only temporary
appointments to executive positions when continued vacancies therein will prejudice public service or
endanger public safety. None of the petitioners claim that their appointments fall under this exception.

Appointments

G.R. No. 203372

The paper evidencing Atty. Velicaria-Garafils appointment as State Solicitor II at the OSG was dated 5
March 2010.13 There was a transmittal letter dated 8 March 2010 of the appointment paper from the Office
of the President (OP), but this transmittal letter was received by the Malacaang Records Office (MRO) only
on 13 May 2010. There was no indication as to the OSGs date of receipt of the appointment paper. On 19
March 2010, the OSGs Human Resources Department called up Atty. Velicaria-Garafil to schedule her oath-
taking. Atty. Velicaria-Garafil took her oath of office as State Solicitor II on 22 March 2010 and assumed her
position on 6 April 2010.
G.R. No. 206290

The paper evidencing Atty. Venturanzas appointment as Prosecutor IV (City Prosecutor) of Quezon City was
dated 23 February 2010.14 It is apparent, however, that it was only on 12 March 2010 that the OP, in a
letter dated 9 March 2010, transmitted Atty. Venturanzas appointment paper to then Department of Justice
(DOJ) Secretary Alberto C. Agra.15 During the period between 23 February and 12 March 2010, Atty.
Venturanza, upon verbal advice from Malacaang of his promotion but without an official copy of his
appointment paper, secured clearances from the Civil Service Commission (CSC),16Sandiganbayan,17 and
the DOJ.18 Atty. Venturanza took his oath of office on 15 March 2010, and assumed office on the same day.

G.R. No. 209138

The paper evidencing Villanuevas appointment as Administrator for Visayas of the Board of Administrators
of the CDA was dated 3 March 2010.19 There was no transmittal letter of the appointment paper from the
OP. Villanueva took her oath of office on 13 April 2010.

The paper evidencing Rosquitas appointment as Commissioner, representing Region I and the Cordilleras, of
the NCIP was dated 5 March 2010.20 Like Villanueva, there was no transmittal letter of the appointment
paper from the OP. Rosquita took her oath of office on 18 March 2010.

G.R. No. 212030

The paper evidencing Atty. Tamondongs appointment as member, representing the private sector, of the
SBMA Board of Directors was dated 1 March 2010.21 Atty. Tamondong admitted that the appointment paper
was received by the Office of the SBMA Chair on 25 March 201022 and that he took his oath of office on the
same day.23 He took another oath of office on 6 July 2010 as an act of extra caution because of the rising
crescendo of noise from the new political mandarins against the so-called midnight appointments.24 chanrob leslaw

To summarize, the pertinent dates for each petitioner are as follows: chanRob lesvi rtual Lawli bra ry

Date of Date of Date of Date of

Assumption
G.R. No. Appointment Transmittal Receipt Oath of
of Office
Letter Letter by MRO Office
203372
(Atty.
8 March 13 May 22 March
Velicaria- 5 March 2010 6 April 2010
2010 2010 2010
Garafil)

206290
(Atty. 23 February 9 March 12 March 15 March 15 March
Venturanza) 2010 2010 2010 2010 2010

209138
4 May 13 April
(Villanueva) 3 March 2010
2010 2010
209138
13 May 18 March
(Rosquita) 5 March 2010
2010 2010
212030 25 March
(Atty. 2010 and 6
1 March 2010
Tamondong) July 2010

Issuance of EO 2

On 30 June 2010, President Benigno S. Aquino III (President Aquino) took his oath of office as President of
the Republic of the Philippines. On 30 July 2010, President Aquino issued EO 2 recalling, withdrawing, and
revoking appointments issued by President Macapagal-Arroyo which violated the constitutional ban on
midnight appointments.

The entirety of EO 2 reads:chanRobles virtua lLawl ibra ry

EXECUTIVE ORDER NO. 2

RECALLING, WITHDRAWING, AND REVOKING APPOINTMENTS ISSUED BY THE PREVIOUS ADMINISTRATION

IN VIOLATION OF THE CONSTITUTIONAL BAN ON MIDNIGHT APPOINTMENTS, AND FOR OTHER PURPOSES.

WHEREAS, Sec. 15, Article VII of the 1987 Constitution provides that Two months immediately before the
next presidential elections and up to the end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions when continued vacancies therein will
prejudice public service or endanger public safety.;

WHEREAS, in the case of In re: Appointments dated March 30, 1998 of Hon. Mateo Valenzuela and Hon.
Vallarta as Judges of the Regional Trial Court of Branch 62 of Bago City and Branch 24 of Cabanatuan City,
respectively (A.M. No. 98-5-01-SC Nov. 9, 1998), the Supreme Court interpreted this provision to mean
that the President is neither required to make appointments nor allowed to do so during the two months
immediately before the next presidential elections and up to the end of her term. The only known exceptions
to this prohibition are (1) temporary appointments in the executive positions when continued vacancies will
prejudice public service or endanger public safety and in the light of the recent Supreme Court decision in
the case of De Castro, et al. vs. JBC and PGMA, G.R. No. 191002, 17 March 2010, (2) appointments to the
Judiciary;

WHEREAS, Section 261 of the Omnibus Election Code provides that: ChanRobles Virtualawl ibra ry

Section 261. Prohibited Acts. The following shall be guilty of an election offense: ChanRoble sVirt ualawli brary

(g) Appointments of new employees, creation of new position, promotion, or giving salary increases.
During the period of forty-five days before a regular election and thirty days before a special election.

(1) Any head, official or appointing officer of a government office, agency or instrumentality, whether
national or local, including government-owned or controlled corporations, who appoints or hires any new
employee, whether provisional, temporary or casual, or creates and fills any new position, except upon prior
authority to the Commission. The Commission shall not grant the authority sought unless it is satisfied that
the position to be filled is essential to the proper functioning of the office or agency concerned, and that the
position shall not be filled in a manner that may influence the election.

As an exception to the foregoing provisions, a new employee may be appointed in the case of urgent
need:ChanRoble sVirt ualawli bra ry

Provided, however, that notice of the appointment shall be given to the Commission within three days from
the date of the appointment. Any appointment or hiring in violation of this provision shall be null and void.

(2) Any government official who promotes or gives any increase of salary or remuneration or privilege to
any government official or employee, including those in government-owned or controlled corporations.;

WHEREAS, it appears on record that a number of appointments were made on or about 10 March 2010 in
complete disregard of the intent and spirit of the constitutional ban on midnight appointment and which
deprives the new administration of the power to make its own appointment;

WHEREAS, based on established jurisprudence, an appointment is deemed complete only upon acceptance
of the appointee;

WHEREAS, in order to strengthen the civil service system, it is necessary to uphold the principle that
appointments to the civil service must be made on the basis of merit and fitness, it is imperative to recall,
withdraw, and revoke all appointments made in violation of the letter and spirit of the law;

NOW, THEREFORE, I, BENIGNO S. AQUINO III, by virtue of the powers vested in me by the Constitution as
President of the Philippines, do hereby order and direct that:ChanRoblesVi rt ualawlib ra ry

SECTION 1. Midnight Appointments Defined. The following appointments made by the former President
and other appointing authorities in departments, agencies, offices, and instrumentalities, including
government-owned or controlled corporations, shall be considered as midnight appointments: ChanRoblesVirt ualawli bra ry

(a) Those made on or after March 11, 2010, including all appointments bearing dates prior to March 11,
2010 where the appointee has accepted, or taken his oath, or assumed public office on or after March 11,
2010, except temporary appointments in the executive positions when continued vacancies will prejudice
public service or endanger public safety as may be determined by the appointing authority.

(b) Those made prior to March 11, 2010, but to take effect after said date or appointments to office that
would be vacant only after March 11, 2010.

(c) Appointments and promotions made during the period of 45 days prior to the May 10, 2010 elections in
violation of Section 261 of the Omnibus Election Code.

SECTION 2. Recall, Withdraw, and Revocation of Midnight Appointments. Midnight appointments, as defined
under Section 1, are hereby recalled, withdrawn, and revoked. The positions covered or otherwise affected
are hereby declared vacant.

SECTION 3. Temporary designations. When necessary to maintain efficiency in public service and ensure
the continuity of government operations, the Executive Secretary may designate an officer-in-charge (OIC)
to perform the duties and discharge the responsibilities of any of those whose appointment has been
recalled, until the replacement of the OIC has been appointed and qualified.

SECTION 4. Repealing Clause. All executive issuances, orders, rules and regulations or part thereof
inconsistent with the provisions of this Executive Order are hereby repealed or modified accordingly.
SECTION 5. Separability Clause. If any section or provision of this executive order shall be declared
unconstitutional or invalid, the other sections or provision not affected thereby shall remain in full force and
effect.

SECTION 6. Effectivity. This Executive order shall take effect immediately.

DONE in the City of Manila, this 30th day of July, in the year Two Thousand and Ten.

(Sgd.) BENIGNO S. AQUINO III

By the President:
(Sgd.) PAQUITO N. OCHOA, JR.
Executive Secretary25
Effect of the Issuance of EO 2

G.R. No. 203372

On 5 August 2010, Jose Anselmo Cadiz assumed office as Solicitor General (Sol. Gen. Cadiz). On 6 August
2010, Sol. Gen. Cadiz instructed a Senior Assistant Solicitor General to inform the officers and employees
affected by EO 2 that they were terminated from service effective the next day.

Atty. Velicaria-Garafil reported for work on 9 August 2010 without any knowledge of her termination. She
was made to return the office-issued laptop and cellphone, and was told that her salary ceased as of 7
August 2010. On 12 August 2010, Atty. Velicaria-Garafil was informed that her former secretary at the OSG
received a copy of a memorandum on her behalf. The memorandum, dated 9 August 2010, bore the subject
Implementation of Executive Order No. 2 dated 30 July 2010 and was addressed to the OSGs Director of
Finance and Management Service.

Atty. Velicaria-Garafil filed a petition for certiorari (G.R. No. 193327) before this Court on 1 September
2010. The petition prayed for the nullification of EO 2, and for her reinstatement as State Solicitor II without
loss of seniority, rights and privileges, and with full backwages from the time that her salary was
withheld.26cha nro bleslaw

G.R. No. 206290

On 1 September 2010, Atty. Venturanza received via facsimile transmission an undated copy of DOJ Order
No. 556. DOJ Order No. 556, issued by DOJ Secretary Leila M. De Lima (Sec. De Lima), designated Senior
Deputy State Prosecutor Richard Anthony D. Fadullon (Pros. Fadullon) as Officer-in-Charge of the Office of
the City Prosecutor in Quezon City. In a letter to Sec. De Lima dated 15 September 2010, Atty. Venturanza
asked for clarification of his status, duties, and functions since DOJ Order No. 556 did not address the same.
Atty. Venturanza also asked for a status quo ante order to prevent Pros. Fadullon from usurping the position
and functions of the City Prosecutor of Quezon City. Atty. Venturanza also wrote a letter to President Aquino
on the same day, and sought reaffirmation of his promotion as City Prosecutor of Quezon City.

On 6 October 2010, Atty. Venturanza received a letter dated 25 August 2010 from Sec. De Lima which
directed him to relinquish the office to which he was appointed, and to cease from performing its functions.

Atty. Venturanza filed a Petition for Certiorari, Prohibition, Mandamus with Urgent Prayer for Status Quo
Ante Order, Temporary Restraining Order and/or Preliminary Mandatory Injunction (G.R. No. 193867) before
this Court on 14 October 2010.27 chan robles law

G.R. No. 209138

The OP withheld the salaries of Villanueva and Rosquita on the basis of EO 2. On 3 August 2010, Villanueva
and Rosquita sought to intervene in G.R. No. 192991.28 On 1 October 2010, Executive Secretary Paquito N.
Ochoa, Jr. revoked Rosquitas appointment as NCIP Commissioner.29 On 13 October 2010, Villanueva and
Rosquita notified this Court that they wanted to intervene in Atty. Tamondongs petition (G.R. No. 192987)
instead.

G.R. No. 212030

Atty. Tamondong was removed from the SBMA Board of Directors on 30 July 2010. He filed a petition for
prohibition, declaratory relief and preliminary injunction with prayer for temporary restraining order (G.R.
No. 192987) before this Court on 9 August 2010. The petition prayed for the prohibition of the
implementation of EO 2, the declaration of his appointment as legal, and the declaration of EO 2 as
unconstitutional.30 chanrob leslaw

Referral to CA

There were several petitions31 and motions for intervention32 that challenged the constitutionality of EO 2.

On 31 January 2012, this Court issued a Resolution referring the petitions, motions for intervention, as well
as various letters, to the CA for further proceedings, including the reception and assessment of the evidence
from all parties. We defined the issues as follows: chanRoble svirtual Lawlib ra ry
1. Whether the appointments of the petitioners and intervenors were midnight appointments within the
coverage of EO 2;

2. Whether all midnight appointments, including those of petitioners and intervenors, were invalid;

3. Whether the appointments of the petitioners and intervenors were made with undue haste, hurried
maneuvers, for partisan reasons, and not in accordance with good faith; and

4. Whether EO 2 violated the Civil Service Rules on Appointment.33

This Court gave the CA the authority to resolve all pending matters and applications, and to decide the
issues as if these cases were originally filed with the CA.

Rulings of the CA

Even though the same issues were raised in the different petitions, the CA promulgated separate Decisions
for the petitions. The CA consistently ruled that EO 2 is constitutional. The CA, however, issued different
rulings as to the evaluation of the circumstances of petitioners appointments. In the cases of Attys.
Velicaria-Garafil and Venturanza, the CA stated that the OP should consider the circumstances of their
appointments. In the cases of Villanueva, Rosquita, and Atty. Tamondong, the CA explicitly stated that the
revocation of their appointments was proper because they were midnight appointees.

G.R. No. 203372 (CA-G.R. SP No. 123662)

The CA promulgated its Decision in CA-G.R. SP No. 123662 on 31 August 2012. The CA ruled that EO 2 is
not unconstitutional. However, the CA relied on Sales v. Carreon34 in ruling that the OP should evaluate
whether Atty. Velicaria-Garafils appointment had extenuating circumstances that might make it fall outside
the ambit of EO 2.

The dispositive portion of the CAs Decision reads: chanRoble svi rtual Lawli bra ry

WHEREFORE, the petition for certiorari and mandamus [is] DENIED.

Executive Order No. 2, dated July 30, 2010, is NOT unconstitutional.

The issue on whether or not to uphold petitioners appointment as State Solicitor II at the OSG is
hereby referred to the Office of the President which has the sole authority and discretion to pass upon the
same.

SO ORDERED.35
G.R. No. 206290 (CA-G.R. SP No. 123659)

The CA promulgated its Decision in CA-G.R. SP No. 123659 on 31 August 2012. The CA ruled that EO 2 is
not unconstitutional. Like its Decision in CA-G.R. SP No. 123662, the CA relied on Sales v. Carreon36in ruling
that the OP should evaluate whether Atty. Venturanzas appointment had extenuating circumstances that
might make it fall outside the ambit of EO 2.

The dispositive portion of the CAs Decision reads: chanRoble svi rtual Lawli bra ry

WHEREFORE, the petition for certiorari, prohibition and mandamus [is] DENIED.

Executive Order No. 2, dated July 30, 2010, is NOT unconstitutional.

The issue on whether or not to uphold petitioners appointment as City Chief Prosecutor of Quezon City is
hereby referred to the Office of the President which has the sole authority and discretion to pass upon the
same.

SO ORDERED.37
G.R. No. 209138

The CA ruled on Villanueva and Rosquitas Petition-in-Intervention through a Decision in CA-G.R. SP Nos.
123662, 123663, and 123664 promulgated on 28 August 2013. The CA stated that Villanueva and Rosquita
were midnight appointees within the contemplation of Section 15, Article VII of the 1987 Constitution. The
letter issued by the CSC that supported their position could not serve as basis to restore them to their
respective offices.

The dispositive portion of the CAs Decision reads: chanRoble svi rtual Lawli bra ry

WHEREFORE, premises considered, the instant Petition is hereby DISMISSED. Executive Order No. 2 is
hereby declared NOT UNCONSTITUTIONAL. Accordingly, the revocation of Petitioners-Intervenors Irma
Villanueva and Francisca Rosquita [sic] appointment[s] as Administrator for Visayas of the Board of
Administrators of the Cooperative Development Authority, and Commissioner of National Commission on
Indigenous Peoples [respectively,] is VALID, the same being a [sic] midnight appointment[s].

SO ORDERED.38
G.R. No. 212030 (CA-G.R. SP No. 123664)

On 31 August 2012, the CA promulgated its Decision in CA-G.R. SP No. 123664. The dispositive portion
reads as follows: chanRoble svirtual Lawlib ra ry
WHEREFORE, premises considered, the instant Petition is hereby DISMISSED. Executive Order No. 2 is
hereby declared NOT UNCONSTITUTIONAL. Accordingly, the revocation of Atty. Eddie Tamondongs
appointment as Director of Subic Bay Metropolitan Authority is VALID for being a midnight appointment.

SO ORDERED.39
The Issues for Resolution

We resolve the following issues in these petitions: (1) whether petitioners appointments violate Section 15,
Article VII of the 1987 Constitution, and (2) whether EO 2 is constitutional.

Ruling of the Court

The petitions have no merit. All of petitioners appointments are midnight appointments and are void for
violation of Section 15, Article VII of the 1987 Constitution. EO 2 is constitutional.

Villanueva and Rosquita, petitioners in G.R. No. 209138, did not appeal the CAs ruling under Rule 45, but
instead filed a petition for certiorari under Rule 65. This procedural error alone warrants an outright
dismissal of G.R. No. 209138. Even if it were correctly filed under Rule 45, the petition should still be
dismissed for being filed out of time.40 There was also no explanation as to why they did not file a motion for
reconsideration of the CAs Decision.

Midnight Appointments

This ponencia and the dissent both agree that the facts in all these cases show that none of the petitioners
have shown that their appointment papers (and transmittal letters) have been issued (and released) before
the ban.41 The dates of receipt by the MRO, which in these cases are the only reliable evidence of actual
transmittal of the appointment papers by President Macapagal-Arroyo, are dates clearly falling during the
appointment ban. Thus, this ponencia and the dissent both agree that all the appointments in these cases
are midnight appointments in violation of Section 15, Article VII of the 1987 Constitution.

Constitutionality of EO 2

Based on prevailing jurisprudence, appointment to a government post is a process that takes several steps
to complete. Any valid appointment, including one made under the exception provided in Section 15, Article
VII of the 1987 Constitution, must consist of the President signing an appointees appointment paper to a
vacant office, the official transmittal of the appointment paper (preferably through the MRO), receipt of the
appointment paper by the appointee, and acceptance of the appointment by the appointee evidenced by his
or her oath of office or his or her assumption to office.

Aytona v. Castillo (Aytona)42 is the basis for Section 15, Article VII of the 1987 Constitution. Aytonadefined
midnight or last minute appointments for Philippine jurisprudence. President Carlos P. Garcia submitted on
29 December 1961, his last day in office, 350 appointments, including that of Dominador R. Aytona for
Central Bank Governor. President Diosdado P. Macapagal assumed office on 30 December 1961, and issued
on 31 December 1961 Administrative Order No. 2 recalling, withdrawing, and cancelling all appointments
made by President Garcia after 13 December 1961 (President Macapagals proclamation date). President
Macapagal appointed Andres V. Castillo as Central Bank Governor on 1 January 1962. This Court dismissed
Aytonas quo warranto proceeding against Castillo, and upheld Administrative Order No. 2s cancellation of
the midnight or last minute appointments. We wrote: chanRoblesvi rtual Lawli bra ry

x x x But the issuance of 350 appointments in one night and the planned induction of almost all of them a
few hours before the inauguration of the new President may, with some reason, be regarded by the latter as
an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all
vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration
of an opportunity to make the corresponding appointments.

x x x Now it is hard to believe that in signing 350 appointments in one night, President Garcia exercised
such double care which was required and expected of him; and therefore, there seems to be force to the
contention that these appointments fall beyond the intent and spirit of the constitutional provision granting
to the Executive authority to issue ad interim appointments.

Under the circumstances above described, what with the separation of powers, this Court resolves that it
must decline to disregard the Presidential Administrative Order No. 2, cancelling such midnight or last-
minute appointments.

Of course the Court is aware of many precedents to the effect that once an appointment has been issued, it
cannot be reconsidered, specially where the appointee has qualified. But none of them refer to mass ad
interim appointments (three hundred and fifty), issued in the last hours of an outgoing Chief Executive, in a
setting similar to that outlined herein. On the other hand, the authorities admit of exceptional circumstances
justifying revocation and if any circumstances justify revocation, those described herein should fit the
exception.

Incidentally, it should be stated that the underlying reason for denying the power to revoke after the
appointee has qualified is the latters equitable rights. Yet it is doubtful if such equity might be successfully
set up in the present situation, considering the rush conditional appointments, hurried maneuvers and other
happenings detracting from that degree of good faith, morality and propriety which form the basic
foundation of claims to equitable relief. The appointees, it might be argued, wittingly or unwittingly
cooperated with the stratagem to beat the deadline, whatever the resultant consequences to the dignity and
efficiency of the public service. Needless to say, there are instances wherein not only strict legality, but also
fairness, justice and righteousness should be taken into account.43
During the deliberations for the 1987 Constitution, then Constitutional Commissioner (now retired Supreme
Court Chief Justice) Hilario G. Davide, Jr. referred to this Courts ruling in Aytona and stated that his
proposal seeks to prevent a President, whose term is about to end, from preempting his successor by
appointing his own people to sensitive positions.
MR. DAVIDE: The idea of the proposal is that about the end of the term of the President, he may prolong his
rule indirectly by appointing people to these sensitive positions, like the commissions, the Ombudsman, the
judiciary, so he could perpetuate himself in power even beyond his term of office; therefore foreclosing the
right of his successor to make appointments to these positions. We should realize that the term of the
President is six years and under what we had voted on, there is no reelection for him. Yet he can continue to
rule the country through appointments made about the end of his term to these sensitive positions.44
The 1986 Constitutional Commission put a definite period, or an empirical value, on Aytonas intangible
stratagem to beat the deadline, and also on the act of preempting the Presidents successor, which
shows a lack of good faith, morality and propriety. Subject to only one exception, appointments made
during this period are thus automatically prohibited under the Constitution, regardless of the appointees
qualifications or even of the Presidents motives. The period for prohibited appointments covers two months
before the elections until the end of the Presidents term. The Constitution, with a specific exception, ended
the Presidents power to appoint two months immediately before the next presidential elections. For an
appointment to be valid, it must be made outside of the prohibited period or, failing that, fall under the
specified exception.

The dissent insists that, during the prohibited period, an appointment should be viewed in its narrow
sense. In its narrow sense, an appointment is not a process, but is only an executive act that the President
unequivocally exercises pursuant to his discretion.45 The dissent makes acceptance of the appointment
inconsequential. The dissent holds that an appointment is void if the appointment is made before the ban
but the transmittal and acceptance are made after the ban. However, the dissent holds that an appointment
is valid, or efficacious, if the appointment and transmittal are made before the ban even if the acceptance
is made after the ban. In short, the dissent allows an appointment to take effect during the ban, as long as
the President signed and transmitted the appointment before the ban, even if the appointee never received
the appointment paper before the ban and accepted the appointment only during the ban.

The dissents view will lead to glaring absurdities. Allowing the dissents proposal that an appointment is
complete merely upon the signing of an appointment paper and its transmittal, excluding the appointees
acceptance from the appointment process, will lead to the absurdity that, in case of non-acceptance, the
position is considered occupied and nobody else may be appointed to it. Moreover, an incumbent public
official, appointed to another public office by the President, will automatically be deemed to occupy the new
public office and to have automatically resigned from his first office upon transmittal of his appointment
paper, even if he refuses to accept the new appointment. This will result in chaos in public service.

Even worse, a President who is unhappy with an incumbent public official can simply appoint him to another
public office, effectively removing him from his first office without due process. The mere transmittal of his
appointment paper will remove the public official from office without due process and even without cause, in
violation of the Constitution.

The dissents proferred excuse (that the appointee is not alluded to in Section 15, Article VII) for its
rejection of acceptance by the appointee as an integral part of the appointment process ignores the reason
for the limitation of the Presidents power to appoint, which is to prevent the outgoing President from
continuing to rule the country indirectly after the end of his term. The 1986 Constitutional Commission
installed a definite cut-off date as an objective and unbiased marker against which this once-in-every-six-
years prohibition should be measured.

The dissents assertion that appointment should be viewed in its narrow sense (and is not a
process) only during the prohibited period is selective and time-based, and ignores well-settled
jurisprudence. For purposes of complying with the time limit imposed by the appointment ban, the dissents
position cuts short the appointment process to the signing of the appointment paper and its transmittal,
excluding the receipt of the appointment paper and acceptance of the appointment by the appointee.

The President exercises only one kind of appointing power. There is no need to differentiate the exercise of
the Presidents appointing power outside, just before, or during the appointment ban. The Constitution
allows the President to exercise the power of appointment during the period not covered by the appointment
ban, and disallows (subject to an exception) the President from exercising the power of appointment during
the period covered by the appointment ban. The concurrence of all steps in the appointment process is
admittedly required for appointments outside the appointment ban. There is no justification whatsoever to
remove acceptance as a requirement in the appointment process for appointments just before the start of
the appointment ban, or during the appointment ban in appointments falling within the exception. The
existence of the appointment ban makes no difference in the power of the President to appoint; it is still the
same power to appoint. In fact, considering the purpose of the appointment ban, the concurrence of all
steps in the appointment process must be strictly applied on appointments made just before or during the
appointment ban.

In attempting to extricate itself from the obvious consequences of its selective application, the dissent
glaringly contradicts itself:
cha nRoblesvi rtua lLawli bra ry

Thus, an acceptance is still necessary in order for the appointee to validly assume his post and
discharge the functions of his new office, and thus make the appointment effective. There can
never be an instance where the appointment of an incumbent will automatically result in his resignation
from his present post and his subsequent assumption of his new position; or where the President can simply
remove an incumbent from his current office by appointing him to another one. I stress that acceptance
through oath or any positive act is still indispensable before any assumption of office may
occur.46 (Emphasis added)
The dissent proposes that this Court ignore well-settled jurisprudence during the appointment ban, but apply
the same jurisprudence outside of the appointment ban.
[T]he well-settled rule in our jurisprudence, that an appointment is a process that begins with the selection
by the appointing power and ends with acceptance of the appointment by the appointee, stands. As early as
the 1949 case of Lacson v. Romero, this Court laid down the rule that acceptance by the appointee is the
last act needed to make an appointment complete. The Court reiterated this rule in the 1989 case of Javier
v. Reyes. In the 1996 case of Garces v. Court of Appeals, this Court emphasized that acceptance by the
appointee is indispensable to complete an appointment. The 1999 case of Bermudez v. Executive Secretary,
cited in the ponencia, affirms this standing rule in our jurisdiction, to wit: chanRoble svi rtual Lawli bra ry

The appointment is deemed complete once the last act required of the appointing authority has been
complied with and its acceptance thereafter by the appointee in order to render it effective.47
The dissents assertion creates a singular exception to the well-settled doctrine that appointment is a
process that begins with the signing of the appointment paper, followed by the transmittal and receipt of the
appointment paper, and becomes complete with the acceptance of the appointment. The dissent makes the
singular exception that during the constitutionally mandated ban on appointments, acceptance is not
necessary to complete the appointment. The dissent gives no reason why this Court should make such
singular exception, which is contrary to the express provision of the Constitution prohibiting the President
from making appointments during the ban. The dissents singular exception will allow the President, during
the ban on appointments, to remove from office incumbents without cause by simply appointing them to
another office and transmitting the appointment papers the day before the ban begins, appointments that
the incumbents cannot refuse because their acceptance is not required during the ban. Adoption by this
Court of the dissents singular exception will certainly wreak havoc on the civil service.

The following elements should always concur in the making of a valid (which should be understood as both
complete and effective) appointment: (1) authority to appoint and evidence of the exercise of the authority;
(2) transmittal of the appointment paper and evidence of the transmittal; (3) a vacant position at the time
of appointment; and (4) receipt of the appointment paper and acceptance of the appointment by the
appointee who possesses all the qualifications and none of the disqualifications. The concurrence of all these
elements should always apply, regardless of when the appointment is made, whether outside, just before,
or during the appointment ban. These steps in the appointment process should always concur and operate
as a single process. There is no valid appointment if the process lacks even one step. And, unlike the
dissents proposal, there is no need to further distinguish between an effective and an ineffective
appointment when an appointment is valid.

Appointing Authority

The Presidents exercise of his power to appoint officials is provided for in the Constitution and
laws.48Discretion is an integral part in the exercise of the power of appointment.49 cralaw red

Considering that appointment calls for a selection, the appointing power necessarily exercises a discretion.
According to Woodbury, J., the choice of a person to fill an office constitutes the essence of his
appointment, and Mr. Justice Malcolm adds that an [a]ppointment to office is intrinsically an executive act
involving the exercise of discretion. In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate
Court we held: chanRoble svirtual Lawli bra ry

The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he
may exercise freely according to his judgment, deciding for himself who is best qualified among those who
have the necessary qualifications and eligibilities. It is a prerogative of the appointing power x x x x
Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of
discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the appointee. In
other words, the choice of the appointee is a fundamental component of the appointing power.

Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at
the same time limit the choice of the President to only one candidate. Once the power of appointment is
conferred on the President, such conferment necessarily carries the discretion of whom to appoint. Even on
the pretext of prescribing the qualifications of the officer, Congress may not abuse such power as to divest
the appointing authority, directly or indirectly, of his discretion to pick his own choice. Consequently, when
the qualifications prescribed by Congress can only be met by one individual, such enactment effectively
eliminates the discretion of the appointing power to choose and constitutes an irregular restriction on the
power of appointment.50
Transmittal

It is not enough that the President signs the appointment paper. There should be evidence that the
President intended the appointment paper to be issued. It could happen that an appointment paper may be
dated and signed by the President months before the appointment ban, but never left his locked drawer for
the entirety of his term. Release of the appointment paper through the MRO is an unequivocal act that
signifies the Presidents intent of its issuance.

The MRO was created by Memorandum Order No. 1, Series of 1958, Governing the Organization and
Functions of the Executive Office and General Matters of Procedure Therein. Initially called the Records
Division, the MRO functioned as an administrative unit of the Executive Office. Memorandum Order No. 1
assigned the following functions: chanRoblesv irt ual Lawlib rary

a. Receive, record and screen all incoming correspondence, telegrams, documents and papers, and
(1) Forward those of a personal and unofficial nature to the Presidents Private Office; and

(2) Distribute those requiring action within the Office or requiring staff work prior to presentation to the
President to the appropriate units within the Office.

b. Follow up on correspondence forwarded to entities outside the Office to assure that prompt replies are
made and copies thereof furnished the Office.

c. Dispatch outgoing correspondence and telegrams.

d. Have custody of records of the Office, except personal papers of the President, and keep them in such
condition as to meet the documentary and reference requirements of the Office.

e. Keep and maintain a filing and records system for acts, memoranda, orders, circulars, correspondence
and other documents affecting the Office for ready reference and use.

f. Issue certified true copies of documents on file in the Division in accordance with prevailing standard
operating procedure.

g. Keep a separate record of communications or documents of confidential nature.

h. Have custody of the Great Seal of the Republic of the Philippines.

i. Prepare and submit to the approving authority, periodic disposition schedules of non-current records which
have no historical, legal and/or claim value.

j. With the approval of the Executive Secretary, assist other offices in the installation or improvement of
their records management system; and

k. Give instructions or deliver lectures and conduct practical training to in-service trainees from other offices
and to students from educational institutions on records management.51
The Records Division was elevated to an Office in 1975, with the addition of the following functions: chanRoble svirtual Lawlib ra ry

1. Maintain and control vital documents and essential records to support the functions of the OP in its day to
day activities;

2. Monitor the flow of communications from their time of receipt up to their dispatch;

3. Service the documentary, information and reference requirements of top management and action officers
of the OP, and the reference and research needs of other government agencies and the general public;

4. Ensure the proper storage, maintenance, protection and preservation of vital and presidential documents,
and the prompt disposal of obsolete and valueless records;

5. Effect the prompt publication/dissemination of laws, presidential issuances and classified documents;

6. Provide computerized integrated records management support services for easy reference and retrieval of
data and information; and

7. To be able to represent the OP and OP officials in response to Subpoena Duces Tecum and Testificandum
served by courts and other investigating bodies.52
For purposes of verification of the appointment papers existence and authenticity, the appointment paper
must bear the security marks (i.e., handwritten signature of the President, bar code, etc.) and must be
accompanied by a transmittal letter from the MRO.

The testimony of Mr. Marianito Dimaandal, Director IV of the MRO, underscores the purpose of the release of
papers through his office.
Q: What are the functions of the MRO?

A: The MRO is mandated under Memorandum Order No. 1, series of 1958 to (1) receive, record, and screen
all incoming correspondence, telegrams, documents, and papers; (2) follow up on correspondence
forwarded to entities outside the Office of the President (OP) to assure that prompt replies are made and
copies thereof furnished the OP; (3) timely dispatch all outgoing documents and correspondence; (4) have
custody of records of the OP, except personal papers of the President, and keep them in such condition as to
meet the documentary and reference requirements of the Office; (5) keep and maintain a filing and records
system for Acts, Memoranda, Orders, Circulars, correspondence, and other pertinent documents for ready
reference and use; (6) issue certified copies of documents on file as requested and in accordance with
prevailing standard operating procedures; (7) maintain and control vital documents and essential records to
support the OP in its day-to-day activities; (8) monitor the flow of communications from the time of receipt
up to their dispatch; and (9) other related functions.

xxxx

Q: As you previously mentioned, the MRO is the custodian of all documents emanating from Malacaang
pursuant to its mandate under Memorandum Order No. 1, Series of 1958. Is the MRO required to follow a
specific procedure in dispatching outgoing documents?
A: Yes.

Q: Is this procedure observed for the release of an appointment paper signed by the President?

A: Yes. It is observed for the release of the original copy of the appointment paper signed by the President.

Q: Can you briefly illustrate the procedure for the release of the original copy of the appointment paper
signed by the President?

A: After an appointment paper is signed by the President, the Office of the Executive Secretary (OES)
forwards the appointment paper bearing the stamp mark, barcode, and hologram of the Office of the
President, together with a transmittal letter, to the MRO for official release. Within the same day, the MRO
sends the original copy of the appointment paper together with the transmittal letter and a delivery receipt
which contains appropriate spaces for the name of the addressee, the date released, and the date received
by the addressee. Only a photocopy of the appointment is retained for the MROs official file.

Q: What is the basis for the process you just discussed?

A: The Service Guide of the MRO.

xxxx

Q: What is the legal basis for the issuance of the MRO Service Guide, if any?

A: The MRO Service Guide was issued pursuant to Memorandum Circular No. 35, Series of 2003 and
Memorandum Circular No. 133, Series of 2007.

xxxx

Q: Do you exercise any discretion in the release of documents forwarded to the MRO for transmittal to
various offices?

A: No. We are mandated to immediately release all documents and correspondence forwarded to us for
transmittal.

Q: If a document is forwarded by the OES to the MRO today, when is it officially released by the MRO to the
department or agency concerned?

A: The document is released within the day by the MRO if the addressee is within Metro Manila. For
example, in the case of the appointment paper of Dindo Venturanza, the OES forwarded to the MRO on
March 12, 2010 his original appointment paper dated February 23, 2010 and the transmittal letter dated
March 9, 2010 prepared by the OES. The MRO released his appointment paper on the same day or on March
12, 2010, and was also received by the DOJ on March 12, 2010 as shown by the delivery receipt.

Q: What is the effect if a document is released by an office or department within Malacaan without going
through the MRO?

A: If a document does not pass through the MRO contrary to established procedure, the MRO cannot issue a
certified true copy of the same because as far as the MRO is concerned, it does not exist in our official
records, hence, not an official document from the Malacaang. There is no way of verifying the documents
existence and authenticity unless the document is on file with the MRO even if the person who claims to
have in his possession a genuine document furnished to him personally by the President. As a matter of fact,
it is only the MRO which is authorized to issue certified true copies of documents emanating from Malacaan
being the official custodian and central repository of said documents. Not even the OES can issue a certified
true copy of documents prepared by them.

Q: Why do you say that, Mr. Witness?

A: Because the MRO is the so-called gatekeeper of the Malacaang Palace. All incoming and outgoing
documents and correspondence must pass through the MRO. As the official custodian, the MRO is in charge
of the official release of documents.

Q: What if an appointment paper was faxed by the Office of the Executive Secretary to the appointee, is that
considered an official release by the MRO?

A: No. It is still the MRO which will furnish the original copy of the appointment paper to the appointee. That
appointment paper is, at best, only an advanced copy.

Q: Assuming the MRO has already received the original appointment paper signed by the President together
with the transmittal letter prepared by the OES, you said that the MRO is bound to transmit these
documents immediately, that is, on the same day?

A: Yes.

Q: Were there instances when the President, after the original appointment paper has already been
forwarded to the MRO, recalls the appointment and directs the MRO not to transmit the documents?
A: Yes, there were such instances.

Q: How about if the document was already transmitted by the MRO, was there any instance when it was
directed to recall the appointment and retrieve the documents already transmitted?

A: Yes, but only in a few instances. Sometimes, when the MRO messenger is already in transit or while he is
already in the agency or office concerned, we get a call to hold the delivery.

Q: You previously outlined the procedure governing the transmittal of original copies of appointment papers
to the agency or office concerned. Would you know if this procedure was followed by previous
administrations?

A: Yes. Since I started working in the MRO in 1976, the procedure has been followed. However, it was
unusually disregarded when the appointments numbering more than 800 were made by then President
Arroyo in March 2010. The MRO did not even know about some of these appointments and we were
surprised when we learned about them in the newspapers.

Q: You mentioned that then President Arroyo appointed more than 800 persons in the month of March
alone. How were you able to determine this number?

A: My staff counted all the appointments made by then President Arroyo within the period starting January
2009 until June 2010.

Q: What did you notice, if any, about these appointments?

A: There was a steep rise in the number of appointments made by then President Arroyo in the month of
March 2010 compared to the other months.

Q: Do you have any evidence to show this steep rise?

A: Yes. I prepared a Certification showing these statistics and the graphical representation thereof.

Q: If those documents will be shown to you, will you be able to recognize them?

A: Yes.

Q: I am showing you a Certification containing the number of presidential appointees per month since
January 2009 until June 2010, and a graphical representation thereof. Can you go over these documents
and tell us the relation of these documents to the ones you previously mentioned?

A: These are [sic] the Certification with the table of statistics I prepared after we counted the appointments,
as well as the graph thereof.

xxxx

Q: Out of the more than 800 appointees made in March 2010, how many appointment papers and
transmittal letters were released through the MRO?

A: Only 133 appointment papers were released through the MRO.

Q: In some of these transmittal letters and appointment papers which were not released through the MRO
but apparently through the OES, there were portions on the stamp of the OES which supposedly indicated
the date and time it was actually received by the agency or office concerned but were curiously left blank, is
this regular or irregular?

A: It is highly irregular.

Q: Why do you say so?

A: Usually, if the document released by the MRO, the delivery receipt attached to the transmittal letter is
filled out completely because the dates when the original appointment papers were actually received are
very material. It is a standard operating procedure for the MRO personnel to ask the person receiving the
documents to write his/her name, his signature, and the date and time when he/she received it.

Q: So, insofar as these transmittal letters and appointment papers apparently released by the OES are
concerned, what is the actual date when the agency or the appointee concerned received it?
A: I cannot answer. There is no way of knowing when they were actually received because the date and
time were deliberately or inadvertently left blank.

Q: Can we say that the date appearing on the face of the transmittal letters or the appointment papers is
the actual date when it was released by the OES?
A: We cannot say that for sure. That is why it is very unusual that the person who received these documents
did not indicate the date and time when it was received because these details are very important.53
The MROs exercise of its mandate does not prohibit the President or the Executive Secretary from giving
the appointment paper directly to the appointee. However, a problem may arise if an appointment paper is
not coursed through the MRO and the appointment paper is lost or the appointment is questioned. The
appointee would then have to prove that the appointment paper was directly given to him.

Dimaandals counsel made this manifestation about petitioners appointment papers and their
transmittal:
chanRoblesvi rt ual Lawlib rary

Your Honors, we respectfully request for the following markings to be made: ChanRobles Virtualawl ibra ry

1. A) The Transmittal Letter pertinent to the appointment of petitioner DINDO VENTURANZA dated March 9,
2010 as Exhibit 2-F for the respondents;

B) The delivery receipt attached in front of the letter bearing the date March 12, 2010 as Exhibit 2-F-1;

C) The Appointment Paper of DINDO VENTURANZA dated February 23, 2010 as Exhibit 2-G for the
respondents;

2. A) The Transmittal Letter pertinent to the appointment of CHELOY E. VELICARIA-GARAFIL turned over to
the MRO on May 13, 2010 consisting of seven (7) pages as Exhibits 2-H, 2-H-1, 2-H-2, 2-H-3, 2-H-
4, 2-H-5, and 2-H-6 respectively for the respondents;

i. The portion with the name CHELOY E. VELICARIA- GARAFIL as State Solicitor II, Office of the Solicitor
General located on the first page of the letter as Exhibit 2-H-7;

ii. The portion rubber stamped by the Office of the Executive Secretary located at the back of the last page
of the letter showing receipt by the DOJ with blank spaces for the date and time when it was actually
received as Exhibit 2-H-8;

B) The Appointment Paper of CHELOY E. VELICARIA-GARAFIL dated March 5, 2010 as Exhibit 2-I for the
respondents;

xxxx

4. A) The Transmittal Letter pertinent to the appointment of EDDIE U. TAMONDONG dated 8 March 2010 but
turned over to the MRO only on May 6, 2010 consisting of two (2) pages as Exhibits 2-L and 2-L-1
respectively for the respondents;

(a) The portion with the name EDDIE U. TAMONDONG as Member, representing the Private Sector, Board
of Directors as Exhibit 2-L-2;

(b) The portion rubber stamped by the Office of the Executive Secretary located at the back of the last page
of the letter showing receipt by Ma. Carissa O. Coscuella with blank spaces for the date and time when it
was actually received as Exhibit 2-L-3;

xxxx

8. A) The Transmittal Letter pertinent to the appointments of x x x FRANCISCA BESTOYONG-ROSQUITA

dated March 8, 2010 but turned over to the MRO on May 13, 2010 as Exhibit 2-T for the respondents;

xxxx

(c) The portion with the name FRANCISCA BESTOYONG-ROSQUITA as Commissioner, Representing
Region I and the Cordilleras as Exhibit 2-T-3;

(d) The portion rubber stamped by the Office of the Executive Secretary at the back thereof showing receipt
by Masli A. Quilaman of NCIP-QC on March 15, 2010 as Exhibit 2-T-4;

xxxx

D) The Appointment Paper of FRANCISCA BESTOYONG- ROSQUITA dated March 5, 2010 as Exhibit 2-W for
the respondents;

9. A) The Transmittal Letter pertinent to the appointment of IRMA A. VILLANUEVA as Administrator for
Visayas, Board of Administrators, Cooperative Development Authority, Department of Finance dated March
8, 2010 as Exhibit 2-X for the respondents;

(a) The portion rubber stamped by the Office of the Executive Secretary at the back thereof showing receipt
by DOF with blank spaces for the date and time when it was actually received as Exhibit 2-X-1;

B) The Appointment Paper of IRMA A. VILLANUEVA dated March 3, 2010 as Exhibit 2-Y for the
respondents.54
The testimony of Ellenita G. Gatbunton, Division Chief of File Maintenance and Retrieval Division of the MRO,
supports Dimaandals counsels manifestation that the transmittal of petitioners appointment papers is
questionable.
Q: In the case of Cheloy E. Velicaria-Garafil, who was appointed as State Solicitor II of the Office of the
Solicitor General, was her appointment paper released through the MRO?

A: No. Her appointment paper dated March 5, 2010, with its corresponding transmittal letter, was merely
turned over to the MRO on May 13, 2010. The transmittal letter that was turned over to the MRO was
already stamped released by the Office of the Executive Secretary, but the date and time as to when it
was actually received were unusually left blank.

Q: What is your basis?

A: The transmittal letter and appointment paper turned over to the MRO.

xxxx

Q: In the case of Eddie U. Tamondong, who was appointed as member of the Board of Directors of Subic
Bay Metropolitan Authority, was her [sic] appointment paper released through the MRO?

A: No. His appointment paper dated March 1, 2010, with its corresponding transmittal letter, was merely
turned over to the MRO on May 6, 2010. The transmittal letter that was turned over to the MRO was already
stamped released by the Office of the Executive Secretary, but the date and time as to when it was
actually received were unusually left blank.

Q: What is your basis?

A: The transmittal letter and appointment paper turned over to the MRO.

xxxx

Q: In the case of Francisca Bestoyong-Resquita who was appointed as Commissioner of the National
Commission on Indigenous Peoples, representing Region 1 and the Cordilleras, was her appointment paper
released thru the MRO?

A: No. Her appointment paper dated March 5, 2010, with its corresponding transmittal letter, was merely
turned over to the MRO on May 13, 2010. The transmittal letter that was turned over to the MRO was
already stamped released by the Office of the Executive Secretary and received on March 15, 2010.

Q: What is your basis?

A: The transmittal letter and appointment paper turned over to the MRO.

xxxx

Q: In the case of Irma A. Villanueva who was appointed as Administrator for Visayas of the Cooperative
Development Authority, was her appointment paper released thru the MRO?

A: No. Her appointment paper dated March 3, 2010, with its corresponding transmittal letter, was merely
turned over to the MRO on May 4, 2010. The transmittal letter that was turned over to the MRO was already
stamped released by the Office of the Executive Secretary, but the date and time as to when it was
actually received were unusually left blank.

Q: What is your basis?

A: The transmittal letter and appointment paper turned over to the MRO.55
The possession of the original appointment paper is not indispensable to authorize an appointee to assume
office. If it were indispensable, then a loss of the original appointment paper, which could be brought about
by negligence, accident, fraud, fire or theft, corresponds to a loss of the office.56However, in case of loss of
the original appointment paper, the appointment must be evidenced by a certified true copy issued by the
proper office, in this case the MRO.

Vacant Position

An appointment can be made only to a vacant office. An appointment cannot be made to an occupied office.
The incumbent must first be legally removed, or his appointment validly terminated, before one could be
validly installed to succeed him.57
chan roble slaw

To illustrate: in Lacson v. Romero,58 Antonio Lacson (Lacson) occupied the post of provincial fiscal of Negros
Oriental. He was later nominated and confirmed as provincial fiscal of Tarlac. The President nominated and
the Commission on Appointments confirmed Honorio Romero (Romero) as provincial fiscal of Negros Oriental
as Lacsons replacement. Romero took his oath of office, but Lacson neither accepted the appointment nor
assumed office as provincial fiscal of Tarlac. This Court ruled that Lacson remained as provincial fiscal of
Negros Oriental, having declined the appointment as provincial fiscal of Tarlac. There was no vacancy to
which Romero could be legally appointed; hence, Romeros appointment as provincial fiscal of Negros
Oriental vice Lacson was invalid.
The appointment to a government post like that of provincial fiscal to be complete involves several steps.
First, comes the nomination by the President. Then to make that nomination valid and permanent, the
Commission on Appointments of the Legislature has to confirm said nomination. The last step is the
acceptance thereof by the appointee by his assumption of office. The first two steps, nomination and
confirmation, constitute a mere offer of a post. They are acts of the Executive and Legislative departments
of the Government. But the last necessary step to make the appointment complete and effective rests solely
with the appointee himself. He may or he may not accept the appointment or nomination. As held in the
case of Borromeo vs. Mariano, 41 Phil. 327, there is no power in this country which can compel a man to
accept an office. Consequently, since Lacson has declined to accept his appointment as provincial fiscal of
Tarlac and no one can compel him to do so, then he continues as provincial fiscal of Negros Oriental and no
vacancy in said office was created, unless Lacson had been lawfully removed as such fiscal of Negros
Oriental.59

Paragraph (b), Section 1 of EO 2 considered as midnight appointments those appointments to offices that
will only be vacant on or after 11 March 2010 even though the appointments are made prior to 11 March
2010. EO 2 remained faithful to the intent of Section 15, Article VII of the 1987 Constitution: the outgoing
President is prevented from continuing to rule the country indirectly after the end of his term.

Acceptance by the Qualified Appointee

Acceptance is indispensable to complete an appointment. Assuming office and taking the oath amount to
acceptance of the appointment.60 An oath of office is a qualifying requirement for a public office, a
prerequisite to the full investiture of the office.61
chan roble slaw

Javier v. Reyes62 is instructive in showing how acceptance is indispensable to complete an appointment. On

7 November 1967, petitioner Isidro M. Javier (Javier) was appointed by then Mayor Victorino B. Aldaba as
the Chief of Police of Malolos, Bulacan. The Municipal Council confirmed and approved Javiers appointment
on the same date. Javier took his oath of office on 8 November 1967, and subsequently discharged the
rights, prerogatives, and duties of the office. On 3 January 1968, while the approval of Javiers appointment
was pending with the CSC, respondent Purificacion C. Reyes (Reyes), as the new mayor of Malolos, sent to
the CSC a letter to recall Javiers appointment. Reyes also designated Police Lt. Romualdo F. Clemente as
Officer-in-Charge of the police department. The CSC approved Javiers appointment as permanent on 2 May
1968, and even directed Reyes to reinstate Javier. Reyes, on the other hand, pointed to the appointment of
Bayani Bernardo as Chief of Police of Malolos, Bulacan on 4 September 1967. This Court ruled that Javiers
appointment prevailed over that of Bernardo. It cannot be said that Bernardo accepted his appointment
because he never assumed office or took his oath.

Excluding the act of acceptance from the appointment process leads us to the very evil which we seek to
avoid (i.e., antedating of appointments). Excluding the act of acceptance will only provide more occasions to
honor the Constitutional provision in the breach. The inclusion of acceptance by the appointee as an integral
part of the entire appointment process prevents the abuse of the Presidential power to appoint. It is
relatively easy to antedate appointment papers and make it appear that they were issued prior to the
appointment ban, but it is more difficult to simulate the entire appointment process up until acceptance by
the appointee.

Petitioners have failed to show compliance with all four elements of a valid appointment. They cannot prove
with certainty that their appointment papers were transmitted before the appointment ban took effect. On
the other hand, petitioners admit that they took their oaths of office during the appointment ban.

Petitioners have failed to raise any valid ground for the Court to declare EO 2, or any part of it,
unconstitutional. Consequently, EO 2 remains valid and constitutional.

WHEREFORE, the petitions in G.R. Nos. 203372, 206290, and 212030 are DENIED, and the petition in
G.R. No. 209138 is DISMISSED. The appointments of petitioners Atty. Cheloy E. Velicaria-Garafil (G.R. No.
203372), Atty. Dindo G. Venturanza (G.R. No. 206290), Irma A. Villanueva, and Francisca B. Rosquita (G.R.
No. 209138), and Atty. Eddie U. Tamondong (G.R. No. 212030) are declared VOID. We DECLARE that
Executive Order No. 2 dated 30 July 2010 is VALID and CONSTITUTIONAL.

SO ORDERED. cralawlawlibra ry

Sereno, C. J., Velasco, Jr., Del Castillo, Villarama, Jr., Reyes, and Perlas-Bernabe, JJ., concur.
Leonardo-De Castro, J., I join the dissent of Justice Brion.
Brion, J., see Concurring and Dissenting Opinion.
Peralta, J., I join J. Brion's dissent and on official leave.
Bersamin, J., I join the dissent of J. Brion.
Perez, J., I join J. Brion in his dissent.
Mendoza, J., I join the dissent of J. Brion.
Leonen, J., on official leave.
Jardeleza, J., no part.

Endnotes:

1
Under Rule 45 of the Rules of Court.

2
Rollo (G.R. No. 203372), pp. 45-67. Penned by Associate Justice Noel G. Tijam, with Associate Justices
Romeo F. Barza and Edwin D. Sorongon concurring.

3
Under Rule 45 of the Rules of Court.

4
Rollo (G.R. No. 206290), pp. 10-40. Penned by Associate Justice Noel G. Tijam, with Associate Justices
Romeo F. Barza and Edwin D. Sorongon concurring.
5
Id. at 42-47. Penned by Associate Justice Noel G. Tijam, with Associate Justices Romeo F. Barza and
Edwin D. Sorongon concurring.

6
Under Rule 65 of the Rules of Court.

7
Rollo (G.R. No. 209138), pp. 38-60. Penned by Associate Justice Noel G. Tijam, with Associate Justices
Romeo F. Barza and Edwin D. Sorongon concurring.

8
The following cases were consolidated in the CA: CA-G.R. SP No. 123662 (Atty. Velicaria- Garafil), CA-G.R.
SP No. 123663 (Bai Omera D. Dianalan-Lucman), and CA-G.R. SP No. 123664 (Atty. Tamondong).

9
Under Rule 45 of the Rules of Court.

Rollo (G.R. No. 212030), pp. 30-53. Penned by Associate Justice Noel G. Tijam, with Associate Justices
10

Romeo F. Barza and Edwin D. Sorongon concurring.

11
Id. at 59-63. Penned by Associate Justice Noel G. Tijam, with Associate Justices Romeo F. Barza and
Edwin D. Sorongon concurring.

12
In this Resolution, the following were listed as petitioners-intervenors: Atty. Jose Sonny G. Matula,
member of the Social Security Commission and National Vice President of Federation of Free Workers;
Ronnie M. Nismal, Alvin R. Gonzales, Jomel B. General, Alfredo E. Maranan, Exequiel V. Bacarro, and Juanito
S. Facundo, Board Members, union officers, or members of the Federation of Free Workers.

13
Rollo (G.R. No. 203372), p. 99.

14
Rollo (G.R. No. 206290), p. 115.

15
Id. at 121.

16
Id. at 118.

17
Id. at 119.

18
Id. at 120.

19
Rollo (G.R. No. 209138), p. 25.

20
Id. at 26.

21
Rollo (G.R. No. 212030), p. 72.

22
Id. at 13.

23
Id. at 73.

24
Id. at 13.

http://www.gov.ph/2010/07/30/executive-order-no-2/ (accessed 15 June 2015). (Boldfacing and

25

underscoring supplied)

26
Rollo (G.R. No. 203372), pp. 19-21.

27
Rollo (G.R. No. 206290), pp. 55-57.

28
G.R. No. 192991 was titled Atty. Jose Arturo Cagampang De Castro, J.D., in his capacity as Assistant
Secretary, Department of Justice v. Office of the President, represented by Executive Secretary Paquito N.
Ochoa, Jr.

29
Rollo (G.R. No. 209138), p. 5.

30
Rollo (G.R. No. 212030), p. 13.

31
G.R. No. 192987, Eddie U. Tamondong v. Executive Secretary Paquito N. Ochoa, Jr.; G.R. No.
193327, Atty. Cheloy E. Velicaria-Garafil v. Office of the President, represented by Hon. Executive Secretary
Paquito N. Ochoa, Jr., and Solicitor General Jose Anselmo L. Cadiz; G.R. No. 193519, Bai Omera D.
Dianalan-Lucman v. Executive Secretary Paquito N. Ochoa, Jr.; G.R. No. 193867, Atty. Dindo G. Venturanza,
as City Prosecutor of Quezon City v. Office of the President, represented by President of the Republic of the
Philippines Benigno Simeon C. Aquino, Executive Secretary Paquito N. Ochoa, Jr., et al.; G.R. No.
194135, Manuel D. Andal v. Paquito N. Ochoa, Jr., as Executive Secretary amd Junio M. Ragrario; G.R. No.
194398, Atty. Charito Planas v. Executive Secretary Paquito N. Ochoa, Jr., Tourism Secretary Alberto A. Lim
and Atty. Apolonio B. Anota, Jr.

32
Intervenors were: Dr. Ronald L. Adamat, in his capacity as Commissioner, National Commission on
Indigenous Peoples; Angelita De Jesus-Cruz, in her capacity as Director, Subic Bay Metropolitan Authority;
Atty. Jose Sonny G. Matula, Member of the Social Security Commission National Vice President of
Federation of Free Workers; Ronnie M. Nismal, Alvin R. Gonzales, Jomel B. General, Alfredo E. Maranan,
Exequiel V. Bacarro, and Juanito S. Facundo, as Board Members, union officers or members of the
Federation of Free Workers; Atty. Noel K. Felongco in his capacity as Commissioner of the National
Commission on Indigenous Peoples; Irma A. Villanueva, in her capacity as Administrator for Visayas, Board
of Administrators of the Cooperative Development Authority; and Francisca B. Rosquita, in her capacity as
Commissioner of the National Commission on Indigenous Peoples.

Rollo (G.R. No. 203372), p. 80.

33

34
544 Phil. 525, 531 (2007), citing Davide v. Roces, 160-A Phil. 430 (1975).

Rollo (G.R. No. 203372) , p. 66.

35

36
Supra note 34.

Rollo (G.R. No. 206290), p. 39.

37

Rollo (G.R. No. 209138), p. 60.

38

Rollo (G.R. No. 212030), p. 52.

39

40
See Rule 45, Section 2. Villanueva and Rosquita only had until 2 October 2013 to file their appeal. They
filed their petition on 7 October 2013.

41
Dissenting Opinion of Justice Arturo Brion, p. 43.

42
No. L-19313, 19 January 1962, 4 SCRA 1.

43
Id. at 10-11.

http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/24/51487 (accessed 15 June 2015).

44

45
Dissent, pp. 26-27, citing Bermudez v. Executive Secretary Torres, 370 Phil. 769, 776 (1999) citing Aparri
v. Court of Appeals, 212 Phil. 215, 222-223 (1984).

46
Dissent, p. 37.

47
Separate Concurring Opinion of Justice Antonio T. Carpio in Re: Seniority Among the Four (4) Most Recent
Appointments to the Position of Associate Justices of the Court of Appeals, 646 Phil. 1, 17 (2010),
citing Lacson v. Romero, 84 Phil. 740 (1949); Javier v. Reyes, 252 Phil. 369 (1989); Garces v. Court of
Appeals, 328 Phil. 403 (1996); and Bermudez v. Executive Secretary Torres, 370 Phil. 769 (1999).

48
See Section 16, Chapter 5, Title I, Book III, Executive Order No. 292, Administrative Code of 1987.

49
See Bermudez v. Executive Secretary Torres, 370 Phil. 769 (1999).

Flores v. Drilon, G.R. No. 104732, 22 June 1993, 223 SCRA 568, 579-580. Citations omitted.
50

Rollo (G.R. No. 206290), pp. 526-527.

51

52
Id. at 527.

53
Id. at 455-471.

54
Id. at 460-466.

55
Judicial Affidavit of Ellenita G. Gatbunton, Division Chief of File Maintenance and Retrieval Division of the
Malacaang Records Office. Id. at 410-412, 416-417.

56
See Marbury v. Madison, 5 U.S. 137 (1803).

57
See Garces v. Court of Appeals, 328 Phil. 403 (1996).

58
84 Phil. 740 (1949).

59
Id. at 745.

60
See Javier v. Reyes, 252 Phil. 369 (1989). See also Mitra v. Subido, 128 Phil. 128 (1967).

61
Chavez v. Ronidel, 607 Phil. 76 (2009), citing Mendoza v. Laxina, Sr., 453 Phil. 1013, 1026-1027
(2003); Lecaroz v. Sandiganbayan, 364 Phil. 890, 904 (1999).

62
252 Phil. 369 (1989).
 CONCURRING AND DISSENTING OPINION

BRION, J.:

I was the original Member-in-Charge assigned to this case and in this capacity, submitted a draft Opinion to
the Court, which draft the Court did not approve in an 8 to 6 vote in favor of the present ponente.

Due to the close 8-6 vote, I find it appropriate to simply reiterate in this Concurring and Dissenting Opinion
the legal arguments and positions that I had originally submitted to the Court en banc for its consideration.

The present consolidated cases stemmed from the petitioners presidential appointments that were revoked
pursuant to Executive Order (E.O.) No. 2, entitled Recalling, Withdrawing and Revoking Appointments
Issued by the Previous Administration in Violation of the Constitutional Ban on Midnight Appointments and
for Other Purposes, issued by President Benigno S. Aquino, III.

Directly at issue, as framed and presented by the petitioners and as counter-argued by the respondents, is
the validity of Section 1(a) of EO No. 2 in relation with the constitutional ban on midnight appointments
under Section 15, Article VII of the Constitution.

I concur with the ponencias findings that the petitions for review on certiorari should be denied and the
petition for certiorari should be dismissed as I will discuss below.

I object, however, to the ponencias arguments and conclusions to support the conclusion that the phrase,
including all appointments bearing dates prior to March 11, 2010 where the appointee has accepted,
or taken his oath, or assumed public office on or after March 11, 2010 in Section 1(a) of E.O. No. 2,
is valid. In my view, Executive Order No. 2, by incorporating this phrase, should be declared partially
unconstitutional for unduly expanding the scope of the prohibition on presidential appointments
under Section 15, Article VII of the Constitution.

This constitutional provision provides that: [t]wo 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.

According to the ponencia, the term appointments contemplated in Section 15, Article VII pertains
to appointment as a process i.e., from the signing of the appointment, to its issuance and to the
appointees acceptance rather than being confined solely to the Presidents exercise of his
appointing power or to the acts that are under the Presidents control in the totality of the
appointment process.

Under this latter view, only the signing of the appointment and its issuance should be covered by the
constitutional ban; when these presidential actions are completed before the ban sets in, then the appointee
can take his oath and assume office even after the ban has set in.

The plain textual language of Section 15, Article VII is clear and requires no interpretation of the term
appointments. The prohibition under this constitutional provision pertains to the Presidents
discretionary executive act of determining who should occupy a given vacant position; it does not cover
other actions in the appointment process, specifically, the discretionary determination of whether or not to
accept the position which belongs to the appointee.

In fact, Section 15, Article VII of the 1987 Constitution is directed only against an outgoing
President and against no other. By providing that the President shall not make appointments within the
specified period, the Constitution could not have barred the President from doing acts that are not within his
power to accomplish as appointing authority, such as the acts required or expected of the appointee.
Notably, the appointees acts are not even alluded to or mentioned at all in this constitutional provision.

By interpreting the term appointments as a process, the ponencia effectively undertook judicial legislation
by expanding the limitation on the Presidents appointment power under Section 15, Article VII; it applied
the concept of appointment as a process despite the otherwise clear and unambiguous reference of this
constitutional provision to appointment as an executive act.

For these reasons, I maintain my position that for an appointment to be valid under Section 15, Article VII,
the appointment papers must have already been signed, issued or released prior to the constitutional
ban, addressed to the head of the office concerned or the appointee himself. Once this is accomplished, the
appointees acceptance through an oath, assumption of office, or any positive act need not be done before
the constitutional ban.

Thus, the phrase in Section 1(a) of E.O. No. 2 that states including all appointments bearing dates prior to
March 11, 2010 where the appointee has accepted, or taken his oath, or assumed public office on or after
March 11, 2010 should be held unconstitutional as it unduly expands the scope of the prohibition
on presidential appointments under Section 15, Article VII of the Constitution.

I elaborate on all these arguments in the following discussions.

THE CASES

Before the Court are three petitions for review on certiorari1 and one petition for certiorari2 that have been
consolidated because they raise a common question of law, i.e., the validity of the Presidents issuance of
E.O. No. 2 dated July 30, 2010.

The petitioners seek the reversal of the Court of Appeals decision3 that separately dismissed their petitions
and upheld the constitutionality of E.O. No. 2.

FACTUAL ANTECEDENTS

A. The Petitions

a. G.R. No. 203372

On February 14, 2010, Atty. Cheloy E. Velicaria-Garafil (Garafil), then a prosecutor at the Department of
Justice (DOJ), applied for a lawyer position in the Office of the Solicitor General (OSG).4 In an appointment
letter dated March 5, 2010, President Gloria Macapagal-Arroyo (PGMA) appointed Garafil to the position
of State Solicitor II at the OSG.5 chanroble slaw

Although there was a transmittal letter from the Office of the Executive Secretary (OES) to the DOJ,6the
letter failed to state when it (together with the appointment paper) was actually sent to (and received by)
the DOJ.7 chanroble slaw

On March 22, 2010, Garafil took her oath of office. On April 6, 2010, she assumed office after winding
up her work and official business with the DOJ.8 chanrobles law

For unknown reasons, Garafils appointment paper was not officially released through the Malacaang
Records Office (MRO). The OES merely turned over Garafils appointment papers to the MRO on May 13,
2010.9 chan roble slaw

b. G.R. No. 206290

Atty. Dindo Venturanza (Venturanza) rose from the ranks at the DOJ, eventually becoming a Prosecutor III
on July 26, 2005. After PGMA appointed then Quezon City Prosecutor Claro Arellano as the new Prosecutor
General, Venturanza applied for the position that Claro Arellano vacated.10 chanrob leslaw

As in the case of Garafil, PGMA issued Venturanza an appointment letter dated February 23, 201011as
City Prosecutor of Quezon City. Upon verbal advice of his promotion from the Malacaang, Venturanza
immediately secured the necessary clearances.12 chanroble slaw

On March 12, 2010, the OES forwarded Venturanzas original appointment letter and transmittal letter
dated March 9, 2010, to the MRO. Also on March 12, 2010, then DOJ Secretary Alberto Agra officially
received Venturanzas appointment paper and transmittal letter from the MRO.13 On March 15, 2010,
Venturanza took his oath and assumed his duties as City Prosecutor of Quezon City.14 chan robles law

c. G.R. No. 209138

PGMA issued Irma Villanueva (Villanueva) an appointment letter dated March 3, 2010,15 as
Administrator for Visayas of the Board of Administrators of the Cooperative Development Authority. PGMA
also issued Francisca Rosquita (Rosquita) an appointment letter dated March 5, 201016 as Commissioner
of the National Commission on Indigenous Peoples. Villanueva and Rosquita took their oaths of office
on April 13, 2010, and March 18, 2010, respectively.17 chan roble slaw

Like Garafil, the appointment papers and transmittal letters of Villanueva and Rosquita (both dated March 8,
201018) were not coursed through, but were merely turned over to the MRO later on May 4, 2010, and May
13, 2010, respectively.19 c hanrobles law

d. G. R. No. 212030

Atty. Eddie U. Tamondong (Tamondong) served as acting director of the Subic Bay Metropolitan Authority
(SBMA) starting January 16, 2008.20 After more than two years of continuous (but acting) service in this
position, PGMA issued him an appointment letter dated March 1, 2010,21 as a regular member of the
SBMAs board of directors.

On March 25, 2010, Tamondong received his appointment letter through the office of the SBMA Chairman.
On the same date, he took his oath of office before SBMA Chairman Feliciano G. Salonga and assumed his
SBMA post, this time in a regular capacity.22 chanroble slaw

As had happened to the other petitioners, Tamondongs letter of appointment was not coursed through the
MRO. The MRO only received the letter on May 6, 2010, more than two months after his appointment.23 chan roble slaw
B. Issuance of E.O. No. 2

On June 30, 2010, President Benigno S. Aquino III took his oath of office as the 15th President of the
Republic of the Philippines. On August 4, 2010, Malacaang issued E.O. No. 2 whose salient portions
read:chanRob lesvi rtual Lawli bra ry

SECTION 1. Midnight Appointments Defined. The following appointments made by the former President
and other appointing authorities in departments, agencies, offices, and instrumentalities, including
government-owned or -controlled corporations, shall be considered as midnight appointments: ChanRobles Vi rtualaw lib rary

(a) Those made on or after March 11, 2010, including all appointments
bearing dates prior to March 11, 2010 where the appointee has
accepted, or taken his oath, or assumed public office on or after
March 11, 2010, except temporary appointments in the executive
positions when continued vacancies will prejudice public service or
endanger public safety as may be determined by the appointing
authority.
(b) Those made prior to March 11, 2010, but to take effect after said date or
appointments to office that would be vacant only after March 11, 2010.
(c) Appointments and promotions made during the period of 45 days prior to
the May 10, 2010 elections in violation of Section 261 of the Omnibus
Election Code.
SECTION 2. Recall, Withdraw, and Revocation of Midnight Appointments. Midnight appointments, as
defined under Section 1, are hereby recalled, withdrawn, and revoked. The positions covered or
otherwise affected are hereby declared vacant.

SECTION 3. Temporary designations. When necessary to maintain efficiency in public service and ensure
the continuity of government operations, the Executive Secretary may designate an officer-in-charge (OIC)
to perform the duties and discharge the responsibilities of any of those whose appointment has been
recalled, until the replacement of the OIC has been appointed and qualified. cha nrob lesvi rtua llawlib ra ry

C. Subsequent Events

The present predicament of Garafil, Venturanza, Villanueva, Rosquita and Tamondong (petitioners) started
with the issuance of E.O. No. 2.

a. The present petitioners

i. G.R. No. 203372 (Atty. Garafil)

Then Solicitor General, Anselmo Cadiz, informed all OSG officers/employees affected by E.O. No. 2 that their
appointments had been recalled effective August 7, 2010. Since Garafils appointment fell within the
definition of midnight appointment under E.O. No. 2, Garafil was removed from the OSG. On August 9,
2010, upon reporting for work, she was apprised of the revocation of her appointment as State Solicitor II
due to the implementation of E.O. No. 2.24 chanrob leslaw

ii. G.R. No. 206290 (Atty. Venturanza)

On September 1, 2010, Venturanza received a copy of Department Order (D.O.) No. 566 issued by DOJ
Secretary Leila de Lima. D.O. No. 566 designated Senior Deputy State Prosecutor Richard Anthony Fadullon
(Fadullon) as Officer in Charge in the Office of the City Prosecutor, Quezon City. On September 15, 2010,
Venturanza wrote separate letters (i) to DOJ Sec. de Lima protesting the designation of Fadullon, and (ii) to
President Aquino seeking the re-affirmation of his promotion as City Prosecutor.

DOJ Sec. de Lima informed Veturanza that he is covered by E.O. No. 2; thus, he should not further perform
his functions as Quezon City Prosecutor.25 Records fail to show if the President acted at all on Veturanzas
letter.

iii. G.R. No. 209138 (Villanueva and Rosquita)

Rosquitas appointment was recalled through the October 1, 2010 memorandum of Executive Secretary
Paquito Ochoa.26 Villanuevas and Rosquitas salaries had also been withheld starting August 1, 2010.27 chanrobleslaw

iv. G.R. No. 212030 (Atty. Tamondong)

In view of the mounting public interest in PGMAs alleged midnight appointments, Tamondong took another
oath of office on July 6, 2010, as an added precaution. Notwithstanding this move, Tamondong was
removed from his position as a regular member of the SBMA board of directors effective July 30, 2010.28 cha nrob leslaw

b. The earlier petitions before the Court

The petitioners and several others filed separate petitions29 and motions for intervention30 before the Court
assailing the constitutionality of E.O. No. 2. In a resolution dated January 31, 2012, the Court defined the
issues raised in these petitions as follows: chanRoblesv irt ual Lawlib rary

1. Whether the appointment of the petitioners and intervenors were midnight appointments within the
coverage of EO 2;

2. Whether all midnight appointments, including those of the petitioners and intervenors, were invalid;

3. Whether the appointments of the petitioners and intervenors were made with undue haste, hurried
maneuvers, for partisan reasons, and not in accordance with good faith;

4. Whether the appointments of the petitioners and intervenors were irregularly made; and

5. Whether EO 2 violated the Civil Service Rules on Appointment.31

Because the issues raised will require the assessment of different factual circumstances attendant to each
of the appointments made,32 the Court decided to refer the petitions to the Court of Appeals (CA) to
resolve all pending matters and applications, and to decide the issues as if these cases have been originally
commenced33 with the CA.34 chan robles law

CA RULING

In four separate decisions, the CA upheld the constitutionality of E.O. No. 2, ruling that the E.O. is
consistent with the rationale of Section 15, Article VII of preventing the outgoing President from abusing his
appointment prerogative and allowing the incoming President to appoint the people who will execute his
policies. To give meaning to this intent, the CA departed from the literal wording of the provision by
construing the term appointment as a process that includes the appointees acceptance of the
appointment.

The CA likewise found no violation of the petitioners right to due process since no one has a vested right to
public office.35 Although the CA upheld the constitutionality of E.O. No. 2 and the application of its provisions
to the petitioners, it expressed dismay over the sweeping and summary invalidation of all the appointments
made by the former administration without regard to the circumstances36 attendant to each case.

Citing Sales v. Carreon,37 the CA ruled that not all midnight appointments are invalid; the nature, character,
and merits of each individual appointment must be taken into account.

The CA, however, doubted its authority to evaluate the petitioners appointments (particularly their
qualifications and merits) and referred the matter to the Office of the President to determine whether to
uphold the petitioners appointments.

The petitioners manifested their objections to the CA rulings through the present petitions.

THE PETITIONS

The petitioners raised identical arguments in their bid to nullify E.O. No. 2 and to uphold their respective
appointments.38 These arguments can be summarized as follows: ChanRoble sVirt ualawli bra ry

First, Section 15, Article VII only prohibits the President from making an appointment within the prohibited
period.39 According to Garafil, an appointment is already complete when the commission is signed by the
President, sealed if necessary, and is ready for delivery.40 Venturanza, Villanueva and Rosquita argue a step
further by insisting that their appointments were perfected,41 or became effective,42 upon their
issuance,43 which they equate to the dates appearing on their respective appointment papers.44 Since their
appointments bear dates prior to the two-month ban, they claim that they are not midnight
appointees.45 Additionally, Tamondong asserts that since his appointment was only a continuation of his
present position, his acceptance and assumption of office also coincided with the date of his appointment
letter.46c hanro bles law

The petitioners uniformly assert that the appointees acts, even if made within the prohibited period, do not
render a completed or perfected appointment invalid. These subsequent acts are only necessary to make
the appointment effective; and the effectivity of an appointment is not material under the constitutional
provision since these acts are already beyond the Presidents control.47 chan robles law

Garafil moreover questions the Presidents power to interpret Section 15, Article VII of the 1987
Constitution. She claims that the President has no power to interpret or clarify the meaning of the
Constitution.48 chanroble slaw

Second, in making a referral to the Office of the President, the petitioners posit that the CA failed to
discharge its duty to resolve the issues submitted under the Courts referral resolution.49 The petitioners
likewise argue that not all midnight appointments are invalid,50 because they must be adjudged on the
basis of the nature, character, and the merits of the appointment. Thus, the petitioners aver that
notwithstanding their coverage under E.O. No. 2, proof that their appointments were made to buy votes, for
partisan reasons, or in bad faith must first be adduced to nullify their appointments.51 chan roble slaw
Third, E.O. No. 2 violated the petitioners right to security of tenure.52 chanro bleslaw

THE COMMENT

The respondents, represented by the OSG, pray for the dismissal of the petitions.

The respondents dispute the presumption of regularity that the petitioners appointments enjoy.53 They
claim that Garafils and Venturanzas appointments, in particular, were irregularly made. Garafils (including
Villanuevas, Rosquitas, and Tamondongs) appointment and transmittal papers did not pass through the
MRO in accordance with the usual procedures; Venturanzas papers, while coursed through the MRO, were
released by the OES only after the appointment ban had set in.54 chan robles law

The respondents further believe that appointment under Section 15, Article VII should be
construed as a process instead of simply an act. In imposing a ban on appointments, the
Constitution envisions a complete and effective appointment, which means that the appointee must have
accepted the appointment (by taking the oath) and assumed office before the ban took effect.55 chanro bleslaw

To the respondents, to construe the word appointment in Section 15, Article VII simply as an act of the
President would defeat the purpose of the provision because the President can easily circumvent the
prohibition by simply antedating the appointment.56 Since the petitioners took their oath and assumed office
when the constitutional ban on appointment had already set in, they are considered midnight appointees
whose appointments are intrinsically invalid for having been made in violation of the constitutional
prohibition.

Lastly, petitioners cannot claim any violation of their right to due process or to security of tenure simply
because their appointments were invalid.57 chan roble slaw

ISSUE

The twin issues before us are whether the President has the power to issue E.O. No. 2 that defined the
midnight appointments contemplated under Article VII, Section 15 of the 1987 Constitution; and if so,
whether E.O. No. 2s definition of midnight appointment is constitutional.

A finding that E.O. No. 2s definition of midnight appointment is constitutional (thus rendering the
petitioners appointments invalid) would render any ruling on the petitioners security of tenure argument
completely unnecessary. An appointment in violation of the Constitution and/or the law is void and no right
to security of tenure attaches.58chanro bles law

MY CONCURRING AND DISSENTING OPINION

I vote to partially grant the petitions.

Read together, the petitions ask the Court to grant the following reliefs: first, the declaration of the
unconstitutionality of E.O. No. 2 and the reversal of the assailed CA rulings; second, the declaration of the
validity of their respective appointments and their reinstatement to the positions they held prior to the
issuance of E.O. No. 2; and, third (as prayed for by petitioners Villanueva and Rosquita) if the term of their
appointments had already expired, the grant of back wages with interest.

I vote to only partially grant the petitions as I find that only a part of E.O. No.
2 is unconstitutional, i.e., insofar as it unduly expands the scope of midnight appointments under
Section 15, Article VII of the 1987 Constitution.

I find the rest of the provisions of E.O. No. 2, particularly, Sections 1 (b) and (c) in relation to Section 2, to
be valid; the presumption of constitutionality remains since the petitioners did not squarely question the
constitutionality of these provisions before the Court. In fact, even if the issue had been raised, none of the
petitioners showed that they have the legal standing to question their validity since the petitioners are
admittedly appointees of the previous President and not mere appointees of a local chief executive. The
constitutionality of these provisions would have to await its resolution in a proper case.

Despite the partial invalidity of E.O. No. 2, I also find that the petitioners claims for the validity of their
appointments are unmeritorious, measured under the terms of Section 15, Article VII of the Constitution and
the valid portions of E.O. No. 2. Specifically, while I vote to grant part of the first relief the petitioners
prayed for, I vote to deny their second and third requested reliefs.

A. Preliminary consideration

At the outset, I note that petitioners Villanueva and Rosquita did not appeal the CAs ruling under Rule 45
of the Rules of Court, but instead filed a petition for certiorari under Rule 65 of these Rules. This
procedural error warrants an outright dismissal of their petition.

For the remedy of certiorari under Rule 65 to lie, an appeal or any plain, speedy, and adequate remedy
should not be available to the aggrieved party. If appeal is available, certiorari will not prosper even if the
cited ground is grave abuse of discretion.59 cha nro bleslaw

In the present case, the remedy of appeal by certiorari under Rule 45 of the Rules of Court was clearly
available to petitioners Villanueva and Rosquita since the CA decision was a final order that completely
disposed of the proceeding before it.60 The CA, in other words, fully complied with this Courts January 31,
2012 Resolution to resolve all pending matters and applications, and to decide the issues as if these
[present] cases have been originally commenced [in the CA].61 chanrob leslaw

Even if I were to consider the Rosquita/Villanueva petition to be a Rule 45 petition for review on certiorari, I
would still maintain its denial because it was filed out of time. Under Section 2, Rule 45, the aggrieved party
has a period of only fifteen (15) days from notice of the judgment or final order or resolution appealed from
within which to appeal. Based on this rule, their petition should have been filed on October 2, 2013, not on
October 7, 2013 or 5 calendars days after the period allowed for appeal.

Notably, not even a hint of explanation accompanied this tardy appeal.62 I am thus forced to conclude that
the petition was filed under Rule 65 with the intent to make it a substitute for a Rule 45 appeal that had
been lost for lapse of the period to file an appeal. A special civil action for certiorari is a limited form of
review and is a last remedy allowed under strict requirements that Rosquita/Villanueva failed to
observe.63 To reiterate, the Court cannot allow a petition for certiorari to prosper when a party could appeal
the judgment, but instead used a petition for certiorari in lieu of his appeal.64 chan roble slaw

Moreover, read as a Rule 65 petition, Rosquitas and Villanuevas failure, without any valid explanation, to
file a motion for reconsideration from the CAs ruling warrants the outright dismissal of their petition. The
prior filing of a motion for reconsideration is an indispensable condition before a certiorari petition can be
used.65 This failure is an added lapse that contributes to my resolve to recognize the petitions deficiencies
to the fullest.

Of course, it is within this Courts power to recognize, and the Court has in fact recognized exceptions to
technical and procedural deficiencies based on the discretion given us by the Constitution under our
constitutional rule-making authority.66 Under the proper conditions, the Court should permit the full and
exhaustive ventilation of the parties arguments and positions despite a petitions technical deficiencies.

This liberal policy, however, is an exception and has its limits. In those rare cases when the Court
applied the exception, there always existed a clear need to prevent the commission of a grave
injustice.67 This critical element unfortunately is not genuinely reflected in Rosquita and Villanuevas
respective petitions.

Rosquita and Villanueva must be reminded that the present case is no longer an original suit recognized
under our January 31, 2012 Resolution, but an appeal from the CAs adverse ruling that was rendered after
the parties were given full opportunity to be heard. Since we are dealing here with an appealed case,
compliance with the required period for appeal is imperative.68 chan robles law

At any rate, even if we brush aside the procedural deficiencies, I see no legal and factual basis for its grant,
particularly with respect to its pleas to invalidate their removal from office and to restore them to their
previous positions. For an orderly presentation of our reasons, I defer my discussion on this point and first
address Garafils preliminary constitutional argument questioning the Presidents authority to issue E.O. No.
2.

B. The President has the power of constitutional interpretation

Garafil posits that the President has no power to interpret the Constitution, particularly Section 15, Article
VII of the 1987 Constitution.

I find this position to be legally erroneous.

The Constitution, admittedly, does not contain an express definition of the executive power reposed in the
Chief Executive;69 it merely contains an enumeration of the powers the President can exercise. Broadly
understood,70 however, executive power is the power to enforce and administer the laws of the land;71 it is
the power to carry the laws into practical operation and to enforce their due observance.72 chanro bles law

As the countrys Chief Executive, the President represents the whole government; he carries the obligation
to ensure the enforcement of all laws by the officials and employees of his department. This characterization
of executive power is plainly evident from the presidential oath of office which states: chanRoble svirtual Lawli bra ry

I do solemnly swear [or affirm] that I will faithfully and conscientiously fulfill my duties as President [or
Vice-President or Acting President] of the Philippines, preserve and defend its Constitution, execute its
laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God. [In case
of affirmation, last sentence will be omitted.]73
To fulfill the oath to preserve and defend [the] Constitution, [and] execute its laws, the President, in
particular, and the Executive branch, in general, necessarily must interpret the provisions of the Constitution
or of the particular law they are enforcing.74 This power of legal interpretation uniquely arises from the legal
principle that the grant of executive power to the President is a grant of all powers necessary for the
exercise of the power expressly given.75 chan roble slaw

The scope of the presidential/executive interpretative power, however broadly it may be interpreted, has to
be read together with the principle of checks and balances. In other words, the executives broad
interpretative power does not signify that he possesses unfettered authority to exercise an independent
power of legal interpretation. The scope of the Presidents power of executive interpretation is at
its broadest when exercised clearly within its own sphere of power and diminishes when it involves the
power of the other branches of the government.76 The degrees of presidential legal interpretation thus
fluctuates from the very broad to the very narrow.

To place my discussion in proper context and in simpler terms, when the President interprets a constitutional
provision that grants him full discretionary authority to act on a matter, the Court generally defers to the
Presidents judgment on how the constitutional provision is to be interpreted and applied.77 This is true in
ordinary legal situations where a government agency in the executive, tasked to implement a particular law,
is given the first opportunity to interpret and apply it even before a controversy as regards its
implementation reaches the courts.

In fact, the Executive branch is constantly engaged in legal interpretation in performing its multifarious
duties. In instances when the executive interpretation finally reaches the judiciary, the courts may adopt a
deferential attitude towards the construction placed on the statute by the executive officials charged with its
execution. This reality is what we now know as the doctrine of contemporaneous construction.78 chanrobles law

In other words, even in the Courts task of constitutional interpretation, it does not simply disregard the
doctrine of contemporaneous construction and the executive power that it supports, since executive
interpretation is a practical and inevitable premise in the execution of laws.79 This recognition is, of course,
constantly subject to the Courts own power of judicial review to ensure that the executives interpretation is
consistent with the letter and spirit of the law and the Constitution.80 chanrobles law

This understanding of the limits of executive interpretation is further qualified in a situation where the Court
has already previously ruled on a particular legal issue affecting the implementation of laws. The Courts
ruling is not only binding on the lower courts under the principle of stare decisis,81 but on the two co-equal
branches of government as well,82 in keeping with the doctrine of separation of powers.83Judicial review and
the interpretation of our laws are powers peculiarly vested by the Constitution in the courts, which powers,
the two other branches must respect.84 chan roble slaw

Garafil misconstrued these legal parameters as well as the nature of executive interpretation when she took
her positions in the present case. She should have recognized that the Presidents power of executive
interpretation is even expressly recognized by law. The Administrative Code provides: chanRoble svirtual Lawlib ra ry

Chapter 2 - Ordinance Power

Section 2. Executive Orders. Acts of the President providing for rules of a general or permanent
character in implementation or execution of constitutional or statutory powers shall be promulgated
in executive orders. (emphasis supplied)
As Section 15, Article VII of the Constitution has not been previously interpreted by the Court,85 the present
case affords us the chance to do so under the Courts power and duty of judicial review to determine the
constitutionality of the Executives interpretation of this provision.86
c hanro bles law

C. Midnight appointments:

a. The case of Aytona v. Castillo and subsequent cases

Section 15, Article VII of the 1987 Constitution traces its jurisprudential roots from the 1962 case
of Aytona v. Castillo.87 As both parties rely on this case and for its proper understanding in the context of
the present Constitution, a discussion of Aytona is in order.

On December 13, 1961, Congress proclaimed Diosdado Macapagal as the newly elected President of the
Philippines. On December 29, 1961, outgoing President Carlos Garcia appointed Dominador Aytonaas ad
interim Governor of the Central Bank. On the same day, Aytona took his oath of office.

On December 30, 1961, President-elect Diosdado Macapagal assumed office. On the following day, he
issued Administrative Order (A.O.) No. 2 cancelling all ad interim appointments made by President
Garcia after December 13, 1961. On January 1, 1962, President Macapagal appointed Andres Castillo as ad
interim Governor of the Central Bank. Castillo assumed and qualified for his post immediately.

Because of A.O. No. 2, Aytona instituted a quo warranto proceeding against Castillo before this Court. He
questioned the validity of the appointments made by outgoing President Garcia and raised the question of
whether A.O. No. 2 was valid.

Even without the equivalent of the present Section 15, Article VII (of the 1987 Constitution) in the then
1935 Constitution, the Court refused to recognize the validity of Aytonas appointment. The Court regarded
the issuance of 350 appointments in one night and the planned induction of almost all of them a few hours
before the inauguration of the new President as an abuse by the outgoing President of his presidential
prerogatives.
The filling of vacancies in important positions, if few, and so spaced to afford some assurance of
deliberate action and careful consideration of the need for the appointment and the appointee's
qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and
planned induction of almost all of them a few hours before the inauguration of the new President may, with
some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being
apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and
thereby deprive the new administration of an opportunity to make the corresponding appointments.

xxxx

Of course, the Court is aware of many precedents to the effect that once an appointment has been issued, it
cannot be reconsidered, especially where the appointee has qualified. But none of them refer to mass ad
interim appointments (three-hundred and fifty), issued in the last hours of an outgoing Chief
Executive, in a setting similar to that outlined herein. On the other hand, the authorities admit of
exceptional circumstances justifying revocation and if any circumstances justify revocation, those described
herein should fit the exception.

Incidentally, it should be stated that the underlying reason for denying the power to revoke after
the appointee has qualified is the latter's equitable rights. Yet it is doubtful if such equity might
be successfully set up in the present situation, considering the rush conditional appointments,
hurried maneuvers and other happenings detracting from that degree of good faith, morality and
propriety which form the basic foundation of claims to equitable relief. The appointees, it might be
argued, wittingly or unwittingly cooperated with the stratagem to beat the deadline, whatever the resultant
consequences to the dignity and efficiency of the public service. Needless to say, there are instances
wherein not only strict legality, but also fairness, justice and righteousness should be taken into account. chanroblesv irt uallawl ibra ry

In effect, the Court upheld the incoming Presidents order revoking the en masse appointments made by the
outgoing President. The Court accomplished this, not on the basis of any express constitutional or statutory
prohibition against those appointments, but because the outgoing President abused the presidential power
of appointment. The presence of abuse was found based on the circumstances attendant to Aytonas
appointment.

After the Aytona ruling, cases on midnight or last minute appointments were ruled to be valid or invalid
depending on the attendant circumstances.

In Rodriguez, Jr. v. Quirino,88 the Court nullified the appointment made after considering the following
circumstances: the appointee was notified of his appointment only on December 30, 1961 (after the new
President had assumed office) even though the appointment was made six months earlier; he took his
oath of office days after the new President had recalled the midnight appointments issued by his
predecessor; there was no urgency that justified the issuance of an ad interim appointment; and the oath of
office that the appointee took was considered void. In contrast, the Court upheld the appointments made
in Merrera v. Hon. Liwag89 and Morales, Jr. v. Patriarca.90chan robles law

Gilera v. Fernandez91 and Quimsing v. Tajanglangit92 gave the Court the opportunity to clarify that
the Aytona ruling and the subsequent cases did not categorically declare [the revocation of the midnight
appointments as] valid and that all appointments made by the outgoing President were ineffective. The
Court stressed that its action, either upholding or nullifying the appointments made, was more influenced
by the doubtful character of the appointments themselves and not by the contention that the President
had validly recalled them.93ch anroble slaw

The appointments in Merrera, Morales and Tajanglangit94 were not considered midnight appointments
although the appointees took their oath or assumed office near the end of the outgoing Presidents term (or
within the period covered by the presidential issuance). In these cases, the Court considered several factors
the need to fill the vacancies, the qualifications of the appointees, and the date of the appointments in
determining whether the appointment was an abuse of the appointing power of the outgoing President and
must thus be struck down in deference to the newly elected President.

In sum, before the 1987 Constitution when no express legal prohibition existed against
appointments made by an outgoing President and out of respect for the separation of powers principle, the
Court considered the validity of alleged midnight appointments on a case-to-case basis.

b. The 1987 Constitution and the earlier laws on appointment ban after Aytona

While the midnight appointments contemplated in Aytona were, by nature, strictly last-minute
appointments, or were made after an outgoing President had lost his bid for reelection, statutory law
after Aytona expanded the concept of a midnight appointment by extending the period when appointments
could not be made within the period prior to the elections.

Republic Act (RA) No. 6388,95 as a rule, prohibited national and local appointing authorities from appointing
or hiring new employees during the period of forty-five days before a regular election and thirty days
before a special election.96 The statutory prohibition was reproduced in Section 178 (f) and (g) of
Presidential Decree (PD) No. 1296.97 Eventually, these prohibitions were substantially carried over into Batas
Pambansa Blg. 881.98 Thus, even prior to the 1987 Constitution, statutory law had already generally
prohibited the appointment or hiring of a new employee within specific time frames broader than the
midnight appointment period understood in Aytona.

This broader statutory law concept of midnight appointments was carried over into the 1987
Constitution where the ban was a special one specifically directed only against the outgoing President.
The prohibition covers appointments without any distinction on whether the appointee is a new hire or not,
or whether the appointment would involve a transfer, a detail or other kinds of personnel movement.99 chan robles law

Section 15, Article VII of the Constitution also provides its own period of effectivity of two months prior to
the coming Presidential elections all the way to the end of the outgoing Presidents term. While the
prohibition contains an exception that is left for the outgoing Presidents determination, his power of
appointment under the exception is very much curtailed; the permitted appointment is limited only
to temporary appointments in the executive branch.

Thus, as worded, Section 15, Article VII (both its rule and exception) is a clear limitation on the
appointing power of the outgoing President.100 chanrobleslaw

c. The status of Presidential midnight appointments under the 1987 Constitution and the CAs
defective treatment of midnight appointments

By providing for a specific provision especially applicable only to the outgoing President (a provision entirely
absent in the 1935 Constitution when the Aytona ruling took place and in the 1973 Constitution) under
terms uniquely directed at his office, the Constitution apparently sought to limit any judicial fact-finding
determination of the validity of the appointment in the manner done in Aytona. Had the intent been
otherwise, there would have been no need to provide for a specific period for the operation of the
ban; the framers of the Constitution would have left things as they had been.

In other words, by the express terms of Section 15, Article VII, the Constitution fixed the period covered by
the appointment ban precisely to avoid the necessity of making further inquiries on whether the
appointments were made with undue haste, hurried maneuvers, [or] for partisan reasons, [or otherwise]
not in accordance with good faith issues that are largely factual in nature.

The fixed period too inevitably established the presumption that appointments made outside
this two-month period have been made in the regular discharge of duties and hence should enjoy
the presumption of regularity or validity.101 In this sense, the issue of
Whether the appointments of the petitioners and intervenors were made with undue haste, hurried
maneuvers, for partisan reasons, and not in accordance with good faith,
in our January 31, 2012 Resolution largely becomes a non-issue. The CAs failure to resolve these matters is
consequently not fatal.102chanrobles law

Thus, based on these considerations of presidential power and its limits, I find it completely unnecessary
for the CA to qualify its ruling upholding E.O. No. 2 by stating that not all midnight appointments
are invalid. If appointments were indeed made within the prohibited period, then they suffer from an
irremediable infirmity. On the other hand, if they were issued outside the prohibited period, then they fall
outside the ambit of Section 15, Article VII.

Notably, the CA used wrong considerations and cited inapplicable cases that led it to erroneously
qualify its ruling. The CA cited cases involving appointments made after the elections by an outgoing
local chief executive, not by the President.

In particular, in the CAs cited Nazareno v. City of Dumaguete,103 the Court upheld the Civil Service
Commissions (CSCs) issuance that generally prohibited outgoing local chief executives from exercising their
appointing power unless certain requirements, evidencing regularity of the appointment, are
observed.104 In Sales v. Carreon,105 the Court supported the CSCs nullification of the appointments made by
the outgoing local chief executive because it was made in disregard of civil service laws and rules, not
because of an express prohibition against appointment per se.

In reading these cited cases, it should be noted that their reference to the prohibition under Section 15,
Article VII was tangential and pertained merely to the provisions underlying rationale. Thus, while noting
that this provision applies only to presidential appointments,106 the Court nevertheless cited the prohibition
because of the rationale behind it, i.e., to discourage losing candidates from issuing appointments merely for
partisan purposes, as these losers thereby deprive the incoming administration of the opportunity to make
their own appointments.107 chan robles law

The CSCissued prohibition applicable to local chief executives is jurisprudentially significant since the
Constitution does not expressly prohibit an outgoing local chief executive from exercising its
power to appoint or hire new employees after the elections (in the manner that an outgoing President
is prohibited under Section 15, Article VII). Thus, the validity of an appointment by a local chief executive in
the cited cases was, in effect, determined by applying the CSCs regulations to the facts surrounding each
contested appointment. This is the import of Sales and Nazareno. These cases, of course, are obviously
inapplicable to the present case, given the existence of a clear constitutional prohibition applicable to an
outgoing President.

In this light, I also do not see any need to refer anything to the Office of the President with respect to the
nature, character, and merits of the petitioners appointment. As previously stated, if an appointment is
made within the prohibited period, it is illegal (as the CA itself found, although for the wrong reason as will
be discussed later) for being contrary to the fundamental law. No amount of evaluation by the President
can validate this kind of appointment.

D. The meaning of appointment under Section 15, Article VII

a. Considerations under Section 15, Article VII

i. The Dichotomy of an Appointment it is both an executive act and a process

Appointments by the President may be construed both in its broad and narrow senses. In its broad sense,
an appointment is a process that must comply with the requirements set by law and by jurisprudence in
order to be complete. Narrowly speaking, an appointment is an executive act that the President
unequivocally exercises pursuant to his discretion.

This dichotomy arises because of the two participants in the appointing process the appointing power
(which, in this case, is the President), and the appointee. While the concurrence of the actions of these two
participants is necessary in order for an appointment to be fully effective, it is also important to note
that the appointing power and the appointee act independently of each other. An examination and
understanding of this relationship is the key to the proper appreciation and interpretation of the
appointment that Section 15, Article VII of the Constitution speaks of.

i. a. Appointment in its broad sense ? as a process

As a process, appointments made by the President108 undergo three stages: first, the making of the
commission,109 which includes the signing of the appointment papers by the President and its sealing if
necessary; second, the issuance of the commission and the release of the transmittal letter, if any;
and third, the appointees receipt and acceptance of the appointment, which could either be express or
implied.

In this broad sense, an appointment is a process that is initiated by the acts of the President and
culminates with the positive acts of the appointee.110 chan roble slaw

This broad interpretation of an appointment is necessary and appropriate in cases where there is
no issue as to the validity of the first two stages of appointment, i.e., the signing of the
appointment papers, and the issuance of the commission. The main question to be resolved in
considering an appointment as a process, is whether or not there was a valid assumption of public office,
based on the appointees valid acceptance of the appointment through an oath or any positive act.

In Javier v. Reyes,111 the Court upheld the appointment of petitioner Isidro Javier as Chief of Police of
Malolos on the finding that no question existed on the regularity of his appointment by the then mayor of
Malolos. Compared to his fellow claimant over the position, he was the one who accepted the appointment
by taking an oath and subsequently discharging the functions of his office. Although this case does not
concern a Presidential appointment, it shows that in cases where there was already a valid act of
appointment, the only remaining act to be done is for the appointee to exercise his part in the
process so that the appointment will be effective.

Consequently, an acceptance merely results from the valid exercise of the appointing authority of his power
to appoint. It is an act of the appointee that lies outside the control of the appointing authority and totally
depends on the appointees discretion.

i. b. Appointment in its narrow sense - as an executive act

Appointment, as an executive act, is an exercise of power or authority. It is the unequivocal act of

designating or selecting an individual to discharge and perform the duties and functions of an office or
trust.112 The appointment is deemed complete once the last act required of the appointing authority has
been complied with and acceptance is thereafter made by the appointee in order to render it fully
effective.113chan roble slaw

In this narrow sense, appointment is simply an executive act; that the full effectiveness of an
appointment requires a positive act from the appointee is not a denial of the existence of the
power and the full exercise of the act by the executive himself.

Appointment as an executive act, as opposed to a process, is well-established under our laws and
jurisprudence. This is referred to as the Presidents appointing power. Specifically, this executive power is
embodied in the Constitution under Article VII, Sections 14, 15, and 16 and is vested on the President as
provided under Section 1, Article VII.

A plain reading of the Constitution alone shows that the term appointment may pertain to the Presidents
act of appointment as the President, on his own, has the power to appoint officials as authorized under the
Constitution and the pertinent laws. This presidential appointment power should be distinguished
from the appointment process that requires the act of the appointee for its efficacy. If these two
concepts would be confused with one another, the result could be havoc and absurdities in our jurisprudence
every time we resolve a case before us.

The Presidents power of appointment is sui generis. It is intrinsically an executive act because the filling of
an office created by law is an implementation of that law.114 The power to appoint is the exclusive
prerogative of the President involving the exercise of his discretion;115 the wide latitude given to the
President to appoint is further demonstrated by the constitutional recognition that the President is granted
the power to appoint even those officials whose appointments are not provided for by law.116 chan robles law

In other words, where there are offices that have to be filled, but the law does not provide the process for
filling them, the Constitution recognizes the power of the President to fill the office by appointment. Any
limitation on or qualification to the exercise of the Presidents appointment power should
be strictly construed and must be clearly stated in order to be recognized.

In Osea v. Malaya117 and in other several cases,118 the Court held that an appointment may be defined as
the selection, by the authority vested with the power, of an individual who is to exercise the functions of a
given office. The constitutionally mandated power of the Presidents appointing power was statutorily
recognized under Section 16, Chapter V, Book III, Title I of the Administrative Code. Book III of the Code
pertains to the Office of the President, and Title I relates to the Powers of the President. Chapter V, on
the other hand, focuses on the Presidents Power of Appointment and its Section 16 provides: cha nRoblesv irt ual Lawlib rary
Section 16. Power of Appointment. - The President shall exercise the power to appoint such officials as
provided for in the Constitution and laws. chanroble svirtuallaw lib rary

Under these terms and structure, the term appointment apparently does not automatically equate to a
process and pertain to the Presidents act or exercise of his power of appointment. Thus, when interpreting
the word appointment in cases before the Court, we must consider which of the two should be applied
considering the factual and legal settings of each case.

In the present case, I submit that what is applicable is not the concept of appointment as a process but
the executive act or the Presidents power of appointment. The interpretation of appointment in Section
15, Article VII as an executive act rather than as a process finds support in the language of the provision
itself. Section 15, Article VII reads: chanRoble svirtual Lawlib ra ry

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.
(emphasis supplied)
This express wording leads us away from an interpretation of the provision as a process that would involve
the appointee and his or her acts within the scope of the appointment ban. For one, Section 15, Article VII
of the 1987 Constitution is directed only against an outgoing President and against no other. By providing
that the President shall not make appointments within the specified period, the Constitution could not have
barred the President from doing things that are not within his power to accomplish as appointing authority,
such as the acts required or expected of the appointee.

Note that the appointee who is at the receiving end of the appointment if indeed the term
appointment is meant as a process - is not even mentioned or even alluded to in Section 15,
Article VII. Had the original intent of the framers been to include him, they would have simply prohibited
an appointee from accepting a Presidential appointment commencing two months before the
next Presidential Election, which already presupposes a previous valid appointment by the President.

From this perspective, the objective of the provision is to limit the Presidents appointing power alone,
by prohibiting him from making appointments within a certain period; the intent is not to curtail the entire
appointment process. As a limitation solely applicable to the Presidents power of appointment,
appointment under this provision largely assumes the character of an executive actthat does not concern
the appointee at all.119
chan robles law

In their interpretation, the respondents insist that the acceptance and assumption of office by the appointee
must also be accomplished before the ban sets in. They reason out that these acts are necessary for the
completion and effectivity of an appointment; otherwise, it would be useless to prohibit an incomplete and
ineffective appointment.120 Notably, the ponencia supports this interpretation.

With due respect, I believe that the ponencias and the respondents interpretation merely highlights the
word appointment in Section 15 but ignores the totality of the provision and the language it is couched in.
There is simply nothing in the language of Section 15, Article VII that supports the respondents plea for the
Court to view appointment as a process. As will be discussed in detail below, even the supposed
uselessness of prohibiting an ineffective appointment has no legal basis.

I especially note in examining and construing Section 15, Article VII that what the petitioners in the present
case challenge is the very authority of an outgoing President to exercise his appointing power based on a
specific constitutional provision that makes the date of the making of appointment the focal point of the
prohibition. These unique factual and legal aspects of the case suffice to reject the respondents reliance on
cases whose factual and legal settings are completely at odds with the present case.121 chan roble slaw

For the same reason, the petitioners, too, cannot simply rely on In Re: Seniority Among the Four (4) Most
Recent Appointments to the Position of Associate Justices of the Court of Appeals,122 in interpreting Section
15, Article VII of the 1987 Constitution.

In that cited case, the Court was tasked to resolve the correct basis in determining the seniority in the Court
of Appeals of the newly appointed justices: whether it should be based on (i) the date the commission was
signed by the President, i.e., the date appearing on the face of the document or (ii) the order of
appointments as contained in the transmittal letter to the Court.123 In applying the first option, the Court
simply applied the clear letter of the law124 that seniority should be based on the dates of their respective
appointments.125 In closing, the Court said: chanRoble svirtual Lawlib ra ry

For purposes of completion of the appointment process, the appointment is complete when the commission
is signed by the executive, and sealed if necessary, and is ready to be delivered or transmitted to the
appointee. Thus, transmittal of the commission is an act which is done after the appointment has already
been completed. It is not required to complete the appointment but only to facilitate the effectivity of the
appointment by the appointees receipt and acceptance thereof.

For purposes of appointments to the judiciary, therefore, the date the commission has been signed by
the President (which is the date appearing on the face of such document) is the date of the appointment.
Such date will determine the seniority of the members of the Court of Appeals in connection with Section 3,
Chapter I of BP 129, as amended by RA 8246. [Italics and emphasis supplied.]
The issue before us, however, is not as simple as the issue of seniority of the justices of the CA a matter
that is largely internal to its members. Far more important than this, the issue before us directly relates
to the constitutional limitation on the Presidents exercise of his appointing power. The applicable
law in In Re: Seniority is clearly worded on the proper basis of seniority in the CA, i.e., the date of
appointment.126 This is significantly very much unlike the Constitutions language that commands the
President not to make appointments.

Thus, the question should be: when do we consider the President to have already made an appointment or
exercised his appointing power under Section 15, Article VII of the 1987 Constitution. Otherwise phrased,
we ask: what stage in the appointment process must have been completed before the ban takes effect in
order that an appointment may not be considered under the broad category of midnight appointment
under Section 15, Article VII.

ii. Purpose of Section 15, Article VII; in relation with Section 4, Article VII

A factor I cannot disregard in our interpretative exercise is the presence of pragmatic

considerations127underlying Section 15, Article VII of the 1987 Constitution that uniquely warrant a deeper
and more critical understanding of the whole provision - instead of only a word therein - and of the purpose
behind it.

These considerations militate not only against a literal interpretation of the phrase shall not make
appointments, as the CA appear to have shortsightedly ruled, but also against an unduly expansive
interpretation of the word appointments based on jurisprudential definitions that were decided
under completely different sets of facts and law.

Again, this latter broad-sense definition of appointment in its largely administrative law concept cannot
be controlling in our interpretation of Section 15, Article VII. For emphasis, Section 15, Article VII is
unique in the factual situation it contemplates and in restricting the Presidents otherwise broad
appointing power.

Under E.O. No. 2, any of the following is considered a midnight appointment even if the date of
appointment is prior to the effectivity of the constitutional ban (March 11, 2010), where: cha nRoblesvi rtua lLaw lib rary

1. the appointee accepted, or took his oath, or assumed office at the time when the constitutional ban
is already in effect;

2. the appointment will take effect or where the office involved will be vacant during the effectivity of
the constitutional ban;

3. the appointment or promotion was made in violation of Section 261 of the Omnibus Election Code.

In In Re Appointments dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as
Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City,
respectively (In re Valenzuela),128 we ruled that Section 15, Article VII is directed against two types of
appointments, viz.: (i) those made for buying votes and (ii) those made for partisan considerations.129 chan roble slaw

The first type obviously applies only before the elections; while the second type may apply whether the
appointment was made before or after elections.130 This observation is critical since under Section 4, Article
VII of the 1987 Constitution,131 the President is ineligible for any reelection.

Notably in Aytona, the Court cautioned the outgoing President not to exercise his prerogatives in a manner
that would tie the hands of the incoming President through the appointment of individuals to key positions in
the government. This pronouncement should not be lost to us in the present case because an outgoing
President is ineligible for reelection under the 1987 Constitution. Under this situation, the objective of any
prohibition against appointment, as in Aytona, is aimed at preventing the incumbent from adversely
affecting his successor through partisan action. During an incumbents last days in office, his sole mandate
should be to ensure the orderly transfer of government administration to the next President.

Thus, aside from the limitations on the presidents appointing power under Section 15,132 we need to add
the constitutional disfavor that appointments made by the outgoing President carry when the elections are
drawing near (and more so after the electorate has spoken), as this can be presumed to be for partisan
considerations, or in furtherance or maintenance of political interest or influence, or as reward for partisan
loyalties, or even for the purpose of shackling the hands of the new administration.

In elevating the Aytona ruling and its resulting prohibition against midnight appointments to the level of a
constitutional provision, the thrust of Section 15, Article VII must be the broadening of the general rule
against the exercise of the midnight appointing power and the narrowing of the exception in its
favor.133 A constitutional provision specifically directed only against an outgoing Presidents exercise of his
appointing power is also an express recognition of the unique and vast powers and responsibilities inherent
in the Office of the President134 that an outgoing President should most judiciously consider. Again, I
quote Aytona: chanRoblesvi rtu alLaw lib rary

Of course, nobody will assert that President Garcia ceased to be such earlier than at noon of December 30,
1961. But it is common sense to believe that after the proclamation of the election of President Macapagal,
his was no more than a caretaker administration. He was duty bound to prepare for the orderly transfer of
authority the incoming President, and he should not do acts which he ought to know, would embarrass or
obstruct the policies of his successor. The time for debate had passed; the electorate had spoken. It was not
for him to use powers as incumbent President to continue the political warfare that had ended or to avail
himself of presidential prerogatives to serve partisan purposes. chan roblesv irt uallawl ibrary

To be sure, the broad discretion given the appointing power may be limited by the Constitution135 and by
law.136 Nonetheless, any limitation of the exercise of this broad power is generally strictly construed.
Correspondingly, any undue expansion of a textually evident limitation under Section 15, Article VI,
would137 amount to judicial legislation.

iii. Nature of the power of appointment

Appointment is intrinsically an executive act; it is a discretionary power that must be exercised by the Chief
Executive according to his best lights.138 It involves a question of policy that only the appointing authority
can decide. At the presidential level, his or her choice of an appointee involves a very highly political and
administrative act of decision making that calls for considerations of wisdom, convenience, utility, and
national interests; it is a power that the Constitution or the law has vested in him in his various roles.139
cha nrob leslaw

From the prism of Section 15, Article VII of the 1987 Constitution, I find it clear that the framers of the
Constitution presumed the appointments made before the fixed two-month period preceding the elections to
be generally characterized by good faith on the Presidents part. The good faith (or lack of it) of the
President and his appointee, are matters that do not fall under the specific concern of Section 15, Article VII.

b. Combined reading of these considerations

In sum, I find the following basic considerations to be relevant in the resolution of the issues before
us: first, the definition of appointment in jurisprudence as an executive act (characterizing it as an
unequivocal act of the appointing power and considering it complete xxx once the last act required of the
appointing authority has been complied with), as opposed to the broad view of the term as a process that
involves acts of the appointee; second, the purpose of Section 15, in relation to Section 4 of Article VII of
the Constitution, in the light of the Aytona ruling and; third, the nature of the power of appointment and
the considerations that underlie it.

Based on these considerations, I conclude that for an appointment to be valid under Section 15,
Article VII, the appointment papers must have already been signed, issued or released prior to
the constitutional ban, addressed to the head of the office concerned or the appointee himself.
The appointees acceptance through an oath, assumption of office or any positive act does not find any
reference in Section 15, Article VII as this part of the appointment process is already outside the Presidents
power of control and is wholly within the appointees discretion. The Constitution could not have
envisioned a prohibition on the President that is already beyond the sphere of his executive
powers.

The ponencia disagrees with this view and asserts that an appointment will only be valid if all the elements
for the completion of its total process are present.140 It further avers that my argument (that acceptance
even after the ban will not affect the appointments validity as long as the designation and transmittal of the
appointment papers were made before the ban sets in), will lead to glaring absurdities, i.e., that in case of
the appointees non-acceptance, the position will be considered occupied and nobody else may be appointed
to it; that an incumbent public official, appointed to another public office by the President, will automatically
be deemed to occupy the new public office and to have resigned from his first office; and that, if the
President is unhappy with an incumbent public official, the President can simply appoint him to another
public office, thus remove him from his current post without due process.

I disagree with these contentions.

The act of issuing or releasing the appointment paper (together with the transmittal letter, if any) is the only
reliable141 and unequivocal142 act that must be completed to show the intent of the appointing power to
select the appointee. In other words, the President cannot be considered to have performed the last act
required of him to complete the exercise of his power of appointment if the signing of the appointment is not
coupled with its issuance.

Along the same line of thought, because the appointing authority considers both the formal and informal
qualifications of the prospective appointee143 in exercising the power of appointment, the issuance of the
appointment is the act that signifies the certainty of his choice. Prior to the issuance of an appointment, the
President can choose to issue an appointment to another, or decide not to issue any appointment at all.

After the issuance and before the appointment is accepted by the appointee, the appointment processstill
lies within the Presidents control although the appointment can already be accepted by the appointee. The
President finally loses control over the appointment process when the appointee accepts it. Prior
to its acceptance, the President can still recall the appointment he issued and exercise his appointing power
anew or completely desist from exercising it.

The appointment ban, however, limits the Presidents control over the appointment process. When the
appointment ban sets in, the President can no longer exercise his appointment power, although the
President may recall a previously unaccepted appointment, or revoke an unaccepted one. The President may
likewise exercise his appointing power under the exception in Section 15, Article VII of the 1987
Constitution.

These conclusions draw strength from the reality that these acts are the only options that are left to
the sole Presidents discretion and full control, and that are inherent and consistent with the
Presidents prerogative as the appointing power.

The full extent of the presidential control over the appointment prior to its acceptance, however, does not
and should not materially alter the fact of the issuance as the reckoning point under Section 15, Article VII.
Any period prior to the appointees acceptance is simply a period when the act of appointment, including its
issuance, can be said to be complete although the appointment is not yet effective.

These conclusions are consistent with both the tenor and nature of Section 15, Article VII as a limitation
against the Presidents exercise of his power to appoint. Since the acts pertaining to the appointee
himself are beyond the Presidents control, these same acts should not be covered by a provision
that only essentially limits the executive power of appointment. This too, is consistent, with the
constitutional objective of preventing the outgoing president from tying the hands of the incoming president
through a belated exercise of the appointing power.

Moreover, these conclusions will not lead to the glaring absurdities that the ponencia illustrates. Contrary to
the ponencias arguments, we do not totally do away with or disregard the fact that an appointment is
also a process. The Court should only make a clear and careful delineation that, for purposes of the
prohibition against the Presidents midnight appointments under Section 15, Article VII, the interpretation
should be limited to the notion of an appointment as an executive act or the Presidents exercise of his
appointing power. The prohibition could not have included acts (such as the appointees acceptance) that
are outside the Presidents scope of executive powers.

In other words, what is applicable in the present case is the term appointment in the context of the
Presidents appointing power, a concept which, as discussed above, is constitutionally, statutorily, and
jurisprudentially acknowledged in our jurisdiction vis--vis appointment as a process. The focus in the
present case is the limitation on the Presidents appointing power, an executive act, where the acts of third
persons, such as the appointee, is not material in the resolution of the case.

Thus, an acceptance is still necessary in order for the appointee to validly assume his post and discharge the
functions of his new office, and thus make the appointment effective. There can never be an instance where
the appointment of an incumbent will automatically result in his resignation from his present post and his
subsequent assumption of his new position; or where the President can simply remove an incumbent from
his current office by appointing him to another one. I stress that acceptance through oath or any positive act
is still indispensable before any assumption of office may occur.

Moreover, contrary to the ponencias assertion, the appointees non-acceptance cannot in any way translate
to a situation where the position will be considered occupied and nobody else may be appointed to it. As
already discussed, before the appointees acceptance of his appointment, the power of appointment still
subsists and is within the Presidents control. Hence, the appointees non-acceptance cannot hold the
President hostage and prevent him from exercising his power to appoint someone else who is also eligible
and qualified for the position.

In addition, such cumbersome interpretation would undermine the broad appointing power of the President
and place it at the mercy of bureaucratic processes. It would practically reduce the President and the OES to
a virtual housekeeper several months before the appointment ban, to monitor the acceptance of
appointments and prevent any prejudice to public service.

i. Section 15 cannot be limited to the mechanical act of making the appointment

We cannot also distinguish, as the petitioners did,144 between the mechanical acts of making an appointment
paper, on one hand, and its issuance or release, on the other hand, without ignoring the basic principle of a
single Executive. The issuance of an appointment paper and the release of the transmittal letter, if any,
necessarily form part of the exercise of the appointing power. Without the issuance that subsequently
follows the signing of the appointment papers, it cannot seriously be asserted that the President had indeed
completely exercised his appointing authority. This conclusion remains valid even if the act of issuance is not
personally accomplished by the President since the President, by necessity, must act through agents and
cannot likewise be allowed to circumvent the prohibition against him by allowing officials under his control to
do what he himself cannot do directly.145 chan roble slaw

Even Rule IV of the 1998 Revised Omnibus Rules on Appointment and Other Personnel Actions, which
petitioners Venturanza, Villanueva and Rosquita ironically cited, provides that an appointment issued in
accordance with pertinent laws and rules shall take effect immediately, upon its issuance by the
appointing authority. The term laws mentioned in the Rule necessarily includes the Constitution as the
fundamental law. Thus, immediately after issuance, the appointee can already manifest his acceptance by
qualifying for the position and assuming office; before them, it is the President who has the full and
complete control, and loses this control only upon the appointees acceptance.

i. a. The role of the MRO

In accomplishing this second stage of the appointment process, the appointment paper and transmittal
letter, if any, may be coursed through the MRO. Prudence suggests this course of action not only for the
appointees convenience but for record-keeping purposes. The undisputed testimony of Director Dimaandal
of the MRO on this score is as follows:chanRoble svirtual Lawli bra ry

Q: What is the effect if a document is released by an office or department within Malacaan without going
through the MRO?

A: If a document does not pass through the MRO contrary to established procedure, the MRO cannot issue
a certified true copy of the same because as far as the MRO is concerned, it does not exist in our official
records, hence, not an official document from the Malacaan. There is no way of verifying the
documents existence and authenticity unless the document is on file with the MRO even if the person
who claims to have in his possession a genuine document furnished to him personally by the President. As a
matter of fact, it is only the MRO which is authorized to issue certified true copies of documents emanating
from Malacaan being the official custodian and central repository of said documents. Not even the OES can
issue a certified true copy of documents prepared by them (boldfacing supplied).

Q: Why do you say that?

A: Because the MRO is the so-called gate-keeper of the Malacaan Palace. All incoming and outgoing
documents and correspondence must pass through the MRO. As the official custodian, the MRO is in charge
of the official release of documents.

xxxx

Q: Assuming the MRO has already received the original appointment paper signed by the President together
with the transmittal letter prepared by the OES, you said that the MRO is bound to transmit these
documents immediately, that is, on the same day?

A: Yes.chanroblesvi rt uallawl ibra ry

However, contrary to the respondents claim,146failure to course an appointment through the MRO for
official release is not fatal. Otherwise, an office147 in the Executive department particularly within the
Office of the President can make or break an appointment by its own inaction or even contrary to the
instruction of the Chief Executive,148 thereby emasculating the Presidents power of control and negating his
power of appointment.

The presidents power of control of all the executive departments, bureaus, and offices gives him the
authority to assume directly the functions of the executive department, bureau and office, or interfere with
the discretion of its officials and employees149 from the Cabinet Secretary down to the lowliest clerk150 or
altogether ignore their recommendations.151 chanrob leslaw

Thus, the President himself or his Executive Secretary may cause the issuance of the appointment paper and
transmittal letter, if any, without need of forwarding it to the MRO so long as the date of actual issuance or
release of the appointment paper (and transmittal letter, if any) can otherwise be established by other
means and be proven with reasonable certainty in obeisance to the constitutional prohibition. Since this
constitutional limitation on the Presidents appointing power is triggered only every six years, compliance
with this evidentiary requirement to establish with reasonable certainty the timeliness of the issuance of
appointment paper should not be difficult to comply with.

Under this situation, I agree with the ponencia that the President must not only sign the appointment paper
but also intend that the appointment paper be issued.152 chanrobles law

I disagree, however, with the ponencias position that the release of the appointment paper through the
MRO is an unequivocal act that signifies the Presidents intent of its release.153 The release of the
appointment paper through the MRO is not the only act that can signify the Presidents intent. The President
may also cause the issuance of the appointment paper and transmittal letter, if any, without the need of
forwarding it to the MRO so long as the date of actual issuance or release of the appointment paper (and
transmittal letter, if any) can otherwise be established by other means and be proven with reasonable
certainty.

I also agree with the ponencia that the possession of the original appointment paper is not indispensable to
authorize an appointee to assume office. I, however, disagree with its view that in case of loss of the
original appointment paper, the appointment must be evidenced by a certified true copy by the proper
office, in this case the MRO.154 In case of loss of the original appointment paper, the certification may not
only be evidenced by a certified true copy from the MRO but can also be established by other means and be
proven with reasonable certainty.

c. The extension of Section 15, Article VII to the acts of the appointee is completely unwarranted
by the text and intent of the Constitution

In upholding E.O. No. 2 that the acts required of the appointee must also be accomplished before the ban,
the CA opined that -
this mandated period banned by the Constitution, no less, should enjoin not only the act of the President in
making appointments, but all other acts that would give effect or allow the furtherance of the Presidents
prohibited act of making appointment within the same prohibited period, if only to breathe life and give full
effect to the spirit behind the Constitutional provision limiting the power of the President. This deduction
proceeds from the settled rule that an appointment, in order to be effective, requires the acceptance of the
appointee.

xxxx

In requiring that the acceptance of the appointment, i.e., the taking of an oath and the assumption of office,
be also done prior to the ban, E.O. No. 2 merely implements in full force the Constitutional considerations of
practicality and logic enshrined in the provision on midnight appointments. Since the appointment of the
President only becomes effective upon the appointees acceptance, it stands to reason that the entire
process completing an appointment must be done prior to the Constitutionally set period.155 c hanrobles law

What worth is it to prohibit the President from making an appointment that is not effective anyway? It would
be useless to prohibit an incomplete and ineffective appointment. To rule otherwise is to make the intent of
the Constitutional provision not only purely illusory, but would also open the floodgates to possible abuse.
The outgoing President may x x x [simply] antedate [the] appointment papers to make it appear that they
were legally signed prior to the ban[.]
The CAs reasoning, unfortunately, does not validate its conclusion. The CA upheld the extension of the
scope of the prohibition to the acts of the appointee on the reasoning that these acts give effect or allow
the furtherance of the Presidents prohibited act of making appointments within the same prohibited period.
The CA ruling obviously failed to consider the situation where the making and issuance of the appointments
were made outside of the prohibited period.

To be sure, limiting the term appointment to the mechanical act of making the appointment, i.e., the date
appearing on the appointment paper, will severely encroach on the constitutional prerogatives of the
incoming president. An appointment whose validity stands solely on the date appearing on the appointment
paper will practically leave the operation of the appointment ban at the sole determination of the outgoing
President since he can simply antedate the appointment to avoid the prohibition. This situation would bring
us back to the days of Aytona when the validity of the appointment would have no reference to specific time
frames but would be resolved on a case-to-case basis, rendering practically useless the elevation and
modification of the Aytona ruling into a constitutional provision.

With the date of actual issuance or release as the reckoning point under the Constitution, however, the
feared encroachment on the prerogative of the incoming President loses ground: if the appointee rejects
the appointment at a time when the ban has already set in, then the Presidents exercise of his appointing
power simply failed to produce the desired outcome. If the appointee accepts the appointment (which was
actually issued before the ban) during the ban, then the acceptance simply renders the timely exercise of
the power of appointment efficacious. The fact remains that before or after the ban sets in, the President
remains to be the Chief Executive until his successor legally assumes the Presidency; and before the ban
sets in, the Constitution allows him to exercise his power of appointment, subject only to constitutional
limitations. Regardless of the appointees action, the prohibition is maintained since the third
stage in the appointment process is no longer within the outgoing Presidents control. The evils
sought to be addressed by Section 15 is kept intact by a constitutionally timely exercise of the
appointing power.156 chanroble slaw

The conclusion I reach is but in keeping with the common observation that presidential appointees do not
necessarily accept their appointments right away since most (if not all) of these appointees have current
professional affiliations or undertakings elsewhere, be it in the government or in the private sector, which
they need to wind up before assuming their new positions. This is an obvious fact that the framers of the
Constitution could not have ignored in crafting Section 15, Article VII.

Consequently, assumption of office or taking of oath of office may take some time after their appointment
papers have been issued. Including these acts within the phrase make appointments is a completely
unwarranted expansion of the text and a clear departure from the intent of the Constitution. In this
light, E.O. No. 2 is unconstitutional to the extent that it unduly expanded the scope of prohibition
in Section 15, Article VII. 157 chan roble slaw

While I maintain my view that subsequent acts of the appointee need not be made before the ban, none of
the petitioners however have shown that their appointment papers (and transmittal letter) have been issued
(and released) before the ban. The presumption of regularity of official acts cannot alter the fact that the
dates appearing on the petitioners appointment papers (March 5, 2010; February 23, 2010; March 3, 2010;
March 5, 2010; and March 1, 2010) and transmittal letters (March 8, 2010 and March 9, 2010) only
establish that the documents were made or signed on the date indicated, that is, before the ban. It does not
establish the fact that it was issued and released on the date indicated.158 While it would have been normal
to indicate the date of issuance of appointment, had the appointments been coursed through the MRO, the
absence of that date is something that cannot be the subject of this Courts speculations.159chan roble slaw

In the case of Garafil, the MRO received her appointment and transmittal papers only on May 13, 2010. The
transmittal letter that was turned over to the MRO was already stamped released by the OES without
showing when the OES actually issued and released the same.

In the case of Venturanza, while his appointment papers were sent to the MRO, the MRO released the same
only on March 12, 2013 which is the same date the OES forwarded it to the MRO.160 In short, when his
appointment papers were officially issued, the appointment ban was already in effect.

In the case of Villanueva and Rosquita, nothing supports their claim that their appointment papers were
actually issued on the date appearing on their respective appointment papers.

Lastly, in the case of Tamondong, his appointment was not coursed through the MRO. His letter of
appointment was only released to him on March 25, 2010, already 14 days beyond the March 11, 2010
reckoning period. Also, it was only on May 6, 2010 that the MRO actually received his appointment papers.

I am not unaware that the interpretation above of Section 15, Article VII does not totally foreclose any
circumvention of the prohibition against midnight appointment since the President can still fix the date of
the issuance of the appointment paper. That may be a possibility a possibility with legal repercussions that
the Court is wholly unprepared to indulge in for the moment, for it involves a presumption on factual issues
that were never raised nor are even evident in the circumstances of the present case. Nonetheless, the
possibility of abuse of power does not argue against its existence nor destroy, diminish, or remove the
power; much less does this authorize the Court to depart from its constitutional role of interpreting a
textually evident Constitutional provision according to its letter and the spirit that animates it.

In view of the foregoing, I vote that the Court RESOLVES to:

1. DISMISS the petition for certiorari in G.R. No. 209138 for technical deficiencies;

2. PARTIALLY GRANT the petition for review on certiorari by declaring the phrase including all
appointments bearing dates prior to March 11, 2010, where the appointee has accepted, or taken
his oath, or assumed public office on or after March 11, 2010 in Section 1(a) of E.O. No.
2 UNCONSTITUTIONAL for unduly expanding the scope of the prohibition on appointments under
Section 15, Article VII of the 1987 Constitution; and

3. DENY the petitions for review on certiorari insofar as they seek (i) to uphold the petitioners
respective appointments and (ii) their reinstatement to the positions they held immediately prior to
the issuance of E.O. No. 2.