QUALIFICATIONS, Election, Term, Oath
Note: Executive power is vested in the President (alone)- cabinet
members are alter-ego of the President but they are not the Chief
Executive, serve at the pleasure of the President
MACALINTAL V. PRESIDENTIAL ELECTORAL TRIBUNAL
FACTS:
A Motion for Reconsideration was filed by petitioner Atty. Romulo B.
Macalintal from a decision dismissing his petition and declaring the
establishment of respondent Presidential Electoral Tribunal (PET) as
constitutional.
Petitioner reiterates his arguments on the alleged unconstitutional
creation of the PET that Section 4, Article VII of the Constitution
does not provide for the creation of the PET. Thus, PET violates
Section 12, Article VIII of the Constitution.
To bolster his arguments that the PET is an illegal and unauthorized
progeny of Section 4, Article VII of the Constitution, petitioner
invokes our ruling on the constitutionality of the Philippine Truth
Commission (PTC). Petitioner cites the concurring opinion of Justice
Teresita J. Leonardo-de Castro that the PTC is a public office which
cannot be created by the President, the power to do so being
lodged exclusively with Congress. Thus, petitioner submits that if
the President, as head of the Executive Department, cannot create
the PTC, the Supreme Court, likewise, cannot create the PET in the
absence of an act of legislature.
ISSUE:
Whether the establishment of respondent Presidential Electoral
Tribunal (PET) is constitutional.
HELD:
The decision of the Court still stands on its constitutionality
POLITICAL LAW judicial power
We reiterate that the PET is authorized by the last paragraph of
Section 4, Article VII of the Constitution and as supported by the
discussions of the Members of the Constitutional Commission,
which drafted the present Constitution.
The explicit reference by the framers of our Constitution to
constitutionalizing what was merely statutory before is not diluted
by the absence of a phrase, line or word, mandating the Supreme
Court to create a Presidential Electoral Tribunal.
Suffice it to state that the Constitution, verbose as it already is,
cannot contain the specific wording required by petitioner in order
for him to accept the constitutionality of the PET.
Judicial power granted to the Supreme Court by the same
Constitution is plenary. And under the doctrine of necessary
implication, the additional jurisdiction bestowed by the last
paragraph of Section 4, Article VII of the Constitution to decide
presidential and vice-presidential elections contests includes the
means necessary to carry it into effect. Thus:
Obvious from the foregoing is the intent to bestow independence to
the Supreme Court as the PET, to undertake the Herculean task of
deciding election protests involving presidential and
vice-presidential candidates in accordance with the process outlined
by former Chief Justice Roberto Concepcion. It was made in
response to the concern aired by delegate Jose E. Suarez that the
additional duty may prove too burdensome for the Supreme Court.
This explicit grant of independence and of the plenary powers
needed to discharge this burden justifies the budget allocation of
the PET.
The conferment of additional jurisdiction to the Supreme Court,
with the duty characterized as an "awesome" task, includes the
means necessary to carry it into effect under the doctrine of
necessary implication. We cannot overemphasize that the
abstraction of the PET from the explicit grant of power to the
Supreme Court, given our abundant experience, is not unwarranted.
A plain reading of Article VII, Section 4, paragraph 7, readily reveals
a grant of authority to the Supreme Court sitting en banc. In the
same vein, although the method by which the Supreme Court
exercises this authority is not specified in the provision, the grant of
power does not contain any limitation on the Supreme Court's
exercise thereof. The Supreme Court's method of deciding
presidential and vice-presidential election contests, through the PET,
is actually a derivative of the exercise of the prerogative conferred
by the aforequoted constitutional provision. Thus, the subsequent
directive in the provision for the Supreme Court to "promulgate its
rules for the purpose."
The conferment of full authority to the Supreme Court, as a PET, is
equivalent to the full authority conferred upon the electoral
tribunals of the Senate and the House of Representatives, i.e., the
Senate Electoral Tribunal (SET) and the House of Representatives
Electoral Tribunal (HRET), which we have affirmed on numerous
occasions.
It is also beyond cavil that when the Supreme Court, as PET, resolves
a presidential or vice-presidential election contest, it performs what
is essentially a judicial power.
With the explicit provision, the present Constitution has allocated to
the Supreme Court, in conjunction with latter's exercise of judicial
power inherent in all courts, the task of deciding presidential and
vice-presidential election contests, with full authority in the exercise
thereof. The power wielded by PET is a derivative of the plenary
judicial power allocated to courts of law, expressly provided in the
Constitution. On the whole, the Constitution draws a thin, but,
nevertheless, distinct line between the PET and the Supreme Court.
We have previously declared that the PET is not simply an agency to
which Members of the Court were designated. Once again, the PET,
as intended by the framers of the Constitution, is to be an
institution independent, but not separate, from the judicial
department, i.e., the Supreme Court. McCulloch v. State of
Maryland proclaimed that "[a] power without the means to use it, is
a nullity."
The decision therein held that the PTC "finds justification under
Section 17, Article VII of the Constitution." A plain reading of the
1
constitutional provisions, i.e., last paragraph of Section 4 and
Section 17, both of Article VII on the Executive Branch, reveals that
the two are differently worded and deal with separate powers of
the Executive and the Judicial Branches of government. And as
previously adverted to, the basis for the constitution of the PET was,
in fact, mentioned in the deliberations of the Members of the
Constitutional Commission during the drafting of the present
Constitution.
The Motion for Reconsideration is denied.
ISSUES:
Whether the creation of the Presidential Electoral Tribunal is
unconstitutional for being a violation of paragraph 7, Section 4 of
Article VII of the 1987 Constitution
Whether the designation of members of the supreme court as
members of the presidential electoral tribunal is unconstitutional
for being a violation of Section 12, Article VIII of the 1987
Constitution
HELD:
Constitutional Law
First Issue:
Petitioner, a prominent election lawyer who has filed several cases
before this Court involving constitutional and election law issues,
including, among others, the constitutionality of certain provisions
of Republic Act (R.A.) No. 9189 (The Overseas Absentee Voting Act
of 2003),cannot claim ignorance of: (1) the invocation of our
jurisdiction under Section 4, Article VII of the Constitution; and (2)
the unanimous holding thereon. Unquestionably, theoverarching
frameworkaffirmed inTecson v. Commission on Electionsis that the
Supreme Court has original jurisdiction to decide presidential and
vice-presidential election protests while concurrentlyacting as an
independent Electoral Tribunal.
Verba legisdictates that wherever possible, the words used in the
Constitution must be given their ordinary meaning except where
technical terms are employed, in which case the significance thus
attached to them prevails. However, where there is ambiguity or
doubt, the words of the Constitution should be interpreted in
accordance with the intent of its framers orratio legis et anima. A
doubtful provision must be examined in light of the history of the
times, and the condition and circumstances surrounding the
framing of the Constitution. Last,ut magis valeat quam pereat the
Constitution is to be interpreted as a whole.
By the same token, the PET is not a separate and distinct entity from
the Supreme Court, albeit it has functions peculiar only to the
Tribunal. It is obvious that the PET was constituted in
implementation of Section 4, Article VII of the Constitution, and it
faithfully complies not unlawfully defies the constitutional directive.
The adoption of a separate seal, as well as the change in the
nomenclature of the Chief Justice and the Associate Justices into
Chairman and Members of the Tribunal, respectively, was designed
simply to highlight the singularity and exclusivity of the Tribunals
functions as a special electoral court. the PET, as intended by the
framers of the Constitution, is to be an institutionindependent,but
not separate, from the judicial department,i.e., the Supreme Court.
Second Issue:
It is also beyond cavil that when the Supreme Court, as PET, resolves
a presidential or vice-presidential election contest, it performs what
is essentially a judicial power. In the landmark case ofAngara v.
Electoral Commission,Justice Jose P. Laurel enucleated that "it
would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along
constitutional channels." In fact,Angarapointed out that "[t]he
Constitution is a definition of the powers of government." And yet,
at that time, the 1935 Constitution did not contain the expanded
definition of judicial power found in Article VIII, Section 1,
paragraph 2 of the present Constitution.
Privilege and Salary
Executive Immunity applies only while sitting as President
(only the President can invoke)
SOLIVEN V. MAKASIAR
167 SCRA 393 Political Law Constitutional Law Presidents
Immunity From Suit Must Be Invoked by the President
Luis Beltran is among the petitioners in this case. He, together with
others, was charged with libel by the then president Corzaon
Aquino. Cory herself filed a complaint-affidavit against him and
others. Makasiar averred that Cory cannot file a complaint affidavit
because this would defeat her immunity from suit. He grounded his
contention on the principle that a president cannot be sued.
However, if a president would sue then the president would allow
herself to be placed under the courts jurisdiction and conversely
she would be consenting to be sued back. Also, considering the
functions of a president, the president may not be able to appear in
court to be a witness for herself thus she may be liable for
contempt.
ISSUE:
Whether or not such immunity can be invoked by Beltran, a person
other than the president.
HELD:
No. The rationale for the grant to the President of the privilege of
immunity from suit is to assure the exercise of Presidential duties
and functions free from any hindrance or distraction, considering
that being the Chief Executive of the Government is a job that, aside
from requiring all of the office-holders time, also demands
undivided attention.
But this privilege of immunity from suit, pertains to the President by
virtue of the office and may be invoked only by the holder of the
office; not by any other person in the Presidents behalf. Thus, an
accused like Beltran et al, in a criminal case in which the President is
the complainant cannot raise the presidential privilege as a defense
to prevent the case from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the
President from waiving the privilege. Thus, if so minded the
President may shed the protection afforded by the privilege and
submit to the courts jurisdiction. The choice of whether to exercise
the privilege or to waive it is solely the Presidents prerogative. It is
a decision that cannot be assumed and imposed by any other
person.
2

Estrada vs Desierto G.R. No. 146710-15; Estrada vs Arroyo
G.R. No. 146738, March 2 2001
[Immunity from Suit; Resignation of the President; Justiciable
controversy]
FACTS:
It began in October 2000 when allegations of wrong doings
involving bribe-taking, illegal gambling, and other forms of
corruption were made against Estrada before the Senate Blue
Ribbon Committee. On November 13, 2000, Estrada was impeached
by the Hor and, on December 7, impeachment proceedings were
begun in the Senate during which more serious allegations of graft
and corruption against Estrada were made and were only stopped
on January 16, 2001 when 11 senators, sympathetic to the
President, succeeded in suppressing damaging evidence against
Estrada. As a result, the impeachment trial was thrown into an
uproar as the entire prosecution panel walked out and Senate
President Pimentel resigned after casting his vote against Estrada.
On January 19, PNP and the AFP also withdrew their support for
Estrada and joined the crowd at EDSA Shrine. Estrada called for a
snap presidential election to be held concurrently with
congressional and local elections on May 14, 2001. He added that
he will not run in this election. On January 20, SC declared that the
seat of presidency was vacant, saying that Estrada constructively
resigned his post. At noon, Arroyo took her oath of office in the
presence of the crowd at EDSA as the 14th President. Estrada and
his family later left Malacaang Palace. Erap, after his fall, filed
petition for prohibition with prayer for WPI. It sought to enjoin the
respondent Ombudsman from conducting any further proceedings
in cases filed against him not until his term as president ends. He
also prayed for judgment confirming Estrada to be the lawful and
incumbent President of the Republic of the Philippines temporarily
unable to discharge the duties of his office.
ISSUE(S):
1. WoN the petition presents a justiciable controversy.
2. WoN Estrada resigned as President.
3. WoN Arroyo is only an acting President.
4. WoN the President enjoys immunity from suit.
5. WoN the prosecution of Estrada should be enjoined due to
prejudicial publicity.
RULING:
1. Political questions- "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."
Legal distinction between EDSA People Power I EDSA People Power
II:
EDSA I EDSA II
exercise of the people power of revolution which overthrew the
whole government. exercise of people power of freedom of speech
and freedom of assemblyto petition the government for redress of
grievances which only affected the office of the President.
extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review
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.
presented a political question; involves legal questions.
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: Sec 1 of Art II, and Sec 8 of Art
VII, and the allocation of governmental powers under Sec 11 of Art
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.
2. Elements of valid resignation: (a)an intent to resign and (b) acts of
relinquishment. Both were present when President Estrada left the
Palace.
Totality of prior contemporaneous posterior facts and circumstantial
evidence bearing material relevant issuesPresident Estrada is
deemed to have resigned constructive resignation.
SC declared that the resignation of President Estrada could not be
doubted as confirmed by his leaving Malacaan Palace. In the press
release containing his final statement:
1. He acknowledged the oath-taking of the respondent as President;
2. He emphasized he was leaving the Palace for the sake of peace
and in order to begin the healing process (he did not say that he
was leaving due to any kind of disability and that he was going to
reassume the Presidency as soon as the disability disappears);
3. He expressed his gratitude to the people for the opportunity to
serve them as President (without doubt referring to the past
opportunity);
4. He assured that he will not shirk from any future challenge that
may come in the same service of the country;
5. He called on his supporters to join him in promotion of a
constructive national spirit of reconciliation and solidarity.
Intent to resignmust be accompanied by act of
relinquishmentact or omission before, during and after January
20, 2001.
3. The Congress passed House Resolution No. 176 expressly stating
its support to Gloria Macapagal-Arroyo as President of the Republic
of the Philippines and subsequently passed H.R. 178 confirms the
nomination of Teofisto T. Guingona Jr. As Vice President. Senate
passed HR No. 83 declaring the Impeachment Courts as Functius
Officio and has been terminated. It is clear is that both houses of
Congress recognized Arroyo as the President. Implicitly clear in that
recognition is the premise that the inability of Estrada is no longer
temporary as the Congress has clearly rejected his claim of inability.
The Court therefore cannot exercise its judicial power for this is
political in nature and addressed solely to Congress by
constitutional fiat. In fine, even if Estrada 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 Arroyo is the de jure, president made by a co-equal
branch of government cannot be reviewed by this Court.
4. The cases filed against Estrada are criminal in character. They
involve plunder, bribery and graft and corruption. By no stretch of
3
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. He cannot cite any decision of this Court
licensing the President to commit criminal acts and wrapping him
with post-tenure immunity from liability. 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.
5. No. Case law will tell us that a right to a fair trial and the free
press are incompatible. Also, since our justice system does not use
the jury system, the judge, who is a learned and legally enlightened
individual, cannot be easily manipulated by mere publicity. The
Court also said that Estrada did not present enough evidence to
show that the publicity given the trial has influenced the judge so as
to render the judge unable to perform. Finally, the Court said that
the cases against Estrada were still undergoing preliminary
investigation, so the publicity of the case would really have no
permanent effect on the judge and that the prosecutor should be
more concerned with justice and less with prosecution.
Executive Privilege
ALMONTE VS VASQUEZ
G.R. No. 93567, May 23 1995
Petitioners: Nerio Rogado, Chief Accountant; Elisa Rivera, Chief of
the Records; Jose T. Almonte, EIIB Commissioner; Villamor Perez,
Budget and Fiscal Management Division Chief; Respondent:
Honorable Conrado M. Vasquez
FACTS:
Ombudsman Vasquez required Rogado and Rivera of Economic
Intelligence and Investigation Bureau (EIIB) to produce all
documents relating to Personal Service Funds yr. 1988 and all
evidence for the whole plantilla of EIIB for 1988. The subpoena
duces tecum was issued in connection with the investigation of
funds representing savings from unfilled positions in the EIIB which
were legally disbursed. Almonte and Perez denied the anomalous
activities that circulate around the EIIB office. They moved to
quash the subpoena duces tecum. They claim privilege of an agency
of the Government.
ISSUE:
Whether or not an Ombudsman can oblige the petitioners by virtue
of subpoena duces tecum to provide documents relating to
personal service and salary vouchers of EIIB employers.
RULING:
Yes. A government privilege against disclosure is recognized with
respect to state secrets bearing on military, diplomatic and similar
matters. This privilege is based upon public interest of such
paramount importance as in and of itself transcending the
individual interests of a private citizen, even though, as a
consequence thereof, the plaintiff cannot enforce his legal rights.
In the case at bar, there is no claim that military or diplomatic
secrets will be disclosed by the production of records pertaining to
the personnel of the EIIB. EIIB's function is the gathering and
evaluation of intelligence reports and information regarding "illegal
activities affecting the national economy, such as, but not limited to,
economic sabotage, smuggling, tax evasion, dollar salting."
Consequently while in cases which involve state secrets it may be
sufficient to determine the circumstances of the case that there is
reasonable danger that compulsion of the evidence will expose
military matters without compelling production, no similar excuse
can be made for privilege resting on other considerations.
SENATE OF THE PHILIPPINES V. ERMITA
495 SCRA 170 Political Law Constitutional Law
In 2005, scandals involving anomalous transactions about the North
Rail Project as well as the Garci tapes surfaced. This prompted the
Senate to conduct a public hearing to investigate the said anomalies
particularly the alleged overpricing in the NRP. The investigating
Senate committee issued invitations to certain department heads
and military officials to speak before the committee as resource
persons. Ermita submitted that he and some of the department
heads cannot attend the said hearing due to pressing matters that
need immediate attention. AFP Chief of Staff Senga likewise sent a
similar letter. Drilon, the senate president, excepted the said
requests for they were sent belatedly and arrangements were
already made and scheduled. Subsequently, GMA issued EO 464
which took effect immediately.
EO 464 basically prohibited Department heads, Senior officials of
executive departments who in the judgment of the department
heads are covered by the executive privilege; Generals and flag
officers of the Armed Forces of the Philippines and such other
officers who in the judgment of the Chief of Staff are covered by the
executive privilege; Philippine National Police (PNP) officers with
rank of chief superintendent or higher and such other officers who
in the judgment of the Chief of the PNP are covered by the
executive privilege; Senior national security officials who in the
judgment of the National Security Adviser are covered by the
executive privilege; and Such other officers as may be determined
by the President, from appearing in such hearings conducted by
Congress without first securing the presidents approval.
The department heads and the military officers who were invited by
the Senate committee then invoked EO 464 to except themselves.
Despite EO 464, the scheduled hearing proceeded with only 2
military personnel attending. For defying President Arroyos order
barring military personnel from testifying before legislative inquiries
without her approval, Brig. Gen. Gudani and Col. Balutan were
relieved from their military posts and were made to face court
martial proceedings. EO 464s constitutionality was assailed for it is
alleged that it infringes on the rights and duties of Congress to
conduct investigation in aid of legislation and conduct oversight
functions in the implementation of laws.
ISSUE:
Whether or not EO 464 is constitutional.
HELD:
The SC ruled that EO 464 is constitutional in part. To determine the
validity of the provisions of EO 464, the SC sought to distinguish
Section 21 from Section 22 of Art 6 of the 1987 Constitution. The
Congress power of inquiry is expressly recognized in Section 21 of
Article VI of the Constitution. Although there is no provision in the
4
Constitution expressly investing either House of Congress with
power to make investigations and exact testimony to the end that it
may exercise its legislative functions advisedly and effectively, such
power is so far incidental to the legislative function as to be implied.
In other words, the power of inquiry with process to enforce it is
an essential and appropriate auxiliary to the legislative function. A
legislative body cannot legislate wisely or effectively in the absence
of information respecting the conditions which the legislation is
intended to affect or change; and where the legislative body does
not itself possess the requisite information which is not
infrequently true recourse must be had to others who do possess
it.
Section 22 on the other hand provides for the Question Hour. The
Question Hour is closely related with the legislative power, and it is
precisely as a complement to or a supplement of the Legislative
Inquiry. The appearance of the members of Cabinet would be very,
very essential not only in the application of check and balance but
also, in effect, in aid of legislation. Section 22 refers only to
Question Hour, whereas, Section 21 would refer specifically to
inquiries in aid of legislation, under which anybody for that matter,
may be summoned and if he refuses, he can be held in contempt of
the House. A distinction was thus made between inquiries in aid of
legislation and the question hour. While attendance was meant to
be discretionary in the question hour, it was compulsory in inquiries
in aid of legislation. Sections 21 and 22, therefore, while closely
related and complementary to each other, should not be considered
as pertaining to the same power of Congress. One specifically
relates to the power to conduct inquiries in aid of legislation, the
aim of which is to elicit information that may be used for legislation,
while the other pertains to the power to conduct a question hour,
the objective of which is to obtain information in pursuit of
Congress oversight function. Ultimately, the power of Congress to
compel the appearance of executive officials under Section 21 and
the lack of it under Section 22 find their basis in the principle of
separation of powers.
While the executive branch is a co-equal branch of the legislature, it
cannot frustrate the power of Congress to legislate by refusing to
comply with its demands for information. When Congress
exercises its power of inquiry, the only way for department heads to
exempt themselves therefrom is by a valid claim of privilege. They
are not exempt by the mere fact that they are department heads.
Only one executive official may be exempted from this power the
President on whom executive power is vested, hence, beyond the
reach of Congress except through the power of impeachment. It
is based on her being the highest official of the executive branch,
and the due respect accorded to a co-equal branch of government
which is sanctioned by a long-standing custom. The requirement
then to secure presidential consent under Section 1, limited as it is
only to appearances in the question hour, is valid on its face. For
under Section 22, Article VI of the Constitution, the appearance of
department heads in the question hour is discretionary on their part.
Section 1 cannot, however, be applied to appearances of
department heads in inquiries in aid of legislation. Congress is not
bound in such instances to respect the refusal of the department
head to appear in such inquiry, unless a valid claim of privilege is
subsequently made, either by the President herself or by the
Executive Secretary.
When Congress merely seeks to be informed on how department
heads are implementing the statutes which it has issued, its right to
such information is not as imperative as that of the President to
whom, as Chief Executive, such department heads must give a
report of their performance as a matter of duty. In such instances,
Section 22, in keeping with the separation of powers, states that
Congress may only request their appearance. Nonetheless, when
the inquiry in which Congress requires their appearance is in aid of
legislation under Section 21, the appearance is mandatory for the
same reasons stated inArnault.
Prohibitions (sec. 13; also part on chapter of civil service
commission)
G. R. No. 85468, September 07, 1989
DOROMA VS. SANDIGANBAYAN,Ombudsman and Special
Prosecutor
FACTS:
Quintin S. Doromal, a former Commissioner of the Presidential
Commission on Good Government (PCGG), for violation of the
Anti-Graft and Corrupt Practices Act (RA 3019), Sec. 3(h), in
connection with his shareholdings and position as president and
director of the Doromal International Trading Corporation (DITC)
which submitted bids to supply P61 million worth of electronic,
electrical, automotive, mechanical and airconditioning equipment
to the Department of Education, Culture and Sports (or DECS) and
the National Manpower and Youth Council (or NMYC).
An information was then filed by the Tanodbayan against
Doromal for the said violation and a preliminary investigation was
conducted.
The petitioner then filed a petition for certiorari and prohibition
questioning the jurisdiction of the Tanodbayan to file the
information without the approval of the Ombudsman.
The Supreme Court held that the incumbent Tanodbayan (called
Special Prosecutor under the 1987 Constitution and who is
supposed to retain powers and duties NOT GIVEN to the
Ombudsman) is clearly without authority to conduct preliminary
investigations and to direct the filing of criminal cases with the
Sandiganbayan, except upon orders of the Ombudsman.
Subsequently annulling the information filed by the Tanodbayan.
A new information, duly approved by the Ombudsman, was filed in
the Sandiganbayan, alleging that the Doromal, a public officer, being
then a Commissioner of the Presidential Commission on Good
Government, did then and there wilfully and unlawfully, participate
in a business through the Doromal International Trading
Corporation, a family corporation of which he is the President, and
which company participated in the biddings conducted by the
Department of Education, Culture and Sports and the National
Manpower & Youth Council, which act or participation is prohibited
by law and the constitution.
The petitioner filed a motion to quash the information on the
ground that it was invalid since there had been no preliminary
investigation for the new information that was filed against him.
The motion was denied by Sandiganbayan claiming that another
preliminary investigation is unnecessary because both old and new
informations involve the same subject matter.
ISSUES:
1. Whether or not the act of Doromal would constitute a violation of
the Constitution.
5
2. Whether or not preliminary investigation is necessary even if both
informations involve the same subject matter.
3. Whether or not the information shall be effected as invalid due to
the absence of preliminary investigation.
HELD:
Yes, as to the first and second issuses. No, as to the third issue.
Petition was granted by the Supreme Court.
RATIO:
(1) The presence of a signed document bearing the signature of
Doromal as part of the application to bid shows that he can
rightfully be charged with having participated in a business which
act is absolutely prohibited by Section 13 of Article VII of the
Constitution" because "the DITC remained a family corporation in
which Doromal has at least an indirect interest."
Section 13, Article VII of the 1987 Constitution provides that "the
President, Vice-President, the members of the Cabinet and their
deputies or assistants shall not... during (their) tenure, ...directly or
indirectly... participate in any business.
(2) The right of the accused to a preliminary investigation is "a
substantial one." Its denial over his opposition is a "prejudicial error,
in that it subjects the accused to the loss of life, liberty, or property
without due process of law" provided by the Constitution.
Since the first information was annulled, the preliminary
investigation conducted at that time shall also be considered as void.
Due to that fact, a new preliminary investigation must be
conducted.
(3) The absence of preliminary investigation does not affect the
court's jurisdiction over the case. Nor do they impair the validity of
the information or otherwise render it defective; but, if there were
no preliminary investigations and the defendants, before entering
their plea, invite the attention of the court to their absence, the
court, instead of dismissing the information should conduct such
investigation, order the fiscal to conduct it or remand the case to
the inferior court so that the preliminary investigation may be
conducted.
WHEREFORE, the petition for certiorari and prohibition is granted.
The Sandiganbayan shall immediately remand Criminal Case No.
12893 to the Office of the Ombudsman for preliminary investigation
and shall hold in abeyance the proceedings before it pending the
result of such investigation.
CIVIL LIBERTIES UNION V. EXEC. SEC.
194 SCRA 317 Political Law Ex Officio Officials Members of June 30, 2006, Chico-Nazario
the Cabinet Singularity of Office EO 284
In July 1987, then President Corazon Aquino issued Executive Order
No. 284 which allowed members of the Cabinet, their
undersecretaries and assistant secretaries to hold other government
offices or positions in addition to their primary positions subject to
limitations set therein. The Civil Liberties Union (CLU) assailed this
EO averring that such law is unconstitutional. The constitutionality
of EO 284 is being challenged by CLU on the principal submission
that it adds exceptions to Sec 13, Article 7 of the Constitution which
provides:
Sec. 13. The President, Vice-President, the Members of the Cabinet,
and their deputies or assistants shall not, unless otherwise provided
in this Constitution, hold any other office or employment during
their tenure. They shall not, during said tenure, directly or indirectly
practice any other profession, participate in any business, or be
financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision,
agency, or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries. They shall strictly avoid
conflict of interest in the conduct of their office.
CLU avers that 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: (i) The Vice-President may be appointed as a
Member of the Cabinet under Sec 3, par. (2), Article 7; and (ii) the
Secretary of Justice is an ex-officio member of the Judicial and Bar
Council by virtue of Sec 8 (1), Article 8.
ISSUE:
Whether or not EO 284 is constitutional.
HELD:
No, it is unconstitutional. It is clear 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 constitutions manifest intent and the peoples
understanding thereof.
In the light of the construction given to Sec 13, Art 7 in relation to
Sec 7, par. (2), Art IX-B of the 1987 Constitution, EO 284 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 2
positions in the government and government corporations, EO 284
actually allows them to hold multiple offices or employment in
direct contravention of the express mandate of Sec 13, Art 7 of the
1987 Constitution prohibiting them from doing so, unless otherwise
provided in the 1987 Constitution itself.
Public Interest Center vs Elma
*concurrent appointments, incompatible office
N: CPM + TRO to declare null and void the concurrent appointments
of ELMA as PCGG Chair and as Chief Presidential Legal Counsel
F: Elma was appointed as PCGG Chair Oct 1998. Later on he was
appointed as CPLC (Jan 1999 during his term), but waived any
remuneration that he may receive as CPLC.
Supervening events: Theres actually no more controversy involved:
In 2001, Elma was replaced by Sabio as PCGG. Nachura was then
appointed as CPLC but pending resolution of the case, he was
appointed SOLGEN.
Arguments: Public Interest Center
CLU vs. Exec Sec: Art IX-B, Sec 7, par2 and Art VII, Sec13 are violated
6
by concurrent appointments
CPLC and PCGG Chair are incompatible offices
Arguments: Elma
As interpreted in CLU vs. Exec Sec, the mentioned consti provisions
dont cover other public officials given the rank of Secretary,
Undersecretary, or Assistant Secretary.
His appointment falls under the exceptions in Art IX-B, Sec7
The 2 positions are not incompatible
NOTE: even if issue already moot, SC still took cognizance of the
case because the case is capable of repetition, and to serve as a
guide to the bench.
Issue:
whether the position of the PCGG Chairman or that of the CPLC falls
under the prohibition against multiple offices imposed by Section 7,
par. 2, Article IX-B of the 1987 Constitution
Held:
YES.
The crucial test in determining whether incompatibility exists
between two offices was laid out in People v. Green[13] - whether
one office is subordinate to the other, in the sense that one office
has the right to interfere with the other.
[I]ncompatibility between two offices, is an inconsistency in the
functions of the two; x x x Where one office is not subordinate to
the other, nor the relations of the one to the other such as are
inconsistent and repugnant, there is not that incompatibility from
which the law declares that the acceptance of the one is the
vacation of the other. The force of the word, in its application to this
matter is, that from the nature and relations to each other, of the
two places, they ought not to be held by the same person, from the
contrariety and antagonism which would result in the attempt by
one person to faithfully and impartially discharge the duties of one,
toward the incumbent of the other. x x x The offices must
subordinate, one [over] the other, and they must, per se, have the
right to interfere, one with the other, before they are incompatible
at common law. x x x
***In this case, an incompatibility exists between the positions of
the PCGG Chairman and the CPLC. The duties of the CPLC include
giving independent and impartial legal advice on the actions of the
heads of various executive departments and agencies and to review
investigations involving heads of executive departments and
agencies, as well as other Presidential appointees. The PCGG is,
without question, an agency under the Executive Department. Thus,
the actions of the PCGG Chairman are subject to the review of the
CPLC.
*note: Memorandum Order No. 152, issued on 9 July 2004
(provides that CPLC review Decision on investigation involving
Cabinet Secretaries, agency heads, or Presidential appointees with
the rank of Secretary conducted by the Presidential Anti-Graft
Commission (PAGC))
Issue:
whether such appointments violate the other constitutional
provision regarding multiple offices, Section 13, Article VII of the
1987 Constitution
Held:
NO if based on position. YES if based on primary functions test.
the strict prohibition under Section 13, Article VII of the 1987
Constitution is not applicable to the PCGG Chairman nor to the CPLC,
as neither of them is a secretary, undersecretary, nor an assistant
secretary, even if the former may have the same rank as the latter
positions.
*Review ulit CLU vs. Exec Sec: The language of Section 13, Article VII
is a definite and unequivocal negation of the privilege of holding
multiple offices or employment.
The Court cautiously allowed only two exceptions to the rule against
multiple offices:
(1) those provided for under the Constitution, such as Section 3,
Article VII, authorizing the Vice-President to become a member of
the Cabinet; or
(2) posts occupied by the Executive officials specified in Section 13,
Article VII without additional compensation in an ex-officio capacity
as provided by law and as required by the primary functions of said
officials office.
The Court further qualified that additional duties must not only be
closely related to, but must be required by the officials primary
functions. Moreover, the additional post must be exercised in an
ex-officio capacity, which 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.[18]
Thus, it will not suffice that no additional compensation shall be
received by virtue of the second appointment, it is mandatory that
the second post is required by the primary functions of the first
appointment and is exercised in an ex-officio capacity.
*Even Section 13, Article VII does not sanction this dual
appointment. Appointment to the position of PCGG Chairman is not
required by the primary functions of the CPLC, and vice versa.
In sum, the prohibition in Section 13, Article VII of the 1987
Constitution does not apply to respondent Elma since neither the
PCGG Chairman nor the CPLC is a Cabinet secretary, undersecretary,
or assistant secretary. Even if this Court assumes, arguendo, that
Section 13, Article VII is applicable to respondent Elma, he still could
not be appointed concurrently to the offices of the PCGG Chairman
and CPLC because neither office was occupied by him in an
ex-officio capacity, and the primary functions of one office do not
require an appointment to the other post. Moreover, even if the
appointments in question are not covered by Section 13, Article VII
of the 1987 Constitution, said appointments are still prohibited
under Section 7, Article IX-B, which covers all appointive and
elective officials, due to the incompatibility between the primary
functions of the offices of the PCGG Chairman and the CPLC.
Executive Power (includes Residual Power)
MARCOS VS MANGLAPUS
G.R. No. 88211 September 15 1989
FACTS:
Former President Marcos, after his and his family spent three year
exile in Hawaii, USA, sought to return to the Philippines. The call is
7
about to request of Marcos family to order the respondents to issue
travel order to them and to enjoin the petition of the President's
decision to bar their return to the Philippines.
ISSUE:
Whether or not, in the exercise of the powers granted by the
Constitution, the President may prohibit the Marcoses from
returning to the Philippines.
RULING:
Yes According to Section 1, Article VII of the 1987 Constitution: "The
executive power shall be vested in the President of the Philippines."
The phrase, however, does not define what is meant by executive
power although the same article tackles on exercises of certain
powers by the President such as appointing power during recess of
the Congress (S.16), control of all the executive departments,
bureaus, and offices (Section 17), power to grant reprieves,
commutations, and pardons, and remit fines and forfeitures, after
conviction by final judgment (Section 19), treaty making power
(Section 21), borrowing power (Section 20), budgetary power
(Section 22), informing power (Section 23).
The Constitution may have grant powers to the President, it cannot
be said to be limited only to the specific powers enumerated in the
Constitution. Whatever power inherent in the government that is
neither legislative nor judicial has to be executive.
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.
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.
4. 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.
8
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."
The SC sustain the power of the president to create the
Commission but, invalidated the executive ordernevertheless on
the ground of violation of equal protection.
BIRAOGO VS PTC
MARCH 28, 2013
G.R. No. 192935 December 7, 2010
FACTS:
Pres. Aquino signed E. O. No. 1 establishing Philippine Truth
Commission of 2010 (PTC) dated July 30, 2010. PTC is a mere ad hoc
body formed under the Office of the President with the primary task
to investigate reports of graft and corruption committed by
third-level public officers and employees, their co-principals,
accomplices and accessories during the previous administration,
and to submit its finding and recommendations to the President,
Congress and the Ombudsman. PTC has all the powers of an
investigative body. But it is not a quasi-judicial body as it cannot
adjudicate, arbitrate, resolve, settle, or render awards in disputes
between contending parties. All it can do is gather, collect and
assess evidence of graft and corruption and make recommendations.
It may have subpoena powers but it has no power to cite people in
contempt, much less order their arrest. Although it is a fact-finding
body, it cannot determine from such facts if probable cause exists as
to warrant the filing of an information in our courts of law.
Petitioners asked the Court to declare it unconstitutional and to
enjoin the PTC from performing its functions. They argued that: (a)
E.O. No. 1 violates separation of powers as it arrogates the power of
the Congress to create a public office and appropriate funds for its
operation. (b) The provision of Book III, Chapter 10, Section 31 of
the Administrative Code of 1987 cannot legitimize E.O. No. 1
because the delegated authority of the President to structurally
reorganize the Office of the President to achieve economy,
simplicity and efficiency does not include the power to create an
entirely new public office which was hitherto inexistent like the
Truth Commission. (c) E.O. No. 1 illegally amended the
Constitution and statutes when it vested the Truth Commission
with quasi-judicial powers duplicating, if not superseding, those of
the Office of the Ombudsman created under the 1987 Constitution
and the DOJ created under the Administrative Code of 1987. (d) E.O.
No. 1 violates the equal protection clause as it selectively targets for
investigation and prosecution officials and personnel of the previous
administration as if corruption is their peculiar species even as it
excludes those of the other administrations, past and present, who
may be indictable. Respondents, through OSG, questioned the legal
standing of petitioners and argued that: 1] E.O. No. 1 does not
arrogate the powers of Congress because the Presidents executive
power and power of control necessarily include the inherent power
to conduct investigations to ensure that laws are faithfully executed
and that, in any event, the Constitution, Revised Administrative
Code of 1987, PD No. 141616 (as amended), R.A. No. 9970 and
settled jurisprudence, authorize the President to create or form
such bodies. 2] E.O. No. 1 does not usurp the power of Congress to
appropriate funds because there is no appropriation but a mere
allocation of funds already appropriated by Congress. 3] The Truth
9
Commission does not duplicate or supersede the functions of the
Ombudsman and the DOJ, because it is a fact-finding body and not a
quasi-judicial body and its functions do not duplicate, supplant or
erode the latters jurisdiction. 4] The Truth Commission does not
violate the equal protection clause because it was validly created for
laudable purposes.
ISSUES:
1. WON the petitioners have legal standing to file the petitions and
question E. O. No. 1;
2. WON E. O. No. 1 violates the principle of separation of powers by
usurping the powers of Congress to create and to appropriate funds
for public offices, agencies and commissions;
3. WON E. O. No. 1 supplants the powers of the Ombudsman and
the DOJ; 4. WON E. O. No. 1 violates the equal protection clause.
RULING:
The power of judicial review is subject to limitations, to wit: (1)
there must be an actual case or controversy calling for the exercise
of judicial power; (2) the person challenging the act must have the
standing to question the validity of the subject act or issuance;
otherwise stated, he must have a personal and substantial interest
in the case such that he has sustained, or will sustain, direct injury
as a result of its enforcement; (3) the question of constitutionality
must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case. 1. The
petition primarily invokes usurpation of the power of the Congress
as a body to which they belong as members. To the extent the
powers of Congress are impaired, so is the power of each member
thereof, since his office confers a right to participate in the exercise
of the powers of that institution. Legislators have a legal standing to
see to it that the prerogative, powers and privileges vested by the
Constitution in their office remain inviolate. Thus, they are allowed
to question the validity of any official action which, to their mind,
infringes on their prerogatives as legislators. With regard to Biraogo,
he has not shown that he sustained, or is in danger of sustaining,
any personal and direct injury attributable to the implementation of
E. O. No. 1. Locus standi is a right of appearance in a court of
justice on a given question. In private suits, standing is governed by
the real-parties-in interest rule. It provides that every action
must be prosecuted or defended in the name of the real party in
interest. Real-party-in interest is the party who stands to be
benefited or injured by the judgment in the suit or the party
entitled to the avails of the suit. Difficulty of determining locus
standi arises in public suits. Here, the plaintiff who asserts a public
right in assailing an allegedly illegal official action, does so as a
representative of the general public. He has to show that he is
entitled to seek judicial protection. He has to make out a sufficient
interest in the vindication of the public order and the securing of
relief as a citizen or taxpayer. The person who impugns the
validity of a statute must have a personal and substantial interest
in the case such that he has sustained, or will sustain direct injury as
a result. The Court, however, finds reason in Biraogos assertion
that the petition covers matters of transcendental importance to
justify the exercise of jurisdiction by the Court. There are
constitutional issues in the petition which deserve the attention of
this Court in view of their seriousness, novelty and weight as
precedents The Executive is given much leeway in ensuring that our
laws are faithfully executed. The powers of the President are not
limited to those specific powers under the Constitution. One of the
recognized powers of the President granted pursuant to this
constitutionally-mandated duty is the power to create ad hoc
committees. This flows from the obvious need to ascertain facts and
determine if laws have been faithfully executed. The purpose of
allowing ad hoc investigating bodies to exist is to allow an inquiry
into matters which the President is entitled to know so that he can
be properly advised and guided in the performance of his duties
relative to the execution and enforcement of the laws of the land.
2. There will be no appropriation but only an allotment or
allocations of existing funds already appropriated. There is no
usurpation on the part of the Executive of the power of Congress to
appropriate funds. There is no need to specify the amount to be
earmarked for the operation of the commission because, whatever
funds the Congress has provided for the Office of the President will
be the very source of the funds for the commission. The amount
that would be allocated to the PTC shall be subject to existing
auditing rules and regulations so there is no impropriety in the
funding.
PTC will not supplant the Ombudsman or the DOJ or erode their
respective powers. If at all, the investigative function of the
commission will complement those of the two offices. The function
of determining probable cause for the filing of the appropriate
complaints before the courts remains to be with the DOJ and the
Ombudsman. PTCs power to investigate is limited to obtaining facts
so that it can advise and guide the President in the performance of
his duties relative to the execution and enforcement of the laws of
the land. 4. Court finds difficulty in upholding the constitutionality
of Executive Order No. 1 in view of its apparent transgression of the
equal protection clause enshrined in Section 1, Article III (Bill of
Rights) of the 1987 Constitution. Equal protection requires that all
persons or things similarly situated should be treated alike, both as
to rights conferred and responsibilities imposed. It requires public
bodies and institutions to treat similarly situated individuals in a
similar manner. The purpose of the equal protection clause is to
secure every person within a states jurisdiction against intentional
and arbitrary discrimination, whether occasioned by the express
terms of a statue or by its improper execution through the states
duly constituted authorities. There must be equality among equals
as determined according to a valid classification. Equal protection
clause permits classification. Such classification, however, to be
valid must pass the test of reasonableness.
The test has four requisites: (1) The classification rests on
substantial distinctions; (2) It is germane to the purpose of the law;
(3) It is not limited to existing conditions only; and (4) It applies
equally to all members of the same class. The classification will be
regarded as invalid if all the members of the class are not similarly
treated, both as to rights conferred and obligations imposed.
Executive Order No. 1 should be struck down as violative of the
equal protection clause. The clear mandate of truth commission is
to investigate and find out the truth concerning the reported cases
of graft and corruption during the previous administration only. The
intent to single out the previous administration is plain, patent and
manifest. Arroyo administration is but just a member of a class, that
is, a class of past administrations. It is not a class of its own. Not to
include past administrations similarly situated constitutes
10
arbitrariness which the equal protection clause cannot sanction.
Such discriminating differentiation clearly reverberates to label the
commission as a vehicle for vindictiveness and selective retribution.
Superficial differences do not make for a valid classification. The PTC
must not exclude the other past administrations. The PTC must, at
least, have the authority to investigate all past administrations. The
Constitution is the fundamental and paramount law of the nation to
which all other laws must conform and in accordance with which all
private rights determined and all public authority administered.
Laws that do not conform to the Constitution should be stricken
down for being unconstitutional. WHEREFORE, the petitions are
GRANTED. Executive Order No. 1 is hereby declared
UNCONSTITUTIONAL insofar as it is violative of the equal protection
clause of the Constitution.
PICHAY V. OFFICE OF THE DEPUTY EXECUTIVE SECRETARY (2012)
ODES no power to try and decide cases E.O. No. 13 empowering it
is unconstitutional FACTS On November 15, 2010, President Benigno
Simeon Aquino III issued Executive Order No. 13 (E.O. 13),
abolishing the PAGC and transferring its functions to the Office of
the Deputy Executive Secretary for Legal Affairs (ODESLA), more
particularly to its newly-established Investigative and Adjudicatory
Division (IAD).On April 6, 2011, respondent Finance Secretary Cesar
V. Purisima filed before the IAD-ODESLA a complaint-affidavit for
grave misconduct against petitioner Prospero A. Pichay, Jr.,
Chairman of the Board of Trustees of the Local Water Utilities
Administration (LWUA), as well as the incumbent members of the
LWUA Board of Trustees, namely, Renato Velasco, Susana Dumlao
Vargas, Bonifacio Mario M. Pena, Sr. and Daniel Landingin, which
arose from the purchase by the LWUA of Four Hundred Forty-Five
Thousand Three Hundred Seventy Seven (445,377) shares of stock
of Express Savings Bank, Inc. On April 14, 2011, petitioner received
an Order3 signed by Executive Secretary Paquito N. Ochoa, Jr.
requiring him and his co-respondents to submit their respective
written explanations under oath. In compliance therewith,
petitioner filed a Motion to Dismiss Ex Abundante Ad Cautelam
manifesting that a case involving the same transaction and charge
of grave misconduct entitled, "Rustico B. Tutol, et al. v. Prospero
Pichay, et al.", and docketed as OMB-C-A-10-0426-I, is already
pending before the Office of the Ombudsman.
ISSUE
Whether E.O. 13 is unconstitutional for abrogating unto an
administrative office a quasi-judicial function through and E.O. and
not through legislative enactment by Congress.
HELD
NO. The President has Continuing Authority to Reorganize the
Executive Department under E.O. 292. In the case of Buklod ng
Kawaning EIIB v. Zamora the Court affirmed that the President's
authority to carry out a reorganization in any branch or agency of
the executive department is an express grant by the legislature by
virtue of Section 31, Book III, E.O. 292 (the Administrative Code of
1987), "the President, subject to the policy of the Executive Office
and in order to achieve simplicity, economy and efficiency, shall
have the continuing authority to reorganize the administrative
structure of the Office of the President." The law grants the
President this power in recognition of the recurring need of every
President to reorganize his office "to achieve simplicity, economy
and efficiency." The Office of the President is the nerve center of
the Executive Branch. To remain effective and efficient, the Office of
the President must be capable of being shaped and reshaped by the
President in the manner he deems fit to carry out his directives and
policies. After all, the Office of the President is the command post of
the President. (Emphasis supplied) Clearly, the abolition of the PAGC
and the transfer of its functions to a division specially created within
the ODESLA is properly within the prerogative of the President
under his continuing "delegated legislative authority to reorganize"
his own office pursuant to E.O. 292. The President's power to
reorganize the Office of the President under Section 31 (2) and (3)
of EO 292 should be distinguished from his power to reorganize the
Office of the President Proper. Under Section 31 (1) of EO 292, the
President can reorganize the Office of the President Proper by
abolishing, consolidating or merging units, or by transferring
functions from one unit to another. In contrast, under Section 31 (2)
and (3) of EO 292, the President's power to reorganize offices
outside the Office of the President Proper but still within the Office
of the President is limited to merely transferring functions or
agencies from the Office of the President to Departments or gencies,
and vice versa. The distinction between the allowable organizational
actions under Section 31(1) on the one hand and Section 31 (2) and
(3) on the other is crucial not only as it affects employees' tenurial
security but also insofar as it touches upon the validity of the
reorganization, that is, whether the executive actions undertaken
fall within the limitations prescribed under E.O. 292. When the
PAGC was created under E.O. 12, it was composed of a Chairman
and two (2) Commissioners who held the ranks of Presidential
Assistant II and I, respectively,9 and was placed directly "under the
Office of the President."10 On the other hand, the ODESLA, to
which the functions of the PAGC have now been transferred, is an
office within the Office of the President Proper.11 Since both of
these offices belong to the Office of the President Proper, the
reorganization by way of abolishing the PAGC and transferring its
functions to the ODESLA is allowable under Section 31 (1) of E.O.
292 What actions does reorganization include? The Reorganization
Did not Entail the Creation of a New, Separate and Distinct Office.
The abolition of the PAGC did not require the creation of a new,
additional and distinct office as the duties and functions that
pertained to the defunct anti-graft body were simply transferred to
the ODESLA, which is an existing office within the Office of the
President Proper. The reorganization required no more than a mere
alteration of the administrative structure of the ODESLA through
the establishment of a third division the Investigative and
Adjudicatory Division through which ODESLA could take on the
additional functions it has been tasked to discharge under E.O. 13.
Reorganization takes place when there is an alteration of the
existing structure of government offices or units therein, including
the lines of control, authority and responsibility between them. It
involves a reduction of personnel, consolidation of offices, or
abolition thereof by reason of economy or redundancy of functions.
The IAD-ODESLA is a fact-finding and recommendatory body not
vested with quasi-judicial powers. while the term "adjudicatory"
appears part of its appellation, the IAD-ODESLA cannot try and
resolve cases, its authority being limited to the conduct of
investigations, preparation of reports and submission of
recommendations. E.O. 13 explicitly states that the IAD-ODESLA
shall "perform powers, functions and duties xxx, of PAGC." Under
11
E.O. 12, the PAGC was given the authority to "investigate or hear
administrative cases or complaints against all presidential
appointees in the government" and to "submit its report and
recommendations to the President." The IAD-ODESLA is a
fact-finding and recommendatory body to the President, not having
the power to settlecontroversies and adjudicate cases. As the Court
ruled in Cario v. Commission on Human Rights, and later reiterated
in Biraogo v. The Philippine Truth Commission: Fact-finding is not
adjudication and it cannot be likened to the judicial function of a
court of justice, or even a quasi- judicial agency or office. The
function of receiving evidence and ascertaining therefrom the facts
of a controversy is not a judicial function. To be considered as such,
the act of receiving evidence and arriving at factual conclusions in a
controversy must be accompanied by the authority of applying the
law to the factual conclusions to the end that the controversy may
be decided or determined authoritatively, finally and definitively,
subject to such appeals or modes of review as may be provided by
law. The IAD-ODESLA does not encroach upon the powers and
duties of the Ombudsman. Contrary to petitioner's contention, the
IAD-ODESLA did not encroach upon the Ombudsman's primary
jurisdiction when it took cognizance of the complaint affidavit filed
against him notwithstanding the earlier filing of criminal and
administrative cases involving the same charges and allegations
before the Office of the Ombudsman. The primary jurisdiction of
the Ombudsman to investigate and prosecute cases refers to
criminal cases cognizable by the Sandiganbayan and not to
administrative cases. It is only in the exercise of its primary
jurisdiction that the Ombudsman may, at any time, take over the
investigation being conducted by another investigatory agency.
Section 15 (1) of R.A. No. 6770 or the Ombudsman Act of 1989.
While the Ombudsman's function goes into the determination of
the existence of probable cause and the adjudication of the merits
of a criminal accusation, the investigative authority of the IAD-
ODESLA is limited to that of a fact-finding investigator whose
determinations and recommendations remain so until acted upon
by the President. Finally, petitioner doubts that the IAD-ODESLA can
lawfully perform its duties as an impartial tribunal, contending that
both the IAD-ODESLA and respondent Secretary Purisima are
connected to the President. The mere suspicion of partiality will not
suffice to invalidate the actions of the IAD-ODESLA. Mere allegation
is not equivalent to proof. Bias and partiality cannot be presumed.
Petitioner must present substantial proof to show that the
lAD-ODES LA had unjustifiably sided against him in the conduct of
the investigation. No such evidence has been presented as to defeat
the presumption of regularity m the performance of the fact-finding
investigator's duties. The assertion, therefore, deserves scant
consideration. Every law has in its favor the presumption of
constitutionality, and to justify its nullification, there must be a clear
and unequivocal breach of the Constitution, not a doubtful and
argumentative one.39 Petitioner has failed to discharge the burden
of proving the illegality of E.O. 13, which IS indubitably a valid
exercise of the President's continuing authority to reorganize the
Office of the President.
Power of Control
DENR VS DENR EMPLOYEES
G.R. No. 149724 [Alter ego of the President, Qualified Political
Agency Doctrine]
FACTS:
DENR Reg 12 Employees filed a petition for nullity of the
memorandum order issued by the Regional Exec. Director of DENR,
directing the immediate transfer of the DENR 12 Regional Offices
from Cotabato to Koronadal City. The memorandum was issued
pursuant to DENR Executive Order issued by the DENR Secretary.
Issue:
Whether or not DENR Secretary has the authority to reorganize the
DENR Region 12 Office.
RULING:
The qualified political agency doctrine, all executive and
administrative organizations are adjuncts of the Executive
Department, and the acts of the Secretaries of such departments,
performed and promulgated in the regular course of business, are,
unless disapproved or reprobated by the Chief Executive, are
presumptively the acts of the Chief Executive. It is corollary to the
control power of the President as provided for under Art. VII Sec. 17
of the 1987 Constitution: "The President shall have control of all the
executive departments, bureaus, and offices. He shall ensure that
the laws be faithfully executed." In the case at bar, the DENR
Secretary can validly reorganize the DENR by ordering the transfer
of the DENR XII Regional Offices from Cotabato City to Koronadal,
South Cotabato. The exercise of this authority by the DENR
Secretary, as an alter ego, is presumed to be the acts of the
President for the latter had not expressly repudiated the same.
Jose Mondano vs Fernando Silvosa
97 Phil. 143 Political Law Control Power Revised Administrative
Code Supervision Jose Mondano was the mayor of Mainit, Surigao.
A complaint was filed against him for rape and concubinage. The
information reached the Assistant Executive Secretary who ordered
the governor to investigate the matter. Consequently, Governor
Fernando Silvosa then summoned Mondano and the latter
appeared before him. Thereafter Silvosa suspended Mondano.
Mondano filed a petition for prohibition enjoining the governor
from further proceeding. In his defense, Silvosa invoked the Revised
Administrative Code which provided that he, as part of the
executive and by virtue o the order given by the Assistant Executive
Secretary, is with direct control, direction, and supervision over all
bureaus and offices under his jurisdiction . . . and to that end may
order the investigation of any act or conduct of any person in the
service of any bureau or office under his Department and in
connection therewith may appoint a committee or designate an
official or person who shall conduct such investigations.
ISSUE:
Whether or not the Governor, as agent of the Executive, can
exercise the power of control over a mayor.
HELD:
No. (Note that Silvosa was asking as the agent of the Assistant
Executive Secretary who ordered him to investigate Mondano).
The Constitution provides:
The President shall have control of all the executive departments,
bureaus, or offices, exercise general supervision over all local
12
governments as may be provided by law, and take care that the laws
be faithfully executed.
Under this constitutional provision the President has been invested
with the power of control of all the executive departments, bureaus,
or offices, but not of all localgovernments over which he has been
granted only the power of general supervision as may be provided
by law. The Department head as agent of the President has direct
control and supervision over all bureaus and offices under his
jurisdiction as provided for in section 79(c) of the Revised
Administrative Code, but he does not have the same control of local
governments as that exercised by him over bureaus and offices
under his jurisdiction. Likewise, his authority to order the
investigation of any act or conduct of any person in the service of
any bureau or office under his department is confined to bureaus or
offices under his jurisdiction and does not extend to local
governments over which, as already stated, the President exercises
only general supervision as may be provided by law. If the
provisions of section 79 (c) of the Revised Administrative Code are
to be construed as conferring upon the corresponding department
head direct control, direction, and supervision over all local
governments and that for that reason he may order the
investigation of an official of a local government for malfeasance in
office, such interpretation would be contrary to the provisions of
par 1, sec 10, Article 7, of the 1935 Constitution. In administrative
law supervision means overseeing or the power or authority of an
officer to see that subordinate officers perform their duties. If the
latter fail or neglect to fulfill them the former may take such action
or step as prescribed by law to make them perform their duties.
Control, on the other hand, means the power of an officer to alter
or modify or nullify or set aside what a subordinate officer had done
in the performance of his duties and to substitute the judgment of
the former for that of the latter. The Congress has expressly and
specifically lodged the provincial supervision over municipal officials
in the provincial governor who is authorized to receive and
investigate complaints made under oath against municipal officers
for neglect of duty, oppression, corruption or other form of
maladministration of office, and conviction by final judgment of any
crime involving moral turpitude. And if the charges are serious, he
shall submit written charges touching the matter to the provincial
board, furnishing a copy of such charges to the accused either
personally or by registered mail, and he may in such case suspend
the officer (not being the municipal treasurer) pending action by the
board, if in his opinion the charge be one affecting the official
integrity of the officer in question. Sec 86 of the Revised
Administrative Code adds nothing to the power of supervision to be
exercised by the Department Head over the administration of
municipalities. In this case, the governor can only investigate
Mondano for crimes relating to Mondanos office. If the issue is not
related to his office but involves a rime of moral turpitude (such as
rape or concubinage as in this case), there must first be a final
conviction before a suspension may be issued. The point is, the
governor must suspend a mayor not because hes acting as an agent
of the Executive but because of the power granted him by the
Revised Administrative Code.
Jose Villena vs Secretary of the Interior
67 Phil. 451 Political Law Control Power Supervision Jose Magallanes was permitted to use and occupy a land used for
Suspension of a Local Government Official Power to suspend
comes with the power to remove
Jose Villena was the then mayor of Makati in the 1930s. After
investigation, the Secretary of Interior recommended the
suspension of Villena with the Office of the president who approved
the same. The Secretary then suspended Villena. Villena averred
claiming that the Secretary has no jurisdiction over the matter. The
power or jurisdiction is lodged in the local government [the
governor] pursuant to sec 2188 of the Administrative Code. Further,
even if the respondent Secretary of the Interior has power of
supervision over local governments, that power, according to the
constitution, must be exercised in accordance with the provisions of
law and the provisions of law governing trials of charges against
elective municipal officials are those contained in sec 2188 of the
Administrative Code as amended. In other words, the Secretary of
the Interior must exercise his supervision over local governments, if
he has that power under existing law, in accordance with sec 2188
of the Administrative Code, as amended, as the latter provisions
govern the procedure to be followed in suspending and punishing
elective local officials while sec 79 (C) of the Administrative Code is
the genera law which must yield to the special law.
ISSUE:
Whether or not the Secretary of Interior can suspend an LGU official
under investigation.
HELD:
Yes.
There is no clear and express grant of power to the secretary to
suspend a mayor of a municipality who is under investigation. On
the contrary, the power appears lodged in the provincial governor
by sec 2188 of the Administrative Code which provides that The
provincial governor shall receive and investigate complaints made
under oath against municipal officers for neglect of duty, oppression,
corruption or other form of maladministration of office, and
conviction by final judgment of any crime involving moral turpitude.
The fact, however, that the power of suspension is expressly
granted by sec 2188 of the Administrative Code to the provincial
governor does not mean that the grant is necessarily exclusive and
precludes the Secretary of the Interior from exercising a similar
power. For instance, Villena admitted in the oral argument that the
President of the Philippines may himself suspend the petitioner
from office in virtue of his greater power of removal (sec. 2191, as
amended, Administrative Code) to be exercised conformably to law.
Indeed, if the President could, in the manner prescribed by law,
remove a municipal official; it would be a legal incongruity if he
were to be devoid of the lesser power of suspension. And the
incongruity would be more patent if, possessed of the power both
to suspend and to remove a provincial official (sec. 2078,
Administrative Code), the President were to be without the power
to suspend a municipal official. The power to suspend a municipal
official is not exclusive. Preventive suspension may be issued to give
way for an impartial investigation.
Lacson-Magallanes Co., Inc. vs Jose Pao
21 SCRA 895 Political Law Delegation of Control Power to the
Executive Secretary
pasture in Davao. The said land was a forest zone which was later
13
declared as an agricultural zone. Magallanes then ceded his rights to
Lacson-Magallanes Co., Inc. (LMC) of which he is a co-owner. Jose
Pao was a farmer who asserted his claim over the same piece of
land. The Director of Lands denied Paos request. The Secretary
of Agriculture likewise denied his petition hence it was elevated to
the Office of the President. Executive Secretary Juan Pajo ruled in
favor of Pao. LMC averred that the earlier decision of the Secretary
of Agriculture is already conclusive hence beyond appeal. He also
averred that the decision of the Executive Secretary is an undue
delegation of power. The Constitution, LMC asserts, does not
contain any provision whereby the presidential power of control
may be delegated to the Executive Secretary. It is argued that it is
the constitutional duty of the President to act personally upon the
matter.
ISSUE:
Whether or not the power of control may be delegated to the
Executive Secretary.
HELD:
Yes. It is true that as a rule, the President must exercise his
constitutional powers in person. However, the president may
delegate certain powers to the Executive Secretary at his discretion.
The president may delegate powers which are not required by the
Constitution for him to perform personally. The reason for this
allowance is the fact that the resident is not expected to perform in
person all the multifarious executive and administrative functions.
The office of the Executive Secretary is an auxiliary unit which
assists the President. The rule which has thus gained recognition is
that under our constitutional setup the Executive Secretary who
acts for and in behalf and by authority of the President has an
undisputed jurisdiction to affirm, modify, or even reverse any
order that the Secretary of Agriculture and Natural Resources,
including the Director of Lands, may issue. The act of the Executive
Secretary, acting as the alter ego of the President, shall remain valid
until reversed, disapproved, or reprobated by the President. In this
case, no reprobation was made hence the decision granting the land
to Pao cannot be reversed.
Power of General Supervision over LGUs
Rodolfo Ganzon vs Court of Appeals
200 SCRA 271 Political Law Control Power Local Government
Facts:
Rodolfo Ganzon was the then mayor of Iloilo City. 10 complaints
were filed against him on grounds of misconduct and misfeasance
of office. The Secretary of Local Government issued several
suspension orders against Ganzon based on the merits of the
complaints filed against him hence Ganzon was facing about 600
days of suspension. Ganzon appealed the issue to the CA and the CA
affirmed the suspension order by the Secretary. Ganzon asserted
that the 1987 Constitution does not authorize the President nor any
of his alter ego to suspend and remove local officials; this is because
the 1987 Constitution supports local autonomy and strengthens the
same. What was given by the present Constitution was mere
supervisory power.
ISSUE:
Whether or not the Secretary of Local Government, as the
Presidents alter ego, can suspend and or remove local officials.
HELD:
Yes. Ganzon is under the impression that the Constitution has left
the President mere supervisory powers, which supposedly excludes
the power of investigation, and denied her control, which allegedly
embraces disciplinary authority. It is a mistaken impression because
legally, supervision is not incompatible with disciplinary authority.
The SC had occasion to discuss the scope and extent of the power of
supervision by the President over local government officials in
contrast to the power of control given to him over executive officials
of our government wherein it was emphasized that the two terms,
control and supervision, are two different things which differ one
from the other in meaning and extent. In administration law
supervision means overseeing or the power or authority of an
officer to see that subordinate officers perform their duties. If the
latter fail or neglect to fulfill them the former may take such action
or step as prescribed by law to make them perform their duties.
Control, on the other hand, means the power of an officer to alter
or modify or nullify of set aside what a subordinate officer had done
in the performance of his duties and to substitute the judgment of
the former for that of the latter. But from this pronouncement it
cannot be reasonably inferred that the power of supervision of the
President over local government officials does not include the
power of investigation when in his opinion the good of the public
service so requires.
The Secretary of Local Government, as the alter ego of the
president, in suspending Ganzon is exercising a valid power. He
however overstepped by imposing a 600 day suspension.
DADOLE vs. COA
December 3, 2002
SUMMARY:
Sangguniang Panglungsod of Mandaue City enacted an ordinance
that granted additional monthly allowance of 1500 for judges
assigned in their locality. However, DBM issued LBC 55 imposing
1000 as the maximum limit for such allowances. The City Auditor
subsequently disallowed the allowances for the judges and asked
them to reimburse the amount in excess of 1000. The Judges filed
an MR but was denied by COA. SC reversed and ruled that DBM
exceeded its supervisory power in imposing a limit not existing on
the LGC provision it claimed to interpret. The budget circular is void
for not being published.
DOCTRINE:
Administrative circulars cannot go beyond the law they seek to
implement. A limit cannot be imposed through an administrative
circular when the law it is seeking to implement does not provide
for such (own words)
The DBM has 90 days from the receipt of the copies of the
appropriation ordinance of cities to review the same. Otherwise,
such ordinance was deemed to have been properly reviewed and
deemed to have taken effect. After such period, the legality of the
14
provisions in the said ordinance can no longer be questioned.
FACTS:
In 1986, the RTC and MTC judges of Mandaue City started receiving
monthly allowances of P1,260 each through the yearly
appropriation ordinance enacted by the Sangguniang Panlungsod of
the said city. In 1991, Mandaue City increased the amount to P1,500
for each judge.
On March 15, 1994, the DBM issued the disputed Local Budget
Circular No. 55 (LBC 55) which provided that the additional
allowances granted by LGUs to national government officials and
employees assigned in their locality in the form of honorarium at
rates shall not exceed P1,000.00 in provinces and cities and
P700.00 in municipalities. The said circular likewise provided for its
immediate effectivity without need of publication:
Acting on the DBM directive, the Mandaue City Auditor issued
notices of disallowance to herein petitioners, namely, Honorable
RTC Judges Mercedes G. Dadole, Ulric R. Caete, Agustin R. Vestil,
Honorable MTC Judges Temistocles M. Boholst, Vicente C. Fanilag
and Wilfredo A. Dagatan, in excess of the amount authorized by LBC
55. Beginning October, 1994, the additional monthly allowances of
the petitioner judges were reduced to P1,000 each. They were also
asked to reimburse the amount they received in excess of P1,000
from April to September, 1994.
The petitioner judges filed with the City Auditor a protest against
the notices of disallowance. This was treated as a motion for
reconsideration and indorsed to the COA Regional Office which in
turn referred the motion to the head office with a recommendation
that the same be denied. COA denied this MR ruling that the
appropriation ordinance of LGUs is subject to the organizational,
budgetary and compensation policies of budgetary authorities like
the DBM who has the authority to (a) Provide guidelines on the
classification of local government positions and on the specific rates
of pay therefore; and (b) Provide criteria and guidelines for the
grant of all allowances and additional forms of compensation to
local government employees (Sec 1, AO 42). Executive Judge
Mercedes Gozo-Dadole, for and in behalf of the petitioner judges,
filed a motion for reconsideration but was again denied. Hence, this
petition for certiorari.
Arguments of Judge Dadole, et al: LBC 55 is void for infringing on
the local autonomy of Mandaue City by dictating a uniform amount
that a local government unit can disburse as additional allowances
to judges stationed therein. It is not supported by any law and
therefore goes beyond the supervisory powers of the President.
Also, said circular is void for lack of publication. The yearly
appropriation ordinance providing for additional allowances to
judges is allowed by Section 458, par. (a)(1)[xi], of the LGC .
Solicitor General filed a manifestation supporting the position of the
petitioner judges. The Solicitor General argues that (1) DBM only
enjoys the power to review and determine whether the
disbursements of funds were made in accordance with the
ordinance passed by a local government unit while (2) the COA has
no more than auditorial visitation powers over local government
units pursuant to Section 348 of RA 7160 which provides for the
power to inspect at any time the financial accounts of local
government units. Moreover, the Solicitor General opines that the
DBM and the respondent are only authorized under RA 7160 to
promulgate a Budget Operations Manual for local government units,
to improve and systematize methods, techniques and procedures
employed in budget preparation, authorization, execution and
accountability pursuant to Section 354 of RA 7160. The Solicitor
General points out that LBC 55 was not exercised under any of the
aforementioned provisions.
Arguments of COA: The constitutional and statutory authority of a
city government to provide allowances to judges stationed therein is
not absolute. Congress may set limitations on the exercise of
autonomy. It is for the President, through the DBM, to check
whether these legislative limitations are being followed by the local
government units. The disbursement of additional allowances and
other benefits to judges subject to the condition that the finances
of the city government should allow the same. Thus, DBM is merely
enforcing the condition of the law when it sets a uniform maximum
amount for the additional allowances that a city government can
release to judges stationed therein. Also, publication is not required
for LBC 55 inasmuch as it is merely an interpretative regulation
applicable to the personnel of an LGU. Assuming arguendo that LBC
55 is void, the provisions of the yearly approved ordinance granting
additional allowances to judges are still prohibited by the
appropriation laws passed by Congress every year because
Mandaue City gets the funds for the said additional allowances of
judges from the Internal Revenue Allotment (IRA) and the General
Appropriations Acts of 1994 and 1995 do not mention the
disbursement of additional allowances to judges as one of the
allowable uses of the IRA. Hence, the provisions of said ordinance
granting additional allowances, taken from the IRA, to herein
petitioner judges are void for being contrary to law.
ISSUES and RULING
(1) Whether LBC 55 of the DBM is void for going beyond the
supervisory powers of the President and for not having been
published? YES, IT IS VOID.
(2) Whether or not the yearly appropriation ordinance enacted by
Mandaue City providing for fixed allowances for judges contravenes
any law and should therefore be struck down as null and void? NO
RATIO:
1. LBC 55 is null and void.
Although our Constitution guarantees autonomy to local
government units, the exercise of local autonomy remains subject
to the power of control by Congress and the power of supervision
by the President. The supervisory power of the President has been
interpreted to exclude the power of control. The Chief Executive
wielded no more authority than that of checking whether local
governments or their officials were performing their duties as
provided by the fundamental law and by statutes. He cannot
interfere with local governments, so long as they act within the
scope of their authority. Supervisory power, when contrasted with
control, is the power of mere oversight over an inferior body; it
does not include any restraining authority over such body. (Taule v.
Santos)
15
Officers in control lay down the rules in the performance or
accomplishment of an act. On the other hand, supervising officials
merely see to it that the rules are followed, but they themselves do
not lay down such rules, nor do they have the discretion to modify
or replace them. If the rules are not observed, they may order the
work done or redone, but only to conform to such rules. They may
not prescribe their own manner of execution of the act. They have
no discretion on this matter except to see to it that the rules are
followed. (Drilon v. Lim)
Under our present system of government, executive power is vested
in the President. The members of the Cabinet and other executive
officials are merely alter egos. As such, they are subject to the
power of control of the President, at whose will and behest they can
be removed from office; or their actions and decisions changed,
suspended or reversed. In contrast, the heads of political
subdivisions are elected by the people. Their sovereign powers
emanate from the electorate, to whom they are directly
accountable. By constitutional fiat, they are subject to the
Presidents supervision only, not control, so long as their acts are
exercised within the sphere of their legitimate powers. By the same
token, the President may not withhold or alter any authority or
power given them by the Constitution and the law.
Clearly then, the President can only interfere in the affairs and
activities of a local government unit if he or she finds that the latter
has acted contrary to law. This is the scope of the Presidents
supervisory powers over local government units. Hence, the
President or any of his or her alter egos cannot interfere in local
affairs as long as the concerned local government unit acts within
the parameters of the law and the Constitution. Any directive
therefore by the President or any of his or her alter egos seeking to
alter the wisdom of a law-conforming judgment on local affairs of a
local government unit is a patent nullity because it violates the
principle of local autonomy and separation of powers of the
executive and legislative departments in governing municipal
corporations.
LBC 55 goes beyond the law it seeks to implement. Section 458, par.
(a)(1)(xi), of RA 7160, the law that supposedly serves as the legal
basis of LBC 55, allows the grant of additional allowances to judges
when the finances of the city government allow. The said
provision does not authorize setting a definite maximum limit to the
additional allowances granted to judges. Thus, the finances of a city
government may allow the grant of additional allowances higher
than P1,000 if the revenues of the said city government exceed its
annual expenditures. Thus, to illustrate, a city government with
locally generated annual revenues of P40 million and expenditures
of P35 million can afford to grant additional allowances of more
than P1,000 each to, say, ten judges inasmuch as the finances of the
city can afford it. Setting a uniform amount for the grant of
additional allowances is an inappropriate way of enforcing the
criterion found in Section 458, par. (a)(1)(xi), of RA 7160. The DBM
over-stepped its power of supervision over local government units
by imposing a prohibition that did not correspond with the law it
sought to implement. In other words, the prohibitory nature of the
circular had no legal basis.
Furthermore, LBC 55 is void on account of its lack of publication.
Administrative rules and regulations must also be published if their
purpose is to enforce or implement existing law pursuant to a valid
delegation. (Taada vs. Tuvera). At the very least, before an
administrative circular reducing income of government officials and
employees should be effective, the concerned officials and
employees should be apprised and alerted by the publication of
subject circular in the Official Gazette or in a newspaper of general
circulation in the Philippines to the end that they be given amplest
opportunity to voice out whatever opposition they may have, and
to ventilate their stance on the matter. This approach is more in
keeping with democratic precepts and rudiments of fairness and
transparency. (De Jesus vs. Commission on Audit). Subsequent
publication will not cure the defect because the publication is
required as a condition precedent to the effectivity of a law to
inform the public of the contents of the law or rules and regulations
before their rights and interests are affected by the same.
(Philippine International Trading Corporation vs. Commission on
Audit)
2. The yearly appropriation ordinance enacted by Mandaue City
providing for fixed allowances for judges is VALID.
Respondent COA failed to prove that Mandaue City used the IRA to
spend for the additional allowances of the judges. There was no
evidence submitted by COA showing the breakdown of the
expenses of the city government and the funds used for said
expenses. All the COA presented were the amounts expended, the
locally generated revenues, the deficit, the surplus and the IRA
received each year. Aside from these items, no data or figures were
presented to show that Mandaue City deducted the subject
allowances from the IRA. In other words, just because Mandaue
Citys locally generated revenues were not enough to cover its
expenditures, did not mean that the additional allowances of
petitioner judges were taken from the IRA and not from the citys
own revenues.
Moreover, the DBM neither conducted a formal review nor ordered
a disapproval of Mandaue Citys appropriation ordinances, in
accordance with the procedure outlined by Sections 326 and 327
of the LGC. Thus, within 90 days from receipt of the copies of the
appropriation ordinance, the DBM should have taken positive action.
Otherwise, such ordinance was deemed to have been properly
reviewed and deemed to have taken effect. Inasmuch as, in the
instant case, the DBM did not follow the appropriate procedure for
reviewing the subject ordinance of Mandaue City and allowed the
90-day period to lapse, it can no longer question the legality of the
provisions in the said ordinance granting additional allowances to
judges stationed in the said city.
WHEREFORE, the petition is hereby GRANTED, and the assailed
decision and resolution of the Commission on Audit are hereby set
aside.
Power of Appointment
Basic
GPI vs Springer 50 Phil 259
Facts:
This is an original action of quo warranto brought in the name of
16
the Government of the Philippine Islands against three directors of
the National Coal Company who were elected to their positions by
the legislative members of the committee created by Acts. Nos.
2705 and 2822. The purpose of the proceeding is to test the validity
of the part of section 4 of Act No. 2705, as amended by section 2 of
Act No. 2822, which provides that "The voting power of all such
stock (in the National Coal Company) owned by the Government of
the Philippine Islands shall be vested exclusively in a committee
consisting of the Governor-General, the President of the Senate,
and the Speaker of the House of Representatives.
Sometime in the 1900s, the National Coal Company (NCC) was
created by the Philippine Congress. The law created it (Act No. 2822)
provides that: The voting power shall be vested exclusively in a
committee consisting of the Governor-General, the President of the
Senate, and the Speaker of the House of Representatives.
In November 1926, the Governor-General (Leonard Wood) issued
E.O. No. 37 which divested the voting rights of the Senate President
and House Speaker in the NCC. The EO emphasized that the voting
right should be solely lodged in the Governor-General who is the
head of the government (President at that time was considered the
head of state but does not manage government affairs). A copy of
the said EO was furnished to the Senate President and the House
Speaker.
However, in December 1926, NCC held its elections and the Senate
President as well as the House Speaker, notwithstanding EO No. 37
and the objection of the Governor-General, still elected Milton
Springer and four others as Board of Directors of NCC. Thereafter, a
quo warranto proceeding in behalf of the government was filed
against Springer et al questioning the validity of their election into
the Board of NCC.
Issue:
Whether or nor EO no. 37 is invalid.
Rulings:
No. E.O. No 37 is valid. It is in accordance with the doctrine of
separation of powers. The Supreme Court emphasized that the
legislature creates the public office but it has nothing to do with
designating the persons to fill the office. Appointing persons to a
public office is essentially executive. The NCC is a government
owned and controlled corporation. It was created by Congress. To
extend the power of Congress into allowing it, through the Senate
President and the House Speaker, to appoint members of the NCC is
already an invasion of executive powers. The Supreme Court
however notes that indeed there are exceptions to this rule where
the legislature may appoint persons to fill public office. Such
exception can be found in the appointment by the legislature of
persons to fill offices within the legislative branch this exception is
allowable because it does not weaken the executive branch.
No need of concurrence of CA
Sarmiento III v Mison
GR No. 79974 December 17, 1987
Section 16. The President shall nominate and, with the consent of
the Commission on Appointments, appoint the heads of the
executive departments, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in
him in this Constitution. He shall also appoint all other officers of
the Government whose appointments are not otherwise provided
for by law, and those whom he may be authorized by law to appoint.
The Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.cralaw
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 disapproved by the
Commission on Appointments or until the next adjournment of the
Congress.
PADILLA, J:
FACTS:
(1) Petitioners contend that Mison's appointment as Commissioner
of the Bureau of Customs is unconstitutional by reason of its not
having been confirmed by the Commission on Appointments. The
respondents, on the other hand, maintain the constitutionality of
respondent Mison's appointment without the confirmation of the
Commission on Appointments.
(2) There are four (4) groups of officers whom the President shall
appoint.
First, the heads of the executive departments, ambassadors, other
public ministers and consuls, officers of the armed forces from the
rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution;
Second, all other officers of the Government whose appointments
are not otherwise provided for by law;
Third, those whom the President may be authorized by law to
appoint;
Fourth, officers lower in rank 4 whose appointments the Congress
may by law vest in the President alone.
The first group of officers is clearly appointed with the consent of
the Commission on Appointments.
The second, third and fourth groups of officers are the present bone
of contention.
ISSUE:
Whether or not the President can appoint Mison without
submitting his nomination to the Commission on Appointments
HELD:
Petition dismissed. President of the Philippines acted within her
constitutional authority and power in appointing respondent
Salvador Mison, Commissioner of the Bureau of Customs, without
submitting his nomination to the Commission on Appointments for
confirmation. He is thus entitled to exercise the full authority and
functions of the office and to receive all the salaries and
emoluments pertaining thereto.
In sum:
1. Confirmation by the Commission on Appointments is required
only for presidential appointees mentioned in the first sentence of
Section 16, Article VII, including, those officers whose appointments
are expressly vested by the Constitution itself in the president (like
sectoral representatives to Congress and members of the
17
constitutional commissions of Audit, Civil Service and Election).
2. Confirmation is not required when the President appoints other
government officers whose appointments are not otherwise
provided for by law or those officers whom he may be authorized by
law to appoint (like the Chairman and Members of the Commission
on Human Rights). Also, as observed in Mison, when Congress
creates inferior offices but omits to provide for appointment thereto,
or provides in an unconstitutional manner for such appointments,
the officers are considered as among those whose appointments
are not otherwise provided for by law.
RATIO:
(1) By following the accepted rule in constitutional and statutory
construction that an express enumeration of subjects excludes
others not enumerated, it would follow that only those
appointments to positions expressly stated in the first group require
the consent (confirmation) of the Commission on Appointments.
(2) It is evident that the position of Commissioner of the Bureau of
Customs (a bureau head) is not one of those within the first group
of appointments where the consent of the Commission on
Appointments is required. As a matter of fact, as already pointed
out, while the 1935 Constitution includes "heads of bureaus"
among those officers whose appointments need the consent of the
Commission on Appointments, the 1987 Constitution, on the other
hand, deliberately excluded the position of "heads of bureaus" from
appointments that need the consent (confirmation) of the
Commission on Appointments.
(3) In the 1987 Constitution, however, as already pointed out, the
clear and expressed intent of its framers was to exclude presidential
appointments from confirmation by the Commission on
Appointments, except appointments to offices expressly mentioned
in the first sentence of Sec. 16, Art. VII. Consequently, there was no
reason to use in the third sentence of Sec. 16, Article VII the word
"alone" after the word "President" in providing that Congress may
by law vest the appointment of lower-ranked officers in the
President alone, or in the courts, or in the heads of departments,
because the power to appoint officers whom he (the president) may
be authorized by law to appoint is already vested in the President,
without need of confirmation by the Commission on Appointments,
in the second sentence of the same Sec. 16, Article VII.
Bautista Vs. Salonga
Facts:
- August 27, 1987: President Cory Aquino appointed petitioner Mary
Concepcion Bautista as permanent Chairman of the Commission on
Human Rights (CHR).
- December 22, 1988: Bautista took her oath of office to Chief
Justice Marcelo Fernan and immediately acted as such.
- January 9, 1989: The Secretary of the Commission on
Appointments (CoA) wrote a letter to Bautista requesting for her
presence along with several documents at the office of CoA on
January 19. Bautista refused to be placed under CoA's review.
- Bautista filed a petition with the Supreme Court.
- While waiting for the progress of the case, President Aquino
appointed Hesiquio R. Mallillin as "Acting Chairman of the
Commission on Human Rights" but he was not able to sit in his
appointive office because of Bautista's refusal to surrender her post.
- Malilin invoked EO 163-A which provides that the tenure of the
Chairman and the Commissioners of the CHR should be at the
pleasure of the President thus stating that Bautista shall be
subsequently removed as well.
Issues:
WON the President's appointment is considered constitutional.
WON or not Bautista's appointment is subject to CoA's
confirmation.
WON or not President should extend her appointment on January
14, 1989.
Held:
Sec. 16, Art. VII of the 1987 Constitution provides:
The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval
captain, and other officers whose appointments are vested in him in
this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for
by law, and those whom he may be authorized by law to appoint.
The Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the heads of
the departments, agencies, commissions or boards. 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.
The Court held that it is within the authority of the President,
vested upon her by the Constitution, that she appoint Executive
officials. The second sentence of the provision Section 16, Article VII
provides that the President is authorized by law to appoint, without
confirmation of CoA, several government officials. The position of
Chairman of CHR is not among the positions mentioned in the first
sentence of Sec. 16, Art VII of the 1987 Constitution, which provides
the appointments which are to be made with the confirmation of
CoA. It therefore follows that the appointment of the Chairman of
CHR by the President is to be made and finalized even without the
review or participation of CoA. Bautista's appointment as the
Chairman of CHR, therefore, was already a completed act on the
day she took her oath as the appointment was finalized upon her
acceptance, expressly stated in her oath.
Furthermore, the Court held that the provisions of EO 163-A is
unconstitutional and thus cannot be invoked by Mallillin. The
Chairman of CHR cannot be removed at the pleasure of the
President for it is constitutionally guaranteed that they must have a
term of office.
To hold, as the Court holds, that petitioner Bautista is the lawful
incumbent of the office of Chairman of the Commission on Human
Rights by virtue of her appointment, as such, by the President on 17
December 1988, and her acceptance thereof, is not to say that she
cannot be removed from office before the expiration of her seven (7)
year term. She certainly can be removed but her removal must be
for cause and with her right to due process properly safeguarded.
18

It is to the credit of the President that, in deference to the rule of
law, after petitioner Bautista had elevated her case to this Tribunal,
Her Excellency merely designated an Acting Chairman for the
Commission on Human Rights (pending decision in this case) instead
of appointing another permanent Chairman. The latter course
would have added only more legal difficulties to an already difficult
situation.
Petitioner Bautista is declared to be, as she is, the duly appointed
Chairman of the Commission on Human Rights and the lawful
incumbent thereof, entitled to all the benefits, privileges and
emoluments of said office. The temporary restraining order
heretofore issued by the Court against respondent Mallillin
enjoining him from dismissing or terminating personnel of the
Commission on Human Rights is made permanent.
Petition granted.
Rufino V. Endriga
Does the President Have the Power to Appoint CCP Trustees?
The Facts
Petitioners in GR No. 139565, led by Baltazar N. Endriga (the Endriga
group), were appointed members of the board of trustees of the
Cultural Center of the Philippines (CCP) by President Fidel V. Ramos
in 1995, with the qualification that their appointments would
extend only until December 31, 1998. On December 22, 1998, then
President Joseph Estrada advised petitioners that they were being
replaced by seven new appointees to the CCP board, led by Armita
B. Rufino (the Rufino group). Having been dislodged from the CCP,
Endriga filed quo warranto proceedings questioning the Presidents
authority to appoint new members in the CCP board.
It was alleged that under Section 6(b)[1] of Presidential Decree No.
15, vacancies in the board shall be filled by election by a vote of a
majority of the trustees held at the next regular meeting x x x.
The Endriga group claimed that it was only when the board was
entirely vacant that the President of the Philippines may fill the
vacancies, in consultation with the ranking officers of the CCP. The
members of the group believed that since only one seat was vacant,
President Estrada could not appoint a new board. They averred that
presidential appointment was unjustified, since the CCP board still
had 10 incumbent trustees who had the statutory power to fill any
vacancy in the board by election.
On May 14, 1999, the Court of Appeals (CA) granted the quo
warranto Petition. It declared the Endriga group lawfully entitled
to hold office and ousted respondents from the CCP board. The CA
held that Section 6(b) of Presidential Decree (PD) 15 had clearly
vested in the remaining members of the board the power to elect
new trustees. It ruled that the President could exercise the power to
appoint only when the board was entirely vacant.
In its appeal before this Court, the Rufino group asserted that
Section 6(b) of PD 15, which authorized the CCP trustees to elect
their fellow trustees, should be declared unconstitutional. The
provision was allegedly repugnant to Section 16 of Article VII of the
Constitution, which allowed the appointment only of officers lower
in rank than the appointing power.
The Issue
The lone issue was whether Section 6 (b and c) of PD 15 was
unconstitutional in the light of Section 16 of Article VII of the
Constitution.
The Courts Ruling
At the outset, the Court recognized the occurrence of a supervening
event that could have rendered the case moot the resignation of
the Rufino group and the appointment of new CCP trustees by
President Gloria Macapagal-Arroyo. The Court, however, deemed it
best to pass upon the merits of the case, in order to prevent a
repeat of this regrettable controversy and to protect the CCP from
being periodically wracked by internecine politics. Moreover, the
Court brushed aside procedural barriers, in view of the paramount
importance of the constitutional issues involved.
By a vote of 10-3,[2] the Court held that Section 6 (b and c) of PD 15
was irreconcilable with Section 16 of Article VII of the Constitution.
The clear and categorical language of Section 6 (b) of PD 15 states
that vacancies in the CCP board shall be filled by a majority vote of
the remaining trustees. It is only when the board becomes entirely
vacant that the vacancies shall be filled by the President of the
Philippines, acting in consultation with the same ranking officers of
the CCP. Thus, Section 6 (b) empowers the remaining trustees of the
board to fill the vacancies by electing their fellow trustees. Simply
put, this provision authorizes the appointing officer to appoint an
officer who will be equal in rank to the former.
In its Decision, the Court held that the power of appointment
granted in Section 6 (b) of PD 15 transgressed Section 16 of Article
VII of the Constitution.[3]
It explained that the power to appoint vested by Section 16 in the
President; or the heads of departments, agencies, commissions or
boards was restricted only to officers lower in rank. This
constitutional provision clearly excluded a situation in which the
appointing officers appointed an officer who would be equal to
them in
rank.
This latter situation, however, was present in the CCP, whose
trustees were appointing new co-trustees who would be equal in
rank to the former. Thus, Section 6 (b and c) of PD 15 was found to
be unconstitutional, insofar as it violated the constitutional
mandate that the head of the board may be authorized to appoint
lower-ranking officers only.
Further, Section 16 of Article VII of the Constitution authorized
Congress to vest specifically in the heads of departments, agencies,
commissions, or boards and in no other person the power to
appoint lower-ranked officers. The word heads referred to the
chairpersons of the commissions or boards, not to their members,
for several reasons.
First, the 1935, the 1973, and the 1987 Constitutions made a clear
distinction whenever the power to appoint lower-ranked officers
was granted to the members of or the head of a collegial body.
When conferring the power of appointment to the members of that
collegial body, our past and present Constitutions used the phrases
in the courts,[4] courts,[5] the Supreme Court,[6] members
of the Cabinet, 4and
the Constitutional Commissions.[7]
Thus, if the intention was to grant to members of a commission or
board the power to appoint lower-ranked officials, Section 16 of
Article VII of the Constitution should have used the phrase in the
commissions or boards. But in sharp contrast, this provision vested
19
the power in the heads of the departments, agencies, commissions
or boards.
Second, the deliberations[8] of the present Constitution revealed
that the framers had intended the phrase in the heads of
departments, agencies, commissions, or boards to be an
enumeration of offices whose heads may be vested by law with the
power to appoint lower-ranked officers. Thus, in the enumeration,
what applied to the first office applied also to the succeeding offices
mentioned.
Third, all commissions or boards had chief executives who were
their heads. Since the Constitution spoke of heads of office, and
all commissions or boards had chief executives or heads, that word
could have referred only to the chief executives or heads of the
commissions or boards.
Given that the word heads referred to the commission or board
chairpersons, not members, the Court ruled that the head of the
CCP was the chairperson of the CCP board of trustees. This
conclusion was further supported by the fact that Section 8 of PD
15[9] and Section 3 of the Revised Rules and Regulations[10] of the
CCP recognized that its board chairperson as the head of the CCP
had the power to appoint, remove, and discipline all officers, staff
and personnel of the CCP.
Pursuant to Section 16 of Article VII of the Constitution, the
chairperson of the CCP board, as the head of the CCP, was the only
officer who could be vested by law with the power to appoint
lower-ranked officers of the CCP. Section 6 (b) of PD 15 could not
validly grant this power of appointment to the members of the CCP
board, as they were not the head of the CCP.
Moreover, Section 6 (b and c) of PD 15 was found to be
unconstitutional, because it ran afoul of the Presidents power of
control under Section 17 of Article VII of the Constitution.[11] It was
noted that the CCP was an agency that fell under the Executive
Branch.
Under the Revised Administrative Code of 1987, any agency not
placed by law or order creating them under any specific
department fell under the Office of the President.[12] Since the contravened not only the CCP charter, but the Constitution itself,
CCP did not fall under the Legislative or the Judicial Branch of
government and was not an independent constitutional or
quasi-judicial body or local government unit, then the CCP
necessarily fell under the Executive Branch and should be subject to
the Presidents control.
However, Section 6 (b and c) of PD 15, by authorizing the trustees of
the CCP board to fill its vacancies, insulated the CCP from political
influence and pressure, specifically from the President. This
authority made the CCP a self-perpetuating
entity, virtually outside the control of the Chief Executive. Such
public office or board could not legally exist under the present
Constitution.
The legislature could not have validly enacted a law that would put
a government office in the Executive Branch outside the control of
the President.
While the charter of the CCP vested it with autonomy of policy and
operation, this charter did not free it from the Presidents control.
As part of the Executive Branch, the CCP could not be cut off from
that control in the guise of insulating the latter from presidential
influence.
The Dissenting Opinion of Justice Tinga
In his Dissenting Opinion, Justice Tinga opined that the majority
Decision had expanded the principle of executive control in a
manner that would empower the President to make all
appointments of officers and officials in the Executive Branch.
This expansion of executive control allegedly resulted in the
diminution of the congressional power embodied in the
Appointments clause, which was thus rendered inutile.
In the opinion of Justice Tinga, the Appointments clause allowed
Congress to grant the power of appointment to the CCP board of
trustees, which was the head of the CCP and thus superior to the
individual trustees. Contrary to the majority opinion, he believed
that the appointment of fellow trustees by the board would not
constitute the latters appointment of an officer of equal rank. For
this reason, the board of trustees as a body was superior in rank to
any of its individual members.
Justice Tinga cited GMCR v. Bell Telecommunications,[13] [13]
which recognized that collective or collegiate bodies outweighed or
outranked any individual member, even if the latter was the
presiding officer of the body. Thus, Section 6 (b) of PD 15, which
authorized the board of trustees to elect its own members, was in
accord with the mandate of Section 16 of Article VII of the
Constitution, according to which the heads of agencies may be
authorized by Congress to appoint officers of lower rank.
The Dissent also pointed out that the statutory four-year term of
respondents had not yet expired when President Estrada advised
them of their replacements. By ruling against them, the majority
allegedly sanctioned the Presidents removal of officials whose
terms had been fixed by law. Allegedly, this arbitrary removal could
not be justified by the executive control clause; otherwise, the
President, in the guise of executive control, would be free to violate
the laws passed by Congress. And this result was clearly not
intended by the said clause, according to which the President
shall ensure that the laws be faithfully executed.[14]
The notion that executive control authorized the removal of the
members of the CCP board at the pleasure of the President
not to mention our Civil Service laws that guaranteed security of
tenure.[15]
The Court, in fact, explained in Ang-Angco v. Castillo[16] [16] that
the power of executive control did not extend to the power to
remove an officer who was in the Executive Department. That
earlier ruling had stated that the power [of executive control]
applie[d] to the exercise of control over the acts of the subordinate
and not over the actor or agent himself of the act.[17]
Hence, before the expiration of their terms, officials whose terms
had been fixed by law could not be removed from office without
cause, even by the President.
The fixity of their terms destroyed the power of removal at
pleasure. Since there was no showing that respondents had validly
been removed for legal cause, their removal was consequently
unconstitutional.
Further, the Dissenting Opinion discerned in the majority Decision
a clash between the Presidents executive control and the
prerogative of Congress to dictate through legislation the eligibility
requirements and the nature and length of public officers terms of
office.
The majority was criticized for inferring that the Legislative Branch
had no power to legislate any form of control on executive action.
Allegedly impaired was the right of the legislature to impart public
20
offices it had created with safeguards that would ensure their
independence from executive interference, should Congress deem
that their independence served a necessary public purpose. In
effect, said Justice Tinga, the Decision allowed the President to
ignore or countermand statutory limitations contained in the
charters of GOCCs like the CCP.
Limitations to appoint power
AYTONA VS CASTILLO
4 SCRA 1 G.R. No. L-19313 January 19 1962 [Midnight Appointment]
FACTS:
On December 29, 1961, Outgoing President Carlos Garcia appointed
petitioner Dominador Aytona as ad interim Governor of the Central
Bank. Aytona took the corresponding oath. On the same day, at
noon, President-elect Diosdado Macapagal assumed office; and on
the next day, he issued administrative order no. 2 recalling,
withdrawing, and cancelling all ad interim appointments made by
former President Garcia. There were all-in all, 350 midnight or last
minute appointments made by the former President Garcia. On
January 1, President Macapagal appointed Andres Castillo as ad
interim Governor of the Central Bank. Aytona instituted a case (quo
warranto) against Castillo, contending that he was validly appointed,
thus the subsequent appointment to Castillo by the new President,
should be considered void.
ISSUE:
Whether or not the 350 midnight appointments of former President
Garcia were valid.
RULING:
No. After the proclamation of the election of President Macapagal,
previous President Garcia administration was no more than a
care-taker 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. 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. The filling up 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 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.
Jorge vs Mayor
G.R. No. L-21776 February 28, 1964
FACTS:
Nicanor G. Jorge, is a career official in the Bureau of Lands. He
started working there as a Junior Computer in the course of 38
years service, from February 1, 1922 to October 31, 1960, and
attained the position of Acting Director, through regular and
successive promotions, in accordance with civil service rules. On
June 17, 1961, he was designated Acting Director of the same
Bureau, and on December 13, 1961 was appointed by President
Carlos Garcia ad interim Director. He qualified by taking the oath of
office on the December 23, 1961. His appointment was on
December 26, 1961, transmitted to the Commission on
Appointments, and on May 14, 1962, petitioner's ad interim
appointment as Director of Lands was confirmed by the
Commission.
On November 14, 1962 he received a letter from Benjamin Gozon,
then Secretary of Agriculture and Natural Resources of the
Macapagal administration, informing him that pursuant to a letter
from the Assistant Executive Secretary Bernal, served on Jorge on
November 13, his appointment was among those revoked by
Administrative Order No. 2 of President Diosdado Macapagal; that
the position of Director of Lands was considered vacant; and that
Jorge was designated Acting Director of Lands, effective November
13, 1962. Upon learning that Mayor, an outsider, had been
designate by the President to be Acting Director of Lands Jorge
protested (in a letter of November 16, 1962) to the Secretary of
Agriculture informing the latter that he would stand on his rights,
and issued office circulars claiming to be the legally appointed
Director of Lands. Finally, on September 2, 1963, he instituted the
present proceedings.
ISSUE:
Whether or not Administrative Order No. 2 of President Macapaga
operated as a valid revocation of Jorge's ad interim appointment.
RULING:
No. The SC ruled that Nicanor G. Jorge is declared to be the duly
appointed, confirmed, and qualified Director of Lands.
Petitioner Jorge's ad interim appointment is dated December 13,
1961, but there is no evidence on record that it was made and
released after the joint session of Congress that ended on the same
day. It is a matter of contemporary history, of which SC may take
judicial cognizance, that the session ended late in the night of
December 13, 1961, and, therefore, after regular office hours. In the
absence of competent evidence to the contrary, it is to be presumed
that the appointment of Jorge was made before the close of office
hours, that being the regular course of business. The appointment,
therefore, was not included in, nor intended to be covered by,
Administrative Order No. 2, and the same stands unrevoked.
Consequently, it was validly confirmed by the Commission on
Appointments, and thereafter, the office never became vacant.
In common with the Gillera appointment sustained by the SC,
Jorge's appointment is featured by a recognition of his tenure by the
Macapagal administration itself, since he was allowed to hold and
discharge undisturbed his duties as de jure Director of Lands for
nearly eleven months and it was only in mid-November of 1962 that
the attempt was actually made to demote him and appoint a rank
outsider in his place in the person of respondent Mayor.
If anyone is entitled to the protection of the civil service provisions
of the Constitution, particularly those against removals without
lawful cause, it must be the officers who, like Jorge, entered the
Civil Service in their youth, bent on making a career out of it, gave it
the best years of their lives and grew gray therein in the hope and
expectation that they would eventually attain the upper reaches
21
and levels of the official hierarchy, not through political patronage,
but through loyalty, merit, and faithful and unremitting toil.
Ad interim or recess appointment vs regular
GUEVARA VS. INOCENTES, G. R. NO. L-25577, 16 SCRA 379, MARCH
15, 1966
FACTS:
The petitioner, Onofre Guevara was extended an ad interim
appointment as Undersecretary of Labor by the former Executive on
November 18, 1965. Took his oath of office on November 25th
same year. The incumbent Executive issued Memorandum Circular
No. 8 dated January 23, 1966 declaring that all ad interim
appointments made by the former Executive lapsed with the
adjournment of the special session of Congress at about midnight of
January 22, 1966. The respondent, Raoul Inocentes was extended
an ad interim appointment for the same position by the incumbent
Executive on January 23, 1966. Guevara filed before the court an
instant petition for Quo Warranto seeking to be declared person
legally entitled to the said Officer of the Undersecretary of Labor
under Art. VII Sec. 10 (4) of the 1935 Constitution. which states 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 Congress.
Since there was no Commission on Appointments organized during
the special session which commenced on January 17, 1966, the
respondent contended that the petitioners ad interim appointment
as well as other made under similar conditions must have lapsed
when the Congress adjourned its last special session. But the
petitioner stated that (1) the specific provision in the Constitution
which states that: until the next adjournment of Congress means
adjournment of a regular session of Congress and not by a special
session and (2) only the Senate adjourned sine die at midnight of
January 22, 1966 and the House of the Representative merely
suspended its session and to be resumed on January 24, 1966 at
10:00 AM. The petitioner therefore concludes that Congress has
been in continuous session without interruption since January 17.
ISSUE/S:
1. Whether or not, the petitioners contention regarding the next
adjournment of Congress specifically provides for regular session
only.
2. Whether or not, the petitioners contention that Congress is still
in continuous session?
HELD:
1. NO. The phrase until the next adjournment of Congress does
not make any reference to specific session of Congress, whether
regular or special. But a well-know Latin maxim is statutory
construction stated that when the law does not distinguish we
should not distinguish. Ubi lex non distinguit nec nos distinguere
debemus. It is safe to conclude that the authors of the 1935
Constitution used the word adjournment had in mind either
regular or special and not simply the regular one as the petitioner
contended.
2. NO. The mere fact that the Senate adjourned sine die at midnight
of January 22, 1966, the House of the Representative is only a part
of the Congress and not the Congress itself. So logically, the
adjournment of one of its Houses is considered adjournment of the
Congress as a whole. And the petitioners ad interim appointment
must have been lapsed on January 22, 1966 upon adjournment of
the Senate.
MATIBAG VS. BENIPAYO, G.R. No. 149036, April 2, 2002
FACTS:
On February 1999, petitioner Maria Angelina Matibag was
appointed Acting Director IV of the Comelecs EID by then Comelec
Chairperson Harriet Demetriou in a temporary capacity. On March
2001, respondent Benipayo was appointed Comelec Chairman
together with other commissioners in an ad interim appointment.
While on such ad interim appointment, respondent Benipayo in his
capacity as Chairman issued a Memorandum address transferring
petitioner to the Law Department. Petitioner requested Benipayo to
reconsider her relief as Director IV of the EID and her reassignment
to the Law Department. She 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.
Benipayo denied her request for reconsideration on April 18, 2001,
citing COMELEC Resolution No. 3300 dated November 6, 2000,
exempting Comelec from the coverage of the said Memo Circular.
Petitioner appealed the denial of her request for reconsideration to
the COMELEC en banc. She also filed an administrative and criminal
complaint 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.
ISSUES:
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.
RULING:
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
22
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.
Limitation on appointment power of acting president
Sec 14-15 90 day ban on appointment during election period
does not apply to:
1. judicial appointment
ARTURO M. DE CASTRO vs. JUDICIAL AND BAR COUNCIL (JBC) and
PRESIDENT GLORIA M. ARROYO
G.R. No. 191002, March 17, 2010
FACTS:
Seven days After 2010 Presidential Election, Chief Justice Reynato S.
Puno had his compulsory Retirement by May 17, 2010. Even before
the event actually happens, it is giving rise to many legal dilemmas.
May the incumbent President appoint his successor, considering
that Section 15, Article VII (Executive Department) of the
Constitution prohibits the President or Acting President from
making appointments within two months immediately before the
next presidential elections and up to the end of his term, except
temporary appointments to executive positions when continued
vacancies therein will prejudice public service or endanger public
safety. But under Section 4 (1), Article III judicial Department of the
Constitution, which provides that any vacancy in the Supreme Court
shall be filled within 90 days from the occurrence thereof, from a
"list of at least three nominees prepared by the Judicial and Bar
Council for every vacancy." This provision sin in contrast with the
provision mentioned above.
The question now arises whether the incumbent president has the
right to appoint the next chief Justice upon the retirement of Chief
Justice Puno. The JBC has unanimously agreed in their meeting on
January 18, 2011, to start the process of the filling the Vacant
position of the Retired Chief Justice. Judicial Bar Council has
published the said announcement in the Daily inquirer and
Philippine Star news papers on January 20, 2010. Despite of the
issues JBC has decided to proceed to the next step of the process by
announcing the names of the following Associate Justices: Associate
Justice Carpio, Associate Justice Corona, Associate Justice Carpio
Morales, Associate Justice Leonardo-De Castro, Associate Justice
Brion, and Associate Justice Sandoval and inviting the public to file
their sworn complaint, written report, or opposition, if any, not later
than February 22, 2010, to the Following Candidates. The
announcement was printed at Daily Inquirer and Philippine Star on
February 13, 2010.
ISSUE:
Whether or not Section 15, Article VII apply to appointments in the
Supreme Court or to the Judiciary.
RULING:
No. Prohibition under Section 15, Article VII does not apply to
appointments to fill a vacancy in the Supreme Court or to other
appointments to the Judiciary the Constitutional Commission
confined the prohibition to appointments made in the Executive
Department. However, Section 4(1) and Section 9, Article VIII,
mandate the President to fill the vacancy in the Supreme Court
within 90 days from the occurrence of the vacancy, and within 90
days from the submission of the list, in the case of the lower courts.
The 90-day period is directed at the President, not at the JBC. Thus,
the JBC should start the process of selecting the candidates to fill
the vacancy in the Supreme Court before the occurrence of the
vacancy. The JBC has no discretion to submit the list to the
President after the vacancy occurs, because that shortens the
90-day period allowed by the Constitution for the President to make
the appointment. For the JBC to do so will be unconscionable on its
part, considering that it will thereby effectively and illegally deprive
the President of the ample time granted under the Constitution to
reflect on the qualifications of the nominees named in the list of the
JBC before making the appointment. The duty of the JBC to submit
a list of nominees before the start of the President's mandatory
90-day period to appoint is ministerial, but its selection of the
candidates whose names will be in the list to be submitted to the
President lies within the discretion of the JBC. The object of the
petitions for mandamus herein should only refer to the duty to
submit to the President the list of nominees for every vacancy in the
Judiciary, because in order to constitute unlawful neglect of duty,
there must be an unjustified delay in performing that duty. The
distinction between a ministerial and discretionary act is well
delineated. A purely ministerial act or duty is one which an officer
or tribunal performs in a given state of facts, in a prescribed manner,
in obedience to the mandate of a legal authority, without regard to
or the exercise of his own judgment upon the propriety or
impropriety of the act done.
2. Local officals
CONRADO L. DE RAMA VS. THE COURT OF APPEALS (NINTH
DIVISION, THE CIVIL SERVICE COMMISSION), G.R. NO. 131136.
FEBRUARY 28, 2001
Facts:
Upon his assumption to the position of Mayor of Pagbilao, Quezon,
petitioner Conrado L. de Rama wrote a letter dated July 13, 1995 to
the Civil Service Commission (or CSC), seeking the recall of the
appointments of fourteen (14) municipal employees. Justifying his
recall request on the allegation that the appointments of the said
employees were midnight appointments of the former mayor, Ma.
Evelyn S. Abeja, done in violation of Article VII, Section 15 of the
1987 Constitution. The CSC denied petitioners request for the recall
of the appointments of the fourteen employees, for lack of merit.
The CSC upheld the validity of the appointments on the ground that
they had already been approved by the Head of the CSC Field Office
in Lucena City, and for petitioners failure to present evidence that
would warrant the revocation or recall of the said appointments.
Issue:
whether or not the recall made by petitioner is valid.
Ruling:
No. It is the CSC that is authorized to recall an appointment initially
approved, but only when such appointment and approval are
proven to be in disregard of applicable provisions of the civil service
law and regulations. Rule V, Section 9 of the Omnibus Implementing
Regulations of the Revised Administrative Code specifically provides
that an appointment accepted by the appointee cannot be
23
withdrawn or revoked by the appointing authority and shall remain
in force and in effect until disapproved by the Commission.
Accordingly, the appointments of the private respondents may only
be recalled on the following grounds: (a) Non-compliance with the
procedures/criteria provided in the agencys Merit Promotion Plan;
(b) Failure to pass through the agencys Selection/Promotion Board;
(c) Violation of the existing collective agreement between
management and employees relative to promotion; or (d) Violation
of other existing civil service law, rules and regulations.
Power of removal
Gonzales III v Office of the President
FACTS:
There are two petitions that have been consolidated because
they raise a common thread of issues relating to the President's
exercise of the power to remove from office herein petitioners who
claim the protective cloak of independence of the
constitutionally-created office to which they belong - the Office of
the Ombudsman.
1st case -> G.R. No. 19623: Petition for Certiorari which assails
on jurisdictional grounds the Decision dated March 31, 2011
rendered by the Office of the dismissing petitioner Emilio A.
Gonzales III, Deputy Ombudsman for the Military and Other Law
Enforcement Offices, upon a finding of guilt on the administrative
charges of Gross Neglect of Duty and Grave Misconduct constituting
a Betrayal of Public Trust. The petition primarily seeks to declare as
unconstitutional Section 8(2) of Republic Act (R.A.) No. 6770,
otherwise known as the Ombudsman Act of 1989, which gives the
President the power to dismiss a Deputy Ombudsman of the Office
of the Ombudsman.
2nd case -> G.R. No. 196232, is a Petition for Certiorari and
Prohibition seeking to annul, reverse and set aside (1) the undated
Order requiring petitioner Wendell Barreras-Sulit to submit a
written explanation with respect to alleged acts or omissions
constituting serious/grave offenses in relation to the Plea Bargaining
Agreement entered into with Major General Carlos F. Garcia; and (2)
the April 7, 2011 Notice of Preliminary Investigation, both issued
by the Office of the President the administrative case initiated
against petitioner as a Special Prosecutor of the Office of the
Ombudsman. The petition likewise seeks to declare as
unconstitutional Section 8(2) of R.A. No. 6770 giving the President
the power to dismiss a Special Prosecutor of the Office of the
Ombudsman.
Cause of 1st case: Hostage Drama involving Rolando Mendoza
and Hong Kong nationals in a tourist bus. Rolando Mendoza
demanded his reinstatement. Sometime in 2008, a formal charge
for Grave Misconduct (robbery, grave threats, robbery extortion and
physical injuries) was filed against him and other police officers.
Office of the Regional Director of the National Police
Commission turned over, upon the request of petitioner Emilio A.
Gonzales III, all relevant documents and evidence in relation to said
case to the Office of the Deputy Ombudsman for appropriate
administrative adjudication
The administrative case against Mendoza was dismissed upon
a finding that the material allegations made by the complainant had
not been substantiated "by any evidence at all to warrant the
indictment of respondents of the offenses charged.
However, upon the recommendation of petitioner Emilio
Gonzales III, a Decision finding P/S Insp. Rolando Mendoza and his
fellow police officers guilty of Grave Misconduct was approved by
the Ombudsman
They filed a Motion for Reconsideration followed by a
Supplement to the Motion for Reconsideration. The pleadings
mentioned and the records of the case were assigned for review
and recommendation to Graft Investigation and Prosecutor Officer
Dennis L. Garcia, who released a draft Order for appropriate action
by his immediate superior, Director Eulogio S. Cecilio, who, in turn,
signed and forwarded said Order to petitioner Gonzalez's office on
April 27, 2010. Not more than ten (10) days after, more particularly
on May 6, 2010, petitioner endorsed the Order, together with the
case records, for final approval by Ombudsman Merceditas N.
Gutierrez, in whose office it remained pending for final review and
action when P/S Insp. Mendoza hijacked a bus-load of foreign
tourists on that fateful day of August 23, 2010 in a desperate
attempt to have himself reinstated in the police service.
Incident Investigation and Review Committee (IIRC): found
Deputy Ombudsman Gonzales committed serious and inexcusable
negligence and gross violation of their own rules of procedure by
allowing Mendoza's motion for reconsideration to languish for more
than nine (9) months without any justification, in violation of the
Ombudsman prescribed rules to resolve motions for reconsideration
in administrative disciplinary cases within five (5) days from
submission. The inaction is gross, considering there is no opposition
thereto. The prolonged inaction precipitated the desperate resort to
hostage-taking
Case was elevated to OP. OP instituted a Formal Charge against
petitioner Gonzales for Gross Neglect of Duty and/or Inefficiency in
the Performance of Official Duty under Rule XIV, Section 22 of the
Omnibus Rules Implementing Book V of E.O. No. 292 and other
pertinent Civil Service Laws, rules and regulations, and for
Misconduct in Office under Section 3 of the Anti-Graft and Corrupt
Practices Act.
OP Dismissed Gonzales from his office.
2nd case: the Acting Deputy Special Prosecutor of the Office of
the Ombudsman charged Major General Carlos F. Garcia, his wife
Clarita D. Garcia, their sons Ian Carl Garcia, Juan Paulo Garcia and
Timothy Mark Garcia and several unknown persons with Plunder
and Money Laundering before the Sandiganbayan.
Issues:
Whether the Office of the President has jurisdiction to exercise
administrative disciplinary power over a Deputy Ombudsman and a
Special Prosecutor who belong to the constitutionally-created Office
of the Ombudsman.
Ruling:
By granting express statutory
power to the President to remove
a Deputy Ombudsman and a
Special Prosecutor, Congress
merely filled an obvious gap in
the law.
Section 9, Article XI of the 1987 Constitution confers upon the
President the power to appoint the Ombudsman and his Deputies,
viz:
Section 9. The Ombudsman and his Deputies shall be appointed by
24
the President from a list of at least six nominees prepared by the
Judicial and Bar Council, and from a list of three nominees for every
vacancy thereafter. Such appointments shall require no
confirmation. All vacancies shall be filled within three months after
they occur.
While the removal of the Ombudsman himself is also expressly
provided for in the Constitution, which is by impeachment under
Section 244 of the same Article, there is, however, no constitutional
provision similarly dealing with the removal from office of a Deputy
Ombudsman, or a Special Prosecutor, for that matter. By enacting
Section 8(2) of R.A. 6770, Congress simply filled a gap in the law
without running afoul of any provision in the Constitution or
existing statutes. In fact, the Constitution itself, under Section 2,
authorizes Congress to provide for the removal of all other public
officers, including the Deputy Ombudsman and Special Prosecutor,
who are not subject to impeachment.
The Power of the President to Remove a Deputy Ombudsman and a
Special Prosecutor is Implied from his Power to Appoint.
Under the doctrine of implication, the power to appoint carries with
it the power to remove.48 As a general rule, therefore, all officers
appointed by the President are also removable by him.49 The
exception to this is when the law expressly provides otherwise - that
is, when the power to remove is expressly vested in an office or
authority other than the appointing power. In some cases, the
Constitution expressly separates the power to remove from the
President's power to appoint. Under Section 9, Article VIII of the
1987 Constitution, the Members of the Supreme Court and judges
of lower courts shall be appointed by the President. However,
Members of the Supreme Court may be removed after
impeachment proceedings initiated by Congress (Section 2, Article
XI), while judges of lower courts may be removed only by the
Supreme Court by virtue of its administrative supervision over all its
personnel (Sections 6 and 11, Article VIII). The Chairpersons and
Commissioners of the Civil Service Commission Section 1(2), Article
IX(B), the Commission on Elections Section 1(2), Article IX(C), and
the Commission on Audit Section 1(2), Article IX(D) shall likewise be
appointed by the President, but they may be removed only by
impeachment (Section 2, Article XI). As priorly stated, the
Ombudsman himself shall be appointed by the President (Section 9,
Article XI) but may also be removed only by impeachment (Section
2, Article XI).
In giving the President the power to remove a Deputy Ombudsman
and Special Prosecutor, Congress simply laid down in express terms
an authority that is already implied from the President's
constitutional authority to appoint the aforesaid officials in the
Office of the Ombudsman.
Granting the President the Power to Remove a Deputy Ombudsman
does not Diminish the Independence of the Office of the
Ombudsman.
The claim that Section 8(2) of R.A. No. 6770 granting the President
the power to remove a Deputy Ombudsman from office totally
frustrates, if not resultantly negates the independence of the Office
of the Ombudsman is tenuous. The independence which the Office
of the Ombudsman is vested with was intended to free it from
political considerations in pursuing its constitutional mandate to be
a protector of the people. What the Constitution secures for the
Office of the Ombudsman is, essentially, political independence.
This means nothing more than that "the terms of office, the salary,
the appointments and discipline of all persons under the office" are
"reasonably insulated from the whims of politicians."52 And so it
was that Section 5, Article XI of the 1987 Constitution had declared
the creation of the independent Office of the Ombudsman,
composed of the Ombudsman and his Deputies, who are described
as "protectors of the people" and constitutionally mandated to act
promptly on complaints filed in any form or manner against public
officials or employees of the Government Section 12, Article XI.
Pertinent provisions under Article XI prescribes a term of office of
seven years without reappointment Section 11, prohibits a decrease
in salaries during the term of office Section 10, provides strict
qualifications for the office Section 8, grants fiscal autonomy
Section 14 and ensures the exercise of constitutional functions
Section 12 and 13. The cloak of independence is meant to build up
the Office of the Ombudsman's institutional strength to effectively
function as official critic, mobilizer of government, constitutional
watchdog53 and protector of the people. It certainly cannot be
made to extend to wrongdoings and permit the unbridled acts of its
officials to escape administrative discipline.
Being aware of the constitutional imperative of shielding the Office
of the Ombudsman from political influences and the discretionary
acts of the executive, Congress laid down two restrictions on the
President's exercise of such power of removal over a Deputy
Ombudsman, namely: (1) that the removal of the Deputy
Ombudsman must be for any of the grounds provided for the
removal of the Ombudsman and (2) that there must be observance
of due process. Reiterating the grounds for impeachment laid down
in Section 2, Article XI of the 1987 Constitution, paragraph 1 of
Section 8 of R.A. No. 6770 states that the Deputy Ombudsman may
be removed from office for the same grounds that the Ombudsman
may be removed through impeachment, namely, "culpable violation
of the Constitution, treason, bribery, graft and corruption, other
high crimes, or betrayal of public trust." Thus, it cannot be rightly
said that giving the President the power to remove a Deputy
Ombudsman, or a Special Prosecutor for that matter, would
diminish or compromise the constitutional independence of the
Office of the Ombudsman. It is, precisely, a measure of protection of
the independence of the Ombudsman's Deputies and Special
Prosecutor in the discharge of their duties that their removal can
only be had on grounds provided by law.
Pardoning Power
PEOPLE OF THE PHILIPPINES VS. JOSE VERA, 65 PHIL. 56
Political Law Constitutional Law Bill of Rights Equal Protection
Probation Law
Separation of Powers Undue Delegation of Powers Power to
Pardon
Constitutionality of Laws May the State Question Its Own Laws
In 1934, Mariano Cu Unjieng was convicted in a criminal case filed
against him by the Hongkong and Shanghai Banking Corporation
(HSBC). In 1936, he filed for probation. The matter was referred to
the Insular Probation Office which recommended the denial of Cu
Unjiengs petition for probation. A hearing was set by Judge Jose
Vera concerning the petition for probation. The Prosecution
opposed the petition. Eventually, due to delays in the hearing, the
Prosecution filed a petition for certiorari with the Supreme Court
alleging that courts like the Court of First Instance of Manila (which
is presided over by Judge Vera) have no jurisdiction to place accused
25
like Cu Unjieng under probation because under the law (Act No.
4221 or The Probation Law), probation is only meant to be applied
in provinces with probation officers; that the City of Manila is not a
province, and that Manila, even if construed as a province, has no
designated probation officer hence, a Manila court cannot grant
probation.
Meanwhile, HSBC also filed its own comment on the matter alleging
that Act 4221 is unconstitutional for it violates the constitutional
guarantee on equal protection of the laws. HSBC averred that the
said law makes it the prerogative of provinces whether or nor to
apply the probation law if a province chooses to apply the
probation law, then it will appoint a probation officer, but if it will
not, then no probation officer will be appointed hence, that
makes it violative of the equal protection clause.
Further, HSBC averred that the Probation Law is an undue
delegation of power because it gave the option to the provincial
board to whether or not to apply the probation law however, the
legislature did not provide guidelines to be followed by the
provincial board.
Further still, HSBC averred that the Probation Law is an
encroachment of the executives power to grant pardon. They say
that the legislature, by providing for a probation law, had in effect
encroached upon the executives power to grant pardon. (Ironically,
the Prosecution agreed with the issues raised by HSBC ironic
because their main stance was the non-applicability of the
probation law only in Manila while recognizing its application in
provinces).
For his part, one of the issues raised by Cu Unjieng is that, the
Prosecution, representing the State as well as the People of the
Philippines, cannot question the validity of a law, like Act 4221,
which the State itself created. Further, Cu Unjieng also castigated
the fiscal of Manila who himself had used the Probation Law in the
past without question but is now questioning the validity of the said
law (estoppel).
ISSUE:
1. May the State question its own laws?
2. Is Act 4221 constitutional?
HELD:
1. Yes. There is no law which prohibits the State, or its duly
authorized representative, from questioning the validity of a law.
Estoppel will also not lie against the State even if it had been using
an invalid law.
2. No, Act 4221 or the [old] Probation Law is unconstitutional.
Violation of the Equal Protection Clause
The contention of HSBC and the Prosecution is well taken on this
note. There is violation of the equal protection clause. Under Act
4221, provinces were given the option to apply the law by simply
providing for a probation officer. So if a province decides not to
install a probation officer, then the accused within said province will
be unduly deprived of the provisions of the Probation Law.
Undue Delegation of Legislative Power
There is undue delegation of legislative power. Act 4221 provides
that it shall only apply to provinces where the respective provincial
boards have provided for a probation officer. But nowhere in the
law did it state as to what standard (sufficient standard test) should
provincial boards follow in determining whether or not to apply the
probation law in their province. This only creates a roving
commission which will act arbitrarily according to its whims.
Encroachment of Executive Power
Though Act 4221 is unconstitutional, the Supreme Court recognized
the power of Congress to provide for probation. Probation does not
encroach upon the Presidents power to grant pardon. Probation is
not pardon. Probation is within the power of Congress to fix
penalties while pardon is a power of the president to commute
penalties.
LLAMAS vs. EXECUTIVE SECRETARY OSCAR ORBOS and MARIANO
UN OCAMPO III, October 15, 1991 (G.R. No. 99031)
FACTS:
Ocampo III was the governor of Tarlac Province. Llamas together
with some other complainants filed an administrative case against
Ocampo III for alleged acts constituting graft and corruption.
Ocampo III was found guilty. He was suspended for office for 90
days hence his vice governor, Llamas, assumed office. In not less
than 30 days however, Ocampo III returned with an AO showing
that he was pardoned hence he can resume office without
completing the 90 day suspension imposed upon him.
The petitioner argues that President may grant executive clemency
only in criminal cases. They say that the qualifying phrase after
conviction by final judgment applies solely to criminal cases, and
no other law allows the grant of executive clemency or pardon to
anyone who has been convicted in an administrative case, allegedly
because the word conviction refers only to criminal cases.
ISSUE:
WON the President of the Philippines has the power to grant
executive clemency in administrative cases.
HELD:
Yes. It is not specified in the constitution whether it may be
considered under criminal or administrative cases. , if the law does
not distinguish, so we must not distinguish. The Constitution does
not distinguish between which cases executive clemency may be
exercised by the President, with the sole exclusion of impeachment
cases. By the same token, if executive clemency may be exercised
only in criminal cases, it would indeed be unnecessary to provide for
the exclusion of impeachment cases from the coverage of Article VII,
Section 19 of the Constitution. Cases of impeachment are
automatically excluded inasmuch as the same do not necessarily
involve criminal offenses.
The do not clearly see any valid and convincing reason why the
President cannot grant executive clemency in administrative cases.
It is the courts considered view that if the President can grant
reprieves, commutations and pardons, and remit fines and
forfeitures in criminal cases, with much more reason can she grant
executive clemency in administrative cases, which are clearly less
serious than criminal offenses.
The court stressed, however, that when we say the President can
grant executive clemency in administrative cases, we refer only to
all administrative cases in the Executive branch, not in the Judicial
or Legislative branches of the government.
26
In criminal cases, the quantum of evidence required to convict an
individual is proof beyond reasonable doubt. On the other hand, in
administrative cases, the quantum of evidence required is mere
substantial evidence to support a decision.
Pardon distinguish from parole
TORRES V. GONZALES, G.R. NO. 76872 JULY 23, 1987
Facts:
Sometime before 1979, petitioner was convicted by the Court of
First Instance of Manila of the crime of estafa (two counts) and was
sentenced to an aggregate prison term of from eleven (11) years,
ten (10) months and twenty-two (22) days to thirty-eight (38) years,
nine (9) months and one (1) day, and to pay an indemnity of
P127,728.75. These convictions were affirmed by the Court of
Appeals. The maximum sentence would expire on 2 November
2000.
On 18 April 1979, a conditional pardon was granted to the
petitioner by the President of the Philippines on condition that
petitioner would not again violate any of the penal laws of the
Philippines. Should this condition be violated, he will be proceeded
against in the manner prescribed by law. Petitioner accepted the
conditional pardon and was consequently released from
confinement.
On 21 May 1986, the Board of Pardons and Parole (the Board)
resolved to recommend to the President the cancellation of the
conditional pardon granted to the petitioner. The evidence before
the Board showed that on 22 March 1982 and 24 June 1982,
petitioner had been charged with twenty counts of estafa in
Criminal Cases Nos. Q-19672 and Q-20756, which cases were then
(on 21 May 1986) pending trial before the Regional Trial Court of
Rizal (Quezon City). The record before the Board also showed that
on 26 June 1985, petitioner had been convicted by the Regional
Trial Court of Rizal (Quezon City) of the crime of sedition in Criminal
Case No. Q-22926; this conviction was then pending appeal before
the Intermediate Appellate Court. The Board also had before it a
letter report dated 14 January 1986 from the National Bureau of
Investigation (NBI), addressed to the Board, on the petitioner. Per
this letter, the records of the NBI showed that a long list of charges
had been brought against the petitioner during the last twenty
years for a wide assortment of crimes including estafa, other forms
of swindling, grave threats, grave coercion, illegal possession of
firearms, ammunition and explosives, malicious mischief, violation
of Batas Pambansa Blg. 22, and violation of Presidential Decree No.
772 (interfering with police functions). Some of these charges were
identified in the NBI report as having been dismissed. The NBI
report did not purport to be a status report on each of the charges
there listed and identified.
On 4 June 1986, the respondent Minister of Justice wrote to the
President of the Philippines informing her of the Resolution of the
Board recommending cancellation of the conditional pardon
previously granted to petitioner.
On 8 September 1986, the President cancelled the conditional
pardon of the petitioner.
On 10 October 1986, the respondent Minister of Justice issued by
authority of the President an Order of Arrest and Recommitment
against petitioner. The petitioner was accordingly arrested and
confined in Muntinlupa to serve the unexpired portion of his
sentence.
Issue:
whether or not conviction of a crime by final judgment of a court is
necessary before the petitioner can be validly rearrested and
recommitted for violation of the terms of his conditional pardon
and accordingly to serve the balance of his original sentence
Held:
The status of our case law on the matter under consideration may
be summed up in the following propositions:
1. The grant of pardon and the determination of the terms and
conditions of a conditional pardon are purely executive acts which
are not subject to judicial scrutiny.
2. The determination of the occurrence of a breach of a condition
of a pardon, and the proper consequences of such breach, may be
either a purely executive act, not subject to judicial scrutiny under
Section 64 (i) of the Revised Administrative Code; or it may be a
judicial act consisting of trial for and conviction of violation of a
conditional pardon under Article 159 of the Revised Penal Code.
Where the President opts to proceed under Section 64 (i) of the
Revised Administrative Code, no judicial pronouncement of guilt of
a subsequent crime is necessary, much less conviction therefor by
final judgment of a court, in order that a convict may be
recommended for the violation of his conditional pardon.
3. Because due process is not semper et unique judicial process,
and because the conditionally pardoned convict had already been
accorded judicial due process in his trial and conviction for the
offense for which he was conditionally pardoned, Section 64 (i) of
the Revised Administrative Code is not afflicted with a constitutional
vice.
A convict granted conditional pardon, like the petitioner herein,
who is recommitted must of course be convicted by final judgment
of a court of the subsequent crime or crimes with which he was
charged before the criminal penalty for such subsequent offense(s)
can be imposed upon him. Again, since Article 159 of the Revised
Penal Code defines a distinct, substantive, felony, the parolee or
convict who is regarded as having violated the provisions thereof
must be charged, prosecuted and convicted by final judgment
before he can be made to suffer the penalty prescribed in Article
159.
Succinctly put, in proceeding against a convict who has been
conditionally pardoned and who is alleged to have breached the
conditions of his pardon, the Executive Department has two options:
(i) to proceed against him under Section 64 (i) of the Revised
Administrative Code; or (ii) to proceed against him under Article 159
of the Revised Penal Code which imposes the penalty of prision
correccional, minimum period, upon a convict who having been
granted conditional pardon by the Chief Executive, shall violate any
of the conditions of such pardon. Here, the President has chosen to
proceed against the petitioner under Section 64 (i) of the Revised
Administrative Code. That choice is an exercise of the Presidents
executive prerogative and is not subject to judicial scrutiny.
27

Pardon distinguished from amnesty
Norberto Jimenez & Loreto Barrioquinto vs Fernandez
G.R. No. L-1278, January 21, 1949
Amnesty Compared w/ Pardon Admission Not Needed in Amnesty
FACTS
Jimenez and Barrioquinto were charged for murder for the
killings they made during the war. The case was proceeded against
Jimenez because Barrioquinto was nowhere to be found. Jimenez
was then sentenced to life imprisonment.
Before the period for perfecting an appeal had expired, the
defendant Jimenez became aware of Proclamation No. 8, which
grants amnesty in favor of all persons who may be charged with an
act penalized under the RPC in furtherance of the resistance to the
enemy or against persons aiding in the war efforts of the enemy.
Barrioquinto learned about the proclamation and he surfaced
in order to invoke amnesty as well. However, Commissioner
Fernandez of the 14th Amnesty Commission refused to process the
amnesty request of the two accused because the two refused to
admit to the crime as charged. Jimenez & Barrioquinto in fact said
that a certain Tolentino was the one who committed the crime
being charged to them.
ISSUE:
Whether or not admission of guilt is necessary in amnesty.
HELD:
Pardon is granted by the President 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 President with the concurrence of Congress,
and it 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
nor 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 (art 36, RPC). 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.
Effects of pardon (absolute pardon remits penal consequences of
the crime, but not erases the crime itself)
Monsanto vs. Factoran
Facts:
The Sandiganbayan convicted petitioner Salvacion A. Monsanto
(then assistant treasurer of Calbayog City) of the crime of estafa
through falsification of public documents. She was sentenced to jail
and to indemnify the government in the sum of P4,892.50.The SC
affirmed the decision. She then filed a motion for reconsideration
but while said motion was pending, she was extended by then
President Marcos absolute pardon which she accepted (at that time,
the rule was that clemency could be given even before conviction).
By reason of said pardon, petitioner wrote the Calbayog City
treasurer requesting that she be restored to her former post as
assistant city treasurer since the same was still vacant. Her letter
was referred to the Minister of Finance who ruled that she may be
reinstated to her position without the necessity of a new
appointment not earlier than the date she was extended the
absolute pardon.
Petitioner wrote the Ministry stressing that the full pardon
bestowed on her has wiped out the crime which implies that her
service in the government has never been interrupted and
therefore the date of her reinstatement should correspond to the
date of her preventive suspension; that she is entitled to backpay
for the entire period of her suspension; and that she should not be
required to pay the proportionate share of the amount of P4,892.50
The Ministry referred the issue to the Office of the President.
Deputy Executive Secretary Factoran denied Monsantos request
averring that Monsanto must first seek appointment and that the
pardon does not reinstate her former position.
Issues:
1. Is a public officer, who has been granted an absolute pardon by
the Chief Executive, entitled to reinstatement to her former
position without need of a new appointment?
2. May petitioner be exempt from the payment of the civil
indemnity imposed upon her by the sentence?
Held:
The pardon granted to petitioner has resulted in removing her
disqualification from holding public employment but it cannot go
beyond that. To regain her former post as assistant city treasurer,
she must re-apply and undergo the usual procedure required for a
new appointment. Civil liability arising from crime is governed by
the Revised Penal Code. It subsists notwithstanding service of
sentence, or for any reason the sentence is not served by pardon,
amnesty or commutation of sentence. Petitioner's civil liability may
only be extinguished by the same causes recognized in the Civil
Code, namely: payment, loss of the thing due, remission of the debt,
merger of the rights of creditor and debtor, compensation and
novation.
Effects of violation of terms of pardon (maybe rearrested by order
of the president; purely executive prerogative under sec. 64 of the
Administrative code)
Petitioner: WILFREDO TORRES Y SUMULONG
Respondents: HON. NEPTALI A. GONZALES, THE CHAIRMAN,
BOARD OF PARDONS AND PAROLE, and THE DIRECTOR, BUREAU
OF PRISONS
FACTS:
1978, Torres was convicted of estafa. In 1979, he was pardoned by
28
the president w/ the condition that he shall not violate any penal
laws again. Should this condition be violated, he will be proceeded
against in the manner prescribed by law. Petitioner accepted the
conditional pardon and was consequently released from
confinement. In 1982, Torres was charged with multiple crimes of
estafa. In 1986, Gonzales petitioned for the cancellation of Torres
pardon. Hence, the president cancelled the pardon. Torres appealed
the issue before the SC averring that the Exec Dept erred in
convicting him for violating the conditions of his pardon because
the estafa charges against him were not yet final and executory as
they were still on appeal.
ISSUE:
whether or not conviction of a crime by final judgment of a court is
necessary before the petitioner can be validly rearrested and
recommitted for violation of the terms of his conditional pardon
and accordingly to serve the balance of his original sentence.
HELD:
In proceeding against a convict who has been conditionally
pardoned and who is alleged to have breached the conditions of his
pardon, the Executive Department has two options: (1) Section 64 (i)
of the Revised Administrative Code, a purely executive act, not
subject to judicial scrutiny, or (2) Article 159 of the Revised Penal
Code, a judicial act consisting of trial for and conviction of violation
of a conditional pardon.
Where the President opts to proceed under Section 64 (i) of the
Revised Administrative Code, no judicial pronouncement of guilt of
a subsequent crime is necessary, much less conviction therefor by
final judgment of a court, in order that a convict may be
recommended for the violation of his conditional pardon.
Under art. 159 of the RPC, parolee or convict who is regarded as
having violated the provisions thereof must be charged, prosecuted
and convicted by final judgment before he can be made to suffer
the penalty prescribed.
In the case at bar, President has chosen to proceed against the
petitioner under Section 64 (i) of the Revised Administrative Code.
That choice is an exercise of the Presidents executive prerogative
and is not subject to judicial scrutiny.
*Who determines if violated? The PRESIDENT. When the person was
conditionally pardoned it was a generous exercise by the Chief
Executive of his constitutional prerogative. The acceptance thereof
by the convict or prisoner carrie[d] with it the authority or power of
the Executive to determine whether a condition or conditions of the
pardon has or have been violated. To no other department of the
Government [has] such power been intrusted.
TOPIC: Who may avail amnesty
MACAGA-AN VS PEOPLE JULY 29, 1987
In a decision on July 15, 1981 the 22 petitioners were charged and
convicted in 33 cases for estafa through falsification of public and
commercial documents) The total amount of government funds
(treasury warrants) involved over P2.7 M
Petitioners moved to close their cases on ground that they had been
given amnesty by former President Marcos on January 28 1986. The
Sandigan Bayan required them to submit originals or authenticated
copies of their amnesty paper, which they were unable to produce.
Petion was denied.
According to the petitioner they were given conditional amnesty on
Feb. 2, 1985, through the 3rd and 11th amnesty commission of Lanao
del Sur and Marawi city subject to the approval or final action of the
President pursuant to PD 1082.
The amnesty commission recommended the approval of their
amnesty or grant of executive clemency.
January 22, 1986, former governor made written representations
with Marcos concerning the applications during the political rally.
Marcos wrote the following on the upper write hand corner of
Dimaporos letter: Approved and signed the same with a partly
illegible date.
Petitioners also state that the original copies were lost or destroyed
at Malacanang during the bloodless military revolution and could
not be located.
Issue:
Won the PD 1082 applies to the petitioners
Held:
No
It does not apply to them because their acts are nor offenses of
rebellion.
The offenders of which amnesty may be granted under the
provisions pf PD 1082 are acts which were done in furtherance of
resistance to the republic bay members and supporters of the MILF
and the Bangsa moro Army and other anti-government group with
similar motives and aims.
Petitioners fall under persons expressly disqualified from amnesty
stated on sec 2(a) of PD 1182, which repealed PD 1082. Petitions
also filed beyond the time limit provided.
The supposed approval of the former president on 1985, in clear
and conflict with the restrictions in the very decree he promulgated,
cannot be given any legal effect. Marcos did not amend his own
decree and he must be held to the terms and conditions that he
himself had promulgated in the exercise of legislative power.
Military Powers (includes:
1. Calling out
IBP vs. Zamora
G.R. No.141284, August 15, 2000
Facts:
Invoking his powers as Commander-in-Chief under Sec. 18, Art. 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. 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. The IBP filed a
petition seeking to declare the deployment of the Philippine
Marines null and void and unconstitutional.
29

Issues:
(1) Whether or not the Presidents factual determination of the
necessity of calling the armed forces is subject to judicial review
(2) 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
Held:
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. Under Sec. 18, Art.
VII of the Constitution, Congress may revoke such proclamation of
martial law or suspension of the privilege of the writ of habeas
corpus 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 power
to suspend the privilege of the writ of habeas corpus, otherwise,
the framers of the Constitution would have simply lumped together
the 3 powers and provided for their revocation and review without
any qualification.
The reason for the difference in the treatment of the said 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 the
Court.
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 exists no justification
for calling out the armed forces.
The Court disagrees to the contention that by the deployment of
the Marines, the civilian task of law enforcement is militarized in
violation of Sec. 3, Art. II of the Constitution. The deployment of the
Marines does not constitute a breach of the civilian supremacy
clause. The calling of the Marines constitutes permissible use of
military assets for civilian law enforcement. The local police forces
are the ones in charge of the visibility patrols at all times, the real
authority belonging to the PNP
Moreover, the deployment of the Marines to assist the PNP does
not unmake the civilian character of the police force. The real
authority in the operations is lodged with the head of a civilian
institution, the PNP, and not with the military. 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.
2. calling out power, declaration of state of rebellion
G.R. No. 147780. May 10, 2001.]
PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O.
MANCAO, petitioners v. SECRETARYHERNANDO PEREZ,
P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT.
REYNALDOBERROYA,respondents
FACTS:
On May 1, 2001, President Macapagal-Arroyo, faced by an armed
mob assaulting and attempting to break into Malacaang, issued
Proclamation No. 38 declaring that there was a state of rebellion in
NCR. She also issued General Order No. 1 directing the AFP and the
PNP to suppress the rebellion. Warrantless arrests of several alleged
leaders and promoters of the "rebellion" followed. Aggrieved, 4
related petitions were filed before the Court. The case at bar is for
prohibition, injunction, mandamus, and habeas corpus (with an
urgent application for the issuance of temporary restraining order
and/or writ of preliminary injunction). Petitioners assail the
declaration of a state of rebellion by PGMA and the warrantless
arrests allegedly effected by virtue thereof, as having no basis both
in fact and in law. On May 6, 2001, PGMA ordered the lifting of the
declaration of a "state of rebellion" in Metro Manila. Accordingly,
the instant petitions have been rendered moot and academic. As to
petitioners' claim that the proclamation of a "state of rebellion" is
being used by the authorities to justify warrantless arrests, the
Secretary of Justice denies that it has issued a particular order to
arrest specific persons in connection with the "rebellion."
ISSUE:
Whether or not there is a valid warrantless arrest against the
petitioners.
HELD:
No. In quelling or suppressing the rebellion, the authorities may
only resort to warrantless arrests of persons suspected of rebellion,
as provided under Section 5, Rule 113 of the Rules of Court, if the
circumstances so warrant. The warrantless arrest feared by
petitioners is, thus, not based on the declaration of a "state of
rebellion." Petitioners' contention that they are under imminent
danger of being arrested without warrant do not justify their resort
to the extraordinary remedies of mandamus and prohibition, since
an individual subjected to warrantless arrest is not without
adequate remedies in the ordinary course of law. The prayer for
prohibition and Mandamus is improper at this time. As regards
petitioners' prayer that the hold departure orders issued against
them be declared null and void ab initio, it is to be noted that
petitioners are not directly assailing the validity of the subject hold
departure orders in their petition. They are not even expressing
intention to leave the country in the near future. The prayer to set
aside the same must be made in proper proceedings initiated for
that purpose. Anent petitioners' allegations ex abundante ad
cautelam in support of their application for the issuance of a writ of
habeas corpus, it is manifest that the writ is not called for since its
purpose is to relieve petitioners from unlawful restraint, a matter
which remains speculative up to this very day. Petition is DISMISSED.
However, respondents, consistent and congruent with their
undertaking earlier adverted to, together with their agents,
30
representatives, and all persons acting for and in their behalf, are
hereby enjoined from arresting petitioners therein without the
required judicial warrant forall acts committed in relation to or in
connection with the May 1, 2001 siege of Malacaang.
As distinguished in the Marcos time
DAVID VS MACAPAGAL - ARROYO
G.R. No. 171396, May 3 2006 [Legislative Department - Power to
Declare War and Delegate Emergency Power]
FACTS:
On February 24, 2006, President Arroyo issued PP No. 1017
declaring a state of emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the
Republic of the Philippines and Commander-in-Chief of the Armed
Forces of the Philippines, [calling-out power] by virtue of the
powers vested upon me by Section 18, Article 7 of the Philippine
Constitution which states that: The President. . . whenever it
becomes necessary, . . . may call out (the) armed forces to prevent
or suppress. . .rebellion. . ., and in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act
of insurrection or rebellion ["take care" power] and to enforce
obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction; and [power to
take over] as provided in Section 17, Article 12 of the Constitution
do hereby declare a State of National Emergency.
On the same day, PGMA issued G.O. No. 5 implementing PP1017,
directing the members of the AFP and PNP "to immediately carry
out the necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence."
David, et al. assailed PP 1017 on the grounds that (1) it encroaches
on the emergency powers of Congress; (2) it is a subterfuge to avoid
the constitutional requirements for the imposition of martial law;
and (3) it violates the constitutional guarantees of freedom of the
press, of speech and of assembly. They alleged direct injury
resulting from illegal arrest and unlawful search committed by faithfully executed.
police operatives pursuant to PP 1017.
During the hearing, the Solicitor General argued that the issuance of
PP 1017 and GO 5 have factual basis, and contended that the intent
of the Constitution is to give full discretionary powers to the
President in determining the necessity of calling out the armed
forces. The petitioners did not contend the facts stated b the
Solicitor General.
ISSUE:
Whether or not the PP 1017 and G.O. No. 5 is constitutional.
RULING:
The operative portion of PP 1017 may be divided into three
important provisions, thus:
First provision: by virtue of the power vested upon me by Section
18, Artilce VII do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well any act of
insurrection or rebellion
Second provision: and to enforce obedience to all the laws
and to all decrees, orders and regulations promulgated by me
personally or upon my direction;
Third provision: as provided in Section 17, Article XII of the
Constitution do hereby declare a State of National Emergency.
PP 1017 is partially constitutional insofar as provided by the first
provision of the decree.
First Provision: Calling Out Power.
The only criterion for the exercise of the calling-out power is that
whenever it becomes necessary, the President may call the armed
forces to prevent or suppress lawless violence, invasion or
rebellion. (Integrated Bar of the Philippines v. Zamora)
President Arroyos declaration of a state of rebellion was merely
an act declaring a status or condition of public moment or interest,
a declaration allowed under Section 4, Chap 2, Bk II of the Revised
Administration Code. Such declaration, in the words of Sanlakas, is
harmless, without legal significance, and deemed not written. In
these cases, PP 1017 is more than that. In declaring a state of
national emergency, President Arroyo did not only rely on Section
18, Article VII of the Constitution, a provision calling on the AFP to
prevent or suppress lawless violence, invasion or rebellion. She
also relied on Section 17, Article XII, a provision on the States
extraordinary power to take over privately-owned public utility and
business affected with public interest. Indeed, PP 1017 calls for
the exercise of an awesome power. Obviously, such Proclamation
cannot be deemed harmless.
To clarify, PP 1017 is not a declaration of Martial Law. It is merely
an exercise of President Arroyos calling-out power for the armed
forces to assist her in preventing or suppressing lawless violence.
Second Provision: The "Take Care" Power.
The second provision pertains to the power of the President to
ensure that the laws be faithfully executed. This is based on
Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
This Court rules that the assailed PP 1017 is unconstitutional insofar
as it grants President Arroyo the authority to promulgate decrees.
Legislative power is peculiarly within the province of the Legislature.
Section 1, Article VI categorically states that [t]he legislative power
shall be vested in the Congress of the Philippines which shall consist
of a Senate and a House of Representatives. To be sure, neither
Martial Law nor a state of rebellion nor a state of emergency can
justify President Arroyos exercise of legislative power by issuing
decrees.
Third Provision: The Power to Take Over
Distinction must be drawn between the Presidents authority to
declare a state of national emergency and to exercise emergency
powers. To the first, Section 18, Article VII grants the President
such power, hence, no legitimate constitutional objection can be
raised. But to the second, manifold constitutional issues arise.
Generally, Congress is the repository of emergency powers. This is
31
evident in the tenor of Section 23 (2), Article VI authorizing it to
delegate such powers to the President. Certainly, a body cannot
delegate a power not reposed upon it. However, knowing that
during grave emergencies, it may not be possible or practicable for
Congress to meet and exercise its powers, the Framers of our
Constitution deemed it wise to allow Congress to grant emergency
powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the
Congress may prescribe.
(4) The emergency powers must be exercised to carry out a
national policy declared by Congress.
Section 17, Article XII must be understood as an aspect of the
emergency powers clause. The taking over of private business
affected with public interest is just another facet of the emergency
powers generally reposed upon Congress. Thus, when Section 17
states that the the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct
the operation of any privately owned public utility or business
affected with public interest, it refers to Congress, not the
President. Now, whether or not the President may exercise such
power is dependent on whether Congress may delegate it to him
pursuant to a law prescribing the reasonable terms thereof.
Following our interpretation of Section 17, Article XII, invoked by
President Arroyo in issuing PP 1017, this Court rules that such
Proclamation does not authorize her during the emergency to
temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest without
authority from Congress.
Let it be emphasized that while the President alone can declare a
state of national emergency, however, without legislation, he has no
power to take over privately-owned public utility or business
affected with public interest. Nor can he determine when such
exceptional circumstances have ceased. Likewise, without
legislation, the President has no power to point out the types of
businesses affected with public interest that should be taken over.
In short, the President has no absolute authority to exercise all the
powers of the State under Section 17, Article VII in the absence of
an emergency powers act passed by Congress.
As of G.O. No. 5, it is constitutional since it provides a standard by
which the AFP and the PNP should implement PP 1017, i.e.
whatever is necessary and appropriate actions and measures to
suppress and prevent acts of lawless violence. Considering that
acts of terrorism have not yet been defined and made punishable
by the Legislature, such portion of G.O. No. 5 is declared
unconstitutional.
BUSCAYNO VS MILITARY COMMISSION,
G.R. NO. 58284, 19 NOVEMBER 1981
FACTS:
Petitioners Bernabe Buscayno Jose Ma. Sison And Juliet Sison,
were charged with subversion by the Military Commission in
different charge sheets on different dates for acts committed prior
to the effectivity of Presidential Decree No. 885 on May 11, 1976
amending Republic Act No. 1700, the Anti-Subversion Law. The
three petitioners were all charged with rebellion in an amended
charge sheet but only the subversion and murder cases against
Buscayno were decided by the Military Commission with the
penalty of death by firing squad although the decision is still subject
to review.
Bernabe Buscayno alias Commander Dante and Jose Ma. Sison
alias Amado Guerrero, alleged subversives classified as
"PKP/HMB/CPP/MAMAO and Traditional Armed Group
personalities," were wanted by the authorities since 1971.
Buscayno and Sison were included in the so-called "National
Target List" of active participants in the conspiracy to seize political
and state power and to take over the government by force whose
arrest was ordered under General Order No. 2 dated September 22,
1972. The list was prepared by Colonel Hamilton B. Dimaya. (p. 95,
Rollo of L-47185)
On October 2, 1981, Buscayno and the Sison spouses filed the
instant omnibus, catchall petition for habeas corpus, prohibition
and mandamus couched in repetitious, involuted and obfuscatory
verbiage.
They prayed that the decision of Military Commission No. 2
dated May 4, 1981, convicting Buscayno of subversion and murder
and sentencing him to death by firing squad, be declared void
because he was denied his constitutional right to present evidence
and that he be released from detention.
They also prayed that the charges of rebellion and subversion
be dismissed for being in contravention of the rule on double
jeopardy, that Military Commissions Nos. 1, 6 and 25 be enjoined
from proceeding with the trial of the petitioners and that the
petitioners be released. They also prayed that they be granted bail.
The petitioners also asked for the issuance of a temporary
restraining order, enjoining the three Commissions from trying the
petitioners, enjoining Military Commission No. 1 from continuing
with the perpetuation of testimonies and from requiring the
petitioners to attend the perpetuation proceedings and enjoining
the Review Board-AFP from reviewing the decision in the
subversion and murder cases.
Petitioner contends that criminal liability for subversion was
extinguished when Presidential Decree No. 885 (which took effect
on May 11, 1976, 72 OG 3826) repealed Republic Act No. 1700.
ISSUE:
Whether or not, criminal liability for subversion be
extinguished for acts committed prior to the effectivity of
Presidential Decree No. 885 amending Republic Act No. 1700, the
Anti-Subversion Law.
RULING:
Petition dismissed. The acts committed before the effectivity of
Presidential Decree No. 885 shall be prosecuted and punished
under Republic Act No. 1700.
Revised Anti-Subversion Law (P.D. No. 885), in repealing or
superseding Republic Act No. 1700, expressly provides in its Section
7 that "acts committed in violation'' of the former law before the
effectivity of said decree "shall be prosecuted and punished in
accordance with the provisions of the former Act" and that nothing
in said decree "shall prevent prosecution of cases pending for
violation of" Republic Act No. 1700. That saving or transitory clause
is re-enacted in Section 14(i) of the National Security Code.
NOTES:
REPUBLIC ACT NO. 1700, ALSO KNOWN AS THE
32
ANTI-SUBVERSION ACT, is a law that outlaws the Communist Party
of the Philippines (CPP) and similar organizations, penalizing mere
membership of these organizations. It declares that the Communist
Party of the Philippines, although purportedly a political party, is in
fact an organized conspiracy to overthrow the Government of the
Republic of the Philippines not only by force and violence but also
by deceit, subversion and other illegal means, for the purpose of
establishing in the Philippines a totalitarian regime subject to alien
domination and control. Under the Anti-Subversion Act, the term
Communist Party of the Philippines means and includes the
organizations now known as the Communist Party of the Philippines
and its military arm, the Hukbong Mapagpalaya ng Bayan, formerly
known as HUKBALAHAPS, and any successors of such organizations.
PRESIDENTIAL DECREE NO. 885: OUTLAWING SUBVERSIVE
ORGANIZATIONS, PENALIZING MEMBERSHIP THEREIN AND FOR
OTHER PURPOSES.
Philip Sigfrid Fortun v. Gloria Macapagal-Arroyo, et al., G.R. No.
190293, March 20, 2012 (and other consolidated cases)
I. THE FACTS
On November 23, 2009, heavily armed men believed led by the
ruling Ampatuan family of Maguindanao gunned down and buried
under shoveled dirt 57 innocent civilians. In response to this
carnage, President Arroyo issued on November 24, 2009 PP 1946
declaring a state of emergency in Maguindanao, Sultan Kudarat, and
Cotabato City.
On December 4, 2009, President Arroyo issued PP 1959 declaring
martial law and suspending the privilege of the writ of habeas
corpus in Maguindanao except for identified areas of the Moro
Islamic Liberation Front. On December 6, 2009, President Arroyo
submitted her report to Congress. On December 9, 2009, Congress
convened in joint session to review the validity of the Presidents
action. But two days later, or on December 12, 2009, before
Congress could act, the President issued PP 1963, lifting martial law
and restoring the privilege of the writ of habeas corpus.
II. THE ISSUES
Did the issuance of PP 1963, lifting martial law and restoring the
[privilege of the] writ in Maguindanao, render the issues moot and
academic?
III. THE RULING
[The Court DISMISSED the consolidated petitions on the ground
that they have become MOOT and ACADEMIC.]
YES, the issuance of PP 1963, lifting martial law and restoring the
[privilege of the] writ in Maguindanao, rendered the issues moot
and academic
Prudence and respect for the co-equal departments of the
government dictate that the Court should be cautious in
entertaining actions that assail the constitutionality of the acts of
the Executive or the Legislative department. The issue of
constitutionality, said the Court in Biraogo v. Philippine Truth
Commission of 2010, must be the very issue of the case, that the
resolution of such issue is unavoidable.
The issue of the constitutionality of Proclamation 1959 is not
unavoidable for two reasons:
One. President Arroyo withdrew her proclamation of martial law
and suspension of the privilege of the writ of habeas corpus before
the joint houses of Congress could fulfill their automatic duty to
review and validate or invalidate the same. xxx.
xxx xxx
[U]nder the 1987 Constitution the President and the Congress act in
tandem in exercising the power to proclaim martial law or suspend
the privilege of the writ of habeas corpus. They exercise the
power, not only sequentially, but in a sense jointly since, after the
President has initiated the proclamation or the suspension, only the
Congress can maintain the same based on its own evaluation of the
situation on the ground, a power that the President does not have.
Consequently, although the Constitution reserves to the Supreme
Court the power to review the sufficiency of the factual basis of the
proclamation or suspension in a proper suit, it is implicit that the
Court must allow Congress to exercise its own review powers, which
is automatic rather than initiated. Only when Congress defaults in
its express duty to defend the Constitution through such review
should the Supreme Court step in as its final rampart. The
constitutional validity of the Presidents proclamation of martial law
or suspension of the writ of habeas corpus is first a political
question in the hands of Congress before it becomes a justiciable
one in the hands of the Court.
xxx xxx
Here, President Arroyo withdrew Proclamation 1959 before the
joint houses of Congress, which had in fact convened, could act on
the same. Consequently, the petitions in these cases have become
moot and the Court has nothing to review. The lifting of martial
law and restoration of the privilege of the writ of habeas corpus in
Maguindanao was a supervening event that obliterated any
justiciable controversy.
Two. Since President Arroyo withdrew her proclamation of martial
law and suspension of the privilege of the writ of habeas corpus in
just eight days, they have not been meaningfully implemented.
The military did not take over the operation and control of local
government units in Maguindanao. The President did not issue
any law or decree affecting Maguindanao that should ordinarily be
enacted by Congress. No indiscriminate mass arrest had been
reported. Those who were arrested during the period were either
released or promptly charged in court. Indeed, no petition for
habeas corpus had been filed with the Court respecting arrests
made in those eight days. The point is that the President intended
by her action to address an uprising in a relatively small and
sparsely populated province. In her judgment, the rebellion was
localized and swiftly disintegrated in the face of a determined and
amply armed government presence.
xxx xxx xxx.
In a real sense, the proclamation and the suspension never took off.
The Congress itself adjourned without touching the matter, it having
become moot and academic.
Emergency power vs Declaration of Sate of emergency
Ampatuan, et al. v. Secretary Ronaldo Puno
G.R. No. 190259 : June 7, 2011
DATU ZALDY UY AMPATUAN, ANSARUDDIN ADIONG, REGIE
SAHALI-GENERALE, Petitioners, v. HON. RONALDO PUNO, in his
capacity as Secretary of the Department of Interior and Local
Government and alter-ego of President Gloria Macapagal-Arroyo,
and anyone acting in his stead and on behalf of the President of the
33
Philippines, ARMED FORCES OF THE PHILIPPINES (AFP), or any of
their units operating in the Autonomous Region in Muslim
Mindanao (ARMM), and PHILIPPINE NATIONAL POLICE, or any of
their units operating in ARMM, Respondents.
FACTS:
On November 24, 2009, the day after the gruesome massacre of 57
men and women, including some news reporters, then President
Gloria Macapagal-Arroyo issued Proclamation 1946, placing "the
Provinces of Maguindanao and Sultan Kudarat and the City of
Cotabato under a state of emergency." She directed the AFP and the
PNP "to undertake such measures as may be allowed by the
Constitution and by law to prevent and suppress all incidents of
lawless violence" in the named places.
Three days later or on November 27, President Arroyo also issued
AO 273 "transferring" supervision of the ARMM from the Office of
the President to the DILG. But, due to issues raised over the
terminology used in AO 273, the President issued Administrative
Order 273-A (AO 273-A) amending the former, by "delegating"
instead of "transferring" supervision of the ARMM to the DILG.
Claiming that the President's issuances encroached on the ARMM's
autonomy, petitioners Datu Zaldy Uy Ampatuan, Ansaruddin Adiong,
and Regie Sahali-Generale, all ARMM officials, filed this petition for
prohibition under Rule 65. They alleged that the proclamation and
the orders empowered the DILG Secretary to take over ARMMs
operations and seize the regional government's powers, in violation
of the principle of local autonomy under Republic Act 9054 (also
known as the Expanded ARMM Act) and the Constitution. The
President gave the DILG Secretary the power to exercise, not merely
administrative supervision, but control over the ARMM since the
latter could suspend ARMM officials and replace them.
Petitioners alleged that the deployment of troops and the taking
over of the ARMM constitutes an invalid exercise of the Presidents
emergency powers. Hence, petitioners prayed the nullity of
Proclamation 1946 as well as AOs 273 and 273-A and respondents,
DILG Secretary, the AFP, and the PNP be enjoined from
implementing them.
In its comment for the respondents, the (OSG) insisted that the
President issued Proclamation 1946, not to deprive the ARMM of its
autonomy, but to restore peace and order in subject places. She
issued the proclamation pursuant to her "calling out" power as
Commander-in-Chief under the first sentence of Section 18, Article
VII of the Constitution. The determination of the need to exercise
this power rests solely on her wisdom.10 She must use her
judgment based on intelligence reports and such best information
as are available to her to call out the armed forces to suppress and
prevent lawless violence wherever and whenever these reared their
ugly heads.
On the other hand, the President merely delegated through AOs 273
and 273-A her supervisory powers over the ARMM to the DILG
Secretary who was her alter ego any way. These orders did not
authorize a take over of the ARMM. They did not give him blanket
authority to suspend or replace ARMM officials. The delegation was
necessary to facilitate the investigation of the mass killings. Further,
the assailed proclamation and administrative orders did not provide
for the exercise of emergency powers.
ISSUES:
[1] Whether the aforementioned issuances are constitutional
[2] Whether or not President Arroyo invalidly exercised emergency
powers when she called out the AFP and the PNP to prevent and
suppress all incidents of lawless violence in Maguindanao, Sultan
Kudarat, and Cotabato City
HELD:
The AO Nos 273 and 273-A are constitutional.
POLITICAL LAW emergency powers
The deployment is not by itself an exercise of emergency powers as
understood under Section 23 (2), Article VI of the Constitution,
which provides:
SECTION 23. x x x (2) In times of war or other national emergency,
the Congress may, by law, authorize the President, for a limited
period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared
national policy. Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next adjournment
thereof.
The President did not proclaim a national emergency, only a state of
emergency in the three places mentioned. And she did not act
pursuant to any law enacted by Congress that authorized her to
exercise extraordinary powers. The calling out of the armed forces
to prevent or suppress lawless violence in such places is a power
that the Constitution directly vests in the President. She did not
need a congressional authority to exercise the same.
The President's call on the armed forces to prevent or suppress
lawless violence springs from the power vested in her under Section
18, Article VII of the Constitution, which provides -
SECTION 18. The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it becomes necessary,
he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. x x x
On the other hand, the President, as Commander-in-Chief has a vast
intelligence network to gather information, some of which may be
classified as highly confidential or affecting the security of the state.
In the exercise of the power to call, on-the-spot decisions may be
imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. Indeed, the decision
to call out the military to prevent or suppress lawless violence must
be done swiftly and decisively if it were to have any effect at all.
Here, petitioners failed to show that the declaration of a state of
emergency in the Provinces of Maguindanao, Sultan Kudarat and
Cotabato City, as well as the President's exercise of the "calling out"
power had no factual basis. They simply alleged that, since not all
areas under the ARMM were placed under a state of emergency, it
follows that the takeover of the entire ARMM by the DILG Secretary
had no basis too.
Considering the fact that the principal victims of the brutal
34
bloodshed are members of the Mangudadatu family and the main
perpetrators of the brutal killings are members and followers of the
Ampatuan family, both the military and police had to prepare for
and prevent reported retaliatory actions from the Mangudadatu
clan and additional offensive measures from the Ampatuan clan.
In other words, the imminence of violence and anarchy at the time
the President issued Proclamation 1946 was too grave to ignore and
she had to act to prevent further bloodshed and hostilities in the
places mentioned. Progress reports also indicated that there was
movement in these places of both high-powered firearms and
armed men sympathetic to the two clans. Thus, to pacify the
peoples fears and stabilize the situation, the President had to take
preventive action. She called out the armed forces to control the
proliferation of loose firearms and dismantle the armed groups that
continuously threatened the peace and security in the affected
places.
The Petition is dismissed for lack of merit.
Diplomatic Power
Nicolas V. Romulo
*This case is consolidated with Salonga vs Daniel Smith & BAYAN vs
Gloria Arroyo
On the 1st of November 2005, Daniel Smith committed the crime of
rape against Nicole. He was convicted of the said crime and was
ordered by the court to suffer imprisonment. Smith was a US
serviceman convicted of a crime against our penal laws and the
crime was committed within the countrys jurisdiction. But pursuant
to the VFA, a treaty between the US and Philippines, the US
embassy was granted custody over Smith. Nicole, together with the
other petitioners appealed before the SC assailing the validity of the
VFA. Their contention is that the VFA was not ratified by the US
senate in the same way our senate ratified the VFA.
ISSUE:
Is the VFA void and unconstitutional & whether or not it is
self-executing.
HELD:
The VFA is a self-executing Agreement because the parties intend its
provisions to be enforceable, precisely because the VFA is intended
to carry out obligations and undertakings under the RP-US Mutual
Defense Treaty. As a matter of fact, the VFA has been implemented
and executed, with the US faithfully complying with its obligation to
produce Smith before the court during the trial.
The VFA is covered by implementing legislation inasmuch as it is the
very purpose and intent of the US Congress that executive
agreements registered under this Act within 60 days from their
ratification be immediately implemented. The SC noted that the VFA
is not like other treaties that need implementing legislation such as
the Vienna Convention. As regards the implementation of the RP-US
Mutual Defense Treaty, military aid or assistance has been given
under it and this can only be done through implementing legislation.
The VFA itself is another form of implementation of its provisions.
BAYAN v. ZAMORA
G. R. No. 138570 October 10, 2000
Facts:
The United States panel met with the Philippine panel to discussed,
among others, the possible elements of the Visiting Forces
Agreement (VFA). This resulted to a series of conferences and
negotiations which culminated on January 12 and 13, 1998.
Thereafter, President Fidel Ramos approved the VFA, which was
respectively signed by Secretary Siazon and United States
Ambassador Thomas Hubbard.
Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on
May 27, 1999, the senate approved it by (2/3) votes.
Cause of Action:
Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987
constitution is applicable and not Section 21, Article VII.
Following the argument of the petitioner, under they provision cited,
the foreign military bases, troops, or facilities may be allowed in
the Philippines unless the following conditions are sufficiently met:
a) it must be a treaty,
b) it must be duly concurred in by the senate, ratified by a majority
of the votes cast in a national referendum held for that purpose if so
required by congress, and
c) recognized as such by the other contracting state.
Respondents, on the other hand, argue that Section 21 Article VII is
applicable so that, what is requires for such treaty to be valid and
effective is the concurrence in by at least two-thirds of all the
members of the senate.
ISSUE:
Is the VFA governed by the provisions of Section 21, Art VII or of
Section 25, Article XVIII of the Constitution?
HELD:
Section 25, Article XVIII, which specifically deals with treaties
involving foreign military bases, troops or facilities should apply in
the instant case. To a certain extent and in a limited sense, however,
the provisions of section 21, Article VII will find applicability with
regard to the issue and for the sole purpose of determining the
number of votes required to obtain the valid concurrence of the
senate.
The Constitution, makes no distinction between transient and
permanent. We find nothing in section 25, Article XVIII that
requires foreign troops or facilities to be stationed or placed
permanently in the Philippines.
It is inconsequential whether the United States treats the VFA only
as an executive agreement because, under international law, an
executive agreement is as binding as a treaty.
PIMENTEL v. EXECUTIVE SECRETARY
Facts:
This is a petition of Senator Aquilino Pimentel and the other parties
to ask the Supreme Court to require the Executive Department to
transmit the Rome Statute which established the International
Criminal Court for the Senates concurrence in accordance with Sec
21, Art VII of the 1987 Constitution.
It is the theory of the petitioners that ratification of a treaty, under
both domestic law and international law, is a function of the Senate.
Hence, it is the duty of the executive department to transmit the
signed copy of the Rome Statute to the Senate to allow it to exercise
35
its discretion with respect to ratification of treaties. Moreover,
petitioners submit that the Philippines has a ministerial duty to
ratify the Rome Statute under treaty law and customary
international law. Petitioners invoke the Vienna Convention on the
Law of Treaties enjoining the states to refrain from acts which would
defeat the object and purpose of a treaty when they have signed
the treaty prior to ratification unless they have made their intention
clear not to become parties to the treaty.[5]
The Office of the Solicitor General, commenting for the respondents,
questioned the standing of the petitioners to file the instant suit. It
also contended that the petition at bar violates the rule on
hierarchy of courts. On the substantive issue raised by petitioners,
respondents argue that the executive department has no duty to
transmit the Rome Statute to the Senate for concurrence.
Issue:
Whether or not the executive department has a ministerial duty to
transmit the Rome Statute (or any treaty) to the Senate for
concurrence.
Ruling:
The petition was dismissed. The Supreme Court ruled that the the
President, being the head of state, is regarded as the sole organ and
authority in external relations and is the countrys sole
representative with foreign nations. As the chief architect of foreign
policy, the President acts as the countrys mouthpiece with respect
to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or
withhold recognition, maintain diplomatic relations, enter into
treaties, and otherwise transact the business of foreign relations. In
the realm of treaty-making, the President has the sole authority to
negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate
and enter into treaties, the Constitution provides a limitation to his
power by requiring the concurrence of 2/3 of all the members of the
Senate for the validity of the treaty entered into by him. Section 21,
Article VII of the 1987 Constitution provides that no treaty or
international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the
Senate.
Justice Isagani Cruz, in his book on International Law, describes the
treaty-making process in this wise:
The usual steps in the treaty-making process are: negotiation,
signature, ratification, and exchange of the instruments of
ratification. The treaty may then be submitted for registration and
publication under the U.N. Charter, although this step is not
essential to the validity of the agreement as between the parties.
Negotiation may be undertaken directly by the head of state but he
now usually assigns this task to his authorized representatives.
These representatives are provided with credentials known as full
powers, which they exhibit to the other negotiators at the start of
the formal discussions. It is standard practice for one of the parties
to submit a draft of the proposed treaty which, together with the
counter-proposals, becomes the basis of the subsequent
negotiations. The negotiations may be brief or protracted,
depending on the issues involved, and may even collapse in case
the parties are unable to come to an agreement on the points under
consideration.
If and when the negotiators finally decide on the terms of the treaty,
the same is opened for signature. This step is primarily intended as
a means of authenticating the instrument and for the purpose of
symbolizing the good faith of the parties; but, significantly, it does
not indicate the final consent of the state in cases where ratification
of the treaty is required. The document is ordinarily signed in
accordance with the alternat, that is, each of the several negotiators
is allowed to sign first on the copy which he will bring home to his
own state.
Ratification, which is the next step, is the formal act by which a
state confirms and accepts the provisions of a treaty concluded by
its representatives. The purpose of ratification is to enable the
contracting states to examine the treaty more closely and to give
them an opportunity to refuse to be bound by it should they find it
inimical to their interests. It is for this reason that most treaties are
made subject to the scrutiny and consent of a department of the
government other than that which negotiated them.
The last step in the treaty-making process is the exchange of the
instruments of ratification, which usually also signifies the effectivity
of the treaty unless a different date has been agreed upon by the
parties. Where ratification is dispensed with and no effectivity
clause is embodied in the treaty, the instrument is deemed effective
upon its signature.
Petitioners arguments equate the signing of the treaty by the
Philippine representative with ratification. It should be underscored
that the signing of the treaty and the ratification are two separate
and distinct steps in the treaty-making process. As earlier discussed,
the signature is primarily intended as a means of authenticating the
instrument and as a symbol of the good faith of the parties. It is
usually performed by the states authorized representative in the
diplomatic mission. Ratification, on the other hand, is the formal act
by which a state confirms and accepts the provisions of a treaty
concluded by its representative.
It should be emphasized that under our Constitution, the power to
ratify is vested in the President, subject to the concurrence of the
Senate. The role of the Senate, however, is limited only to giving or
withholding its consent, or concurrence, to the ratification. Hence,
it is within the authority of the President to refuse to submit a
treaty to the Senate or, having secured its consent for its ratification,
refuse to ratify it. Although the refusal of a state to ratify a treaty
which has been signed in its behalf is a serious step that should not
be taken lightly, such decision is within the competence of the
President alone, which cannot be encroached by this Court via a
writ of mandamus. This Court has no jurisdiction over actions
seeking to enjoin the President in the performance of his official
duties.
Vinuya v. Romulo
FACTS:
This is an original Petition for Certiorari under Rule 65 of the Rules
of Court with an application for the issuance of a writ of preliminary
mandatory injunction against the Office of the Executive Secretary,
the Secretary of the DFA, the Secretary of the DOJ, and the OSG.
Petitioners are all members of the MALAYA LOLAS, a non-stock,
non-profit organization registered with the SEC, established for the
purpose of providing aid to the victims of rape by Japanese military
forces in the Philippines during the Second World War.
Petitioners claim that since 1998, they have approached the
Executive Department through the DOJ, DFA, and OSG, requesting
36
assistance in filing a claim against the Japanese officials and military
officers who ordered the establishment of the comfort women
stations in the Philippines. But officials of the Executive Department
declined to assist the petitioners, and took the position that the
individual claims of the comfort women for compensation had
already been fully satisfied by Japans compliance with the Peace
Treaty between the Philippines and Japan.
Hence, this petition where petitioners pray for this court to (a)
declare that respondents committed grave abuse of discretion
amounting to lack or excess of discretion in refusing to espouse
their claims for the crimes against humanity and war crimes
committed against them; and (b) compel the respondents to
espouse their claims for official apology and other forms of
reparations against Japan before the International Court of Justice
(ICJ) and other international tribunals.
Respondents maintain that all claims of the Philippines and its
nationals relative to the war were dealt with in the San Francisco
Peace Treaty of 1951 and the bilateral Reparations Agreement of
1956.
On January 15, 1997, the Asian Womens Fund and the Philippine
government signed a Memorandum of Understanding for medical
and welfare support programs for former comfort women. Over the
next five years, these were implemented by the Department of
Social Welfare and Development.
ISSUE:
WON the Executive Department committed grave abuse of
discretion in not espousing petitioners claims for official apology
and other forms of reparations against Japan.
RULING:
Petition lacks merit. From a Domestic Law Perspective, the
Executive Department has the exclusive prerogative to determine
whether to espouse petitioners claims against Japan.
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.
One type of case of political questions involves questions of foreign
relations. It is well-established that the conduct of the foreign
relations of our government is committed by the Constitution to the
executive and legislativethe politicaldepartments of the
government, and the propriety of what may be done in the exercise
of this political power is not subject to judicial inquiry or decision.
are delicate, complex, and involve large elements of prophecy. They
are and should be undertaken only by those directly responsible to
the people whose welfare they advance or imperil.
But not all cases implicating foreign relations present political
questions, and courts certainly possess the authority to construe or
invalidate treaties and executive agreements. However, the
question whether the Philippine government should espouse claims
of its nationals against a foreign government is a foreign relations
matter, the authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In this
case, the Executive Department has already decided that it is to the
best interest of the country to waive all claims of its nationals for
reparations against Japan in the Treaty of Peace of 1951. The
wisdom of such decision is not for the courts to question.
The President, not Congress, has the better opportunity of knowing
the conditions which prevail in foreign countries, and especially is
this true in time of war. He has his confidential sources of
information. He has his agents in the form of diplomatic, consular
and other officials.
The Executive Department has determined that taking up
petitioners cause would be inimical to our countrys foreign policy
interests, and could disrupt our relations with Japan, thereby
creating serious implications for stability in this region. For the to
overturn the Executive Departments determination would mean an
assessment of the foreign policy judgments by a coordinate political
branch to which authority to make that judgment has been
constitutionally committed.
From a municipal law perspective, certiorari will not lie. As a general
principle, where such an extraordinary length of time has lapsed
between the treatys conclusion and our consideration the
Executive must be given ample discretion to assess the foreign
policy considerations of espousing a claim against Japan, from the
standpoint of both the interests of the petitioners and those of the
Republic, and decide on that basis if apologies are sufficient, and
whether further steps are appropriate or necessary.
In the international sphere, traditionally, the only means available
for individuals to bring a claim within the international legal system
has been when the individual is able to persuade a government to
bring a claim on the individuals behalf. By taking up the case of one
of its subjects and by resorting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its
own right to ensure, in the person of its subjects, respect for the
rules of international law.
Within the limits prescribed by international law, a State may
exercise diplomatic protection by whatever means and to whatever
extent it thinks fit, for it is its own right that the State is asserting.
Should the natural or legal person on whose behalf it is acting
consider that their rights are not adequately protected, they have
no remedy in international law. All they can do is resort to national
law, if means are available, with a view to furthering their cause or
obtaining redress. All these questions remain within the province of
municipal law and do not affect the position internationally.
Even the invocation of jus cogens norms and erga omnes obligations
will not alter this analysis. Petitioners have not shown that the
crimes committed by the Japanese army violated jus cogens
prohibitions at the time the Treaty of Peace was signed, or that the
duty to prosecute perpetrators of international crimes is an erga
omnes obligation or has attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international
law has been used as a legal term describing obligations owed by
States towards the community of states as a whole. Essential
distinction should be drawn between the obligations of a State
towards the international community as a whole, and those arising
vis--vis another State in the field of diplomatic protection. By their
very nature, the former are the concern of all States. In view of the
importance of the rights involved, all States can be held to have a
legal interest in their protection; they are obligations erga omnes.
The term jus cogens (literally, compelling law) refers to norms
that command peremptory authority, superseding conflicting
treaties and custom. Jus cogens norms are considered peremptory
in the sense that they are mandatory, do not admit derogation, and
can be modified only by general international norms of equivalent
37
authority the Chief Executive full discretion to determine whether an alien's
WHEREFORE, the Petition is hereby DISMISSED. residence in the country is so undesirable as to affect or injure the
security welfare or interest of the state.
o The Chief Executive is the sole and exclusive judge of the
Deportation of Undesirable Aliens (essentially an Executive Power) existence of facts which warrant the deportation of aliens as
Go Tek vs. Deportation Board | Aquino disclosed in an investigation conducted in accordance with Sec. 69
FACTS of the RAC.
On March 3, 1964 the chief prosecutor of the Deportation o After all, the inherent right of a country to expel or deport
Board filed a complaint against Go Tek, a chinaman, praying that the aliens because their continued presence is rental to public welfare is
board recommend his immediate deportation to the President absolute and unqualified.
because he was an undesirable alien on the basis of these As the President is granted full discretion as regards
allegations: deportation, it is fundamental that an executive order for
o Go Tek was a sector commander and intelligence and record deportation is not dependent on a prior judicial conviction in a case.
officer of a guerilla unit of the Emergency Intelligence Section,
Army of the United States;
o And he was in possession of fake dollar checks in violation of
Art. 168 of the RPC.
Go Tek filed a motion to dismiss.
o The complaint was premature as he had a pending case in the
city fiscals office for violation of Art. 168.
o The board had no jurisdiction over the case because the board
may only deport aliens on the grounds expressly specified by law
citing an obiter in Qua Chee Gan.
The Board denied the motion ruling that a conviction is not
required before the State may deport an undesirable alien and that
the Board is only a fact finding body whose function is to make a
report and recommendation to the President.
Go Tek filed an action for prohibition with the CFI.
The CFI granted the petition by upholding the obiter in the
Qua Chee Gan case. It held that Sec. 37(3) of the Immigration Law
requires conviction of a crime involving moral turpitude and, thus,
the complaint was premature since mere possession of forged
dollar checks is not a ground for deportation under the Immigration
Law.
The Board appealed the decision to the SC.

ISSUES/HELD
Can the Deportation Board entertain a deportation proceeding
based on a ground which is not specified in section 37 of the
Immigration Law? YES.
Is prior conviction of the offense imputed to Go Tek necessary
to allow the board to continue its investigation? NO.

RATIONALE
Under existing law, the deportation of an undesirable alien
may be effected (1) by order of the President, after due
investigation, pursuant to section 69 of the Revised Administrative
Code and (2) by the Commissioner of Immigration upon
recommendation of the Board of Commissioners of the existence of
the ground for deportation, as charged against the alien, under Sec.
37 of the Immigration Law.
When deportation is effected by the President in the exercise
of his powers, it need not be under any ground specified in Sec. 37
of the Immigration Law; such a requirement is relevant only when
the deportation is effect by the Commissioner of Immigration.
o Sec. 69 of the RAC and E.O. No. 398, creating the Deportation
Board, do not specify the grounds for deportation
o There is no legal nor constitutional provision defining the
power to deport aliens because the intention of the law is to grant
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