G.R. No.
79974 December 17, 1987 The President shall have the power to make appointments during the recess of the Congress, whether voluntary
ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners,
vs.
SALVADOR MISON.
PADILLA, J.:
Once more the Court is called upon to delineate constitutional boundaries. In this petition for prohibition, the
petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the Philippines and professors of
Constitutional Law, seek to enjoin the respondent Salvador Mison from performing the functions of the Office
of Commissioner of the Bureau of Customs and the respondent Guillermo Carague, as Secretary of the
Department of Budget, from effecting disbursements in payment of Mison's salaries and emoluments, on the
ground that Mison's appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of its
not having been confirmed by the Commission on Appointments. The respondents, on the other hand, maintain
the constitutionality of respondent Mison's appointment without the confirmation of the Commission on
Appointments.
Because of the demands of public interest, including the need for stability in the public service, the Court
resolved to give due course to the petition and decide, setting aside the finer procedural questions of whether
prohibition is the proper remedy to test respondent Mison's right to the Office of Commissioner of the Bureau
of Customs and of whether the petitioners have a standing to bring this suit.
By the same token, and for the same purpose, the Court allowed the Commission on Appointments to intervene
and file a petition in intervention. Comment was required of respondents on said petition. The comment was
filed, followed by intervenor's reply thereto. The parties were also heard in oral argument on 8 December 1987.
This case assumes added significance because, at bottom line, it involves a conflict between two (2) great
departments of government, the Executive and Legislative Departments. It also occurs early in the life of the
1987 Constitution.
The task of the Court is rendered lighter by the existence of relatively clear provisions in the Constitution. In
cases like this, we follow what the Court, speaking through Mr. Justice (later, Chief Justice) Jose Abad Santos
stated in Gold Creek Mining Corp. vs. Rodriguez, 1 that:
The fundamental principle of constitutional construction is to give effect to the intent of the framers of the
organic law and of the people adopting it. The intention to which force is to be given is that which is embodied
and expressed in the constitutional provisions themselves.
The Court will thus construe the applicable constitutional provisions, not in accordance with how the executive
or the legislative department may want them construed, but in accordance with what they say and provide.
Section 16, Article VII of the 1987 Constitution says:
The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of
the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise
provided for by law, and those 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.
or compulsory, but such appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress.
It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are four (4) groups
of officers whom the President shall appoint. These four (4) groups, to which we will hereafter refer from time
to time, are:
First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the
armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in
him in this Constitution; 2
Second, all other officers of the Government whose appointments are not otherwise provided for by law; 3
Third, those whom the President may be authorized by law to appoint;
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.
Appointments of such officers are initiated by nomination and, if the nomination is confirmed by the Commission
on Appointments, the President appoints. 5
The second, third and fourth groups of officers are the present bone of contention. Should they be appointed
by the President with or without the consent (confirmation) of the Commission on Appointments? By following
the accepted rule in constitutional and statutory construction that an express enumeration of subjects excludes
others not enumerated, it would follow that only those appointments to positions expressly stated in the first
group require the consent (confirmation) of the Commission on Appointments. But we need not rely solely on
this basic rule of constitutional construction. We can refer to historical background as well as to the records of
the 1986 Constitutional Commission to determine, with more accuracy, if not precision, the intention of the
framers of the 1987 Constitution and the people adopting it, on whether the appointments by the President,
under the second, third and fourth groups, require the consent (confirmation) of the Commission on
Appointments. Again, in this task, the following advice of Mr. Chief Justice J. Abad Santos in Gold Creek is
apropos:
In deciding this point, it should be borne in mind that a constitutional provision must be presumed to have been
framed and adopted in the light and understanding of prior and existing laws and with reference to them. "Courts
are bound to presume that the people adopting a constitution are familiar with the previous and existing laws
upon the subjects to which its provisions relate, and upon which they express their judgment and opinion in its
adoption." (Barry vs. Truax 13 N.D., 131; 99 N.W., 769,65 L. R. A., 762.) 6
It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that
xxx xxx xxx
(3) The President shall nominate and with the consent of the Commission on Appointments, shall appoint the
heads of the executive departments and bureaus, officers of the army from the rank of colonel, of the Navy and
Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments
are not herein otherwise provided for, and those whom he may be authorized by law to appoint; but the
Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the
heads of departments.
(4) The President shall havethe power to make appointments during the recess of the Congress, but such The President: We will call Commissioner Davide later.
appointments shall be effective only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
Mr. Monsod: With the Chair's indulgence, I just want to take a few minutes of our time to lay the basis for some
of the amendments that I would like to propose to the Committee this morning.
xxx xxx xxx
xxx xxx xxx
(7) ..., and with the consent of the Commission on Appointments, shall appoint ambassadors, other public
ministers and consuls ...
On Section 16, I would like to suggest that the power of the Commission on Appointments be limited to the
department heads, ambassadors, generals and so on but not to the levels of bureau heads and colonels.
Upon the other hand, the 1973 Constitution provides that-
xxx xxx xxx 8 (Emphasis supplied.)
Section 10. The President shall appoint the heads of bureaus and offices, the officers of the Armed Forces of the
Philippines from the rank of Brigadier General or Commodore, and all other officers of The government whose
In the course of the debates on the text of Section 16, there were two (2) major changes proposed and approved
appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint.
by the Commission. These were (1) the exclusion of the appointments of heads of bureaus from the requirement
However, the Batasang Pambansa may by law vest in the Prime Minister, members of the Cabinet, the Executive
of confirmation by the Commission on Appointments; and (2) the exclusion of appointments made under the
Committee, Courts, Heads of Agencies, Commissions, and Boards the power to appoint inferior officers in their
second sentence 9 of the section from the same requirement. The records of the deliberations of the
respective offices.
Constitutional Commission show the following:

Thus, in the 1935 Constitution, almost all presidential appointments required the consent (confirmation) of the
MR. ROMULO: I ask that Commissioner Foz be recognized
Commission on Appointments. It is now a sad part of our political history that the power of confirmation by the
Commission on Appointments, under the 1935 Constitution, transformed that commission, many times, into a
venue of "horse-trading" and similar malpractices. THE PRESIDENT: Commissioner Foz is recognized

On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it was molded and
remolded by successive amendments, placed the absolute power of appointment in the President with hardly
any check on the part of the legislature.
Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973 Constitution, it is
not difficult for the Court to state that the framers of the 1987 Constitution and the people adopting it, struck a
"middle ground" by requiring the consent (confirmation) of the Commission on Appointments for the first group
of appointments and leaving to the President, without such confirmation, the appointment of other officers, i.e.,
those in the second and third groups as well as those in the fourth group, i.e., officers of lower rank.
The proceedings in the 1986 Constitutional Commission support this conclusion. The original text of Section 16,
Article VII, as proposed by the Committee on the Executive of the 1986 Constitutional Commission, read as
follows:
MR. FOZ: Madam President, my proposed amendment is on page 7, Section 16, line 26 which is to delete the
words "and bureaus," and on line 28 of the same page, to change the phrase 'colonel or naval captain to MAJOR
GENERAL OR REAR ADMIRAL. This last amendment which is co-authored by Commissioner de Castro is to put a
period (.) after the word ADMIRAL, and on line 29 of the same page, start a new sentence with: HE SHALL ALSO
APPOINT, et cetera.
MR. REGALADO: May we have the amendments one by one. The first proposed amendment is to delete the
words "and bureaus" on line 26.
MR. FOZ: That is correct.
MR. REGALADO: For the benefit of the other Commissioners, what would be the justification of the proponent
for such a deletion?

Section 16. The president shall nominate and, with the consent of a Commission on Appointment, shall appoint
the heads of the executive departments and bureaus, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain and all other officers of the Government
whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to
appoint. The Congress may by law vest the appointment of inferior officers in the President alone, in the courts,
or in the heads of departments 7 [Emphasis supplied].
MR. FOZ: The position of bureau director is actually quite low in the executive department, and to require further
confirmation of presidential appointment of heads of bureaus would subject them to political influence.
MR. REGALADO: The Commissioner's proposed amendment by deletion also includes regional directors as
distinguished from merely staff directors, because the regional directors have quite a plenitude of powers within
the regions as distinguished from staff directors who only stay in the office.

The above text is almost a verbatim copy of its counterpart provision in the 1935 Constitution. When the frames
discussed on the floor of the Commission the proposed text of Section 16, Article VII, a feeling was manifestly MR. FOZ: Yes, but the regional directors are under the supervisiopn of the staff bureau directors.
expressed to make the power of the Commission on Appointments over presidential appointments more limited
than that held by the Commission in the 1935 Constitution. Thus- xxx xxx xxx

Mr. Rama: ... May I ask that Commissioner Monsod be recognized MR. MAAMBONG: May I direct a question to Commissioner Foz? The Commissioner proposed an amendment
to delete 'and bureaus on Section 16. Who will then appoint the bureau directors if it is not the President?
MR. FOZ: It is still the President who will appoint them but their appointment shall no longer be subject to MR. DAVIDE: So would the proponent accept an amendment to his amendment, so that after "captain" we insert
confirmation by the Commission on Appointments. the following words: AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS
CONSTITUTION?
MR. MAAMBONG: In other words, it is in line with the same answer of Commissioner de Castro?
FR. BERNAS: It is a little vague.
MR. FOZ: Yes.
MR. DAVIDE: In other words, there are positions provided for in the Constitution whose appointments are vested
in the President, as a matter of fact like those of the different constitutional commissions.
MR. MAAMBONG: Thank you.

FR. BERNAS: That is correct. This list of officials found in Section 16 is not an exclusive list of those appointments
THE PRESIDENT: Is this clear now? What is the reaction of the Committee?
which constitutionally require confirmation of the Commission on Appointments,

xxx xxx xxx

MR. DAVIDE: That is the reason I seek the incorporation of the words I proposed.

MR. REGALADO: Madam President, the Committee feels that this matter should be submitted to the body for a
FR. BERNAS: Will Commissioner Davide restate his proposed amendment?
vote.

MR. DAVIDE: After 'captain,' add the following: AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN
MR. DE CASTRO: Thank you.
HIM IN THIS CONSTITUTION.

MR. REGALADO: We will take the amendments one by one. We will first vote on the deletion of the phrase 'and
FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE APPOINTMENTS REQUIRE CONFIRMATION UNDER THIS
bureaus on line 26, such that appointments of bureau directors no longer need confirmation by the Commission
CONSTITUTION"?
on Appointment.

MR. DAVIDE: Yes, Madam President, that is modified by the Committee.

Section 16, therefore, would read: 'The President shall nominate, and with the consent of a Commission on
Appointments, shall appoint the heads of the executive departments, ambassadors. . . .
FR. BERNAS: That will clarify things.
THE PRESIDENT: Is there any objection to delete the phrase 'and bureaus' on page 7, line 26? (Silence) The Chair
hears none; the amendments is approved. THE PRESIDENT: Does the Committee accept?

xxx xxx xxx MR. REGALADO: Just for the record, of course, that excludes those officers which the Constitution does not
require confirmation by the Commission on Appointments, like the members of the judiciary and the
Ombudsman.
MR. ROMULO: Madam President.

MR. DAVIDE: That is correct. That is very clear from the modification made by Commissioner Bernas.
THE PRESIDENT: The Acting Floor Leader is recognized.

THE PRESIDENT: So we have now this proposed amendment of Commissioners Foz and Davide.
THE PRESIDENT: Commissioner Foz is recognized

xxx xxx xxx

MR. FOZ: Madam President, this is the third proposed amendment on page 7, line 28. 1 propose to put a period
(.) after 'captain' and on line 29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT ANY.
THE PRESIDENT: Is there any objection to this proposed amendment of Commissioners Foz and Davide as
accepted by the Committee? (Silence) The Chair hears none; the amendment, as amended, is
MR. REGALADO: Madam President, the Committee accepts the proposed amendment because it makes it clear
approved 10 (Emphasis supplied).
that those other officers mentioned therein do not have to be confirmed by the Commission on Appointments.

It is, therefore, clear that appointments to the second and third groups of officers can be made by the President
MR. DAVIDE: Madam President.
without the consent (confirmation) of the Commission on Appointments.

THE PRESIDENT: Commissioner Davide is recognized.

It is contended by amicus curiae, Senator Neptali Gonzales, that the second sentence of Sec. 16, Article VII
reading-
xxx xxx xxx
He (the President) shall also appoint all other officers of the Government whose appointments are not otherwise
provided for by law and those whom he may be authorized by law to appoint . . . . (Emphasis supplied)
with particular reference to the word "also," implies that the President shall "in like manner" appoint the officers
mentioned in said second sentence. In other words, the President shall appoint the officers mentioned in said
second sentence in the same manner as he appoints officers mentioned in the first sentence, that is, by
nomination and with the consent (confirmation) of the Commission on Appointments.
Amicus curiae's reliance on the word "also" in said second sentence is not necessarily supportive of the
conclusion he arrives at. For, as the Solicitor General argues, the word "also" could mean "in addition; as well;
besides, too" (Webster's International Dictionary, p. 62, 1981 edition) which meanings could, on the contrary,
stress that the word "also" in said second sentence means that the President, in addition to nominating and,
with the consent of the Commission on Appointments, appointing the officers enumerated in the first sentence,
can appoint (without such consent (confirmation) the officers mentioned in the second sentence-
Rather than limit the area of consideration to the possible meanings of the word "also" as used in the context of
said second sentence, the Court has chosen to derive significance from the fact that the first sentence speaks of
nomination by the President and appointment by the President with the consent of the Commission on
Appointments, whereas, the second sentence speaks only of appointment by the President. And, this use of
different language in two (2) sentences proximate to each other underscores a difference in message conveyed
and perceptions established, in line with Judge Learned Hand's observation that "words are not pebbles in alien
juxtaposition" but, more so, because the recorded proceedings of the 1986 Constitutional Commission clearly
and expressly justify such differences.
As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there are officers whose
appointments require no confirmation of the Commission on Appointments, even if such officers may be higher
in rank, compared to some officers whose appointments have to be confirmed by the Commission on
Appointments under the first sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the appointment of the
Central Bank Governor requires no confirmation by the Commission on Appointments, even if he is higher in
rank than a colonel in the Armed Forces of the Philippines or a consul in the Consular Service.
But these contrasts, while initially impressive, merely underscore the purposive intention and deliberate
judgment of the framers of the 1987 Constitution that, except as to those officers whose appointments require
the consent of the Commission on Appointments by express mandate of the first sentence in Sec. 16, Art. VII,
appointments of other officers are left to the President without need of confirmation by the Commission on
Appointments. This conclusion is inevitable, if we are to presume, as we must, that the framers of the 1987
Constitution were knowledgeable of what they were doing and of the foreseable effects thereof.
Besides, the power to appoint is fundamentally executive or presidential in character. Limitations on or
qualifications of such power should be strictly construed against them. Such limitations or qualifications must
be clearly stated in order to be recognized. But, it is only in the first sentence of Sec. 16, Art. VII where it is clearly
stated that appointments by the President to the positions therein enumerated require the consent of the
Commission on Appointments.
As to the fourth group of officers whom the President can appoint, the intervenor Commission on Appointments
underscores the third sentence in Sec. 16, Article VII of the 1987 Constitution, which reads:
The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the
courts, or in the heads of departments, agencies, commissions, or boards. [Emphasis supplied].
and argues that, since a law is needed to vest the appointment of lower-ranked officers in the President alone,
this implies that, in the absence of such a law, lower-ranked officers have to be appointed by the President
subject to confirmation by the Commission on Appointments; and, if this is so, as to lower-ranked officers, it
follows that higher-ranked officers should be appointed by the President, subject also to confirmation by the
Commission on Appointments.
The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII, abovequoted, merely
declares that, as to lower-ranked officers, the Congress may by law vest their appointment in the President, in
the courts, or in the heads of the various departments, agencies, commissions, or boards in the government. No
reason however is submitted for the use of the word "alone" in said third sentence.
The Court is not impressed by both arguments. It is of the considered opinion, after a careful study of the
deliberations of the 1986 Constitutional Commission, that the use of the word alone" after the word "President"
in said third sentence of Sec. 16, Article VII is, more than anything else, a slip or lapsus in draftmanship. It will be
recalled that, in the 1935 Constitution, the following provision appears at the end of par. 3, section 1 0, Article
VII thereof
...; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts,
or in the heads of departments. [Emphasis supplied].
The above provision in the 1935 Constitution appears immediately after the provision which makes practically
all presidential appointments subject to confirmation by the Commission on Appointments, thus-
3. The President shall nominate and with the consent of the Commission on Appointments, shall appoint the
heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and
Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments
are not herein provided for, and those whom he may be authorized by law to appoint; ...
In other words, since the 1935 Constitution subjects, as a general rule, presidential appointments to
confirmation by the Commission on Appointments, the same 1935 Constitution saw fit, by way of an exception
to such rule, to provide that Congress may, however, by law vest the appointment of inferior officers (equivalent
to 11 officers lower in rank" referred to in the 1987 Constitution) in the President alone, in the courts, or in the
heads of departments,
In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its framers was to
exclude presidential appointments from confirmation by the Commission on Appointments, except
appointments to offices expressly mentioned in the first sentence of Sec. 16, Article VII. Consequently, there was
no reason to use in the third sentence of Sec. 16, Article VII the word "alone" after the word "President" in
providing that Congress may by law vest the appointment of lower-ranked officers in the President alone, or in
the courts, or in the heads of departments, because the power to appoint officers whom he (the President) may
be authorized by law to appoint is already vested in the President, without need of confirmation by the
Commission on Appointments, in the second sentence of the same Sec. 16, Article VII.
Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case of lower-ranked
officers, the Congress may by law vest their appointment in the President, in the courts, or in the heads of various
departments of the government. In short, the word "alone" in the third sentence of Sec. 16, Article VII of the
1987 Constitution, as a literal import from the last part of par. 3, section 10, Article VII of the 1935 Constitution,
appears to be redundant in the light of the second sentence of Sec. 16, Article VII. And, this redundancy cannot
prevail over the clear and positive intent of the framers of the 1987 Constitution that presidential appointments,
except those mentioned in the first sentence of Sec. 16, Article VII, are not subject to confirmation by the
Commission on Appointments.
Coming now to the immediate question before the Court, it is evident that the position of Commissioner of the
Bureau of Customs (a bureau head) is not one of those within the first group of appointments where the consent
of the Commission on Appointments is required. As a matter of fact, as already pointed out, while the 1935
Constitution includes "heads of bureaus" among those officers whose appointments need the consent of the
Commission on Appointments, the 1987 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.
Moreover, the President is expressly authorized by law to appoint the Commissioner of the Bureau of Customs.
The original text of Sec. 601 of Republic Act No. 1937, otherwise known as the Tariff and Customs Code of the
Philippines, which was enacted by the Congress of the Philippines on 22 June 1957, reads as follows:
601. Chief Officials of the Bureau.-The Bureau of Customs shall have one chief and one assistant chief, to be
known respectively as the Commissioner (hereinafter known as the 'Commissioner') and Assistant Commissioner
of Customs, who shall each receive an annual compensation in accordance with the rates prescribed by existing
laws. The Assistant Commissioner of Customs shall be appointed by the proper department head.
Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential Decree No. 34, amending
the Tariff and Customs Code of the Philippines. Sec. 601, as thus amended, now reads as follows:
Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs shall have one chief and one assistant
chief, to be known respectively as the Commissioner (hereinafter known as Commissioner) and Deputy
Commissioner of Customs, who shall each receive an annual compensation in accordance with the rates
prescribed by existing law. The Commissioner and the Deputy Commissioner of Customs shall be appointed by
the President of the Philippines (Emphasis supplied.)
Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the effectivity of the 1935
Constitution, under which the President may nominate and, with the consent of the Commission on
Appointments, appoint the heads of bureaus, like the Commissioner of the Bureau of Customs.
After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34 have to be read in
harmony with Sec. 16, Art. VII, with the result that, while the appointment of the Commissioner of the Bureau
of Customs is one that devolves on the President, as an appointment he is authorizedby law to make, such
appointment, however, no longer needs the confirmation of the Commission on Appointments.
Consequently, we rule that the President of the Philippines acted within her constitutional authority and power
in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without submitting his
nomination to the Commission on Appointments for confirmation. He is thus entitled to exercise the full
authority and functions of the office and to receive all the salaries and emoluments pertaining thereto.
WHEREFORE, the petition and petition in intervention should be, as they are, hereby DISMISSED. Without costs.
SO ORDERED.
G.R. No. 91636 April 23, 1992
PETER JOHN D. CALDERON, vs BARTOLOME CARALE
PADILLA, J.:
Controversy is focused anew on Sec. 16, Art. VII of the 1987 Constitution which provides:
Sec. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint
the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in
him in this Constitution. He shall also appoint all other officers of the Government whose appointments are
not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress
may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in
the heads of departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission
on Appointments or until the next adjournment of the Congress. 1
The power of the Commission on Appointments (CA for brevity) to confirm appointments, contained in the
aforequoted paragraph 1 of Sec. 16, Art. VII, was first construed in Sarmiento III vs. Mison 2 as follows:
. . . 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.
. . . Consequently, we rule that the President of the Philippines acted within her constitutional authority and
power in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without submitting
his nomination to the Commission on Appointments for confirmation. . . .
. . . 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." (emphasis supplied)
Next came Mary Concepcion Bautista v. Salonga, 3 this time involving the appointment of the Chairman of the
Commission on Human Rights. Adhering to the doctrine in Mison, the Court explained:
. . . Since the position of Chairman of the Commission on Human Rights is not among the positions mentioned
in the first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to which are to be made with
the confirmation of the Commission on Appointments, it follows that the appointment by the President of the
Chairman of the CHR is to be made without the review or participation of the Commission on Appointments.
To be more precise, the appointment of the Chairman and Members of the Commission on Human Rights is
not specifically provided for in the Constitution itself, unlike the Chairmen and Members of the Civil Service
Commission, the Commission on Elections and the Commission on Audit, whose appointments are expressly
vested by the Constitution in the president with the consent of the Commission on Appointments. The
president appoints the Chairman and Members of The Commission on Human Rights pursuant to the second
sentence in Section 16, Art. VII, that is, without the confirmation of the Commission on Appointments because
they are among the officers of government "whom he (the President) may be authorized by law to appoint."
And Section 2(c), Executive Order No. 163, 5 May 1987, authorizes the President to appoint the Chairman and
Members of the Commission on Human Rights.
Consistent with its rulings in Mison and Bautista, in Teresita Quintos Deles, et al. v. The Commission on
Constitutional Commissions, et al.,4 the power of confirmation of the Commission on Appointments over
appointments by the President of sectoral representatives in Congress was upheld because:
. . . Since the seats reserved for sectoral representatives in paragraph 2, Section 5, Art. VI may be filled by
appointment by the President by express provision of Section 7, Art. XVIII of the Constitution, it is indubitable
that sectoral representatives to the House of Representatives are among the "other officers whose
appointments are vested in the President in this Constitution," referred to in the first sentence of Section 16,
Art. VII whose appointments are subject to confirmation by the Commission on Appointments.
From the three (3) cases above-mentioned, these doctrines are deducible:
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 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.
Sometime in March 1989, RA 6715 (Herrera-Veloso Law), amending the Labor Code (PD 442) was approved.
It provides in Section 13 thereof as follows:
xxx xxx xxx
The Chairman, the Division Presiding Commissioners and other Commissioners shall all be appointed by the
President, subject to confirmation by the Commission on Appointments. Appointments to any vacancy shall
come from the nominees of the sector which nominated the predecessor. The Executive Labor Arbiters and
Labor Arbiters shall also be appointed by the President, upon recommendation of the Secretary of Labor and
Employment, and shall be subject to the Civil Service Law, rules and regulations. 5
Pursuant to said law (RA 6715), President Aquino appointed the Chairman and Commissioners of the NLRC
representing the public, workers and employers sectors. The appointments stated that the appointees may
qualify and enter upon the performance of the duties of the office. After said appointments, then Labor
Secretary Franklin Drilon issued Administrative Order No. 161, series of 1989, designating the places of
assignment of the newly appointed commissioners.
This petition for prohibition questions the constitutionality and legality of the permanent appointments
extended by the President of the Philippines to the respondents Chairman and Members of the National Labor
Relations Commission (NLRC), without submitting the same to the Commission on Appointments for
confirmation pursuant to Art. 215 of the Labor Code as amended by said RA 6715.
Petitioner insists on a mandatory compliance with RA 6715 which has in its favor the presumption of validity.
RA 6715 is not, according to petitioner, an encroachment on the appointing power of the executive contained
in Section 16, Art. VII, of the Constitution, as Congress may, by law, require confirmation by the Commission
on Appointments of other officers appointed by the President additional to those mentioned in the first
sentence of Section 16 of Article VII of the Constitution. Petitioner claims that the Mison and Bautista rulings
are not decisive of the issue in this case for in the case at bar, the President issued permanent appointments
to the respondents without submitting them to the CA for confirmation despite passage of a law (RA 6715)
which requires the confirmation by the Commission on Appointments of such appointments.
The Solicitor General, on the other hand, contends that RA 6715 which amended the Labor Code transgresses
Section 16, Article VII by expanding the confirmation powers of the Commission on Appointments without
constitutional basis. Mison and Bautista laid the issue to rest, says the Solicitor General, with the following
exposition:
As interpreted by this Honorable Court in the Mison case, confirmation by the Commission on Appointments
is required exclusively for the heads of executive departments, ambassadors, public ministers, consuls, officers
of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are
vested in the President by the Constitution, such as the members of the various Constitutional Commissions.
With respect to the other officers whose appointments are not otherwise provided for by the law and to those
whom the President may be authorized by law to appoint, no confirmation by the Commission on
Appointments is required.
Had it been the intention to allow Congress to expand the list of officers whose appointments must be
confirmed by the Commission on Appointments, the Constitution would have said so by adding the phrase
"and other officers required by law" at the end of the first sentence, or the phrase, "with the consent of the
Commission on Appointments" at the end of the second sentence. Evidently, our Constitution has significantly officers additional to those expressly mentioned in the first sentence of Sec. 16, Art. VII of the Constitution
omitted to provide for such additions. whose appointments require confirmation by the Commission on Appointments.

The original text of Section 16 of Article VII of the present Constitution as embodied in Resolution No. 517 of To resolve the issue, we go back to Mison where the Court stated:
the Constitutional Commission reads as follows:

. . . there are four (4) groups of officers whom the President shall appoint. These four (4) groups, to which we
"The President shall nominate and, with the consent of the Commission on Appointments, shall appoint the will hereafter refer from time to time, are:
heads of the executive departments and bureaus, ambassadors, other public ministers and consuls, or officers
of the armed forces from the rank of captain or commander, and all other officers of the Government whose
appointments are not herein otherwise provided for by law, and those whom he may be authorized by law to
First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the
appoint. The Congress may by law vest the appointment of inferior officers in the President alone, in the courts
armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in
or in the heads of the department."
him in this Constitution;

Three points should be noted regarding sub-section 3 of Section 10 of Article VII of the 1935 Constitution and
Second, all other officers of the Government whose appointments are not otherwise provided for by law;
in the original text of Section 16 of Article VII of the present Constitution as proposed in Resolution No. 517.

Third, those whom the president may be authorized by law to appoint;

First, in both of them, the appointments of heads of bureaus were required to be confirmed by the
Commission on Appointments.

Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone. 7
Second, in both of them, the appointments of other officers, "whose appointments are not otherwise provided
for by law to appoint" are expressly made subject to confirmation by the Commission on Appointments.
However, in the final version of Resolution No. 517, as embodied in Section 16 of Article VII of the present Mison also opined:
Constitution, the appointment of the above mentioned officers (heads of bureaus; other officers whose
appointments are not provided for by law; and those whom he may be authorized by law to appoint) are
excluded from the list of those officers whose appointments are to be confirmed by the Commission on
In the course of the debates on the text of Section 16, there were two (2) major changes proposed and
Appointments. This amendment, reflected in Section 16 of Article VII of the Constitution, clearly shows the
approved by the Commission. These were (1) the exclusion of the appointments of heads of bureaus from the
intent of the framers to exclude such appointments from the requirement of confirmation by the Commission
requirement of confirmation by the Commission on Appointments; and (2) the exclusion of appointments
on Appointments.
made under the second sentence of the section from the same requirement. . . .

Third, under the 1935 Constitution the word "nominate" qualifies the entire Subsection 3 of Section 10 of
The second sentence of Sec. 16, Art. VII refers to all other officers of the government whose appointments are
Article VII thereof.
not otherwise provided for by law and those whom the President may be authorized by law to appoint.

Respondent reiterates that if confirmation is required, the three (3) stage process of nomination, confirmation
Indubitably, the NLRC Chairman and Commissioners fall within the second sentence of Section 16, Article VII
and appointment operates. This is only true of the first group enumerated in Section 16, but the word
of the Constitution, more specifically under the "third groups" of appointees referred to in Mison, i.e. those
nominate does not any more appear in the 2nd and 3rd sentences. Therefore, the president's appointment
whom the President may be authorized by law to appoint. Undeniably, the Chairman and Members of the
pursuant to the 2nd and 3rd sentences needs no confirmation. 6
NLRC are not among the officers mentioned in the first sentence of Section 16, Article VII whose appointments
requires confirmation by the Commission on Appointments. To the extent that RA 6715 requires confirmation
by the Commission on Appointments of the appointments of respondents Chairman and Members of the
The only issue to be resolved by the Court in the present case is whether or not Congress may, by law, require National Labor Relations Commission, it is unconstitutional because:
confirmation by the Commission on Appointments of appointments extended by the president to government
1) it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding thereto
appointments requiring confirmation by the Commission on Appointments; and
2) it amends by legislation the second sentence of Sec. 16, Art. VII of the Constitution, by imposing
the confirmation of the Commission on Appointments on appointments which are otherwise entrusted only
with the President.
Deciding on what laws to pass is a legislative prerogative. Determining their constitutionality is a judicial
function. The Court respects the laudable intention of the legislature. Regretfully, however, the constitutional
infirmity of Sec. 13 of RA 6715 amending Art. 215 of the Labor Code, insofar as it requires confirmation of the
Commission on Appointments over appointments of the Chairman and Member of the National Labor
Relations Commission (NLRC) is, as we see it, beyond redemption if we are to render fealty to the mandate of
the Constitution in Sec. 16, Art. VII thereof.
Supreme Court decisions applying or interpreting the Constitution shall form part of the legal system of the
Philippines.8 No doctrine or principle of law laid down by the Court in a decision rendered en banc or in division
may be modified or reversed except by the Court sitting en banc.9
. . . The interpretation upon a law by this Court constitutes, in a way, a part of the law as of the date that law
was originally passed, since this Court's construction merely establishes the contemporaneous legislative
intent that the law thus construed intends to effectuate. The settled rule supported by numerous authorities
is a restatement of the legal maxim "legis interpretado legis vim obtinent" the interpretation placed upon
the written law by a competent court has the force of law. 10
The rulings in Mison, Bautista and Quintos-Deles have interpreted Art. VII, Sec. 16 consistently in one manner.
Can legislation expand a constitutional provision after the Supreme Court has interpreted it?
In Endencia and Jugo vs. David, 11 the Court held:
By legislative fiat as enunciated in Section 13, Republic Act No. 590, Congress says that taxing the salary of a
judicial officer is not a decrease of compensation. This is a clear example of interpretation or ascertainment
of the meaning of the phrase "which shall not be diminished during their continuance in office," found in
Section 9, Article VIII of the Constitution, referring to the salaries of judicial officers.
xxx xxx xxx
The rule is recognized elsewhere that the legislature cannot pass any declaratory act, or act declaratory of
what the law was before its passage, so as to give it any binding weight with the courts. A legislative definition
of a word as used in a statute is not conclusive of its meaning as used elsewhere; otherwise, the legislature
would be usurping a judicial function in defining a term. (11 Am. Jur., 914, emphasis supplied).
The legislature cannot, upon passing law which violates a constitutional provision, validate it so as to prevent
an attack thereon in the courts, by a declaration that it shall be so construed as not to violate the constitutional
inhibition. (11 Am., Jur., 919, emphasis supplied).
We have already said that the Legislature under our form of government is assigned the task and the power
to make and enact laws, but not to interpret them. This is more true with regard to the interpretation of the
basic law, the Constitution, which is not within the sphere of the Legislative department. If the Legislature may
declare what a law means, or what a specific portion of the Constitution means, especially after the courts
have in actual case ascertained its meaning by interpretation and applied it in a decision, this would surely
cause confusion and instability in judicial processes and court decisions. Under such a system, a final court
determination of a case based on a judicial interpretation of the law or of the Constitution may be undermined
or even annulled by a subsequent and different interpretation of the law or of the Constitution by the
Legislative department that would be neither wise nor desirable, being clearly violative of the fundamental
principles of our constitutional system of government, particularly those governing the separation of powers.
14 (Emphasis supplied)
Congress, of course, must interpret the Constitution, must estimate the scope of its constitutional powers
when it sets out to enact legislation and it must take into account the relevant constitutional prohibitions. 15
. . . The Constitution did not change with public opinion.
It is not only the same words, but the same in meaning . . . and as long as it it speaks not only in the same
words, but with the same meaning and intent with which it spoke when it came from the hands of its framers,
and was voted and adopted by the people . . . 16
The function of the Court in passing upon an act of Congress is to "lay the article of the Constitution which is
invoked beside the statute which is challenged and to decide whether the latter squares with the former" and
to "announce its considered judgment upon the question." 17
It can not be overlooked that Sec. 16, Art. VII of the 1987 Constitution was deliberately, not unconsciously,
intended by the framers of the 1987 Constitution to be a departure from the system embodied in the 1935
Constitution where the Commission on Appointments exercised the power of confirmation over almost all
presidential appointments, leading to many cases of abuse of such power of confirmation. Subsection 3,
Section 10, Art. VII of the 1935 Constitution provided:
3. The President shall nominate and with the consent of the Commission on Appointments, shall
appoint the heads of the executive departments and bureaus, officers of the Army from the rank of colonel,
of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government
whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to
appoint; . . .
The deliberate limitation on the power of confirmation of the Commission on Appointments over presidential
appointments, embodied in Sec. 16, Art. VII of the 1987 Constitution, has undoubtedly evoked the displeasure
and disapproval of members of Congress. The solution to the apparent problem, if indeed a problem, is not
judicial or legislative but constitutional. A future constitutional convention or Congress sitting as a constituent
(constitutional) assembly may then consider either a return to the 1935 Constitutional provisions or the
adoption of a hybrid system between the 1935 and 1987 constitutional provisions. Until then, it is the duty of
the Court to apply the 1987 Constitution in accordance with what it says and not in accordance with how the
legislature or the executive would want it interpreted.
WHEREFORE, the petition is DISMISSED. Art. 215 of the Labor Code as amended by RA 6715 insofar as it
requires the confirmation of the Commission on Appointments of appointments of the Chairman and
Members of the National Labor Relations Commission (NLRC) is hereby declared unconstitutional and of no
legal force and effect.
SO ORDERED.
G.R. No. L-25577 March 15, 1966
ONOFRE P. GUEVARA, petitioner,
vs.
RAOUL M. INOCENTES, respondent.
Ambrosia Padilla and Onofre Guevara for the petitioner.
Office of the Solicitor General for the respondent.
BAUTISTA ANGELO, J.:
This decision is written in keeping with the statement we made in our resolution dated February 16, 1966.
Petitioner was extended an ad interim appointment as Undersecretary of Labor by the former Executive on
November 18, 1965, having taken his oath of office on November 25 of the same year, and considering that
the ad interim appointment for the same position extended to respondent by the incumbent Executive on
January 23, 1966 is invalid in spite of Memorandum Circular No. 8 issued by the latter on the same date
declaring all ad interim appointments made by the former Executive as having lapsed with the adjournment
of the special session of Congress at about midnight of January 22, 1966, petitioner brought before this Court
the instant petition for quo warranto seeking to be declared the person legally entitled to said office of
Undersecretary of Labor.
The petition is predicated on the following grounds: (1) under Article VII, Section 10(4) of the Constitution,
petitioner's ad interim appointment is valid and permanent and may only become ineffective either upon
express disapproval by the Commission on Appointments or upon the adjournment of the regular session of
Congress of 1966; (2) here there has been no express disapproval by the Commission on Appointments
because the same has never been constituted during the special session called by President Marcos in his
Proclamation No. 2, series of 1966; and (3) there has been no adjournment of the Congress as contemplated
in the Constitution because (a) the aforesaid special session was suspended by the House on Saturday, January
22, 1966 at 10:55 p.m. to be resumed on Monday, January 24, 1966 at 10:00 a.m.; (b) the resolution approved
by the Senate on January 23, 1966 at past 2:00 a.m. for adjournment sine die is not the adjournment
contemplated in Article VII, Section 10(a) of our Constitution; (c) the suspension by the House or the
adjournment by the Senate to resume the session on January 24, 1966 at 10:00 a.m. meant the end of the
special session and the start of the regular session as a continuous session without any interruption; and (d)
the phrase "until the next adjournment of the Congress" must be related with the phrase "until disapproval
by the Commission on Appointments" so that the adjournment contemplated should refer to a regular session
during which the Commission on Appointments may be organized and allowed to discharge its functions as
such.
Respondent, on the other hand, set up the following defenses: (1) petitioner's ad interim appointment lapsed
when Congress adjourned its last special session called under Proclamation No. 2 of President Marcos; (2)
an ad interim appointment ceases to be valid after each term of Congress and so petitioner's appointment
must have lapsed as early as December 30, 1965; (3) petitioner's ad interim appointment as well as others
made under similar conditions, is contrary to morals, good customs and public policy, and hence null and void;
and (4) petitioner's appointment is void in the light of the doctrine laid down in Rodriguez, Jr. vs. Quirino, G.R.
No. L-19800 October 28, 1953.
After due deliberation, the Court resolved that the ad interim appointment extended to petitioner on
November 18, 1965 by the former Executive lapsed when the special session of Congress adjourned sine die at
about midnight of January 22, 1966, as embodied in our resolution dated February 16, 1966.
We will now elaborate on the reasons expressed in said resolution.
The important provision to be considered is Article VII, Section 10, Subsection 4 of our Constitution, which
provides:
The President shall have the power to make appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
A perusal of the above-quoted provision would at once reveal that it is the clear intent of the framers of our
Constitution to make a recess appointment effective only (a) until disapproval by the Commission on
Appointments, or (b) until the next adjournment of Congress, and never a day longer regardless of the nature
of the session adjourned. And this is so considering the plain language of the aforesaid provision which is free
from any ambiguity in the light of the well-settled rule of statutory construction that "when the intention of
the legislature is so apparent from the face of the statute that there can be no question as to its meaning there
is no room for construction" (Vol. 2, Sutherland, Statutory Construction, p. 316). Hence, the above provision
contemplates two modes of termination of an ad interim appointment, or of one made during the recess of
Congress, which are completely separate from, and independent of, each other. And while during the special
session called under proclamation No. 2 no Commission on Appointments was organized by Congress, the
second mode of termination, however, had its constitutional effect, as when Congress adjourned sine die at
about midnight of January 22. 1966. Such adjournment, in legal contemplation, had the effect of terminating
petitioner's appointment thereby rendering it legally ineffective.
Petitioner's theory that the first mode of termination consisting in the disapproval by the Commission on
Appointments should be inseparately related with the clause "until the next adjournment of Congress" in the
sense that the Commission has to be first organized in order that the last mode may operate is untenable
considering that the latter is not dependent upon, nor influenced in any manner by the operation of the
former. As already stated, the two modes of termination are completely separate from and independent of
each other. If the framers of the Constitution had intended to make the operation of the second clause
dependent upon the prior constitution of the Commission on Appointments they should have so stated in
clear terms considering that the first clause implies a positive act of the Commission, while the second an
entirely separate and independent act of Congress. Indeed, the theory of petitioner, if carried to its logical
conclusion, may result into the anomaly that, should Congress be controlled by a party not inclined to organize
said Commission, or should there arise a group which for reasons of its own indulges in obstructionism, the
Commission on Appointments contemplated in the Constitution is never organized as a consequence of the
action of either, any appointment made during the recess of Congress would never run the test of legislative
scrutiny and would thereby then be always considered permanent even if it is extended ad interim, a result
which, to be sure, was never intended by the framers of our Constitution. It thus becomes imperative that we
avoid such absurd result.
It is true that the provision of the Constitution we are now considering in speaking of the mode of termination
epitomized in the phrase "until the next adjournment of the Congress" does not make any reference to any
specific session of the Congress, whether regular or special, but such silence is of no moment, for it is a
well-known maxim in statutory construction that when the law does not distinguish we should not distinguish.
UBI LEX NON DISTINGUIT NEC NOS DISTINGUERE DEBEMUS (Robles vs. Zambales Chromite Mining Company,
et al., G. R. No. L-12560, September 30, 1958). Consequently, it is safe to conclude that the framers of our
Constitution in employing merely the word adjournment as a mode of terminating an appointment made
during the recess of Congress had in mind either the regular or special session, and not simply the regular one
as contended by petitioner.
Under our tripartite form of government predicated on the principle of separation of powers the power to
appoint is inherently an executive function while the power to confirm or reject appointments belongs to the
legislative department, the latter power having been conferred as a check on the former. This power to check
may be exercised through the members of both Houses in the Commission on Appointments. But although
the Commission on Appointments is provided for in the Constitution, its organization requires congressional
action, and once organized, by express provision of the Constitution, it "shall meet only while Congress is in
session." Consequently, if for any reason Congress adjourns a regular or special session without organizing the
Commission on Appointments, Congress should be deemed to have impliedly exercised said power to check
by allowing the ad interim appointments to lapse as provided for in the Constitution.
The next important inquiry is: Since Congress in its special session held under Proclamation No. 2 of the
President, series of 1966, did not deem it wise to organize the Commission on Appointments to act on the
recess appointments made by the former Executive, can it be said that Congress is deemed to have impliedly
exercised its power to check on such recess appointments when it adjourned its special session at about 12:00
o'clock midnight of January 22, 1966?
The answer must of necessity be in the affirmative inasmuch as that special session actually adjourned in legal
contemplation at about 12:00 midnight of January 22, 1966 considering that the Senate adjourned sine die at
about said hour. Although the House allegedly suspended its session at 10:55 p.m. on January 22, 1966 to be
resumed on Monday, January 24, 1966, at 10:00 a.m., Congress cannot be considered to be in special session
subsequently to January 22 for the reason that the House without the Senate which had adjourned sine die, is
not "Congress." Indeed, when the Senate adjourned at 12:00 midnight on January 22, 1966 this adjournment
should be considered as the "next adjournment of the Congress" of the special session notwithstanding the
alleged suspension of the session earlier by the House for the reason that neither the House nor the Senate
can hold session independently of the other in the same manner as neither can transact any legislative
business after the adjournment of the other. None other than President Macapagal and Speaker Cornelio
Villareal expressed such opinion when as members of the Lower House in 1954 they expoused and defended
the same on the floor as can be seen from the following transcript of the congressional record:
Mr. MACAPAGAL . . . Since the Senate has, by its own responsibility, adjourned one and a half hours ago,
therefore, under the present facts, in our Constitution this House is automatically adjourned, and therefore it
is improper and illegal for us to continue the proceedings farther.
xxx xxx xxx
Mr. VILLAREAL Mr. Speaker, although it is true that I do not want to appeal from the ruling of the Chair,
nonetheless, I maintain that our actuations from the time we approved that resolution will be illegal acts, and
I do not want this Congress to commit illegal acts because it will affect the dignity of this Chamber. We are not
unaware of the facts. I invite the Presiding Officer and everybody here to go to the Senate now, and if they
accept my challenge, let us go so that I can prove to them that there is not one ghost of any Senator in that
Chamber. The Senate has actually adjourned, Mr. Speaker, and are we to have a fiction here that the Senators
are still holding a session? We approved that resolution of adjournment before twelve o'clock tonight knowing
that the Senate adjourned two or three hours ago. Are we crazy here to believe that the Senators are still
holding sessions? How can we in conscience justify our actuations here that we are still doing something for
the benefit of the people when in fact and in truth we are not because we cannot do so? . . .
Mr. Speaker, let us be frank; let us be honest to ourselves; let us not ridicule ourselves; let us adjourn now
because we having nothing to do and all that we will do will be illegal beginning now. . . .
Mr. Speaker. I honestly believe that legally we cannot do anything any further, and if I am the author of a bill
pending approval, I would not submit the bill for passage now because that will be the subject of litigation in
court as to whether such approval will be legal or not, and I would never risk my committee report to be
submitted after the approval of that resolution, knowing fully well that actually and physically that Upper
Chamber has already adjourned. (Congressional Record, House of Representatives, 3rd Congress, Republic of
the Philippines, First Regular and First Special Sessions, Vol. I, pp. 4091 and 4094).1wph1.t
As a corollary, the theory that there was a continuous session without any interruption when the house
allegedly suspended its session at 10:55 p.m. on January 22, 1966 to be resumed on Monday, January 24, 1966
at 10:00 a.m. cannot be accepted, because such theory runs counter to well-established parliamentary
precedents and practice. Thus, for one thing, between January 22, 1966 at 10:55 p.m. and January 24, 1966 at
10:35 a.m. when the House opened its regular session, there intervened January 23, 1966, which was Sunday,
and as such is expressly excluded by the Constitution as a session day of Congress. For another, it is imperative
that there be a "constructive recess" between a special and regular session, as when a regular session succeeds
immediately a special session or vice-versa, and so a special session cannot be held immediately before a
regular session without any interruption nor can both be held simultaneously together. Hinds' Precedents has
the following to say on the matter:
The commissions granted during the recess prior to the convening of Congress in extraordinary session
November 9, 1903, of course furnished lawful warrant for the assumption by the persons named therein of
the duties of the offices to which they were, respectively, commissioned. Their names were regularly sent to
the Senate thereafter. If confirmed, of course they would hold under appointment initiated by the nomination
without any regard to the recess commission. If not confirmed, their right to hold under the recess nomination
absolutely ended at 12 o'clock meridian on the 7th of December, 1903, for at that hour the extraordinary
session ended and the regular session of Congress began by operation of law. An extraordinary session and a
regular session can not coexist, and the beginning of the regular session at 12 o'clock was the end of the
extraordinary session; not a constructive end of it, but an actual end of it. At 12 o'clock December 7 the
President pro tempore of the Senate said:
Senators, the hour provided by law for the meeting of the first regular session of the Fifty-eighth Congress
having arrived, I declare the extraordinary session adjourned without day.
Aside from the statement upon the record that the "hour had struck" which marked the ending of the one and
the beginning of the other, the declaration of the President pro tempore was without efficacy. It did not
operate to adjourn without day either the Congress or the Senate. Under the law the arrival of the hour did
both.
The constitutional provision that the commission shall expire at the end of the next session is self-executing,
and when the session expires the right to hold under the commission expires with it. If there be no appreciable
point of time between the end of one session and the beginning of another, since of necessity one ends and
another begins, the tenure under the commission as absolutely terminates as if months of recess supervened.
(Hinds' Precedents of the House of Representatives of the United States, Vol. V, p. 854.)
Considering now petitioner's ad interim appointment and others extended under similar conditions in the light
of the doctrine we laid down in the Aytona case, we may say that they were even more irregular than those
involved in said case to the extend that they may be avoided even on this ground alone. Thus, while President
Garcia only extended 350 ad interim appointments after he had lost the election, President Macapagal made
1,717 ad interim appointments most of which were made only after the elections in November, 1965. As a
consequence, the following anomalies were noted: a former presidential assistant was appointed judge of
three different salas, another was appointed to a non-existing branch of the Court of First Instance of
Pangasinan, while still another who had a pending disbarment case received an ad interim appointment as
judge of first instance. This is indeed a far cry from the following admonition we made in the Aytona case:
Of course, nobody will assert that President Garcia ceased to be such earlier than at noon of December 30,
1961. But it is common sense to believe that after the proclamation of the election of President Macapagal,
his was no more than a "caretaker" administration. He was duty bound to prepare for the orderly transfer of
authority to the incoming President, and he should not do acts which, he ought to know, would embarrass or
obstruct the policies of his successor. The time for debate had passed; the electorate had spoken. It was not
for him to use his 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 of vacancies in important
positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of
the need for the appointment and the appointee's qualifications may undoubtedly be permitted. But the
issuance of 350 appointments in one night and the planned induction of almost all of them a few hours before
the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of
Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions
irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity
to make the corresponding appointments. (Aytona vs. Castillo, et al., G.R. No. L-19313, January 20, 1962.)
It is hoped that now and hereafter such excess in the exercise of power should be obviated to avoid confusion,
uncertainty, embarrassment and chaos which may cause disruption in the normal function of government to
the prejudice of public interest. It is time that such excess be stopped in the interest of the public weal.
Wherefore, petition is denied. No costs.
G.R. No. L-65439 November 13, 1985
PAMANTASAN NG LUNGSOD NG MAYNILA, petitioner
vs.
HON. INTERMEDIATE APPELLATE COURT
GUTIERREZ, JR., J.:
The sole issue raised in this petition is the status of respondent Hernani Esteban's appointment as Vice-
President for Administration of the Pamantasan ng Lungsod ng Maynila that is, whether or not he holds the
position in a permanent capacity as to guarantee as security of tenure.
Respondent Esteban asserts that his appointment is permanent whereas the petitioner maintains its
temporary and contractual nature such that the respondent may be dismissed at any time even without cause.
Prior to his joining the Pamantasan, Dr. Esteban had been a permanent employee in the government service
for twenty five (25) years. Until May 20, 1973, he was officially connected with the Philippine College of
Commerce, a state-owned educational institution as its Vice-President for Academic Affairs. Shortly before
that date, the Board of Trustees of the College in a bold move to streamline the college organization resolve
to abolish the position of Vice-President for Academic Affairs. Private respondent was given the option to
continue teaching at the Philippine College of Commerce which he accepted until his transfer to the
Pamantasan ng Lungsod ng Maynila, upon the invitation of its president, Dr. Consuelo Blanco.
At the Pamantasan, Dr. Esteban was initially extended an ad interim temporary appointment as Vice-President
for Administration by Dr. Consuelo Blanco. Dr. Esteban received from the Secretary of Pamantasan a
'Notification of Confirmation of Temporary Appointment' dated June 28, 1973. His appointment was 'effective
May 21, 1973 until June 30, 1974, unless sooner terminated.' On July 5, 1974, the Secretary of Pamantasan
sent him a 'Notification of Renewal of Temporary Appointment' indicating that his appointment was renewed
'effective July 1, 1974 until August 31, 1974.'
A month later, on August 30, 1974, he received from the University Secretary another 'notification of renewal
of temporary appointment' informing him that the Board of Regents, on recommendation of the President of
the University approved the renewal of his appointment 'effective September 1, 1974 until June 30, 1975' with
an increased salary of P17,160 per annum.
On October 15, 1974, incident to a further increase of his salary, Dr. Esteban was notified that his appointment
as vice-president for administration at a salary of P17,600 per annum had been renewed effective September
1, 1974 until June 30, 1975.
On June 26, 1975, he received another 'Notification of Renewal of Temporary Appointment' as Vice-President
for Administration with at salary of P21,760 per annum, 'effective July 1, 1975 until June 30, 1976.'
On July 26, 1975, Dr. E qqqsteban discovered that he was not included in the list of employees recommended
for permanent appointments. He wrote Dr. Consuelo Blanco requesting the conversion of his temporary
appointment to a permanent one, considering his two and half (2) years service.
On July 26, 1975, Dr. Esteban received an answer to his request from President Blanco who indicated various
reasons for her not acting favorably on his request.
On August 1, 1975, Dr. Esteban received a 'Notification of Ad Interim Appointment notifying him that the
president of the university had approved his appointment as Professor III with a salary of P15,600 per
annum 'effective August 1, 1975'. He was further designated as Director of the Institute of Continuing
Education and Community Service with an honorarium of P5,676 per annum, likewise effective August 1, 1975.
On August 7, 1975, Dr. Consuelo Blanco, issued a memorandum circular terminating Dr. Esteban's
appointment as Vice-President for Administration effective July 31, 1975. His appointment dated June 26,
1975 and effective until June 30, 1976 had been withdrawn before it could be confirmed by the Pamantasan
Board of Regents.
On the same date, August 7, 1975, Dr. Esteban appealed to the Civil Service Commission for the protection of
his tenure in the Pamantasan .
On October 9,1975, the Civil Service Commission ruled that:
The temporary nature of the appointment issued to Dr. Esteban as Vice President for Administration is
conceded. Such being the Case, his services may be terminated at any time with or without request that he be
extended permanent appointment ,or that his temporary appointment be converted into permanent one, it
may be stated that the issuance of such appointment is addressed to the sound discretion of the appointing
official.
Dr. Esteban flied a motion for the reconsideration of that ruling. On January 14, 1976, the Civil Service
Commission ruled favorably on Dr. Esteban's motion. It stated that he was fully qualified for the position of
Vice-President for Administration and certified him "for appointment therein under permanent status." The
Commission stated:
In view thereof, and in the absence of any apparent justifiable reason why Dr. Esteban should remian under
temporary status for the length of time prior to the withdrawal of his appointment as Vice President for
Administration in that University, and as it further appears that he is fully qualified for the position in question
in view of his extensive experience in the fields of public administration and management, this Commission
hereby certifies him for appointment therein under permanent status.
The Pamantasan, in turn, asked for the reconsideration of that ruling.
The Commission, in an undated Resolution No. 75, Series of 1976, came out with a statement which confused
more than it clarified. It stated that its certification should not be interpreted as directing the reinstatement
of Dr. Esteban because 'it was never intended to be so
On May 28, 1976 Esteban asked the commission to reconsider Resolution No. 75, Series of 1976. He also asked
for the payment of the salaries and allowances due him as of September 1975, which the Pamantasan had
withheld. His request was denied by the commission in its undated resolution No. 158, Series of 1976.
On September 15, 1976 Esteban reiterated his request for payment of his salaries.
On September 20, 1976, he asked for a review of the Pamantasan's decision to terminate his appointment as
Vice-President for Administration.
On December 1, 1976, his request for payment of his salaries was referred by the Commission to the treasurer
of the Pamantasan.
On July 6, 1977, the Commission again modified its earlier resolution in as case. It ruled that Dr. Consuelo
Blanco, had no authority to extend to Dr. Esteban an ad interim appointment as Vice President for
Administration as only the Board of Regents was empowered to do that under Article 55 of the University
Charter (Rep. Act 4196). However, it ruled that, as a de facto officer, he was entitled to be paid the salary of
that position.
Dr. Esteban and the Pamantasan filed motions for reconsideration of that ruling prompting the Commission
to order them to submit "all papers and documents pertinent to that case."
On June 6, 1978, Presidential Decree No.1409 was issued creating a Merits System Board in the Civil Service
Commission to hear and decide cases brought before it on appeal by officers and employees who feel
aggrieved by the determination of officials on personnel matters.
The Board required the Pamantasan to submit its complete records on the appointment and termination of
Dr. Esteban as vice-president for administration.
While the records officer of the Pamantasan submitted copies of the notices sent to Esteban regarding his
appointment as vice-president for administration, he did not submit a copy of the Board's Resolution No. 485
passed June 20, 1973 confirming the ad interim appointments of several academic and non-academic
personnel of said university among which was that of Dr. Hernani Esteban "effective May 21, 1973." He
produced a copy of the memorandum circular dated August 7, 1915 of the President of the Pamantasan
terminating Dr. Esteban's service as of July 31, 1975.
In Resolution No. 597 dated November 11, 1980, the Commissioner directed the Pamantasan to submit any
document or documents directly or actually showing that Dr. Hernani Esteban was appointed vice-president
for administration of the Pamantasan in a permanent capacity.
On January 15, 1981, the Pamantasan by 2nd Indorsement, despite the existence of Board Resolution No. 485,
replied that "we cannot find any document showing that Dr. Esteban was appointed ... in a permanent
capacity.
In view of the Pamantasan's failure to produce the minutes of the regular Board of Regents meeting on June
20, 1973 when Esteban's appointment was approved the Commission in its Resolution No. 81-279 dated
March 5, 1981, concluded that there is truth to the claim of Dr. Esteban that his appointment as Vice-President
for Administration of the Pamantasan was approved as permanent. It cited Government of the Philippine
Islands vs. Martinez, (44 Phil. 817) that when a party has it in his possession or power to produce the best
evidence of which the case in its nature is susceptible and withholds it, the fair presumption is that the
evidence is withheld for some sinister motive and that its production would thwart his evil or fraudulent
purpose.
The Commission ruled that "Dr. Hernani Esteban had been appointed Vice-President for Administration of
Pamantasan with permanent status and that the temporary appointment issued to him did not alter his
permanent status as he had 'already acquired a vested right as well as the right to security of tenure', that he
cannot unceremoniously removed therefrom, nor can the status of his appointment be changed without
cause, as provided by law and after due process." The Commission held that the termination of his services
was obviously illegal. It directed his immediate reinstatement to the position of Vice-President for
Administration of Pamantasan and the payment of his back salaries, allowances and other benefits which he
failed to receive from the time he was separated therefrom.
The Pamantasan filed a motion for reconsideration of that resolution. It also submitted for the first time a
copy of Resolution No. 485.
The Commission, in Resolution No. 71-510 dated April 23, 1981 chided the Pamantasan for having suppressed
said piece of evidence from which "the intention of, or the accurate action taken by PLM Board of Regents on
Dr. Esteban's appointment in question, may be determined." Following the decision of the Supreme Court in
the case of Summers v. Ozaeta, (81 Phil. 760), the Commission denied the Pamantasan's motion for
reconsideration and ruled that "Upon confirmation of the Board of Regents of the ad interim appointment of
Dr. Esteban the same became permanent."
Upon getting this ruling, the Pamantasan filed a petition for certiorari against Dr. Esteban and Civil Service
Commissionssioners Filemon Fernandez, Jr. and Albina Manalo Dans. The petition was docketed as Civil Case
No. 139840 of the Court of First Instance of Manila, Branch XIII.
On January 8, 1982, the trial court rendered a decision reversing the Commission's Resolution No. 81-279 and
adopted the earlier Commission Resolution dated July 6, 1977 holding that Private respondent Dr. Esteban's
appointment was invalid, though he may be considered as a de facto vice-president of the University up to
October 9, 1975, the date when the Commission ruled that his appointment was temporary and could be
terminated at any time.
The private respondent appealed to the Intermediate Appellate Court.
On September 26, 1983. the respondent Intermediate Appellate Court rendered a decision reversing the trial
court's decision. The dispositive portion of the appellate decision reads:
Wherefore, the appealed decision is hereby revised and set aside. The Pamantasan's petition for certiorari is
denied. Resolution No 81-279 dated March 5, 1981, as well as Resolution No. 81-510 dated April 23, 1981, of
the respondent Civil Service Commission, declaring as permanent the appointment of the appellant Dr.
Hernani Esteban as vice- president for administration of the university under the Board of Regents' Resolution
No. 485 dated June 20, 1973, and ordering his immediate reinstatement to that position with back salaries,
allowances and other benefits, is affirmed, provided he has not yet reached the age of compulsory retirement
from the government service; otherwise, he shall be entitled to back salaries, allowances and other benefits
only up to the time he should handle been reared from the said position.
From the decision of the Intermediate Appellate Court and after its motion for reconsideration had been
denied petitioner Pamantasan ng Lungsod ng Maynila filed the present petition, now the subject of this review.
We find no error in the pronouncements of the Intermediate Appellate Court. We rule in favor of the
respondents.
From the arguments, it is easy to see why the petitioner should experience difficulty in understanding the
situation. Private respondent had been extended several "ad-interim" appointments which petitioner
mistakenly understands as appointments temporary in nature. Perhaps, it is the literal translation of the word
"ad interim" which creates such belief. The term is defined by Black to mean "in the meantime" or for the time
being, Thus, an officer ad interim is one appointed to fill a vacancy, or to discharge the duties of the office
during the absence or temporary incapacity of its regular incumbent (Black's Law Dictionary, Revised Fourth
Edition, 1978). But such is not the meaning nor the use intended in the context of Philippine law. In referring
to Dr. Esteban's appointments, the term is not descriptive of the nature of the appointments given to him.
Rather, it is used to denote the manner in which said appointments were made, that is, done by the President
of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the University
Charter with the power of appointment, is unable to act. Thus, we held in Summers v. Ozaeta (81 Phil. 760):
... an ad interim appointment is one made in pursuance of paragraph (4), section 10, Article VII of the
Constitution, which provides that the President shall have the power to make appointments during the recess
of the Congress, but such appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress.' lt is an appointment permanent in nature, and
the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its
permanent character. An ad interim appointment is disapproved certainly for a reason other than that its
provisional period has expired. Said appointment is of course distinguishable from an 'acting' appointment
which is merely temporary, good until another permanent appointment is issued.
Not only is the appointment in question an ad interim appointment, but the same is also a confirmed ad
interimappointment. In its Resolution No. 485, dated June 20, 1973, the Pamantasan Board of Regents verified
respondent Esteban's appointment without condition nor limitation as to tenure. As of that moment, it
became a regular and permanent appointment.
In other words, if the Board of Regents is in session, the Pamantasan President merely nominates while the
Board issues the appointment. But when the Board is not in session, the President is authorized to issue ad
interimappointments. Such appointments are permanent but their terms are only until the Board disapproves
them. If confirmed, the appointee's term is converted into the regular term inherent in the position.
Petitioner centers its arguments and tries to fix the attention of the court to the fact that all notices of
appointments, renewals, and confirmation thereof all declare the same to be temporary, carrying fixed
commencement and termination dates, "unless sooner terminated." As expressed by public respondent, "...
This stubborn insistence is anchored on the notifications of temporary appointment sent to private
respondent Esteban by the Secretary of Pamantasan. However, this insistence deliberately ignores ...
Resolution No. 485 dated June 20, 1973 of the Board of Regents ...". And correctly so argued. "In case of
conflict between a notification issued by the Secretary of the University which is supposed to reflect the true
content of a Board Resolution and the Resolution itself of said Board of Regents of said University, the latter
is controlling for obvious reasons. The Secretary of the University has no authority to alter or add something
which is not provided for in the Resolution of the Board of Regents ...". Thus, respondent Intermediate
Appellate Court held:
The permanent nature of appellant's appointment was not altered or diminished by the misleading
'notifications' which were sent to him by the secretary of the university president, referring to his appointment
as 'temporary', nor by his uninformed acceptance thereof without knowledge of the true contents of
Resolution No. 485 which the university president appears to have studiously suppressed.
There is nothing in the Pamantasan Board of Regents' Resolution No. 485 which suggests that respondent
Esteban's appointment was temporary. The Board's action was to confirm or reject an existing ad
interimappointment. If respondent's appointment was intended to be temporary, it should have been
expressly stated. It cannot be made to rest on inconclusive evidence, specially because a temporary
appointment divests the temporary appointee of the constitutional security of tenure against removal without
cause even if he is a civil service eligible." (Tolentino v. de Jesus, 56 SCRA 167, cited in Cortez v. Bartolome,
100 SCRA 1).
Further supporting private respondent's stand is the list of permanent personnel which was submitted to the
Commission by the university president herself on March 3, 1975 for recognition of their permanent status by
the Commission. The appellant's name was the first in that list (Exhibit 8-B). The permanent status of private
respondent's appointment as Vice-President for Administration at Pamantasan was recognized by the Civil
Service Commission in its lst Indorsement dated April 18, 1975 upon the request of petitioner. This fact is
borne out by the records and the evidence and found as such by the Intermediate Appellate Court, the Civil
Service Commission as well as the Court of First Instance.
From the foregoing, there appears an intention to deprive private respondent of his rights as a permanent
appointee. With strained relations and differences in professional opinion between the private respondent
and the Pamantasan President, Dr. Esteban was led to believe that his services were terminable at pleasure.
The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may
exercise freely according to his judgment, deciding for himself who is best qualified among those who have
the necessary qualifications and eligibilities. lt is a prerogative of the appointing power that may be availed of
without liability, provided however, that it is exercised in good faith for the advancement of the employer's
interest and not for the purpose of defeating or circumventing the rights of the employees under special laws
or under valid agreements, and provided further, that such prerogatives are not exercised in a malicious,
harsh, oppressive, vindictive or wanton manner, or out of malice or spite (Government Service and Insurance
System v. Ayroso 96 SCRA 213). The general rule is that the power of appointment must remain unhampered
by judicial intervention. However, when the law is violated or when there is grave abuse of discretion, we have
to step in. Otherwise the situation aptly described by newspaperman Jesus Bigornia would exist as he had
written:
... With the sword of Damocles hanging over the heads of faculty members, the university has spawned a
meek, spineless, even subservient corps of professors and instructors. (Newsman's Notes, Bulletin Today,
January 23, 1976).
We cannot also sanction the termination of private respondent's services by petitioner. With his appointment
now settled as permanent., the Civil Service law and the Constitution guarantee private respondent's security
of tenure as 'No officer or employe in the Civil Service shall be suspended or dismissed except for cause as
provided by law" (Section 3, Article XII, the 1973 Philippine Constitution). Petitioner has failed to substantiate
its allegations of incompetence against respondent Esteban whose record of government service appears
quite impressive. Esteban was not dimissed for cause after proper proceedings. His appointment was
terminated on the ground that it was temporary.
The intermediate Appellate Court ordered the payment of full back salaries to Dr. Esteban provided he has
not reached the age of compulsory retirement from the government service.
It is not clear from the records as to when Dr. Esteban actually ceased working for Pamantasan. Under the
law, he is entitled to full pay, allowances, and other benefits during the period that he was actually reporting
for work and rendering services in whatever capacity, whether teaching, research or administration. As of
backwages, the amount is generally based on the equivalent of three years' earnings (Philippine Airlines, Inc.
v. National Labor Relations Commission, 126 SCRA 223; Insular Life Assurance Co., Ltd. v. National Labor
Relations Commission, 135 SCRA 697). In line with the policy adopted by this Court to do away with the
attendant delay in awarding backwages because of the extended hearings necessary to prove the earnings,
elsewhere of each and every employee (Philippine Airlines, Inc. v. National Labor Relations Commission, supra,
citing Mercury Drug Co., Inc. v. Court of Industrial Relations, 56 SCRA 694), the formula for computing the
same calls for fixing the award of backwages to three years. However, in Dy Keh Beng v. International Labor
and Marine Union, 90 SCRA 162, citing Mercury Drug Co., et al. v. Court of Industrial Relations, 56 SCRA 694,
712), we held the amount of backwages to be "subject to deduction whre there are mitigating circumstances
in favor of the employer, but subject to increase whree there are aggravating circumstances. (Tupas Local
Chapter No. 979, et al. v. National Labor Relations Commission, et al., G. R. No. 60532-33, November 5,\1985;
Progressive Development Corporation v. Progressive Employees' Union, 80 SCRA 434.) Considering that in the
case at bar, more than ten (10) years have elpased from the date respondent Esteban as to the true nature of
his appointment and "studiously suppressing" material data to effectively deprive the latter of his rights as a
permanent employee, we find an award of five (5) years backpay to respondent Dr. Esteban just and equitable
under the circumstances, assuming he has not reached retirement age in the meantime.
WHEREFORE, the petition for review on certiorari is hereby DISMISSED for lack of merit. The decision appealed
from is affirmed subject to the modification in the payment of back salaries as stated above.
SO ORDERED.
G.R. No. L-39451 February 20, 1989
ISIDRO M. JAVIER, petitioner-appellee,
vs.
PURIFICACION C. REYES,
Victorino B. Aldaba for petitioner-appellee.
Jesus R. Mabagos for respondent-appellant.
SARMIENTO, J.:
Before the Court is a certified case involving pure questions of law. The facts, as found by the trial court, are
as follows:
...It is alleged that petitioner was the duly appointed Chief of Police of Malolos, Bulacan, on November 7, 1967
by the then Mayor Victorino B. Aldaba, which appointment was confirmed and approved by the Municipal
Council of the said municipality on the same date as per Resolution No. 210, Series of 1967; that the following
day, petitioner took his oath of office and thereafter assumed and discharged the rights, prerogatives and
duties of the office; that on January 3, 1968, pending approval and attestation of his appointment by the Civil
Service Commission, respondent, who had then assumed the office of Municipal Mayor, recalled petitioner's
appointment from the Civil Service Commission in her letter of said date; that not satisfied with her letter of
recall, respondent summarily, arbitrarily and illegally ousted and relieved petitioner as Chief of Police and at
the same time, designated Police Lt. Romualdo F. Clements, a non-eligible, as Officer-in-Charge of the Police
Department, in her memorandum dated January 12, 1968, that on February 2, 1968, pursuant to the letter of
recall, the Civil Service Commission returned the appointment papers of petitioner without action, duly
excepted to by petitioner in his motion for reconsideration dated February 16, 1968; that on May 2, 1968, the
Civil Service Commission attested and approved the appointment of petitioner as such Chief of Police, in its
3rd Indorsement, pertinent portion of which reads as follows:
In view of Resolution No. 185 adopted by the Municipal Council of Malolos, Bulacan, in its meeting of
September 26, 1967, notifying this Office that the appointment of Mr, Bayani Bernardo as Chief of Police of
Malolos has not been confirmed by said Council, and as the consent of the Municipal Council is a mandatory
requirement under Section 1 of Rep. Act 1551, the said appointment is considered null and void. In view
thereof, the attached appointment of Mr. Isidro M. Javier has been approved as permanent under Section 24
(b) of R.A. 2260...;
that in its letter to respondent dated July 9, 1968 wherein its ruling contained in the aforequoted 3rd
Indorsement was reiterated, the Civil Service Commission directed respondent "that steps be taken
immediately to install Mr. Javier as Chief of Police of that Municipality (Malolos)"; that notwithstanding the
aforementioned ruling and directive, respondent neglected and refused to reinstate petitioner to tile position
of Chief of Police of Malolos which act is specifically enjoined upon her as Municipal Mayor and public officer,
in Sec. 19, Article IV of Rep. Act 2260 otherwise known as the Civil Service Act o)f 1959; that as a result of
respondent's refusal to perform the act enjoined upon her by law, petitioner was deprived of his salary since
November 8, 1967 up to his ouster on January 13, 1968 and from then on up to the present; that as a further
consequence of the inaction of respondent, petitioner suffered social humiliation and embarrassment, was
exposed to public ridicule, causing him mental anguish thereby sustaining moral damages in the amount of
P5,000.00 and was forced to engage counsel to prosecute his rights for the sum of Pl,000.00 attorney's fees.
Respondent denies the material allegations of the petition and as special and affirmative defenses alleges that
one Bayani Bernardo was appointed Chief of Police of Malolos by the then Mayor Jovencio C. Caluag on
September 4, 1967; that likewise, Isidro M. Javier, petitioner herein, was appointed Chief of Police of the same
municipality on November 8, 1967 by the then Mayor Victorino B. Aldaba, both of which appointments were
approved by the Civil Service Commission; that in justifying the approval of the appointment of Bayani
Bernardo, despite lack of consent of the Municipal Council, the Civil Service Commission stated in its 7th
indorsement dated January 17, 1968, as follows:
...The non-retention of the phrase "With the consent of the Municipal Council " found in Section lf of the
Republic Act No. 1551 (effective June 16, 1966) which, insofar as pertinent, x x x only shows the clear intention
of the lawmaking body to amend the provision first above quoted by the Police Act of 1966 which vest in the
Mayor the sole authority to appoint members of the police force with exception of course, of cities whose
charters may require the participation of the council in such matters. Furthermore, the Decentralization Act
of 1967 (effective September 12, 1967) does not require the consent of the Municipal Council on the
appointment of policemen. ...
that the same Commission, however, in approving the appointment of petitioner Isidro Javier, stated in its 3rd
indorsement of May 2, 1968, as follows:
... In view of Resolution No. 185 adopted by the Municipal Council of Malolos, Bulacan, in its meeting of
September 26, 1967 notifying this Office that the appointment of Mr. Bayani Bernardo Chief of Police of
Malolos, Bulacan has not been confirmed by said Council as the consent of the Municipal Council is a
mandatory requirement under Sec. 1 of Republic Act 1551, the said appointment is considered null and void.
In view thereof, the attached appointment of Mr. Isidro M. Javier has been approved ...
that in view of the obvious conflict of both actions of the Civil Service Commission which virtually renders the
two appointments apparently valid, respondent is placed in a set of circumstances wherein her action in favor
of either of the appointees may render her personally liable for salaries and other damages in favor of the
other.
Having been granted the right to intervene, Bayani Bernardo moved to dismiss the petition on the grounds
that the cause of action of petitioner has already prescribed and/or is barred by the Statute of Limitations and
that the present petition is not founded on a clear, complete, undisputed and indubitable legal right. However,
having been filed out of time, the motion to dismiss was not resolved and intervenor was declared in default
in the order of this Court dated September 26,1969.
The following facts have been admitted by the parties: that petitioner Isidro M. Javier was appointed Chief of
Police of Malolos, Bulacan on November 7,1967 by the then Mayor Victorino B. Aldaba, and approved by the
Civil Service Commission on May 2, 1968; that petitioner took his oath of office as such on November 8, 1967
and immediately assumed the position and discharged his duties until January 13, 1968 when he was
separated from office by respondent Municipal Mayor Purificacion Reyes; that respondent recalled the said
appointment of petitioner on January 3,1968 pursuant to which said appointment was returned by the Civil
Service Commission returning his appointment on the basis of which the said commission reconsidered the
same and approved his appointment on May 2, 1968; that since May 2, 1968 to the present, respondent has
not reinstated the petitioner notwithstanding a follow-up letter circular dated July 9, 1968 of the Commission
of Civil Service, directing the immediate reinstatement of petitioner; that one Bayani Bernardo was also
appointed Chief of Police of Malolos, Bulacan on September 4,1967, approved by the Commissioner of Civil
Service on September 17,1967; and that said appointment of Bayani Bernardo by the then Mayor Jovencio
Caluag was not referred to the Police Commission for decision. (pp. 164-168, Record) 1
The legal questions involved are as follows:
(1) When an appointment to the position of municipal chief of police was made by a municipal mayor and said
appointment was not approved by the municipal council and such lack of approval lasted for more than ninety
(90) days from the issuance of the appointment, will Sec. 8 of R.A. 4864, otherwise known as the Police Act of
1966 apply?
(2) When two appointments to one and the same position were both approved by the Civil Service Commission
on the basis of two legal provisions, which one will prevail over the other ? (Pp. 1-2, Appellant's Brief) 2
The Court finds that preeminently, the question is: Between the petitioner's appointment and that of Bayani
Bernardo, which prevails?
It shall be recalled that the petitioner was appointed Chief of Police of Malolos, Bulacan, on November 7, 1967,
by then Mayor Victorino Aldaba and the following day, took his oath of office. He discharged the powers of
the office until January 13, 1968 when the respondent, who had meanwhile succeeded as local chief executive,
and in an apparent political maneuver, removed him in favor of Bayani Bernardo.
On the other hand, Bernardo never assumed office or took his oath. It cannot be said, then, that he had
accepted his appointment. Such an appointment being ineffective, we hold that the petitioner's appointment
prevails.
Acceptance is indispensable to complete an appointment. The fact that Bernardo's appointment was
confirmed by the Civil Service Commission does not complete it since confirmation or attestation by the
Commission, although an essential part of the appointing process, 3 serves merely to assure the eligibility of
the appointee. 4
Furthermore, Bernardo never contested the petitioner's right to office. He did, of course, intervene in
the mandamussuit, but it was a belated effort to assert his alleged rights. It is not indicative of an interested
party. It was too little and too late.
Bernardo's argument that he had thought it "prudent" 5 to await a clarification on the double appointments
comes as a lame excuse. He should have challenged the petitioner's subsequent appointment, rather than
allow events to take their course. The Court believes that he is guilty of laches.
On the other hand, we cannot say the same thing as far as the petitioner is concerned. The records show that
he was appointed on November 7, 1967, and the following day, November 8, 1967, he took his oath of office
and discharged the duties appurtenant thereto until January 13, 1968, when the succeeding mayor, the herein
respondent Purificacion Reyes, recalled his appointment and appointed another. Thereupon, the petitioner
went to the Civil Service Commission to ask for reinstatement. Finally, he brought suit for mandamus. These
acts amounted to acceptance and gave rise to a vested right to the office in his favor. 6
This case should be distinguished from Cristobal v. Melchor, 7 where we held that a party is not precluded by
laches from pursuing reinstatement (notwithstanding the lapse of the one-year period within which to sue
on quo warranto.) In that case, we were impressed by the efforts of the dismissed employee to seek
reinstatement upon assurances from his superiors that one would be forthcoming. Moreover, we said
that Ingles v. Mutuc, 8 in which we ordered reinstatement, was the law of the case among the parties, although
the dismissed employee was not a party thereto. In the case at bar, Bayani Bernardo never undertook steps
that would have convinced us that he was interested in, or had accepted, the appointment. Let the Court say
that it would have been differently minded had he done so. 9
Under the circumstances, there is no necessity in delving on the questions raised at the outset. Our findings
herein render them moot, and academic.
WHEREFORE, the respondent Mayor, or her successor in office, as well as the respondent, the Municipality of
Malolos, Bulacan, are ORDERED to REINSTATE the petitioner to office of Chief of Police, Malolos, Bulacan, or
its equivalent, or to any position equivalent in rank and pay, subject to the requirements of age and fitness,
and to PAY him back salaries equivalent to five (5) years without qualification or deduction.
SO ORDERED.
G.R. No. 92140 February 19, 1991
REYNALDO D. LOPEZ, petitioner,
vs.
CIVIL SERVICE COMMISSION and ROMEO V. LUZ, JR.,
GUTIERREZ, JR., J.:
Petitioner Reynaldo Lopez assails the nullification by the Civil Service Commission of his appointment as
Harbor Master of the Manila South Harbor.
In 1983, petitioner Lopez, along with private respondent Romeo V. Luz, Jr. and Roberto Abellana, was
appointed as Assistant Harbor Master at Manila International Container Terminal, Manila South Harbor and
Manila North Harbor, respectively.
Pursuant to Executive Order No. 125, the Ministry (now Department) of Transportation and Communications
(DOTC) was reorganized. Hence, the reduction of the number of Assistant Harbor Masters (now designated as
Harbor Masters) in the Philippine Ports Authority (PPA) from three (3) to two (2). A reevaluation of the
qualifications of petitioner Lopez, Luz, and Abellana was conducted by a placement committee of the PPA to
determine who should assume the two positions. The PPA General Manager, Rogelio A. Dayan, appointed
petitioner Lopez as Harbor Master for the South Harbor after considering the evaluation conducted by the
Placement Committee of the PPA the results of which reveal that petitioner was the most outstanding among
the three. The evaluation was formally conducted and superseded the one earlier handled by a task force. It
took into account the following: education and training; experience, physical characteristics and personality
traits; and performance of each candidate. The records show that respondent Luz rated third.
Luz protested Lopez's appointment after it was approved by the Assistant Director of the Civil Service Field
Office, Guillermo R. Silva.
On February 15, 1989, the protest/appeal was denied by the PPA General Manager who explained that Luz
was not qualified for any of the two slots according to the over-all standing of the contenders.
Luz then appealed to the Civil Service Commission (CSC) which, on July 6, 1989, ruled that while the candidates
were all qualified, "there was no finding who among the three contenders is considered the most qualified
and competent to merit appointment . . ., the previous assessments of the candidates having been found
defective and not in accordance with the law and implementing regulations." The CSC directed that
"comparative assessments" be made by an appropriate Placement Committee. These assessments would then
be the basis of the appointments.
On October 17, 1989, the CSC denied a motion for reconsideration filed by the PPA and ordered the submission
of the results of the re-assessment.
On November 10, 1989, the PPA submitted to the Commission the results of the re-assessment conducted by
its Placement Committee which was reconvened for that purpose. The results explained that the Committee
utilized evaluation instruments that have been validated for use in promotions to assess performance of the
candidates, their education and training, experience and outstanding accomplishments. It, however, noted
certain constraints which led to the adoption of modified measures. For instance, it noted the absence of an
established instrument to determine Physical Characteristics and Personality Traits so that it had to resort to
an assessment conducted by a professional psychiatrist-consultant on the mental alertness, reaction to
pressure, personality and dependability of the candidates. Also, in the absence of complete performance
appraisal ratings of all the three candidates for the years 1987 to 1988, it utilized only the available ratings for
two rating periods i.e., in January-June 1986 and January-June 1987 in which all three candidates were rated.
It did not rate outstanding accomplishments due to the absence of a valid instrument, but it considered two
(2) commendations given to Luz for his past performance. Moreover, it did not measure each of the
candidates' Potential which accounts for 25 points out of the total standard points. It set the maximum score
to a total of 70 points only. The comparative evaluation of the candidates for the position of Harbor Master
showed that petitioner Lopez garnered 51 points, Abellana 41.75 points, and respondent Luz 39.75
points.
Despite this compliance by the PPA, the Commission, on February 14, 1990, found that the re-assessment was
not in order. It ruled that the immediate supervisor of respondent Luz was in the best position to assess the
competence of the respondent and not a psychiatric-consultant who was merely a contractual employee and
susceptible to partiality. The Commission stressed that the Placement Committee's current assessment
ignored some of the performance appraisal ratings previously made on respondent Luz, as well as the PPA 201
files containing only Luz's record of achievements. It also noted other factors which allegedly would affect his
personality traits rating. Thus, it directed the appointment of Luz as the Harbor Master instead of the
petitioner.
Hence, this petition.
Lopez now alleges that his constitutional right to due process of law has been violated because he was never
informed or notified of the appeal of respondent Luz, the entire proceedings held on the case, and the
resolutions of the Commission. He was never invited for comment during the pendency of the appeal. He
allegedly learned about the appeal only after being informed by the PPA that his appointment had been
revoked and that respondent Luz was directed to assume the position.
The respect for the right to due process in actions before administrative agencies and constitutional
commissions includes the basic requirement of granting the person, whose appointment is being contested,
an opportunity to be heard. It is conceded that petitioner Lopez was merely a nominal party in the appeal such
that the appellee therein was actually the PPA whose act of appointing was being questioned. Nevertheless,
the Commission should have taken into account the right of the subject person involved to be informed of the
appeal so that he may be given a chance to present his side. A fundamental requirement of procedural due
process demands that the interested parties must have an opportunity to present their case and the decision
or resolution should be supported by substantial evidence presented by the affected parties before the
tribunal (Ang Tibay v. CIR, 69 Phil. 635 [1940]).
The petitioner asserts that the Civil Service Commission gravely and seriously erred in nullifying his
appointment and instead substituting its decision for that of the PPA. For its part, the respondent Commission
alleged that the selection made by the PPA was discriminatory against Luz and did not conform to the
requirements of the law, because other performance ratings of Luz were not given weight. It justified the
reversal of the appointment by saying that the Constitution and Rep. Act No. 6656 require that an appointment
satisfies the merit and fitness standard, or that "the most qualified and competent shall be preferred."
The private respondent maintains basically the same arguments set forth by the respondent
Commission.1wphi1
The records explicitly show that the Placement Committee of the PPA disclosed the manner by which it
assessed all the candidates. It specifically took note of certain limitations like the absence of ratings of all
candidates for certain periods which prompted it to avail of those instruments showing data in which all three
of the contenders were subjected to evaluation. This was resorted to in the desire to achieve fairness to all
candidates. It admitted having acknowledged other performance ratings and commendations received by
respondent Luz. However, all ratings considered, the Placement Committee was of the opinion that the
petitioner is the most qualified. The appointing power was given a fair and honest appraisal which fully
considered the strengths and weaknesses of the candidates. The petitioner was appointed.
The role of the Civil Service Commission in establishing a career service and in promoting the morale,
efficiency, integrity, responsiveness, and courtesy among civil servants is not disputed by petitioner Lopez. On
the other hand, the discretionary power of appointment delegated to the heads of departments or agencies
of the government is not controverted by the respondents. In the appointment, placement and promotion of
civil service employees according to merit and fitness, it is the appointing power, especially where it is assisted
by a screening committee composed of persons who are in the best position to screen the qualifications of
the nominees, who should decide on the integrity, performance and capabilities of the future appointees.
Under Section 9 (h) Presidential Decree No. 807 which authorizes the respondent Commission to
(h) Approve all appointments, whether original or promotional, to positions in the civil service, except those of
presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and
jailguards, and disapprove those where the appointees do not possess the appropriate eligibility or required
qualifications. An appointment shall take effect immediately upon issue by the appointing authority if the
appointee assumes his duties immediately and shall remain effective until it is disapproved by the Commission,
if this should take place, without prejudice to the liability of the appointing authority for appointments issued
in violation of existing laws or rules; Provided, finally, that the Commission shall keep a record of appointments
of all officers and employees in the civil service. All appointments requiring the approval of the Commission
as herein provided, shall be submitted to it by the appointing authority within thirty days from issuance,
otherwise, the appointment becomes ineffective thirty days thereafter. (Emphasis supplied)
the Commission's power does not extend to considerations other than those enumerated in the law such as
the belief that there are others more qualified. The law limits the Commission's authority only to whether or
not the appointees possess the legal qualifications and the appropriate civil service eligibility, nothing else. To
go beyond this would be to set at naught the discretionary power of the appointing authority and to give to
the Commission a task which the law (Sec. 6, Rep. Act No. 6656) does not confer. This does not mean that the
Commission's act of approving or disapproving becomes ministerial. Far from it. Section 9 (h) of the Civil
Service Law permits the exercise by the Commission of its judgment upon the validity of the appointment by
specifying the criterion for approval of appointments. (Meralco Securities Corp. v. Savellano, 117 SCRA 804
[1982]) The authority given to the Commission, therefore, is very far from a mere mechanical act in which no
discretion or exercise of judgment is allowed.
The Court has defined the parameters within which the power of approval of appointments shall be exercised
by the respondent Commission. In the case of Luego v. Civil Service Commission, 143 SCRA 327 [1986], the
Court ruled that all the Commission is actually authorized to do is to check if the appointee possesses the
qualifications and appropriate eligibility: "If he does, his appointment is approved; if not it is disapproved."
We further ruled that the Commission has no authority to revoke an appointment simply because it believed
that the private respondent was better qualified for that would have constituted an encroachment of the
discretion vested solely in the appointing authority. The Commission cannot exceed its power by substituting
its will for that of the appointing authority. (Central Bank v. Civil Service Commission, 171 SCRA 744 [1989]).
The power of appointment exercised after a judicious recommendation made by a placement Committee of
the agency concerned is:
(A)n essentially discretionary power and must be performed by the officer in which it is vested according to
his best lights, the only condition being that the appointee should possess the qualification required by law. If
he does, then the appointment cannot be faulted on the ground that there are others better qualified who
should have been preferred. This is a political question involving considerations of wisdom which onlyu the
appointing authority can decide. (Emphasis supplied; Luego v. Civil Service Commission, supra, at p. 332)
The head of an agency who is the appointing power is the one most knowledgeable to decide who can best
perform the functions of the office. (Ocampo v. Subido, 72 SCRA 433 [1976]; Torres v. Borja, 56 SCRA 47 [1974];
Santiago v. Civil Service Commission, 178 SCRA 733 [1989] He has a wide latitude of choice as to the person to
appoint where the law does not impose rigid conditions. (Reyes v. Abeleda, 22 SCRA 825 [1968]). Section 6,
Rep. Act No. 6656 on government reorganization merely provides that the selection or placement should be
done through the creation of a Placement Committee the members of which are representatives of the head
of the agency as well as representatives of the head of the agency as well as representatives of the employees.
The committee's work is recommendatory and does not fix a stringent formula regarding the mode of choosing
from among the candidates. Thus, the respondents' arguments on the alleged inconsistencies and non-
conformity with Rep. Act No. 6656 in rating the contenders are without merit.
In view of the foregoing, the Court is not the least bit convinced by the contentions of the public and private
respondents. It is apparent from the records that the PPA disclosed all the instruments used, the limitations
and the adjustments made to the end that the results would be fair to all the candidates alike. The hiring of
an independent psychiatrist-consultant, for instance, proves the inclination of the committee towards
impartiality. More important, the Court emphasizes that the Commission has no authority to substitute its
judgment for that of the Philippine Ports Authority when it comes to evaluating the performance, personality,
and accomplishments of candidates who all have the necessary eligibility and legal qualifications.
WHEREFORE, the petition is hereby GRANTED. The resolutions of the respondent Civil Service Commission
dated July 6, 1989, October 17, 1989, and February 14, 1990 are REVERSED and SET ASIDE. Petitioner
REYNALDO D. LOPEZ is declared to be entitled to the office in dispute by virtue of this permanent appointment
thereto effective October 1, 1988. The temporary restraining order issued by the Court on March 22, 1990 is
made permanent.
SO ORDERED.
G.R. No. L-19313 January 19, 1962
DOMINADOR R. AYTONA, petitioner,
vs.
ANDRES V. CASTILLO, ET AL., respondents.
R E S O L U T I O N.
BENGZON, C.J.:
Without prejudice to the subsequent promulgation of more extended opinion, the Court adopted today, the
following resolutions: .
On December 29, 1961, then President Carlos P. Garcia appointed Dominador R. Aytona as ad
interim Governor of the Central Bank. On the same day, the latter took the corresponding oath.
On December 30, 1961, at noon, President-elect Diosdado Macapagal assumed office; and on December 31,
1961, he issued Administrative Order No. 2 recalling, withdrawing, and cancelling all ad interim appointment
made by President Garcia after December 13, 1961, (date when he, Macapagal, had been proclaimed elected
by the Congress). On January 1, 1962, President Macapagal appointed Andres V. Castillo as ad
interim Governor of the Central Bank, and the latter qualified immediately.
On January 2, 1962, both appointed exercised the powers of their office, although Castillo informed Aytona of
his title thereto; and some unpleasantness developed in the premises of the Central Bank. However, the next
day and thereafter, Aytona was definitely prevented from holding office in the Central Bank.
So, he instituted this proceeding which is practically, a quo warranto, challenging Castillo's right to exercise
the powers of Governor of the Central Bank. Aytona claims he was validly appointed, had qualified for the
post, and therefore, the subsequent appointment and qualification of Castillo was void, because the position
was then occupied by him. Castillo replies that the appointment of Aytona had been revoked by Administrative
Order No. 2 of Macapagal; and so, the real issue is whether the new President had power to issue the order
of cancellation of the ad interim appointments made by the past President, even after the appointees had
already qualified.1wph1.t
The record shows that President Garcia sent to the Commission on Appointments which was not then in
session a communication dated December 29, 1961, submitting "for confirmation" ad
interim appointments of assistant director of lands, councilors, mayors, members of the provincial boards,
fiscals, justices of the peace, officers of the army, etc.; and the name of Dominador R. Aytona as Governor of
the Central Bank occupies number 45, between a justice of the peace and a colonel of the Armed Forces.
Another communication of President Garcia bearing the same date, submitted a list of ad
interim appointments of Foreign Affairs officers, judges, fiscals, chiefs of police, justices of the peace, mayors,
councilors, etc. number 63 of which was that of Dominador R. Aytona for Governor of the Philippines in the
Boards of International Monetary Fund, International Bank for Reconstruction and Development, etc.
A third communication likewise dated December 29, 1961, addressed to the Commission on Appointments
submitted for confirmation 124 names of persons appointed as judges of first instance, members of provincial
boards, and boards of government corporations, fiscals, justice of the peace, even one associate justice of this
Court occupying position No. 8 and two associate justices of the Court of Appeals (9 and 10) between an
assistant of the Solicitor-General's Office, and the chairman of the board of tax appeals of Pasay City, who in
turn are followed by judges of first instance, and inserted between the latter is the name of another associate
justice of the Court of Appeals.
There were other appointments thus submitted by President Garcia on that date, December 29, 1961. All in
all, about three hundred fifty (350) "midnight" or "last minute" appointments.
In revoking the appointments, President Macapagal is said to have acted for these and other reasons: (1) the
outgoing President should have refrained from filling vacancies to give the new President opportunity to
consider names in the light of his new policies, which were approved by the electorate in the last elections;
(2) these scandalously hurried appointments in mass do not fall within the intent and spirit of the
constitutional provision authorizing the issuance of ad interim appointments; (3) the appointments were
irregular, immoral and unjust, because they were issued only upon the condition that the appointee would
immediately qualify obviously to prevent a recall or revocation by the incoming President, with the result that
those deserving of promotion or appointment who preferred to be named by the new President declined and
were by-passed; and (4) the abnormal conditions surrounding the appointment and qualifications evinced a
desire on the part of the outgoing President merely subvert the policies of the incoming administration.
It is admitted that many of the persons mentioned in the communication to the Commission on Appointments
dated December 29, 1961, did not qualify. There is evidence that in the night of December 29, there was a
scramble in Malacaan of candidates for positions trying to get their written appointments or having such
appointments changed to more convenient places, after some last minute bargaining. There was unusual hurry
in the issuance of the appointments which were not coursed through the Department Heads and in the
confusion, a woman appointed judge was designated "Mr." and a man was designated "Madam." One
appointee who got his appointment and was required to qualify, resorted to the rush of asking permission to
swear before a relative official, and then never qualified.
We are informed, it is Malacaan's practice which we find to be logical to submit ad
interim appointments only when the Commission on Appointments is in session. One good reason for the
practice is that only those who have accepted the appointment and qualified are submitted for confirmation.
Nevertheless, this time, Malacaan submitted its appointments on the same day they were issued; and the
Commission was not then in session; obviously because it foresaw the possibility that the incoming President
would refuse to submit later the appointees of his predecessor. As a result, as already adverted to, some
persons whose names were submitted for confirmation had not qualified nor accepted their appointments.
Because of the haste and irregularities, some judges of first instance qualified for districts wherein no
vacancies existed, because the incumbents had not qualified for other districts to which they had been
supposedly transferred or promoted.
Referring specifically to judges who had not qualified, the course of conduct adopted by Former Chief Justice
Moran is cited. Being ambassador in Spain and desiring to return to this Court even as associate justice, Moran
was tendered an ad interim appointment thereto by President Quirino, after the latter had lost the election
to President Magsaysay, and before leaving the Presidency. Said Ambassador declined to qualify being of the
opinion that the matter should be left to the incoming newly-elected President.
Under the circumstances above described, what with the separation of powers, this Court resolves that it must
decline to disregard the Presidential Administrative Order No. 2, cancelling such "midnight" or "last-minute"
appointments.
Of course, the Court is aware of many precedents to the effect that once an appointment has been issued, it
cannot be reconsidered, specially where the appointee has qualified. But none of them refer to mass ad
interimappointments (three-hundred and fifty), issued in the last hours of an outgoing Chief Executive, in a
setting similar to that outlined herein. On the other hand, the authorities admit of exceptional circumstances
justifying revocation3 and if any circumstances justify revocation, those described herein should fit the
exception.
Incidentally, it should be stated that the underlying reason for denying the power to revoke after the
appointee has qualified is the latter's equitable rights. Yet it is doubtful if such equity might be successfully set
up in the present situation, considering the rush conditional appointments, hurried maneuvers and other
happenings detracting from that degree of good faith, morality and propriety which form the basic foundation
of claims to equitable relief. The appointees, it might be argued, wittingly or unwittingly cooperated with the
stratagem to beat the deadline, whatever the resultant consequences to the dignity and efficiency of the
public service. Needless to say, there are instances wherein not only strict legality, but also fairness, justice
and righteousness should be taken into account.
WHEREFORE, the Court exercising its judgment and discretion in the matter, hereby dismiss the action,
without costs.
Labrador, Reyes, J.B.L., Paredes and De Leon, J.J., concur.

Of course, nobody will assert that President Garcia ceased to be such earlier than at noon of December 30,
1961. But it is common sense to believe that after the proclamation of the election of President Macapagal,
his was no more than a "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. The time for debate had passed; the electorate had spoken. It was not
for him to use powers as incumbent President to continue the political warfare that had ended or to avail
himself of presidential prerogatives to serve partisan purposes. 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 positions1 irrespective of fitness and
other conditions, and thereby deprive the new administration of an opportunity to make the corresponding
appointments.
Normally, when the President makes appointments the consent of the Commission on Appointments, he has
benefit of their advice. When he makes ad interim appointments, he exercises a special prerogative and is
bound to be prudent to insure approval of his selection either previous consultation with the members of the
Commission or by thereafter explaining to them the reason such selection. Where, however, as in this case,
the Commission on Appointments that will consider the appointees is different from that existing at the time
of the appointment2 and where the names are to be submitted by successor, who may not wholly approve of
the selections, the President should be doubly careful in extending such appointments. Now, it is hard to
believe that in signing 350 appointments in one night, President Garcia exercised such "double care" which
was required and expected of him; and therefore, there seems to be force to the contention that these
appointments fall beyond the intent and spirit of the constitutional provision granting to the Executive
authority to issue ad interim appointments.
Separate Opinions
PADILLA, J., concurring:
Once more this Court has to pass upon and determine a controversy that calls for an interpretation of the
provisions of the Constitution. The facts that gave rise to the petition need not be restated as they are set
forth in opinion rendered for the Court. The question is whether the appointment of a person to a public office
by a President whose term of office was about to expire or cease is lawful or does not contravene the
Constitution; or, if lawful after the appointee has taken his oath, until when would such appointment be valid
and effective. The constitutional point involved seems to have been overlooked the framers of the
Constitution. It would seem that the framers, well-meaning persons that they were, never foresaw an
eventuality such as the one confronting the Republic. The framers never thought and anticipated that citizen
elevated by the people to such an exalted office the President of the Republic, would perform an act which
though not expressly prohibited by the Constitution and the law, ought not to be done, since a sense of
propriety would be enough to stop him from performing it.
The petitioner invokes section 10, paragraph 4, article VII, of the Constitution which provides that
The President shall have the power to make appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
Under these constitutional provisions there seems to be no doubt that the President may make the
appointment, and if approved by the Commission on Appointments, it would unquestionably be lawful, valid
and effective, but if disapproved or not acted upon by the Commission on Appointments then the appointment
becomes ineffectual and the appointee ceases and can no longer perform the duties of the office to which he
had been appointed.
It is urged that the petitioner's appointment having been made by the President during the recess of the
Congress and he having taken his oath, the appointment is lawful, valid and effective until disapproval by the
Commission on Appointments or until the next adjournment of the Congress should the Commission on
Appointments fail to act on it.
Ad interim appointments that the President may make during the recess of the Congress are those made
during a period of time from the adjournment of the Congress to the opening session, regular or special, of
the same Congress. In other words, if the President had convened in a special session the fourth Congress
whose term was to expire on the 30th of December 1961 and during such session the ad interim appointments
had been confirmed by the Commission on Appointments there would be little doubt that the appointments
would be lawful and valid.
The government established by the Constitution is one of checks and balances to preclude and prevent
arrogation of powers by officers elected or appointed under it.
Under the provisions of the Constitution "The term of office of Senators shall be six years and shall begin on
the thirtieth day of December next following their election."1 And "The term of office of the Members of the
House of Representatives shall be four years and shall begin on the thirtieth day of December next following
their election."2Under section 10, paragraph 4, article VII, of the Constitution, above quoted, the President
may make appointments during the recess of the Congress, "but such appointments shall be effective only
until disapproval by the Commission on Appointments or until the next adjournment of the Congress." .
The term "recess", in its broadest sense, means and refers to the intervening period between adjournment of
a regular session of one hundred days exclusive of Sundays, or of a Special session which cannot continue
longer than thirty days, and the convening thereof in regular session once every year on the fourth Monday
of January or in special session to consider general legislation or only such subjects as he (the President) may
designate.3 And such intervening period refers to the same Congress that had adjourned and was to be
convened. Such intervening period cannot refer to two different Congresses, one that has adjourned and one
newly chosen or elected to meet in regular session as provided for by the Constitution, or in special session by
the call of the President.
The term of the President ... shall end at noon the thirtieth day of December following the expiration four
years after (his) election and the term of (his) successor shall begin from such time.4
If the ad interim appointments made by the President during the recess of the Congress are effective only until
disapproval by the Commission on Appointments or until the next adjournment of the Congress a limitation
on the power of the President there is a cogent and strong reason for holding to be the intent of the framers
of the Constitution that such appointments made by him ceased to be valid and effective after the term of the
Congress existing at the time of the making of such appointments had ended or expired. The end or expiration
of the of the Congress existing at the time of the making of the ad interim appointments by the President is a
stronger cause or reason for the lapse or ineffectuality of such appointments than "the next adjournment of
the Congress." Since that Congress no longer exists and hence can no longer convene and then "adjourn." The
effectivity and validity of the appointment of the petitioner as Governor of the Central Bank ceased, lapsed
and expired on thirtieth of December 1961. He is no longer entitled hold the office to which he had been
appointed. My vote, therefore, is for the denial of the petition.
Dizon, J., concurs.
I concur with the foregoing concurring opinion of Justice Padilla, the same being based on an additional ground
justifying denial of the petition under consideration.
BAUTISTA ANGELO, J., concurring: .
In addition to the reasons stated in the resolution adopted by this Court on January 19, 1962, I wish to express
the following views: .
1. The "midnight appointments" made by President Garcia were extended by him under Section 10, Paragraph
4, Article VII of the Constitution which provides: "The President shall have the power to make appointments
during the recess of the Congress, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress." It is clear that these
appointments can only be made during the recess of Congress because they are ad interim appointments.
The term "recess" has a definite legal meaning. It means the interval between a session of Congress that has
adjourned and another of the same Congress. It does not refer to the interval between the session of one
Congress and that of another. In that case the interval is not referred to as a "recess" but an adjournment sine
die. Thus, in the case of Tipton v. Parker, 71 Ark. 194, the court said: "The 'recess' here referred to by Judge
Cooley means the intermission between sittings of the same body at its regular or adjourned session, and not
to the interval between the final adjournment of one body and the convening of another at the next regular
session. When applied to a legislative body, it means a temporary dismissal, and not an adjournment sine die."
Since the appointments in question were made after the Fourth Congress has adjourned sine die and ceased
to function on December 30, 1961, they cannot partake of the nature of ad interim appointments within the
meaning of the Constitution.
2. The Commission on Appointments under our constitutional set-up is not continuing body but one that co-
exists with the Congress that has created it. This is so because said Commission is a creation of the Senate and
of the House of Representatives. While the Senate is a continuing body, the House ceases at the end of its
fourth year. It cannot therefore be continuing it being a creation of a body half of which is alive and the other
half has ceased to exist. This theory can also be gleaned from the proceedings of the constitutional convention.
Thus, the preliminary draft of the Philippine Constitution provides for a permanent Commission and for the
holding of sessions of the Commission even during the recess of Congress. After mature deliberation the
proposal was defeated and a substitute was adopted which is now embodied in Article VI, Section 12, of our
Constitution. As a matter of fact, as finally adopted, the Commission on Appointments has to be organized
upon the convening of a new Congress after the election of the Speaker of the House of Representatives or of
the President of the Senate, as the case may be, as provided for in Section 13, Article VI of the Constitution
(Article VII, Preliminary Draft of the Constitution, Vol. 2, Aruego: The Framing of the Constitution, pp. 982,
987).
An ad interim appointment, to be complete, needs to be submitted to the Commission on Appointments one
the same is constituted. This is reflected in the Constitution when it provides that "such appointments shall
be effective only until disapproval by the Commission on Appointments or until the next adjournment of the
Congress" (Section 10, Paragraph 4, Article VII). This mean that it must be submitted to the Commission on
Appointments of the Congress that has created it. It cannot be submitted to the Commission on Appointments
of a different Congress. Since the appointments in question were submitted to the Commission on
Appointments which ceased to function on December 30, 1961, they lapsed upon the cessation of said
Commission. Consequently, they can be recalled by the new Chief Executive.
3. An ad interim appointment is not complete until the appointee takes the oath of office and actually takes
possession of the position or enters upon the discharge of its duties. The mere taking of the oath of office
without actual assumption of office is not sufficient to constitute the appointee the actual occupant thereof
who may not be removed therefrom except for cause (McChesney v. Sampson, 23 S.W. 2d. 584). The case
of Summers v. Ozaeta, 81 Phil., 754, cannot be cited as a precedent as to when an ad interim appointment
becomes permanent and binding. That case involves a cadastral judge who was given an ad
interim appointment as judge at large. After assuming the office and discharging his duties, his appointment
was not confirmed. He claimed that he could still revert to his former position as cadastral judge. True, this
Court made a statement therein that an ad interimappointment becomes permanent after taking the oath of
office, but such statement is merely an obiter dictum because the case could have been decided on the
doctrine that, having accepted an incompatible office, petitioner was deemed to have abandoned the position
of cadastral judge.
In relying on certain cases for the proposition that once an appointee has taken the oath of office his
appointment becomes irrevocable petitioner fails to consider that in said cases there had either been an actual
discharge of duty and actual physical possession or assumption of office following the oath-taking as to
constitute the appointee the occupant of the position from which he cannot be removed without cause. Even
the case of Marbury v. Madison, 1 Cranch, U.S. 137, 2 L. Ed., 61, 69, cannot be invoked as a precedent, for
there the appointees were merely nominated and their nominations confirmed by the Commission on
Appointments even if they have later taken their oath of office. Certainly, they can no longer be deprived of
their appointments for then the executive would be acting in disregard of the confirming body which is a
coordinate and independent body not subject to his control.
Since the appointments in question were made not in the light of the views herein expressed, I am of the
opinion that they did not ripen into valid and permanent appointments and as such were properly recalled by
the new Chief Executive.
G.R. Nos. L-10360 and L-10433 January 17, 1957
JULIANO A. ALBA, in his capacity as Acting Vice Mayor of Roxas City, petitioner,
vs.
HONORABLE JOSE D. EVANGELISTA, Judge of the Court of First Instance of Capiz and VIVENCIO C.
ALAJAR, respondents.
VIVENCIO C. ALAJAR, petitioner-appellee,
vs.
JULIANO A. ALBA, respondent-appellant.
Nicolas V. Villaruz, Solicitor General Ambrosio Padilla and Solicitor Troadio Quiazon, Jr. for Juliano A. Alba.
Alvarez, Cacnio, Pamatian and Associates, Abeleda and Amores, Antonio J. Beldia, Pedro M. Bermejo, Jose M.
F. Belo, Atila R. Balgos and Alfonso V. Legaspi for Vivencio C. Alajar.
FELIX, J.:
On January 1, 1954, the President of the Philippines appointed Vivencio Alajar as Vice-Mayor of the City of
Roxas (Annex D). He took his oath and assumed office on January 6, 1954; on March 31 of that year, his
appointment was confirmed by the Commission on Appointment (Annex D-1) and he continued holding office
until November, 1955, when he received a communication from Assistant Executive Secretary Enrique C.
Quema informing him that the President had designated Juliano Alba in his stead as Acting Vice-Mayor of the
City of Roxas and requesting him to turn over his said office to Mr. Alba effective immediately. This
communication wherein the President directed the writer thereof to convey to Mr. Alajar his appreciation for
the invaluable services he had rendered as Vice-Mayor of the City of Roxas (Annex C), was confirmed by a
telegram that Alajar received from the President dated November 23, 1955 (Annex B).
On the other hand, Executive Secretary Fred Ruiz Castro addressed Juliano A. Alba a communication through
the Mayor of the City of Roxas wherein Alba was informed that the President has designated him as Acting
Vice-Mayor of the City of Roxas vice Vivencio Alajar, and instructed him to qualify and enter upon the
performance of the office, furnishing the Commissioner of Civil Service with the copy of his oath (Annex A).
On November 19, 1955, Juliano A. Alba took his oath and assumed office (Annex A-1).
Not satisfied with the action of the President, Vivencio C. Alajar instituted quo warranto proceedings in the
Court of First Instance of Capiz against Juliano A. Alba (Civil Case No. V-2041), contending:
(a) That he was appointed Vice-Mayor of Roxas City on 1 January 1954 and his appointment was confirmed by
the Commission on Appointments on 31 March 1954 and that on 19 November 1955, Juliano A. Alba usurped
the office of Vice-Mayor of Roxas City;
(b) That there existed no vacancy of said office at the time of the designation by the President of the Philippines
of Juliano A. Alba as Acting Vice-Mayor of Roxas City; and
(c) That there existed no legal cause or reason whatsoever for the removal or disqualification of said Vivencio
C. Alajar by the appointment of Juliano Alba by the President of the Philippines as Acting Vice-Mayor of Roxas
City.
After proper proceedings and hearing, the parties submitted the case for decision on the only issue of whether
the alleged removal of the petitioner and the designation in his place of respondent as Vice-Mayor of Roxas
City was legal or illegal. On this point, the lower court held that the petitioner (Vivencio C. Alajar) was "entitled
to remain in office as Vice-Mayor of the City of Roxas with all the emoluments, rights and privileges
appurtenant thereto until he resigns, dies or is removed for cause. Without costs." (Decision, Annex C).
From this decision, Juliano A. Alba appealed to Us by filing a notice of appeal dated February 3, 1956. Four
days later, the appeal notwithstanding, Vivencio Alajar filed a petition (Annex D) praying for immediate
execution of the judgment, and despite the strong opposition of appellant, the motion was granted by the
Court on February 18, 1956 (Annex )E), based on the special reasons adduced by the petitioner and
Moreover, to uphold the supremacy of the law and constitution, which is the supreme and fundamental
authority, pertinent provisions of which are involved in this case, and considering that the immediate and
positive effect of the motion, if the same is denied, is to prolong the status of the illegality of the appointment
of the second appointee and present incumbent to the position of Vice-Mayor of the City of Roxas and the
Question of who is entitled to occupy the same and to exercise the public function of the office which affects
public interest and public service, this Court, if it is to be consistent with its pronouncement, conclusion or
judgment, as it should be, is constrained to grant said motion.
The decision, however, was not executed because the herein petitioner, Juliano A. Alba, brought the matter
up to this Superiority praying:
(1) That pending the determination of the validity of the order of immediate execution, a writ of preliminary
injunction be issued, upon previous filing of the bond fixed by this Honorable Court by the herein petitioner,
restraining the herein respondent Vivencio C. Alajar from discharging the duties and functions of the Vice-
Mayor of Roxas City in order that the herein petitioner shall continue unmolested as acting Vice-Mayor of
Roxas City until the final determination of the question of the validity of the order for the immediate execution
of the decision of the trial court;
(2) That after hearing, judgment be rendered declaring null and void the order of respondent, Hon. Jose D.
Evangelista, dated 18 February 1956 for the immediate execution of his decision in the Quo Warranto Case
(Alajar vs. Alba) on the ground that the same was improperly issued as there existed no good reason for its
issuance as contemplated and provided by Section 2 of Rule 39 of the Rules of Court.
(3) For such other relief as may be just and equitable in the premises.
In this instance, the Solicitor General requested permission to intervene in the certiorari case (G.R. No. L-
10360), alleging that the order of immediate execution issued by the trial judge deprived him of the
opportunity to be heard and defend the constitutionality of Republic Act No. 603 in the lower court and he
desire to heard by this Court before We proceed to determine the constitutionality of section 8 of Republic
Act No. 603 by the affirmative vote of 8 Justice thereof (section 23, Rule 3 of the Rules of Court I Moran,
Comments on the Rules of Court, 1953 ed., p. 111). The stand of the Solicitor General is that said section 8 is
constitutional (Article VI, section 1 and Article XII, section 1 of the Constitution of the Philippines;
Jover vs. Borra, 49 Off. Gaz., 2765 and enactments of Congress subsequent to the case of Santos vs. Mallare,
48 Off. Gaz., 1793, etc., declaring certain position to be terminable at the pleasure of the appointing authority
section 2545 Revised Administrative Code; Commonwealth Act Nos. 39, 51, 520, 547 and 592; Republic Acts
Nos. 162, 170, as amended; 179, as amended; 183, 288, as amended; 305, 306, 327, 328, 521, 523, 525, as
amended; 537, and 603) The motion for intervention of the Solicitor General was granted by this Court.
In the meanwhile, the appeal of Juliano A. Alba in said case V-2041, was given due course and reached this
Court. In this instance the parties have already filed their respective briefs and the case was submitted for
decision at the hearing held on August 3, 1956.
Appellant's counsel maintains that the trial Court erred:
1. In predicating its decision on the mistaken assumption that the petitioner-appellee belongs to the
unclassified civil service, an assumption which begs the very issue; whether the vice-mayor of Roxas City
belongs to the unclassified service as claimed by the petitioner-appellee;
2. In not declaring without the necessity of making a pronouncement of its validity, that section 8 of Republic
Act 603 was precisely intended by the Congress to exclude the office of vice-mayor of Roxas City from persons
belonging to the unclassified service under section 671 of the Revised Administrative Code, as amended;
3. In not declaring that in the case of Jover vs. Borra (49 Off. Gaz., 2767) the Supreme Court passed upon the
validity of section 8 of Republic Act No. 603;
4. In holding that the office of vice-mayor of Roxas City is neither primarily confidential nor policy-determining,
and
5. In not holding that section 8 of Republic Act No. 603 is a valid exercise of the broad legislative powers vested
in the Congress of the Philippines by our Constitution.
As the petition for certiorari was admitted and given due course by this Court and the writ of preliminary
injunction prayed for was issued, We shall confine ourselves to the statement that appeal from a decision of
the Court of First Instance in quo warranto proceedings is perfected by the mere presentation of the notice of
appeal (section 16 and 17, Rule 41 of the Rules of Court), and from that moment "the trial court losses its
jurisdiction over the case, except to issue orders for the protection and preservation of the rights of the
parties which do not involve any matter litigated by the appeal, and to approve compromises offered by the
parties prior to the transmittal of the record on appeal (which is not required in cases of quo warranto) to the
appellate court" (section 9, Rule 41 of the Rules of Court). Hence, in the case at bar, the trial court had no
jurisdiction to provide for the issuance of the writ for the advanced execution of its judgment, as it did by
order of February 18, 1956 (Annex E). Consequently, We have to declare that said order is null and void and
of no force and effect and to make permanent the writ of preliminary injunction We have issued at the
instance of the herein petitioner.
We will now consider the merits of respondent's appeal in case G.R. No. L-10433. The solution of the
controversy hinges on the main question at issue, which may be propounded as follows:
Section 8 of Republic Act No. 603 creating the City of Roxas provides that the Vice-Mayor shall be appointed
by the President of the Philippines with the consent of the Commission on Appointments and shall hold office
at the pleasure of the President. In view of this provision of the law, could the President of the Philippines
legally replace respondent Vivencio C. Alajar, with or without cause, by petitioner Juliano A. Alba?
Vivencio C. Alajar and judge Jose D. Evangelista maintain of course the negative side alleging that in the case
of De los Santos vs. Mallare, 48 Off. Gaz., 1791, a similar provision of the Administrative Code which
prescribed:
Sec. 2545. Appointment of City Officials. The President of the Philippines shall appoint, with the consent of
the Commission on Appointments of the Congress of the Philippines, the mayor, the vice-mayor . . . and he
may REMOVE at pleasure any of the said officers . . .,
has been declared incompatible with the constitutional inhibitation that "no officer or employee in the Civil
Service shall be removed or suspended except for cause as provided by law", because the two provisions are
mutually repugnant and absolutely irreconcilable. In express terms, one permits what the other in similar
manner prohibits. And the Supreme Court then said "that the particular provisions of law (section 2545 of the
Revised Administrative Code) which gives the Chief Executive power to remove an officer at pleasure (though
not unconstitutional) have been repealed by the Constitutional and ceased to be operative from the time the
latter went into effect."
On the other hand, the Solicitor General in his reply memorandum considers the matter from different angle.
The view expressed by him therein refer to the tenure of office of public officials. We quote from said
memorandum the following:
A public office is the right, authority and duty, created and conferred by law, by which for a given period, either
fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of
the sovereign function of government, to be exercised by him for the benefit of the public. The individual so
invested is a public officer (7 Mechem, Public Officers, section 1).
The question is whether an officer appointed for a definite time or during good behaviour, had any vested
interest or contract right in his office, of which Congress could not deprive him. The question is not novel.
There seems to be but little difficulty in deciding that there was no such interest or right (Grenshaw vs. United
States, 134, U.S. 99, 104).
xxx xxx xxx
Admittedly, the act of Congress in creating a public office, defining its powers, functions and fixing the "term"
or the period during which the officer may claim to hold the office as of right and the "tenure" or the term
during which the incumbent actually holds the office, is a valid and constitutional exercise of legislative power
(Article VI, section 1, Constitution of the Philippines; Jover vs. Borra, G.R. No. L-6782, July 25, 1953;
Nueno vs. Angeles, 76 Phil., 12; Francia vs. Pecson and Subido, 47 Off, Gaz., 12 Supp. p. 296). In the exercise
of the power, Congress enacted Republic Act No. 603 on April 11, 1951, creating the City of Roxas and
providing, among others for the position of Vice-Mayor and its tenure or period during which the incumbent
Vice-Mayor holds office at the pleasure of the President (section 8, article II, Republic Act No. 603).
In Jover vs. Borra, supra, this Court through Mr. Justice Padilla, held that:
The legislative intent to provide for a fixed period of office tenure for the Mayor of the City of Iloilo and not to
make him removable at the pleasure of the appointing authority may be inferred from the fact that whereas
the appointment of the Vice-Mayor of the same city, as provided for in an amendatory act (Republic Act No.
365), and those of the Mayors and Vice-Mayor of other cities (section 2545, Rev. Adm. Code; Commonwealth
Acts Nos. 39, 51, 338, 520, 547 and 592; Republic Acts Nos. 162, 170, as amended, 179, as amended; 183, 288,
as amended; 305, 306, 327, 328, 521, 523, 525, as amended; 537 and 603) are at pleasure, that of the Mayor
of the City of Iloilo is for a fixed period of time, as provided for in the original charter (Commonwealth Act No.
57), and in this continued unchanged despite subsequent amendatory acts (Commonwealth Act No. 158;
Republic Act Nos. 276 and 365).
So, the logical inference from the above quoted excerpt of the decision of this Court promulgated long after
the decision rendered in the case of De los Santos vs. Mallare, supra, is that Congress can legally and
constitutionally make the tenure of certain officials dependent upon the pleasure of the President.
xxx xxx xxx
The pervading error of the respondents lies in the fact that they insist on the act of the President in designating
petitioner Alba in the place of respondent Alajar as one of removal. The replacement of respondent Alajar is
not removal, but an expiration of its tenure, which is one of the ordinary modes of terminating official
relations. On this score, section 2545 of the Revised Administrative Code which was declared inoperative in
the Santos vs. Mallare case, is different from section 8 of Republic Act No. 603, Section 2545 refers
to removal at pleasure while section 8 of Republic Act No. 603 refers to holding office at the pleasure of the
President.
Clearly, what is involved here is not the question of removal, or whether legal cause should precede or not
that removal. What is involved here is the creation of an office and the tenure of such office, which has been
made expressly dependent upon the pleasure of the President.
The cases relied upon by respondents are, therefore, inopposite to the instant proceedings. For all of them
relate to removal of officials in violation of laws which prescribed fixity of term.
Even assuming for the moment that the act of replacing Alajar constitute removal, the act itself is valid and
lawful, for under section 8 of Republic Act No. 603, no fixity of tenure has been provided for, and the pleasure
of the President has been exercised in accordance with the policy laid down by Congress therein.
"Thus, in Lacson vs. Roque (49 Off. Gaz., 93, 101-102), this Court made clear that:
The most liberal view that can be taken of the power of the President to remove the Mayor of the City of
Manila is that it must be for cause. Even those who would uphold the legality of the Mayor's suspension do
not go so far as to claim power in the Chief Executive to remove the Mayor at pleasure. Untramelled
discretionary power to remove does not apply to appointed officers whose term of office is definite, much less
elective officers. As has been pointedly stated: "Fixity of tenure destroy the power of removal at pleasure
otherwise incident to the appointing power; the reason of this rule is the evident repugnance between the
fixed term and the power of arbitrary removal. . . .
An inferential authority to remove at pleasure cannot be declared, since the existence of a defined term, ipso
facto, negatives such an inference, and implies a contrary presumption, i.e., that the incumbent shall hold
office to the end of his term subject to removal for cause. (State ex rel. Gallaghar vs. Brown, 57 Mo. Ap., 302,
expressly adopted by the Supreme Court in State ex rel. vs. Maroney, 191 Mo., 548; etc.)
It is only in those cases in which the office is held at the pleasure of the appointing power and where the power
of removal is exercisable at its mere discretion, that the officer may be removed without notice or hearing.
"Thus, in Jover vs. Borra, supra, the same rule was reiterated:
The legislative intent to provide for a fixed period of office tenure for the Mayor of the City of Iloilo and not to
make him removable at the pleasure of the appointing authority may be inferred from the fact that whereas
the appointment of the Vice-Mayor of the same city, as provided for in an amendatory act (Republic Act No.
365), and those of the Mayors and Vice-Mayor of other cities (section 2545, Revised Administrative Code;
Commonwealth Acts Nos. 39, 51, 338, 520, 547 and 592; Republic Acts Nos. 162; 170, as amended; 179, as
amended; 183, 288, as amended; 305; 306; 327; 328; 521; 523; 525, as amended; 537; and 603) are at
pleasure, that of the Mayor of the City of Iloilo is for a fixed period of time, as provided for in the original
charter (Commonwealth Act No. 57), and this continued unchanged despite subsequent amendatory acts
(Commonwealth Act No. 158; Republic Acts Nos. 276 and 365).
It is an established rule that when the law authorizes a superior officer to remove a subordinate at pleasure
his discretion in the exercise of the power of removal is absolute. As long as the removal is effected in
accordance with the procedure prescribed by law, it may not be declared invalid by the courts, no matter how
reprehensible and unjust the motives of the removal might be (State vs. Kennelly, 55 Atl. 555).
For respondent judge to ignore these judicial doctrines brought to his attention by petitioner Alba even during
the quo warranto proceedings and in the face of their impressive clarity to rashly resolve his doubt against the
constitutionality of section 8 of Republic Act No. 603 is to exert his discretion with the greatest measure of
abuse as to amount to lack of jurisdiction (Abad Santos, vs. Tarlac, 38 Off. Gaz., 830).
After all the foregoing circumstances are found to be present, it must be shown that the statute violates the
constitution clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation in the mind of the
court (Sharpless vs. Mayor, 21 Pa. 147). The court presume that every statute is valid. This presumption is
based upon the theory of separation of powers which makes the enactment and repeal of laws exclusively a
legislative function. As Chief Justice Marshall said: "It is but a decent respect due to the wisdom, the integrity,
and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until
its violation of the constitution is proved beyond all reasonable doubt." (Darmouth College vs. Woodward, 4
Wheat, 625.)
It should be remembered in this connection that before a legislature passes a bill, it is presumed that it has
decided the measure to be constitutional; and when the executive approves that bill it is also presumed that
he has been convinced of its validity. Under these conditions, therefore, if a statute is reasonably suspectible
of two interpretations, one making it unconstitutional and other valid, it is the duty of the court to adopt the
second construction in order to save the measure. (U.S. vs. Delaware & Hudson Co., 213 U.S. 366.) Sinco,
Philippine Political Law, 10 ed., pp. 525-526; Emphasis supplied.
We certainly agree with the foregoing views of the Solicitor General because they constitute a clear and fair
exposition of the law on the matter. Anyway, the provision of Section 8 of Republic Act No. 603 empowering
the President of the Philippine to appoint, with the consent of the Commission on Appointments, the Vice-
Mayor of Roxas City, the latter to hold office at the pleasure of the President, can not by any stench of
imagination he considered unconstitutional and void.
WHEREFORE, on the strenght of the foregoing considerations, and upon declaring the order of the Court of
February 18, 1956 (Annex E) null and void and of no effect and upon making permanent the writ of preliminary
injunction issued by this Court in the present case, We hereby dismiss the quo warranto proceedings, for
respondent Vivencio C. Alajar has no right to continue occupying the office of Vice-Mayor of Roxas City after
the President of the Philippines, in the exercise of his power of allowing said respondent to hold office at his
pleasure, displaced him from said office and designated petitioner Juliano A. Alba as Acting Vice-Mayor of said
City. Costs in both cases are taxed against Vivencio C. Alajar.
G.R. No. L-30057 January 31, 1984
BRUNO O. APARRI, petitioner,
vs.
THE COURT OF APPEALS.
Enrique D. Tayag for petitioner.
Magno B. Pablo and Cipriano A. Tan for respondent Land Authority.
MAKASIAR, J.:
This petition for certiorari seeks to review the decision of the then Court of Appeals (now Intermediate
Appellate Court under BP 129) dated September 24, 1968, affirming the decision of the then Court of First
Instance (now Regional Trial Court), the dispositive portion of which is as follows:
WHEREFORE, the judgment of the lower court insofar as it decrees the dismissal of the present petition for
mandamus is hereby affirmed, without pronouncement as to costs (p. 50, rec.).
The facts of the case are as follows:
On January 15, 1960, private respondents (as members of the Board of Directors of the defunct National
Resettlement and Rehabilitation Administration created under Republic Act No. 1160, approved June 18, 1954
NARRA) approved the following resolution:
RESOLUTION NO. 13 (Series of 1960)
RESOLVED, as it is hereby resolved, to appoint Mr. Bruno 0. Aparri, as General Manager of the National
Resettlement and Rehabilitation Administration (NARRA) with all the rights, prerogatives and compensation
appurtenant thereto to take effect on January 16, 1960);
RESOLVED FURTHER, as it is hereby resolved, to inform the President of the Philippines of the above
appointment of Mr. Aparri (p. 2, rec.).
Pursuant thereto, private respondent Remedies O. Fortich, in her capacity as Chairman of the NARRA Board,
appointed petitioner Bruno O. Aparri as reflected in the following letter:
Manila, January 22, 1960
Mr. Bruno O. Aparri c/o NARRA, Manila
SIR:
You are hereby appointed as GENERAL MANAGER in the National Resettlement and Rehabilitation
Administration (NARRA) with compensation at the rate of TWELVE THOUSAND (P12,000.00) PESOS per annum
the appointment to take effect January 16,1960 . . . . REINSTATEMENT ... (p. 2, rec.).
The power of the Board of Directors of the NARRA to appoint the general manager is provided for in paragraph
(2),Section 8, Republic Act No. 1160 (approved June 18, 1954), to wit:
Sec. 8. Powers and Duties of the Board of Directors. The Board of Directors shall have the following powers
and duties: ...
2) To appoint and fix the term of office of General Manager ..., subject to the recommendation of the Office of
Economic Coordination and the approval of the President of the Philippines, .... The Board, by a majority vote
of all members, may, for cause, upon recommendation of the Office of Economic Coordination and with the
approval of the President of the Philippines, suspend and/or remove the General Manager and/or the
Assistant General Manager (p. 46, rec., emphasis supplied).
On March 15, 1962, the same Board of Directors approved the following resolution:
RESOLUTION NO. 24 (Series of 1962)
WHEREAS, the Chairman of the Board has transmitted to the Board of Directors the desire of the Office of the
President Malacanang, Manila, to fix the term of office of the incumbent General Manager up to the close of
office hours on March 31, 1962, in accordance with the provision of Section 8, sub-section 2 of R.A. No. 1160;
NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, that the Board of Directors hereby fix, as it is
hereby fixed, the term of office of the incumbent General Manager of the National Resettlement and
Rehabilitation Administration (NARRA) to March 31, 1962 (pp. 6-7, rec., emphasis supplied).
Petitioner filed a petition for mandamus with preliminary injunction with the then Court of First Instance of
Manila on March 29, 1962. The petition prayed to annul the resolution of the NARRA Board dated March 15,
1962, to command the Board to allow petitioner to continue in office as General Manager until he vacates said
office in accordance with law and to sentence the private respondents jointly and severally to pay the
petitioner actual damages in the sum of P95,000.00, plus costs.
On August 8, 1963, when the case was still pending decision in the lower court, Republic Act No. 3844,
otherwise known as the Agricultural Land Reform Code, took effect. The said law abolished the NARRA (Sec.
73, R.A. 3844) and transferred its functions and powers to the Land Authority. On October 21, 1963, the then
Court of First Instance of Manila rendered judgment, finding "that this case has become academic by reason
of the approval of the Agricultural Land Reform Code (Republic Act No. 3844) and thereby dismissing the
instant petition without pronouncement as to costs" (p. 5, rec.).
On appeal to the then Court of Appeals, the appellate tribunal speaking through then Mr. Justice Antonio C.
Lucero, affirmed the decision of the lower court. in dismissing the petition for mandamus. Pertinent provisions
of the decision are as follows:
xxx xxx xxx
In the light of the foregoing facts, it is evident that Bruno O. Aparri accepted the position of General Manager
without fixed term and his appointment is, in essence, terminable at the pleasure of the appointing power
which, in this case, is the Board of Directors. Where, as in the case at bar, the appointing officer, that is, the
Board of Directors, had fixed the term of office of the incumbent Manager to end on March 31, 1962, the
replacement of Bruno O. Aparri is not removal but by reason of the term of his office which is one of the
recognized modes of terminating official relations. Considering that the term of office of the General Manager
of the NARRA is not fixed by law nor has it been fixed by the Board of Directors at the time of his appointment
although it had the power to do so, it is obvious that the term of office of herein petitioner Bruno O. Aparri
expired on March 31, 1962 and his right to hold the said office was thereby extinguished. In other words, Bruno
O. Aparri cessation from office invokes no removal but merely the expiration of the term of office which was
within the power of the Board of Directors to fix. Hence, Bruno O. Aparri continues only for so long as the term
of his office has not ended (Alba vs. Hon. Jose N. Evangelists, 100 Phil. 683) [Decision of the Court of Appeals,
pp. 48-49, rec., emphasis supplied].
The motion for reconsideration by petitioner in the then Court of Appeals was denied on January 10, 1969.
On January 20, 1969, the petitioner filed a petition for certiorari to review the decision of the then Court of
Appeals dated September 24, 1968 (pp. 1-41, rec.). The same was initially denied for lack of merit in a
resolution dated January 27, 1969 (p. 55, rec.); but on motion for reconsideration filed on February 11, 1969,
the petition was given due course (p. 66, rec.).
The only legal issue sought to be reviewed is whether or not Board Resolution No. 24 (series of 1962) was a
removal or dismissal of petitioner without cause.
WE affirm. WE hold that the term of office of the petitioner expired on March 31, 1962.
A public office is the right, authority, and duty created and conferred by law, by which for a given period, either
fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of
the sovereign functions of the government, to be exercise by him for the benefit of the public ([Mechem Public
Offices and Officers,] Sec. 1). The right to hold a public office under our political system is therefore not a
natural right. It exists, when it exists at all only because and by virtue of some law expressly or impliedly
creating and conferring it (Mechem Ibid., Sec. 64). There is no such thing as a vested interest or an estate in
an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special
immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary (42
Am. Jur. 881).
The National Resettlement and Rehabilitation Administration (NARRA) was created under Republic Act No.
1160 (approved June 18,1954), which provides that:
Sec. 2. NATIONAL RESETTLEMENT AND REHABILITATION ADMINISTRATION ... there is hereby created a
corporation to be known as National Resettlement and Rehabilitation Administration hereafter referred to as
"NARRA" to perform under the supervision and control of the President of the Philippines, through the Office
of Economic Coordinator all the duties and functions of the Bureau of Lands as provided for in Commonwealth
Act numbered Six Hundred and Ninety-one, as amended, and such other duties as are hereinafter specified in
this Act. It shall be headed by a General Manager and an Assistant Manager who shall be appointed as
hereinafter provided (emphasis supplied).
Paragraph 2, Section 8 of Republic Act 1160 expressly gives to the Board of Directors of the NARRA the power
"to appoint and fix the term of office of the general manager ... subject to the recommendation of Economic
Coordination and the approval of the President of the Philippines" (emphasis supplied).
By "appointment" is meant the act of designation by the executive officer, board or body, to whom that power
has been delegated, of the individual who is to exercise the functions of a given office (Mechem op. cit., Sec.
102). When the power of appointment is absolute, and the appointee has been determined upon, no further
consent or approval is necessary, and the formal evidence of the appointment, the commission, may issue at
once. Where, however, the assent or confirmationof some other officer or body is required, the Commission
can issue or the appointment is complete only when such assent or condition is obtained (People vs. Bissell,
49 Cal. 407). To constitute an "appointment" to office, there must be some open, unequivocal act of
appointment on the part of the appointing authority empowered to make it, and it may be said that an
appointment to office is made and is complete when the last act required of the appointing authority has been
performed (Molnar vs. City of Aurora, 348 N.E. 2d 262, 38 III App. 3d 580). In either case, the appointment
becomes complete when the last act required of the appointing power is performed (State vs. Barbour, 53
Conn. 76, 55 Am. Rep. 65).
The petitioner was appointed as general manager pursuant to Resolution No. 13 (series of 1960 approved
on January 15, 1960) of the Board of Directors. A careful perusal of the resolution points out the fact that the
appointment is by itself incomplete because of the lack of approval of the President of the Philippines to such
appointment. Thus, We note that Resolution No. 13 states:
xxx xxx xxx
... RESOLVED FURTHER, as it is hereby resolved, to inform the President of the Philippines of the above
appointment of Mr. Aparri (p. 2, rec.).
Presumably, the Board of Directors of the NARRA expected that such appointment be given approval by the
then President. Lacking such approval by the President as required by the law (par. 2, Sec. 8 of R.A. 1160), the
appointment of petitioner was not complete. The petitioner can, at best, be classified as a de facto officer
because he assumed office "under color of a known appointment or election, void because the officer was not
eligible or because there was a want of power in the electing body, or by reasons of some defect or irregularity
in its exercise, such ineligibility, want of power, or defect being unknown to the public" (State vs. Carroll, 38
Conn. 449, 9Am. Rep. 409).
However, such appointment was made complete upon approval of Resolution No. 24 (series of 1962-approved
March 15, 1962) wherein the President submitted to the Board his "desire" to fix the term of office of the
petitioner up to the close of office hours on March 31, 1962. The questioned resolution corrected whatever
requisite lacking in the earlier Resolution No. 13 of the respondent Board. Resolution No. 24, approved by the
respondent Board and pursuant to "the desire of the President" legally fixed the term of office of petitioner
as mandated by paragraph 2, Section 8 of Republic Act 1160.
The word "term" in a legal sense means a fixed and definite period of time which the law describes that an
officer may hold an office (Sueppel vs. City Council of Iowa City, 136 N.W. 2D 523, quoting 67 CJS OFFICERS,
secs. 42, 54[1]). According to Mochem, the term of office is the period during which an office may be held.
Upon the expiration of the officer's term, unless he is authorized by law to hold over, his rights, duties and
authority as a pubic officer must ipso facto cease (Mechem, op. cit., Secs. 396-397). In the law on Public
Officers, the most natural and frequent method by which a public officer ceases to be such is by the expiration
of the term for which he was elected or appointed. The question of when this event has occurred depends
upon a number of considerations, the most prominent of which, perhaps, are whether he was originally
elected or appointed for a definite term or for a termdependent upon some act or event ... (Mechem op. cit.,
Sec. 384).
It is necessary in each case to interpret the word "term" with the purview of statutes so as to effectuate the
statutory scheme pertaining to the office under examination (Barber vs. Blue, 417 P.2D 401, 51 Cal. Rptr. 865,
65 C.2d N5). In the case at bar, the term of office is not fixed by law. However, the power to fix the term is
vested in the Board of Directors subject to the recommendation of the Office of Economic Coordination and
the approval of the President of the Philippines. Resolution No. 24 (series of 1962) speaks of no removal but
an expiration of the term of office of the petitioner. The statute is undeniably clear. It is the rule in statutory
construction that if the words and phrase of a statute are not obscure or ambiguous, its meaning and the
intention of the legislature must be determined from the language employed, and, where there is no
ambiguity in the words, there is no room for construction (Black on Interpretation of Laws, Sec. 51). The courts
may not speculate as to the probable intent of the legislature apart from the words (Hondoras vs. Soto, 8 Am.
St., Rep. 744). The reason for the rule is that the legislature must be presumed to know the meaning of words,
to have used words advisedly and to have expressed its intent by the use of such words as are found in the
statute (50 Am. Jur. p. 212).
Removal entails the ouster of an incumbent before the expiration of his term (Manalang vs. Quitoriano, 50
O.G. 2515). The petitioner in this case was not removed before the expiration of his term. Rather, his right to
hold the office ceased by the expiration on March 31, 1962 of his term to hold such office.
WHEREFORE, THE DECISION APPEALED FROM IS HEREBY AFFIRMED. WITHOUT COSTS.
SO ORDERED.
G.R. No. 140717 April 16, 2009
ANNIE L. MANUBAY, ANNE MARIE L. MANUBAY, JAMES JOHN L. MANUBAY, JAMES FRANCIS L. MANUBAY,
ANNE MARGARETH L. MANUBAY and MANUBAY AGRO-INDUSTRIAL DEVELOPMENT CORP., INC.
represented by ATTY. JAIME A. MANUBAY, Petitioners,
vs.
HON. ERNESTO D. GARILAO, in his capacity as the Secretary of the Department of Agrarian
Reform,Respondent.
RESOLUTION
CORONA, J.:
At the heart of this controversy is a 124-hectare land in Barrio Cadlan, Pili, Camarines Sur owned by petitioners
Annie, Anne Marie, James John, James Francis and Anne Margareth (all surnamed Manubay)1 and Manubay
Agro-Industrial Development Corporation.2
On November 15, 1994, the Municipal Agrarian Reform Officer (MARO) of Pili issued a notice of coverage
placing the property under the comprehensive agrarian reform program (CARP). 3 Petitioners did not protest
the notice.
On July 1, 1996, petitioners filed an application at the Department of Agrarian Reform (DAR) for conversion of
the property from agricultural to residential.4
On August 26, 1996, the Sangguniang Bayan of Pili passed Resolution No. 145 approving the Comprehensive
Zoning Ordinance of 1996 of the Municipality of Pili, Camarines Sur.5 The ordinance reclassified the subject
property from agricultural to highly urbanized intended for mixed residential and commercial use.6
Thereafter, petitioners requested DAR Regional Director Percival C. Dalugdug to set aside the November 15,
1994 notice of coverage. They pointed out that the land had been reclassified and the property was no longer
suitable for agricultural purposes. Director Dalugdug denied their request in a letter dated November 13,
19967 :
Relative to land conversions, we are guided in our actions by [DAR-Administrative Order (AO)] No. 12, s. 1994
which clearly states that no application for conversions shall be accepted on lands for compulsory acquisition
already given notices of coverage. Applications may only be accepted if the notice of coverage has been lifted
for one reason or another.
xxxxxxxxx
Please note that your properties have already been issued notices of coverage by the MARO of Pili last
November 15, 1994 which is almost two years prior to your submission of the application for conversion. To
reiterate, for us to entertain your application, you must first have these notices lifted whether because of
retention or exemption. Since the basis of your claims of exemption (i.e., not yet covered per instruction by
the Secretary, and reclassification under the Pili land use plan) are not valid, we are sorry to inform you that
we can no longer entertain your application. (emphasis supplied)
Respondent Ernesto Garilao, then DAR Secretary, upheld Director Dalugdug and denied petitioners
application for conversion, considering that the property had already been placed under the CARP.8
Aggrieved, petitioners separately asked respondent to reconsider. They insisted that, because the MARO
issued a notice of coverage, not a notice of acquisition, their application for conversion should have been
approved. The motions were denied.9
On April 28, 1998, petitioners filed a petition for certiorari in the Court of Appeals (CA) assailing the denial of
their application for conversion.10 They averred that respondent acted with grave abuse of discretion when he
denied their application. According to them, the issuance of a mere notice of coverage placing agricultural
land under the CARP was not a ground for the denial of such application.
In a resolution dated June 1, 1999, the CA dismissed the petition.11 DAR-AO No. 7, s. 199712 provides that the
decision of the DAR Secretary may be appealed either to the Office of the President (OP) or to the CA.
Considering that the issue raised by petitioners involved the administrative implementation of the CARP, the
OP was more competent to rule on the issue. Moreover, by failing to bring the matter to the said office,
petitioner did not exhaust all available administrative remedies before resorting to a petition for certiorari.
Petitioners moved for reconsideration but it was denied.13 Hence, this recourse.
Petitioners contend that the CA erred in dismissing the petition for certiorari as they did not violate the rule
on exhaustion of administrative remedies. The act of a department secretary may be directly challenged in a
petition for certiorari.
We dismiss the petition.
Under the doctrine of qualified political agency, department secretaries are alter egos or assistants of the
President and their acts are presumed to be those of the latter unless disapproved or reprobated by
him.14 Thus, as a rule, an aggrieved party affected by the decision of a cabinet secretary need not appeal to
the OP and may file a petition for certiorari directly in the Court of Appeals assailing the act of the said
secretary.15
Section 1 of Rule 65 of the Rules of Court provides that, for a petition for certiorari to prosper, petitioner must
show (1) the public respondent acted without or in excess of his jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction and (2) there is no appeal or a plain, speedy and adequate remedy
in the ordinary course of law.
In a petition for certiorari premised on grave abuse of discretion, it must be shown that public respondent
patently and grossly abused his discretion and that such abuse amounted to an evasion of positive duty or a
virtual refusal to perform a duty enjoined by law or to act at all in contemplation of law. In other words, the
public respondent exercised his power arbitrarily and despotically by reason of passion or hostility.16
Here, inasmuch as respondent had a valid ground to deny petitioners application, he did not commit grave
abuse of discretion.1avvphi1
Furthermore, DAR-AO No. 7, s. 1997 requires an appeal (of the denial of application of conversion) to the OP.
It was the plain, speedy and adequate remedy contemplated by Section 1 of Rule 65.
Needless to state, elevating the matter to the OP was consistent with the doctrine of exhaustion of
administrative remedies. A party aggrieved by an order of an administrative official should first appeal to the
higher administrative authority before seeking judicial relief. Otherwise, as in this case, the complaint will be
dismissed for being premature or for having no cause of action.17
WHEREFORE, the June 1, 1999 and November 4, 1999 resolutions of the Court of Appeals in CA-G.R. SP No.
47244 are hereby AFFIRMED.
G.R. No. 168613 March 5, 2013
ATTY. MA. ROSARIO MANALANG-DEMIGILLO, Petitioner,
vs.
TRADE AND INVESTMENT DEVELOPMENT CORPORATION OF THE PHILIPPINES (TIDCORP), and its BOARD
OF DIRECTORS, Respondents.
BERSAMIN, J.:
A reorganization undertaken pursuant to a specific statutory authority by the Board of Directors of a
government-owned and government-controlled corporation is valid.
Antecedents
On February 12, 1998, the Philippine Export and Foreign Loan Guarantee was renamed Trade and Investment
Development Corporation of the Philippines (TIDCORP) pursuant to Republic Act No. 8494 entitled An Act
Further Amending Presidential Decree No. 1080, As Amended, by Reorganizing And Renaming the Philippine
Export and Foreign Loan Guarantee Corporation, Expanding Its Primary Purpose, and for Other Purposes.
Republic Act No. 8494 reorganized the structure of TIDCORP. The issuance of appointments in accordance
with the reorganization ensued. Petitioner Rosario Manalang-Demigillo (Demigillo) was appointed as Senior
Vice President (PG 15) with permanent status, and was assigned to the Legal and Corporate Services
Department (LCSD) of TIDCORP.
In 2002, TIDCORP President Joel C. Valdes sought an opinion from the Office of the Government Corporate
Counsel (OGCC) relative to TIDCORPs authority to undertake a reorganization under the law, whose Section
7 and Section 8 provide as follows:
Section 7. The Board of Directors shall provide for an organizational structure and staffing pattern for officers
and employees of the Trade and Investment Development Corporation of the Philippines (TIDCORP) and upon
recommendation of its President, appoint and fix their remuneration, emoluments and fringe benefits:
Provided, That the Board shall have exclusive and final authority to appoint, promote, transfer, assign and re-
assign personnel of the TIDCORP, any provision of existing law to the contrary notwithstanding. x x x
Section 8. All incumbent personnel of the Philippine Export and Foreign Loan Guarantee Corporation shall
continue to exercise their duties and functions as personnel of the TIDCORP until reorganization is fully
implemented but not to exceed one (1) year from the approval of this Act. The Board of Directors is authorized
to provide for separation benefits for those who cannot be accommodated in the new structure. All those who
shall retire or are separated from the service on account of the reorganization under the preceding Section
shall be entitled to such incentives, as are authorized by the Corporation, which shall be in addition to all
gratuities and benefits to which they may be entitled under existing laws.
In Opinion No. 221 dated September 13, 2002,1 then Government Corporate Counsel Amado D. Valdez opined
as follows:
There is no question on the power of the PhilEXIM (also known as TIDCORP) Board of Directors to undertake
a reorganization of the corporations present organizational set-up. In fact, the authority to provide for the
corporations organizational structure is among the express powers granted to PhilEXIM through its Board.
As to the one-year period to implement a reorganization mentioned in Section 8 of RA 8494, it is our
considered opinion that the same provision refers to the initial reorganization to effect transition from the
Philippine Export and Foreign Loan Guarantee Corporation (Philguarantee) to what is now known as the Trade
and Investment Corporation of the Philippines (TIDCORP). The one-year period does not, however, operate as
a limitation that any subsequent changes in the organizational set-up pursuant to the authority of the Board
to determine the corporations organizational structure under Section 7 of RA 8494, which is designed to make
the corporation more attuned to the needs of the people or, in this case, the sector of the Philippine economy
that it serves, can only be made during the same one-year period.
On the basis of OGCC Opinion No. 221, the Board of Directors passed Resolution No. 1365, Series of 2002, on
October 22, 2002 to approve a so-called Organizational Refinement/Restructuring Plan to implement a new
organizational structure and staffing pattern, a position classification system, and a new set of qualification
standards.
During the implementation of the Organizational Refinement/Restructuring Plan, the LCSD was abolished.
According to the List of Appointed Employees under the New Organizational Structure of TIDCORP as of
November 1, 2002, Demigillo, albeit retaining her position as a Senior Vice President, was assigned to head
the Remedial and Credit Management Support Sector (RCMSS). On the same date, President Valdes issued her
appointment as head of RCMSS, such appointment being in nature a reappointment under the reorganization
plan.
On December 13, 2002, President Valdes issued a memorandum informing all officers and employees of
TIDCORP that the Board of Directors had approved on December 11, 2002 the appointments issued pursuant
to the newly approved positions under the Organizational Refinement/Restructuring Plan.
In her letter dated December 23, 2002 that she sent to TIDCORP Chairman Jose Isidro Camacho, however,
Demigillo challenged before the Board of Directors the validity of Resolution No. 1365 and of her assignment
to the RCMSS. She averred that she had been thereby illegally removed from her position of Senior Vice
President in the LCSD to which she had been previously assigned during the reorganization of July 1998. She
insisted that contrary to OGCC Opinion No. 221 dated September 13, 2002 the Board of Directors had not
been authorized to undertake the reorganization and corporate restructuring.
On January 31, 2003, pending determination of her challenge by the Board of Directors, Demigillo appealed
to the Civil Service Commission (CSC), raising the same issues.
TIDCORP assailed the propriety of Demigillos appeal to the CSC, alleging that her elevation of the case to the
CSC without the Board of Directors having yet decided her challenge had been improper and a clear case of
forum-shopping.
Later on, however, TIDCORP furnished to the CSC a copy of Board Decision No. 03-002 dismissing Demigillos
appeal for its lack of merit, thereby rendering the question about the propriety of Demigillos appeal moot
and academic. Board Decision No. 03-002 pertinently reads as follows:
Atty. Demigillo failed to show to the Board that she was prejudiced in the implementation of the TIDCORP
organizational refinements/restructuring. She was reappointed to the same position she was holding before
the reorganization. She was not demoted in terms of salary, rank and status. There was a (sic) substantial
compliance with the requirements of RA 6656, particularly on transparency. More importantly, the said
organizational refinements done and adoption of a new compensation structure were made in accordance
with what is mandated under the Charter of the Corporation.
WHEREFORE, foregoing premises considered, the Board decided as it hereby decides to DISMISS the appeal of
Atty. Ma Rosario Demigillo for lack of merit.2
In the meanwhile, by letter dated April 14, 2003, President Valdes informed Demigillo of her poor performance
rating for the period from January 1, 2002 to December 31, 2002, to wit:
After a thorough evaluation/assessment of your job performance for the rating period January 1 to December
21, 2002, it appears that your over-all performance is Poor.
Records show that you consistently behaved as an obstructionist in the implementation of the Corporate
Business Plan. You failed to demonstrate cooperation, respect and concern towards authority and other
members of the company. You also failed to abide by Civil Service and company policies, rules and regulation.
You miserably failed to adapt and respond to changes. You were very resentful to new approaches as shown
by your vehement objection to new improved policies and programs. Instead of helping raise the morale of
subordinate at high levels (sic) and promote career and professional growth of subordinates, you tried to block
such efforts towards this end.
In view of the foregoing and your failure to prove that you have effectively and efficiently performed the
duties, functions and responsibility (sic) of your position, I am constrained to give you a rating of "Poor" for
your 2002 performance.3
On April 28, 2003, Demigillo formally communicated to Atty. Florencio P. Gabriel Jr., Executive Vice President
of the Operations Group, appealing the "poor rating" given her by President Valdes.
In a memorandum dated May 6, 2003, Atty. Gabriel informed Demigillo that he could not act on her appeal
because of her "failure to state facts and arguments constituting the grounds for the appeal and submit any
evidence to support the same."4
On May 6, 2003, President Valdes issued a memorandum to Demigillo stating that he found no justification to
change the poor rating given to her for the year 2002.
On August 12, 2003, Demigillo received a memorandum from President Valdes stating that her performance
rating for the period from January 1, 2003 to June 2003 "needs improvement," attaching the pertinent
Performance Evaluation Report Form that she was instructed to return "within 24 hours from receipt."5
Not in conformity with the performance rating, Demigillo scribbled on the right corner of the memorandum
the following comments: "I do not agree and accept. I am questioning the same. This is pure harassment."
She then appealed the poor performance rating on August 14, 2003, calling the rating a part of Valdes
"unremitting harassment and oppression on her."6
On August 19, 2003, Demigillo reported for work upon the expiration of the 90-day preventive suspension
imposed by the Board of Directors in a separate administrative case for grave misconduct, conduct prejudicial
to the best interest of the service, insubordination and gross discourtesy. In her memorandum of that date,
she informed Atty. Gabriel Jr. of her readiness to resume her duties and responsibilities, but requested to be
allowed to reproduce documents in connection with the appeal of her performance rating. She further
requested that the relevant grievance process should commence.
It appears that the Board of Directors rendered Decision No. 03-003 dated August 15, 2003 unanimously
dropping Demigillo from the rolls.7 Demigillo received the copy of Decision No. 03-003 on August 25, 2003.
Decision of the CSC
On October 14, 2004, the CSC ruled through Resolution No. 0410928 that the 2002 Organizational Refinements
or Restructuring Plan of TIDCORP had been valid for being authorized by Republic Act. No. 6656; that Section
7 of Republic Act No. 8498 granted a continuing power to TIDCORPs Board of Directors to prescribe the
agencys organizational structure, staffing pattern and compensation packages; and that such grant continued
until declared invalid by a court of competent jurisdiction or revoked by Congress.
The CSC held, however, that TIDCORPs implementation of its reorganization did not comply with Section 6 of
Republic Act No. 6656;9 that although there was no diminution in Demigillos rank, salary and status, there
was nonetheless a demotion in her functions and authority, considering that the 2002 reorganization reduced
her authority and functions from being the highest ranking legal officer in charge of all the legal and corporate
affairs of TIDCORP to being the head of the RCMSS reporting to the Executive Vice President and having only
two departments under her supervision; and that the functions of Demigillos office were in fact transferred
to the Operations Group.
The CSC further held that the dropping from the rolls of Demigillo did not comply with the mandatory
requirement under Section 2, particularly 2.2 Rule XII of the Revised Omnibus Rules on Appointments and
Other Personnel Actions Memorandum Circular No. 40, Series of 1998.
Subsequently, TIDCORP reinstated Demigillo to the position of Senior Vice President in RCMSS, a position she
accepted without prejudice to her right to appeal the decision of the CSC.
Ruling of the CA
Both Demigillo and TIDCORP appealed the decision of the CSC to the Court of Appeals (CA). Demigillos appeal
was docketed as CA-G.R. SP No. 87285. On the other hand, TIDCORPs appeal was docketed as CA-G.R. SP No.
87295.
In CA-G.R. SP No. 87285, Demigillo partially assailed the CSCs decision, claiming that the CSC erred: (1) in
holding that Section 7 of Republic Act No. 8494 granted the Board of Directors of TIDCORP a continuing power
to reorganize; (2) in holding that the 2002 TIDCORP reorganization had been authorized by law; and (3) in not
holding that the 2002 TIDCORP reorganization was void ab initio because it was not authorized by law and
because the reorganization did not comply with Republic Act No. 6656.10
In CA-G.R. SP No. 87295, TIDCORP contended that the CSC erred: (1) in ruling that Demigillo had been demoted
as a result of the 2002 TIDCORP reorganization; and (2) in ruling that TIDCORP had failed to observe the
provisions of Section 2, particularly 2.2 Rule XII of the Revised Omnibus Rules on Appointments and Other
Personnel Actions (Memorandum Circular No. 40, Series of 1998) on dropping from the rolls, to the prejudice
of Demigillos right to due process.11
On June 27, 2005, the CAs Fourth Division promulgated its decision in CAG.R. SP No. 87285,12 which, albeit
affirming the ruling of the CSC, rendered a legal basis different from that given by the CSC, to wit:
In numerous cases citing Section 20 and Section 31, Book III of Executive Order No. 292, otherwise known as
the Administrative Code of 1987, the Supreme Court ruled in the affirmative that the President of the
Philippines has the continuing authority to reorganize the administrative structure of the Office of the
President.
Hence, being the alter ego of the President of the Philippines, the Board of Directors of the private respondent-
appellee is authorized by law to have a continuous power to reorganize its agency.13
Anent Demigillos contention that the 2002 reorganization effected was invalid, the CA ruled:
x x x. In this jurisdiction, reorganizations have been regarded as valid provided they are pursued in good faith.
Reorganization is carried out in good faith if it is for the purpose of economy or to make bureaucracy more
efficient.
In the case at bench, it is our considered opinion that except for her allegations, the petitioner-appellant
(Demigillo) failed to present sufficient evidence that the reorganization effected in 2002 did not bear the
earmarks of economy and efficiency. Good faith is always presumed.14
The CA held that Demigillo could not be reinstated to her previous position of Senior Vice President of the
LCSD in view of the legality of the 2002 reorganization being upheld.15
With respect to CA-G.R. SP No. 87295, the CAs Special Former Thirteenth Division promulgated a decision on
November 28, 2008,16 denying TIDCORPs appeal, and holding that Demigillo had been demoted and invalidly
dropped from the rolls by TIDCORP, explaining:
We do not need to stretch Our imagination that respondent Demigillo, one of the highest ranking officers of
the corporation, was indeed demoted when she was designated to be the head of merely one sector. She may
have retained her title as SVP, but she was deprived of the authority she previously enjoyed and stripped of
the duties and responsibilities assigned to her under the Legal and Corporate Services. In utter disregard of
respondent Demigillos right to security of tenure, petitioner TIDCORP demoted her in the guise of
"reorganization."
xxxx
Next, petitioner TIDCORP asserts that respondent Demigillo was legally dropped from the rolls. This is a
delirious supposition which does not deserve merit at all.
xxxx
Petitioner TIDCORP did not bother to adduce proof that it complied with the rudiments of due process before
dropping Demigillo from the rolls. She was not given the chance to present evidence refuting the contentious
ratings as her employer refused to discuss how it arrived at such assessment. Her unceremonious dismissal
was made even more apparent as she was never advised of the possibility that she may be separated from
service if her rating would not improve for the next evaluation period.17
Issues
Demigillo filed before this Court a petition for review on certiorari assailing the CA decision in CA-G.R. SP No.
87285 (G.R. No. 168613), asserting that the CA gravely erred: (1) in holding that the Board of Directors of
TIDCORP was an alter ego of the President who had the continuing authority to reorganize TIDCORP; and (2)
in holding that the reorganization of TIDCORP effected in 2002 was valid considering her alleged failure to
present evidence sufficiently showing that the reorganization did not bear the earmarks of economy and
efficiency.18 Corollarily, she sought her reinstatement to a position comparable to her former position as
Senior Vice President in the LCSD.19
Likewise, TIDCORP appealed through a petition for review on certiorari, praying for the reversal of the decision
promulgated in CA-G.R. SP No. 87295 (G.R. No. 185571), contending that the CA erred: (1) in ruling that
Demigillo had been demoted as a result of the TIDCORP 2002 reorganization; and (2) in ruling that Demigillo
had not been legally dropped from the rolls.20
On March 8, 2011, the Court En Banc consolidated G.R. No. 168613 and G.R. No. 185571.21
Ruling of the Court
We deny the petition for review of Demigillo (G.R. No. 168613) for its lack of merit, but grant the petition for
review of TIDCORP (G.R. No. 185571).
G.R. No. 168613
In its comment in G.R. No. 168613,22 TIDCORP argues for the application of the doctrine of qualified political
agency, contending that the acts of the Board of Directors of TIDCORP, an attached agency of the Department
of Finance whose head, the Secretary of Finance, was an alter ego of the President, were also the acts of the
President.
TIDCORPs argument is unfounded.
The doctrine of qualified political agency, also known as the alter ego doctrine, was introduced in the landmark
case of Villena v. The Secretary of Interior.23 In said case, the Department of Justice, upon the request of the
Secretary of Interior, investigated Makati Mayor Jose D. Villena and found him guilty of bribery, extortion, and
abuse of authority. The Secretary of Interior then recommended to the President the suspension from office
of Mayor Villena. Upon approval by the President of the recommendation, the Secretary of Interior suspended
Mayor Villena. Unyielding, Mayor Villena challenged his suspension, asserting that the Secretary of Interior
had no authority to suspend him from office because there was no specific law granting such power to the
Secretary of Interior; and that it was the President alone who was empowered to suspend local government
officials. The Court disagreed with Mayor Villena and upheld his suspension, holding that the doctrine of
qualified political agency warranted the suspension by the Secretary of Interior. Justice Laurel, writing for the
Court, opined:
After serious reflection, we have decided to sustain the contention of the government in this case on the broad
proposition, albeit not suggested, that under the presidential type of government which we have adopted and
considering the departmental organization established and continued in force by paragraph 1, section 12,
Article VII, of our Constitution, all executive and administrative organizations are adjuncts of the Executive
Department, the heads of the various executive departments are assistants and agents of the Chief Executive,
and, except in cases where the Chief Executive is required by the Constitution or the law to act in person or
the exigencies of the situation demand that he act personally, the multifarious executive and administrative
functions of the Chief Executive are performed by and through the executive departments, and the acts of the
secretaries of such departments, performed and promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive. (Runkle vs.
United States [1887], 122 U. S., 543; 30 Law. ed., 1167; 7 Sup. Ct. Rep., 1141; see also U. S. vs. Eliason [1839],
16 Pet., 291; 10 Law. ed., 968; Jones vs. U. S. [1890], 137 U. S., 202; 34 Law. ed., 691; 11 Sup. Ct., Rep., 80;
Wolsey vs. Chapman [1880], 101 U. S., 755; 25 Law. ed., 915; Wilcox vs. Jackson [1836], 13 Pet., 498; 10 Law.
ed., 264.)
Fear is expressed by more than one member of this court that the acceptance of the principle of qualified
political agency in this and similar cases would result in the assumption of responsibility by the President of
the Philippines for acts of any member of his cabinet, however illegal, irregular or improper may be these acts.
The implications, it is said, are serious. Fear, however, is no valid argument against the system once adopted,
established and operated. Familiarity with the essential background of the type of Government established
under our Constitution, in the light of certain well-known principles and practices that go with the system,
should offer the necessary explanation. With reference to the Executive Department of the government, there
is one purpose which is crystal-clear and is readily visible without the projection of judicial searchlight, and
that is the establishment of a single, not plural, Executive. The first section of Article VII of the Constitution,
dealing with the Executive Department, begins with the enunciation of the principle that "The executive power
shall be vested in a President of the Philippines." This means that the President of the Philippines is the
Executive of the Government of the Philippines, and no other. The heads of the executive departments occupy
political positions and hold office in an advisory capacity, and, in the language of Thomas Jefferson, "should
be of the Presidents bosom confidence" (7 Writings, Ford ed., 498), and in the language of Attorney-General
Cushing (7 Op., Attorney-General, 453), "are subject to the direction of the President." Without minimizing
the importance of the heads of the various departments, their personality is in reality but the projection of
that of the President. Stated otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme
Court of the United States, "each head of a department is, and must be, the President's alter ego in the matters
of that department where the President is required by law to exercise authority." (Myers vs. United States, 47
Sup. Ct. Rep., 21 at 30; 272 U.S. 52 at 133; 71 Law. Ed., 160). x x x.
The doctrine of qualified political agency essentially postulates that the heads of the various executive
departments are the alter egos of the President, and, thus, the actions taken by such heads in the performance
of their official duties are deemed the acts of the President unless the President himself should disapprove
such acts. This doctrine is in recognition of the fact that in our presidential form of government, all executive
organizations are adjuncts of a single Chief Executive; that the heads of the Executive Departments are
assistants and agents of the Chief Executive; and that the multiple executive functions of the President as the
Chief Executive are performed through the Executive Departments. The doctrine has been adopted here out
of practical necessity, considering that the President cannot be expected to personally perform the
multifarious functions of the executive office.
But the doctrine of qualified political agency could not be extended to the acts of the Board of Directors of
TIDCORP despite some of its members being themselves the appointees of the President to the Cabinet. Under
Section 10 of Presidential Decree No. 1080, as further amended by Section 6 of Republic Act No. 8494, 24 the
five ex officio members were the Secretary of Finance, the Secretary of Trade and Industry, the Governor of
the Bangko Sentral ng Pilipinas, the Director-General of the National Economic and Development Authority,
and the Chairman of the Philippine Overseas Construction Board, while the four other members of the Board
were the three from the private sector (at least one of whom should come from the export community), who
were elected by the ex officio members of the Board for a term of not more than two consecutive years, and
the President of TIDCORP who was concurrently the Vice-Chairman of the Board. Such Cabinet members sat
on the Board of Directors of TIDCORP ex officio, or by reason of their office or function, not because of their
direct appointment to the Board by the President. Evidently, it was the law, not the President, that sat them
in the Board.
Under the circumstances, when the members of the Board of Directors effected the assailed 2002
reorganization, they were acting as the responsible members of the Board of Directors of TIDCORP constituted
pursuant to Presidential Decree No. 1080, as amended by Republic Act No. 8494, not as the alter egos of the
President. We cannot stretch the application of a doctrine that already delegates an enormous amount of
power. Also, it is settled that the delegation of power is not to be lightly inferred.25
Nonetheless, we uphold the 2002 reorganization and declare it valid for being done in accordance with the
exclusive and final authority expressly granted under Republic Act No. 8494, further amending Presidential
Decree No. 1080, the law creating TIDCORP itself, to wit:
Section 7. The Board of Directors shall provide for an organizational structure and staffing pattern for officers
and employees of the Trade and Investment Development Corporation of the Philippines (TIDCORP) and upon
recommendation of its President, appoint and fix their remuneration, emoluments and fringe benefits:
Provided, That the Board shall have exclusive and final authority to appoint, promote, transfer, assign and re-
assign personnel of the TIDCORP, any provision of existing law to the contrary notwithstanding.
In this connection, too, we reiterate that we cannot disturb but must respect the ruling of the CSC that deals
with specific cases coming within its area of technical knowledge and expertise,26 absent a clear showing of
grave abuse of discretion on its part. That clear showing was not made herein. Such deference proceeds from
our recognition of the important role of the CSC as the central personnel agency of the Government having
the familiarity with and expertise on the matters relating to the career service.
Worthy to stress, lastly, is that the reorganization was not arbitrary and whimsical. It had been formulated
following lengthy consultations and close coordination with the affected offices within TIDCORP in order for
them to come up with various functional statements relating to the new organizational setup. In fact, the
Board of Directors decided on the need to reorganize in 2002 to achieve several worthy objectives, as follows:
(1) To make the organization more viable in terms of economy, efficiency, effectiveness and make it more
responsive to the needs of its clientles by eliminating or minimizing any overlaps and duplication of powers
and functions;
(2) To come up with an organizational structure which is geared towards the strengthening of the
Corporation's overall financial and business operations through resource allocation shift; and
(3) To rationalize corporate operations to maximize resources and achieve optimum sustainable corporate
performance vis-a-vis revised corporate policies, objectives and directions by focusing the Corporation's
efforts and resources to its vital and core functions.27
The result of the lengthy consultations and close coordination was the comprehensive reorganization plan
that included a new organizational structure, position classification and staffing pattern, qualification
standards, rules and regulations to implement the reorganization, separation incentive packages and
timetable of implementation. Undoubtedly, TIDCORP effected the reorganization within legal bounds and in
response to the perceived need to make the agency more attuned to the changing times.
Having found the 2002 reorganization to be valid and made pursuant to Republic Act No. 8494, we declare
that there are no legal and practical bases for reinstating Demigillo to her former position as Senior Vice
President in the LCSD. To be sure, the reorganization plan abolished the LCSD, and put in place a set-up
completely different from the previous one, including a new staffing pattern in which Demigillo would be
heading the RCMSS, still as a Senior Vice President of TIDCORP. With that abolition, reinstating her as Senior
Vice President in the LCSD became legally and physically impossible.
Demigillos contention that she was specifically appointed to the position of Senior Vice President in the LCSD
was bereft of factual basis. The records indicate that her permanent appointment pertained only to the
position of Senior Vice President.28 Her appointment did not indicate at all that she was to hold that specific
post in the LCSD. Hence, her re-assignment to the RCMSS was by no means a diminution in rank and status
considering that she maintained the same rank of Senior Vice President with an accompanying increase in pay
grade.
The assignment to the RCMSS did not also violate Demigillos security of tenure as protected by Republic Act
No. 6656. We have already upheld reassignments In the Civil Service resulting from valid reorganizations.29 Nor
could she claim that her reassignment was invalid because it caused the reduction in her rank, status or salary.
On the contrary, she was reappointed as Senior Vice President, a position that was even upgraded like all the
other similar positions to Pay Grade 16, Step 4, Level II.30 In every sense, the position to which she was
reappointed under the 2002 reorganization was comparable with, if not similar to her previous position.
That the RCMSS was a unit smaller than the LCSD did not necessarily result in or cause a demotion for
Demigillo. Her new position was but the consequence of the valid reorganization, the authority to implement
which was vested in the Board of Directors by Republic Act No. 8494. Indeed, we do not consider to be a
violation of the civil servants right to security of tenure the exercise by the agency where she works of the
essential prerogative to change the work assignment or to transfer the civil servant to an assignment where
she would be most useful and effective. More succinctly put, that prerogative inheres with the
employer,31 whether public or private.
G.R. No. 185571
As earlier stated, TIDCORPs petition for review in G.R. No. 185571 is meritorious.
Anent the first issue in G.R. No. 185571, we have already explained that Demigillo was not demoted because
she did not suffer any diminution in her rank, status and salary under the reorganization. Her reassignment to
the RCMSS, a smaller unit compared to the LCSD, maintained for her the same rank of Senior Vice-President
with a corresponding increase in pay grade. The reassignment resulted from the valid reorganization.
With respect to the second issue, Demigillo was validly dropped from the rolls by TIDCORP as the consequence
of the application of the rules governing her employment. Section 2 (2.2), Rule XII of the Revised Omnibus
Rules on Appointments and Other Personnel Actions (Memorandum Circular No. 40, Series of 1998) provides:
xxxx
2.2 Unsatisfactory or Poor Performance
a. An official or employee who is given two (2) consecutive unsatisfactory ratings may be dropped from the
rolls after due notice. Notice shall mean that the officer or employee concerned is informed in writing of his
unsatisfactory performance for a semester and is sufficiently warned that a succeeding unsatisfactory
performance shall warrant his separation from the service. Such notice shall be given not later than 30 days
from the end of the semester and shall contain sufficient information which shall enable the employee to
prepare an explanation.
b. An official or employee, who for one evaluation period is rated poor in performance, may be dropped from
the rolls after due notice. Notice shall mean that the officer or employee is informed in writing of the status
of his performance not later than the 4th month of that rating period with sufficient warning that failure to
improve his performance within the remaining period of the semester shall warrant his separation from the
service. Such notice shall also contain sufficient information which shall enable the employee to prepare an
explanation.
Under Section (b), supra, an official or employee may be dropped from the rolls provided the following
requisites are present, namely: (1) the official or employee was rated poor in performance for one evaluation
period; (2) the official or employee was notified in writing of the status of her performance not later than the
4th month of the rating period with sufficient warning that failure to improve her performance within the
remaining period of the semester shall warrant her separation from the service; and (3) such notice contained
adequate information that would enable her to prepare an explanation.
All of the requisites were duly established herein.
As to the first requisite, there is no dispute that President Valdes gave Demigillo a poor performance rating
for the annual rating period from January 1, 2002 to December 31, 2002.
The second requisite speaks of a sixth-month or per semester rating period. Although Demigillos poor rating
was made on an annual basis, that was allowed by the implementing rules of Executive Order No.
292.32 Regarding the need to give her the written notice of her performance status not later than the 4th
month of the rating period, or at the half of the semester, the requirement did not apply here because her
rating was made on an annual basis. By analogy, however, the written notice for an annual rating period could
be sent on the 6th month or in the middle of the year. Nevertheless, this was not expressly provided for in the
Civil Service rules.1wphi1 In any case, it is emphasized that the purpose of the written notice being sent to
the affected officer or employee not later than the 4th month of the rating period has been to give her the
sufficient time to improve her performance and thereby avert her separation from the service. That purpose
is the very essence of due process.
In Demigillos case, therefore, what was crucial was whether she had been allowed to enhance her
performance within a sufficient time from her receipt of the written notice of the poor performance rating up
to her receipt of the written notice of her dropping from the rolls. The records show that she was, indeed,
given enough time for her to show improvement. She received on April 21, 2003 a letter from President Valdes
that indicated her poor performance rating for the period of January 1, 2002 to December 31, 2002. 33 The
Board of Directors issued on August 15, 2003 the decision dropping her from rolls.34 She received a copy of
the decision on August 25, 2003.35Thereby, she was given almost four months to improve her performance
before she was finally dropped from the rolls.
The second requisite further mentions that the written notice must contain sufficient warning that failure to
improve her performance within the remaining period of the semester shall warrant separation from the
service. Although the letter informing Demigillo of her poor performance rating did not expressly state such a
warning to her, it stated her gross failures in the performance of her duties.36 The Performance Evaluation
Report Form corresponding to her, which was attached to the memorandum given to her, reflected her poor
performance.36 She was notified in writing of the denial of her appeal of the poor rating.37 It cannot be denied
that the letter of poor rating, the Performance Evaluation Repmi Form, and the denial of her appeal all signified
to her that she could be removed from the service unless she would improve her performance. Thereby, she
was given ample warning to improve, or else be separated from the service. In that regard, she was certainly
not a witless person who could have missed the significance of such events. She was not only a lawyer. 38 She
was also a mid-level ranking government official who had been in the government corporate sector for almost
20 years.39 Her familiarity with the dire consequences of a failure to improve a poor rating under Civil Service
rules was justifiably assumed.
Anent the third requisite, the letter of President Valdes plainly stated the reasons for her poor rating. Her
Performance Evaluation Repmi Form, which was attached to the letter, enumerated several criteria used in
measuring her management skills and the corresponding rating per criterion. The letter even suggested that
in order for her to enhance her performance she should undergo extensive training on business management,
a comprehensive lecture program on Civil Service rules and regulations, and a training on effective public
relations. The letter indicated that the contents of the Performance Evaluation Report had been discussed
with her. Moreover, Demigillo formally appealed the poor performance rating, except that TIDCORP denied
her appeal.40All these circumstances show that she was given more than enough information about the bases
for her poor performance rating, enabling her to appeal properly.
WHEREFORE, we DENY the petition for review on certiorari in G.R. No. 168613; AFFIRM the decision
promulgated on June 27, 2005 by the Court of Appeals in its CA-G.R. No. 87285; GRANT the petition for review
on certiorari in G.R. No. 185571; SET ASIDE the decision promulgated on November 28, 2008 by the Court of
Appeals in its CA-G.R. No. 87295; and ORDER Atty. MA. ROSARIO MANALANG-DEMIGILLO to pay the costs of
suit.
SO ORDERED.
G.R. No. L-533 August 20, 1946
RAMON RUFFY, ET AL., petitioners,
vs.
THE CHIEF OF STAFF, PHILIPPINE ARMY, ET AL., respondents.
Placido C. Ramos for petitioners.
Lt. Col. Fred Ruiz Castro and Capt. Ramon V. Diaz, JAGS, PA., for respondents.
TUASON, J.:
This was a petition for prohibition, praying that the respondents, the Chief of Staff and the General Court
Martial of the Philippine Army, be commanded to desist from further proceedings in the trial of petitioners
before that body. Preliminary injunction having been denied by us and the General Court Martial having gone
ahead with the trial, which eventually resulted in the acquittal of one of the defendants, Ramon Ruffy, the
dismissal of the case as to another, Victoriano Dinglasan, and the conviction of Jose L. Garcia, Prudente M.
Francisco, Dominador Adeva and Andres Fortus, the last-named four petitioners now seek in their
memorandum to convert the petition into one for certiorari, with the prayer that the records of the
proceedings before the General Court Martial be ordered certified to this court for review.
The ground of the petition was that the petitioners were not subject to military law at the time the offense
for which they had been placed on trial was committed. In their memorandum they have raised an additional
question of law that the 93d Article of War is unconstitutional.
An outline of the petitioner's previous connection with the Philippine Army, the Philippine Constabulary,
and/or with guerrilla organizations will presently be made. This outline is based on allegations in the petition
and the answer, and on exhibits attached thereto and to the parties' memoranda, exhibits which were offered
in the course of the oral argument and admitted without objection. The said exhibits are public documents
certified by the officials who had them in custody in their official capacity. They are presumed to be authentic,
as we have no doubt they are.
It appears that at the outbreak of war on December 8, 1941, Ramon Ruffy was the Provincial Commander,
Prudente M. Francisco, a junior officer, and Andres Fortus, a corporal, all of the Philippine Constabulary
garrison stationed in Mindoro. When, on February 27, 1942, the Japanese forces landed in Mindoro, Major
Ruffy retreated to the mountains instead of surrendering to the enemy, disbanded his company, and organized
and led a guerrilla outfit known as Bolo Combat team of Bolo Area. Lieutenant Francisco, Corporal Fortus and
Jose L. Garcia, the last then a civilian joined Major Ruffy's organization towards the latter part of 1942, while
Dominador Adeva and Victoriano Dinglasan, then likewise civilians, became its members some time in 1943..
Meanwhile, Brigadier General Macario Peralta, Jr., then a lieutenant colonel of the Philippine Army, also took
to the hills of Panay and led the operation of the 6th Military District, one of the districts into which the
Philippine Army had been divided before the war. About November, 1942, Colonel Peralta succeeded in
contacting the General Headquarters of General MacArthur in Australia as the result of which on February 13,
1943, the 6th Military District was recognized by the Headquarters of the Southwest Pacific Area as a military
unit and part of its command.
Even before General MacArthur's recognition of the 6th Military District Colonel Peralta had extended its
sphere of operation to comprise Mindoro and Marinduque, and had, on January 2, 1943, named Major Ruffy
as Acting Commander for those two provinces and Commanding Officer of the 3rd Battalion, 66 Infantry 61st
Division, Philippine Corps. After the recognition, 2d Lieut. Prudente M. Francisco, by virtue of Special Orders
No. 99, dated November 2, 1943, and signed by Enrique L. Jurado, Major, OSE, Commanding, was assigned as
S-3 in the Bolo Area. Major, later Lieut. Col., Jurado, it should be noted, had been dispatched by the 6th Military
District to Mindoro to assume operational control supervision over the Bolo Area unit and to make and direct
the necessary report to the Headquarters, 6th Military District, in Panay. On April 26, 1944, by General Orders
No. 40 of the 6th Military District, 2d Lieutenant Francisco was promoted to the rank of 1st Lieutenant (Brevet),
effective April 15, 1944, subject to approval by the President of the Philippines, and was re-assigned to the
Bolo Area. As to Andres Fortus he was assigned to the same Bolo Area as probationary 3d lieutenant for two-
month probationary training, by the Headquarters of the 6th Military District, as per Special Orders No. 70,
dated May 15, 1944.
According to a memorandum of the Chief of Staff, 6th Military District, dated January 1943, and signed by L.R.
Relunia, Lieut. Col., CE, Chief of Staff, Jose L. Garcia and Dominador Adeva were appointed 3d lieutenants,
infantry as of December 31, 1942. Garcia later was promoted to the rank of captain, effective March 15, 1943,
as per Special Orders No. 82, issued in the field, 6th Military District, and dated August 28, 1943. On May 24,
1943, Jose L. Garcia took his oath before Captain Esteban P. Beloncio, then Acting Commanding Officer, 3d
Battalion, 66th Infantry Regiment, 61st Division, 6th Military District.
As has been said, the 6th Military District sent Lieut. Col. Enrique L. Jurado to be Commanding Officer of the
Bolo Combat Team in Mindoro and to undertake other missions of Military character. Pursuant to instructions,
Colonel Jurado on November 2, 1943, assigned Major Ruffy as Commanding Officer of the Bolo Area with 3d
Lieut. Dominador Adeva and 2d Lieut. Prudente M. Francisco as members of his staff and Victoriano Dinglasan
as Finance Officer, as per Special Orders No. 99 dated November 2, 1943. In a memorandum of Colonel Jurado
for Major Ruffy bearing date 25 June, 1944, it was stated that Captain Garcia had been given P5,000 for palay
and Lieut. Francisco P9,000, P5,000 for palay and P4,000 for salary of the personnel B. Company.
A change in the command of the Bolo Area was effected by Colonel Jurado on June 8, 1944: Major Ruffy was
relieved of his assignment as Commanding Officer, Bolo Battalion, and Capt. Esteban P. Beloncio was put in
Ruffy's place. On October 19, 1944, Lieut. Col. Jurado was slain allegedly by the petitioners. After the
commission of this crime, the petitioners, it is alleged, seceded from the 6th Military District. It was this murder
which gave rise to petitioner's trial, the legality of which is now being contested.
On July 26, 1941, the President of the Untied States issued a military order the pertinent paragraph of which
stated: ". . . as Commander in Chief of the Army and Navy of the United States, I hereby call and order into the
service of the armed forces of the United States Army, for the period of the existing emergency, and place
under the command of the general officer, United States Army, to be designated by the Secretary of War, from
time to time, all of the organized military forces of the Government of the Commonwealth." Following the
issuance of President Roosevelt's order General Douglas MacArthur was appointed Commanding General of
the United States Armed Forces in the Far East.
It is contended, in behalf of Captain Francisco and Lieutenant Fortus, that "by the enemy occupation of the
Philippines, the National Defense Act and all laws and regulations creating and governing the existence of the
Philippine Army including the Articles of War, were suspended and in abeyance during such belligerent
occupation."
The paragraph quoted in the petitioner's memorandum from Winthrop's Military Law and Precedents and the
subsequent paragraph which has been omitted furnish a complete answer to petitioner's contention of the
Philippines by Japanese forces, the officers and men of the Philippine Army did not cease to be fully in the
service, though in a measure,' only in a measure, they were not subject to the military jurisdiction, if they were
not active duty. In the latter case, like officers and soldiers on leave of absence or held as prisoners of war,
they could not be held guilty of a breach of the discipline of the command or of a neglect of duty, or
disobedience of orders, or mutiny, or subject to a military trial therefor; but for an act unbecoming an officer
and a gentleman, or an act which constitutes an offense of the class specified in the 95th Article of War, they
may in general be legally held subject to military jurisdiction and trial. "So a prisoner of war, though not
subject, while held by the enemy, to the discipline of his own army, would, when exchanged of paroled, be
not exempt from liability for such offenses as criminal acts or injuriuos conduct committed during his captivity
against other officers or soldiers in the same status." (Winthrop's Military Law and Precedents, 2d Edition, pp.
91, 92.)
The rule invoked by counsel, namely, that laws of political nature or affecting political relations are considered
superseded or in abeyance during the military occupation, is intended for the governing of the civil inhabitants
of the occupied territory. It is not intended for and does not bind the enemies in arms. This is self-evident from
the very nature of things. The paradox of a contrary ruling should readily manifest itself. Under the petitioner's
theory the forces of resistance operating in an occupied territory would have to abide by the outlawing of
their own existence. They would be stripped of the very life-blood of an army, the right and the ability to
maintain order and discipline within the organization and to try the men guilty of breach thereof.
The surrender by General Wainright of the Fil-American Forces does not profit the petitioner's who were
former members of the Philippine Constabulary any more than does the rule of war or international law they
cite. The fall of Bataan and Corregidor did not end the war. It did not, legally or otherwise, keep the United
States and the Commonwealth of the Philippines from organizing a new army, regular or irregular, out of new
men and men in the old service who had refused to surrender or who having surrendered, had decided to
carry on the fight through other diverse means and methods. The fall of Corregidor and Bataan just marked
the beginning of the gigantic preparation for the gigantic drive that was to fight its way to and beyond the
Philippines in fulfillment of General MacArthur's classic promise, "I shall return." The heroic role which the
guerrillas played in that preparation and in the subsequent liberation of the Philippines is now history.
Independently of their previous connection with the Philippine Army and the Philippine Constabulary, Captain
Francisco and Lieutenant Fortus as well as Major Garcia and Lieutenant Adeva were subject to military
jurisdiction.
The 2d Article of War defines and enumerates the persons subject to military law as follows:
Art. 2. Persons Subject to Military Law. The following persons are subject to these articles and shall be
understood as included in the term "any person subject to military law" or "persons subject to military law,"
whenever used in these articles:
(a) All officers, members of the Nurse Corps and soldiers belonging to the Regular Force of the Philippine Army;
all reservists, from the dates of their call to active duty and while on such active duty; all trainees undergoing
military instructions; and all other persons lawfully called, drafted, or order to obey the same;
(b) Cadets, flying cadets, and probationary third lieutenants;
(c) All retainers to the camp and all persons accompanying or serving with the Army of the Philippines in the
field in time of war or when martial law is declared though not otherwise subject to these articles;
(d) All persons under sentences adjudged by courts-martial.
It is our opinion that the petitioners come within the general application of the clause in sub-paragraph (a);
"and all other persons lawfully called, drafted, or ordered into, or to duty for training in, the said service, from
the dates they are required by the terms of the call, draft, or order to obey the same." By their acceptance of
appointments as officers in the Bolo Area from the General Headquarters of the 6th Military District, they
became members of the Philippine Army amendable to the Articles of War. The Bolo Area, as has been seen,
was a contigent of the 6th Military District which, as has also been pointed out, had been recognized by and
placed under the operational control of the United States Army in the Southwest Pacific. The Bolo Area
received supplies and funds for the salaries of its officers and men from the Southwest Pacific Command. As
officers in the Bolo Area and the 6th Military District, the petitioners operated under the orders of duly
established and duly appointed commanders of the United States Army.
The attitude of the enemy toward underground movements did not affect the military status of guerrillas who
had been called into the service of the Philippine Army. If the invaders refused to look upon guerrillas, without
distinctions, as legitimate troops, that did not stop the guerillas who had been inducted into the service of the
Philippine Army from being component parts thereof, bound to obey military status of guerrillas was to be
judged not by the concept of the army of the country for which they fought.
The constitutionality of the 93d Article of War is assailed. This article ordains "that any person subject to
military law who commits murder in time of was shall suffer death or imprisonment for life, as the court martial
may direct." It is argued that since "no review is provided by that law to be made by the Supreme Court,
irrespective of whether the punishment is for life imprisonment or death", it violates Article VIII, section 2,
paragraph 4, of the Constitution of the Philippines which provides that "the National Assembly may not
deprive the Supreme Court of its original jurisdiction over all criminal cases in which the penalty imposed is
death or life imprisonment."
We think the petitioners are in error. This error arose from failure to perceive the nature of courts martial and
the sources of the authority for their creation.
Courts martial are agencies of executive character, and one of the authorities "for the ordering of courts
martial has been held to be attached to the constitutional functions of the President as Commander in Chief,
independently of legislation." (Winthrop's Military Law and Precedents, 2d Edition, p. 49.) Unlike courts of
law, they are not a portion of the judiciary. "The Supreme Court of the United States referring to the provisions
of the Constitution authorizing Congress to provide for the government of the army, excepting military
offenses from the civil jurisdiction, and making the President Commander in Chief, observes as follows: "These
provisions show that Congress has the power to provide for the trial and punishment of military and naval
offenses in the manner then and now practiced by civilized nations, and that the power to do so is given
without any connection between it and the 3d Article of the United States; indeed that the two powers are
entirely independent of each other."
"Not belonging to the judicial branch of the government, it follows that courts-martial must pertain to the
executive department; and they are in fact simply instrumentalities of the executive power, provided by
Congress for the President as Commander in Chief, to aid him in properly commanding the army and navy and
enforcing discipline therein, and utilized under his orders or those of his authorized military representatives."
(Winthrop's Military Law and Precedents, 2d Edition, p. 49.) Of equal interest Clode, 2 M. F., 361, says of these
courts in the British law: "It must never be lost sight of that the only legitimate object of military tribunals is
to aid the Crown to maintain the discipline and government of the Army." (Footnote No. 24, p. 49, Winthrop's
Military Law and Precedents, 2d Edition.)
Our conclusion, therefore, is that the petition has no merit and that it should be dismissed with costs. It is so
ordered.
G.R. No. L-2662 March 26, 1949
SHIGENORI KURODA, petitioner,
vs.
Major General RAFAEL JALANDONI
MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of
the Japanese Imperial Forces in The Philippines during a period covering 19433 and 19444 who is now charged
before a military Commission convened by the Chief of Staff of the Armed forces of the Philippines with having
unlawfully disregarded and failed "to discharge his duties as such command, permitting them to commit brutal
atrocities and other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces
in violation of the laws and customs of war" comes before this Court seeking to establish the illegality of
Executive Order No. 68 of the President of the Philippines: to enjoin and prohibit respondents Melville S.
Hussey and Robert Port from participating in the prosecution of petitioner's case before the Military
Commission and to permanently prohibit respondents from proceeding with the case of petitioners.
In support of his case petitioner tenders the following principal arguments.
First. "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of our
constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a signatory nor
an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and therefore
petitioners is charged of 'crimes' not based on law, national and international." Hence petitioner argues
"That in view off the fact that this commission has been empanelled by virtue of an unconstitutional law an
illegal order this commission is without jurisdiction to try herein petitioner."
Second. That the participation in the prosecution of the case against petitioner before the Commission in
behalf of the United State of America of attorneys Melville Hussey and Robert Port who are not attorneys
authorized by the Supreme Court to practice law in the Philippines is a diminution of our personality as an
independent state and their appointment as prosecutor are a violation of our Constitution for the reason that
they are not qualified to practice law in the Philippines.
Third. That Attorneys Hussey and Port have no personality as prosecution the United State not being a party
in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation governing
the trial of accused war criminals, was issued by the President of the Philippines on the 29th days of July, 1947
This Court holds that this order is valid and constitutional. Article 2 of our Constitution provides in its section
3, that
The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles
of international law as part of the of the nation.
In accordance with the generally accepted principle of international law of the present day including the Hague
Convention the Geneva Convention and significant precedents of international jurisprudence established by
the United Nation all those person military or civilian who have been guilty of planning preparing or waging a
war of aggression and of the commission of crimes and offenses consequential and incidental thereto in
violation of the laws and customs of war, of humanity and civilization are held accountable therefor.
Consequently in the promulgation and enforcement of Execution Order No. 68 the President of the Philippines
has acted in conformity with the generally accepted and policies of international law which are part of the our
Constitution.
The promulgation of said executive order is an exercise by the President of his power as Commander in chief
of all our armed forces as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off. Gaz.,
664) 1 when we said
War is not ended simply because hostilities have ceased. After cessation of armed hostilities incident of war
may remain pending which should be disposed of as in time of war. An importance incident to a conduct of
war is the adoption of measure by the military command not only to repel and defeat the enemies but to seize
and subject to disciplinary measure those enemies who in their attempt to thwart or impede our military effort
have violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a military
commission for the trial and punishment of war criminals is an aspect of waging war. And in the language of a
writer a military commission has jurisdiction so long as a technical state of war continues. This includes the
period of an armistice or military occupation up to the effective of a treaty of peace and may extend beyond
by treaty agreement. (Cowles Trial of War Criminals by Military Tribunals, America Bar Association Journal
June, 1944.)
Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished aspect
of war namely the trial and punishment of war criminal through the issuance and enforcement of Executive
Order No. 68.
Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts committed
in violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to
the first and signed the second only in 1947. It cannot be denied that the rules and regulation of the Hague
and Geneva conventions form, part of and are wholly based on the generally accepted principals of
international law. In facts these rules and principles were accepted by the two belligerent nation the United
State and Japan who were signatories to the two Convention, Such rule and principles therefore form part of
the law of our nation even if the Philippines was not a signatory to the conventions embodying them for our
Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of
rule and principle of international law as continued inn treaties to which our government may have been or
shall be a signatory.
Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was under
the sovereignty of United States and thus we were equally bound together with the United States and with
Japan to the right and obligation contained in the treaties between the belligerent countries. These rights and
obligation were not erased by our assumption of full sovereignty. If at all our emergency as a free state entitles
us to enforce the right on our own of trying and punishing those who committed crimes against crimes against
our people. In this connection it is well to remember what we have said in the case of Laurel vs. Misa (76 Phil.,
372):
. . . The change of our form government from Commonwealth to Republic does not affect the prosecution of
those charged with the crime of treason committed during then Commonwealth because it is an offense
against the same sovereign people. . . .
By the same token war crimes committed against our people and our government while we were a
Commonwealth are triable and punishable by our present Republic.
Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and Robert Port
in the prosecution of his case on the ground that said attorney's are not qualified to practice law in Philippines
in accordance with our Rules of court and the appointment of said attorneys as prosecutors is violative of our
national sovereignty.
In the first place respondent Military Commission is a special military tribunal governed by a special law and
not by the Rules of court which govern ordinary civil court. It has already been shown that Executive Order
No. 68 which provides for the organization of such military commission is a valid and constitutional law. There
is nothing in said executive order which requires that counsel appearing before said commission must be
attorneys qualified to practice law in the Philippines in accordance with the Rules of Court. In facts it is
common in military tribunals that counsel for the parties are usually military personnel who are neither
attorneys nor even possessed of legal training.
Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. It is only
fair and proper that United States, which has submitted the vindication of crimes against her government and
her people to a tribunal of our nation should be allowed representation in the trial of those very crimes. If
there has been any relinquishment of sovereignty it has not been by our government but by the United State
Government which has yielded to us the trial and punishment of her enemies. The least that we could do in
the spirit of comity is to allow them representation in said trials.
Alleging that the United State is not a party in interest in the case petitioner challenges the personality of
attorneys Hussey and Port as prosecutors. It is of common knowledge that the United State and its people
have been equally if not more greatly aggrieved by the crimes with which petitioner stands charged before
the Military Commission. It can be considered a privilege for our Republic that a leader nation should submit
the vindication of the honor of its citizens and its government to a military tribunal of our country.
The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes
charged which fall under the provisions of Executive Order No. 68, and having said petitioner in its custody,
this Court will not interfere with the due process of such Military commission.
For all the foregoing the petition is denied with costs de oficio
G.R. No. L-37364 May 9, 1975
BENIGNO S. AQUINO, JR., petitioner,
vs.
MILITARY COMMISSION 2, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, and SECRETARY OF
NATIONAL DEFENSE, THE CHIEF JUSTICE OF THE SUPREME COURT, and SECRETARY OF
JUSTICE, *respondents.
Taada, Salonga, Ordoez, Gonzales, Rodrigo, Jr., Roxas, Arroyo, Castro and Felipe for petitioner.
Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor-General Vicente V. Mendoza, Assistant
Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Reynato S. Puno and Attorney Blesila
Quintillan for respondents.
ANTONIO, J.:+.wph!1
Following the proclamation of martial law in the Philippines, petitioner was arrested on September 23, 1972,
pursuant to General Order No. 2-A of the President for complicity in a conspiracy to seize political and state
power in the country and to take over the Government. He was detained at Fort Bonifacio in Rizal province.
On September 25, 1972, he sued for a writ of habeas corpus1 in which he questioned the legality of the
proclamation of martial law and his arrest and detention. This Court issued a writ of habeas corpus, returnable
to it, and required respondents to file their respective answers, after which the case was heard. Thereafter,
the parties submitted their memoranda. Petitioner's last Reply memorandum was dated November 30, 1972.
On September 17, 1974, this Court dismissed the petition and upheld the validity of martial law and the arrest
and detention of petitioner.2
In the present case, petitioner challenges the jurisdiction of military commissions to try him, alone or together
with others, for illegal possession of firearms, ammunition and explosives, for violation of the Anti-Subversion
Act and for murder. The charges are contained in six (6) amended charge sheets3 filed on August 14, 1973 with
Military Commission No. 2.
The original petition in this case was filed on August 23, 1973. It sought to restrain the respondent Military
Commission from the proceeding with the hearing and trial of petitioner on August 27, 1973. Because of the
urgency of the petition, this Court called a hearing on Sunday, August 26, on the question of whether with its
membership of only nine (9) Justices, it had a quorum to take cognizance of the petition in view of the
constitutional questions involved. At that hearing, this Court asked the parties to agree to seek from the
Military Commission a postponement of petitioner's trial the following day. The purpose was to relieve the
Court of the pressure of having to decide the question of quorum without adequate time to do so.
When the proceedings before the Military Commission opened the following day, however, petitioner
questioned the fairness of the trial and announced that he did not wish to participate in the proceedings even
as he discharged both his defense counsel of choice and his military defense counsel.
The proceedings were thereupon adjourned to another day. In the meantime, for the petitioner's assurance,
a Special Committee, composed of a retired. Justice of the Supreme Court, to be designated by the Chief
Justice, as Chairman, and four (4) members to be designated respectively by petitioner, the President of the
Integrated Bar of the Philippines, the Secretary of Justice and the Secretary of National Defense, was created
to reinvestigate the charges against petitioner. The Secretaries of Justice and National Defense designated
their representatives but the petitioner refused to name his. The Chief Justice asked former Justice J.B.L. Reyes
but the latter declined, as he also declined in his capacity as President of the IBP to designate a representative
to the Committee. As a result, with only two of its members designed, the Special Committee has not been
able to function.
On September 4, 1973, a supplemental petition alleging the creation of the Special Committee and questioning
the legality of its creation was filed. The Chief Justice of the Supreme Court and the Secretary of Justice were
included as respondents. Subsequently, the Court resolved to require the respondents to file their answer and
on August 21, 1974, within the extended period granted by the Court, respondents, with the exception of the
Chief Justice, filed their answer to the supplemental petition.
Thereafter, petitioner was required to file a reply and was granted additional time after the lapse of the
original period, but instead of doing so, petitioner asked for the admission of a second supplemental petition
challenging the continued enforcement of martial law in the Philippines, in the light of Presidential statements
to the effect that with the coming into force of the new Constitution on January 17, 1973, martial law was
"technically and legally" lifted. To this petition respondents answered. Thereafter, the parties submitted their
respective memoranda in lieu of oral argument as per Resolution of this Court on January 14, 1975.4
On March 24, 1975, petitioner filed an "Urgent Motion for Issuance of Temporary Restraining Order Against
Military Commission No. 2"; praying that said Commission be prohibited from proceeding with the
perpetuation of testimony under its Order dated March 10, 1975, the same being illegal, until further orders
from the Supreme Court..
On March 31, 1975, respondents filed their Comment to petitioner's aforementioned urgent motion, which
motion and other related incidents were set for hearing on April 14, 1975 at 10:00 a.m., as per Resolution of
this Court on April 8, 1975.
Meanwhile, or on April 1, 1975, this Court issued a Resolution, stating that "for lack of a necessary quorum",
it could not act on petitioner's Urgent Motion for Issuance of temporary Restraining Order Against Military
Commission No. 2, inasmuch as this case involved a constitutional question..
On April 7, 1975, petitioner filed a "Manifestation" stating, among others, that the "Urgent Motion did not
and does not involve a constitutional question", for reasons stated therein.
On April 12, 1975, respondents filed their "Reply to Petitioner's Manifestation", followed by Respondents'
Manifestation filed on April 14, 1975, attaching thereto fourteen (14) sworn statements of witnesses whose
testimonies are sought to be perpetuated..
On April 14, 1975, this Court also issued a restraining order against respondent Military Commission No. 2,
restraining it from further proceeding with the perpetuation of testimony under its Order dated March 10,
1975 until the matter is heard and further orders are issued.
When this case was called for hearing, petitioner's counsel presented to this Court a motion to withdraw the
petition, as well as all other pending matters and/or incidents in connection therewith. Respondents' counsel
interposed objection to the granting of the aforesaid motion to withdraw.
After the hearing, this Court Resolved: "(a) to require the Solicitor General to furnish the Court as well as the
petitioner and the latter's counsel, with copies of the transcript of all the stenographic notes taken at the
hearing before the Military Commission No. 2 for the perpetuation of the testimony of the witnesses for the
prosecution in various criminal cases filed against herein petitioner, within five (5) days from today; (b) to
request the Solicitor General and the AFP Judge Advocate General to make the necessary arrangements for
the petitioner to confer with his counsel on matters connected with the aforementioned motion to withdraw;
(c) to allow counsel for the petitioner, if they so desire, to file a manifestation in amplication of the aforesaid
motion to withdraw, within ten (10) days from the date they confer with the petitioner, and thereafter to
allow the Solicitor General to file a counter-manifestation within ten (10) days from receipt of a copy thereof;
and (d) to consider the case submitted for decision after submission by both parties of their respective
pleadings on the motion to withdraw."
Subsequently, the parties manifested their compliance.
I
Acting on petitioner's motion to withdraw the petitions and motions in this case, and there being only three
(3) Justices (Justices Fernando, Teehankee and Muoz Palma) who voted in favor of granting such withdrawal,
whereas seven (7) Justices (Justices Castro, Barredo, Antonio, Esguerra, Aquino, Concepcion and Martin) voted
for its denial, the said motion to withdraw is deemed denied (Section 11, Rule 56 of the Revised Rules of
Court). The Chief Justice has inhibited himself, having been made respondent by petitioner in his Supplemental
Petitions.5
The Justice who voted to deny the withdrawal are of the opinion that since all matters in issue in this case
have already been submitted for resolution, and they are of paramount public interest, it is imperative that
the questions raised by petitioner on the constitutionality and legality of proceedings against civilians in the
military commissions, pursuant to pertinent General Orders, Presidential Decrees and Letters of Instruction,
should be definitely resolved.
In regard to the merits, We Resolve by a vote of eight (8) Justices to dismiss the main as well as the
supplemental petitions. 5*
II
MILITARY COMMISSIONS
We have that the respondent Military Commission No. 2 has been lawfully constituted and validly vested with
jurisdiction to hear the cases against civilians, including the petitioner.
1. The Court has previously declared that the proclamation of Martial Law (Proclamation No. 1081) on
September 21, 1972, by the President of the Philippines is valid and constitutional and that its continuance is
justified by the danger posed to the public safety.6
2. To preserve the safety of the nation in times of national peril, the President of the Philippines necessarily
possesses broad authority compatible with the imperative requirements of the emergency. On the basis of
this, he has authorized in General Order No. 8 (September 27, 1972) the Court of Staff, Armed Forces of the
Philippines, to create military tribunals to try and decide cases "of military personnel and such other cases as
may be referred to them." In General Order No. 12 (September 30, 1972), the military tribunals were vested
with jurisdiction "exclusive of the civil courts", among others, over crimes against public order, violations of
the Anti-Subversion Act, violations of the laws on firearms, and other crimes which, in the face of the
emergency, are directly related to the quelling of the rebellion and preservation of the safety and security of
the Republic. In order to ensure a more orderly administration of justice in the cases triable by the said military
tribunals, Presidential Decree No. 39 was promulgated on November 7,1972, providing for the "Rules
Governing the Creation, Composition, Jurisdiction, Procedure and Other Matters Relevant to Military
Tribunals." These measures he has the authority to promulgate, since this Court recognized that the
incumbent President, under paragraphs 1 and 2 of Section 3 of Article XVII of the new Constitution, had the
authority to "promulgate proclamations, orders and decrees during the period of martial law essential to the
security and preservation of the Republic, to the defense of the political and social liberties of the people and
to the institution of reforms to prevent the resurgence of the rebellion or insurrection or secession or the
threat thereof....."7 Pursuant to the aforesaid Section 3 [1] and [2] of Article XVII of the Constitution, General
Orders No. 8, dated September 27, 1972 (authorizing the creation of military tribunals), No. 12, dated
September 30, 1972 (defining the jurisdiction of military criminals and providing for the transfer from the civil
courts to military tribunals of cases involving subversion, sedition, insurrection or rebellion, etc.), and No. 39,
dated November 7, 1972, as amended (prescribing the procedures before military tribunals), are now "part of
the law of the land."8
3. Petitioner nevertheless insists that he being a civilian, his trial by a military commission deprives him of his
right to due process, since in his view the due process guaranteed by the Constitution to persons accused of
"ordinary" crimes means judicial process. This argument ignores the reality of the rebellion and the existence
of martial law. It is, of course, essential that in a martial law situation, the martial law administrator must have
ample and sufficient means to quell the rebellion and restore civil order. Prompt and effective trial and
punishment of offenders have been considered as necessary in a state of martial law, as a mere power of
detention may be wholly inadequate for the exigency. 9 "It need hardly be remarked that martial law lawfully
declared," observed Winthrop, "creates an exception to the general rule of exclusive subjection to the civil
jurisdiction, and renders offenses against the laws of war, as well as those of a civil character, triable, at the
discretion of the commander, (as governed by a consideration for the public interests and the due
administration of justice) by military tribunals." 10
Indeed, it has been said that in time of overpowering necessity, "public danger warrants the substitution of
executive process for judicial process." 11 According to Schwartz, "The immunity of civilians from military
jurisdiction must, however, give way in areas governed by martial law. When it is absolutely imperative for
public safety, legal processes can be superseded and military tribunals authorized to exercise the jurisdiction
normally vested in court." 12
In any case, We cannot close Our eyes to the fact that the continued existence of these military tribunals and
the exercise by them of jurisdiction over civilians during the period of martial law are within the contemplation
and intendment of Section 3, paragraph 2 of Article XVII of the Constitution. These are tribunals of special and
restricted jurisdiction created under the stress of an emergency and national security. This is the only logical
way to construe said Section 3, paragraph 2 of Article XVII of the Constitution, in relation to General Order
Nos. 8, 12 and 39, in the context of contemporary history and the circumstances attendant to the framing of
the new charter.
4. When it has been established that martial law is in force, the responsibility for all acts done thereunder
must be taken by the authorities administering it. 13 It is a serious responsibility which merits the cooperation
of all in the collective desire for the restoration of civil order. In the case at bar, petitioner is charged with
having conspired with certain military leaders of the communist rebellion to overthrow the government,
furnishing them arms and other instruments to further the uprising. There is no question that the continuing
communist rebellion was one of the grave threats to the Republic that brought about the martial law situation.
Under General Order No. 12, jurisdiction over this offense has been vested exclusively upon military tribunals.
It cannot be said that petitioner has been singled out for trial for this offense before the military commission.
Pursuant to General Order No. 12, all "criminal cases involving subversion, sedition, insurrection or rebellion
or those committed in furtherance of, on the occasion of incident to or in connection with the commission of
said crimes" which were pending in the civil courts were ordered transferred to the military tribunals. This
jurisdiction of the tribunal, therefore, operates equally on all persons in like circumstances..
5. Neither are We impressed with petitioner's argument that only thru a judicial proceeding before the regular
courts can his right to due process be preserved. The guarantee of due process is not a guarantee of any
particular form of tribunal in criminal cases. A military tribunal of competent jurisdiction, accusation in due
form, notice and opportunity to defend and trial before an impartial tribunal, adequately meet the due process
requirement. Due process of law does not necessarily means a judicial proceeding in the regular courts. 14 The
guarantee of due process, viewed in its procedural aspect, requires no particular form of procedure. It implies
due notice to the individual of the proceedings, an opportunity to defend himself and "the problem of the
propriety of the deprivations, under the circumstances presented, must be resolved in a manner consistent
with essential fairness." 15 It means essentially a fair and impartial trial and reasonable opportunity for the
preparation of defense.16
Here, the procedure before the Military Commission, as prescribed in Presidential Decree No. 39, assures
observance of the fundamental requisites of procedural due process, due notice, an essentially fair and
impartial trial and reasonable opportunity for the preparation of the defense.17
6. It is, however, asserted that petitioner's trial before the military commission will not be fair and impartial,
as the President had already prejudged petitioner's cases and the military tribunal is a mere creation of the
President, and "subject to his control and direction." We cannot, however, indulge in unjustified assumptions.
Prejudice cannot be presumed, especially if weighed against the great confidence and trust reposed by the
people upon the President and the latter's legal obligation under his oath to "do justice to every man". Nor is
it justifiable to conceive, much less presume, that the members of the military commission, the Chief of Staff
of the Armed Forces of the Philippines, the Board of Review and the Secretary of National Defense, with their
corresponding staff judge advocates, as reviewing authorities, through whom petitioner's hypothetical
conviction would be reviewed before reaching the President, would all be insensitive to the great principles
of justice and violate their respective obligations to act fairly and impartially in the premises.
This assumption must be made because innocence, not wrongdoing, is to be presumed. The presumption of
innocence includes that of good faith, fair dealing and honesty. This presumption is accorded to every official
of the land in the performance of his public duty. There is no reason why such presumption cannot be accorded
to the President of the Philippines upon whom the people during this period has confided powers and
responsibilities which are of a very high and dedicate nature. The preservation of the rights guaranteed by the
Constitution rests at bottom exactly where the defense of the nation rests: in the good sense and good will of
the officials upon whom the Constitution has placed the responsibility of ensuring the safety of the nation in
times of national peril.
III
ADMINISTRATIVE ORDER NO. 355
We also find that petitioner's claim that Administrative Order No. 355 actually "strips him of his right to due
process" is negated by the basic purpose and the clear provisions of said Administrative Order. It was precisely
because of petitioner's complaint that he was denied the opportunity to be heard in the preliminary
investigation of his charges that the President created a Special Committee to reinvestigate the charges filed
against him in the military commission. The Committee is to be composed of a retired Justice of the Supreme
Court, to be designated by the Chief Justice, as Chairman, and four (4) members to be designated respectively
by the accused, the President of the Integrated Bar, the Secretary of Justice and the Secretary of National
Defense, all of whom, according to Administrative Order No. 355 "must be learned in the law, reputed for
probity, integrity, impartiality, incorruptibility and fairness...." It is intended that the Committee should
conduct the investigation with "utmost fairness, 'impartiality and objectivity' ensuring to the accused his
constitutional right to due process, to determine whether "there is reasonable ground to believe that the
offenses charged were in fact committed and the accused is probably guilty thereof."
Petitioner, however, objected by challenging in his supplemental petition before this Court the validity of
Administrative Order No, 355, on the pretense that by submitting to the jurisdiction of the Special Committee
he would be waiving his right to cross-examination because Presidential Decree No. 77, which applies to the
proceedings of the Special Committee, has done away with cross-examination in preliminary investigation.
The infirmity of this contention is apparent from the fact that the committee "shall have all the powers vested
by law in officials authorized to conduct preliminary investigations." We have held as implicit in the power of
the investigating Fiscal or Judge in the discharge of his grave responsibility of ascertaining the existence of
probable cause, is his right to cross-examine the witnesses since "cross-examination whether by the judge or
by the prosecution supplies the gap by permitting an instant contrast of falsehoods and opposing half-truths,
mixed with elements of truth, from which the examining judge or officer is better able to form a correct
synthesis of the real facts." 18
In the case at bar, petitioner's representative in the Committee having been conferred with "all the powers"
of officials authorized to conduct preliminary investigations, is, therefore, expressly authorized by Section 1[c]
of Presidential Decree No. 77 to subpoena the complainant and his witnesses and "profound clarificatory
questions". Viewed in the context of Our ruling in Abrera v.. Muoz, 19 this implies the authority of his
representative in the Committee to cross-examine the witnesses of the prosecution, in order to reach an
intelligent and correct conclusion on the existence of probable cause.
IV
PRELIMINARY INVESTIGATION
Equally untenable is petitioner's contention that his constitutional right to due process has been impaired
when the anti-subversion charges filed against him with the military commission were not investigated
preliminarily in accordance with Section 5 of the Anti-Subversion Act, but in the manner prescribed by
Presidential Decree No. 39, as amended by Presidential Decree No. 77. It is asserted that under the aforesaid
Presidential Decrees, he is precluded from cross-examining the prosecution witnesses and from being assisted
by counsel. Contrary to petitioner's contention, Section 1[b] of Presidential Decree No. 77 specifically grants
him the right to counsel, and Presidential Decree No. 328 amended Presidential Decree No. 39, precisely to
secure the substantial rights of the accused by granting him the right to counsel during preliminary
investigation. Under Section 5 of Republic Act No. 1700, the accused shall have the right "to cross-examine
witnesses against him" and in case the offense is penalized by prision mayor to death, the preliminary
investigation shall be conducted by the proper Court of First Instance. As to whether or not the denial to an
accused of an opportunity to cross-examine the witnesses against him in the preliminary investigation
constitutes an infringement of his right to due process, We have to advert to certain basic principles. The
Constitution "does not require the holding of preliminary investigations. The right exists only, if and when
created by statute." 20 It is "not an essential part of due process of law." 21 The absence thereof does not impair
the validity of a criminal information or affect the jurisdiction of the court over the case. 22 As a creation of the
statute it can, therefore, be modified or amended by law.
It is also evident that there is no curtailment of the constitutional right of an accused person when he is not
given the opportunity to "cross-examine the witnesses presented against him in the preliminary investigation
before his arrest, this being a matter that depends on the sound discretion of the Judge or investigating officer
concerned." 23
Speaking for the Court, Justice Tuason, in Bustos v. Lucero, 24 discussed the matter extensively,
thus: t.hqw
As applied to criminal law, substantive law is that which declares what acts are crimes and prescribes the
punishment for committing them, as distinguished from the procedural law which provides or regulates the
steps by which one who commits a crime is to be punished. (22 C.J.S., 49.) Preliminary investigation is
eminently and essentially remedial; it is the first step taken in a criminal prosecution.
As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence which is 'the mode and manner of
proving the competent facts and circumstances on which a party relies to establish the fact in dispute in judicial
proceedings' is identified with and forms part of the method by which, in private law, rights are enforced
and redress obtained, and, in criminal law, a law transgressor is punished. Criminal procedure refers to
pleading, evidence and practice. (State vs. Capaci, 154 So., 419; 179 La., 462.) The entire rules of evidence
have been incorporated into the Rules of Court. We can not tear down section 11 of Rule 108 on constitutional
grounds without throwing out the whole code of evidence embodied in these Rules.
In Beazeil vs. Ohio, 269 U.S., 167, 70 Law. ed., 216, the United States Supreme Court said: t.hqw
'Expressions are to be found in earlier judicial opinions to the effect that the constitutional limitation may be
transgressed by alterations in the rules of evidence or procedure. See Calder Bull, 3 Dall 386, 390. 1 L. ed., 648,
650; Cummings vs. Missouri, 4 Wall. 277, 326, 18 L. ed., 356, 364; Kring Missouri, 107 U.S. 221, 228, 232, 27 L.
ed., 507, 508, 510, 2 Sup. Ct. Rep. 443. And there may be procedural changes which operate to deny to the
accused a defense available under the laws in force at the time of the commission of his offense, or which
otherwise affect him in such a harsh and arbitrary manner as to fall within the constitutional prohibition. Kring
vs. Missouri, 107 U.S., 221, 27 L. ed., 507, 2 Sup. Ct. Rep., 443; Thompson vs. Utah, 170 US 343; 42 L. ed., 1061,
18 Sup. Ct. Rep., 620. But it is now well settled that statutory changes in the mode of trial or the rules of
evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial
manner to his disadvantage, are not prohibited. A statute which, after indictment, enlarges the class of
persons who may be witnesses at the trial, by removing the disqualification of persons convicted of felony, is
not an ex post facto law. Hopt vs. Utah, 110 U.S., 575, 28 L. ed., 263, 4 Sup. Ct. Rep., 202. 4 Am. Crime Rep
417. Nor is a statute which changes the rules of evidence after the indictment so as to render admissible
against the accused evidence previously held inadmissible, Thompson Missouri, 171 U.S., 380, 43 L. ed., 204,
18 Sup. Ct. Rep. 922; or which changes the place of trial, Gut vs. Minnesota, 9 Wall. 35, 19 L. ed., 573; or which
abolishes a court for hearing criminal appeals, creating a new one in its stead. See Duncan vs. Missouri, 152
U.S., 377, 382, 38 L. ed., 485, 487, 14 Sup. Ct. Rep., 570.'
Tested by this standard, we do not believe that the curtailment of the right of an accused in a preliminary
investigation to cross-examine the witness who had given evidence for his arrest is of such importance as to
offend against the constitutional inhibition. As we have said in the beginning, preliminary investigation is not
an essential part of due process of law. It may be suppressed entirely, and if this may be done, mere restriction
of the privilege formerly enjoyed thereunder can not be held to fall within the constitutional prohibition.
In rejecting the contention of the political offenders accused in the People's Court that their constitutional
right to equal protection of the laws was impaired because they were denied preliminary examination and
investigation, whereas the others who may be accused of the same crimes in the Court of First Instance shall
be entitled thereto, this Court said: t.hqw
(2) Section 22 in denying preliminary investigation to persons accused before the People's Court is justified by
the conditions prevailing when the law was enacted. In view of the great number of prisoners then under
detention and the length of time and amount of labor that would be consumed if so many prisoners were
allowed the right to have preliminary investigation, considered with the necessity of disposing of these cases
at the earliest possible dates in the interest of the public and of the accused themselves, it was not an unwise
measure which dispensed with such investigation in such cases. Preliminary investigation, it must be
remembered, is not a fundamental right guaranteed by the Constitution. For the rest, the constitutional
prohibition against discrimination among defendants placed in the same situation and condition is not
infringed. 25
It was realized that the procedure prescribed in Republic Act No. 5180 granting the complainant and
respondent in a preliminary investigation the right to cross-examine each other and their witnesses was "time
consuming and not conducive to the expeditious administration of justice". Hence, it was found necessary in
Presidential Decree No. 77 to simplify the procedure of preliminary investigation to conform to its summary
character, by eliminating the cross-examination by the contending parties of their respective witnesses which
in the past had made the proceeding the occasion for the full and exhaustive display of parties' evidence. The
procedure prescribed in the aforecited decrees appears justified by the necessity of disposing cases during
martial law, especially those affecting national security, at the earliest date. On the basis of the aforestated
settled principles, the curtailment of the right of an accused to cross-examine the witnesses against him in the
preliminary investigation does not impair any constitutional right. It may be relevant to note that recently
in Litton, et al. v. Castillo, et al., 26 this Court denied for lack of merit a petition challenging the validity of
Presidential Decree No. 77 issued on December 6, 1972, on the ground that aforesaid decree now "forms part
of the law of the land."
V
PERPETUATION OF TESTIMONY
Petitioner claims that the order of the Military Commission for the perpetuation of the testimony of
prosecution witnesses is void because no copy of the petition was previously served on him. He asserts that,
as a consequence, he was not given the opportunity to contest the propriety of the taking of the deposition
of the witnesses. It must be noted that petitioner does not dispute respondents' claim that on March 14, 1975,
he knew of the order allowing the taking of the deposition of prosecution witnesses on March 31, to continue
through April 1 to 4, 1975.
The provisions of Presidential Decree No. 328, dated October 31, 1973, for the conditional examination of
prosecution witnesses before trial, is similar to the provisions of Section 7 of Rule 119 of the Revised Rules of
Court. Presidential Decree No. 328 provides: t.hqw obviate any objection upon the ground of insufficiency, because then the party has actually had that
Where, upon proper application, it shall satisfactorily appear to the military tribunal before which a case is
pending, that a witness for the prosecution or the defense is too sick or infirm to appear at the trial, or has to
leave the Philippines with no definite date of returning thereto, or where delay in the taking of its testimony
may result in the failure of justice or adversely affect national security, the witness may forthwith be examined
and his deposition immediately taken, such examination to be by question and answer, in the presence of the
other party, or even in the latter's absence provided that reasonable notice to attend the examination or the
taking of the deposition has been served upon him, and will be conducted in the same manner as an
examination, at the trial, in which latter event the failure or refusal to attend the examination or the taking of
the deposition shall be considered a waiver. (Emphasis supplied.)
Section 7 of Rule 119 of the Revised Rules provides: t.hqw essential in a trial cannot be waived by the accused. 31 In support of the latter view, it has been argued that
Deposition of witness for the prosecution. Where, however, it shall satisfactorily appear that the witness
cannot procure bail, or is too sick or infirm to appear at the trial, as directed by the order of the court, or has
to leave the Philippines with no definite date of returning thereto, he may forthwith be conditionally examined
or his deposition immediately taken. Such examination or deposition must be by question and answer, in the
presence of the defendant or after reasonable notice to attend the examination or the taking of the deposition
has been served on him, and will be conducted in the same manner as an examination at the trial. Failure or
refusal on the part of the defendant to attend the examination or the taking of the deposition after notice
hereinbefore provided, shall be considered a waiver. The statement or deposition of the witness thus taken
may be admitted in behalf of or against the defendant. His testimony taken, the witness must thereupon be
discharged, if he has been detained.
The foregoing was taken substantially from Section 7 of Rule 115 of the old Rules of Court, with the difference,
among others, that the phrase "or after one hour notice" in the old Rules of Court has been changed to "or
after reasonable notice" in the Revised Rules of Court.
In Elago v. People, 27 this Court, in rejecting the contention that no written motion was filed by the prosecuting
attorney for the taking of the depositions and that less than one hour notice has been given the defendant,
held that "the one-hour notice mentioned in Section 7, Rule 115, of the Rules of Court, was intended by law
mainly to give the defendant time to attend the taking of a deposition and not to prepare for the taking thereof
because in reality there is no need for preparation. It is not a trial where the defendant has to introduce his
evidence. It is only taking down the statements of the witnesses for the prosecution with opportunity on the
part of the defendant to cross-examine them."
The thrust of Elago is that the order of the court authorizing the taking of the deposition of the witnesses of
the prosecution and fixing the date and time thereof is the one that must be served on the accused within a
reasonable time prior to that fixed for the examination of the witnesses so that the accused may be present
and cross-examine the witness. On this point of the time given the defendant to attend the taking of the
deposition, Professor Wigmore has the following to say: t.hqw
The opportunity of cross-examination involves two elements:
(1) Notice to the opponent that the deposition is to be taken at the time and place specified, and
(2) A sufficient interval of time to prepare for examination and to reach the place.
xxx xxx xxx
(2) The requirements as to the interval of time are now everywhere regulated by statute .... ; the rulings in
regard to the sufficiency of time are thus so dependent on the interpretation of the detailed prescriptions of
the local statutes that it would be impracticable to examine them here. But whether or not the time allowed
was supposedly insufficient or was precisely the time required by statute, the actual attendance of the party
opportunity of cross-examination ... for the sole sake of which the notice was required. 28
We, therefore, hold that the taking of the testimony or deposition was proper and valid.
VI
WAIVER OF PETITIONER'S PRESENCE
There is conflict among the authorities as to whether an accused can waive his right to be present at his trial.
Some courts have regarded the presence of the accused at his trial for felony as a jurisdictional requirement,
which cannot be waived. 29 Many others do not accept this view.30 In defense of the first view, it has been
stated that the public has an interest in the life and liberty of an accused and that which the law considers
the right is essentially for the benefit of the accused, 32 and that "since the accused, by pleading guilty, can
waive any trial at all, he should be able to waive any mere privilege on the trial that is designated only to aid
him in shielding himself from such result."33
In this jurisdiction, this Court, in People v. Avancea, 34 traced the history of the constitutional right of the
accused to be present at his trial from U.S. v. Karelsen 35 and U.S. v. Bello 36 Diaz v. United States 37 and People
v. Francisco. 38In the first two cases, it was ruled that one whose life or liberty is involved in the prosecution
for felony must be personally present at every stage of the trial when his substantive rights may be affected
by the proceedings and that it is not within his power to waive the right to be personally present. In Diaz v.
United States and People v. Francisco, this rule was modified. Upon the authority of
the Diaz and Francisco cases, the Court laid down as the law in this jurisdiction that: (1) in cases of felony, the
accused has the right to be present at every stage of the trial, inclusive of the arraignment and pronouncement
of the judgment; (2) where the offense is capital the right of the accused to be present at every stage of the
trial is indispensable and cannot be waived; (3) even in felonies not capital, if the accused is in custody, his
right to be present at every stage of the trial is likewise indispensable and cannot be waived; (4) where the
offense is not capital and the accused is not in custody his presence is indispensable only: (a) at the
arraignment; (b) at the time the plea is taken, if it be one of guilt; and (c) at the pronouncement of judgment.
The Court looted the rationale of Diaz v. United States as basis of its ruling, thus: t.hqw
... the court was called upon to pass on the question whether the provision in section 5 of the Philippine Civil
Government Act, securing to the accused in all criminal prosecutions 'the right to be heard by himself and
counsel,' makes his presence indispensable at every stage of the trial, or invests him with a right which he is
always free to assert, but which he also may waive by his voluntary act. After observing that an identical or
similar provision is found in the constitutions of the several states of the American Union, and that its
substantial equivalent is embodied in the 6th Amendment to the Constitution of the United States; that it is
the right which these constitutional provisions secure to persons accused of crime in that country that was
carried here by the congressional enactment; and that, therefore, according to a familiar rule, the prevailing
course of decision there may and should be accepted as determinative of the nature and measure of the right
here, Justice Van Devanter speaking for the court, said: 'As the offense in this instance was a felony, we may
put out of view the decisions dealing with this right in cases of misdemeanor. In cases of felony our courts,
with substantial accord, have regarded it as extending to every stage of the trial, inclusive of the empaneling
of the jury and the reception of the verdict, and as being scarcely less important to the accused than the right
of trial itself. And with like accord they have regarded an accused who is in custody and one who is charged
with a capital offense as incapable of waiving the right; the one, because his presence or absence is not within
his own control; and the other because, in addition to being usually in custody, he is deemed to suffer the
constraint naturally incident to an apprehension of the lawful penalty that would follow conviction. But, where
the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial
has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent
the completion of the trial, but, on the contrary, operates as a waiver of his right to be present, and leaves the
court free to proceed with the trial in like manner and with like effect as if he were present.' 39
In Avancea, the issue was whether the defendant charged with an offense which is not capital had impliedly
waived his right to be present at his trial, because of his failure to appear in court at the trial of his case.
Under the present Constitution, however, trial even of a capital offense may proceed notwithstanding the
absence of the accused. It is now provided that "after arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been duly notified and his failure to appear is unjustified." 40
On the basis of the aforecited provision of the Constitution which allows trial of an accused in absentia, the
issue has been raised whether or not petitioner could waive his right to be present at the perpetuation of
testimony proceedings before respondent Commission..
As a general rule, subject to certain exceptions, any constitutional or statutory right may be waived if such
waiver is not against public policy. The personal presence of the accused from the beginning to the end of a
trial for felony, involving his life and liberty, has been considered necessary and vital to the proper conduct of
his defense. The "trend of modern authority is in favor of the doctrine that a party in a criminal case may waive
irregularities and rights, whether constitutional or statutory, very much the same as in a civil case."41
There are, for instance, certain rights secured to the individual by the fundamental charter which may be the
subject of waiver. The rights of an accused to defend himself in person and by attorney, to be informed of the
nature and cause of the accusation, to a speedy and public trial, and to meet the witnesses face to face, as
well as the right against unreasonable searches and seizures, are rights guaranteed by the Constitution. They
are rights necessary either because of the requirements of due process to ensure a fair and impartial trial, or
of the need of protecting the individual from the exercise of arbitrary power. And yet, there is no question
that all of these rights may be waived. 42Considering the aforecited provisions of the Constitution and the
absence of any law specifically requiring his presence at all stages of his trial, there appears, therefore, no
logical reason why petitioner, although he is charged with a capital offense, should be precluded from waiving
his right to be present in the proceedings for the perpetuation of testimony, since this right, like the others
aforestated, was conferred upon him for his protection and benefit.
It is also important to note that under Section 7 of Rule 119 of the Revised Rules of Court (Deposition of witness
for the prosecution) the "Failure or refusal on the part of the defendant to attend the examination or the
taking of the deposition after notice hereinbefore provided, shall be considered a waiver" (Emphasis supplied.)
Similarly, Presidential Decree No. 328 expressly provides that " ... the failure or refusal to attend the
examination or the taking of the deposition shall be considered a waiver." (Emphasis supplied).
It is for the foregoing reasons that the writer of this opinion voted with the six (6) Justices who ruled on the
full right of petitioner to waive his presence at said proceedings..
Since only six (6) Justices (Fernando, Teehankee, Barredo, Antonio, Muoz Palma and Aquino) are of the view
that petitioner may waive his right to be present at all stages of the proceedings while five (5) Justices (Castro,
Makasiar, Esguerra, Concepcion Jr. and Martin) are in agreement that he may so waive such right, except when
he is to be identified, the result is that the respondent Commission's Order requiring his presence at all times
during the proceedings before it should be modified, in the sense that petitioner's presence shall be required
only in the instance just indicated. The ruling in People v. Avancea 43 is thus pro tanto modified.
Finally, it is insisted that even if said orders and decrees were valid as martial law measures, they have ceased
to be so upon the termination of the emergency. In Aquino, et al. v. Enrile, et al., supra, We adverted to the
fact that the communist rebellion which impelled the proclamation of martial law has not abated. In the
absence of any official proclamation by the President of the cessation of the public emergency, We have no
basis to conclude that the rebellion and communist subversion which compelled the declaration of martial
law, no longer pose a danger to public safety.
It is important to note here that an accused being tried before a military tribunal enjoys the specific
constitutional safeguards pertaining to criminal trials. Thus, he is entitled to be heard by himself and
counsel, 44 to be informed of the nature and cause of the accusation, 45 to meet the witnesses face to face, to
have compulsory process to secure the attendance of witnesses and the production of evidence in his
behalf, 46 and to be exempt from being a witness against himself. As in trial before civil courts, the presumption
of innocence can only be overcome by evidence beyond reasonable doubt of the guilt of the accused. 47 These
tribunals, in general, are "bound to observe the fundamental rules of law and principles of justice observed
and expounded by the civil judicature." 48 Section 11 of the Manual for Courts-Martial specifically provides
that the "rules of evidence generally recognized in the trial of criminal cases in the courts of the Philippines
shall be applied by courts-martial." 49 This is applicable to trials in the military commission .50 There is,
therefore, no justification for petitioner's contention that such military tribunals are concerned primarily with
the conviction of an accused and that proceedings therein involve the complete destruction and abolition of
petitioner's constitutional rights. This is not, however, to preclude the President from considering the
advisability of the transfer of these cases to the civil courts, as he has previously announced.
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered dismissing the petitions for prohibition with
preliminary injunction and setting aside the temporary restraining order issued on April 8, 1975, with costs
against petitioner
G.R. No. 101273 July 3, 1992
CONGRESSMAN ENRIQUE T. GARCIA (Second District of Bataan), petitioner,
vs.
THE EXECUTIVE SECRETARY, THE COMMISSIONER OF CUSTOMS, THE NATIONAL ECONOMIC AND
DEVELOPMENT AUTHORITY, THE TARIFF COMMISSION, THE SECRETARY OF FINANCE, and THE ENERGY
REGULATORY BOARD, respondents.
FELICIANO, J.:
On 27 November 1990, the President issued Executive Order No. 438 which imposed, in addition to any other
duties, taxes and charges imposed by law on all articles imported into the Philippines, an additional duty of
five percent (5%) ad valorem. This additional duty was imposed across the board on all imported articles,
including crude oil and other oil products imported into the Philippines. This additional duty was subsequently
increased from five percent (5%) ad valorem to nine percent (9%) ad valorem by the promulgation of Executive
Order No. 443, dated 3 January 1991.
On 24 July 1991, the Department of Finance requested the Tariff Commission to initiate the process required
by the Tariff and Customs Code for the imposition of a specific levy on crude oil and other petroleum products,
covered by HS Heading Nos. 27.09, 27.10 and 27.11 of Section 104 of the Tariff and Customs Code as amended.
Accordingly, the Tariff Commission, following the procedure set forth in Section 401 of the Tariff and Customs
Code, scheduled a public hearing to give interested parties an opportunity to be heard and to present evidence
in support of their respective positions.
Meantime, Executive Order No. 475 was issued by the President, on 15 August 1991 reducing the rate of
additional duty on all imported articles from nine percent (9%) to five percent (5%) ad valorem, except in the
cases of crude oil and other oil products which continued to be subject to the additional duty of nine percent
(9%) ad valorem.
Upon completion of the public hearings, the Tariff Commission submitted to the President a "Report on Special
Duty on Crude Oil and Oil Products" dated 16 August 1991, for consideration and appropriate action. Seven
(7) days later, the President issued Executive Order No. 478, dated 23 August 1991, which levied (in addition
to the aforementioned additional duty of nine percent (9%) ad valorem and all other existing ad
valorem duties) a special duty of P0.95 per liter or P151.05 per barrel of imported crude oil and P1.00 per liter
of imported oil products.
In the present Petition for Certiorari, Prohibition and Mandamus, petitioner assails the validity of Executive
Orders Nos. 475 and 478. He argues that Executive Orders Nos. 475 and 478 are violative of Section 24, Article
VI of the 1987 Constitution which provides as follows:
Sec. 24: All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local
application, and private bills shall originate exclusively in the House of Representatives, but the Senate may
propose or concur with amendments.
He contends that since the Constitution vests the authority to enact revenue bills in Congress, the President
may not assume such power by issuing Executive Orders Nos. 475 and 478 which are in the nature of revenue-
generating measures.
Petitioner further argues that Executive Orders No. 475 and 478 contravene Section 401 of the Tariff and
Customs Code, which Section authorizes the President, according to petitioner, to increase, reduce or remove
tariff duties or to impose additional duties only when necessary to protect local industries or products
but not for the purpose of raising additional revenue for the government.
Thus, petitioner questions first the constitutionality and second the legality of Executive Orders Nos. 475 and
478, and asks us to restrain the implementation of those Executive Orders. We will examine these questions
in that order.
Before doing so, however, the Court notes that the recent promulgation of Executive Order No. 507 did not
render the instant Petition moot and academic. Executive Order No. 517 which is dated 30 April 1992 provides
as follows:
Sec. 1. Lifting of the Additional Duty. The additional duty in the nature of ad valorem imposed on all
imported articles prescribed by the provisions of Executive Order No. 443, as amended, is
hereby lifted; Provided, however, that the selected articles covered by HS Heading Nos. 27.09 and 27.10 of
Section 104 of the Tariff and Customs Code, as amended, subject of Annex "A" hereof, shall continue to be
subject to the additional duty of nine (9%) percent ad valorem.
Under the above quoted provision, crude oil and other oil products continue to be subject to the additional
duty of nine percent (9%) ad valorem under Executive Order No. 475 and to the special duty of P0.95 per liter
of imported crude oil and P1.00 per liter of imported oil products under Executive Order No. 478.
Turning first to the question of constitutionality, under Section 24, Article VI of the Constitution, the
enactment of appropriation, revenue and tariff bills, like all other bills is, of course, within the province of the
Legislative rather than the Executive Department. It does not follow, however, that therefore Executive Orders
Nos. 475 and 478, assuming they may be characterized as revenue measures, are prohibited to the President,
that they must be enacted instead by the Congress of the Philippines. Section 28(2) of Article VI of the
Constitution provides as follows:
(2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such
limitations and restrictions as it may impose, tariff rates, import and export quotas, tonage and wharfage dues,
and other duties or imposts within the framework of the national development program of the Government.
(Emphasis supplied)
There is thus explicit constitutional permission 1 to Congress to authorize the President "subject to such
limitations and restrictions is [Congress] may impose" to fix "within specific limits" "tariff rates . . . and other
duties or imposts . . ."
The relevant congressional statute is the Tariff and Customs Code of the Philippines, and Sections 104 and
401, the pertinent provisions thereof. These are the provisions which the President explicitly invoked in
promulgating Executive Orders Nos. 475 and 478. Section 104 of the Tariff and Customs Code provides in
relevant part:
Sec. 104. All tariff sections, chapters, headings and subheadings and the rates of import duty under Section
104 of Presidential Decree No. 34 and all subsequent amendments issued under Executive Orders and
Presidential Decrees are hereby adopted and form part of this Code.
There shall be levied, collected, and paid upon all imported articles the rates of duty indicated in the Section
under this section except as otherwise specifically provided for in this Code: Provided, that, the maximum rate
shall not exceed one hundred per cent ad valorem.
The rates of duty herein provided or subsequently fixed pursuant to Section Four Hundred One of this Code
shall be subject to periodic investigation by the Tariff Commission and may be revised by the President upon
recommendation of the National Economic and Development Authority.
xxx xxx xxx
(Emphasis supplied)
Section 401 of the same Code needs to be quoted in full:
Sec. 401. Flexible Clause.
a. In the interest of national economy, general welfare and/or national security, and subject to the limitations
herein prescribed, the President, upon recommendation of the National Economic and Development Authority
(hereinafter referred to as NEDA), is hereby empowered: (1) to increase, reduce or remove existing protective
rates of import duty (including any necessary change in classification). The existing rates may be increased or
decreased but in no case shall the reduced rate of import duty be lower than the basic rate of ten (10) per cent
ad valorem, nor shall the increased rate of import duty be higher than a maximum of one hundred (100) per
cent ad valorem; (2) to establish import quota or to ban imports of any commodity, as may be necessary; and
(3) to impose an additional duty on all imports not exceeding ten (10) per cent ad valorem, whenever necessary;
Provided, That upon periodic investigations by the Tariff Commission and recommendation of the NEDA, the
President may cause a gradual reduction of protection levels granted in Section One hundred and four of this
Code, including those subsequently granted pursuant to this section.
b. Before any recommendation is submitted to the President by the NEDA pursuant to the provisions of this
section, except in the imposition of an additional duty not exceeding ten (10) per cent ad valorem, the
Commission shall conduct an investigation in the course of which they shall hold public hearings wherein
interested parties shall be afforded reasonable opportunity to be present, produce evidence and to be heard.
The Commission shall also hear the views and recommendations of any government office, agency or
instrumentality concerned. The Commission shall submit their findings and recommendations to the NEDA
within thirty (30) days after the termination of the public hearings.
c. The power of the President to increase or decrease rates of import duty within the limits fixed in subsection
"a" shall include the authority to modify the form of duty. In modifying the form of duty, the corresponding ad
valorem or specific equivalents of the duty with respect to imports from the principal competing foreign
country for the most recent representative period shall be used as bases.
d. The Commissioner of Customs shall regularly furnish the Commission a copy of all customs import entries
as filed in the Bureau of Customs. The Commission or its duly authorized representatives shall have access to,
and the right to copy all liquidated customs import entries and other documents appended thereto as finally
filed in the Commission on Audit.
e. The NEDA shall promulgate rules and regulations necessary to carry out the provisions of this section.
f. Any Order issued by the President pursuant to the provisions of this section shall take effect thirty (30) days
after promulgation, except in the imposition of additional duty not exceeding ten (10) per cent ad
valorem which shall take effect at the discretion of the President. (Emphasis supplied)
Petitioner, however, seeks to avoid the thrust of the delegated authorizations found in Sections 104 and 401
of the Tariff and Customs Code, by contending that the President is authorized to act under the Tariff and
Customs Code only "to protect local industries and products for the sake of the national economy, general
welfare and/or national security." 2 He goes on to claim that:
E.O. Nos. 478 and 475 having nothing to do whatsoever with the protection of local industries and products for
the sake of national economy, general welfare and/or national security. On the contrary, they work in reverse,
especially as to crude oil, an essential product which we do not have to protect, since we produce only minimal
quantities and have to import the rest of what we need.
These Executive Orders are avowedly solely to enable the government to raise government finances, contrary
to Sections 24 and 28 (2) of Article VI of the Constitution, as well as to Section 401 of the Tariff and Customs
Code. 3 (Emphasis in the original)
The Court is not persuaded. In the first place, there is nothing in the language of either Section 104 or of 401
of the Tariff and Customs Code that suggest such a sharp and absolute limitation of authority. The entire
contention of petitioner is anchored on just two (2) words, one found in Section 401 (a)(1):
"existing protective rates of import duty," and the second in the proviso found at the end of Section 401
(a): "protection levels granted in Section 104 of this Code . . . . " We believe that the words "protective" and
''protection" are simply not enough to support the very broad and encompassing limitation which petitioner
seeks to rest on those two (2) words.
In the second place, petitioner's singular theory collides with a very practical fact of which this Court may take
judicial notice that the Bureau of Customs which administers the Tariff and Customs Code, is one of the two
(2) principal traditional generators or producers of governmental revenue, the other being the Bureau of
Internal Revenue. (There is a third agency, non-traditional in character, that generates lower but still
comparable levels of revenue for the government The Philippine Amusement and Games Corporation
[PAGCOR].)
In the third place, customs duties which are assessed at the prescribed tariff rates are very much like taxes
which are frequently imposed for both revenue-raising and for regulatory purposes. 4 Thus, it has been held
that "customs duties" is "the name given to taxes on the importation and exportation of commodities, the
tariff or tax assessed upon merchandise imported from, or exported to, a foreign country." 5 The levying of
customs duties on imported goods may have in some measure the effect of protecting local industries
where such local industries actually exist and are producing comparable goods. Simultaneously, however, the
very same customs duties inevitably have the effect of producing governmental revenues. Customs duties like
internal revenue taxes are rarely, if ever, designed to achieve one policy objective only. Most commonly,
customs duties, which constitute taxes in the sense of exactions the proceeds of which become public
funds 6 have either or both the generation of revenue and the regulation of economic or social activity as
their moving purposes and frequently, it is very difficult to say which, in a particular instance, is the dominant
or principal objective. In the instant case, since the Philippines in fact produces ten (10) to fifteen percent
(15%) of the crude oil consumed here, the imposition of increased tariff rates and a special duty on imported
crude oil and imported oil products may be seen to have some "protective" impact upon indigenous oil
production. For the effective, price of imported crude oil and oil products is increased. At the same time, it
cannot be gainsaid that substantial revenues for the government are raised by the imposition of such
increased tariff rates or special duty.
In the fourth place, petitioner's concept which he urges us to build into our constitutional and customs law, is
a stiflingly narrow one. Section 401 of the Tariff and Customs Code establishes general standards with which
the exercise of the authority delegated by that provision to the President must be consistent: that authority
must be exercised in "the interest of national economy, general welfare and/or national security." Petitioner,
however, insists that the "protection of local industries" is the only permissible objective that can be secured
by the exercise of that delegated authority, and that therefore "protection of local industries" is the sum total
or the alpha and the omega of "the national economy, general welfare and/or national security." We find it
extremely difficult to take seriously such a confined and closed view of the legislative standards and policies
summed up in Section 401. We believe, for instance, that the protection of consumers, who after all constitute
the very great bulk of our population, is at the very least as important a dimension of "the national economy,
general welfare and national security" as the protection of local industries. And so customs duties may be
reduced or even removed precisely for the purpose of protecting consumers from the high prices and shoddy
quality and inefficient service that tariff-protected and subsidized local manufacturers may otherwise impose
upon the community.
It seems also important to note that tariff rates are commonly established and the corresponding customs
duties levied and collected upon articles and goods which are not found at all and not produced in the
Philippines. The Tariff and Customs Code is replete with such articles and commodities: among the more
interesting examples are ivory (Chapter 5, 5.10); castoreum or musk taken from the beaver (Chapter 5,
5.14); Olives (Chapter 7, Notes); truffles or European fungi growing under the soil on tree roots (Chapter 7,
Notes); dates (Chapter 8, 8.01); figs (Chapter 8, 8.03); caviar (Chapter 16, 16.01); aircraft (Chapter 88,
88.0l); special diagnostic instruments and apparatus for human medicine and surgery (Chapter 90, Notes); X-
ray generators; X-ray tubes;
X-ray screens, etc. (Chapter 90, 90.20); etc. In such cases, customs duties may be seen to be imposed either
for revenue purposes purely or perhaps, in certain cases, to discourage any importation of the items involved.
In either case, it is clear that customs duties are levied and imposed entirely apart from whether or not there
are any competing local industries to protect.
Accordingly, we believe and so hold that Executive Orders Nos. 475 and 478 which may be conceded to be
substantially moved by the desire to generate additional public revenues, are not, for that reason alone, either
constitutionally flawed, or legally infirm under Section 401 of the Tariff and Customs Code. Petitioner has not
successfully overcome the presumptions of constitutionality and legality to which those Executive Orders are
entitled. 7
The conclusion we have reached above renders it unnecessary to deal with petitioner's additional contention
that, should Executive Orders Nos. 475 and 478 be declared unconstitutional and illegal, there should be a roll
back of prices of petroleum products equivalent to the "resulting excess money not be needed to adequately
maintain the Oil Price Stabilization Fund (OPSF)." 8
WHEREFORE, premises considered, the Petition for Certiorari, Prohibition and Mandamus is hereby
DISMISSED for lack of merit. Costs against petitioner.
SO ORDERED.
G.R. No. L-4221 August 30, 1952
MARCELO D. MONTENEGRO, petitioner-appellant,
vs.
GEN. MARIANO CASTAEDA, and COLONEL EULOGIO BALAO, respondents-appellees.
Felixberto M. Serrano and Honorio Ilagan for appellant.
Office of the Solicitor General Pompeyo Diaz and Solicitor Felix V. Makasiar for appellees.
BENGZON, J.:
The purpose of this appeal from the Court of First Instance of Quezon City is to test the validity of Proclamation
No. 210 suspending the privilege of the writ of habeas corpus.
A few months ago the same proclamation came up for discussion in connection with the request for bail of
some prisoners charged with rebellion.1 The divided opinion of this Court did not squarely pass on the validity
of the proclamation; but, assuming it was obligatory, both sides proceeds to determine its effect upon the
right of which prisoners to go on bail.
This decision will now consider the points debated regarding the aforesaid residential order.
The facts are few and simple: About five o'clock in the morning of October 18, 1950, Maximino Montenegro
was arrested with others at the Samanillo Bldg. Manila, by agents of the Military Intelligence Service of the
Armed Forces of the Philippines, for complicity with a communistic organization in the commission of acts of
rebellion, insurrection or sedition. So far as the record discloses, he is still under arrest in the custody by
respondents. On October 22, 1950, The President issued Proclamation No. 210 suspending the privilege of the
writ of habeas corpus. On October 21, 1950, Maximino's father, the petitioner, submitted this application for
a writ of habeas corpus seeking the release of his son.
Opposing the writ, respondents admitted having the body of Maximino, but questioned judicial authority to
go further in the matter, invoking the above-mentioned proclamation.
Petitioner replied that such proclamation was void, and that, anyway, it did not apply to his son, who had been
arrested before its promulgation. Heeding the suspension order, the court of first instance denied the release
prayed for. Hence this appeal, founded mainly on the petitioner's propositions:.
(a) The proclamation is unconstitutional "because it partakes of bill of attainder, or an ex post facto law; and
unlawfully includes sedition which under the Constitution is not a ground for suspension";
(b) Supposing the proclamation is valid, no prima facie.
(c) "There is no state of invasion, insurrection or rebellion, or imminent danger thereof," the only situations
permitting discontinuance of the writ of habeas corpus; showing was made that the petitioner's son was
included within the terms thereof.
Proclamation No. 210 reads partly as follows:
WHEREAS, lawless elements of the country have committed overt acts of sedition, insurrection and rebellion
for the purpose of overthrowing the duly constituted authorities and in pursuance thereof, have created a
state of lawlessness and disorder affecting public safety and the security of the state;
WHEREAS, these acts of sedition, insurrection, and rebellion consisting of armed raids, sorties, and ambushes
and the wanton acts of murder, rape, spoilage, looting, arson, planned destruction of public and private
buildings, and attacks against police and constabulary detachments, as well as against civilian lives and
properties as reported by the Commanding General of the Armed Forces, have seriously endangered and still
continue to endanger the public safety;
WHEREAS, these acts of sedition, insurrection and rebellion have been perpetrated by various groups well
organized for concerted actions and well armed with machine guns, rifles, pistols and other automatic
weapons, by reason whereof there is actual danger of rebellion which may extend throughout the country;
Whereas, 100 leading members of these lawless elements have been apprehended and the presently under
detentions, and strong and convincing evidence has been found in their possession to show that they are
engaged in the rebellious, seditious and otherwise subversive acts as above set forth; and
Whereas, public safety requires that immediate and effective action be taken to insure the peace and security
of the population and to maintain the authority of the government;
NOW, THEREFORE, I, ELPIDIO QUIRINO, President of the Philippines, by virtue of the powers vested upon me
by article VII, section 10, paragraph (2) of the Constitution, do hereby suspend the privilege of the writ
of habeas corpus for the persons presently detained, as well as all others who may be hereafter similarly
detained for the crimes of sedition, insurrection or rebellion, and or on the occasion thereof, or incident
thereto, or in connection therewith.
A. It is first argued that the proclamation is invalid because it "partakes" of a bill of attainder or an ex post
facto law, and violates the constitutional percept that no bill of attainder or ex post facto law shall be passed.
The argument is devoid of merit. The prohibition applies only to statutes. U.S. vs. Gen. El., 80 Fed. Supp. 989;
De Pass vs. Bidwell, 24 Fed., 615.2 A bill of attainder is a legislative act which inflicts punishment without
judicial trial. (16 C.J.S. p. 902; U.S. vs. Lovett (1946) 328 U.S. 303). Anyway, if, as we find, the stay of the writ
was ordered in accordance with the powers expressly vested in the President by the Constitution, such order
must be deemed an exception to the general prohibition against ex post facto laws and bills of attainder
supposing there is a conflict between the prohibition and the suspension.
On the other hand there is no doubt it was erroneous to include those accused of sedition among the persons
as to whom suspension of the writ is decreed. Under the Constitution the only grounds for suspension of the
privilege of the writ are "invasion, insurrection, rebellion or imminent danger thereof." Obviously, however,
the inclusion of sedition does not invalidate the entire proclamation; and it is immaterial in this case, inasmuch
as the petitioner's descendant is confined in jail not only for sedition, but for the graver offense of rebellion
and insurrection. Without doing violence to the presidential directive, but in obedience to the supreme law of
the land, the word "sedition" in Proclamation No. 210 should be deemed a mistake or surplusage that does
not taint the decree as a whole.
B. In his second proposition appellant insists there is no state of invasion, insurrection, rebellion or imminent
danger thereof. "There are" he admits "intermittent sorties and lightning attacks by organized bands in
different places"; but, he argues, "such sorties are occasional, localized and transitory. And the proclamation
speaks no more than of overt of insurrection and rebellion, not of cases of invasion, insurrection or rebellion
or imminent danger thereof." On this subject it is noted that the President concluded from the facts recited in
the proclamation, and the other connected therewith, that "there is actual danger rebellion which may extend
throughout the country." Such official declaration implying much more than imminent danger of rebellion
amply justifies the suspension of the writ.
To the petitioner's unpracticed eye the repeated encounters between dissident elements and military troops
may seem sporadic, isolated, or casual. But the officers charged with the Nation's security, analyzed the extent
and pattern of such violent clashes and arrived at the conclusion that they are warp and woof of a general
scheme to overthrow his government vi et armis, by force and arms.
And we agree with the Solicitor General that in the light of the views of the United States Supreme Court thru,
Marshall, Taney and Story quoted with approval in Barcelon vs. Baker (5 Phil., 87, pp. 98 and 100) the authority
to decide whenever the exigency has arisen requiring the suspension belongs to the President and "his
decision is final and conclusive" upon the courts and upon all other persons.
Indeed as Justice Johnston said in that decision, whereas the Executive branch of the Government is enabled
thru its civil and military branches to obtain information about peace and order from every quarter and corner
of the nation, the judicial department, with its very limited machinery can not be in better position to ascertain
or evaluate the conditions prevailing in the Archipelago.
But even supposing the President's appraisal of the situation is merely prima facie, we see that petitioner in
this litigation has failed to overcome the presumption of correctness which the judiciary accords to acts of the
Executive and Legislative Departments of our Government.
C. The petitioner's last contention is that the respondents failed to establish that this son is included within
the terms of the proclamation.
On this topic, respondents' return officially informed the court that Maximino had been arrested and was
under custody for complicity in the commission of acts of rebellion, insurrection and sedition against the
Republic of the Philippines. Not having traversed that allegation in time, petitioner must be deemed to have
conceded it.
. . . In the absence of a denial, or appropriate pleading avoiding their effect, averment of facts in the return
will be taken as true and conclusive, regardless of the allegations contained in the petition; and the only
question for determination is whether or not the facts stated in the return, as a matter of law, authorizes the
restraint under investigation. (39 C.J.S., 664-655.)
D. An interesting issue is posed by amici curiae. The Bill of Rights prohibits suspension of the privilege of the
writ of habeas corpus except when the public safety requires it, in cases of (1) invasion (2) insurrection or (3)
rebellion.
Article VII Section 10 authorizes the President to suspend the privilege, when public safety requires it, in cases
of (1) invasion (2) insurrection or (3) rebellion or (4) imminent danger thereof.
"Imminent danger," is no cause for suspension under the Bill of Rights. It is under Article VII. To complicate
matters, during the debates of the Constitutional Convention on the Bill of Rights, particularly the suspension
of the writ, the Convention voted down an amendment adding a fourth cause of suspension: imminent danger
of invasion, insurrection of rebellion.
Professor Aruego a member of the Convention, describes the incident as follows:
During the debates on the first draft, Delegate Francisco proposed as an amendment inserting, as a fourth
cause for the suspension of the writ of habeas corpus imminent danger of the three causes included herein.
When submitted to a vote for the first time, the amendment was carried.
After this motion for a reconsideration of the amendment was approved, Delegate Orense spoke against the
amendment alleging that it would be dangerous to make imminent danger a ground for the suspension of the
writ of habeas corpus. In part, he said:
"Gentlemen, this phrase is too ambigous, and in the hands of a President who believes himself more or less a
dictator, it is extremely dangerous, it would be a sword with which he would behead us.".
In defense of the amendment, Delegate Francisco pointed out that it was intended to make this part of the
bill of rights conform to that part of the draft giving the President the power to suspend the writ of habeas
corpusalso in the case of an imminent danger of invasion or rebellion. When asked by Delegate Rafols if the
phrase, imminent danger, might not be struck out from this corresponding provisions under the executive
power instead, Delegate Francisco answered:
"Outright, it is possible to eliminate the phrase, imminent danger thereof, in the page I have mentioned. But I
say, going to the essence of referring exclusively to the necessity of including the words, of imminent danger
of one or the other, I wish to say the following: that it should not be necessary that there exists a rebellion,
insurrection or invasion in order that habeas corpus may be suspended. It should be sufficient that there exists
not a danger but an imminent danger, and the word, imminent, should be maintained. When there exists an
imminent danger, the State requires for its protection and for that of all the citizens the suspension of habeas
corpus."
When put to vote for the second time, the amendment was defeated with 72 votes against and 56 votes in
favor of the same. (I Aruego's Framing of the Philippine Constitution, pp. 180-181)
Nevertheless when the President's specific powers under Article VII, were taken up there was no objection to
his authority to suspend in case of "imminent danger". (At least we are not informed of any debate thereon.)
Now then, what is the effect of the seeming discrepancy?
Is the prohibition of suspension in the bill of rights to be interpreted as limiting Legislative powers only not
executive measures under section VII? Has article VII (sec. 10) pro tanto modified the bill of rights in the same
manner that a subsequent section of a statue modifies a previous one?
The difference between the two constitutional provisions would seem to be: whereas the bill of
rights impliedly denies suspension in case of imminent dangers of invasion etc., article VII sec. 10 expressly
authorizes the President to suspend when there is imminent danger of invasion etc.
The following statements in a footnote in Cooley's Constitutional limitations (8th Ed.) p. 129, appear to be
persuasive:
It is a general rule in the construction of writings, that, a general intent appearing, it shall control the particular
intent; but this rule must sometimes give way, and effect must be given to a particular intent plainly expressed
in one part of a constitution, though apparently opposed to a general intent deduced from other parts. Warren
V. Shuman, 5 Tex. 441. In Quick V. Whitewater Township, 7 Ind. 570, it was said that if two provisions of a
written constitutions are irreconcilably repugnant, that which is last in order of time and in local position is to
be preferred. In Gulf, C. & S. F. Ry. Co. v. Rambolt, 67 tex. 654, 4 S.W. 356, this rule was recognized as a last
resort, but if the last provision is more comprehensive and specific, it was held that it should be given effect
on that ground.
And in Hoag vs. Washington Oregon Corp. (1915) 147 Pac. Rep., 756 at p. 763 it was said:
It is a familiar rule of construction that, where two provisions of a written Constitution are repugnant to each
other, that which is last in order of time and in local position is to be preferred. Quick v. White Water Township,
7 Ind., 570; G., C. & S.F. Ry. Co. v. Rambolt, 67 Tex. 654, 4 S.W. 356. So, even assuming the two clauses discuss
are repugnant, the latter must prevail.
Wherefore in the light of this precedents, the constitutional authority of the President to suspend in case of
imminent danger of invasion, insurrection or rebellion under article VII may not correctly be placed in doubt.
E. The petitioner insisted in the court below that the suspension should not apply to his son, because the latter
had been arrested and had filed the petition before the Executive proclamation. On this phase of the
controversy, it is our opinion that the order of suspension affects the power of the court's and operates
immediately on all petitions therein pending at the time of its promulgation.
A proclamation of the President suspending the writ of habeas corpus was held valid and efficient in law to
suspend all proceedings pending upon habeas corpus, which was issued and served prior to the date of the
proclamation. Matter of Dunn, D.C. N.Y. 1863, 25 How. Prac. 467, 8 Fed. Cas. 4,171.
F. Premises considered, the decision of the court a quo refusing to release the prisoner is affirmed, without
costs.
G.R. No. 2808 September 30, 1905
FELIX BARCELON, petitioner,
vs.
DAVID J. BAKER, JR., AND JOHN DOE THOMPSON, respondents.
Fisher and Cohn for petitioner.
Attorney-General Wilfley for respondents.
JOHNSON, J.:
This was an application by Fred C. Fisher and Charles C. Cohn, attorneys at law, on behalf of the plaintiff, Felix
Barcelon, for a writ of habeas corpus. The said application alleges, among other things, the following:
(1) That the said applicant is detained and restrained of his liberty at the town of Batangas, in the Province of
Batangas, Philippine Islands.
(2) That the person who detained and restrained the said applicant of his liberty is John Doe Thompson, captain
of the Philippines Constabulary, acting under and in pursuance of the orders of David J. Baker, Jr., colonel of
the Philippines Constabulary.
(3) That the detention and restraint of the said applicant is wholly without legal authority therefor. [Here
follows a statement of the alleged causes of arrest and detention of the said applicant by the said defendants.]
(4) That the detention and restraint of the said applicant is not under or by virtue of any process issued by any
court or magistrate, nor by virtue of any judgment or order of any court of record, nor of any court nor of any
magistrate whatsoever.
(5) That there has not existed during any of the times in this petition mentioned, and there does not now exist,
is said Province of Batangas, Philippine islands, nor in any part thereof, rebellion, insurrection, or invasion, nor
any of them, in any form or degree; and that all the courts of law, organized and provided by law for the
Province of Batangas, have been at all of the times hereinbefore mentioned in the full and complete exercise
of their functions, without interruption of any nature or kind.
Wherefore your petitioners pray that a writ of habeas corpus be issued, requiring the said John Doe
Thompson, captain of the Philippines Constabulary, and David J. Baker, jr., colonel of the Philippines
Constabulary, to bring before this honorable court the person of the said Felix Barcelon, and that after a full
hearing in accordance with law the said Felix Barcelon be liberated and released from all restraint and
detention, and that respondents be enjoined from any and all interference with the personal liberty of said
Felix Barcelon, and to pay the costs of this proceeding. (Signed) Fred C. Fisher. Charles C. Cohn. (The foregoing
facts were duly sworn to by the said applicants.)
The court, after considering the foregoing petition, made an order on the 3rd day of August, 1905, directing
the said David J. Baker, Jr., and the said John Doe Thompson to appear before this court on the 4th day of
August, 1905, at 9 o'clock a.m., to show cause why the writ of habeas corpus should not be granted in
accordance with the prayer of said petition.
At 9 o'clock a.m. on the 4th day of August the respondents, by the Attorney-General of the Philippine Islands,
through George R. Harvey, representing the latter, filed their answer to the foregoing petition. By reason of
the fact that the said answer failed to disclose whether or not the said Felix Barcelon was actually detained
and deprived of his liberty by the said respondents, the court directed that said answer be amended, stating
without equivocation whether or not Felix Barcelon was actually detained by the said respondents, which
amended answer, among other things, contained the following allegations:
(1) That the writ of habeas corpus should not issue on the application filed herein, because the court is without
jurisdiction or authority to grant the privilege of the writ of habeas corpus in the Province of Batangas, for the
reason that on January 31, 1905, the Governor-General, pursuant to a resolution and request of the Philippine
Commission, suspended said writ in the Provinces of Cavite and Batangas, in accordance with the provisions
of section 5 of the act of congress known as "The Philippine Bill," the Philippine Commission and the Governor-
General basing such suspension upon the fact that certain organized bands of ladrones in said provinces were
in open insurrection against the constituted authorities; and the said bands, or parts of them, and some of
their leaders, were still in open resistance to the constituted authorities. The said resolution of the Commission
and the said proclamation of the Governor-General are in the words following:
"RESOLUTION OF THE PHILIPPINE COMMISSION DATED JANUARY 31, 1905.
"Whereas certain organized bands of ladrones exist in the Provinces of Cavite and Batangas who are levying
forced contributions upon the people, who frequently require them, under compulsion, to join their bands,
and who kill or maim in the most barbarous manner those who fail to respond to their unlawful demands, and
are therefore terrifying the law-abiding and inoffensive people of those provinces; and
"Whereas these bands have in several instances attacked police and Constabulary detachments, and are in
open insurrection against the constituted authorities; and
"Whereas it is believed that these bands have numerous agents and confederates living within the
municipalities of the said provinces; and
"Whereas, because of the foregoing conditions, there exists a state of insecurity and terrorism among the
people which makes it impossible in the ordinary way to conduct preliminary investigations before justices of
the peace and other judicial officers: Now, therefore,
"Be it resolved, That, the public safety requiring it, the Governor-General is hereby authorized and requested
to suspend the writ of habeas corpus in the Provinces of Cavite and Batangas.
EXECUTIVE ORDER } "MANILA, January 31, 1905.
NO. 6. }
"Whereas certain organized bands of ladrones exist in the Provinces of Cavite and Batangas who are levying
forced contributions upon the people, who frequently require them, under compulsion, to join their bands,
and who kill or maim in the most barbarous manner those who fail to respond to their unlawful demands, and
are therefore terrifying the law-abiding and inoffensive people of those provinces; and
"Whereas these bands have in several instances attacked police and Constabulary detachments, and are in
open insurrection against the constituted authorities, and it is believed that the said bands have numerous
agents and confederates living within the municipalities of the said provinces; and
"Whereas, because of the foregoing conditions there exists a state of insecurity and terrorism among the
people which makes it impossible in the ordinary way to conduct preliminary investigations before the justices
of the peace and other judicial officers:
"In the interest of public safety, it is hereby ordered that the writ of habeas corpus is from this date suspended
in the Provinces of Cavite and Batangas.
"(Signed) LUKE E. WRIGHT,
"Governor-General."
(2) Not waiving the question of jurisdiction, the respondents state that it is true that Felix Barcelon was
detained in the month of April, 1905, by order of Colonel David J. Baker, Jr., assistant chief of the Philippines
constabulary, and that the said Barcelon is now detained under the surveillance of Captain W.E. Thompson,
senior inspector of Constabulary, in the province of Batangas.
By this answer the respondents admit that they are detaining the body of the said Felix Barcelon, and deny
the right of this court to inquire into the reasons therefor by virtue of the said resolution of the Philippine
commission and the executive order of the Governor-General, issued by authority of the same, suspending
the privilege of the writ of habeas corpus in the said Provinces of Cavite and Batangas.
Thus the question is squarely presented whether or not the judicial department of the Government may
investigate the facts upon which the legislative and executive branches of the Government acted in providing
for the suspension and in actually suspending the privilege of the writ of habeas corpus in said provinces. has
the Governor-General, with the consent of the Commission, the right to suspend the privilege of the writ
of habeas corpus? If so, did the Governor-General suspend the writ of habeas corpus in the Provinces of Cavite
and Batangas in accordance with such authority?
A paragraph of section 5 of the act of Congress of July 1, 1902, provides:
That the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion,
insurrection, or invasion the public safety may require it, in either of which events the same may be suspended
by the President, or by the Governor-General with the approval of the Philippine Commission, whenever
during such period the necessity for such suspension shall exist.
This provision of the act of Congress is the only provision giving the
Governor-General and the Philippine commission authority to suspend the privilege of the writ of habeas
corpus. No question has been raised with reference to the authority of Congress to confer this authority upon
the President or the Governor-General of these Islands, with the approval of the Philippine Commission.
This provision of the act of Congress makes two conditions necessary in order that the President or the
Governor-General with the approval of the Philippine Commission may suspend the privilege of the write
of habeas corpus. They are as follows:
(1) When there exists rebellion, insurrection, or invasion; and
(2) When public safety may require it.
In other words, in order that the privilege of the writ of habeas corpus may be suspended, there must exist
rebellion, insurrection, or invasion, and the public safety must require it. This fact is admitted, but the question
is, Who shall determine whether there exists a state of rebellion, insurrection, or invasion, and that by reason
thereof the public safety requires the suspension of the privilege of the write of habeas corpus?
It has been argued and admitted that the Governor-General, with the approval of the Philippine Commission,
has discretion, when insurrection, rebellion, or invasion actually exist, to decide whether the public safety
requires the suspension of the privilege of the writ of habeas corpus; but the fact whether insurrection,
rebellion, or invasion does actually exist is an open question, which the judicial department of the Government
may inquire into and that the conclusions of the legislative and executive departments (the Philippine
Commission and the Governor-General) of the government are not conclusive upon that question.
In other words, it is contended that the judicial department of the Government may consider an application
for the writ of habeas corpus, even though the privileges of the same have been suspended, in the manner
provided by law, for the purposes of taking proof upon the question whether there actually exists a state of
insurrection, rebellion, or invasion.
The applicants here admit that if a state of rebellion, insurrection, or invasion exists, and the public safety is
in danger, then the President, or Governor-General with the approval of the Philippine Commission, may
suspend the privilege of the writ of habeas corpus.
Inasmuch as the President, or Governor-General with the approval of the Philippine commission, can suspend
the privilege of the writ of habeas corpus only under the conditions mentioned in the said statute, it becomes
their duty to make an investigation of the existing conditions in the Archipelago, or any part thereof, to
ascertain whether there actually exists a state of rebellion, insurrection, or invasion, and that the public safety
requires the suspension of the privilege of the writ of habeas corpus. When this investigation is concluded,
the President, or the Governor-General with the consent of the Philippine commission, declares that there
exist these conditions, and that the public safety requires the suspension of the privilege of the writ of habeas
corpus, can the judicial department of the Government investigate the same facts and declare that no such
conditions exist?
The act of Congress, above quoted, wisely provides for the investigation by two departments of the
Government the legislative and executive of the existing conditions, and joint action by the two before
the privilege of the writ of habeas corpus can be suspended in these Islands.
If the investigation and findings of the President, or the Governor-General with the approval of the Philippine
Commission, are not conclusive and final as against the judicial department of the Government, then every
officer whose duty it is to maintain order and protect the lives and property of the people may refuse to act,
and apply to the judicial department of the Government for another investigation and conclusion concerning
the same conditions, to the end that they may be protected against civil actions resulting from illegal acts.
Owing to conditions at times, a state of insurrection, rebellion, or invasion may arise suddenly and may
jeopardize the very existence of the State. Suppose, for example, that one of the thickly populated
Governments situated near this Archipelago, anxious to extend its power and territory, should suddenly decide
to invade these Islands, and should, without warning, appear in one of the remote harbors with a powerful
fleet and at once begin to land troops. The governor or military commander of the particular district or
province notifies the Governor-General by telegraph of this landing of troops and that the people of the district
are in collusion with such invasion. Might not the Governor-General and the Commission accept this telegram
as sufficient evidence and proof of the facts communicated and at once take steps, even to the extent of
suspending the privilege of the writ of habeas corpus, as might appear to them to be necessary to repel such
invasion? It seems that all men interested in the maintenance and stability of the Government would answer
this question in the affirmative.
But suppose some one, who has been arrested in the district upon the ground that his detention would assist
in restoring order and in repelling the invasion, applies for the writ of habeas corpus, alleging that no invasion
actually exists; may the judicial department of the Government call the officers actually engaged in the field
before it and away from their posts of duty for the purpose of explaining and furnishing proof to it concerning
the existence or nonexistence of the facts proclaimed to exist by the legislative and executive branches of the
State? If so, then the courts may effectually tie the hands of the executive, whose special duty it is to enforce
the laws and maintain order, until the invaders have actually accomplished their purpose. the interpretation
contended for here by the applicants, so pregnant with detrimental results, could not have been intended by
the Congress of the United States when it enacted the law.
It is the duty of the legislative branch of the Government to make such laws and regulations as will effectually
conserve peace and good order and protect the lives and property of the citizens of the State. It is the duty of
the Governor-General to take such steps as he deems wise and necessary for the purpose of enforcing such
laws. Every delay and hindrance and obstacle which prevents a strict enforcement of laws under the conditions
mentioned necessarily tend to jeopardize public interests and the safety of the whole people. If the judicial
department of the Government, or any officer in the Government, has a right to contest the orders of the
President or of the Governor-General under the conditions above supposed, before complying with such
orders, then the hands of the President or the Governor-General may be tied until the very object of the rebels
or insurrectos or invaders has been accomplished. But it is urged that the president, or the Governor-General
with the approval of the Philippine Commission, might be mistaken as to the actual conditions; that the
legislative department the Philippine
Commission might, by resolution, declare after investigation, that a state of rebellion, insurrection, or
invasion exists, and that the public safety requires the suspension of the privilege of the writ of habeas corpus,
when, as a matter of fact, no such conditions actually existed; that the President, or Governor-General acting
upon the authority of the Philippine commission, might by proclamation suspend the privilege of the writ
of habeas corpus without there actually existing the conditions mentioned in the act of Congress. In other
words, the applicants allege in their argument in support of their application for the writ of habeas corpus,
that the legislative and executive branches of the Government might reach a wrong conclusion from their
investigations of the actual conditions, or might, through a desire to oppress and harass the people, declare
that a state of rebellion, insurrection, or invasion existed and that public safety required the suspension of the
privilege of the writ of habeas corpus when actually and in fact no such conditions did exist. We can not
assume that the legislative and executive branches will act or take any action based upon such motives.
Moreover it can not be assumed that the legislative and executive branches of the Government, with all the
machinery which those branches have at their command for examining into the conditions in any part of the
Archipelago, will fail to obtain all existing information concerning actual conditions. It is the duty of the
executive branch of the Government to constantly inform the legislative branch of the Government of the
condition of the Union as to the prevalence of peace or disorder. The executive branch of the government,
through its numerous branches of the civil and military, ramifies every portion of the Archipelago, and is
enabled thereby to obtain information from every quarter and corner of the State. Can the judicial department
of the Government, with its very limited machinery for the purpose of investigating general conditions, be any
more sure of ascertaining the true conditions throughout the Archipelago, or in any particular district, than
the other branches of the Government? We think not.
We are of the opinion that the only question which this department of the Government can go into with
reference to the particular questions submitted here are as follows:
(1) Admitting the fact that Congress had authority to confer upon the President or the Governor-General and
the Philippine Commission authority to suspend the privilege of the writ of habeas corpus, was such authority
actually conferred? and
(2) Did the Governor-General and the Philippine Commission, acting under such authority, act in conformance
with such authority?
If we find that Congress did confer such authority and that the Governor-General and the Philippine
Commission acted in conformance with such authority, then this branch of the Government is excluded from
an investigation of the facts upon which the Governor-General and the Philippine Commission acted, and upon
which they based the resolution of January 31, 1905, and the executive order of the Governor-General of the
same date. Under the form of government established in the Philippine Islands, one department of the
Government has no power or authority to inquire into the acts of another, which acts are performed within the
discretion of the other department.
Upon an examination of the law we conclude:
First. That the paragraph of section 5, above quoted, of the act of Congress of July 1, 1902, confers upon the
Governor-General and the Philippine Commission the right to suspend the privilege of the writ of habeas
corpusunder the conditions therein named.
Second. That the Philippine Commission, acting within the discretion which such act of Congress confers upon
them, did authorize the Governor-General, by its resolution of January 31, 1905, to suspend the privilege of
the writ of habeas corpus in the manner and form indicated in the said executive order of the Governor-
General of January 31, 1905.
The said resolution of the Philippine Commission has the effect of law for the purposes for which it was
enacted. The judicial department of the Government may examine every law enacted by the legislative branch
of the Government for the purpose of ascertaining:
(a) Whether or not such law came within the subject-matter upon which the legislative branch of the
Government might legislate; and
(b) Whether the provisions of such law were in harmony with the authority given the legislature.
If the judicial branch of the Government finds
(a) That the legislative branch of the Government had authority to legislate upon the particular subject; and
(b) That the particular law contained no provisions in excess of such department, then that investigation, or
that conclusion, conclusively terminates the investigation by this department of the Government.
We base our conclusions that this application should be denied upon the following facts:
First. Congress had authority to provide that the President, or the Governor-General, with the approval of the
Philippine Commission, might suspend the privilege of the writ of habeas corpus in cases of rebellion,
insurrection, or invasion, when the public safety might require it.
Second. That the Philippine Commission, acting within this power, had authority to pass the resolution above
quoted, of January 31, 1905, after an investigation of the conditions.
Third. That by virtue of said act of Congress, together with said resolution of the Philippine commission, the
Governor-General had authority to issue the said executive order of January 31, 1905, suspending the privilege
of the writ of habeas corpus.
Fourth. That the conclusion set forth in the said resolution and the said executive order, as to the fact that
there existed in the Provinces of Cavite and Batangas open insurrection against the constituted authorities,
was a conclusion entirely within the discretion of the legislative and executive branches of the Government,
after an investigation of the facts.
Fifth. That one branch of the United States Government in the Philippine Islands has no right to interfere or
inquire into, for the purpose of nullifying the same, the discretionary acts of another independent department
of the Government.
Sixth. Whenever a statute gives to a person or a department of the Government discretionary power, to be
exercised by him or it, upon his or its opinion of certain facts, such statute constitutes him or it the sole and
exclusive judge of the existence of those facts.
Seventh. The act of Congress gave to the President, or the Governor-General with the approval of the
Philippine Commission, the sole power to decide whether a state of rebellion, insurrection, or invasion existed
in the Philippine Archipelago, and whether or not the public safety required the suspension of the privilege of
the writ of habeas corpus.
Eighth. This power having been given and exercised in the manner above indicated, we hold that such
authority is exclusively vested in the legislative and executive branches of the Government and their decision
is final and conclusive upon this department of the Government and upon all persons.
Happily we are not without high authority to support the foregoing conclusions. This is not the first time this
same question has been presented in one form or another to the judicial department of the Government of
the United States, as well as to the Government of the various States of the Union.
The same general question presented here was presented to the Supreme Court of the United States in the
case of Martin vs. Mott, in January, 1827. An act of Congress of 1795 provided
That whenever the United States shall be invaded or be in imminent danger of invasion from any foreign nation
or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia
of the State or States most convenient to the place of danger or scene of action, as he may judge necessary to
repel such invasion, and to issue his orders for that purpose to such officer or officers of the militia as he shall
think proper.
In this case (Martin vs. Mott) the question was presented to the court whether or not the President's action
in calling out the militia was conclusive against the courts. The Supreme Court of the United States, in
answering this question, said:
The power thus confided by Congress to the President is, doubtless, of a very high and delicate nature. A free
people are naturally jealous of the exercise of military power; and the power to call the militia into actual
service is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without
corresponding responsibility. It is, in its terms, a limited power, confined to cases of actual invasion, or
of imminent danger of invasion. If it be a limited power, the question arises, By whom is the exigency to be
adjudged of and decided? is the President the sole and exclusive judge whether the exigency has arisen, or is
it to be considered as an open question, upon which every officer to whom the orders of the President are
addressed, may decide for himself, and equally open to be contested by every militiaman who shall refuse to
obey the orders of the President? We are all of the opinion that the authority to decide whether the exigency
has arisen belongs exclusively to the President and his decision is conclusive upon all other persons. We think
that this construction necessarily results from the nature of the power itself and from the manifest object
contemplated by the act of Congress. The power itself is to be exercised upon sudden emergencies, upon great
occasions of state and under circumstances which may be vital to the existence of the Union. ... If a superior
officer has a right to contest the orders of the President, upon his own doubts as to the exigency having arisen,
it must be equally the right of every inferior officer and soldier ... . Such a course would be subversive of all
discipline and expose the best disposed officer to the chances of erroneous litigation. Besides, in many
instances, the evidence upon which the President might decide that there is imminent danger of invasion
might be of a nature not constituting strict technical proof, or the disclosure of the evidence might reveal
important secrets of state which the public interest and even safety might imperiously demand to be kept in
concealment.
Whenever the statute gives a discretionary power to any person, to be exercised by him upon his own opinion
of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge
of the existence of those facts. And in the present case we are all of opinion that such is the true construction
of the act of 1795. It is no answer that such power may be abused, for there is no power which is not
susceptible of abuse. (Martin vs. Mott, 12 Wheat., 19 (25 U.S.); Vanderheyden vs. Young, 11 Johns., N.Y., 150.)
Justice Joseph Story, for many years a member of the Supreme Court of the United States, in discussing the
question who may suspend the privilege of the writ of habeas corpus, under the Constitution of the United
States, said:
It would seem, as the power is given to Congress to suspend the writ of habeas corpus in cases of rebellion,
insurrection, or invasion, that the right to judge whether the exigency has arisen must conclusively belong to
that body. (Story on the Constitution, 5th ed., sec. 1342.)
Justice James Kent, for many years a justice of the supreme court of the State of New York, in discussing the
same question, cites the case of Martin vs. Mott, and says:
In that case it was decided and settled by the Supreme Court of the United States that it belonged exclusively
to the President to judge when the exigency arises in which he had authority, under the Constitution, to call
forth the militia, and that his decision was conclusive upon all other persons. (Kent's Commentaries, 14th ed.,
vol. 1, bottom p. 323.)
John Randolph Tucker, for many years a professor of constitutional and international law in Washington and
Lee University, in discussing this question said:
By an act passed in 1795 Congress gave to the President power to call out the militia for certain purposes, and
by subsequent acts, in 1807, power was given to him to be exercised whenever he should deem it necessary,
for the purposes stated in the Constitution; and the Supreme Court (United States) has decided that this
executive discretion in making the call (for State militia) could not be judicially questioned. (Tucker on the
Constitution, Vol. II, p. 581.)
John Norton Pomeroy, an eminent law writer upon constitutional questions, said:
In Martin vs. Mott it was decided that under the authority given to the President by the statute of 1795, calling
forth the militia under certain circumstances, the power is exclusively vested in him to determine whether
those circumstances exist; and when he has determined by issuing his call, no court can question his decision."
(Pomeroy's Constitutional Law, sec. 476.)
Henry Campbell Black, a well-known writer on the Constitution, says:
By an early act of Congress it was provided that in case of an insurrection in any State against the government
thereof, it shall be lawful for the President of the United States, on application of the legislature of such State,
or of the executive (when the legislature can not be convened), to call forth such a number of the militia of
any other State or States as may be applied for, as he may judge sufficient to suppress such insurrection. By
this act the power of deciding whether the exigency has arisen upon which the Government of the United
States is bound to interfere is given to the President. (Black's Constitutional Law, p. 102.)
Judge Thomas M. Cooley, in discussing the right of the judicial department of the Government to interfere
with the discretionary action of the other departments of the Government, in his work on constitutional law,
said:
Congress may confer upon the President the power to call them (the militia) forth, and this makes him the
exclusive judge whether the exigency has arisen for the exercise of the authority and renders one who refuses
to obey the call liable to punishment under military law. (Cooley's Principles of Constitutional Law, p. 100.)
But it may be argued by those who contend for the contrary doctrine, to wit, that the acts of the Governor-
General, with the approval of the Philippine Commission, are not conclusive upon the courts and that none of
the foregoing citations are exactly in point, that none of these cases or authors treat of a case exactly like the
one presented. We are fortunate, however, in being able to cite, in answer to that contention, the case of
Henry William Boyle, where exactly the same question was presented to the supreme court of the State of
Idaho, which the applicants present here and where the courts held the doctrine of the cases applied. In the
case of Boyle, he had been arrested after the privilege of the writ of habeas corpus had been suspended. He
applied for a writ of habeas corpus to the supreme court of Idaho, alleging, among other things, in his
application:
First. That "no insurrection, riot, or rebellion now exists in Shoshone County;" and
Second. That "the Governor has no authority to proclaim martial law or suspend the writ of habeas corpus."
In reply to this contention on the part of the applicant, Boyle, the court said:
Counsel have argued ably and ingeniously upon the question as to whether the authority to suspend the writ
of habeas corpus rests with the legislative and executive powers of the Government, but, from our views of
this case, that question cuts no figure. We are of the opinion that whenever, for the purpose of putting down
insurrection or rebellion, the exigencies of the case demand it, with the successful accomplishment of this end
in view, it is entirely competent for the executive or for the military officer in command, if there be such, either
to suspend the writ or disregard it if issued. The statutes of this State (Idaho) make it the duty of the governor,
whenever such a state or condition exists as the proclamation of the governor shows does exist in Shoshone
County, to proclaim such locality in a state of insurrection and to call in the aid of the military of the State or
of the Federal Government to suppress such insurrection and reestablish permanently the ascendency of the
law. It would be an absurdity to say that the action of the executive, under such circumstance, may be
negatived and set at naught by the judiciary, or that the action of the executive may be interfered with or
impugned by the judiciary. If the courts are to be made a sanctuary, a seat of refuge whereunto malefactors
may fall for protection from punishment justly due for the commission of crime they will soon cease to be that
palladium of the rights of the citizen so ably described by counsel.
On application for a writ of habeas corpus, the truth of recitals of alleged facts in a proclamation issued by the
governor proclaiming a certain county to be in a state of insurrection and rebellion will not be inquired into or
reviewed. The action of the governor in declaring Shoshone County to be in state of insurrection and rebellion,
and his action in calling to his aid the military forces of the United States for the purpose of restoring good
order and the supremacy of the law, has the effect to put in force, to a limited extent, martial law in said
county. Such action is not in violation of the Constitution, but in harmony with it, being necessary for the
preservation of government. In such case the Government may, like an individual acting in self-defense, take
those steps necessary to preserve its existence. If hundreds of men can assemble themselves and destroy
property and kill and injure citizens, thus defeating the ends of government, and the Government is unable to
take all lawful and necessary steps to restore law and maintain order, the State will then be impotent if not
entirely destroyed, and anarchy placed in its stead.
It having been demonstrated to the satisfaction of the governor, after some six or seven years of experience,
that the execution of the laws in Shoshone County through the ordinary and established means and methods
was rendered practicably impossible, it became his duty to adopt the means prescribed by the statute for
establishing in said county the supremacy of the law and insuring the punishment of those by whose unlawful
and criminal acts such a condition of things has been brought about; and it is not the province of the courts to
interfere, delay, or place obstructions in the path of duty prescribed by law for the executive, but rather to
render him all the aid and assistance in their power, in his efforts to bring about the consummation most
devoutly prayed for by every good, law-abiding citizen in the State. (In re Boyle, 45 L.R.A., 1899, 832.)
The doctrine that whenever the Constitution or a statute gives a discretionary power to any person, to be
exercised by him upon his own opinion of certain facts, such person is to be considered the sole and exclusive
judge of the existence of those facts, has been recognized, not only by the Supreme Court of the United States
but by practically all of the supreme courts of the different States, and has never been disputed by any
respectable authority. The following cases are cited in support of this doctrine:
Martin vs. Mott (1827), 12 Wheat., 19 (25 U. S. Rep.).
Luther vs. Borden (1849), 7 How., 44, 77.
Wilkes vs. Dinsman (1849), 7 How., 130, 131.
Murray vs. Hoboken, etc., Co. (1855), 18 How., 280.
United States vs. Speed (1868), 8 Wall., 83.
Mullan vs. United States (1890), 140 U.S., 245.
Nishimura Ekiu vs. United States (1891), 142 U.S., 660.
Lem Moon Sing vs. United States (1894), 158 U.S., 538.
Ex parte Field (1862), 5 Blatch., 77, 81 (Fed. Case No. 4761).
Allen vs. Blunt, 3 Story, 745 (Fed. Case No. 216).
Gould vs. Hammond, 1 McAll., 237, 239 (Fed. Case 5638).
United States vs. Packages (1862), 27 Fed. Case, 288, 289.
United States vs. Cement (1862), 27 Fed. Case, 293.
United States vs. Cotton (1872), 27 Fed. Case, 325, 328.
United States vs. Tropic Wind, 28 Fed. Case, 221.
In re Day, 27 Fed. Rep., 680.
Hammer vs. Mason, 24 Ala., 485.
People vs. Pacheco (1865), 27 Cal., 223.
Porter vs. Haight (1873), 45 Cal., 639.
Evansville and C. Ry. Co. vs Evansville, 15 Ind., 421.
Koehler vs. Hill, 60 Ia., 566.
People vs. Wayne (1878), 39 Mich., 20.
State vs. Town of Lime (1877), 23 Minn., 526.
People vs. Parker, 3 Nebraska, 432.
Kneedler vs. Lane (1863), 45 Penn. St., 292.
In re Legislative Adjournment (1893), 18 Rhode Island, 834; 22 L.R.A., 716.
Chapin vs. Ferry (1891), 3 Washington, 396; 28 Pac. Rep., 758; 15 L.R.A., 120.
Druecker vs. Solomon, 21 Wis., 621; 94 Am. Dec., 571.
People vs. Bissell (1857), 19 Ill., 229, 232, 233.
Sutherland vs. Governor (1874) 29 Mich., 320, 330.
Ambler vs. Auditor-General (1878), 38 Mich., 746, 751.
State vs. Warmoth (1870), 22 La. An. Rep., 1; 13 Am. Rep., 126.
Jonesboro, etc., Co. vs. Brown (1875), 8 Baxter (Tenn.) 490; 35 Am. Rep., 713.
In the case of the United States vs. Packages, above cited, the court, in discussing the authority of the judicial
department of the Government to interfere with the discretionary powers of the executive and legislative,
said:
The doctrine involved has been fully discussed in several cases decided by this court during the last fifteen
months, and was virtually settled long ago by the United States Supreme Court. The judiciary, under the
Constitution, can not declare war or make peace. It is clothed with no such power, and can not be clothed
with it. Whatever power is vested by the Constitution in one department of the Government can not be
usurped by another. If one should wholly refuse to act, or should undertake to divest itself, or abdicate its
legitimate functions, it would by no means follow that another department, expressly limited to specific
duties, would thereby acquire ungranted powers. The abdication of executive functions by the executive, for
instance, would not constitute the judicial the executive department of the country; nor would a failure or
refusal of the legislative to pass needed statutes constitute the executive the law-making power. Each
department has its true boundaries prescribed by the Constitution, and it can not travel beyond them.
(United States vs. Ferreira (1851), 13 How., 40; Little vs. Barreme (1804), 2 Cranch, 170.)
The condition of peace or war, public or civil, in a legal sense, must be determined by the political
department, not the judicial. The latter is bound by the decision thus made. The act of 1795 and the act of
July 13, 1861, vests the President with the power to determine when insurrection exists, and to what extent
it exists. The United States Constitution vests Congress with the power "to provide for calling forth the
militia to execute the laws of the Union, to suppress insurrection, and repel invasion; to declare war ... and
make rules concerning captures on land and water." In the execution of that power, Congress passed the act
cited above.
By the act of 1795 the Supreme Court says: "The power of deciding whether the exigency had arisen upon Martin vs. Mott (12 Wheat., 19) and holds that the action of the political department of the Government in
which the Government of the United States is bound to interfere, is given to the President." ... After the such cases is final and conclusive against the judicial department.
President has acted, is a circuit court of the United States authorized to inquire whether his decision was
right? could the court, while the parties were actually contending in arms for the possession of the John Marshall, for many years Chief Justice of the Supreme Court of the United States, in discussing the rights
government, call witnesses before it and inquire which party represented a majority of the people? ... If the of one department of the Government to interfere with the discretionary powers of another, said, in the case
judicial power extends so far, the guaranty contained in the Constitution of the United States is a guaranty of of Marbury vs. Madison ( [1803], 1 Cranch, 137, 164):
anarchy, and not of order. yet if this right does not reside in the courts when the conflict is raging; if the
By the Constitution of the United States the President is invested with certain important political powers, in
judicial power is at that time bound to follow the decision of the political (department of the Government), it
the exercise of which he has to use his own discretion, and is accountable only to his country in his political
must be equally bound when the contest is over. At all events, it (the power to decide) is conferred upon him
character, and to his own conscience. ... The subjects are political; they respect the nation, not individual
(the President) by the Constitution and laws of the United States, and must therefore be respected and
rights, and, being intrusted to the executive, the decision of the executive is conclusive. The application of this
enforced in its judicial tribunals. (Luther vs. Borden (1849), 7 How., 43, 44; Martin vs. Mott (1827), 12
remark will be received by adverting to the act of congress for establishing the department of foreign affairs.
Wheat., 29-31.)
This officer, as his duties were prescribed by that act, is to conform precisely to the will of the President; he is
The same doctrine has been uniformly maintained from the commencement of the Government. The the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be
absurdity of any other rule is manifest. If during the actual clash of arms the courts were rightfully hearing examinable by the courts. ... The conclusion from this reasoning is that where the heads of departments are
evidence as to the fact of war, and, either with or without the said juries, determining the question, they the political or confidential agents of the executive, merely to execute the will of the President or rather to
should have power to enforce their decisions. In case of foreign conflicts neither belligerent would be likely to act in cases in which the executive possesses a constitutional or a legal discretion, nothing can be more
yield to the decision; and, in case of insurrection, the insurgents would not cease their rebellion in obedience perfectly clear than that their acts are only politically examinable.
to a judicial decree. In short, the status of the country as to peace or war is legally determined by the political
In the case of Rice vs. Austin (19 Minn., 103) the supreme court of Minnesota held that "the judicial and
(department of the Government) and not by the judicial department. When the decision is made the courts
executive departments of the government are distinct and independent and neither is responsible to the other
are concluded thereby, and bound to apply the legal rules which belong to that condition. The same power
for the performance of its duties and neither can enforce the performance of the duties of the other." It may
which determines the existence of war or insurrection must also decide when hostilities have ceased that
be said that in Minnesota this decision was based upon a constitutional provision. This is true, but the fact that
is, when peace is restored. In a legal sense the state of war or peace is not a question in pais for courts to
the people of the State of Minnesota, by constitutional provision prohibited one independent department of
determine. It is a legal fact, ascertainable only from the decision of the political department. (The Fortuna
the government from interfering or attempting to administer the duties of another, all the more reenforces
(1818), 3 Wheat., 236; United States vs. Palmer (1818), 3 Wheat., 610; Nuestra Seora, etc. (1819), 4 Wheat.,
the doctrine contended for here. Many of the States do permit the judicial department by mandamus to direct
497; Santissima Trinidad (1822), 7 Wheat., 283; Rose vs. Himely (1806), 4 Cranch, 241; Foster vs. Neilson
the executive department to perform purely ministerial duties. In Minnesota, however, the judicial
(1829), 2 Peters, 253.)
department will not attempt to coerce the performance of even ministerial duties on the part of the executive.
Under the act of Congress of July 13, 1861, the President of the United States, on the 16th day of August, 1861,
In the case of Luther vs. Borden (7 How., 44) it was held that the decision and determination of matters of a
proclaimed that the State of Tennessee was in a state of insurrection. The courts, in discussing the right of the
purely political character by the executive or legislative department of the Government was binding on every
President to decide upon the necessities of such proclamation and the period within which it should continue,
other department of the Government and could not be questioned by a judicial tribunal. The dangers and
said:
difficulties which would grow out of the adoption of a contrary rule are by Chief Justice Taney in this case
The legal status thus determined must remain so long as the condition of hostilities continues. He (the clearly and ably pointed out. Chief Justice Taney, referring to the power given to the President with reference
President) has never made a counter proclamation, nor has peace been officially announced. As a legal to the right to decide whether it was necessary, on account of a possible invasion, to call out the militia, said:
condition that status (of insurrection) is independent of actual daily strife in arms. A legal condition of
By this act (act of Congress of 1795) the power of deciding whether the exigency had arisen upon which the
hostilities may exist long after the last battle has been fought between the opposing armies. That condition
Government of the United States is bound to interfere is given to the President. ... After the President has
(of insurrection or rebellion) ceases when peace is concluded through competent authority; not before. ...
acted and called out the militia, is a circuit court of the United States authorized to inquire whether his decision
Within any construction which could be very well given to the President's proclamation, no part of that State
is right? Could the court, while the parties were actually contending in arms for the possession of the
(Tennessee) maintains as yet a loyal adhesion to the Union and Constitution. It is the duty of the President,
government, call witnesses before it and inquire which party represented the majority of the people? If it
however, to decide that point. Until he declares to the contrary, the court must hold that the legal condition
could, then it would become the duty of the court (provided it came to the conclusion that the President had
of hostility continues. The exceptions in the proclamation, so far as made by the President, courts can and
decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the
must enforce. But if it be correct that by the terms of that proclamation the President intended to devolve on
United States or the government which the President was endeavoring to maintain. If the judicial power
the courts the duty of determining judicially the status of a State or part of a State by an inquiry into its loyalty,
extends so far, the guaranty contained in the Constitution of the United States is a guaranty of anarchy and
or its occupation from time to time by the United States forces irrespective of a decision thereon by the
not of order. Yet if this right does not reside in the court when the conflict is raging, if the judicial power is at
executive, still courts could not then acquire the power. The limits upon their constitutional and legal functions
that time bound to follow the decision of the political, it must be equally bound when the contest is over. . . .
could not thus be enlarged. Political power could not be so delegated to the courts. They (the courts) can not
be charged with any duties not judicial; "judicial power" alone is invested in them (the courts) under the It is said that this power in the President is dangerous to liberty and may be abused. All power may be abused
Constitution. (United States vs. Packages (1862), 27 Fed. Case, 288, 289.)" if placed in unworthy hands; but it would be difficult, we think, to point out any other hands in which this
power would be more safe, and at the same time equally effectual. When citizens of the same State are in
In the case of Druecker vs. Solomon (21 Wis., 621; 94 Am. Dec., 571, 576, 577) the supreme court of Wisconsin,
arms against each other, and the constituted authorities unable to execute the laws, the interposition of the
in an action for false imprisonment for the arrest and detention during a state of insurrection, etc., the court
United States must be prompt or it is of little value. The ordinary course of proceedings in the courts of justice
cites and approves of the doctrine laid down by the Supreme Court of the United States in the case of
would be utterly unfit for the crisis, and the elevated office of the President, chosen as he is by the people of
the United States, and the high responsibility he could not fail to feel when acting in a case of so much moment,
appear to furnish as strong safeguards against the willful abuse of power as human prudence and foresight
could well provide. At all events it is conferred upon him by the Constitution and laws of the United States and
must, therefore, be respected and enforced in its judicial tribunals.
Chief Justice Taney here cites approvingly the case of Martin vs. Mott.
In the case of Franklin vs. State Board Examiners (23 Cal., 173, 178) the supreme court of California decided
That the political department of a State government is the sole judge of the existence of war or insurrection,
and, when it declares either of these emergencies to exist, its action is not subject to review or liable to be
controlled by the judicial department of the State.
In this case the court cited the cases of Martin vs. Mott and Luther vs. Borden.
This same doctrine was again recognized by the supreme court of California in the case of the People vs.
Pacheco (27 Cal., 175, 223), not only resting its decision upon the case of Franklin vs. State Board of Examiners
but also again cited and confirmed the case of Martin vs. Mott, Luther vs. Borden, and Vanderheyden vs.
Young (11 Johns (N.Y.), 159).
Chief Justice Marshall, in the case of McCullough vs. State of Maryland (4 Wheat, 316), says:
We think the sound construction of the Constitution must allow the national legislature that discretion with
respect to the means by which the powers it confers are carried into execution which will enable that body to
perform the high duties assigned to it in the manner most beneficial to the people. ... Such being the case, the
determination of these questions by the political department of the Government must also necessarily be
conclusive.
Chief Justice Taney, in the case of ex parte Merryman, 17 Federal Cases, 144 (Fed. Case No. 9487), said, in
speaking of the power of the courts:
It is true that in the case mentioned Congress is of necessity the judge of whether the public safety does or
does not require it (the suspension of the writ of habeas corpus), and their judgment is conclusive.
Chief Justice Taney, in the same decision, quotes the following language of Mr. Justice Story approvingly:
It would seem as the power is given to Congress to suspend the writ of habeas corpus in cases of rebellion or
invasion, that the right to judge whether the exigency had arisen must exclusively belong to that body.
In the case of McCall vs. McDowell, 15 Fed. Cases, 1235 (Fed. Case No. 8673), Judge Deady said:
When the occasion arises rebellion or invasion whether the "public service" requires the suspension of
the writ or not is confided to the judgment of Congress, and their action in the premises is conclusive upon all
courts and persons. . . .
The suspension enables the executive, without interference from the courts or the law, to arrest and imprison
persons against whom no legal crime can be proved, but who may, nevertheless, be effectively engaged in
forming the rebellion or inviting the invasion, to the imminent danger of the public safety.
In the case of Ex parte Field (5 Blatchford, 63) this same question arose in the State of Vermont, and the
supreme court of that State, relying upon the decision of Mr. Justice Story in Luther vs. Borden and that of
Chief Justice Taney in Martin vs. Mott, decided that the President is the exclusive judge of the existence of the
exigency authorizing him to call forth the militia and declare martial law, in pursuance of the power conferred
on him by the act of Congress of 1795.
Judge Emmons, in the case of United States vs. 1,500 Bales of Cotton (Fed. Case No. 15958), in discussing this
general question, said, quoting from a decision of Chief Justice Chase:
The belligerent relation having once been recognized by the political power, all the people of each State or
district in insurrection must be regarded as enemies until, by the action of the legislature and executive, that
relation is thoroughly and permanently changed. . . .
The statute devolved upon the President the political duty of determining whether armed force should be
called out to put down insurrection in the States. It was for him to decide when the exigency occurred. The
courts had no concern with it. ... Whether there was any necessity for the exercise of the power of the
President to call out the militia the court could not determine. His decision was final ... If the judicial power
were thus extended, the guaranty in the Constitution of a republican form of government was a guaranty of
anarchy, not of order. Equally incongruous results would follow if the courts instead of the Government, were
to decide when hostilities are ended and when trade and intercourse should be resumed.
Not only has it been decided in numerous cases that the power to call out the militia and to suspend the writ
of habeas corpus is entirely within the discretion of the legislative and executive branches of the Government,
but, when the executive and legislative departments have decided that the conditions exist justifying these
acts, the court will presume that such conditions continue to exist until the same authority (legislative, etc.)
has decided that such conditions no longer exist.
Judge Dillon, in the case of Philips vs. Hatch (Fed. Case No. 11094, said:
From the nature of the question, from the fair implication of the act of July 13, 1862 (an act authorizing the
suspension of the writ of habeas corpus), from the confusion that would ensue from any other rule, it is the
opinion of the court that the rebellion must be considered as in existence until the President declared it at an
end in a proclamation.
Judge Emmons, in the above case, discussing this same question, said:
These unquestioned doctrines have not been extemporized for the modern and exceptional exigencies of the
late rebellion. They belong to the jurisprudence of all countries and were adopted as part of that of our own
from its earliest history. Our most conservative judges, Marshall, Story, and Taney, have been foremost in
announcing them. No citizen would challenge the justness and necessity of this rule. Judges have their peculiar
duties which, if faithfully and learned studied, have little tendency to make them familiar with current and
rapidly changing conditions upon which depend the important political question of whether it is safe to relax,
on the instant, military rule and restore intercourse and trade.
The following cases are also cited:
Brown vs. Hiatt, Fed. Case No. 2011.
United States vs. 100 Barrels of Cement, Fed. Case No. 15945.
Gelston vs. Hoyt, 3 Wheat., 246.
The Divina Pastora, 4 Wheat., 52.
The Santissima Trinidad, 7 Wheat., 283.
Rose vs. Himely, 4 Cranch, 241.
Garcia vs. Lee, 12 Peters, 511.
Stewart vs. Kahn, 11 Wallace, 493.
Mrs. Alexander's Cotton, 2 Wallace, 404.
For a general discussion, see Sixth American Law Register, 766; 4 Chicago Legal News, 245.
No Government, past or present, has more carefully and watchfully guarded and protected, by law, the
individual rights of life and property of its citizens than the Government of the United States and of the various
States of the Union. Each of the three departments of the Government has had separate and distinct functions
to perform in this great labor. The history of the United States, covering more than a century and a quarter,
discloses the fact that each department has performed its part well. No one department of the Government
can or ever has claimed, within its discretionary power, a greater zeal than the others in its desire to promote
the welfare of the individual citizen. They are all joined together in their respective spheres, harmoniously
working to maintain good government, peace, and order, to the end that the rights of each citizen be equally
protected. No one department can claim that it has a monopoly of these benign purposes of the Government.
Each department has an exclusive field within which it can perform its part, within certain discretionary limits.
No other department can claim a right to enter these discretionary limits and assume to act there. No
presumption of an abuse of these discretionary powers by one department will be considered or entertained
by another. Such conduct on the part of one department, instead of tending to conserve the Government and
the right of the people, would directly tend to destroy the confidence of the people in the Government and to
undermine the very foundations of the Government itself.
For all of the foregoing reasons, the application for the writ of habeas corpus should be denied, and it is so
ordered.
Arellano, C.J., Mapa, and Carson, JJ., concur.
Separate Opinions
TORRES, J., concurring in part:
After considering the provisions of the Philippine bill of July 1, 1902, contained in paragraph 7, section 5 of
said act, I have concluded to concur in the grounds upon which the majority decision of this case is based, and
agree that the petition for a writ of habeas corpus should be denied. By virtue of the decree of the 31st of
January of this year the writ was suspended in the Provinces of Cavite and Batangas. The Governor-General,
with the approval of the Commission, had the exclusive power and jurisdiction to suspend the writ, when in
their opinion public safety should so require, in cases of rebellion and invasion only.
The fact that the writ has been suspended can not, however, be used as a pretext for the commission of crimes
defined and punished in the Penal Code now in force in these islands. The application of said code has not
been suspended in said provinces.
Article 200 of the Penal Code now in force provides:
The public official who, unless it be by reason of a crime, should detain a person without being duly authorized
to do so by law or by regulations of a general character in force in the Philippines, shall incur the penalty, etc.
Rules 27, 28, 30, and 34 of the provisional law for the application of the Penal Code in the Philippine Islands
give greater force to the above-quoted section of said code. It provides that no person shall be deprived of his
liberty, except by reason of the commission of some crime.
These provisions, although based upon different fundamental principles, are, nevertheless, in perfect harmony
with the provisions of section 5, subdivisions 1 and 3 of the said act of July 1, 1902, in that they provide that
no law shall be promulgated in these Islands that will deprive persons of their life, liberty, or property without
due process of law, and that no person shall be held to answer for the commission of a crime except by due
process of law.
Felix Barcelon has been detained for a long time in the town of Lipa, Province of Batangas, not for the
commission of any crime and by due process of law, but apparently for the purpose of protecting him. This
detention, unless it is shown that some good reason exists therefor, is absolutely illegal, notwithstanding the
factor that the writ of habeas corpus has been suspended in the Province of Batangas.
The honorable Governor-General, with the approval of the Philippine Commission, decided, upon his own
responsibility, that a state of rebellion existed in the Provinces of Cavite and Batangas, and by virtue of his
authority suspended the writ of habeas corpus for the purpose of reestablishing peace, insuring public safety,
and facilitating the prosecution and repression of rebels.
The writ was suspended with a view to averting the commission of crimes, particularly those affecting public
peace, by depriving criminals of the privilege of the writ.
It would not be lawful, however, to violate the provisions of the Penal Code under the pretext that the writ
has been suspended. It would not be lawful to rob or commit any other trespass upon the person, rights or
property of citizens. The detention of Felix Barcelon is not due to the commission of any crime. It is an actual
trespass upon his liberty and personal safety, committed by the police authorities, which under no
circumstances can be excused or justified by the temporary suspension of the writ of habeas corpus.
The fundamental laws of Spain, a monarchy, the spirit and principles of which are the basis of our Penal Code,
and the provisional law for its application, do not contain any provision in regard to the privilege of habeas
corpus, but they contain provisions which guarantee to the citizen his individual rights. The supreme court of
Spain has held that now even where constitutional guaranties are suspended can the executive authority order
that a person be detained, except for crime or for breach of the public peace. (Judgment of the 15th of March,
1877.)
Barcelon, the petitioner in this case, is neither a rebel nor a criminal; therefore his detention is illegal.
For the foregoing reasons I am of the opinion that the petition for habeas corpus should be denied, and that
criminal proceedings should be instituted for the crime of illegal detention, defined and punished in article
200 of the Penal Code, and that it is the duty of the judge of the Court of First Instance of the Province of
Batangas to proceed against those responsible for said crime.
G.R. No. L-33964 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF TEODOSIO LANSANG RODOLFO DEL ROSARIO,
and BAYANI ALCALA, petitioners,
vs.
BRIGADIER-GENERAL EDUARDO M. GARCIA, Chief, Philippine Constabulary,
CONCEPCION, C.J.:
In the evening of August 21, 1971, at about 9 p.m., while the Liberal Party of the Philippines was holding a
public meeting at Plaza Miranda, Manila, for the presentation of its candidates in the general elections
scheduled for November 8, 1971, two (2) hand grenades were thrown, one after the other, at the platform
where said candidates and other persons were. As a consequence, eight (8) persons were killed and many
more injured, including practically all of the aforementioned candidates, some of whom sustained extensive,
as well as serious, injuries which could have been fatal had it not been for the timely medical assistance given
to them.
On August 23, soon after noontime, the President of the Philippines announced the issuance of Proclamation
No. 889, dated August 21, 1971, reading as follows:
WHEREAS, on the basis of carefully evaluated information, it is definitely established that lawless elements in
the country, which are moved by common or similar ideological conviction, design and goal and enjoying the
active moral and material support of a foreign power and being guided and directed by a well trained,
determined and ruthless group of men and taking advantage of our constitutional liberties to promote and
attain their ends, have entered into a conspiracy and have in fact joined and banded their forces together for
the avowed purpose of actually staging, undertaking and waging an armed insurrection and rebellion in order
to forcibly seize political power in this country, overthrow the duly constituted government, and supplant our
existing political social, economic and legal order with an entirely new one whose form of government, whose
system of laws, whose conception of God and religion, whose notion of individual rights and family relations,
and whose political, social and economic precepts are based on the Marxist-Leninist-Maoist teachings and
beliefs;
WHEREAS, these lawless elements, acting in concert through front organizations that are seemingly innocent
and harmless, have continuously and systematically strengthened and broadened their memberships through
sustained and careful recruiting and enlistment of new adherents from among our peasantry, laborers,
professionals, intellectuals, students, and mass media personnel, and through such sustained and careful
recruitment and enlistment have succeeded in infiltrating almost every segment of our society in their
ceaseless determination to erode and weaken the political, social, economic and moral foundations of our
existing government and to influence many peasant, labor, professional, intellectual, student and mass media
organizations to commit acts of violence and depredations against our duly constituted authorities, against
the members of our law enforcement agencies, and worst of all, against the peaceful members of our society;
WHEREAS, these lawless elements have created a state of lawlessness and disorder affecting public safety and
the security of the State, the latest manifestation of which has been the dastardly attack on the Liberal Party
rally in Manila on August 21, 1971, which has resulted in the death and serious injury of scores of persons;
WHEREAS, public safety requires that immediate and effective action be taken in order to maintain peace and
order, secure the safety of the people and preserve the authority of the State;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested
upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby suspend the privilege of the
writ of habeas corpus, for the persons presently detained, as well as others who may be hereafter similarly
detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed by them in
furtherance or on the occasion thereof, or incident thereto, or in connection therewith.
Presently, petitions for writ of habeas corpus were filed, in the above-entitled cases, by the following persons,
who, having been arrested without a warrant therefor and then detained, upon the authority of said
proclamation, assail its validity, as well as that of their detention, namely:
1. TEDORO LANSANG, RODOLFO DEL ROSARIO and BAYANI ALCALA, the petitioners in Case No. L-33964
filed on August 24, 1971 who, on August 22, 1971, between 8 a.m. and 6 p.m., were "invited" by agents of
the Philippine Constabulary which is under the command of respondent Brig. Gen. Eduardo M. Garcia to
go and did go to the headquarters of the Philippine Constabulary, at Camp Crame, Quezon City, for
interrogation, and thereafter, detained;
2. ROGELIO V. ARIENDA, the petitioner in Case No. L-33965 filed, also, on August 24, 1971 who was
picked up in his residence, at No. 55 Road, 3, Urduja Village, Quezon City, by members of the Metrocom and
then detained;
3. Soon after the filing of the petition in Case No. L-33965 or on August 28, 1971 the same was amended
to include VICENTE ILAO and JUAN CARANDANG, as petitioners therein, although, apart from stating that these
additional petitioners are temporarily residing with the original petitioner, Rogelio V. Arienda, the amended
petition alleged nothing whatsoever as regards the circumstances under which said Vicente Ilao and Juan
Carandang are said to be illegally deprived of their liberty;
4. LUZVIMINDO DAVID, petitioner in Case No. L-33973 filed on August 25, 1971 who was similarly
arrested in his residence, at No. 131-B Kamias Road, Quezon City, and detained by the Constabulary;
5. Felicidad G. Prudente, who filed the petition in Case No. L-33982 on August 27, 1971 upon the ground
that her father, Dr. NEMESIO E. PRUDENTE, had, on August 22, 1971, at about 8 p.m., been apprehended by
Constabulary agents in his house, at St. Ignatius Village, Quezon City, and then detained at the Camp Crame
stockade, Quezon City;
6. ANGELO DE LOS REYES, who was allowed on August 30, 1971 to intervene as one of the petitioners in
Cases Nos. L-33964, L-33965 and L-33973, he having been arrested by members of the Constabulary on August
22, 1971, between 6:30 and 7:30 p.m., in his residence, at 86 Don Manuel Street, Sta. Mesa Heights, Quezon
City, and brought to Camp Crame, Quezon City, where he is detained and restrained of liberty;
7. VICTOR FELIPE, who was similarly allowed to intervene as one of the petitioners in said three (3) cases, upon
the ground that, on August 23, 1971, at about 8 a.m., he was, likewise, apprehended at Sta. Rosa, Laguna, by
members of the Philippine Constabulary and brought, first to the Constabulary headquarters at Canlubang,
Laguna, and, then, to Camp Crame, Quezon City, where he is detained and restrained of liberty;
8. TERESITO SISON, who was, also, allowed to intervene as one of the petitioners in the same three (3) cases,
he having been arrested in his residence, at 318 Lakandula St., Angeles City, on August 22, 1971, between 6
and 7 p.m., and taken to the PC offices at Sto. Domingo, Angeles City, then to Camp Olivas, San Fernando,
Pampanga, and eventually to Camp Crame, Quezon City, where he is restrained and deprived of liberty;
9. GERARDO TOMAS, alias Gerry Tomas, a 17-year old second year college students of St. Louis University,
Baguio City, on whose behalf, Domingo E. de Lara in his capacity as Chairman, Committee on Legal
Assistance, Philippine Bar Association filed on September 3, 1971, the petition in Case No. L-34004, upon
the ground that said Gerardo Tomas had, on August 23, 1971, at about 6 a.m., been arrested by Constabulary
agents, while on his way to school in the City of Baguio, then brought to the Constabulary premises therein at
Camp Holmes, and, thereafter, taken, on August 24, 1971, to Camp Olivas, Pampanga, and thence, on August
25, 1971, to the Constabulary headquarters at Camp Crame, Quezon City, where he is detained;
10. REYNALDO RIMANDO, petitioner in Case No. L-34013 filed on September 7, 1971 a 19-year old
student of the U.P. College in Baguio city who, while allegedly on his way home, at Lukban Road, Baguio,
on August 23, 1971, at about 1 a.m., was joined by three (3) men who brought him to the Burnham Park,
thence, to Camp Olivas at San Fernando, Pampanga, and, thereafter, to Camp Crame, Quezon City, where he
is detained;
11. Sgt. FILOMENO M. DE CASTRO and his wife, Mrs. BARCELISA C. DE CASTRO, on whose behalf Carlos C.
Rabago as President of the Conference Delegates Association of the Philippines (CONDA) filed the
petition in Case No. L-34039 on September 14, 1971 against Gen. Eduardo M. Garcia, alleging that, on
August 27, 1971, at about 3 p.m., Mrs. De Castro was arrested, while at Liamzon Subdivision, Rosario, Pasig,
Rizal, by agents of the Constabulary, and taken to the PC headquarters at Camp Crame, where, later, that same
afternoon, her husband was brought, also, by PC agents and both are detained;
12. ANTOLIN ORETA, JR., who filed the petition in Case No. L-34265 on October 26, 1971 against said
Gen. Garcia, as Chief of the Constabulary, and Col. Prospero Olivas, Chief of the Central Intelligence Service
(CIS), Philippine Constabulary, alleging that, upon invitation from said CIS, he went, on October 20, 1971, to
Camp Aguinaldo, Quezon City, to see Gen. Manuel Yan, Chief of Staff of the Armed Forces of the Philippines,
who referred petitioner to Col. Laroya of the CIS; that the latter, in turn, referred him to CIS Investigator Atty.
Berlin Castillo and another CIS against, whose name is unknown to the petitioner; and that, after being
interrogated by the two (2), petitioner was detained illegally; and
13. GARY OLIVAR, petitioner in Case No. L-34339 filed on November 10, 1971 who was apprehended, by
agents of the Constabulary, in the evening of November 8, 1941, in Quezon City, and then detained at Camp
Crame, in the same City.
Upon the filing of the aforementioned cases, the respondents were forthwith required to answer the petitions
therein, which they did. The return and answer in L-33964 which was, mutatis mutandis, reproduced
substantially or by reference in the other cases, except L-34265 alleges, inter alia, that the petitioners had
been apprehended and detained "on reasonable belief" that they had "participated in the crime of
insurrection or rebellion;" that "their continued detention is justified due to the suspension of the privilege of
the writ of habeas corpus pursuant to Proclamation No. 889 of the President of the Philippines;" that there is
"a state of insurrection or rebellion" in this country, and that "public safety and the security of the State
required the suspension of the privilege of the writ of habeas corpus," as "declared by the President of the
Philippines in Proclamation No. 889; that in making said declaration, the "President of the Philippines acted
on relevant facts gathered thru the coordinated efforts of the various intelligence agents of our government
but (of) which the Chief Executive could not at the moment give a full account and disclosure without risking
revelation of highly classified state secrets vital to its safely and security"; that the determination thus made
by the President is "final and conclusive upon the court and upon all other persons" and "partake(s) of the
nature of political question(s) which cannot be the subject of judicial inquiry," pursuant to Barcelon v. Baker,
5 Phil. 87, and Montenegro v. Castaeda, 91 Phil. 882; that petitioners "are under detention pending
investigation and evaluation of culpabilities on the reasonable belief" that they "have committed, and are still
committing, individually or in conspiracy with others, engaged in armed struggle, insurgency and other
subversive activities for the overthrow of the Government; that petitioners cannot raise, in these proceedings
for habeas corpus, "the question of their guilt or innocence"; that the "Chief of Constabulary had petitioners
taken into custody on the basis of the existence of evidence sufficient to afford a reasonable ground to believe
that petitioners come within the coverage of persons to whom the privilege of the writ of habeas corpus has
been suspended"; that the "continuing detention of the petitioners as an urgent bona fide precautionary and
preventive measure demanded by the necessities of public safety, public welfare and public interest"; that the
President of the Philippines has "undertaken concrete and abundant steps to insure that the constitutional
rights and privileges of the petitioners as well as of the other persons in current confinement pursuant to
Proclamation 889 remain unimpaired and unhampered"; and that "opportunities or occasions for abuses by
peace officers in the implementation of the proclamation have been greatly minimized, if not completely
curtailed, by various safeguards contained in directives issued by proper authority."
These safeguards are set forth in:
1. A letter of the President to the Secretary of National Defense, dated August 21, 1971, directing, inter alia,
in connection with the arrest or detention of suspects pursuant to Proclamation No. 889, that, except when
caught inflagrante delicto, no arrest shall be made without warrant authorized in writing by the Secretary of
National Defense; that such authority shall not be granted unless, "on the basis of records and other
evidences," it appears satisfactorily, in accordance with Rule 113, section 6(b), of the Rules of Court, that the
person to be arrested is probably guilty of the acts mentioned in the proclamation; that, if such person will be
charged with a crime subject to an afflictive penalty under the Anti-Subversion Act, the authorization for his
arrest shall not be issued unless supported by signed intelligence reports citing at least one reliable witness to
the same overt act; that no unnecessary or unreasonable force shall be used in effecting arrests; and that
arrested persons shall not be subject to greater restraint than is necessary for their detention;
2. Communications of the Chief of the Constabulary, dated August 23, 27, and 30, 1971, to all units of his
command, stating that the privilege of the writ is suspended for no other persons than those specified in the
proclamation; that the same does not involve material law; that precautionary measures should be taken to
forestall violence that may be precipitated by improper behavior of military personnel; that authority to cause
arrest under the proclamation will be exercised only by the Metrocom, CMA, CIS, and "officers occupying
position in the provinces down to provincial commanders"; that there shall be no indiscriminate or mass
arrests; that arrested persons shall not be harmed and shall be accorded fair and humane treatment; and that
members of the detainee's immediate family shall be allowed to visit him twice a week;
3. A memorandum of the Department of National Defense, dated September 2, 1971, directing the Chief of
the Constabulary to establish appropriate Complaints and Action Bodies/Groups to prevent and/or check any
abuses in connection with the suspension of the privilege of the writ; and
4. Executive Order No. 333, dated August 26, 1971, creating a Presidential Administrative Assistance
Committee to hear complaints regarding abuses committed in connection with the implementation of
Proclamation No. 889.
Respondents in L-33965 further alleged that therein petitioners Vicente Ilao and Juan Carandang had been
released from custody on August 31, 1971, "after it had been found that the evidence against them was
insufficient."
In L-34265, the "Answer and Return" filed by respondents therein traversed some allegations of fact and
conclusions of law made in the petition therein and averred that Antolin Oreta, Jr., the petitioner therein, had
been and is detained "on the basis of a reasonable ground to believe that he has committed overt acts in
furtherance of rebellion or insurrection against the government" and, accordingly, "comes within the class of
persons as to whom the privilege of the writ of habeas corpus has been suspended by Proclamation No. 889,
as amended," the validity of which is not contested by him.
On August 30, 1971, the President issued Proclamation No. 889-A, amending Proclamation No. 889, so as to
read as follows:
WHEREAS, on the basis of carefully evaluated information, it is definitely established that lawless elements in
the country, which are moved by common or similar ideological conviction, design and goal and enjoying the
active moral and material support of a foreign power and being guided and directed by a well-trained,
determined and ruthless group of men and taking advantage of our constitutional liberties to promote and
attain their ends, have entered into a conspiracy and have in fact joined and banded their forces together for
the avowed purpose of [actually] staging, undertaking, [and] wagging and are actually engaged in an armed
insurrection and rebellion in order to forcibly seize political power in this country, overthrow the duly
constituted government, and supplant our existing political, social, economic and legal order with an entirely
new one whose form of government, whose system of laws, whose conception of God and religion, whose
notion of individual rights and family relations, and whose political, social and economic precepts are based
on the Marxist-Leninist-Maoist teaching and beliefs;
WHEREAS, these lawless elements, acting in concert through front organizations that are seemingly innocent
and harmless, have continuously and systematically strengthened and broadened their memberships through
sustained and careful recruiting and enlistment of new adherents from among our peasantly, laborers,
professionals, intellectuals, students, and mass media personnel, and through such sustained and careful
recruitment and enlistment have succeeded in infiltrating almost every segment of our society in their
ceaseless determination to erode and weaken the political, social, economic and moral foundations of our
existing government and influence many peasant, labor, professional, intellectual, student and mass media
organizations to commit acts of violence and depredations against our duly constituted authorities, against
the members of our law enforcement agencies, and worst of all, against the peaceful members of our society;
WHEREAS, these lawless elements, by their acts of rebellion and insurrection, have created a state of
lawlessness and disorder affecting public safety and security of the State, the latest manifestation of which
has been the dastardly attack on the Liberal Party rally in Manila on August 21, 1971, which has resulted in
the death and serious injury of scores of persons;
WHEREAS, public safety requires that immediate and effective action be taken in order to maintain peace and
order, secure the safety of the people and preserve the authority of the State;
NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested upon
me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby suspend the privilege of the writ
of habeas corpus for the persons presently detained, as well as all others who may be hereafter similarly
detained for the crimes of insurrection or rebellion [,] and [all] other [crimes and offenses] overt acts
committed by them in furtherance [or on the occasion] thereof[,]. [or incident thereto, or in connection
therewith.]1
On September 1, 1971, Cases Nos. L-33964, L-33965, L-33973 and L-33982 were jointly heard and then the 3. Davao del Norte 10. Misamis Occ.
parties therein were allowed to file memoranda, which were submitted from September 3 to September 9, 4. Davao del Sur 11. Zamboanga del Norte
1971. 5. Davao Oriental 12. Basilan
6. Bukidnon 13. Pagadian
Soon thereafter, or on September 18, 1971, Proclamation No. 889 was further amended by Proclamation No. 7. Agusan del Norte
889-B, lifting the suspension of the privilege of the writ of habeas corpus in the following provinces, sub-
provinces and cities of the Philippine, namely: B. CITIES:

A. PROVINCES: 1. Surigao 8. Tangub

2. Davao 9. Dapitan
1. Batanes 15. Negros Occ. 3. Butuan 10. Dipolog
2. Ilocos Norte 16. Negros Or. 4. Cagayan 11. Zamboanga
3. Ilocos Sur 17. Cebu 5. Gingoong 12. Basilan
4. Abra 18. Bohol 6. Ozamiz 13. Pagadian.
5. Abra 19. Capiz 7. Oroquieta
6. Pangasinan 20. Aklan
7. Batangas 21. Antique On October 4, 1971, the suspension of the privilege was further lifted by Proclamation No. 889-D, in the
8. Catanduanes 22. Iloilo following places:
9. Masbate 23. Leyte
10. Romblon 24. Leyte del Sur A. PROVINCES:
11. Marinduque 25. Northern Samar
1. Cagayan 5. Camarines
12. Or. Mindoro 26. Eastern Samar
2. Cavite 6. Albay
13. Occ. Mindoro 27. Western Samar
3. Mountain Province 7. Sorsogon
14. Palawan.
4. Kalinga-Apayao
B. SUB-PROVINCES:
B. CITIES:
1. Guimaras 3. Siquior
1. Cavite City 3. Trece Martires
2. Biliran
2. Tagaytay 4. Legaspi
C. CITIES:
As a consequences, the privilege of the writ of habeas corpus is still suspended in the following eighteen (18)
1. Laog 10. Bacolod provinces, two (2) sub-provinces and eighteen (18) cities, to wit:
2. Dagupan 11. Bago
A. PROVINCE:
3. San Carlos 12. Canlaon
4. Batangas 13. La Carlota 1. Bataan 10. North Cotabato
5. Lipa 14. Bais 2. Benguet 11. Nueva Ecija
6. Puerto Princesa 15. Dumaguete 3. Bulacan 13. Pampanga
7. San Carlos (Negros 16. Iloilo 4. Camarines Sur 14. Quezon
Occ.) 17. Roxas 5. Ifugao 15. Rizal
8. Cadiz 18. Tagbilaran 6. Isabela 16. South Cotabato
9. Silay 19. Lapu-lapu 7. Laguna 17. Tarlac
8. Lanao del Norte 18. Zambales
20. Cebu 24. Tacloban 9. Lanao del Norte
21. Mandaue 25. Ormoc
22. Danao 26. Calbayog B. SUB-PROVINCES:
23. Toledo
1. Aurora 2. Quirino
On September 25, 1971, the President issued Proclamation No. 889-C, restoring the privilege of the writ in
the following provinces and cities: C. CITIES:

A. PROVINCES: 1. Angeles 10. Manila

2. Baguio 11. Marawi
1. Surigao del Norte 8. Agusan del Sur 3. Cabanatuan 12. Naga
2. Surigao del Sur 9. Misamis Or. 4. Caloocan 13. Olongapo
5. Cotabato 14. Palayan
6. General Santos 15. Pasay
7. Iligan 16. Quezon
8 Iriga 17. San Jose
9 Lucena 18. San Pablo
The first major question that the Court had to consider was whether it would adhere to the view taken in
Barcelon v. Baker,2 and reiterated in Montenegro v. Castaeda,3 pursuant to which, "the authority to decide
whether the exigency has arisen requiring suspension (of the privilege of the writ of habeas corpus) belongs
to the President and his 'decision is final and conclusive' upon the courts and upon all other persons." Indeed,
had said question been decided in the affirmative the main issue in all of these cases, except
L-34339, would have been settled, and, since the other issues were relatively of minor importance, said cases
could have been readily disposed of. Upon mature deliberation, a majority of the Members of the Court had,
however, reached, although tentatively, a consensus to the contrary, and decided that the Court had authority
to and should inquire into the existence of the factual bases required by the Constitution for the suspension
of the privilege of the writ; but before proceeding to do so, the Court deemed it necessary to hear the parties
on the nature and extent of the inquiry to be undertaken, none of them having previously expressed their
views thereof. Accordingly, on October 5, 1971, the Court issued, in L-33964, L-33965, L-33973 and L-33982,
a resolution stating in part that
... a majority of the Court having tentatively arrived at a consensus that it may inquire in order to satisfy itself
of the existence of the factual bases for the issuance of Presidential Proclamations Nos. 889 and 889-A
(suspending the privilege of the writ of habeas corpus for all persons detained or to be detained for the crimes
of rebellion or insurrection throughout the Philippines, which area has lately been reduced to some eighteen
provinces, two subprovinces and eighteen cities with the partial lifting of the suspension of the privilege
effected by Presidential Proclamations Nos. 889-B, 889-C and 889-D) and thus determine the constitutional
sufficiency of such bases in the light of the requirements of Article III, sec. 1, par. 14, and Article VII, sec. 10,
par. 2, of the Philippine Constitution; and considering that the members of the Court are not agreed on the
precise scope and nature of the inquiry to be made in the premises, even as all of them are agreed that the
Presidential findings are entitled to great respect, the Court RESOLVED that these cases be set for rehearing
on October 8, 1971 at 9:30 A.M.
xxx xxx xxx
On October 8, 1971, said four cases were, therefore, heard, once again, but, this time jointly with cases Nos.
L-34004, L-34013, and L-34039, and the parties were then granted a period to file memoranda, in amplification
of their respective oral arguments, which memoranda were submitted from October 12 to October 21, 1971.
Respondents having expressed, during the oral arguments, on September 1 and October 8, 1971, their
willingness to impart to the Court classified information relevant to these cases, subject to appropriate
security measures, the Court met at closed doors, on October 28 and 29, 1971, and, in the presence of three
(3) attorneys for the petitioners, chosen by the latter, namely, Senator Jose W. Diokno, Senator Salvador H.
Laurel, and Atty. Leopoldo Africa, as well as of the Solicitor General and two (2) members of his staff, was
briefed, by Gen. Manuel Yan, Chief of Staff of the Armed Forces of the Philippines, Gen. Fidel Ramos, Deputy
Chief of Staff, Gen. Felizardo Tanabe, Col. Tagumpay Nanadiego, Judge Advocate General, JAGS (GSC), and
other ranking officers of said Armed Forces, on said classified information, most of which was contained in
reports and other documents already attached to the records. During the proceedings, the members of the
Court, and, occassionally, counsel for the petitioners, propounded pertinent questions to said officers of the
Armed Forces. Both parties were then granted a period of time within which to submit their respective
observations, which were filed on November 3, 1971, and complemented by some documents attached to the
records on November 6, 1971, and a summary, submitted on November 15, 1971, of the aforesaid classified
information.
In the meantime, cases Nos. L-34265 (Oreta) and L-34339 (Olivar) had been filed and the parties therein were
heard in oral argument on November 4, and 16, 1971, respectively.
On November 15, 1971, the Solicitor General filed manifestations motions stating that on November 13,
1971, the following petitioners were:
(a) released from custody:
(1) Teodosio Lansang -- G.R. No. L-33964
(2) Bayani Alcala -- " " L-33964
(3) Rogelio Arienda -- " " L-33965
(4) Nemesio Prudente -- " " L-33982
(5) Gerardo Tomas -- " " L-34004
(6) Reynaldo Rimando -- " " L-34013
(7) Filomeno M. de Castro -- " " L-34039
(8) Barcelisa de Castro -- " " L-34039
(9) Antolin Oreta, Jr. -- " " L-34264.
(b) charged, together with other persons named in the criminal complaint filed therefor, with a violation of
Republic Act No. 1700 (Anti-Subversion Act), in the City Fiscal's Office of Quezon City:
(1) Angelo de los Reyes -- G.R. No. L-22982 *
(2) Teresito Sison -- " " L-33982 *
(c) accused, together with many others named in the criminal complaint filed therefor, of a violation of
section 4 of Republic Act No. 1700 (Anti-Subversion Act), in the Court of First Instance of Rizal:
(1) Rodolfo del Rosario -- G.R. No. L-33969 **
(2) Luzvimindo David -- " " L-33973
(3) Victor Felipe -- " " L-33982 *
and continue under detention pursuant to Proclamation No. 889, as amended, and praying that the petitions
in G.R. Nos. L-33964, L-33965, L-33982, L-34004, L-34013 and L-34039 be dismissed, without prejudice to the
resolution of the remaining cases. Copy of the criminal complaint filed, as above stated, with the Court of First
Instance of Rizal and docketed therein as Criminal Case No. Q-1623 of said court which was appended to
said manifestations-motions of the respondent as Annex 2 thereof shows that Gary Olivar, the petitioner
in L-34339, is one of the defendants in said case.
Required to comment on said manifestations-motions, Luzvimindo David, petitioner in L-33973, in his
comment dated November 23, 1971, urged the Court to rule on the merits of the petitions in all of these cases,
particularly on the constitutionality of Presidential Proclamation No. 889, as amended, upon the ground that
he is still detained and that the main issue is one of public interest involving as it does the civil liberties of the
people. Angelo de los Reyes, one of the petitioners in L-33964, L-33965 and L-33973, Nemesio E. Prudente and
Gerardo Tomas, for whose respective benefit the petitions in L-33982 and L-34004 have been filed, maintained
that the issue in these cases is not moot, not even for the detainees who have been released, for, as long as
the privilege of the writ remains suspended, they are in danger of being arrested and detained again without
just cause or valid reason. In his reply, dated and filed on November 29, 1971, the Solicitor General insisted
that the release of the above-named petitioners rendered their respective petitions moot and academic.
I
Petitioners herein, except Antolin Oreta, Jr. in L-34265, question the formal validity of the proclamation
suspending the privilege of the writ of habeas corpus. In this connection, it should be noted that, as originally
formulated, Proclamation No. 889 was contested upon the ground that it did not comply with the pertinent
constitutional provisions, namely, paragraph (14) of section 1, Article III of our Constitution, reading:
The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion, insurrection, or
rebellion, when the public safety requires it, in any way of which events the same may be suspended wherever
during such period the necessity for such suspension shall exist.
and paragraph (2), section 10, Article VII of the same instrument, which provides that:
The President shall be 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, insurrection,
or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof when the public safety
requires it, he may suspend the privileges of the writ of habeas corpus, or place the Philippines or any part
thereof under martial law.
Regardless of whether or not the President may suspend the privilege of the writ of habeas corpus in case of
"imminent danger" of invasion, insurrection or rebellion which is one of the grounds stated in said
paragraph (2), section 10 of Art. VII of the Constitution, but not mentioned in paragraph (14), section 1 of its
Bill of Rights petitioners maintained that Proclamation No. 889 did not declare the existence
of actual "invasion insurrection or rebellion or imminent danger thereof," and that, consequently, said
Proclamation was invalid. This contention was predicated upon the fact that, although the first "whereas" in
Proclamation No. 889 stated that "lawless elements" had "entered into a conspiracy and have in
fact joined and banded their forces together for the avowed purpose of actually staging, undertaking and
waging an armed insurrection and rebellion," the actuality so alleged refers to the existence, not of an uprising
that constitutes the essence of a rebellion or insurrection, but of the conspiracy and the intent to rise in arms.
Whatever may be the merit of this claim, the same has been rendered moot and academic by Proclamation
No. 889-A, issued nine (9) days after the promulgation of the original proclamation, or on August 30, 1971.
Indeed, said Proclamation No. 889-A amended, inter alia, the first "whereas" of the original proclamation by
postulating the said lawless elements "have entered into a conspiracy and have in fact joined and banded their
forces together for the avowed purpose of staging, undertaking, waging and are actually engaged in an armed
insurrection and rebellion in order to forcibly seize political power in this country, overthrow the duly
constituted government, and supplant our existing political, social, economic and legal order with an entirely
new one ...." Moreover, the third "whereas" in the original proclamation was, likewise, amended by alleging
therein that said lawless elements, "by their acts of rebellion and insurrection," have created a state of
lawlessness and disorder affecting public safety and the security of the State. In other words, apart from
adverting to the existence of actual conspiracy and of the intent to rise in arms to overthrow the government,
Proclamation No. 889-A asserts that the lawless elements "are actually engaged in an armed insurrection and
rebellion" to accomplish their purpose.
It may not be amiss to note, at this juncture, that the very tenor of the original proclamation and particularly,
the circumstances under which it had been issued, clearly suggest the intent to aver that there was and is,
actually, a state of rebellion in the Philippines, although the language of said proclamation was hardly a
felicitous one, it having in effect, stressed the actuality of the intent to rise in arms, rather than of the factual
existence of the rebellion itself. The pleadings, the oral arguments and the memoranda of respondents herein
have consistently and abundantly emphasized to justify the suspension of the privilege of the writ of habeas
corpus the acts of violence and subversion committed prior to August 21, 1971, by the lawless elements
above referred to, and the conditions obtaining at the time of the issuance of the original proclamation. In
short, We hold that Proclamation No. 889-A has superseded the original proclamation and that the flaws
attributed thereto are purely formal in nature.
II
Let us now consider the substantive validity of the proclamation, as amended. Pursuant to the above-quoted
provisions of the Constitution, two (2) conditions must concur for the valid exercise of the authority to suspend
the privilege to the writ, to wit: (a) there must be "invasion, insurrection, or rebellion" or pursuant to
paragraph (2), section 10 of Art. VII of the Constitution "imminent danger thereof," and (b) "public safety"
must require the suspension of the privilege. The Presidential Proclamation under consideration declares that
there has been and there is actually a state of rebellion and
that4 "public safety requires that immediate and effective action be taken in order to maintain peace and
order, secure the safety of the people and preserve the authority of the State."
Are these findings conclusive upon the Court? Respondents maintain that they are, upon the authority of
Barcelon v. Baker5 and Montenegro v. Castaeda.6 Upon the other hand, petitioners press the negative view
and urge a reexamination of the position taken in said two (2) cases, as well as a reversal thereof.
The weight of Barcelon v. Baker, as a precedent, is diluted by two (2) factors, namely: (a) it relied heavily upon
Martin v. Mott7 involving the U.S. President's power to call out the militia, which he being the commander-
in-chief of all the armed forces may be exercised to suppress or prevent any lawless violence, even without
invasion, insurrection or rebellion, or imminent danger thereof, and is, accordingly, much broader than his
authority to suspend the privilege of the writ of habeas corpus, jeopardizing as the latter does individual
liberty; and (b) the privilege had been suspended by the American Governor-General, whose act, as
representative of the Sovereign, affecting the freedom of its subjects, can hardly be equated with that of the
President of the Philippines dealing with the freedom of the Filipino people, in whom sovereignty resides,
and from whom all government authority emanates. The pertinent ruling in the Montenegro case was based
mainly upon the Barcelon case, and hence, cannot have more weight than the same. Moreover, in the Barcelon
case, the Court held that it could go into the question: "Did the Governor-General" acting under the
authority vested in him by the Congress of the United States, to suspend the privilege of the writ of habeas
corpus under certain conditions "act in conformance with such authority?" In other words, it did determine
whether or not the Chief Executive had acted in accordance with law. Similarly, in the Montenegro case, the
Court held that petitioner therein had "failed to overcome the presumption of correctness which the judiciary
accords to acts of the Executive ...." In short, the Court considered the question whether or not there really
was are rebellion, as stated in the proclamation therein contested.
Incidentally, even the American jurisprudence is neither explicit nor clear on the point under consideration.
Although some cases8 purport to deny the judicial power to "review" the findings made in the proclamations
assailed in said cases, the tenor of the opinions therein given, considered as a whole, strongly suggests the
court's conviction that the conditions essential for the validity of said proclamations or orders were, in fact,
present therein, just as the opposite view taken in other cases9 had a backdrop permeated or characterized
by the belief that said conditions were absent. Hence, the dictum of Chief Justice Taney to the effect that
"(e)very case must depend on its own circumstances." 10 One of the important, if not dominant, factors, in
connection therewith, was intimated in Sterling v. Constantin, 11 in which the Supreme Court of the United
States, speaking through Chief Justice Hughes, declared that:
.... When there is a substantial showing that the exertion of state power has overridden private rights secured
by that Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed
against the individuals charged with the transgression. To such a case the Federal judicial power extends
(Art. 3, sec. 2) and, so extending, the court has all the authority appropriate to its
exercise. .... 12
In our resolution of October 5, 1971, We stated that "a majority of the Court" had "tentatively arrived at a
consensus that it may inquire in order to satisfy itself of the existence of the factual bases for the issuance of
Presidential Proclamations Nos. 889 and 889-A ... and thus determine the constitutional sufficiency of such
bases in the light of the requirements of Article III, sec. 1, par. 14, and Article VII, sec. 10, par 2, of the Philippine
Constitution...." Upon further deliberation, the members of the Court are now unanimous in the conviction
that it has the authority to inquire into the existence of said factual bases in order to determine the
constitutional sufficiency thereof.
Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority
conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is limited
and conditional. The precept in the Bill of Rights establishes a general rule, as well as an exception thereto.
What is more, it postulates the former in the negative, evidently to stress its importance, by providing that
"(t)he privilege of the writ of habeas corpus shall not be suspended ...." It is only by way of exception that it
permits the suspension of the privilege "in cases of invasion, insurrection, or rebellion" or, under Art VII of
the Constitution, "imminent danger thereof" "when the public safety requires it, in any of which events the
same may be suspended wherever during such period the necessity for such suspension shall exist." 13 For
from being full and plenary, the authority to suspend the privilege of the writ is thus circumscribed, confined
and restricted, not only by the prescribed setting or the conditions essential to its existence, but, also, as
regards the time when and the place where it may be exercised. These factors and the aforementioned setting
or conditions mark, establish and define the extent, the confines and the limits of said power, beyond which
it does not exist. And, like the limitations and restrictions imposed by the Fundamental Law upon the
legislative department, adherence thereto and compliance therewith may, within proper bounds, be inquired
into by courts of justice. Otherwise, the explicit constitutional provisions thereon would be meaningless.
Surely, the framers of our Constitution could not have intended to engage in such a wasteful exercise in futility.
Much less may the assumption be indulged in when we bear in mind that our political system is essentially
democratic and republican in character and that the suspension of the privilege affects the most fundamental
element of that system, namely, individual freedom. Indeed, such freedom includes and connotes, as well as
demands, the right of every single member of our citizenry to freely discuss and dissent from, as well as criticize
and denounce, the views, the policies and the practices of the government and the party in power that he
deems unwise, improper or inimical to the commonwealth, regardless of whether his own opinion is
objectively correct or not. The untrammelled enjoyment and exercise of such right which, under certain
conditions, may be a civic duty of the highest order is vital to the democratic system and essential to its
successful operation and wholesome growth and development.
Manifestly, however, the liberty guaranteed and protected by our Basic Law is one enjoyed and exercised, not
in derogation thereof, but consistently therewith, and, hence, within the framework of the social order
established by the Constitution and the context of the Rule of Law. Accordingly, when individual freedom is
used to destroy that social order, by means of force and violence, in defiance of the Rule of Law such as by
rising publicly and taking arms against the government to overthrow the same, thereby committing the crime
of rebellion there emerges a circumstance that may warrant a limited withdrawal of the aforementioned
guarantee or protection, by suspending the privilege of the writ of habeas corpus, when public safety requires
it. Although we must be forewarned against mistaking mere dissent no matter how emphatic or
intemperate it may be for dissidence amounting to rebellion or insurrection, the Court cannot hesitate,
much less refuse when the existence of such rebellion or insurrection has been fairly established or cannot
reasonably be denied to uphold the finding of the Executive thereon, without, in effect, encroaching upon
a power vested in him by the Supreme Law of the land and depriving him, to this extent, of such power, and,
therefore, without violating the Constitution and jeopardizing the very Rule of Law the Court is called upon to
epitomize.
As heretofore adverted to, for the valid suspension of the privilege of the writ: (a) there must be "invasion,
insurrection or rebellion" or pursuant to paragraph (2), section 10 of Art. VII of the Constitution
"imminent danger thereof"; and (b) public safety must require the aforementioned suspension. The President
declared in Proclamation No. 889, as amended, that both conditions are present.
As regards the first condition, our jurisprudence 14 attests abundantly to the Communist activities in the
Philippines, especially in Manila, from the late twenties to the early thirties, then aimed principally at
incitement to sedition or rebellion, as the immediate objective. Upon the establishment of the Commonwealth
of the Philippines, the movement seemed to have waned notably; but, the outbreak of World War II in the
Pacific and the miseries, the devastation and havoc, and the proliferation of unlicensed firearms concomitant
with the military occupation of the Philippines and its subsequent liberation, brought about, in the late forties,
a resurgence of the Communist threat, with such vigor as to be able to organize and operate in Central Luzon
an army called HUKBALAHAP, during the occupation, and renamed Hukbong Mapagpalaya ng Bayan (HMP)
after liberation which clashed several times with the armed forces of the Republic. This prompted then
President Quirino to issue Proclamation No. 210, dated October 22, 1950, suspending the privilege of the writ
of habeas corpus, the validity of which was upheld in Montenegro v. Castaeda. 15 Days before the
promulgation of said Proclamation, or on October 18, 1950, members of the Communist Politburo in the
Philippines were apprehended in Manila. Subsequently accused and convicted of the crime of rebellion, they
served their respective sentences. 16
The fifties saw a comparative lull in Communist activities, insofar as peace and order were concerned. Still, on
June 20, 1957, Rep. Act No. 1700, otherwise known as the Anti-Subversion Act, was approved, upon the
ground stated in the very preamble of said statute 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;
... the continued existence and activities of the Communist Party of the Philippines constitutes a clear,
present and grave danger to the security of the Philippines; 17 and
... in the face of the organized, systematic and persistent subversion, national in scope but international in
direction, posed by the Communist Party of the Philippines and its activities, there is urgent need for special
legislation to cope with this continuing menace to the freedom and security of the country....
In the language of the Report on Central Luzon, submitted, on September 4, 1971, by the Senate Ad Hoc
Committee of Seven copy of which Report was filed in these cases by the petitioners herein
The years following 1963 saw the successive emergence in the country of several mass organizations, notably
the Lapiang Manggagawa (now the Socialist Party of the Philippines) among the workers; the Malayang
Samahan ng mga Magsasaka (MASAKA) among the peasantry; the Kabataang Makabayan (KM) among the
youth/students; and the Movement for the Advancement of Nationalism (MAN) among the
intellectuals/professionals. The PKP has exerted all-out effort to infiltrate, influence and utilize these
organizations in promoting its radical brand of
nationalism. 18
Meanwhile, the Communist leaders in the Philippines had been split into two (2) groups, one of which
composed mainly of young radicals, constituting the Maoist faction reorganized the Communist Party of
the Philippines early in 1969 and established a New People's Army. This faction adheres to the Maoist concept
of the "Protracted People's War" or "War of National Liberation." Its "Programme for a People's Democratic
Revolution" states, inter alia:
The Communist Party of the Philippines is determined to implement its general programme for a people's
democratic revolution. All Filipino communists are ready to sacrifice their lives for the worthy cause of
achieving the new type of democracy, of building a new Philippines that is genuinely and completely
independent, democratic, united, just and prosperous ...
xxx xxx xxx
The central task of any revolutionary movement is to seize political power. The Communist Party of the
Philippines assumes this task at a time that both the international and national situations are favorable of
asking the road of armed
revolution ... 19
In the year 1969, the NPA had according to the records of the Department of National Defense conducted
raids, resorted to kidnappings and taken part in other violent incidents numbering over 230, in which it
inflicted 404 casualties, and, in turn, suffered 243 losses. In 1970, its records of violent incidents was about
the same, but the NPA casualties more than doubled.
At any rate, two (2) facts are undeniable: (a) all Communists, whether they belong to the traditional group or
to the Maoist faction, believe that force and violence are indispensable to the attainment of their main and
ultimate objective, and act in accordance with such belief, although they may disagree on the means to be
used at a given time and in a particular place; and (b) there is a New People's Army, other, of course, that the
arm forces of the Republic and antagonistic thereto. Such New People's Army is per se proof of the existence of
a rebellion, especially considering that its establishment was announced publicly by the reorganized CPP. Such
announcement is in the nature of a public challenge to the duly constituted authorities and may be likened to
a declaration of war, sufficient to establish a war status or a condition of belligerency, even before the actual
commencement of hostilities.
We entertain, therefore, no doubts about the existence of a sizeable group of men who have publicly risen in
arms to overthrow the government and have thus been and still are engaged in rebellion against the
Government of the Philippines.
In fact, the thrust of petitioners' argument is that the New People's Army proper is too small, compared with
the size of the armed forces of the Government, that the Communist rebellion or insurrection cannot so
endanger public safety as to require the suspension of the privilege of the writ of habeas corpus. This argument
does not negate, however, the existence of a rebellion, which, from the constitutional and statutory viewpoint,
need not be widespread or attain the magnitude of a civil war. This is apparent from the very provision of the
Revised Penal Code defining the crime of rebellion, 20 which may be limited in its scope to "any part" of the
Philippines, and, also, from paragraph (14) of section 1, Article III of the Constitution, authorizing the
suspension of the privilege of the writ "wherever" in case of rebellion "the necessity for such suspension
shall exist." In fact, the case of Barcelon v. Baker referred to a proclamation suspending the privilege in the
provinces of Cavite and Batangas only. The case of In re Boyle 21involved a valid proclamation suspending the
privilege in a smaller area a country of the state of Idaho.
The magnitude of the rebellion has a bearing on the second condition essential to the validity of the suspension
of the privilege namely, that the suspension be required by public safety. Before delving, however, into the
factual bases of the presidential findings thereon, let us consider the precise nature of the Court's function in
passing upon the validity of Proclamation No. 889, as amended.
Article VII of the Constitution vests in the Executive the power to suspend the privilege of the writ of habeas
corpus under specified conditions. Pursuant to the principle of separation of powers underlying our system of
government, the Executive is supreme within his own sphere. However, the separation of powers, under the
Constitution, is not absolute. What is more, it goes hand in hand with the system of checks and balances,
under which the Executive is supreme, as regards the suspension of the privilege, but only if and when he
acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has
so acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally supreme.
22
In the exercise of such authority, the function of the Court is merely to check not to supplant the
Executive, or to ascertain merely whether he had gone beyond the constitutional limits of his jurisdiction, not
to exercise the power vested in him or to determine the wisdom of his act. To be sure, the power of the Court
to determine the validity of the contested proclamation is far from being identical to, or even comparable
with, its power over ordinary civil or criminal cases elevated thereto by ordinary appeal from inferior courts,
in which cases the appellate court has all of the powers of the court of origin.
Under the principle of separation of powers and the system of checks and balances, the judicial authority to
review decisions of administrative bodies or agencies is much more limited, as regards findings of fact made
in said decisions. Under the English law, the reviewing court determines only whether there is some
evidentiary basis for the contested administrative findings; no quantitative examination of the supporting
evidence is undertaken. The administrative findings can be interfered with only if there is no evidence
whatsoever in support thereof, and said finding is, accordingly, arbitrary, capricious and obviously
unauthorized. This view has been adopted by some American courts. It has, likewise, been adhered to in a
number of Philippine cases. Other cases, in bothjurisdictions, have applied the "substantial evidence" rule,
which has been construed to mean "more than a mere scintilla" or "relevant evidence as a reasonable mind
might accept as adequate to support a conclusion," 23 even if other minds equally reasonable might
conceivably opine otherwise.
Manifestly, however, this approach refers to the review of administrative determinations involving the
exercise of quasi-judicial functions calling for or entailing the reception of evidence. It does not and cannot be
applied, in its aforesaid form, in testing the validity of an act of Congress or of the Executive, such as the
suspension of the privilege of the writ of habeas corpus, for, as a general rule, neither body takes evidence
in the sense in which the term is used in judicial proceedings before enacting a legislation or suspending
the writ. Referring to the test of the validity of a statute, the Supreme Court of the United States, speaking
through Mr. Justice Roberts, expressed, in the leading case of Nebbia v. New York, 24 the view that:
... If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither
arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that
effect renders a court functus officio ... With the wisdom of the policy adopted, with the adequacy or practically
of the law enacted to forward it, the courts are both incompetent and unauthorized to deal ...
Relying upon this view, it is urged by the Solicitor General
... that judicial inquiry into the basis of the questioned proclamation can go no further than to satisfy the
Court not that the President's decision is correct and that public safety was endanger by the rebellion and
justified the suspension of the writ, but that in suspending the writ, the President did not act arbitrarily.
No cogent reason has been submitted to warrant the rejection of such test. Indeed, the co-equality of
coordinate branches of the Government, under our constitutional system, seems to demand that the test of
the validity of acts of Congress and of those of the Executive be, mutatis mutandis, fundamentally the same.
Hence, counsel for petitioner Rogelio Arienda admits that the proper standard is not correctness,
but arbitrariness.
Did public safety require the suspension of the privilege of the writ of habeas corpus decreed in Proclamation
No. 889, as amended? Petitioners submit a negative answer upon the ground: (a) that there is no rebellion;
(b) that, prior to and at the time of the suspension of the privilege, the Government was functioning normally,
as were the courts; (c) that no untoward incident, confirmatory of an alleged July-August Plan, has actually
taken place after August 21, 1971; (d) that the President's alleged apprehension, because of said plan, is non-
existent and unjustified; and (e) that the Communist forces in the Philippines are too small and weak to
jeopardize public safety to such extent as to require the suspension of the privilege of the writ of habeas
corpus.
As above indicated, however, the existence of a rebellion is obvious, so much so that counsel for several
petitioners herein have admitted it.
With respect to the normal operation of government, including courts, prior to and at the time of the
suspension of the privilege, suffice it to say that, if the conditions were such that courts of justice no longer
functioned, a suspension of the privilege would have been unnecessary, there being no courts to issue the
writ of habeas corpus. Indeed, petitioners' reference to the normal operation of courts as a factor indicative
of the illegality of the contested act of the Executive stems, perhaps, from the fact that this circumstance was
adverted to in some American cases to justify the invalidation therein decreed of said act of the Executive.
Said cases involved, however, the conviction by military courts of members of the civilian population charged
with common crimes. It was manifestly, illegal for military courts to assume jurisdiction over civilians so
charged, when civil courts were functioning normally.
Then, too, the alleged absence of any untoward incident after August 21, 1971, does not necessarily bear out
petitioners' view. What is more, it may have been due precisely to the suspension of the privilege. To be sure,
one of its logical effects is to compel those connected with the insurrection or rebellion to go into hiding. In
fact, most of them could not be located by the authorities, after August 21, 1971.
The alleged July-August Plan to terrorize Manila is branded as incredible, upon the theory that, according to
Professor Egbal Ahman of Cornell University, "guerrilla use of terror ... is sociological and psychologically
selective," and that the indiscriminate resort to terrorism is bound to boomerang, for it tends to alienate the
people's symphaty and to deprive the dissidents of much needed mass support. The fact, however, is that the
violence used is some demonstrations held in Manila in 1970 and 1971 tended to terrorize the bulk of its
inhabitants. It would have been highly imprudent, therefore, for the Executive to discard the possibility of a
resort to terrorism, on a much bigger scale, under the July-August Plan.
We will now address our attention to petitioners' theory to the effect that the New People's Army of the
Communist Party of the Philippines is too small to pose a danger to public safety of such magnitude as to
require the suspension of the privilege of the writ of habeas corpus. The flaw in petitioners' stand becomes
apparent when we consider that it assumes that the Armed Forces of the Philippines have no other task than
to fight the New People's Army, and that the latter is the only threat and a minor one to our security.
Such assumption is manifestly erroneous.
The records before Us show that, on or before August 21, 1971, the Executive had information and reports
subsequently confirmed, in many respects, by the abovementioned Report of the Senate Ad-Hoc Committee
of Seven 25 to the effect that the Communist Party of the Philippines does not merely adhere to Lenin's idea
of a swift armed uprising; that it has, also, adopted Ho Chi Minh's terrorist tactics and resorted to the
assassination of uncooperative local official; that, in line with this policy, the insurgents have killed 5 mayors,
20 barrio captains and 3 chiefs of police; that there were fourteen (14) meaningful bombing incidents in the
Greater Manila Area in 1970; that the Constitutional Convention Hall was bombed on June 12, 1971; that,
soon after the Plaza Miranda incident, the NAWASA main pipe, at the Quezon City-San Juan boundary, was
bombed; that this was followed closely by the bombing of the Manila City Hall, the COMELEC building, the
Congress Building and the MERALCO substation at Cubao, Quezon City; and that the respective residences of
Senator Jose J. Roy and Congressman Eduardo Cojuangco were, likewise, bombed, as were the MERALCO main
office premises, along Ortigas Avenue, and the Doctor's Pharmaceuticals, Inc. Building, in Caloocan City.
Petitioners, similarly, fail to take into account that as per said information and reports the reorganized
Communist Party of the Philippines has, moreover, adopted Mao's concept of protracted people's war, aimed
at the paralyzation of the will to resist of the government, of the political, economic and intellectual leadership,
and of the people themselves; that conformably to such concept, the Party has placed special emphasis upon
a most extensive and intensive program of subversion by the establishment of front organizations in urban
centers, the organization of armed city partisans and the infiltration in student groups, labor unions, and
farmer and professional groups; that the CPP has managed to infiltrate or establish and control nine (9) major
labor organizations; that it has exploited the youth movement and succeeded in making Communist fronts of
eleven (11) major student or youth organizations; that there are, accordingly, about thirty (30) mass
organizations actively advancing the CPP interests, among which are the Malayang Samahan ng Magsasaka
(MASAKA), the Kabataang Makabayan (KM), the Movement for the Advancement of Nationalism (MAN), the
Samahang Demokratiko ng Kabataan (SDK), the Samahang Molave (SM) and the Malayang Pagkakaisa ng
Kabataang Pilipino(MPKP); that, as of August, 1971, the KM had two hundred forty-five (245) operational
chapters throughout the Philippines, of which seventy-three (73) were in the Greater Manila Area, sixty (60)
in Northern Luzon, forty-nine (49) in Central Luzon, forty-two (42) in the Visayas and twenty-one (21) in
Mindanao and Sulu; that in 1970, the Party had recorded two hundred fifty-eight (258) major demonstrations,
of which about thirty-three (33) ended in violence, resulting in fifteen (15) killed and over five hundred (500)
injured; that most of these actions were organized, coordinated or led by the aforementioned front
organizations; that the violent demonstrations were generally instigated by a small, but well-trained group of
armed agitators; that the number of demonstrations heretofore staged in 1971 has already exceeded those
of 1970; and that twenty-four (24) of these demonstrations were violent, and resulted in the death of fifteen
(15) persons and the injury of many more.
Subsequent events as reported have also proven that petitioners' counsel have underestimated the
threat to public safety posed by the New People's Army. Indeed, it appears that, since August 21, 1971, it had
in Northern Luzon six (6) encounters and staged one (1) raid, in consequence of which seven (7) soldiers lost
their lives and two (2)others were wounded, whereas the insurgents suffered five (5) casualties; that on August
26, 1971, a well-armed group of NPA, trained by defector Lt. Victor Corpus, attacked the very command port
of TF LAWIN in Isabela, destroying two (2) helicopters and one (1) plane, and wounding one (1) soldier; that
the NPA had in Central Luzon a total of four (4) encounters, with two (2) killed and three (3) wounded on the
side of the Government, one (1) BSDU killed and three (3) NPA casualties; that in an encounter at Botolan,
Zambales, one (1) KM-SDK leader, an unidentified dissident, and Commander Panchito, leader of the dissident
group were killed; that on August 26, 1971, there was an encounter in the barrio of San Pedro. Iriga City,
Camarines Sur, between the PC and the NPA, in which a PC and two (2) KM members were killed; that the
current disturbances in Cotabato and the Lanao provinces have been rendered more complex by the
involvement of the CPP/NPA, for, in mid-1971, a KM group, headed by Jovencio Esparagoza, contacted the
Higa-onan tribes, in their settlement in Magsaysay, Misamis Oriental, and offered them books, pamphlets and
brochures of Mao Tse Tung, as well as conducted teach-ins in the reservation; that Esparagoza an operation
of the PC in said reservation; and that there are now two (2) NPA cadres in Mindanao.
It should, also, be noted that adherents of the CPP and its front organizations are, according to intelligence
findings, definitely capable of preparing powerful explosives out of locally available materials; that the bomb
used in the Constitutional Convention Hall was a "clay-more" mine, a powerful explosive device used by the
U.S. Army, believed to have been one of many pilfered from the Subic Naval Base a few days before; that the
President had received intelligence information to the effect that there was a July-August Plan involving a
wave of assassinations, kidnappings, terrorism and mass destruction of property and that an extraordinary
occurence would signal the beginning of said event; that the rather serious condition of peace and order in
Mindanao, particularly in Cotabato and Lanao, demanded the presence therein of forces sufficient to cope
with the situation; that a sizeable part of our armed forces discharge other functions; and that the expansion
of the CPP activities from Central Luzon to other parts of the country, particularly Manila and its suburbs, the
Cagayan Valley, Ifugao, Zambales, Laguna, Quezon and Bicol Region, required that the rest of our armed forces
be spread thin over a wide area.
Considering that the President was in possession of the above data except those related to events that
happened after August 21, 1971 when the Plaza Miranda bombing took place, the Court is not prepared to
hold that the Executive had acted arbitrarily or gravely abused his discretion when he then concluded that
public safety and national security required the suspension of the privilege of the writ, particularly if the NPA
were to strike simultaneously with violent demonstrations staged by the two hundred forty-five (245) KM
chapters, all over the Philippines, with the assistance and cooperation of the dozens of CPP front organizations,
and the bombing or water mains and conduits, as well as electric power plants and installations a possibility
which, no matter how remote, he was bound to forestall, and a danger he was under obligation to anticipate
and arrest.
He had consulted his advisers and sought their views. He had reason to feel that the situation was critical
as, indeed, it was and demanded immediate action. This he took believing in good faith that public safety
required it. And, in the light of the circumstances adverted to above, he had substantial grounds to entertain
such belief.
Petitioners insist that, nevertheless, the President had no authority to suspend the privilege in the entire
Philippines, even if he may have been justified in doing so in some provinces or cities thereof. At the time of
the issuance of Proclamation No. 889, he could not be reasonably certain, however, about the placed to be
excluded from the operation of the proclamation. He needed some time to find out how it worked, and as he
did so, he caused the suspension to be gradually lifted, first, on September 18, 1971, in twenty-seven (27)
provinces, three (3) sub-provinces and twenty six (26) cities; then, on September 25, 1971, in order fourteen
(14) provinces and thirteen (13) cities; and, still later, on October 4, 1971, in seven (7) additional provinces
and four (4) cities, or a total of forty-eight (48) provinces, three (3) sub-provinces and forth-three (43) cities,
within a period of forty-five (45) days from August 21, 1971.
Neither should We overlook the significance of another fact. The President could have declared
a general suspension of the privilege. Instead, Proclamation No. 889 limited the suspension to persons
detained "for crimes of insurrection or rebellion, and all other crimes and offenses committed by them in
furtherance or on the occasion thereof, or incident thereto, or in connection therewith." Even this was further
limited by Proclamation No. 889-A, which withdrew from the coverage of the suspension persons detained for
other crimes and offenses committed "on the occasion" of the insurrection or rebellion, or "incident thereto,
in or connection therewith." In fact, the petitioners in L-33964, L-33982 and L-34004 concede that the
President had acted in good faith.
In case of invasion, insurrection or rebellion or imminent danger thereof, the President has, under the
Constitution, three (3) courses of action open to him, namely: (a) to call out the armed forces; (b) to suspend
the privilege of the writ of habeas corpus; and (c) to place the Philippines or any part thereof under martial
law. He had, already, called out the armed forces, which measure, however, proved inadequate to attain the
desired result. Of the two (2)other alternatives, the suspension of the privilege is the least harsh.
In view of the foregoing, it does not appear that the President has acted arbitrary in issuing Proclamation No.
889, as amended, nor that the same is unconstitutional.
III
The next question for determination is whether petitioners herein are covered by said Proclamation, as
amended. In other words, do petitioners herein belong to the class of persons as to whom privilege of the writ
of habeas corpus has been suspended?
In this connection, it appears that Bayani Alcala, one of the petitioners in L-33964, Gerardo Tomas, petitioner
in L-34004, and Reynaldo Rimando, petitioner in L-34013, were, on November 13, 1971, released
"permanently" meaning, perhaps, without any intention to prosecute them upon the ground that,
although there was reasonable ground to believe that they had committed an offense related to subversion,
the evidence against them is insufficient to warrant their prosecution; that Teodosio Lansang, one of the
petitioners in L-33964, Rogelio Arienda, petitioner in L-33965, Nemesio Prudente, petitioner in L-33982,
Filomeno de Castro and Barcelisa C. de Castro, for whose benefit the petition in L-34039 was filed, and Antolin
Oreta, Jr., petitioner in L-34265, were, on said date, "temporarily released"; that Rodolfo del Rosario, one of
the petitioners in
L-33964, Victor Felipe, an intervenor in L-33964, L-33965 and L-33973, as well as Luzvimindo David, petitioner
in L-33973, and Gary Olivar, petitioner in L-34339, are still under detention and, hence, deprived of their
liberty, they together with over forty (40) other persons, who are at large having been accused, in the
Court of First Instance of Rizal, of a violation of section 4 of Republic Act No. 1700 (Anti-Subversion Act); and
that Angelo delos Reyes and Teresito Sison, intervenors in said L-33964, L-33965 and
L-33973, are, likewise, still detained and have been charged together with over fifteen (15) other persons,
who are, also, at large with another violation of said Act, in a criminal complaint filed with the City Fiscal's
Office of Quezon City.
With respect to Vicente Ilao and Juan Carandang petitioners in L-33965 who were released as early as
August 31, 1971, as well as to petitioners Nemesio Prudente, Teodosio Lansang, Rogelio Arienda, Antolin
Oreta, Jr., Filomeno de Castro, Barcelisa C. de Castro, Reynaldo Rimando, Gerardo Tomas and Bayani Alcala,
who were released on November 13, 1971, and are no longer deprived of their liberty, their respective
petitions have, thereby, become moot and academic, as far as their prayer for release is concerned, and
should, accordingly, be dismissed, despite the opposition thereto of counsel for Nemesio Prudente and
Gerardo Tomas who maintain that, as long as the privilege of the writ remains suspended, these petitioners
might be arrested and detained again, without just cause, and that, accordingly, the issue raised in their
respective petitions is not moot. In any event, the common constitutional and legal issues raised in these cases
have, in fact, been decided in this joint decision.
Must we order the release of Rodolfo del Rosario, one of the petitioners in
L-33964, Angelo de los Reyes, Victor Felipe and Teresito Sison, intervenors in L-33964, L-33965 and L-33973,
Luzvimindo David, petitioner in L-33973, and Gary Olivar, petitioner in L-34339, who are still detained? The
suspension of the privilege of the writ was decreed by Proclamation No. 889, as amended, for persons
detained "for the crimes of insurrection or rebellion and other overt acts committed by them in furtherance
thereof."
The records shows that petitioners Luzvimindo David, Rodolfo del Rosario, Victor Felipe, Angelo de los Reyes,
Teresito Sison and Gary Olivar are accused in Criminal Case No. Q-1623 of the Court of First Instance of Rizal
with a violation of the Anti-Subversion Act and that the similar charge against petitioners Angelo de los Reyes
and Teresito Sison in a criminal complaint, originally filed with the City Fiscal of Quezon City, has, also, been
filed with said court. Do the offenses so charged constitute one of the crimes or overt acts mentioned in
Proclamation No. 889, as amended?
In the complaint in said Criminal Case No. 1623, it is alleged:
That in or about the year 1968 and for sometime prior thereto and thereafter up to and including August 21,
1971, in the city of Quezon, Philippines, and elsewhere in the Philippines, within the jurisdiction of this
Honorable Court, the above-named accused knowingly, wilfully and by overt acts became officers and/or
ranking leaders of the Communist Party of the Philippines, a subversive association as defined by Republic Act
No. 1700, which is an organized conspiracy to overthrow the government of the Republic of the Philippines by
force, violence, deceit, subversion and other illegal means, for the purpose of establishing in the Philippines a
communist totalitarian regime subject to alien domination and control;
That all the above-named accused, as such officers and/or ranking leaders of the Communist Party of the
Philippines conspiring, confederating and mutual helping one another, did then and there knowingly, wilfully,
and feloniously and by overt acts committed subversive acts all intended to overthrow the government of the
Republic of the Philippines, as follows:
1. By rising publicly and taking arms against the forces of the government, engaging in war against the forces
of the government, destroying property or committing serious violence, exacting contributions or diverting
public lands or property from the law purposes for which they have been appropriated;
2. By engaging by subversion thru expansion and requirement activities not only of the Communist Party of
the Philippines but also of the united front organizations of the Communist Party of the Philippines as the
Kabataang Makabayan (KM), Movement for the Democratic Philippines (MDP), Samahang Demokratikong
Kabataan (SDK), Students' Alliance for National Democracy (STAND), MASAKA Olalia-faction, Student Cultural
Association of the University of the Philippines (SCAUP), KASAMA, Pagkakaisa ng Magbubukid ng Pilipinas
(PMP) and many others; thru agitation promoted by rallies, demonstration and strikes some of them violent
in nature, intended to create social discontent, discredit those in power and weaken the people's confidence
in the government; thru consistent propaganda by publications, writing, posters, leaflets of similar means;
speeches, teach-ins, messages, lectures or other similar means; or thru the media as the TV, radio or
newspapers, all intended to promote the Communist pattern of subversion;
3. Thru urban guerilla warfare characterized by assassinations, bombings, sabotage, kidnapping and arson,
intended to advertise the movement, build up its morale and prestige, discredit and demoralize the authorities
to use harsh and repressive measures, demoralize the people and weaken their confidence in the government
and to weaken the will of the government to resist.
That the following aggravating circumstances attended the commission of the offense:
a. That the offense was committed in contempt of and with insult to the public authorities;
b. That some of the overt acts were committed in the Palace of the Chief Executive;
c. That craft, fraud, or disguise was employed;
d. That the offense was committed with the aid of armed men;
e. That the offense was committed with the aid of persons under fifteen(15) years old.
Identical allegations are made in the complaint filed with the City Fiscal of Quezon City, except that the second
paragraph thereof is slightly more elaborate than that of the complaint filed with the CFI, although
substantially the same. 26
In both complaints, the acts imputed to the defendants herein constitute rebellion and subversion, of in
the language of the proclamation "other overt acts committed ... in furtherance" of said rebellion, both of
which are covered by the proclamation suspending the privilege of the writ. It is clear, therefore, that the
crime for which the detained petitioners are held and deprived of their liberty are among those for which the
privilege of the writ of habeas corpus has been suspended.
Up to this point, the Members of the Court are unanimous on the legal principles enunciated.
After finding that Proclamation No. 889, as amended, is not invalid and that petitioners Luzvimindo David,
Victor Felipe, Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario and Teresito Sison are detained for and
actually accused of an offense for which the privilege of the writ has been suspended by said proclamation,
our next step would have been the following: The Court, or a commissioner designated by it, would have
received evidence on whether as stated in respondents' "Answer and Return" said petitioners had been
apprehended and detained "on reasonable belief" that they had "participated in the crime of insurrection or
rebellion."
It is so happened, however, that on November 13, 1971 or two (2) days before the proceedings relative to
the briefing held on October 28 and 29, 1971, had been completed by the filing 27 of the summary of the
matters then taken up the aforementioned criminal complaints were filed against said petitioners. What is
more, the preliminary examination and/or investigation of the charges contained in said complaints has
already begun. The next question, therefore, is: Shall We now order, in the cases at hand, the release of said
petitioners herein, despite the formal and substantial validity of the proclamation suspending the privilege,
despite the fact that they are actually charged with offenses covered by said proclamation and despite the
aforementioned criminal complaints against them and the preliminary examination and/or investigations
being conducted therein?
The Members of the Court, with the exception of Mr. Justice Fernando, are of the opinion, and, so hold, that,
instead of this Court or its Commissioner taking the evidence adverted to above, it is best to let said
preliminary examination and/or investigation to be completed, so that petitioners' released could be ordered
by the court of first instance, should it find that there is no probable cause against them, or a warrant for their
arrest could be issued, should a probable cause be established against them. Such course of action is more
favorable to the petitioners, inasmuch as the preliminary examination or investigation requires a greater
quantum of proof than that needed to establish that the Executive had not acted arbitrary in causing the
petitioners to be apprehended and detained upon the ground that they had participated in the commission
of the crime of insurrection or rebellion. And, it is mainly for the reason that the Court has opted to allow the
Court of First Instance of Rizal to proceed with the determination of the existence of probable cause, although
ordinarily the Court would have merely determined the existence of the substantial evidence of petitioners'
connection with the crime of rebellion. Besides, the latter alternative would require the reception of evidence
by this Court and thus duplicate the proceedings now taking place in the court of first instance. What is more,
since the evidence involved in the same proceedings would be substantially the same and the presentation of
such evidence cannot be made simultaneously, each proceeding would tend to delay the other.
Mr. Justice Fernando is of the opinion in line with the view of Mr. Justice Tuason, in Nava v. Gatmaitan, 28 to
the effect that "... if and when formal complaint is presented, the court steps in and the executive steps out.
The detention ceases to be an executive and becomes a judicial concern ..." that the filing of the above-
mentioned complaint against the six (6) detained petitioners herein, has the effect of the Executive giving up
his authority to continue holding them pursuant to Proclamation No. 889, as amended, even if he did not so
intend, and to place them fully under the authority of courts of justice, just like any other person, who, as
such, cannot be deprived of his liberty without lawful warrant, which has not, as yet, been issued against
anyone of them, and that, accordingly, We should order their immediate release. Despite the humanitarian
and libertarian spirit with which this view had been espoused, the other Members of the Court are unable to
accept it because:
(a) If the proclamation suspending the privilege of the writ of habeas corpus is valid and We so hold it to be
and the detainee is covered by the proclamation, the filing of a complaint or information against him does
not affect the suspension of said privilege, and, consequently, his release may not be ordered by Us;
(b) Inasmuch as the filing of a formal complaint or information does not detract from the validity and efficacy
of the suspension of the privilege, it would be more reasonable to construe the filing of said formal charges
with the court of first instance as an expression of the President's belief that there are sufficient evidence to
convict the petitioners so charged and that hey should not be released, therefore, unless and until said court
after conducting the corresponding preliminary examination and/or investigation shall find that the
prosecution has not established the existence of a probable cause. Otherwise, the Executive would have
released said accused, as were the other petitioners herein;
(c) From a long-range viewpoint, this interpretation of the act of the President in having said formal charges
filed is, We believe, more beneficial to the detainees than that favored by Mr. Justice Fernando. His view
particularly the theory that the detainees should be released immediately, without bail, even before the
completion of said preliminary examination and/or investigation would tend to induce the Executive to
refrain from filing formal charges as long as it may be possible. Manifestly, We should encourage the early
filing of said charges, so that courts of justice could assume jurisdiction over the detainees and extend to them
effective protection.
Although some of the petitioners in these cases pray that the Court decide whether the constitutional right to
bail is affected by the suspension of the privilege of the writ of habeas corpus, We do not deem it proper to
pass upon such question, the same not having been sufficiently discussed by the parties herein. Besides, there
is no point in settling said question with respect to petitioners herein who have been released. Neither is
necessary to express our view thereon, as regards those still detained, inasmuch as their release without bail
might still be decreed by the court of first instance, should it hold that there is no probable cause against them.
At any rate, should an actual issue on the right to bail arise later, the same may be brought up in appropriate
proceedings.
WHEREFORE, judgment is hereby rendered:
1. Declaring that the President did not act arbitrarily in issuing Proclamation No. 889, as amended, and that,
accordingly, the same is not unconstitutional;
2. Dismissing the petitions in L-33964, L-33965, L-33982, L-34004, L-34013, L-34039 and L-34265, insofar as
petitioners Teodosio Lansang, Bayani Alcala, Rogelio Arienda, Vicentellao, Juan Carandang, Nemesio E.
Prudente, Gerardo Tomas, Reynaldo Rimando, Filomeno M. de Castro, Barcelisa C. de Castro and Antolin
Oreta, Jr. are concerned;
3. The Court of First Instance of Rizal is hereby directed to act with utmost dispatch in conducting the
preliminary examination and/or investigation of the charges for violation of the Anti-Subversion Act filed
against herein petitioners Luzvimindo David, Victor Felipe, Gary Olivar, Angelo de los Reyes, Rodolfo del
Rosario and Teresito Sison, and to issue the corresponding warrants of arrest, if probable cause is found to
exist against them, or, otherwise, to order their release; and
4. Should there be undue delay, for any reason whatsoever, either in the completion of the aforementioned
preliminary examination and/or investigation, or in the issuance of the proper orders or resolution in
connection therewith, the parties may by motion seek in these proceedings the proper relief.
5. Without special pronouncement as to costs. It is so ordered.
G.R. No. L-61388 July 19, 1985
IN THE MATTER OF THE PETITION FOR THE ISSUANCE OF THE WRIT OF HABEAS CORPUS FOR DR. AURORA
PARONG, NORBERTO PORTUGUESE, SABINO PADILLA, FRANCIS DIVINA GRACIA, IMELDA DE LOS SANTOS,
BENJAMIN PINEDA, ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG, LETTY BALLOGAN,
BIENVENIDA GARCIA, EUFRONIO ORTIZ, JR., JUANITO GRANADA and TOM VASQUEZ, JOSEFINA GARCIA
PADILLA, petitioner,
vs.
MINISTER JUAN PONCE ENRILE, GENERAL FABIAN C. VER GENERAL FIDEL V. RAMOS, and LT. COL. MIGUEL
CORONEL, respondents.
Lorenzo Tanada, Jose W. Diokno, Joker P. Arroyo, Efren H. Mercado and Alexander A. Padilla for petitioner.
RESOLUTION
PER CURIAM:
Garcia Padilla v. Minister Enrile, 1 is an application for the issuance of the writ of habeas corpus on behalf of
fourteen detainees, nine of whom were arrested on July 6, 1982, 2 another four on July 7, 1982, 3 and the last
one on July 15, 1982. 4 The writ was issued, respondents were required to make a return, and the case heard
on August 26, 1982. 5
In such return, it was alleged: "The detainees mentioned in the petition, with the exception of Tom Vasquez,
who was temporarily released on July 17, 1982, after his arrest on July 15, 1982, are all being detained by
virtue of a Presidential Commitment Order (PCO) issued on July 12, 1982, pursuant to LOI No. 1211 dated
March 9, 1982, in relation to Presidential Proclamation No. 2045 dated January 17, 1981. The said PCO was
issued by President Ferdinand E. Marcos for violation of P.D. No. 885 ... ." 6
The facts were set forth thus in the opinion of the Court penned by retired Justice Pacifico de Castro: "At the
time of the arrest of the nine (9) of the fourteen (14) detainees herein on July 6, 1982, records reveal that they
were then having conference in the dining room of Dr. Parong's residence from 10:00 a.m. of that same day.
Prior thereto, all the fourteen (14) detainees were under surveillance as they were then Identified as members
of the Communist Party of the Philippines (CPP) engaging in subversive activities and using the house of
detainee Dr. Aurora Parong in Bayombong, Nueva Vizcaya, as their headquarters. Caught in flagrante delicto,
the nine (9) detainees mentioned scampered towards different directions leaving on top of their conference
table numerous subversive documents, periodicals, pamphlets, books, correspondence, stationeries, and
other papers, including a plan on how they would infiltrate the youth and student sector (code-named YORK).
Also found were one (1) .38 cal. revolver with eight (8) live bullets, nineteen (19) rounds of ammunition for
M16 armalite, eighteen thousand six hundred fifty pesos P l8,650.00) cash believed to be CPP/NPA funds,
assorted medicine packed and ready for distribution, a sizeable quantity of printing paraphernalia, which were
then seized. 7
According to the main opinion of the Court, concurred in full by six other members: 8 "The function of the PCO
is to validate, on constitutional ground, the detention of a person for any of the offenses covered by
Proclamation No. 2045 which continues in force the suspension of the privilege of the writ of habeas corpus,
if the arrest has been made initially without any warrant. Its legal effect is to render the writ unavailing as a
means of judicially inquiring into the legality of the detention in view of the suspension of the privilege of the
writ. The grant of the power to suspend the said privilege provides the basis for continuing with perfect legality
the detention as long as the invasion or rebellion has not been repelled or quelled and the need therefor in
the interest of public safety continues." 9 Further: "The significance of the confernment of this power,
constitutionally upon the President as Commander-in-Chief, is that the exercise thereof is not subject to
judicial inquiry, with a view to determining its legality in the light of the bill of rights guarantee to individual
freedom." 10
The opinion then went on to reiterate the doctrine that with the suspension of the privilege of the writ of
habeas corpus, the right to bail is likewise suspended and to hold "that under LOI 1211, a Presidential
Commitment Order, the issuance of which is the executive prerogative of the President under the
Constitution, may not be declared void by the Courts, under the doctrine of 'political question,' as has been
applied in the Baker and Castaeda cases, on any ground, let alone its supposed violation of the provision of
LOI 1211, thus diluting, if not abandoning, the doctrine of the Lansang case." 11 Finally, the Court held "that
upon the issuance of the Presidential Commitment Order against herein petitioners, their continued detention
is rendered valid and legal, and their right to be released even after the filing of charges against them in court,
to depend on the President, who may order the release of a detainee or his being placed under house arrest,
as he has done in meritorious cases." 12
The dispositive portion of the decision promulgated on April 20, 1983 reads as follows: "[Wherefore], the
instant petition should be, as it is hereby dismissed." 13
Thereafter, on June 6, 1983, a motion for reconsideration was filed by petitioner Garcia Padilla. The stress is
on the continuing validity of Garcia v. Lansang 14 as well as the existence of the right to bail even with the
suspension of the privilege of the writ of habeas corpus. The motion asserted further that the suspension of
the privilege of the writ of habeas corpus does not vest the President with the power to issue warrants of
arrest or presidential commitment orders, and that even it be assumed that he has such a power, the Supreme
Court may review its issuance when challenged. It was finally alleged that since petitioners were not caught
in flagrante delicto, their arrest was illegal and void.
In the comment of respondents on the motion for reconsideration, it was the submission of Solicitor General
Estelito P. Mendoza that the suspension of the privilege of the writ of habeas corpus raises a political, not a
judicial, question and that the right to bail cannot be invoked during such a period. On the question of whether
or not the suspension of the privilege of the writ of habeas corpus vests the President with the power to issue
warrants of arrest or presidential commitment orders, this is what the Comment stated: "It is to be pointed
out that this argument was not raised in the petition. Nonetheless, suffice it to point out that an arrest order
by the President incident to the suspension of the privilege of the writ of habeas corpus is essentially
preventive in nature." 15 It added: "Besides, PD No. 1836 and LOI 1211 have vested, assuming a law is
necessary, in the President the power of preventive arrest incident to the suspension of the privilege of the
writ of habeas corpus. In addition, however, it should be noted that the PCO has been replaced by Preventive
Detention Action (PDA), pursuant to PD No. 1877 dated July 21, 1983. As provided for in the said decree, a
PDA constitute an authority to arrest and preventively detain persons committing the aforementioned crimes,
for a period not exceeding one (1) year, with the cause or causes of their arrest subjected to review by the
President or by the Review Committee created for that purpose." 16 The last argument of petitioner, namely
that the detainees were not caught in flagrante delicto and therefore the arrest was illegal was refuted in the
Comment thus: "Again petitioner simply misses the point. As this Court correctly observed, the crimes of
subversion and rebellion are continuing offenses. Besides this point involves an issue of fact. 17
It suffices to refer to the above Comment for the resolution of the motion for reconsideration. As therein
noted, Presidential Decree No. 1877 dated July 21, 1983 limits the duration of the preventive detention action
for the period not exceeding one year. In the language of such Decree: "When issued, the preventive detention
action shall constitute authority to arrest the subject person or persons, and to preventively detain him or
them for a period not exceeding one year and sequester all arms, equipment or properly used or to be used
in the commission of the crime or crimes." 18 There is no need to mention the amendments as there is no
change as to the preventive detention period remaining at "not exceeding one year." This Presidential Decree
No. 1877 explicitly provides in its Section 8: "The Minister of Defense shall promulgate the rules and
regulations to implement this Decree." 19 Such implementing rules and regulations were issued on September
7, 1983 by Minister of National Defense, respondent Juan Ponce Enrile and duly approved by the President of
the Philippines. One of its Sections deals with the period of detention under a presidential commitment order
thus: "The period of detention of all persons presently detained by virtue of a Presidential Commitment Order
or its derivatives shall not extend beyond one (1) year from and after the date of effectivity of Presidential
Decree No. 1877, as amended. Upon the effectivity of these rules and regulations, all cases of persons
presently detained under a presidential commitment order or its derivatives shall be governed by Presidential
Decree No. 1877, as amended, and its implementing rules and regulations." 20
Subsequently, on May 28, 1985, respondents filed the following Manifestation: "1. The persons listed below
who were detained by virtue of Presidential Commitment Order (PCO) issued on July 12, 1982, and in whose
behalf the above-captioned cases was filed have been released detention by the military authorities
concerned on the dates appearing opposite their names, to wit: Names of Detainees Dates of Release: a.
Dr. Aurora Parong-December 12, 1983: b. Norberto Portuguese- January 31, 1985; c. Sabino Padilla January
31, 1985; d. Francis Divinagracia January 31, 1985; e. Imelda delos Santos October 20, 1983; f. Benjamin
Pineda January 3l 1985; g. Zenaida Mallari January 31, 1985 h. Tito Tanguilig October 21, 1983; i. Letty
Ballogan March 4, 1983; j. Bienvenida Garcia October 20, 1983; k Eufronio Ortiz, Jr. January 31, 1985; 1.
Juanito Granada October 20, 1983. 2. The foregoing information was received from the Off ice of Civil
Relations, Ministry of National Defense, through Major Felizardo O. Montero, JAGS-GHO 3. As regards Tom
Vasquez, who was included in the instant petition, he was released on July 17, 1982, after his arrest on July
15, 1982, since he was not named in the PCO 4. Anent Mariano Soriano, the undersigned have been informed
by the Office of Civil Relations that the subject escaped from detention two (2) years ago and as of date hereof
is still at large." 21
There is no question, therefore, that the force and effectivity of a presidential commitment order issued as far
back as July 12, 1982 had ceased to have any force or effect.
WHEREFORE, pursuant to Section 8 of Presidential Decree No. 1877 and Section 8 of the Rules and Regulations
Implementing Presidential Decree No. 1877-A, the motion for reconsideration should have been granted, and
the writ of habeas corpus ordering the release of the detainees covered by such Section 8 issued, but in the
light of the foregoing manifestation as to Norberto Portuguese, Sabino Padilla, Francis Divina gracia, Imelda
de los Santos, Benjamin Pineda, Zenaida Mallari, Mariano Soriano, Tito Tanguilig, Letty Ballogan, Bienvenida
Garcia, Eufronio Ortiz, Jr., Juanito Granada, and Tom Vasquez, having been released, the petition as to them
has been declared moot and academic. As to Dr. Aurora Parong, since a warrant of arrest against her was
issued by the municipal court of Bayombong on August 4, 1982, for illegal possession of firearm and
ammunitions, the petition is likewise declared moot and academic. No costs.
Fernando, * CJ., Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ.,
concur.
Makasiar, Aquino and Concepcion, Jr., JJ., concur in the result.
G.R. No. L-35546 September 17, 1974
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BENIGNO S. AQUINO, JR., RAMON MITRA, JR.,
FRANCISCO RODRIGO, AND NAPOLEON RAMA, petitioners,
vs.
HON JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; GEN. ROMEO ESPINO, CHIEF OF STAFF,
ARMED FORCES OF THE PHILIPPINES; AND GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE
CONSTABULARY, respondents.
MAKALINTAL, C.J.:p
These cases are all petitions for habeas corpus, the petitioners having been arrested and detained by the
military by virtue of the President's Proclamation No. 1081, dated September 21, 1972.
At the outset a word of clarification is in order. This is not the decision of the Court in the sense that a decision
represents a consensus of the required majority of its members not only on the judgment itself but also on
the rationalization of the issues and the conclusions arrived at. On the final result the vote is practically
unanimous; this is a statement of my individual opinion as well as a summary of the voting on the major issues.
Why no particular Justice has been designated to write just one opinion for the entire Court will presently be
explained.
At one point during our deliberations on these cases it was suggested that as Chief Justice I should write that
opinion. The impracticability of the suggestion shortly became apparent for a number of reasons, only two of
which need be mentioned. First, the discussions, as they began to touch on particular issues, revealed a lack
of agreement among the Justices as to whether some of those issues should be taken up although it was not
necessary to do so, they being merely convenient for the purpose of ventilating vexing questions of public
interest, or whether the decision should be limited to those issues which are really material and decisive in
these cases. Similarly, there was no agreement as to the manner the issues should be treated and developed.
The same destination would be reached, so to speak, but through different routes and by means of different
vehicles of approach. The writing of separate opinions by individual Justices was thus unavoidable, and
understandably so for still another reason, namely, that although little overt reference to it was made at the
time, the future verdict of history was very much a factor in the thinking of the members, no other case of
such transcendental significance to the life of the nation having before confronted this Court. Second and
this to me was the insuperable obstacle I was and am of the opinion, which was shared by six other
Justices1 at the time the question was voted upon, that petitioner Jose W. Diokno's motion of December 28,
1973 to withdraw his petition (G.R. No. L-35539) should be granted, and therefore I was in no position to set
down the ruling of the Court on each of the arguments raised by him, except indirectly, insofar as they had
been raised likewise in the other cases.
It should be explained at this point that when the Court voted on Diokno's motion to withdraw his petition he
was still under detention without charges, and continued to remain so up to the time the separate opinions
of the individual Justices were put in final form preparatory to their promulgation on September 12, which
was the last day of Justice Zaldivars tenure in the Court.2 Before they could be promulgated, however, a major
development supervened: petitioner Diokno was released by the President in the morning of September 11,
1974. In view thereof all the members of this Court except Justice Castro agreed to dismiss Diokno's petition
on the ground that it had become moot, with those who originally voted to grant the motion for withdrawal
citing said motion as an additional ground for such dismissal.
The petitioners in the other cases, except Benigno Aquino, Jr. (G.R. No. L-35546), either have been permitted
to withdraw their petitions or have been released from detention subject to certain restrictions.3 In the case
of Aquino, formal charges of murder, subversion and illegal possession of firearms were lodged against him
with a Military Commission on August 11, 1973; and on the following August 23 he challenged the jurisdiction
of said Commission as well as his continued detention by virtue of those charges in a petition for certiorari and
prohibition filed in this Court (G.R. No.
L-37364). The question came up as to whether or not Aquino's petition for habeas corpus should be dismissed
on the ground that the case as to him should more appropriately be resolved in this new petition. Of the
twelve Justices, however, eight voted against such dismissal and chose to consider the case on the merits.4
On Diokno's motion to withdraw his petition I voted in favor of granting it for two reasons. In the first place
such withdrawal would not emasculate the decisive and fundamental issues of public interest that demanded
to be resolved, for they were also raised in the other cases which still remained pending. Secondly, since it
was this petitioner's personal liberty that was at stake, I believed he had the right to renounce the application
for habeas corpus he initiated. Even if that right were not absolute I still would respect his choice to remove
the case from this Court's cognizance, regardless of the fact that I disagreed with many of his reasons for so
doing. I could not escape a sense of irony in this Court's turning down the plea to withdraw on the ground, so
he alleges among others, that this is no longer the Court to which he originally applied for relief because its
members have taken new oaths of office under the 1973 Constitution, and then ruling adversely to him on the
merits of his petition.
It is true that some of the statements in the motion are an affront to the dignity of this Court and therefore
should not be allowed to pass unanswered. Any answer, however, would not be foreclosed by allowing the
withdrawal. For my part, since most of those statements are of a subjective character, being matters of
personal belief and opinion, I see no point in refuting them in these cases. Indeed my impression is that they
were beamed less at this Court than at the world outside and designed to make political capital of his personal
situation, as the publicity given to them by some segments of the foreign press and by local underground
propaganda news sheets subsequently confirmed. It was in fact from that perspective that I deemed it proper
to respond in kind, that is, from a non-judicial forum, in an address I delivered on February 19, 1974 before
the LAWASIA, the Philippine Bar Association and the Philippine Lawyers' Association. Justice Teehankee, it
may be stated, is of the opinion that a simple majority of seven votes out of twelve is legally sufficient to make
the withdrawal of Diokno's petition effective, on the theory that the requirement of a majority of eight votes
applies only to a decision on the merits.
In any event, as it turned out, after petitioner Diokno was released by the President on September 11 all the
members of this Court except Justice Castro were agreed that his petition had become moot and therefore
should no longer be considered on the merits. This notwithstanding, some of the opinions of the individual
members, particularly Justices Castro and Teehankee, should be taken in the time setting in which they were
prepared, that is, before the order for the release of Diokno was issued.
The Cases.
The events which form the background of these nine petitions are related, either briefly or in great detail, in
the separate opinions filed by the individual Justices. The petitioners were arrested and held pursuant to
General Order No. 2 of the President (September 22, 1972), "for being participants or for having given aid and
comfort in the conspiracy to seize political and state power in the country and to take over the Government
by force ..."
General Order No. 2 was issued by the President in the exercise of the powers he assumed by virtue of
Proclamation No. 1081 (September 21, 1972) placing the entire country under martial law. The portions of the
proclamation immediately in point read as follows:
xxx xxx xxx
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers vested upon
me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as
defined in Article I, Section 1 of the Constitution under martial law 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 and
to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or
upon my direction.
In addition, I do hereby order that all persons presently detained, as well as all others who may hereafter be
similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed in
furtherance or on the occasion thereof, or incident thereto, or in connection therewith, for crimes against
national security and the law of nations, crimes against public order, crimes involving usurpation of authority,
rank, title and improper use of names, uniforms and insignia, crimes committed by public officers, and for such
other crimes as will be enumerated in orders that I shall subsequently promulgate, as well as crimes as a
consequence of any violation of any decree, order or regulation promulgated by me personally or promulgated
upon my direction shall be kept under detention until otherwise ordered released by me or by my duly
designated representative.
The provision of the 1935 Constitution referred to in the proclamation reads: "the President shall be
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, insurrection, or rebellion. In case of
invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may
suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial
law."
1. The first major issue raised by the parties is whether this Court may inquire into the validity of Proclamation
No. 1081. Stated more concretely, is the existence of conditions claimed to justify the exercise of the power
to declare martial law subject to judicial inquiry? Is the question political or justiciable in character?
Justices Makasiar, Antonio, Esguerra, Fernandez and Aquino hold that the question is political and therefore
its determination is beyond the jurisdiction of this Court. The reasons are given at length in the separate
opinions they have respectively signed. Justice Fernandez adds that as a member of the Convention that
drafted the 1973 Constitution he believes that "the Convention put an imprimatur on the proposition that the
validity of a martial law proclamation and its continuation is political and non-justiciable in character."
Justice Barredo, on the other hand, believes that political questions are not per se beyond the Court's
jurisdiction, the judicial power vested in it by the Constitution being plenary and all-embracing, but that as a
matter of policy implicit in the Constitution itself the Court should abstain from interfering with the Executive's
Proclamation, dealing as it does with national security, for which the responsibility is vested by the charter in
him alone. But the Court should act, Justice Barredo opines, when its abstention from acting would result in
manifest and palpable transgression of the Constitution proven by facts of judicial notice, no reception of
evidence being contemplated for purposes of such judicial action.
It may be noted that the postulate of non-justiciability as discussed in those opinions involves disparate
methods of approach. Justice Esguerra maintains that the findings of the President on the existence of the
grounds for the declaration of martial law are final and conclusive upon the Courts. He disagrees vehemently
with the ruling in Lansang vs. Garcia, 42 SCRA 448, December 11, 1971, and advocates a return to Barcelon vs.
Baker, 5 Phil. 87 (1905), and Montenegro vs. Castaeda, 91 Phil. 882 (1952). Justice Barredo, for his part, holds
that Lansang need not be overturned, indeed does not control in these cases. He draws a distinction between
the power of the President to suspend the privilege of the writ of habeas corpus, which was the issue in
Lansang, and his power to proclaim martial law, calling attention to the fact that while the Bill of Rights
prohibits suspension of the privilege except in the instances specified therein, it places no such prohibition or
qualification with respect to the declaration of martial law.
Justice Antonio, with whom Justices Makasiar, Fernandez and Aquino concur, finds that there is no dispute as
to the existence of a state of rebellion in the country, and on that premise emphasizes the factor
of necessity for the exercise by the President of his power under the Constitution to declare martial law,
holding that the decision as to whether or not there is such necessity is wholly confided to him and therefore
is not subject to judicial inquiry, his responsibility being directly to the people.
Arrayed on the side of justiciability are Justices Castro, Fernando, Teehankee and Muoz Palma. They hold
that the constitutional sufficiency of the proclamation may be inquired into by the Court, and would thus apply
the principle laid down in Lansang although that case refers to the power of the President to suspend the
privilege of the writ of habeas corpus. The recognition of justiciability accorded to the question in Lansang, it
should be emphasized, is there expressly distinguished from the power of judicial review in ordinary civil or
criminal cases, and is limited to ascertaining "merely whether he (the President) has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of
his act." The test is not whether the President's decision is correct but whether, in suspending the writ, he did
or did not act arbitrarily. Applying this test, the finding by the Justices just mentioned is that there was no
arbitrariness in the President's proclamation of martial law pursuant to the 1935 Constitution; and I concur
with them in that finding. The factual bases for the suspension of the privilege of the writ of habeas
corpus, particularly in regard to the existence of a state of rebellion in the country, had not disappeared,
indeed had been exacerbated, as events shortly before said proclamation clearly demonstrated. On this Point
the Court is practically unanimous; Justice Teehankee merely refrained from discussing it.
Insofar as my own opinion is concerned the cleavage in the Court on the issue of justiciability is of not much
more than academic interest for purposes of arriving at a judgment. I am not unduly exercised by Americas
decisions on the subject written in another age and political clime, or by theories of foreign authors in political
science. The present state of martial law in the Philippines is peculiarly Filipino and fits into no traditional
patterns or judicial precedents.
In the first place I am convinced (as are the other Justices), without need of receiving evidence as in an ordinary
adversary court proceeding, that a state of rebellion existed in the country when Proclamation No. 1081 was
issued. It was a matter of contemporary history within the cognizance not only of the courts but of all
observant people residing here at the time. Many of the facts and events recited in detail in the different
"Whereases" of the proclamation are of common knowledge. The state of rebellion continues up to the
present. The argument that while armed hostilities go on in several provinces in Mindanao there are none in
other regions except in isolated pockets in Luzon, and that therefore there is no need to maintain martial law
all over the country, ignores the sophisticated nature and ramifications of rebellion in a modern setting. It
does not consist simply of armed clashes between organized and identifiable groups on fields of their own
choosing. It includes subversion of the most subtle kind, necessarily clandestine and operating precisely where
there is no actual fighting. Underground propaganda, through printed news sheets or rumors disseminated in
whispers; recruitment of armed and ideological adherents, raising of funds, procurement of arms and material,
fifth-column activities including sabotage and intelligence all these are part of the rebellion which by their
nature are usually conducted far from the battle fronts. They cannot be counteracted effectively unless
recognized and dealt with in that context.
Secondly, my view, which coincides with that of other members of the Court as stated in their opinions, is that
the question of validity of Proclamation No. 1081 has been foreclosed by the transitory provision of the 1973
Constitution [Art. XVII, Sec. 3(2)] that "all proclamations, orders, decrees, instructions, and acts promulgated,
issued, or done by the incumbent President shall be part of the law of the land and shall remain valid, legal,
binding and effective even after ... the ratification of this Constitution ..." To be sure, there is an attempt in
these cases to resuscitate the issue of the effectivity of the new Constitution. All that, however, is behind us
now. The question has been laid to rest by our decision in Javellana vs. Executive Secretary (L-36142, 50 SCRA
30, March 31, 1973), and of course by the existing political realities both in the conduct of national affairs and
in our relations with other countries.
On the effect of the transitory provision Justice Muoz Palma withholds her assent to any sweeping statement
that the same in effect validated, in the constitutional sense, all "such proclamations, decrees, instructions,
and acts promulgated, issued, or done by the incumbent President." All that she concedes is that the transitory
provision merely gives them "the imprimatur of a law but not of a constitutional mandate," and as such
therefore "are subject to judicial review when proper under the Constitution.
Finally, the political-or-justiciable question controversy indeed, any inquiry by this Court in the present cases
into the constitutional sufficiency of the factual bases for the proclamation of martial law has become moot
and purposeless as a consequence of the general referendum of July 27-28, 1973. The question propounded
to the voters was: "Under the (1973) Constitution, the President, if he so desires, can continue in office beyond
1973. Do you want President Marcos to continue beyond 1973 and finish the reforms he initiated under
Martial Law?" The overwhelming majority of those who cast their ballots, including citizens between 15 and
18 years, voted affirmatively on the proposal. The question was thereby removed from the area of presidential
power under the Constitution and transferred to the seat of sovereignty itself. Whatever may be the nature
of the exercise of that power by the President in the beginning whether or not purely political and therefore
non-justiciable this Court is precluded from applying its judicial yardstick to the act of the sovereign.
2. With respect to the petitioners who have been released from detention but have not withdrawn their
petitions because they are still subject to certain restrictions, 5 the ruling of the Court is that the petitions
should be dismissed. The power to detain persons even without charges for acts related to the situation which
justifies the proclamation of martial law, such as the existence of a state of rebellion, necessarily implies the
power (subject, in the opinion of the Justices who consider Lansang applicable, to the same test of
arbitrariness laid down therein), to impose upon the released detainees conditions or restrictions which are
germane to and necessary to carry out the purposes of the proclamation. Justice Fernando, however, "is for
easing the restrictions on the right to travel of petitioner Rodrigo" and others similarly situated and so to this
extent dissents from the ruling of the majority; while Justice Teehankee believes that those restrictions do not
constitute deprivation of physical liberty within the meaning of the constitutional provision on the privilege of
the writ of habeas corpus.
It need only be added that, to my mind, implicit in a state of martial law is the suspension of the said privilege
with respect to persons arrested or detained for acts related to the basic objective of the proclamation, which
is to suppress invasion, insurrection, or rebellion, or to safeguard public safety against imminent danger
thereof. The preservation of society and national survival take precedence. On this particular point, that is,
that the proclamation of martial law automatically suspends the privilege of the writ as to the persons referred
to, the Court is practically unanimous. Justice Fernando, however, says that to him that is still an open
question; and Justice Muoz Palma qualifiedly dissents from the majority in her separate opinion, but for the
reasons she discusses therein votes for the dismissal of the petitions.
IN VIEW OF ALL THE FOREGOING AND FOR THE REASONS STATED BY THE MEMBERS OF THE COURT IN THEIR
SEPARATE OPINIONS, JUDGMENT IS HEREBY RENDERED DISMISSING ALL THE PETITIONS, EXCEPT THOSE
WHICH HAVE BEEN PREVIOUSLY WITHDRAWN BY THE RESPECTIVE PETITIONERS WITH THE APPROVAL OF THIS
COURT, AS HEREINABOVE MENTIONED. NO COSTS.
G.R. No. L-48100 June 20, 1941
FLORENCIO PELOBELLO, petitioner-appellant,
vs.
GREGORIO PALATINO, respondent-appellee.
Rodriguez & Aclaro for appellant.
Cecilio Maneja for appellee.
LAUREL, J.:
The petitioner-appellant, Florencio Pelobello, instituted quo warranto proceedings in the Court of First
Instance of Tayabas against the respondent-appellee, Gregorio Palatino, the mayor-elect of the municipality
of Torrijos, Province of Marinduque. The proceedings were had pursuant to the provisions of section 167, in
relation with section 94 (a), of the Election Code (Commonwealth Act No. 357). It was alleged that the
respondent-appellee, having been convicted by final judgment in 1912 of atendado contra la autoridad y sus
agentes and sentenced to imprisonment for two years, four months and one day of prision correccional, was
disqualified from voting and being voted upon for the contested municipal office, such disqualification not
having been removed by plenary pardon.
The fact of conviction as above set forth is admitted; so is the election and consequent proclamation of the
respondent-appellee for the office of municipal mayor. It is also admitted that the respondent-appellee was
granted by the Governor-General a conditional pardon back in 1915; and it has been proven (Vide Exhibit 1,
admitted by the lower court, rec. of ap., p. 20) that on December 25, 1940, His Excellency, the President of the
Philippines, granted the respondent-appellee absolute pardon and restored him to the enjoyment of full civil
and political rights.
The question presented is whether or not the absolute pardon had the effect of removing the disqualification
incident to criminal conviction under paragraph (a) of section 94 of the Election Code, the pardon having been
granted after the election but before the date fixed by law for assuming office (sec. 4, Election Code). Without
the necessity of inquiring into the historical background of the benign prerogative of mercy, we adopt the
broad view expressed in Cristobal vs. Labrador, G. R. No. 47941, promulgated December 7, 1940, that subject
to the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by
legislative action; that an absolute pardon not only blots out the crime committed but removes all disabilities
resulting from the conviction, and that when granted after the term of imprisonment has expired, absolute
pardon removes all that is left of the consequences of conviction, While there may be force in the argument
which finds support in well considered cases that the effect of absolute pardon should not be extended to
cases of this kind, we are of the opinion that the better view in the light of the constitutional grant in this
jurisdiction is not to unnecessarily restrict or impair the power of the Chief Executive who, after inquiry into
the environmental facts, should be at liberty to atone the rigidity of the law to the extent of relieving
completely the party or parties concerned from the accessory and resultant disabilities of criminal conviction.
In the case at bar, it is admitted that the respondent mayor-elect committed the offense more than 25 years
ago; that he had already merited conditional pardon from the Governor-General in 1915; that thereafter he
had exercised the right of suffrage, was elected councilor of Torrijos, Marinduque, for the period 1918 to 1921;
was elected municipal president of that municipality three times in succession (1922-1931); and finally elected
mayor of the municipality in the election for local officials in December, 1940. Under these circumstances, it
is evident that the purpose in granting him absolute pardon was to enable him to assume the position in
deference to the popular will; and the pardon was thus extended on the date mentioned hereinabove and
before the date fixed in section 4 of the Election Code for assuming office. We see no reason for defeating this
wholesome purpose by a restrictive judicial interpretation of the constitutional grant to the Chief Executive.
We, therefore, give efficacy to executive action and disregard what at bottom is a technical objection.
The judgment of the lower court is affirmed, with costs against the petitioner-appellant, So ordered.
Avancea, C.J., Diaz and Moran, JJ., concur.
CHINA NATIONAL MACHINERY & EQUIPMENT CORP. (GROUP) vs HON. CESAR D. SANTAMARIA
SERENO, J.:
This is a Petition for Review on Certiorari with Prayer for the Issuance of a Temporary Restraining Order (TRO)
and/or Preliminary Injunction assailing the 30 September 2008 Decision and 5 December 2008 Resolution of
the Court of Appeals (CA) in CAG.R. SP No. 103351.[1]
On 14 September 2002, petitioner China National Machinery & Equipment Corp. (Group) (CNMEG),
represented by its chairperson, Ren Hongbin, entered into a Memorandum of Understanding with the North
Luzon Railways Corporation (Northrail), represented by its president, Jose L. Cortes, Jr. for the conduct of a
feasibility study on a possible railway line from Manila to San Fernando, La Union (the Northrail Project).[2]
On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the Department of Finance of the
Philippines (DOF) entered into a Memorandum of Understanding (Aug 30 MOU), wherein China agreed to
extend Preferential Buyers Credit to the Philippine government to finance the Northrail Project.[3] The Chinese
government designated EXIM Bank as the lender, while the Philippine government named the DOF as the
borrower.[4] Under the Aug 30 MOU, EXIM Bank agreed to extend an amount not exceeding USD 400,000,000
in favor of the DOF, payable in 20 years, with a 5-year grace period, and at the rate of 3% per annum.[5]
On 1 October 2003, the Chinese Ambassador to the Philippines, Wang Chungui (Amb. Wang), wrote a letter
to DOF Secretary Jose Isidro Camacho (Sec. Camacho) informing him of CNMEGs designation as the Prime
Contractor for the Northrail Project.[6]
On 30 December 2003, Northrail and CNMEG executed a Contract Agreement for the construction of Section
I, Phase I of the North Luzon Railway System from Caloocan to Malolos on a turnkey basis (the Contract
Agreement).[7] The contract price for the Northrail Project was pegged at USD 421,050,000.[8]
On 26 February 2004, the Philippine government and EXIM Bank entered into a counterpart financial
agreement Buyer Credit Loan Agreement No. BLA 04055 (the Loan Agreement).[9] In the Loan Agreement,
EXIM Bank agreed to extend Preferential Buyers Credit in the amount of USD 400,000,000 in favor of the
Philippine government in order to finance the construction of Phase I of the Northrail Project.[10]
On 13 February 2006, respondents filed a Complaint for Annulment of Contract and Injunction with Urgent
Motion for Summary Hearing to Determine the Existence of Facts and Circumstances Justifying the Issuance
of Writs of Preliminary Prohibitory and Mandatory Injunction and/or TRO against CNMEG, the Office of the
Executive Secretary, the DOF, the Department of Budget and Management, the National Economic
Development Authority and Northrail.[11] The case was docketed as Civil Case No. 06-203 before the Regional
Trial Court, National Capital Judicial Region, Makati City, Branch 145 (RTC Br. 145). In the Complaint,
respondents alleged that the Contract Agreement and the Loan Agreement were void for being contrary to (a)
the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184), otherwise known as the Government Procurement
Reform Act; (c) Presidential Decree No. 1445, otherwise known as the Government Auditing Code; and (d)
Executive Order No. 292, otherwise known as the Administrative Code.[12]
RTC Br. 145 issued an Order dated 17 March 2006 setting the case for hearing on the issuance of injunctive
reliefs.[13] On 29 March 2006, CNMEG filed an Urgent Motion for Reconsideration of this Order.[14] Before RTC
Br. 145 could rule thereon, CNMEG filed a Motion to Dismiss dated 12 April 2006, arguing that the trial court
did not have jurisdiction over (a) its person, as it was an agent of the Chinese government, making it immune
from suit, and (b) the subject matter, as the Northrail Project was a product of an executive agreement.[15]
On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEGs Motion to Dismiss and setting the
case for summary hearing to determine whether the injunctive reliefs prayed for should be issued.[16] CNMEG
then filed a Motion for Reconsideration,[17] which was denied by the trial court in an Order dated 10 March
2008.[18] Thus, CNMEG filed before the CA a Petition for Certiorari with Prayer for the Issuance of TRO and/or
Writ of Preliminary Injunction dated 4 April 2008.[19]
In the assailed Decision dated 30 September 2008, the appellate court dismissed the Petition for
Certiorari.[20] Subsequently, CNMEG filed a Motion for Reconsideration,[21] which was denied by the CA in a
Resolution dated 5 December 2008.[22] Thus, CNMEG filed the instant Petition for Review on Certiorari dated
21 January 2009, raising the following issues: [23]
Whether or not petitioner CNMEG is an agent of the sovereign Peoples Republic of China.
Whether or not the Northrail contracts are products of an executive agreement between two sovereign states.
Whether or not the certification from the Department of Foreign Affairs is necessary under the foregoing
circumstances.
Whether or not the act being undertaken by petitioner CNMEG is an act jure imperii.
Whether or not the Court of Appeals failed to avoid a procedural limbo in the lower court.
Whether or not the Northrail Project is subject to competitive public bidding.
Whether or not the Court of Appeals ignored the ruling of this Honorable Court in the Neri case.
CNMEG prays for the dismissal of Civil Case No. 06-203 before RTC Br. 145 for lack of jurisdiction. It likewise
requests this Court for the issuance of a TRO and, later on, a writ of preliminary injunction to restrain public
respondent from proceeding with the disposition of Civil Case No. 06-203.
The crux of this case boils down to two main issues, namely:
1. Whether CNMEG is entitled to immunity, precluding it from being sued before a local court.
2. Whether the Contract Agreement is an executive agreement, such that it cannot be questioned by
or before a local court.
First issue: Whether CNMEG is entitled to immunity
This Court explained the doctrine of sovereign immunity in Holy See v. Rosario,[24] to wit:
There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According
to the classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the
courts of another sovereign. According to the newer or restrictive theory, the immunity of the sovereign is
recognized only with regard to public acts or acts jure imperii of a state, but not with regard to private acts
or acts jure gestionis. (Emphasis supplied; citations omitted.)
The restrictive theory came about because of the entry of sovereign states into purely commercial activities
remotely connected with the discharge of governmental functions. This is particularly true with respect to the
Communist states which took control of nationalized business activities and international trading.
In JUSMAG v. National Labor Relations Commission,[25] this Court affirmed the Philippines adherence to the
restrictive theory as follows:
The doctrine of state immunity from suit has undergone further metamorphosis. The view evolved that the
existence of a contract does not, per se, mean that sovereign states may, at all times, be sued in local courts.
The complexity of relationships between sovereign states, brought about by their increasing commercial
activities, mothered a more restrictive application of the doctrine.
As it stands now, the application of the doctrine of immunity from suit has
been restricted to sovereign or governmental activities (jure imperii). The mantle of state
immunity cannot be extended to commercial, private and proprietary acts (jure gestionis).[26] (Emphasis
supplied.)
Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal nature of the act
involved whether the entity claiming immunity performs governmental, as opposed to proprietary, functions.
As held in United States of America v. Ruiz [27]
The restrictive application of State immunity is proper only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a State
may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its
consent to be sued only when it enters into business contracts. It does not apply where the contract relates
to the exercise of its sovereign functions.[28]
A. CNMEG is engaged in a proprietary activity.
A threshold question that must be answered is whether CNMEG performs governmental or proprietary
functions. A thorough examination of the basic facts of the case would show that CNMEG is engaged in a
proprietary activity.
The parties executed the Contract Agreement for the purpose of constructing the Luzon Railways, viz:[29]
WHEREAS the Employer (Northrail) desired to construct the railways form Caloocan to Malolos, section I,
Phase I of Philippine North Luzon Railways Project (hereinafter referred to as THE PROJECT);
AND WHEREAS the Contractor has offered to provide the Project on Turnkey basis, including design,
manufacturing, supply, construction, commissioning, and training of the Employers personnel;
AND WHEREAS the Loan Agreement of the Preferential Buyers Credit between Export-Import Bank
of China and Department of Finance of Republic of the Philippines;
NOW, THEREFORE, the parties agree to sign this Contract for the Implementation of the Project.
The above-cited portion of the Contract Agreement, however, does not on its own reveal whether the
construction of the Luzon railways was meant to be a proprietary endeavor. In order to fully understand the
intention behind and the purpose of the entire undertaking, the Contract Agreement must not be read in
isolation. Instead, it must be construed in conjunction with three other documents executed in relation to the
Northrail Project, namely: (a) the Memorandum of Understanding dated 14 September 2002 between
Northrail and CNMEG;[30] (b) the letter of Amb. Wang dated 1 October 2003 addressed to Sec. Camacho;[31] and
(c) the Loan Agreement.[32]
1. Memorandum of Understanding dated 14 September 2002
The Memorandum of Understanding dated 14 September 2002 shows that CNMEG sought the construction
of the Luzon Railways as a proprietary venture. The relevant parts thereof read:
WHEREAS, CNMEG has the financial capability, professional competence and technical expertise to assess the
state of the [Main Line North (MLN)] and recommend implementation plans as well as undertake its
rehabilitation and/or modernization;
WHEREAS, CNMEG has expressed interest in the rehabilitation and/or modernization of the MLN from
Metro Manila to San Fernando, La Union passing through the provinces of Bulacan, Pampanga, Tarlac,
Pangasinan and La Union (the Project);
WHEREAS, the NORTHRAIL CORP. welcomes CNMEGs proposal to undertake a Feasibility Study (the Study) at
no cost to NORTHRAIL CORP.;
WHEREAS, the NORTHRAIL CORP. also welcomes CNMEGs interest in undertaking the Project with Suppliers
Credit and intends to employ CNMEG as the Contractor for the Project subject to compliance with Philippine
and Chinese laws, rules and regulations for the selection of a contractor;
WHEREAS, the NORTHRAIL CORP. considers CNMEGs proposal advantageous to the Government of the
Republic of the Philippines and has therefore agreed to assist CNMEG in the conduct of the aforesaid Study;
II. APPROVAL PROCESS
2.1 As soon as possible after completion and presentation of the Study in accordance with Paragraphs
1.3 and 1.4 above and in compliance with necessary governmental laws, rules, regulations and procedures
required from both parties, the parties shall commence the preparation and negotiation of the terms and
conditions of the Contract (the Contract) to be entered into between them on the implementation of the
Project. The parties shall use their best endeavors to formulate and finalize a Contract with a view to signing
the Contract within one hundred twenty (120) days from CNMEGs presentation of the Study.[33] (Emphasis
supplied)
Clearly, it was CNMEG that initiated the undertaking, and not the Chinese government. The Feasibility Study
was conducted not because of any diplomatic gratuity from or exercise of sovereign functions by the Chinese
government, but was plainly a business strategy employed by CNMEG with a view to securing this commercial
enterprise.
2. Letter dated 1 October 2003
That CNMEG, and not the Chinese government, initiated the Northrail Project was confirmed by Amb. Wang
in his letter dated 1 October 2003, thus:
1. CNMEG has the proven competence and capability to undertake the Project as evidenced by the
ranking of 42 given by the ENR among 225 global construction companies.
2. CNMEG already signed an MOU with the North Luzon Railways Corporation last September 14,
2000 during the visit of Chairman Li Peng. Such being the case, they have already established an initial working
relationship with your North Luzon Railways Corporation. This would categorize CNMEG as the state
corporation within the Peoples Republic of China which initiated our Governments involvement in the
Project.
3. Among the various state corporations of the Peoples Republic of China, only CNMEG has the
advantage of being fully familiar with the current requirements of the Northrail Project having already
accomplished a Feasibility Study which was used as inputs by the North Luzon Railways Corporation in the
approvals (sic) process required by the Republic of the Philippines.[34] (Emphasis supplied.)
Thus, the desire of CNMEG to secure the Northrail Project was in the ordinary or regular course of its business
as a global construction company. The implementation of the Northrail Project was intended to generate profit
for CNMEG, with the Contract Agreement placing a contract price of USD 421,050,000 for the venture.[35] The
use of the term state corporation to refer to CNMEG was only descriptive of its nature as a government-owned
and/or -controlled corporation, and its assignment as the Primary Contractor did not imply that it was acting
on behalf of China in the performance of the latters sovereign functions. To imply otherwise would result in
an absurd situation, in which all Chinese corporations owned by the state would be automatically considered
as performing governmental activities, even if they are clearly engaged in commercial or proprietary pursuits.
3. The Loan Agreement
CNMEG claims immunity on the ground that the Aug 30 MOU on the financing of the Northrail Project was
signed by the Philippine and Chinese governments, and its assignment as the Primary Contractor meant that
it was bound to perform a governmental function on behalf of China. However, the Loan Agreement, which
originated from the same Aug 30 MOU, belies this reasoning, viz:
Article 11. xxx (j) Commercial Activity The execution and delivery of this Agreement by the Borrower
constitute, and the Borrowers performance of and compliance with its obligations under this Agreement will
constitute, private and commercial acts done and performed for commercial purposes under the laws of the
Republic of the Philippines and neither the Borrower nor any of its assets is entitled to any immunity or
privilege (sovereign or otherwise) from suit, execution or any other legal process with respect to its
obligations under this Agreement, as the case may be, in any jurisdiction. Notwithstanding the foregoing,
the Borrower does not waive any immunity with respect of its assets which are (i) used by a diplomatic or
consular mission of the Borrower and (ii) assets of a military character and under control of a military authority
or defense agency and (iii) located in the Philippines and dedicated to public or governmental use (as
distinguished from patrimonial assets or assets dedicated to commercial use). (Emphasis supplied.)
(k) Proceedings to Enforce Agreement In any proceeding in the Republic of the Philippines to enforce this
Agreement, the choice of the laws of the Peoples Republic of China as the governing law hereof will be
recognized and such law will be applied. The waiver of immunity by the Borrower, the irrevocable submissions
of the Borrower to the non-exclusive jurisdiction of the courts of the Peoples Republic of China and the
appointment of the Borrowers Chinese Process Agent is legal, valid, binding and enforceable and any judgment
obtained in the Peoples Republic of China will be if introduced, evidence for enforcement in any proceedings
against the Borrower and its assets in the Republic of the Philippines provided that (a) the court rendering
judgment had jurisdiction over the subject matter of the action in accordance with its jurisdictional rules, (b)
the Republic had notice of the proceedings, (c) the judgment of the court was not obtained through collusion
or fraud, and (d) such judgment was not based on a clear mistake of fact or law.[36]
Further, the Loan Agreement likewise contains this express waiver of immunity:
15.5 Waiver of Immunity The Borrower irrevocably and unconditionally waives, any immunity to which it or
its property may at any time be or become entitled, whether characterized as sovereign immunity or
otherwise, from any suit, judgment, service of process upon it or any agent, execution on judgment, set-off,
attachment prior to judgment, attachment in aid of execution to which it or its assets may be entitled in any
legal action or proceedings with respect to this Agreement or any of the transactions contemplated hereby or
hereunder. Notwithstanding the foregoing, the Borrower does not waive any immunity in respect of its assets
which are (i) used by a diplomatic or consular mission of the Borrower, (ii) assets of a military character and
under control of a military authority or defense agency and (iii) located in the Philippines and dedicated to a
public or governmental use (as distinguished from patrimonial assets or assets dedicated to commercial
use).[37]
Thus, despite petitioners claim that the EXIM Bank extended financial assistance to Northrail because the bank
was mandated by the Chinese government, and not because of any motivation to do business in the
Philippines,[38] it is clear from the foregoing provisions that the Northrail Project was a purely commercial
transaction.
Admittedly, the Loan Agreement was entered into between EXIM Bank and the Philippine government, while
the Contract Agreement was between Northrail and CNMEG. Although the Contract Agreement is silent on
the classification of the legal nature of the transaction, the foregoing provisions of the Loan Agreement, which
is an inextricable part of the entire undertaking, nonetheless reveal the intention of the parties to the Northrail
Project to classify the whole venture as commercial or proprietary in character.
Thus, piecing together the content and tenor of the Contract Agreement, the Memorandum of Understanding
dated 14 September 2002, Amb. Wangs letter dated 1 October 2003, and the Loan Agreement would reveal
the desire of CNMEG to construct the Luzon Railways in pursuit of a purely commercial activity performed in
the ordinary course of its business.
B. CNMEG failed to adduce evidence that it is immune from suit under Chinese law.
Even assuming arguendo that CNMEG performs governmental functions, such claim does not automatically
vest it with immunity. This view finds support in Malong v. Philippine National Railways, in which this Court
held that (i)mmunity from suit is determined by the character of the objects for which the entity was
organized.[39]
In this regard, this Courts ruling in Deutsche Gesellschaft Fr Technische Zusammenarbeit (GTZ) v. CA[40] must
be examined. In Deutsche Gesellschaft, Germany and the Philippines entered into a Technical Cooperation
Agreement, pursuant to which both signed an arrangement promoting the Social Health InsuranceNetworking
and Empowerment (SHINE) project. The two governments named their respective implementing
organizations: the Department of Health (DOH) and the Philippine Health Insurance Corporation (PHIC) for
the Philippines, and GTZ for the implementation of Germanys contributions. In ruling that GTZ was not
immune from suit, this Court held:
The arguments raised by GTZ and the [Office of the Solicitor General (OSG)] are rooted in several indisputable
facts. The SHINE project was implemented pursuant to the bilateral agreements between the Philippine and
German governments. GTZ was tasked, under the 1991 agreement, with the implementation of the
contributions of the German government. The activities performed by GTZ pertaining to the SHINE project
are governmental in nature, related as they are to the promotion of health insurance in the Philippines. The
fact that GTZ entered into employment contracts with the private respondents did not disqualify it from
invoking immunity from suit, as held in cases such as Holy See v. Rosario, Jr., which set forth what remains
valid doctrine:
Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test.
Such an act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in
the activity in the regular course of business. If the foreign state is not engaged regularly in a business or trade,
the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity,
or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit.
Beyond dispute is the tenability of the comment points (sic) raised by GTZ and the OSG that GTZ was not
performing proprietary functions notwithstanding its entry into the particular employment contracts. Yet
there is an equally fundamental premise which GTZ and the OSG fail to address, namely: Is GTZ, by conception,
able to enjoy the Federal Republics immunity from suit?
The principle of state immunity from suit, whether a local state or a foreign state, is reflected in Section 9,
Article XVI of the Constitution, which states that the State may not be sued without its consent. Who or what
consists of the State? For one, the doctrine is available to foreign States insofar as they are sought to be sued
in the courts of the local State, necessary as it is to avoid unduly vexing the peace of nations.
If the instant suit had been brought directly against the Federal Republic of Germany, there would be no doubt
that it is a suit brought against a State, and the only necessary inquiry is whether said State had consented to
be sued. However, the present suit was brought against GTZ. It is necessary for us to understand what precisely
are the parameters of the legal personality of GTZ.
Counsel for GTZ characterizes GTZ as the implementing agency of the Government of the Federal Republic
of Germany, a depiction similarly adopted by the OSG. Assuming that the characterization is correct, it does
not automatically invest GTZ with the ability to invoke State immunity from suit. The distinction lies in
whether the agency is incorporated or unincorporated.
State immunity from suit may be waived by general or special law. The special law can take the form of the
original charter of the incorporated government agency. Jurisprudence is replete with examples of
incorporated government agencies which were ruled not entitled to invoke immunity from suit, owing to
provisions in their charters manifesting their consent to be sued.
It is useful to note that on the part of the Philippine government, it had designated two entities, the
Department of Health and the Philippine Health Insurance Corporation (PHIC), as the implementing agencies
in behalf of the Philippines. The PHIC was established under Republic Act No. 7875, Section 16 (g) of which
grants the corporation the power to sue and be sued in court. Applying the previously cited jurisprudence,
PHIC would not enjoy immunity from suit even in the performance of its functions connected with SHINE,
however, (sic) governmental in nature as (sic) they may be.
Is GTZ an incorporated agency of the German government? There is some mystery surrounding that
question. Neither GTZ nor the OSG go beyond the claim that petitioner is the implementing agency of the
Government of the Federal Republic of Germany. On the other hand, private respondents asserted before
the Labor Arbiter that GTZ was a private corporation engaged in the implementation of development
projects. The Labor Arbiter accepted that claim in his Order denying the Motion to Dismiss, though he was
silent on that point in his Decision. Nevertheless, private respondents argue in their Comment that the finding
that GTZ was a private corporation was never controverted, and is therefore deemed admitted. In its Reply,
GTZ controverts that finding, saying that it is a matter of public knowledge that the status of petitioner GTZ is
that of the implementing agency, and not that of a private corporation.
In truth, private respondents were unable to adduce any evidence to substantiate their claim that GTZ was a
private corporation, and the Labor Arbiter acted rashly in accepting such claim without explanation.
But neither has GTZ supplied any evidence defining its legal nature beyond that of the bare descriptive
implementing agency. There is no doubt that the 1991 Agreement designated GTZ as the implementing
agency in behalf of the German government. Yet the catch is that such term has no precise definition that
is responsive to our concerns. Inherently, an agent acts in behalf of a principal, and the GTZ can be said to
act in behalf of the German state. But that is as far as implementing agency could take us. The term by itself
does not supply whether GTZ is incorporated or unincorporated, whether it is owned by the German state
or by private interests, whether it has juridical personality independent of the German government or none
at all.
Again, we are uncertain of the corresponding legal implications under German law surrounding a private
company owned by the Federal Republic of Germany. Yet taking the description on face value, the apparent
equivalent under Philippine law is that of a corporation organized under the Corporation Code but owned
by the Philippine government, or a government-owned or controlled corporation without original charter.
And it bears notice that Section 36 of the Corporate Code states that [e]very corporation incorporated under
this Code has the power and capacity x x x to sue and be sued in its corporate name.
It is entirely possible that under German law, an entity such as GTZ or particularly GTZ itself has not been
vested or has been specifically deprived the power and capacity to sue and/or be sued. Yet in the proceedings
below and before this Court, GTZ has failed to establish that under German law, it has not consented to be
sued despite it being owned by the Federal Republic of Germany. We adhere to the rule that in the absence
of evidence to the contrary, foreign laws on a particular subject are presumed to be the same as those of
the Philippines, and following the most intelligent assumption we can gather, GTZ is akin to a governmental
owned or controlled corporation without original charter which, by virtue of the Corporation Code, has
expressly consented to be sued. At the very least, like the Labor Arbiter and the Court of Appeals, this Court
has no basis in fact to conclude or presume that GTZ enjoys immunity from suit.[41] (Emphasis supplied.)
Applying the foregoing ruling to the case at bar, it is readily apparent that CNMEG cannot claim immunity from
suit, even if it contends that it performs governmental functions. Its designation as the Primary Contractor
does not automatically grant it immunity, just as the term implementing agency has no precise definition for
purposes of ascertaining whether GTZ was immune from suit. Although CNMEG claims to be a government-
owned corporation, it failed to adduce evidence that it has not consented to be sued under Chinese law. Thus,
following this Courts ruling in Deutsche Gesellschaft, in the absence of evidence to the contrary, CNMEG is to
be presumed to be a government-owned and -controlled corporation without an original charter. As a result,
it has the capacity to sue and be sued under Section 36 of the Corporation Code.
C. CNMEG failed to present a certification from the Department of Foreign Affairs.
In Holy See,[42] this Court reiterated the oft-cited doctrine that the determination by the Executive that an
entity is entitled to sovereign or diplomatic immunity is a political question conclusive upon the courts, to wit:
In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic
immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court
that said defendant is entitled to immunity.
In the Philippines, the practice is for the foreign government or the international organization to first secure
an executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign
Office conveys its endorsement to the courts varies. In International Catholic Migration Commission v. Calleja,
190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and
Employment, informing the latter that the respondent-employer could not be sued because it enjoyed
diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign
Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked
the Secretary of Foreign Affairs to request the Solicitor General to make, in behalf of the Commander of the
United States Naval Base at Olongapo City, Zambales, a suggestion to respondent Judge. The Solicitor General
embodied the suggestion in a Manifestation and Memorandum as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this
Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department to file its
memorandum in support of petitioners claim of sovereign immunity.
In some cases, the defense of sovereign immunity was submitted directly to the local courts by the
respondents through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-
Ryukyus Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644 [1990] and
companion cases). In cases where the foreign states bypass the Foreign Office, the courts can inquire into the
facts and make their own determination as to the nature of the acts and transactions involved.[43] (Emphasis
supplied.)
The question now is whether any agency of the Executive Branch can make a determination of immunity from
suit, which may be considered as conclusive upon the courts. This Court, in Department of Foreign Affairs
(DFA) v. National Labor Relations Commission (NLRC),[44] emphasized the DFAs competence and authority to
provide such necessary determination, to wit:
The DFAs function includes, among its other mandates, the determination of persons and institutions
covered by diplomatic immunities, a determination which, when challenge, (sic) entitles it to seek relief
from the court so as not to seriously impair the conduct of the country's foreign relations. The DFA must be
allowed to plead its case whenever necessary or advisable to enable it to help keep the credibility of the
Philippine government before the international community. When international agreements are concluded,
the parties thereto are deemed to have likewise accepted the responsibility of seeing to it that their
agreements are duly regarded. In our country, this task falls principally of (sic) the DFA as being the highest
executive department with the competence and authority to so act in this aspect of the international
arena.[45] (Emphasis supplied.)
Further, the fact that this authority is exclusive to the DFA was also emphasized in this Courts ruling
in Deutsche Gesellschaft:
It is to be recalled that the Labor Arbiter, in both of his rulings, noted that it was imperative for petitioners to
secure from the Department of Foreign Affairs a certification of respondents diplomatic status and entitlement
to diplomatic privileges including immunity from suits. The requirement might not necessarily be imperative.
However, had GTZ obtained such certification from the DFA, it would have provided factual basis for its
claim of immunity that would, at the very least, establish a disputable evidentiary presumption that the
foreign party is indeed immune which the opposing party will have to overcome with its own factual
evidence. We do not see why GTZ could not have secured such certification or endorsement from the DFA
for purposes of this case. Certainly, it would have been highly prudential for GTZ to obtain the same after the
Labor Arbiter had denied the motion to dismiss. Still, even at this juncture, we do not see any evidence that
the DFA, the office of the executive branch in charge of our diplomatic relations, has indeed endorsed GTZs
claim of immunity. It may be possible that GTZ tried, but failed to secure such certification, due to the same
concerns that we have discussed herein.
Would the fact that the Solicitor General has endorsed GTZs claim of States immunity from suit before this
Court sufficiently substitute for the DFA certification? Note that the rule in public international law quoted
in Holy See referred to endorsement by the Foreign Office of the State where the suit is filed, such foreign
office in the Philippines being the Department of Foreign Affairs. Nowhere in the Comment of the OSG is it
manifested that the DFA has endorsed GTZs claim, or that the OSG had solicited the DFAs views on the
issue. The arguments raised by the OSG are virtually the same as the arguments raised by GTZ without any
indication of any special and distinct perspective maintained by the Philippine government on the issue. The
Comment filed by the OSG does not inspire the same degree of confidence as a certification from the DFA
would have elicited.[46] (Emphasis supplied.)
In the case at bar, CNMEG offers the Certification executed by the Economic and Commercial Office of the
Embassy of the Peoples Republic of China, stating that the Northrail Project is in pursuit of a sovereign
activity.[47] Surely, this is not the kind of certification that can establish CNMEGs entitlement to immunity from
suit, as Holy Seeunequivocally refers to the determination of the Foreign Office of the state where it is sued.
Further, CNMEG also claims that its immunity from suit has the executive endorsement of both the OSG and
the Office of the Government Corporate Counsel (OGCC), which must be respected by the courts. However,
as expressly enunciated in Deutsche Gesellschaft, this determination by the OSG, or by the OGCC for that
matter, does not inspire the same degree of confidence as a DFA certification. Even with a DFA certification,
however, it must be remembered that this Court is not precluded from making an inquiry into the intrinsic
correctness of such certification.
D. An agreement to submit any dispute to arbitration may be construed as an implicit waiver of
immunity from suit.
In the United States, the Foreign Sovereign Immunities Act of 1976 provides for a waiver by implication of
state immunity. In the said law, the agreement to submit disputes to arbitration in a foreign country is
construed as an implicit waiver of immunity from suit. Although there is no similar law in the Philippines, there
is reason to apply the legal reasoning behind the waiver in this case.
The Conditions of Contract,[48] which is an integral part of the Contract Agreement,[49] states:
33. SETTLEMENT OF DISPUTES AND ARBITRATION
33.1. Amicable Settlement
Both parties shall attempt to amicably settle all disputes or controversies arising from this Contract before
the commencement of arbitration.
33.2. Arbitration
All disputes or controversies arising from this Contract which cannot be settled between the Employer and
the Contractor shall be submitted to arbitration in accordance with the UNCITRAL Arbitration Rules at present
in force and as may be amended by the rest of this Clause. The appointing authority shall be Hong
Kong International Arbitration Center. The place of arbitration shall be in Hong Kong at Hong Kong
International Arbitration Center (HKIAC).
Under the above provisions, if any dispute arises between Northrail and CNMEG, both parties are bound to
submit the matter to the HKIAC for arbitration. In case the HKIAC makes an arbitral award in favor of Northrail,
its enforcement in the Philippines would be subject to the Special Rules on Alternative Dispute Resolution
(Special Rules). Rule 13 thereof provides for the Recognition and Enforcement of a Foreign Arbitral Award.
Under Rules 13.2 and 13.3 of the Special Rules, the party to arbitration wishing to have an arbitral award
recognized and enforced in the Philippines must petition the proper regional trial court (a) where the assets
to be attached or levied upon is located; (b) where the acts to be enjoined are being performed; (c) in the
principal place of business in the Philippines of any of the parties; (d) if any of the parties is an individual,
where any of those individuals resides; or (e) in the National Capital Judicial Region.
From all the foregoing, it is clear that CNMEG has agreed that it will not be afforded immunity from suit. Thus,
the courts have the competence and jurisdiction to ascertain the validity of the Contract Agreement.
Second issue: Whether the Contract Agreement is an executive agreement
Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna Convention) defines a treaty as follows:
[A]n international agreement concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments and whatever its particular
designation.
In Bayan Muna v. Romulo, this Court held that an executive agreement is similar to a treaty, except that the
former (a) does not require legislative concurrence; (b) is usually less formal; and (c) deals with a narrower
range of subject matters.[50]
Despite these differences, to be considered an executive agreement, the following three requisites provided
under the Vienna Convention must nevertheless concur: (a) the agreement must be between states; (b) it
must be written; and (c) it must governed by international law. The first and the third requisites do not obtain
in the case at bar.
A. CNMEG is neither a government nor a government agency.
The Contract Agreement was not concluded between the Philippines and China, but between Northrail and
CNMEG.[51] By the terms of the Contract Agreement, Northrail is a government-owned or -controlled
corporation, while CNMEG is a corporation duly organized and created under the laws of the Peoples Republic
of China.[52] Thus, both Northrail and CNMEG entered into the Contract Agreement as entities with
personalities distinct and separate from the Philippine and Chinese governments, respectively.
Neither can it be said that CNMEG acted as agent of the Chinese government. As previously discussed, the fact
that Amb. Wang, in his letter dated 1 October 2003,[53]described CNMEG as a state corporation and declared
its designation as the Primary Contractor in the Northrail Project did not mean it was to perform sovereign
functions on behalf of China. That label was only descriptive of its nature as a state-owned corporation, and
did not preclude it from engaging in purely commercial or proprietary ventures.
B. The Contract Agreement is to be governed by Philippine law.
Article 2 of the Conditions of Contract,[54] which under Article 1.1 of the Contract Agreement is an integral part
of the latter, states:
APPLICABLE LAW AND GOVERNING LANGUAGE
The contract shall in all respects be read and construed in accordance with the laws of the Philippines.
The contract shall be written in English language. All correspondence and other documents pertaining to the
Contract which are exchanged by the parties shall be written in English language.
Since the Contract Agreement explicitly provides that Philippine law shall be applicable, the parties have
effectively conceded that their rights and obligations thereunder are not governed by international law.
It is therefore clear from the foregoing reasons that the Contract Agreement does not partake of the nature
of an executive agreement. It is merely an ordinary commercial contract that can be questioned before the
local courts.
WHEREFORE, the instant Petition is DENIED. Petitioner China National Machinery & Equipment Corp.
(Group) is not entitled to immunity from suit, and the Contract Agreement is not an executive
agreement. CNMEGs prayer for the issuance of a TRO and/or Writ of Preliminary Injunction is DENIED for
being moot and academic. This case is REMANDED to the Regional Trial Court of Makati, Branch 145, for
further proceedings as regards the validity of the contracts subject of Civil Case No. 06-203.
No pronouncement on costs of suit.