Amnesty when cannot be invoked new trial
Petitioners Jimenez and Barrioquinto were charged with the crime of murder.
Pasilan was a former guerilla fighting against the Japanese. In 1944, while
cleaning his gun outside the house of one Justina Miguel, a certain Ciriaco
Abarra passed by. Pasilan ordered Abarra to wait for him. Abarra waited and
after cleaning his gun, Pasilan interrogated Abarra. Abarra was alleged to be
supporting the Japanese cause and he was one of the persons who
accompanied the Japanese troops in raiding the barrio where Pasilan lived.
After interrogating, Pasilan inflicted upon Abarra 2 stab wounds on Abarras
chest. Abarra run away towards the river. Ten days later, the decaying body
of Abarra was found. About 10 years after the incident, Morales, an agent, was
sent to the barrio to investigate crimes committed during the war. He
conducted some investigation and was also able to have Miguel testify against
Pasilan and he later found Pasilan to be guilty for the murder of Abarra. On
July 29, 1964, Pasilan moved for a new trial on the ground of newly discovered
evidence which allegedly would reverse the decision of the lower court.
Alleged as newly discovered evidence are sworn statement attesting to Justina
Miguels recantation. Pasilan likewise seeks to avail of Proclamation No. 8 by
President Roxas granting amnesty to persons who during the war committed
any act penalized under the RPC in furtherance of the resistance against the
enemy or against person aiding in the war efforts of the enemy.
ISSUE: Whether or not Pasilan is eligible to be admitted for amnesty.
HELD: Not every recantation of a witness entitles the accused to a new trial.
Otherwise, the power to grant a new trial would rest not in the courts but in the
witnesses who have testified against the accused. Recanting testimony,
furthermore, is exceedingly unreliable. Since Justina Miguels alleged
recantation has already been passed upon by the trial court, new trial is
uncalled for.
Neither can the additional ground of amnesty entitle appellant to a new trial. In
the first place, Proclamation No. 8 of President Roxas is not a newly
discovered evidence, for it was already known when the case was tried.
Secondly, availing of the benefits granted by the amnesty proclamation would
be inconsistent with the plea of not guilty which appellant entered upon his
arraignment. Amnesty presupposes the commission of a crime, and when the
accused maintains that he has not committed a crime, he cannot avail of
amnesty.
Facts:
Jimenez was sentenced to life imprisonment while Barrioquinto remained at
large. Before the period for appeal had expired, Jimenez became aware of the
Proclamation No. 8, which grants amnesty in favor of all persons who may be
charged with an act penalized under the Revised Penal Code in furtherance
of the resistance to the enemy or against persons aiding in the war efforts of
the enemy, and committed during the period from December 8, 1941, to the
date when particular area of the Philippines where the offense was actually
committed was liberated from enemy control and occupation. Jimenez decided
to apply for amnesty. Barrioquinto, who had then been already apprehended,
did the same. The Amnesty Commission returned the cases of the petitioners
to the Court of First Instance of Zamboanga, without deciding on the case
saying that since the Barrioquinto and Jimenez deny having committed the
crime, they cannot invoke the benefits of amnesty.
Issue:
Is admission of guilt necessary in amnesty?
Held:
The theory of the respondents, supported by the dissenting opinion, is
predicated on a wrong conception of the nature or character of an amnesty.
Amnesty must be distinguished from pardon.
Pardon is granted by the Chief Executive and as such it is a private act which
must be pleaded and proved by the person pardoned, because the courts take
no notice thereof; while amnesty by Proclamation of the Chief Executive with
the concurrence of Congress, and it is a public act of which the courts should
take judicial notice. Pardon is granted to one after conviction; while amnesty
is granted to classes of persons or communities who may be guilty of political
offenses, generally before or after the institution of the criminal prosecution
and sometimes after conviction. Pardon looks forward and relieves the
offender from the consequences of an offense of which he has been convicted,
that is, it abolished or forgives the punishment, and for that reason it does "nor
work the restoration of the rights to hold public office, or the right of suffrage,
unless such rights be expressly restored by the terms of the pardon," and it "in
no case exempts the culprit from the payment of the civil indemnity imposed
upon him by the sentence"; while amnesty looks backward and abolishes and
puts into oblivion the offense itself, it so overlooks and obliterates the offense
with which he is charged that the person released by amnesty stands before
the law precisely as though he had committed no offense.
In order to entitle a person to the benefits of the Amnesty Proclamation of
September 7, 1946, it is not necessary that he should, as a condition precedent
or sine qua non, admit having committed the criminal act or offense with which
he is charged and allege the amnesty as a defense; it is sufficient that the
evidence either of the complainant or the accused, shows that the offense
committed comes within the terms of said Amnesty Proclamation. Hence, it is
not correct to say that "invocation of the benefits of amnesty is in the nature of
a plea of confession and avoidance." Although the accused does not confess
the imputation against him, he may be declared by the courts or the Amnesty
Commissions entitled to the benefits. For, whether or not he admits or
confesses having committed the offense with which he is charged, the
Commissions should, if necessary or requested by the interested party,
conduct summary hearing of the witnesses both for the complainants and the
accused, on whether he has committed the offense in furtherance of the
resistance to the enemy, or against persons aiding in the war efforts of the
enemy, and decide whether he is entitled to the benefits of amnesty and to be
"regarded as a patriot or hero who have rendered invaluable services to the
nation,," or not, in accordance with the terms of the Amnesty Proclamation.
Since the Amnesty Proclamation is a public act, the courts as well as the
Amnesty Commissions created thereby should take notice of the terms of said
Proclamation and apply the benefits granted therein to cases coming within
their province or jurisdiction, whether pleaded or claimed by the person
charged with such offenses or not, if the evidence presented show that the
accused is entitled to said benefits. (Barrioquinto vs. Fernandez, G.R. No. L-
1278, January 21, 1949)
G.R. No. 221698-700
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners, vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND
AMADO D. VALDEZ Respondents.
DECISION
PEREZ, J.:
Before the Court are two consolidated petitions under Rule 64 in relation to
Rule 65 of the Rules of Court with extremely urgent application for an ex parte
issuance of temporary restraining order/status quo ante order and/or writ of
preliminary injunction assailing the following: (1) 1 December 2015 Resolution
of the Commission on Elections (COMELEC) Second Division; (2) 23
December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-001
(DC); (3) 11 December 2015 Resolution of the COMELEC First Division; and
( 4) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-
002 (DC), SPA No. 15-007 (DC) and SPA No. 15-139 (DC) for having been
issued without jurisdiction or with grave abuse of discretion amounting to lack
or excess of jurisdiction.
The Facts
Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned
as a newborn infant in the Parish Church of Jaro, Iloilo by a certain Edgardo
Militar (Edgardo) on 3 September 1968. Parental care and custody over
petitioner was passed on by Edgardo to his relatives, Emiliano Militar
(Emiliano) and his wife. Three days after, 6 September 1968, Emiliano
reported and registered petitioner as a foundling with the Office of the Civil
Registrar of Iloilo City (OCR-Iloilo). In her Foundling Certificate and Certificate
of Live Birth, the petitioner was given the name "Mary Grace Natividad
Contreras Militar." 1
When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley
Poe (a.k.a. Fenando Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces)
filed a petition for her adoption with the Municipal Trial Court (MTC) of San
Juan City. On 13 May 1974, the trial court granted their petition and ordered
that petitioner's name be changed from "Mary Grace Natividad Contreras
Militar" to "Mary Grace Natividad Sonora Poe." Although necessary notations
were made by OCR-Iloilo on petitioner's foundling certificate reflecting the
court decreed adoption,2 the petitioner's adoptive mother discovered only
sometime in the second half of 2005 that the lawyer who handled petitioner's
adoption failed to secure from the OCR-Iloilo a new Certificate of Live Birth
indicating petitioner's new name and the name of her adoptive parents. 3
Without delay, petitioner's mother executed an affidavit attesting to the
lawyer's omission which she submitted to the OCR-Iloilo. On 4 May 2006,
OCR-Iloilo issued a new Certificate of Live Birth in the name of Mary Grace
Natividad Sonora Poe.4
Having reached the age of eighteen (18) years in 1986, petitioner registered
as a voter with the local COMELEC Office in San Juan City. On 13 December
1986, she received her COMELEC Voter's Identification Card for Precinct No.
196 in Greenhills, San Juan, Metro Manila.5
On 4 April 1988, petitioner applied for and was issued Philippine Passport No.
F9272876 by the Department of Foreign Affairs (DFA). Subsequently, on 5
April 1993 and 19 May 1998, she renewed her Philippine passport and
respectively secured Philippine Passport Nos. L881511 and DD156616.7
Initially, the petitioner enrolled and pursued a degree in Development Studies
at the University of the Philippines8 but she opted to continue her studies
abroad and left for the United States of America (U.S.) in 1988. Petitioner
graduated in 1991 from Boston College in Chestnuts Hill, Massachusetts
where she earned her Bachelor of Arts degree in Political Studies.9
On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares
(Llamanzares), a citizen of both the Philippines and the U.S., at Sanctuario de
San Jose Parish in San Juan City. 10 Desirous of being with her husband who
was then based in the U.S., the couple flew back to the U.S. two days after the
wedding ceremony or on 29 July 1991. 11
While in the U.S., the petitioner gave birth to her eldest child Brian Daniel
(Brian) on 16 April 1992.12 Her two daughters Hanna MacKenzie (Hanna) and
Jesusa Anika (Anika) were both born in the Philippines on 10 July 1998 and 5
June 2004, respectively. 13
On 18 October 2001, petitioner became a naturalized American citizen. 14 She
obtained U.S. Passport No. 017037793 on 19 December 2001. 15
On 8 April 2004, the petitioner came back to the Philippines together with
Hanna to support her father's candidacy for President in the May 2004
elections. It was during this time that she gave birth to her youngest daughter
Anika. She returned to the U.S. with her two daughters on 8 July 2004. 16
After a few months, specifically on 13 December 2004, petitioner rushed back
to the Philippines upon learning of her father's deteriorating medical condition.
17 Her father slipped into a coma and eventually expired. The petitioner stayed
in the country until 3 February 2005 to take care of her father's funeral
arrangements as well as to assist in the settlement of his estate.18
According to the petitioner, the untimely demise of her father was a severe
blow to her entire family. In her earnest desire to be with her grieving mother,
the petitioner and her husband decided to move and reside permanently in the
Philippines sometime in the first quarter of 2005.19 The couple began
preparing for their resettlement including notification of their children's schools
that they will be transferring to Philippine schools for the next semester;20
coordination with property movers for the relocation of their household goods,
furniture and cars from the U.S. to the Philippines;21 and inquiry with
Philippine authorities as to the proper procedure to be followed in bringing their
pet dog into the country.22 As early as 2004, the petitioner already quit her job
in the U.S.23
Finally, petitioner came home to the Philippines on 24 May 200524 and without
delay, secured a Tax Identification Number from the Bureau of Internal
Revenue. Her three (3) children immediately followed25 while her husband
was forced to stay in the U.S. to complete pending projects as well as to
arrange the sale of their family home there.26
The petitioner and her children briefly stayed at her mother's place until she
and her husband purchased a condominium unit with a parking slot at One
Wilson Place Condominium in San Juan City in the second half of 2005.27
The corresponding Condominium Certificates of Title covering the unit and
parking slot were issued by the Register of Deeds of San Juan City to petitioner
and her husband on 20 February 2006.28 Meanwhile, her children of school
age began attending Philippine private schools.
On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise
the disposal of some of the family's remaining household belongings.29 She
travelled back to the Philippines on 11 March 2006.30
In late March 2006, petitioner's husband officially informed the U.S. Postal
Service of the family's change and abandonment of their address in the U.S.31
The family home was eventually sold on 27 April 2006.32 Petitioner's husband
resigned from his job in the U.S. in April 2006, arrived in the country on 4 May
2006 and started working for a major Philippine company in July 2006.33
In early 2006, petitioner and her husband acquired a 509-square meter lot in
Corinthian Hills, Quezon City where they built their family home34 and to this
day, is where the couple and their children have been residing.35 A Transfer
Certificate of Title covering said property was issued in the couple's name by
the Register of Deeds of Quezon City on 1June 2006.
On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the
Philippines pursuant to Republic Act (R.A.) No. 9225 or the Citizenship
Retention and Re-acquisition Act of 2003.36 Under the same Act, she filed
with the Bureau of Immigration (BI) a sworn petition to reacquire Philippine
citizenship together with petitions for derivative citizenship on behalf of her
three minor children on 10 July 2006.37 As can be gathered from its 18 July
2006 Order, the BI acted favorably on petitioner's petitions and declared that
she is deemed to have reacquired her Philippine citizenship while her children
are considered as citizens of the Philippines.38 Consequently, the BI issued
Identification Certificates (ICs) in petitioner's name and in the names of her
three (3) children. 39
Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City
on 31 August 2006.40 She also secured from the DFA a new Philippine
Passport bearing the No. XX4731999.41 This passport was renewed on 18
March 2014 and she was issued Philippine Passport No. EC0588861 by the
DFA.42
On 6 October 2010, President Benigno S. Aquino III appointed petitioner as
Chairperson of the Movie and Television Review and Classification Board
(MTRCB).43 Before assuming her post, petitioner executed an "Affidavit of
Renunciation of Allegiance to the United States of America and Renunciation
of American Citizenship" before a notary public in Pasig City on 20 October
2010,44 in satisfaction of the legal requisites stated in Section 5 of R.A. No.
9225.45 The following day, 21 October 2010 petitioner submitted the said
affidavit to the BI46 and took her oath of office as Chairperson of the
MTRCB.47 From then on, petitioner stopped using her American passport.48
On 12 July 2011, the petitioner executed before the Vice Consul of the U.S.
Embassy in Manila an "Oath/Affirmation of Renunciation of Nationality of the
United States."49 On that day, she accomplished a sworn questionnaire
before the U.S. Vice Consul wherein she stated that she had taken her oath
as MTRCB Chairperson on 21 October 2010 with the intent, among others, of
relinquishing her American citizenship.50 In the same questionnaire, the
petitioner stated that she had resided outside of the U.S., specifically in the
Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to
present.51
On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate
of Loss of Nationality of the United States" effective 21 October 2010.52
On 2 October 2012, the petitioner filed with the COMELEC her Certificate of
Candidacy (COC) for Senator for the 2013 Elections wherein she answered "6
years and 6 months" to the question "Period of residence in the Philippines
before May 13, 2013."53 Petitioner obtained the highest number of votes and
was proclaimed Senator on 16 May 2013. 54
On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No.
DE0004530. 55
On 15 October 2015, petitioner filed her COC for the Presidency for the May
2016 Elections. 56 In her COC, the petitioner declared that she is a natural-
born citizen and that her residence in the Philippines up to the day before 9
May 2016 would be ten (10) years and eleven (11) months counted from 24
May 2005.57 The petitioner attached to her COC an "Affidavit Affirming
Renunciation of U.S.A. Citizenship" subscribed and sworn to before a notary
public in Quezon City on 14 October 2015. 58
Petitioner's filing of her COC for President in the upcoming elections triggered
the filing of several COMELEC cases against her which were the subject of
these consolidated cases.
Origin of Petition for Certiorari in G.R. No. 221697
A day after petitioner filed her COC for President, Estrella Elamparo
(Elamparo) filed a petition to deny due course or cancel said COC which was
docketed as SPA No. 15-001 (DC) and raffled to the COMELEC Second
Division.59 She is convinced that the COMELEC has jurisdiction over her
petition.60 Essentially, Elamparo's contention is that petitioner committed
material misrepresentation when she stated in her COC that she is a natural-
born Filipino citizen and that she is a resident of the Philippines for at least ten
(10) years and eleven (11) months up to the day before the 9 May 2016
Elections.61
On the issue of citizenship, Elamparo argued that petitioner cannot be
considered as a natural-born Filipino on account of the fact that she was a
foundling.62 Elamparo claimed that international law does not confer natural-
born status and Filipino citizenship on foundlings.63 Following this line of
reasoning, petitioner is not qualified to apply for reacquisition of Filipino
citizenship under R.A. No. 9225 for she is not a natural-born Filipino citizen to
begin with.64 Even assuming arguendo that petitioner was a natural-born
Filipino, she is deemed to have lost that status when she became a naturalized
American citizen.65 According to Elamparo, natural-born citizenship must be
continuous from birth.66
On the matter of petitioner's residency, Elamparo pointed out that petitioner
was bound by the sworn declaration she made in her 2012 COC for Senator
wherein she indicated that she had resided in the country for only six ( 6) years
and six ( 6) months as of May 2013 Elections. Elamparo likewise insisted that
assuming arguendo that petitioner is qualified to regain her natural-born status
under R.A. No. 9225, she still fell short of the ten-year residency requirement
of the Constitution as her residence could only be counted at the earliest from
July 2006, when she reacquired Philippine citizenship under the said Act. Also
on the assumption that petitioner is qualified to reacquire lost Philippine
Citizenship, Elamparo is of the belief that she failed to reestablish her domicile
in the Philippines.67
Petitioner seasonably filed her Answer wherein she countered that:
(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was
actually a petition for quo warranto which could only be filed if Grace Poe wins
in the Presidential elections, and that the Department of Justice (DOJ) has
primary jurisdiction to revoke the BI's July 18, 2006 Order;
(2) the petition failed to state a cause of action because it did not contain
allegations which, if hypothetically admitted, would make false the statement
in her COC that she is a natural-born Filipino citizen nor was there any
allegation that there was a willful or deliberate intent to misrepresent on her
part;
(3) she did not make any material misrepresentation in the COC regarding her
citizenship and residency qualifications for:
a. the 1934 Constitutional Convention deliberations show that foundlings were
considered citizens;
b. foundlings are presumed under international law to have been born of
citizens of the place where they are found;
c. she reacquired her natural-born Philippine citizenship under the provisions
of R.A. No. 9225;
d. she executed a sworn renunciation of her American citizenship prior to the
filing of her COC for President in the May 9, 2016 Elections and that the same
is in full force and effect and has not been withdrawn or recanted;
e. the burden was on Elamparo in proving that she did not possess natural-
born status;
f. residence is a matter of evidence and that she reestablished her domicile in
the Philippines as early as May 24, 2005;
g. she could reestablish residence even before she reacquired natural-born
citizenship under R.A. No. 9225;
h. statement regarding the period of residence in her 2012 COC for Senator
was an honest mistake, not binding and should give way to evidence on her
true date of reacquisition of domicile;
i. Elamparo's petition is merely an action to usurp the sovereign right of the
Filipino people to decide a purely political question, that is, should she serve
as the country's next leader.68
After the parties submitted their respective Memoranda, the petition was
deemed submitted for resolution.
On 1 December 2015, the COMELEC Second Division promulgated a
Resolution finding that petitioner's COC, filed for the purpose of running for the
President of the Republic of the Philippines in the 9 May 2016 National and
Local Elections, contained material representations which are false. The fallo
of the aforesaid Resolution reads:
WHEREFORE, in view of all the foregoing considerations, the instant Petition
to Deny Due Course to or Cancel Certificate of Candidacy is hereby
GRANTED. Accordingly, the Certificate of Candidacy for President of the
Republic of the Philippines in the May 9, 2016 National and Local Elections
filed by respondent Mary Grace Natividad Sonora Poe Llamanzares is hereby
CANCELLED.69
Motion for Reconsideration of the 1 December 2015 Resolution was filed by
petitioner which the COMELEC En Banc resolved in its 23 December 2015
Resolution by denying the same.70
Origin of Petition for Certiorari in G.R. Nos. 221698-700
This case stemmed from three (3) separate petitions filed by Francisco S.
Tatad (Tatad), Antonio P. Contreras (Contreras) and Amado D. Valdez
(Valdez) against petitioner before the COMELEC which were consolidated and
raffled to its First Division.
In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of
Procedure,71 docketed as SPA No. 15-002 (DC), Tatad alleged that petitioner
lacks the requisite residency and citizenship to qualify her for the
Presidency.72
Tatad theorized that since the Philippines adheres to the principle of jus
sanguinis, persons of unknown parentage, particularly foundlings, cannot be
considered natural-born Filipino citizens since blood relationship is
determinative of natural-born status.73 Tatad invoked the rule of statutory
construction that what is not included is excluded. He averred that the fact that
foundlings were not expressly included in the categories of citizens in the 193
5 Constitution is indicative of the framers' intent to exclude them.74 Therefore,
the burden lies on petitioner to prove that she is a natural-born citizen.75
Neither can petitioner seek refuge under international conventions or treaties
to support her claim that foundlings have a nationality.76 According to Tatad,
international conventions and treaties are not self-executory and that local
legislations are necessary in order to give effect to treaty obligations assumed
by the Philippines.77 He also stressed that there is no standard state practice
that automatically confers natural-born status to foundlings.78
Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of
the option to reacquire Philippine citizenship under R.A. No. 9225 because it
only applies to former natural-born citizens and petitioner was not as she was
a foundling.79
Referring to petitioner's COC for Senator, Tatad concluded that she did not
comply with the ten (10) year residency requirement.80 Tatad opined that
petitioner acquired her domicile in Quezon City only from the time she
renounced her American citizenship which was sometime in 2010 or 2011.81
Additionally, Tatad questioned petitioner's lack of intention to abandon her
U.S. domicile as evinced by the fact that her husband stayed thereat and her
frequent trips to the U.S.82
In support of his petition to deny due course or cancel the COC of petitioner,
docketed as SPA No. 15-139 (DC), Valdez alleged that her repatriation under
R.A. No. 9225 did not bestow upon her the status of a natural-born citizen.83
He advanced the view that former natural-born citizens who are repatriated
under the said Act reacquires only their Philippine citizenship and will not revert
to their original status as natural-born citizens.84
He further argued that petitioner's own admission in her COC for Senator that
she had only been a resident of the Philippines for at least six (6) years and
six (6) months prior to the 13 May 2013 Elections operates against her. Valdez
rejected petitioner's claim that she could have validly reestablished her
domicile in the Philippines prior to her reacquisition of Philippine citizenship. In
effect, his position was that petitioner did not meet the ten (10) year residency
requirement for President.
Unlike the previous COMELEC cases filed against petitioner, Contreras'
petition,85 docketed as SPA No. 15-007 (DC), limited the attack to the
residency issue. He claimed that petitioner's 2015 COC for President should
be cancelled on the ground that she did not possess the ten-year period of
residency required for said candidacy and that she made false entry in her
COC when she stated that she is a legal resident of the Philippines for ten (10)
years and eleven (11) months by 9 May 2016.86 Contreras contended that the
reckoning period for computing petitioner's residency in the Philippines should
be from 18 July 2006, the date when her petition to reacquire Philippine
citizenship was approved by the BI.87 He asserted that petitioner's physical
presence in the country before 18 July 2006 could not be valid evidence of
reacquisition of her Philippine domicile since she was then living here as an
American citizen and as such, she was governed by the Philippine immigration
laws.88
In her defense, petitioner raised the following arguments:
First, Tatad's petition should be dismissed outright for failure to state a cause
of action. His petition did not invoke grounds proper for a disqualification case
as enumerated under Sections 12 and 68 of the Omnibus Election Code.89
Instead, Tatad completely relied on the alleged lack of residency and natural-
born status of petitioner which are not among the recognized grounds for the
disqualification of a candidate to an elective office.90
Second, the petitions filed against her are basically petitions for quo warranto
as they focus on establishing her ineligibility for the Presidency.91 A petition
for quo warranto falls within the exclusive jurisdiction of the Presidential
Electoral Tribunal (PET) and not the COMELEC.92
Third, the burden to prove that she is not a natural-born Filipino citizen is on
the respondents.93 Otherwise stated, she has a presumption in her favor that
she is a natural-born citizen of this country.
Fourth, customary international law dictates that foundlings are entitled to a
nationality and are presumed to be citizens of the country where they are
found.94 Consequently, the petitioner is considered as a natural-born citizen
of the Philippines.95
Fifth, she claimed that as a natural-born citizen, she has every right to be
repatriated under R.A. No. 9225 or the right to reacquire her natural-born
status.96 Moreover, the official acts of the Philippine Government enjoy the
presumption of regularity, to wit: the issuance of the 18 July 2006 Order of the
BI declaring her as natural-born citizen, her appointment as MTRCB Chair and
the issuance of the decree of adoption of San Juan RTC.97 She believed that
all these acts reinforced her position that she is a natural-born citizen of the
Philippines.98
Sixth, she maintained that as early as the first quarter of 2005, she started
reestablishing her domicile of choice in the Philippines as demonstrated by her
children's resettlement and schooling in the country, purchase of a
condominium unit in San Juan City and the construction of their family home
in Corinthian Hills.99
Seventh, she insisted that she could legally reestablish her domicile of choice
in the Philippines even before she renounced her American citizenship as long
as the three determinants for a change of domicile are complied with.100 She
reasoned out that there was no requirement that renunciation of foreign
citizenship is a prerequisite for the acquisition of a new domicile of choice.101
Eighth, she reiterated that the period appearing in the residency portion of her
COC for Senator was a mistake made in good faith.102
In a Resolution103 promulgated on 11 December 2015, the COMELEC First
Division ruled that petitioner is not a natural-born citizen, that she failed to
complete the ten (10) year residency requirement, and that she committed
material misrepresentation in her COC when she declared therein that she has
been a resident of the Philippines for a period of ten (10) years and eleven (11)
months as of the day of the elections on 9 May 2016. The COMELEC First
Division concluded that she is not qualified for the elective position of President
of the Republic of the Philippines. The dispositive portion of said Resolution
reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to GRANT the Petitions and cancel the Certificate of
Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES for
the elective position of President of the Republic of the Philippines in
connection with the 9 May 2016 Synchronized Local and National Elections.
Petitioner filed a motion for reconsideration seeking a reversal of the
COMELEC First Division's Resolution. On 23 December 2015, the COMELEC
En Banc issued a Resolution denying petitioner's motion for reconsideration.
Alarmed by the adverse rulings of the COMELEC, petitioner instituted the
present petitions for certiorari with urgent prayer for the issuance of an ex parte
temporary restraining order/status quo ante order and/or writ of preliminary
injunction. On 28 December 2015, temporary restraining orders were issued
by the Court enjoining the COMELEC and its representatives from
implementing the assailed COMELEC Resolutions until further orders from the
Court. The Court also ordered the consolidation of the two petitions filed by
petitioner in its Resolution of 12 January 2016. Thereafter, oral arguments
were held in these cases.
The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares
and to ANNUL and SET ASIDE the:
1. Resolution dated 1 December 2015 rendered through its Second Division,
in SPA No. 15-001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares.
2. Resolution dated 11 December 2015, rendered through its First Division, in
the consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad,
petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent;
SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139 (DC)
entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent.
3. Resolution dated 23 December 2015 of the Commission En Banc, upholding
the 1 December 2015 Resolution of the Second Division.
4. Resolution dated 23 December 2015 of the Commission En Banc, upholding
the 11 December 2015 Resolution of the First Division.
The procedure and the conclusions from which the questioned Resolutions
emanated are tainted with grave abuse of discretion amounting to lack of
jurisdiction. The petitioner is a QUALIFIED CANDIDATE for President in the 9
May 2016 National Elections.
The issue before the COMELEC is whether or not the COC of petitioner should
be denied due course or cancelled "on the exclusive ground" that she made in
the certificate a false material representation. The exclusivity of the ground
should hedge in the discretion of the COMELEC and restrain it from going into
the issue of the qualifications of the candidate for the position, if, as in this
case, such issue is yet undecided or undetermined by the proper authority.
The COMELEC cannot itself, in the same cancellation case, decide the
qualification or lack thereof of the candidate.
We rely, first of all, on the Constitution of our Republic, particularly its
provisions in Article IX, C, Section 2:
Section 2. The Commission on Elections shall exercise the following powers
and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of
an election, plebiscite, initiative, referendum, and recall.
(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional, provincial, and city
officials, and appellate jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction, or involving elective
barangay officials decided by trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests
involving elective municipal and barangay offices shall be final, executory, and
not appealable.
(3) Decide, except those involving the right to vote, all questions affecting
elections, including determination of the number and location of polling places,
appointment of election officials and inspectors, and registration of voters.
(4) Deputize, with the concurrence of the President, law enforcement agencies
and instrumentalities of the Government, including the Armed Forces of the
Philippines, for the exclusive purpose of ensuring free, orderly, honest,
peaceful, and credible elections.
(5) Register, after sufficient publication, political parties, organizations, or
coalitions which, in addition to other requirements, must present their platform
or program of government; and accredit citizens' arms of the Commission on
Elections. Religious denominations and sects shall not be registered. Those
which seek to achieve their goals through violence or unlawful means, or
refuse to uphold and adhere to this Constitution, or which are supported by
any foreign government shall likewise be refused registration.
Financial contributions from foreign governments and their agencies to political
parties, organizations, coalitions, or candidates related to elections constitute
interference in national affairs, and, when accepted, shall be an additional
ground for the cancellation of their registration with the Commission, in addition
to other penalties that may be prescribed by law.
(6) File, upon a verified complaint, or on its own initiative, petitions in court for
inclusion or exclusion of voters; investigate and, where appropriate, prosecute
cases of violations of election laws, including acts or omissions constituting
election frauds, offenses, and malpractices.
(7) Recommend to the Congress effective measures to minimize election
spending, including limitation of places where propaganda materials shall be
posted, and to prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidacies.
(8) Recommend to the President the removal of any officer or employee it has
deputized, or the imposition of any other disciplinary action, for violation or
disregard of, or disobedience to its directive, order, or decision.
(9) Submit to the President and the Congress a comprehensive report on the
conduct of each election, plebiscite, initiative, referendum, or recall.
Not any one of the enumerated powers approximate the exactitude of the
provisions of Article VI, Section 17 of the same basic law stating that:
The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election,
returns, and qualifications of their respective Members. Each Electoral
Tribunal shall be composed of nine Members, three of whom shall be Justices
of the Supreme Court to be designated by the Chief Justice, and the remaining
six shall be Members of the Senate or the House of Representatives, as the
case may be, who shall be chosen on the basis of proportional representation
from the political parties and the parties or organizations registered under the
party-list system represented therein. The senior Justice in the Electoral
Tribunal shall be its Chairman.
or of the last paragraph of Article VII, Section 4 which provides that:
The Supreme Court, sitting en banc, shall be the sole judge of all contests
relating to the election, returns, and qualifications of the President or Vice-
President, and may promulgate its rules for the purpose.
The tribunals which have jurisdiction over the question of the qualifications of
the President, the Vice-President, Senators and the Members of the House of
Representatives was made clear by the Constitution. There is no such
provision for candidates for these positions.
Can the COMELEC be such judge?
The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v.
Commission on Elections,104 which was affirmatively cited in the En Banc
decision in Fermin v. COMELEC105 is our guide. The citation in Fermin reads:
Apparently realizing the lack of an authorized proceeding for declaring the
ineligibility of candidates, the COMELEC amended its rules on February 15,
1993 so as to provide in Rule 25 1, the following:
Grounds for disqualification. - Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing
law or who commits any act declared by law to be grounds for disqualification
may be disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however,
cannot be supplied by a mere rule. Such an act is equivalent to the creation of
a cause of action which is a substantive matter which the COMELEC, in the
exercise of its rule-making power under Art. IX, A, 6 of the Constitution,
cannot do it. It is noteworthy that the Constitution withholds from the
COMELEC even the power to decide cases involving the right to vote, which
essentially involves an inquiry into qualifications based on age, residence and
citizenship of voters. [Art. IX, C, 2(3)]
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility
into grounds for disqualification is contrary to the evident intention of the law.
For not only in their grounds but also in their consequences are proceedings
for "disqualification" different from those for a declaration of "ineligibility."
"Disqualification" proceedings, as already stated, are based on grounds
specified in 12 and 68 of the Omnibus Election Code and in 40 of the Local
Government Code and are for the purpose of barring an individual from
becoming a candidate or from continuing as a candidate for public office. In a
word, their purpose is to eliminate a candidate from the race either from the
start or during its progress. "Ineligibility," on the other hand, refers to the lack
of the qualifications prescribed in the Constitution or the statutes for holding
public office and the purpose of the proceedings for declaration of ineligibility
is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public office
does not imply that he is not disqualified from becoming a candidate or
continuing as a candidate for a public office and vice versa. We have this sort
of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the
qualifications prescribed in 2 of the Law does not imply that he does not suffer
from any of [the] disqualifications provided in 4.
Before we get derailed by the distinction as to grounds and the consequences
of the respective proceedings, the importance of the opinion is in its statement
that "the lack of provision for declaring the ineligibility of candidates, however,
cannot be supplied by a mere rule". Justice Mendoza lectured in Romualdez-
Marcos that:
Three reasons may be cited to explain the absence of an authorized
proceeding for determining before election the qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there
is no necessity for determining his eligibility for the office. In contrast, whether
an individual should be disqualified as a candidate for acts constituting election
offenses (e.g., vote buying, over spending, commission of prohibited acts) is a
prejudicial question which should be determined lest he wins because of the
very acts for which his disqualification is being sought. That is why it is
provided that if the grounds for disqualification are established, a candidate
will not be voted for; if he has been voted for, the votes in his favor will not be
counted; and if for some reason he has been voted for and he has won, either
he will not be proclaimed or his proclamation will be set aside.
Second is the fact that the determination of a candidates' eligibility, e.g., his
citizenship or, as in this case, his domicile, may take a long time to make,
extending beyond the beginning of the term of the office. This is amply
demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v.
COMELEC) where the determination of Aquino's residence was still pending
in the COMELEC even after the elections of May 8, 1995. This is contrary to
the summary character proceedings relating to certificates of candidacy. That
is why the law makes the receipt of certificates of candidacy a ministerial duty
of the COMELEC and its officers. The law is satisfied if candidates state in
their certificates of candidacy that they are eligible for the position which they
seek to fill, leaving the determination of their qualifications to be made after
the election and only in the event they are elected. Only in cases involving
charges of false representations made in certificates of candidacy is the
COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases in
elections for President, Vice President, Senators and members of the House
of Representatives. (R.A. No. 7166, 15) The purpose is to preserve the
prerogatives of the House of Representatives Electoral Tribunal and the other
Tribunals as "sole judges" under the Constitution of the election, returns and
qualifications of members of Congress of the President and Vice President, as
the case may be.106
To be sure, the authoritativeness of the Romualdez pronouncements as
reiterated in Fermin, led to the amendment through COMELEC Resolution No.
9523, on 25 September 2012 of its Rule 25. This, the 15 February1993 version
of Rule 25, which states that:
Grounds for disqualification. -Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing
law or who commits any act declared by law to be grounds for disqualification
may be disqualified from continuing as a candidate.107
was in the 2012 rendition, drastically changed to:
Grounds. - Any candidate who, in action or protest in which he is a party, is
declared by final decision of a competent court, guilty of, or found by the
Commission to be suffering from any disqualification provided by law or the
Constitution.
A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to
or Cancel a Certificate of Candidacy or Petition to Declare a Candidate as a
Nuisance Candidate, or a combination thereof, shall be summarily dismissed.
Clearly, the amendment done in 2012 is an acceptance of the reality of
absence of an authorized proceeding for determining before election the
qualifications of candidate. Such that, as presently required, to disqualify a
candidate there must be a declaration by a final judgment of a competent court
that the candidate sought to be disqualified "is guilty of or found by the
Commission to be suffering from any disqualification provided by law or the
Constitution."
Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23
are flipsides of one to the other. Both do not allow, are not authorizations, are
not vestment of jurisdiction, for the COMELEC to determine the qualification
of a candidate. The facts of qualification must beforehand be established in a
prior proceeding before an authority properly vested with jurisdiction. The prior
determination of qualification may be by statute, by executive order or by a
judgment of a competent court or tribunal.
If a candidate cannot be disqualified without a prior finding that he or she is
suffering from a disqualification "provided by law or the Constitution," neither
can the certificate of candidacy be cancelled or denied due course on grounds
of false representations regarding his or her qualifications, without a prior
authoritative finding that he or she is not qualified, such prior authority being
the necessary measure by which the falsity of the representation can be found.
The only exception that can be conceded are self-evident facts of
unquestioned or unquestionable veracity and judicial confessions. Such are,
anyway, bases equivalent to prior decisions against which the falsity of
representation can be determined.
The need for a predicate finding or final pronouncement in a proceeding under
Rule 23 that deals with, as in this case, alleged false representations regarding
the candidate's citizenship and residence, forced the COMELEC to rule
essentially that since foundlings108 are not mentioned in the enumeration of
citizens under the 1935 Constitution,109 they then cannot be citizens. As the
COMELEC stated in oral arguments, when petitioner admitted that she is a
foundling, she said it all. This borders on bigotry. Oddly, in an effort at
tolerance, the COMELEC, after saying that it cannot rule that herein petitioner
possesses blood relationship with a Filipino citizen when "it is certain that such
relationship is indemonstrable," proceeded to say that "she now has the
burden to present evidence to prove her natural filiation with a Filipino parent."
The fact is that petitioner's blood relationship with a Filipino citizen is
DEMONSTRABLE.
At the outset, it must be noted that presumptions regarding paternity is neither
unknown nor unaccepted in Philippine Law. The Family Code of the
Philippines has a whole chapter on Paternity and Filiation.110 That said, there
is more than sufficient evider1ce that petitioner has Filipino parents and is
therefore a natural-born Filipino. Parenthetically, the burden of proof was on
private respondents to show that petitioner is not a Filipino citizen. The private
respondents should have shown that both of petitioner's parents were aliens.
Her admission that she is a foundling did not shift the burden to her because
such status did not exclude the possibility that her parents were Filipinos,
especially as in this case where there is a high probability, if not certainty, that
her parents are Filipinos.
The factual issue is not who the parents of petitioner are, as their identities are
unknown, but whether such parents are Filipinos. Under Section 4, Rule 128:
Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to
the fact in issue as to induce belief in its existence or no-existence. Evidence
on collateral matters shall not be allowed, except when it tends in any
reasonable degree to establish the probability of improbability of the fact in
issue.
The Solicitor General offered official statistics from the Philippine Statistics
Authority (PSA)111 that from 1965 to 1975, the total number of foreigners born
in the Philippines was 15,986 while the total number of Filipinos born in the
country was 10,558,278. The statistical probability that any child born in the
Philippines in that decade is natural-born Filipino was 99.83%. For her part,
petitioner presented census statistics for Iloilo Province for 1960 and 1970,
also from the PSA. In 1960, there were 962,532 Filipinos and 4,734 foreigners
in the province; 99.62% of the population were Filipinos. In 1970, the figures
were 1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also presented
were figures for the child producing ages (15-49). In 1960, there were 230,528
female Filipinos as against 730 female foreigners or 99.68%. In the same year,
there were 210,349 Filipino males and 886 male aliens, or 99.58%. In 1970,
there were 270,299 Filipino females versus 1, 190 female aliens, or 99.56%.
That same year, there were 245,740 Filipino males as against only 1,165 male
aliens or 99.53%. COMELEC did not dispute these figures. Notably,
Commissioner Arthur Lim admitted, during the oral arguments, that at the time
petitioner was found in 1968, the majority of the population in Iloilo was
Filipino.112
Other circumstantial evidence of the nationality of petitioner's parents are the
fact that she was abandoned as an infant in a Roman Catholic Church in Iloilo
City.1wphi1 She also has typical Filipino features: height, flat nasal bridge,
straight black hair, almond shaped eyes and an oval face.
There is a disputable presumption that things have happened according to the
ordinary course of nature and the ordinary habits of life.113 All of the foregoing
evidence, that a person with typical Filipino features is abandoned in Catholic
Church in a municipality where the population of the Philippines is
overwhelmingly Filipinos such that there would be more than a 99% chance
that a child born in the province would be a Filipino, would indicate more than
ample probability if not statistical certainty, that petitioner's parents are
Filipinos. That probability and the evidence on which it is based are admissible
under Rule 128, Section 4 of the Revised Rules on Evidence.
To assume otherwise is to accept the absurd, if not the virtually impossible, as
the norm. In the words of the Solicitor General:
Second. It is contrary to common sense because foreigners do not come to
the Philippines so they can get pregnant and leave their newborn babies
behind. We do not face a situation where the probability is such that every
foundling would have a 50% chance of being a Filipino and a 50% chance of
being a foreigner. We need to frame our questions properly. What are the
chances that the parents of anyone born in the Philippines would be
foreigners? Almost zero. What are the chances that the parents of anyone
born in the Philippines would be Filipinos? 99.9%.
According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly
average, there were 1,766,046 children born in the Philippines to Filipino
parents, as opposed to 1,301 children in the Philippines of foreign parents.
Thus, for that sample period, the ratio of non-Filipino children to natural born
Filipino children is 1:1357. This means that the statistical probability that any
child born in the Philippines would be a natural born Filipino is 99.93%.
From 1965 to 1975, the total number of foreigners born in the Philippines is
15,986 while the total number of Filipinos born in the Philippines is 15,558,278.
For this period, the ratio of non-Filipino children is 1:661. This means that the
statistical probability that any child born in the Philippines on that decade would
be a natural born Filipino is 99.83%.
We can invite statisticians and social anthropologists to crunch the numbers
for us, but I am confident that the statistical probability that a child born in the
Philippines would be a natural born Filipino will not be affected by whether or
not the parents are known. If at all, the likelihood that a foundling would have
a Filipino parent might even be higher than 99.9%. Filipinos abandon their
children out of poverty or perhaps, shame. We do not imagine foreigners
abandoning their children here in the Philippines thinking those infants would
have better economic opportunities or believing that this country is a tropical
paradise suitable for raising abandoned children. I certainly doubt whether a
foreign couple has ever considered their child excess baggage that is best left
behind.
To deny full Filipino citizenship to all foundlings and render them stateless just
because there may be a theoretical chance that one among the thousands of
these foundlings might be the child of not just one, but two, foreigners is
downright discriminatory, irrational, and unjust. It just doesn't make any sense.
Given the statistical certainty - 99.9% - that any child born in the Philippines
would be a natural born citizen, a decision denying foundlings such status is
effectively a denial of their birthright. There is no reason why this Honorable
Court should use an improbable hypothetical to sacrifice the fundamental
political rights of an entire class of human beings. Your Honor, constitutional
interpretation and the use of common sense are not separate disciplines.
As a matter of law, foundlings are as a class, natural-born citizens. While the
1935 Constitution's enumeration is silent as to foundlings, there is no
restrictive language which would definitely exclude foundlings either. Because
of silence and ambiguity in the enumeration with respect to foundlings, there
is a need to examine the intent of the framers. In Nitafan v. Commissioner of
Internal Revenue,114 this Court held that:
The ascertainment of that intent is but in keeping with the fundamental
principle of constitutional construction that the intent of the framers of the
organic law and of the people adopting it should be given effect. The primary
task in constitutional construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the people in the adoption of
the Constitution. It may also be safely assumed that the people in ratifying the
Constitution were guided mainly by the explanation offered by the framers.115
As pointed out by petitioner as well as the Solicitor General, the deliberations
of the 1934 Constitutional Convention show that the framers intended
foundlings to be covered by the enumeration. The following exchange is
recorded:
Sr. Rafols: For an amendment. I propose that after subsection 2, the following
is inserted: "The natural children of a foreign father and a Filipino mother not
recognized by the father.
xxxx
President:
[We] would like to request a clarification from the proponent of the amendment.
The gentleman refers to natural children or to any kind of illegitimate children?
Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of unknown
parentage, natural or illegitimate children of unknown parents.
Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes
consider them Filipino, that is, I refer to the Spanish Code wherein all children
of unknown parentage born in Spanish territory are considered Spaniards,
because the presumption is that a child of unknown parentage is the son of a
Spaniard. This may be applied in the Philippines in that a child of unknown
parentage born in the Philippines is deemed to be Filipino, and there is no
need ...
Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to
be Filipino.
Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need for
amendment.
Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by
one, or the children of unknown parentage."
Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown
parentage.
Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not recognize
the child, is not unknown.
President:
Does the gentleman accept the amendment or not?
Sr. Rafols:
I do not accept the amendment because the amendment would exclude the
children of a Filipina with a foreigner who does not recognize the child. Their
parentage is not unknown and I think those of overseas Filipino mother and
father [whom the latter] does not recognize, should also be considered as
Filipinos.
President:
The question in order is the amendment to the amendment from the
Gentleman from Cebu, Mr. Briones.
Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the
hands of the Legislature?
Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in
between, that the constitution need [not] refer to them. By international law the
principle that children or people born in a country of unknown parents are
citizens in this nation is recognized, and it is not necessary to include a
provision on the subject exhaustively.116
Though the Rafols amendment was not carried out, it was not because there
was any objection to the notion that persons of "unknown parentage" are not
citizens but only because their number was not enough to merit specific
mention. Such was the account,117 cited by petitioner, of delegate and
constitution law author Jose Aruego who said:
During the debates on this provision, Delegate Rafols presented an
amendment to include as Filipino citizens the illegitimate children with a foreign
father of a mother who was a citizen of the Philippines, and also foundlings;
but this amendment was defeated primarily because the Convention believed
that the cases, being too few to warrant the inclusion of a provision in the
Constitution to apply to them, should be governed by statutory legislation.
Moreover, it was believed that the rules of international law were already clear
to the effect that illegitimate children followed the citizenship of the mother,
and that foundlings followed the nationality of the place where they were found,
thereby making unnecessary the inclusion in the Constitution of the proposed
amendment.
This explanation was likewise the position of the Solicitor General during the
16 February 2016 Oral Arguments:
We all know that the Rafols proposal was rejected. But note that what was
declined was the proposal for a textual and explicit recognition of foundlings
as Filipinos. And so, the way to explain the constitutional silence is by saying
that it was the view of Montinola and Roxas which prevailed that there is no
more need to expressly declare foundlings as Filipinos.
Obviously, it doesn't matter whether Montinola's or Roxas' views were legally
correct. Framers of a constitution can constitutionalize rules based on
assumptions that are imperfect or even wrong. They can even overturn
existing rules. This is basic. What matters here is that Montinola and Roxas
were able to convince their colleagues in the convention that there is no more
need to expressly declare foundlings as Filipinos because they are already
impliedly so recognized.
In other words, the constitutional silence is fully explained in terms of linguistic
efficiency and the avoidance of redundancy. The policy is clear: it is to
recognize foundlings, as a class, as Filipinos under Art. IV, Section 1 (3) of the
1935 Constitution. This inclusive policy is carried over into the 1973 and 1987
Constitution. It is appropriate to invoke a famous scholar as he was
paraphrased by Chief Justice Fernando: the constitution is not silently silent, it
is silently vocal. 118
The Solicitor General makes the further point that the framers "worked to
create a just and humane society," that "they were reasonable patriots and
that it would be unfair to impute upon them a discriminatory intent against
foundlings." He exhorts that, given the grave implications of the argument that
foundlings are not natural-born Filipinos, the Court must search the records of
the 1935, 1973 and 1987 Constitutions "for an express intention to deny
foundlings the status of Filipinos. The burden is on those who wish to use the
constitution to discriminate against foundlings to show that the constitution
really intended to take this path to the dark side and inflict this across the board
marginalization."
We find no such intent or language permitting discrimination against
foundlings. On the contrary, all three Constitutions guarantee the basic right to
equal protection of the laws. All exhort the State to render social justice. Of
special consideration are several provisions in the present charter: Article II,
Section 11 which provides that the "State values the dignity of every human
person and guarantees full respect for human rights," Article XIII, Section 1
which mandates Congress to "give highest priority to the enactment of
measures that protect and enhance the right of all the people to human dignity,
reduce social, economic, and political inequalities x x x" and Article XV,
Section 3 which requires the State to defend the "right of children to
assistance, including proper care and nutrition, and special protection from all
forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial
to their development." Certainly, these provisions contradict an intent to
discriminate against foundlings on account of their unfortunate status.
Domestic laws on adoption also support the principle that foundlings are
Filipinos. These laws do not provide that adoption confers citizenship upon the
adoptee. Rather, the adoptee must be a Filipino in the first place to be adopted.
The most basic of such laws is Article 15 of the Civil Code which provides that
"[l]aws relating to family rights, duties, status, conditions, legal capacity of
persons are binding on citizens of the Philippines even though living abroad."
Adoption deals with status, and a Philippine adoption court will have
jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v. Republic,119 a
child left by an unidentified mother was sought to be adopted by aliens. This
Court said:
In this connection, it should be noted that this is a proceedings in rem, which
no court may entertain unless it has jurisdiction, not only over the subject
matter of the case and over the parties, but also over the res, which is the
personal status of Baby Rose as well as that of petitioners herein. Our Civil
Code (Art. 15) adheres to the theory that jurisdiction over the status of a natural
person is determined by the latter's nationality. Pursuant to this theory, we
have jurisdiction over the status of Baby Rose, she being a citizen of the
Philippines, but not over the status of the petitioners, who are foreigners.120
(Underlining supplied)
Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing
the Rules to Govern the Inter-Country Adoption of Filipino Children and For
Other Purposes" (otherwise known as the "Inter-Country Adoption Act of
1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and Policies on
the Adoption of Filipino Children and For Other Purposes" (otherwise known
as the Domestic Adoption Act of 1998) and this Court's A.M. No. 02-6-02-SC
or the "Rule on Adoption," all expressly refer to "Filipino children" and include
foundlings as among Filipino children who may be adopted.
It has been argued that the process to determine that the child is a foundling
leading to the issuance of a foundling certificate under these laws and the
issuance of said certificate are acts to acquire or perfect Philippine citizenship
which make the foundling a naturalized Filipino at best. This is erroneous.
Under Article IV, Section 2 "Natural-born citizens are those who are citizens of
the Philippines from birth without having to perform any act to acquire or
perfect their Philippine citizenship." In the first place, "having to perform an act"
means that the act must be personally done by the citizen. In this instance, the
determination of foundling status is done not by the child but by the
authorities.121 Secondly, the object of the process is the determination of the
whereabouts of the parents, not the citizenship of the child. Lastly, the process
is certainly not analogous to naturalization proceedings to acquire Philippine
citizenship, or the election of such citizenship by one born of an alien father
and a Filipino mother under the 1935 Constitution, which is an act to perfect it.
In this instance, such issue is moot because there is no dispute that petitioner
is a foundling, as evidenced by a Foundling Certificate issued in her favor.122
The Decree of Adoption issued on 13 May 1974, which approved petitioner's
adoption by Jesusa Sonora Poe and Ronald Allan Kelley Poe, expressly refers
to Emiliano and his wife, Rosario Militar, as her "foundling parents," hence
effectively affirming petitioner's status as a foundling.123
Foundlings are likewise citizens under international law. Under the 1987
Constitution, an international law can become part of the sphere of domestic
law either by transformation or incorporation. The transformation method
requires that an international law be transformed into a domestic law through
a constitutional mechanism such as local legislation.124 On the other hand,
generally accepted principles of international law, by virtue of the incorporation
clause of the Constitution, form part of the laws of the land even if they do not
derive from treaty obligations. Generally accepted principles of international
law include international custom as evidence of a general practice accepted
as law, and general principles of law recognized by civilized nations.125
International customary rules are accepted as binding as a result from the
combination of two elements: the established, widespread, and consistent
practice on the part of States; and a psychological element known as the
opinionjuris sive necessitates (opinion as to law or necessity). Implicit in the
latter element is a belief that the practice in question is rendered obligatory by
the existence of a rule of law requiring it.126 "General principles of law
recognized by civilized nations" are principles "established by a process of
reasoning" or judicial logic, based on principles which are "basic to legal
systems generally,"127 such as "general principles of equity, i.e., the general
principles of fairness and justice," and the "general principle against
discrimination" which is embodied in the "Universal Declaration of Human
Rights, the International Covenant on Economic, Social and Cultural Rights,
the International Convention on the Elimination of All Forms of Racial
Discrimination, the Convention Against Discrimination in Education, the
Convention (No. 111) Concerning Discrimination in Respect of Employment
and Occupation."128 These are the same core principles which underlie the
Philippine Constitution itself, as embodied in the due process and equal
protection clauses of the Bill of Rights.129
Universal Declaration of Human Rights ("UDHR") has been interpreted by this
Court as part of the generally accepted principles of international law and
binding on the State.130 Article 15 thereof states:
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to
change his nationality.
The Philippines has also ratified the UN Convention on the Rights of the Child
(UNCRC). Article 7 of the UNCRC imposes the following obligations on our
country:
Article 7
1. The child shall be registered immediately after birth and shall have the right
from birth to a name, the right to acquire a nationality and as far as possible,
the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance
with their national law and their obligations under the relevant international
instruments in this field, in particular where the child would otherwise be
stateless.
In 1986, the country also ratified the 1966 International Covenant on Civil and
Political Rights (ICCPR). Article 24 thereof provide for the right of every child
"to acquire a nationality:"
Article 24
1. Every child shall have, without any discrimination as to race, colour, sex,
language, religion, national or social origin, property or birth, the right, to such
measures of protection as are required by his status as a minor, on the part of
his family, society and the State.
2. Every child shall be registered immediately after birth and shall have a
name.
3. Every child has the right to acquire a nationality.
The common thread of the UDHR, UNCRC and ICCPR is to obligate the
Philippines to grant nationality from birth and ensure that no child is stateless.
This grant of nationality must be at the time of birth, and it cannot be
accomplished by the application of our present naturalization laws,
Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of which
require the applicant to be at least eighteen (18) years old.
The principles found in two conventions, while yet unratified by the Philippines,
are generally accepted principles of international law. The first is Article 14 of
the 1930 Hague Convention on Certain Questions Relating to the Conflict of
Nationality Laws under which a foundling is presumed to have the "nationality
of the country of birth," to wit:
Article 14
A child whose parents are both unknown shall have the nationality of the
country of birth. If the child's parentage is established, its nationality shall be
determined by the rules applicable in cases where the parentage is known.
A foundling is, until the contrary is proved, presumed to have been born on the
territory of the State in which it was found. (Underlining supplied)
The second is the principle that a foundling is presumed born of citizens of the
country where he is found, contained in Article 2 of the 1961 United Nations
Convention on the Reduction of Statelessness:
Article 2
A foundling found in the territory of a Contracting State shall, in the absence
of proof to the contrary, be considered to have been born within the territory of
parents possessing the nationality of that State.
That the Philippines is not a party to the 1930 Hague Convention nor to the
1961 Convention on the Reduction of Statelessness does not mean that their
principles are not binding. While the Philippines is not a party to the 1930
Hague Convention, it is a signatory to the Universal Declaration on Human
Rights, Article 15(1) ofwhich131 effectively affirms Article 14 of the 1930
Hague Convention. Article 2 of the 1961 "United Nations Convention on the
Reduction of Statelessness" merely "gives effect" to Article 15(1) of the
UDHR.132 In Razon v. Tagitis, 133 this Court noted that the Philippines had
not signed or ratified the "International Convention for the Protection of All
Persons from Enforced Disappearance." Yet, we ruled that the proscription
against enforced disappearances in the said convention was nonetheless
binding as a "generally accepted principle of international law." Razon v.
Tagitis is likewise notable for declaring the ban as a generally accepted
principle of international law although the convention had been ratified by only
sixteen states and had not even come into force and which needed the
ratification of a minimum of twenty states. Additionally, as petitioner points out,
the Court was content with the practice of international and regional state
organs, regional state practice in Latin America, and State Practice in the
United States.
Another case where the number of ratifying countries was not determinative is
Mijares v. Ranada, 134 where only four countries had "either ratified or
acceded to"135 the 1966 "Convention on the Recognition and Enforcement of
Foreign Judgments in Civil and Commercial Matters" when the case was
decided in 2005. The Court also pointed out that that nine member countries
of the European Common Market had acceded to the Judgments Convention.
The Court also cited U.S. laws and jurisprudence on recognition of foreign
judgments. In all, only the practices of fourteen countries were considered and
yet, there was pronouncement that recognition of foreign judgments was
widespread practice.
Our approach in Razon and Mijares effectively takes into account the fact that
"generally accepted principles of international law" are based not only on
international custom, but also on "general principles of law recognized by
civilized nations," as the phrase is understood in Article 38.1 paragraph (c) of
the ICJ Statute. Justice, fairness, equity and the policy against discrimination,
which are fundamental principles underlying the Bill of Rights and which are
"basic to legal systems generally,"136 support the notion that the right against
enforced disappearances and the recognition of foreign judgments, were
correctly considered as "generally accepted principles of international law"
under the incorporation clause.
Petitioner's evidence137 shows that at least sixty countries in Asia, North and
South America, and Europe have passed legislation recognizing foundlings as
its citizen. Forty-two (42) of those countries follow the jus sanguinis regime. Of
the sixty, only thirty-three (33) are parties to the 1961 Convention on
Statelessness; twenty-six (26) are not signatories to the Convention. Also, the
Chief Justice, at the 2 February 2016 Oral Arguments pointed out that in 166
out of 189 countries surveyed (or 87.83%), foundlings are recognized as
citizens. These circumstances, including the practice of jus sanguinis
countries, show that it is a generally accepted principle of international law to
presume foundlings as having been born of nationals of the country in which
the foundling is found.
Current legislation reveals the adherence of the Philippines to this generally
accepted principle of international law. In particular, R.A. No. 8552, R.A. No.
8042 and this Court's Rules on Adoption, expressly refer to "Filipino children."
In all of them, foundlings are among the Filipino children who could be
adopted. Likewise, it has been pointed that the DFA issues passports to
foundlings. Passports are by law, issued only to citizens. This shows that even
the executive department, acting through the DFA, considers foundlings as
Philippine citizens.
Adopting these legal principles from the 1930 Hague Convention and the 1961
Convention on Statelessness is rational and reasonable and consistent with
the jus sanguinis regime in our Constitution. The presumption of natural-born
citizenship of foundlings stems from the presumption that their parents are
nationals of the Philippines. As the empirical data provided by the PSA show,
that presumption is at more than 99% and is a virtual certainty.
In sum, all of the international law conventions and instruments on the matter
of nationality of foundlings were designed to address the plight of a
defenseless class which suffers from a misfortune not of their own making. We
cannot be restrictive as to their application if we are a country which calls itself
civilized and a member of the community of nations. The Solicitor General's
warning in his opening statement is relevant:
.... the total effect of those documents is to signify to this Honorable Court that
those treaties and conventions were drafted because the world community is
concerned that the situation of foundlings renders them legally invisible. It
would be tragically ironic if this Honorable Court ended up using the
international instruments which seek to protect and uplift foundlings a tool to
deny them political status or to accord them second-class citizenship.138
The COMELEC also ruled139 that petitioner's repatriation in July 2006 under
the provisions of R.A. No. 9225 did not result in the reacquisition of natural-
born citizenship. The COMELEC reasoned that since the applicant must
perform an act, what is reacquired is not "natural-born" citizenship but only
plain "Philippine citizenship."
The COMELEC's rule arrogantly disregards consistent jurisprudence on the
matter of repatriation statutes in general and of R.A. No. 9225 in particular.
In the seminal case of Bengson Ill v. HRET, 140 repatriation was explained as
follows:
Moreover, repatriation results in the recovery of the original nationality. This
means that a naturalized Filipino who lost his citizenship will be restored to his
prior status as a naturalized Filipino citizen. On the other hand, if he was
originally a natural-born citizen before he lost his Philippine citizenship, he will
be restored to his former status as a natural-born Filipino.
R.A. No. 9225 is a repatriation statute and has been described as such in
several cases. They include Sobejana-Condon v. COMELEC141 where we
described it as an "abbreviated repatriation process that restores one's Filipino
citizenship x x x." Also included is Parreno v. Commission on Audit,142 which
cited Tabasa v. Court of Appeals,143 where we said that "[t]he repatriation of
the former Filipino will allow him to recover his natural-born citizenship.
Parreno v. Commission on Audit144 is categorical that "if petitioner reacquires
his Filipino citizenship (under R.A. No. 9225), he will ... recover his natural-
born citizenship."
The COMELEC construed the phrase "from birth" in the definition of natural
citizens as implying "that natural-born citizenship must begin at birth and
remain uninterrupted and continuous from birth." R.A. No. 9225 was obviously
passed in line with Congress' sole prerogative to determine how citizenship
may be lost or reacquired. Congress saw it fit to decree that natural-born
citizenship may be reacquired even if it had been once lost. It is not for the
COMELEC to disagree with the Congress' determination.
More importantly, COMELEC's position that natural-born status must be
continuous was already rejected in Bengson III v. HRET145 where the phrase
"from birth" was clarified to mean at the time of birth: "A person who at the time
of his birth, is a citizen of a particular country, is a natural-born citizen thereof."
Neither is "repatriation" an act to "acquire or perfect" one's citizenship. In
Bengson III v. HRET, this Court pointed out that there are only two types of
citizens under the 1987 Constitution: natural-born citizen and naturalized, and
that there is no third category for repatriated citizens:
It is apparent from the enumeration of who are citizens under the present
Constitution that there are only two classes of citizens: (1) those who are
natural-born and (2) those who are naturalized in accordance with law. A
citizen who is not a naturalized Filipino, ie., did not have to undergo the
process of naturalization to obtain Philippine citizenship, necessarily is a
natural-born Filipino. Noteworthy is the absence in said enumeration of a
separate category for persons who, after losing Philippine citizenship,
subsequently reacquire it. The reason therefor is clear: as to such persons,
they would either be natural-born or naturalized depending on the reasons for
the loss of their citizenship and the mode prescribed by the applicable law for
the reacquisition thereof. As respondent Cruz was not required by law to go
through naturalization proceedings in order to reacquire his citizenship, he is
perforce a natural-born Filipino. As such, he possessed all the necessary
qualifications to be elected as member of the House of Representatives.146
The COMELEC cannot reverse a judicial precedent. That is reserved to this
Court. And while we may always revisit a doctrine, a new rule reversing
standing doctrine cannot be retroactively applied. In Morales v. Court of
Appeals and Jejomar Erwin S. Binay, Jr.,147 where we decreed reversed the
condonation doctrine, we cautioned that it "should be prospective in
application for the reason that judicial decisions applying or interpreting the
laws of the Constitution, until reversed, shall form part of the legal system of
the Philippines." This Court also said that "while the future may ultimately
uncover a doctrine's error, it should be, as a general rule, recognized as good
law prior to its abandonment. Consequently, the people's reliance thereupon
should be respected."148
Lastly, it was repeatedly pointed out during the oral arguments that petitioner
committed a falsehood when she put in the spaces for "born to" in her
application for repatriation under R.A. No. 9225 the names of her adoptive
parents, and this misled the BI to presume that she was a natural-born Filipino.
It has been contended that the data required were the names of her biological
parents which are precisely unknown.
This position disregards one important fact - petitioner was legally adopted.
One of the effects of adoption is "to sever all legal ties between the biological
parents and the adoptee, except when the biological parent is the spouse of
the adoptee."149 Under R.A. No. 8552, petitioner was also entitled to an
amended birth certificate "attesting to the fact that the adoptee is the child of
the adopter(s)" and which certificate "shall not bear any notation that it is an
amended issue."150 That law also requires that "[a]ll records, books, and
papers relating to the adoption cases in the files of the court, the Department
[of Social Welfare and Development], or any other agency or institution
participating in the adoption proceedings shall be kept strictly confidential."151
The law therefore allows petitioner to state that her adoptive parents were her
birth parents as that was what would be stated in her birth certificate anyway.
And given the policy of strict confidentiality of adoption records, petitioner was
not obligated to disclose that she was an adoptee.
Clearly, to avoid a direct ruling on the qualifications of petitioner, which it
cannot make in the same case for cancellation of COC, it resorted to
opinionatedness which is, moreover, erroneous. The whole process
undertaken by COMELEC is wrapped in grave abuse of discretion.
On Residence
The tainted process was repeated in disposing of the issue of whether or not
petitioner committed false material representation when she stated in her COC
that she has before and until 9 May 2016 been a resident of the Philippines for
ten (10) years and eleven (11) months.
Petitioner's claim that she will have been a resident for ten (10) years and
eleven (11) months on the day before the 2016 elections, is true.
The Constitution requires presidential candidates to have ten (10) years'
residence in the Philippines before the day of the elections. Since the
forthcoming elections will be held on 9 May 2016, petitioner must have been a
resident of the Philippines prior to 9 May 2016 for ten (10) years. In answer to
the requested information of "Period of Residence in the Philippines up to the
day before May 09, 2016," she put in "10 years 11 months" which according
to her pleadings in these cases corresponds to a beginning date of 25 May
2005 when she returned for good from the U.S.
When petitioner immigrated to the U.S. in 1991, she lost her original domicile,
which is the Philippines. There are three requisites to acquire a new domicile:
1. Residence or bodily presence in a new locality; 2. an intention to remain
there; and 3. an intention to abandon the old domicile.152 To successfully
effect a change of domicile, one must demonstrate an actual removal or an
actual change of domicile; a bona fide intention of abandoning the former place
of residence and establishing a new one and definite acts which correspond
with the purpose. In other words, there must basically be animus manendi
coupled with animus non revertendi. The purpose to remain in or at the
domicile of choice must be for an indefinite period of time; the change of
residence must be voluntary; and the residence at the place chosen for the
new domicile must be actual.153
Petitioner presented voluminous evidence showing that she and her family
abandoned their U.S. domicile and relocated to the Philippines for good. These
evidence include petitioner's former U.S. passport showing her arrival on 24
May 2005 and her return to the Philippines every time she travelled abroad; e-
mail correspondences starting in March 2005 to September 2006 with a freight
company to arrange for the shipment of their household items weighing about
28,000 pounds to the Philippines; e-mail with the Philippine Bureau of Animal
Industry inquiring how to ship their dog to the Philippines; school records of
her children showing enrollment in Philippine schools starting June 2005 and
for succeeding years; tax identification card for petitioner issued on July 2005;
titles for condominium and parking slot issued in February 2006 and their
corresponding tax declarations issued in April 2006; receipts dated 23
February 2005 from the Salvation Army in the U.S. acknowledging donation of
items from petitioner's family; March 2006 e-mail to the U.S. Postal Service
confirming request for change of address; final statement from the First
American Title Insurance Company showing sale of their U.S. home on 27
April 2006; 12 July 2011 filled-up questionnaire submitted to the U.S. Embassy
where petitioner indicated that she had been a Philippine resident since May
2005; affidavit from Jesusa Sonora Poe (attesting to the return of petitioner on
24 May 2005 and that she and her family stayed with affiant until the
condominium was purchased); and Affidavit from petitioner's husband
(confirming that the spouses jointly decided to relocate to the Philippines in
2005 and that he stayed behind in the U.S. only to finish some work and to sell
the family home).
The foregoing evidence were undisputed and the facts were even listed by the
COMELEC, particularly in its Resolution in the Tatad, Contreras and Valdez
cases.
However, the COMELEC refused to consider that petitioner's domicile had
been timely changed as of 24 May 2005. At the oral arguments, COMELEC
Commissioner Arthur Lim conceded the presence of the first two requisites,
namely, physical presence and animus manendi, but maintained there was no
animus non-revertendi.154 The COMELEC disregarded the import of all the
evidence presented by petitioner on the basis of the position that the earliest
date that petitioner could have started residence in the Philippines was in July
2006 when her application under R.A. No. 9225 was approved by the BI. In
this regard, COMELEC relied on Coquilla v. COMELEC,155 Japzon v.
COMELEC156 and Caballero v. COMELEC. 157 During the oral arguments,
the private respondents also added Reyes v. COMELEC.158 Respondents
contend that these cases decree that the stay of an alien former Filipino cannot
be counted until he/she obtains a permanent resident visa or reacquires
Philippine citizenship, a visa-free entry under a balikbayan stamp being
insufficient. Since petitioner was still an American (without any resident visa)
until her reacquisition of citizenship under R.A. No. 9225, her stay from 24 May
2005 to 7 July 2006 cannot be counted.
But as the petitioner pointed out, the facts in these four cases are very different
from her situation. In Coquilla v. COMELEC,159 the only evidence presented
was a community tax certificate secured by the candidate and his declaration
that he would be running in the elections. Japzon v. COMELEC160 did not
involve a candidate who wanted to count residence prior to his reacquisition of
Philippine citizenship. With the Court decreeing that residence is distinct from
citizenship, the issue there was whether the candidate's acts after
reacquisition sufficed to establish residence. In Caballero v. COMELEC, 161
the candidate admitted that his place of work was abroad and that he only
visited during his frequent vacations. In Reyes v. COMELEC,162 the
candidate was found to be an American citizen who had not even reacquired
Philippine citizenship under R.A. No. 9225 or had renounced her U.S.
citizenship. She was disqualified on the citizenship issue. On residence, the
only proof she offered was a seven-month stint as provincial officer. The
COMELEC, quoted with approval by this Court, said that "such fact alone is
not sufficient to prove her one-year residency."
It is obvious that because of the sparse evidence on residence in the four
cases cited by the respondents, the Court had no choice but to hold that
residence could be counted only from acquisition of a permanent resident visa
or from reacquisition of Philippine citizenship. In contrast, the evidence of
petitioner is overwhelming and taken together leads to no other conclusion that
she decided to permanently abandon her U.S. residence (selling the house,
taking the children from U.S. schools, getting quotes from the freight company,
notifying the U.S. Post Office of the abandonment of their address in the U.S.,
donating excess items to the Salvation Army, her husband resigning from U.S.
employment right after selling the U.S. house) and permanently relocate to the
Philippines and actually re-established her residence here on 24 May 2005
(securing T.I.N, enrolling her children in Philippine schools, buying property
here, constructing a residence here, returning to the Philippines after all trips
abroad, her husband getting employed here). Indeed, coupled with her
eventual application to reacquire Philippine citizenship and her family's actual
continuous stay in the Philippines over the years, it is clear that when petitioner
returned on 24 May 2005 it was for good.
In this connection, the COMELEC also took it against petitioner that she had
entered the Philippines visa-free as a balikbayan. A closer look at R.A. No.
6768 as amended, otherwise known as the "An Act Instituting a Balikbayan
Program," shows that there is no overriding intent to treat balikbayans as
temporary visitors who must leave after one year. Included in the law is a
former Filipino who has been naturalized abroad and "comes or returns to the
Philippines." 163 The law institutes a balikbayan program "providing the
opportunity to avail of the necessary training to enable the balikbayan to
become economically self-reliant members of society upon their return to the
country"164 in line with the government's "reintegration program."165
Obviously, balikbayans are not ordinary transients.
Given the law's express policy to facilitate the return of a balikbayan and help
him reintegrate into society, it would be an unduly harsh conclusion to say in
absolute terms that the balikbayan must leave after one year. That visa-free
period is obviously granted him to allow him to re-establish his life and
reintegrate himself into the community before he attends to the necessary
formal and legal requirements of repatriation. And that is exactly what
petitioner did - she reestablished life here by enrolling her children and buying
property while awaiting the return of her husband and then applying for
repatriation shortly thereafter.
No case similar to petitioner's, where the former Filipino's evidence of change
in domicile is extensive and overwhelming, has as yet been decided by the
Court. Petitioner's evidence of residence is unprecedented. There is no judicial
precedent that comes close to the facts of residence of petitioner. There is no
indication in Coquilla v. COMELEC,166 and the other cases cited by the
respondents that the Court intended to have its rulings there apply to a
situation where the facts are different. Surely, the issue of residence has been
decided particularly on the facts-of-the case basis.
To avoid the logical conclusion pointed out by the evidence of residence of
petitioner, the COMELEC ruled that petitioner's claim of residence of ten (10)
years and eleven (11) months by 9 May 2016 in her 2015 COC was false
because she put six ( 6) years and six ( 6) months as "period of residence
before May 13, 2013" in her 2012 COC for Senator. Thus, according to the
COMELEC, she started being a Philippine resident only in November 2006. In
doing so, the COMELEC automatically assumed as true the statement in the
2012 COC and the 2015 COC as false.
As explained by petitioner in her verified pleadings, she misunderstood the
date required in the 2013 COC as the period of residence as of the day she
submitted that COC in 2012. She said that she reckoned residency from April-
May 2006 which was the period when the U.S. house was sold and her
husband returned to the Philippines. In that regard, she was advised by her
lawyers in 2015 that residence could be counted from 25 May 2005.
Petitioner's explanation that she misunderstood the query in 2012 (period of
residence before 13 May 2013) as inquiring about residence as of the time she
submitted the COC, is bolstered by the change which the COMELEC itself
introduced in the 2015 COC which is now "period of residence in the
Philippines up to the day before May 09, 2016." The COMELEC would not
have revised the query if it did not acknowledge that the first version was
vague.
That petitioner could have reckoned residence from a date earlier than the sale
of her U.S. house and the return of her husband is plausible given the evidence
that she had returned a year before. Such evidence, to repeat, would include
her passport and the school records of her children.
It was grave abuse of discretion for the COMELEC to treat the 2012 COC as
a binding and conclusive admission against petitioner. It could be given in
evidence against her, yes, but it was by no means conclusive. There is
precedent after all where a candidate's mistake as to period of residence made
in a COC was overcome by evidence. In Romualdez-Marcos v.
COMELEC,167 the candidate mistakenly put seven (7) months as her period
of residence where the required period was a minimum of one year. We said
that "[i]t is the fact of residence, not a statement in a certificate of candidacy
which ought to be decisive in determining whether or not an individual has
satisfied the constitutions residency qualification requirement." The
COMELEC ought to have looked at the evidence presented and see if
petitioner was telling the truth that she was in the Philippines from 24 May
2005. Had the COMELEC done its duty, it would have seen that the 2012 COC
and the 2015 COC both correctly stated the pertinent period of residency.
The COMELEC, by its own admission, disregarded the evidence that petitioner
actually and physically returned here on 24 May 2005 not because it was false,
but only because COMELEC took the position that domicile could be
established only from petitioner's repatriation under R.A. No. 9225 in July
2006. However, it does not take away the fact that in reality, petitioner had
returned from the U.S. and was here to stay permanently, on 24 May 2005.
When she claimed to have been a resident for ten (10) years and eleven (11)
months, she could do so in good faith.
For another, it could not be said that petitioner was attempting to hide anything.
As already stated, a petition for quo warranto had been filed against her with
the SET as early as August 2015. The event from which the COMELEC
pegged the commencement of residence, petitioner's repatriation in July 2006
under R.A. No. 9225, was an established fact to repeat, for purposes of her
senatorial candidacy.
Notably, on the statement of residence of six (6) years and six (6) months in
the 2012 COC, petitioner recounted that this was first brought up in the media
on 2 June 2015 by Rep. Tobias Tiangco of the United Nationalist Alliance.
Petitioner appears to have answered the issue immediately, also in the press.
Respondents have not disputed petitioner's evidence on this point. From that
time therefore when Rep. Tiangco discussed it in the media, the stated period
of residence in the 2012 COC and the circumstances that surrounded the
statement were already matters of public record and were not hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the SET
petition for quo warranto. Her Verified Answer, which was filed on 1 September
2015, admitted that she made a mistake in the 2012 COC when she put in six
( 6) years and six ( 6) months as she misunderstood the question and could
have truthfully indicated a longer period. Her answer in the SET case was a
matter of public record. Therefore, when petitioner accomplished her COC for
President on 15 October 2015, she could not be said to have been attempting
to hide her erroneous statement in her 2012 COC for Senator which was
expressly mentioned in her Verified Answer.
The facts now, if not stretched to distortion, do not show or even hint at an
intention to hide the 2012 statement and have it covered by the 2015
representation. Petitioner, moreover, has on her side this Court's
pronouncement that:
Concededly, a candidate's disqualification to run for public office does not
necessarily constitute material misrepresentation which is the sole ground for
denying due course to, and for the cancellation of, a COC. Further, as already
discussed, the candidate's misrepresentation in his COC must not only refer
to a material fact (eligibility and qualifications for elective office), but should
evince a deliberate intent to mislead, misinform or hide a fact which would
otherwise render a candidate ineligible. It must be made with an intention to
deceive the electorate as to one's qualifications to run for public office.168
In sum, the COMELEC, with the same posture of infallibilism, virtually ignored
a good number of evidenced dates all of which can evince animus manendi to
the Philippines and animus non revertedi to the United States of America. The
veracity of the events of coming and staying home was as much as dismissed
as inconsequential, the focus having been fixed at the petitioner's "sworn
declaration in her COC for Senator" which the COMELEC said "amounts to a
declaration and therefore an admission that her residence in the Philippines
only commence sometime in November 2006"; such that "based on this
declaration, [petitioner] fails to meet the residency requirement for President."
This conclusion, as already shown, ignores the standing jurisprudence that it
is the fact of residence, not the statement of the person that determines
residence for purposes of compliance with the constitutional requirement of
residency for election as President. It ignores the easily researched matter that
cases on questions of residency have been decided favorably for the
candidate on the basis of facts of residence far less in number, weight and
substance than that presented by petitioner.169 It ignores, above all else, what
we consider as a primary reason why petitioner cannot be bound by her
declaration in her COC for Senator which declaration was not even considered
by the SET as an issue against her eligibility for Senator. When petitioner
made the declaration in her COC for Senator that she has been a resident for
a period of six (6) years and six (6) months counted up to the 13 May 2013
Elections, she naturally had as reference the residency requirements for
election as Senator which was satisfied by her declared years of residence. It
was uncontested during the oral arguments before us that at the time the
declaration for Senator was made, petitioner did not have as yet any intention
to vie for the Presidency in 2016 and that the general public was never made
aware by petitioner, by word or action, that she would run for President in 2016.
Presidential candidacy has a length-of-residence different from that of a
senatorial candidacy. There are facts of residence other than that which was
mentioned in the COC for Senator. Such other facts of residence have never
been proven to be false, and these, to repeat include:
[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband
however stayed in the USA to finish pending projects and arrange the sale of
their family home.
Meanwhile [petitioner] and her children lived with her mother in San Juan City.
[Petitioner] enrolled Brian in Beacon School in Taguig City in 2005 and Hanna
in Assumption College in Makati City in 2005. Anika was enrolled in Learning
Connection in San Juan in 2007, when she was already old enough to go to
school.
In the second half of 2005, [petitioner] and her husband acquired Unit 7F of
One Wilson Place Condominium in San Juan. [Petitioner] and her family lived
in Unit 7F until the construction of their family home in Corinthian Hills was
completed.
Sometime in the second half of 2005, [petitioner's] mother discovered that her
former lawyer who handled [petitioner's] adoption in 1974 failed to secure from
the Office of the Civil Registrar of Iloilo a new Certificate of Live Birth indicating
[petitioner's] new name and stating that her parents are "Ronald Allan K. Poe"
and "Jesusa L. Sonora."

In February 2006, [petitioner] travelled briefly to the US in order to supervise
the disposal of some of the family's remaining household belongings.1a\^/phi1
[Petitioner] returned to the Philippines on 11 March 2006.
In late March 2006, [petitioner's] husband informed the United States Postal
Service of the family's abandonment of their address in the US.
The family home in the US was sole on 27 April 2006.
In April 2006, [petitioner's] husband resigned from his work in the US. He
returned to the Philippines on 4 May 2006 and began working for a Philippine
company in July 2006.
In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian
Hills, where they eventually built their family home.170
In light of all these, it was arbitrary for the COMELEC to satisfy its intention to
let the case fall under the exclusive ground of false representation, to consider
no other date than that mentioned by petitioner in her COC for Senator.
All put together, in the matter of the citizenship and residence of petitioner for
her candidacy as President of the Republic, the questioned Resolutions of the
COMELEC in Division and En Banc are, one and all, deadly diseased with
grave abuse of discretion from root to fruits.
WHEREFORE, the petition is GRANTED. The Resolutions, to wit:
1. dated 1 December 2015 rendered through the COMELEC Second Division,
in SPA No. 15-001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares, respondent, stating that:
[T]he Certificate of Candidacy for President of the Republic of the Philippines
in the May 9, 2016 National and Local Elections filed by respondent Mary
Grace Natividad Sonora Poe-Llamanzares is hereby GRANTED.
2. dated 11 December 2015, rendered through the COMELEC First Division,
in the consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad,
petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent;
SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139 (DC)
entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to GRANT the petitions and cancel the Certificate of
Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES for
the elective position of President of the Republic of the Philippines in
connection with the 9 May 2016 Synchronized Local and National Elections.
3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1
December 2015 Resolution of the Second Division stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to DENY the Verified Motion for Reconsideration of
SENATOR MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES. The
Resolution dated 11 December 2015 of the Commission First Division is
AFFIRMED.
4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11
December 2015 Resolution of the First Division.
are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES is DECLARED QUALIFIED to be a candidate
for President in the National and Local Elections of 9 May 2016.SO
ORDERED.
G.R. No. L-16922 April 30, 1963
IN RE: ADOPTION OF CHILD BAPTIZED UNDER THE NAME OF ROSE,
MARVIN G. ELLIS and GLORIA C. ELLIS, petitioners-appellees, vs.
REPUBLIC OF THE PHILIPPINES, oppositor-appellant.
Leonardo F. Lansangan for petitioners-appellees.
Office of the Solicitor General for oppositor-appellant.
CONCEPCION, J.:
Appeal taken by the Government from a decision of the Court of First Instance
of Pampanga granting the petition of Marvin G. Ellis and Gloria C. Ellis for the
adoption of a Filipino baby girl named Rose.
Petitioner Marvin G. Ellis, a native of San Fransisco, California, is 28 years of
age. On September 3, 1949, he married Gloria G. Ellis in Banger, Maine,
United States. Both are citizens of the United States. Baby Rose was born on
September 26, 1959, at the Caloocan Maternity Hospital. Four or five days
later, the mother of Rose left her with the Heart of Mary Villa an institution
for unwed mothers and their babies stating that she (the mother) could not
take of Rose without bringing disgrace upon her (the mother's family.).
Being without issue, on November 22, 1959, Mr. and Mrs. Ellis filed a petition
with the Court of First Instance of Pampanga for the adoption of the
aforementioned baby. At the time of the hearing of the petition on January
14,1960, petitioner Marvin G. Ellis and his wife had been in the Philippines for
three (3) years, he being assigned thereto as staff sergeant in the United
States Air Force Base, in Angeles, Pampanga where both lived at that time.
They had been in the Philippines before, or, to exact, in 1953.
The only issue in this appeal is whether, not being permanent residents in the
Philippines, petitioners are qualified to adopt Baby Rose. Article 335 of the
Civil Code of the Philippines, provides that:
"The following cannot adopt:
xxx xxx xxx
(4) Non-resident aliens;".
xxx xxx xxx
This legal provisions is too clear to require interpretation. No matter how much
we sympathize with the plight of Baby Rose and with the good intentions of
petitioners herein, the law leaves us no choice but to apply its explicit terms,
which unqualified deny to petitioners the power to adopt anybody in the
Philippines.
In this connection, it should be noted that this is a proceedings in rem, which
no court may entertain unless it has jurisdiction, not only over the subject
matter of the case and over the parties, but also over the res, which is the
personal status of Baby Rose as well as that of petitioners herein. Our Civil
Code (Art. 15) adheres to the theory that jurisdiction over the status of a natural
person is determined by the latters' nationality. Pursuant to this theory, we
have jurisdiction over the status of Baby Rose, she being a citizen of the
Philippines, but not over the status of the petitioners, who are foreigners.
Under our political law, which is patterned after the Anglo-American legal
system, we have, likewise, adopted the latter's view to the effect that personal
status, in general, is determined by and/or subject to the jurisdiction of the
domiciliary law (Restatement of the Law of Conflict of Laws, p. 86; The Conflict
of Laws by Beale, Vol. I, p. 305, Vol. II, pp. 713-714). This, perhaps, is the
reason why our Civil Code does not permit adoption by non-resident aliens,
and we have consistently refused to recognize the validity of foreign decrees
of divorce regardless of the grounds upon which the same are based
involving citizens of the Philippines who are not bona fide residents of the
forum, even when our laws authorized absolute divorce in the Philippines
(Ramirez v. Gmur, 42 Phil. 855; Gonayeb v. Hashim, 30 Phil. 22; Cousine Hix
v. Fleumer, 55 Phil. 851; Barretto Gonzales v. Gonzales, 58 Phil. 67; Recto v.
Harden, L-6897, Nov. 29, 1955)".
Inasmuch as petitioners herein are not domiciled in the Philippines and,
hence, non-resident aliens - we cannot assume and exercise jurisdiction over
the status, under either the nationality theory or the domiciliary theory. In any
event, whether the above quoted provision of said Art. 335 is predicated
upon lack of jurisdiction over the res or merely affects the cause of action, we
have no authority to grant the relief prayed for by petitioners herein, and it has
been so held in Caraballo v. Republic, L-15080 (April 25, 1962) and Katansik
v. Republic L-15472 (June 30, 1962).
WHEREFORE, the decision appealed from is hereby reversed, and another
one shall be entered denying the petition in this case.
Bengzon, C.J., Bautista Angelo, Labrador, Barrera, Paredes, Dizon, Regala
and Makalintal, JJ., concur.
Padilla and Reyes, J.B.L., JJ., took no part.
G.R. No. L-30576 February 10, 1976
ROBIN FRANCIS RADLEY DUNCAN and MARIA LUCY CHRISTENSEN,
petitioners,
vs.
COURT OF FIRST INSTANCE OF RIZAL (Branch X) PRESIDED OVER BY
HON. JUDGE HERMINIO C. MARIANO, respondent.
Susano A. Velasquez for petitioners.
Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Hector C.
Fule and Trial Attorney Herminio Z. Florendo for respondent.
ESGUERRA, J.:
Petition for review on certiorari of the decision of respondent court, dated June
27, 1968, dismissing petitioners' petition to adopt the minor, Colin Berry
Christensen Duncan. It seeks to have the findings and conclusions of law
contained in -the decision annulled and revoked and to declare the petition for
adoption meritorious and the child sought to be adopted, the minor Colin Berry
Christensen Duncan, declared the child by adoption and heir of herein
petitioners-Appellants. Robin Francis Radley Duncan and Maria Lucy
Christensen. 1
Petitioners Robin Francis Radley Duncan and Maria Lucy Christensen are
husband and wife, the former a British national residing in the Philippines for
the last 17 years and the latter an American citizen born in and a resident of
the Philippines. Having no children of their own but having previously adopted
another child, said spouses filed a petition with respondent court (Sp. Proc.
No. 5457) for the adoption of a child previously baptized and named by them
as Colin Berry Christensen Duncan. The petition is filed and denominated as
Sp. Proc. No. 5457.
In the decision rendered by respondent Court dated June 27, 1968, the petition
for adoption was dismissed. 2
The principal reason given for the dismissed al of the petition was that ... the
consent given in this petition Exhibit "J" is improper and falls short of the
express requirement of the law. 3
Rationalizing its action respondent Judge said:
Art. 340 (of the Civil Code) provides that the written consent of the following to
the adoption shall be necessary:
2. The guardian or person in charge of the person to be adopted.
"Under the law aforementioned, it will be noted that the law is couched in
mandatory terms by the word SHALL be necessary, and it enumerates the
persons who will give the consent to the adoption in the order as follows:
parents, guardian, or the person in charge of the person to be adopted.
It is admitted by witness Velasquez that she knew the identity of the mother
who gave her the child. This being the case, the proper person who is
supposed to give the parental consent to the adoption should first be, in the
order of preference, the parent or the mother herself. 4
On the allegation of petitioners that their principal witness, Atty. Corazon de
Leon Velasquez, under whose care the newly-born child was entrusted by the
unwedded mother, could not reveal the identity of the mother because it would
violate the privileged communications between the attorney and client,
respondent Judge explained: "The contention that for her (Atty. Corazon de
Leon Velasquez, the witness for the petitioners who gave the written consent
to the adoption of the child in her capacity as loco parentis to said child) to
reveal the identity of the mother would be violative of the client-attorney
relationship existing between her and the mother cannot hold water, because
in the first place, there was no such relationship existing between them in so
far as this case is concerned and secondly, it is not only a question of revealing
the identity of the mother but rather, of giving consent to adoption by that
alleged unwed mother."5
Taking exception to respondent Judge's decision and the ratio decidendi
thereof, appellants-petitioners alleged the following as errors committed by the
trial court: 6
1) The inviolability of privileged communication between attorney and
client is only binding upon the attorney in the same case where such
relationship of attorney and client arose when the client imparted the privileged
communication and that elsewhere or in another case the attorney is not bound
to the secrecy;
2) The infant that was given away by the natural mother, even without
the latter providing for the child's maintenance and support, could not be
considered as abandoned;
3) The stranger who received the baby or child, in this case, Atty.
Corazon de Leon Velasquez, could not be considered as the guardian de facto
and in loco parentis of the child, and therefore, is not empowered by law to
give written consent to the adoption;
4) That whenever and as long as the natural mother is known to anybody,
only said natural mother can give the written consent to the adoption;
5) That the term "person in charge of the person to be adopted", one of
those who can give consent to the adoption under Article 340 of the Civil Code,
means or refers to institutions or orphanages established for the purpose of
rearing orphans, foundlings and destitute children.
The facts of this case are few and simple.
a) Sometime in May, 1967, a child, less than a week old (only 3 days old)
7 was given to petitioners Robin Francis Radley Duncan and his wife Maria
Lucy Christensen, for them to adopt, by Atty. Corazon de Leon Velasquez.
The child was later on baptized as Colin Berry Christensen Duncan with the
aforementioned espouses appearing in the records of said baptism as the
parents of said child; 8
b) Atty. Corazon de Leon Velasquez on the other hand, received the
infant from the child's unwed mother who told the former never to reveal her
(the mother's) identity because she wanted to get married and did not want to
destroy her future. The mother instructed Atty. Corazon de Leon Velasquez to
look for a suitable couple who will adopt the child. The mother did not provide
for the maintenance and support of her child; 9
c) In the petition for adoption filed by petitioners in September, 1967,
Atty. Corazon de Leon Velasquez, as the de facto guardian or loco parentis of
the child subject of the adoption petition, gave the written consent required by
law; 10
d) Learning, from the testimony of witness Atty. Corazon de Leon
Velasquez that the natural mother of the child sought to be adopted was still
alive, the court then pressed upon the witness to reveal the identity of said
mother. The witness refused to divulge the same on the ground that there
existed an attorney and client relationship between them. She had been
instructed by her client not to reveal the latter's identity. She could not now
violate such privilege communication. 11
After examining the facts and the arguments presented, it appears to this Court
that there is only one principal issue involved, i.e., whether or not the person
who gave the consent for adoption, which in this case is Atty. Corazon de Leon
Velasquez, is the proper person required by law to give such consent.
The law applicable is. Art. 340 of the Civil Code, which provides:
Art. 340. The written consent of the following to adoption shall be necessary:
(1) The person to be adopted, if fourteen years of age or over;
(2) The parents, guardian or person in charge of the person to be
adopted.
On the other hand, the Rules of Court (Rule 99) has this to say on those who
are required to give consent in adoption:
Sec. 3. Consent to adoption. There shall be filed with the petition a written
consent to the adoption signed by the child, if fourteen years of age or over
and not incompetent, and by the child's spouse, if any, and by each of its
known living parents who is not an insane or hopelessly intemperate or has
not abandoned such child, or if there are no such parents by the general
guardian, or guardian ad litem of the child, or if the child is in the custody of an
orphan asylum, children's home, or benevolent society or person, by the
proper officer or officers of such asylum, home, or society, or by such person;
but if the child is illegitimate and has not been recognized, the consent of its
father to the adoption shall not be required.
Going by the set of facts in this case, only one of two persons particularly
described by law may be considered here as legally capable of giving the
required written consent. They are:
Under Art. 340 of the Civil 'Code, the "parent, guardian or person in charge of
the person to be adopted" while the other one is that mentioned in Section 3,
Rule 99 of the Rules of Court, describing it as each of the known living parents
"who has not abandoned such child." The father's consent here is out of the
question as the child is illegitimate and unrecognized.
Since the person whose written consent to the adoption (Atty: Corazon de
Leon Velasquez) is assailed by the trial court as being unauthorized and had
consequently caused the rejection of the petition, this Tribunal will now look
into her alleged authority or lack thereof to give the controverted consent.
Sometime in May of 1967, the child subject of this adoption petition,
undisputedly declared as only three days old then, was turned over by its
mother to witness Atty. Corazon de Leon Velasquez. The natural and
unwedded mother, from that date on to the time of the adoption proceedings
in court which started in mid- year of said 1967, and up to the present, has not
bothered to inquire into the condition of the child, much less to contribute to
the livelihood, maintenance and care of the same. In short, this parent is the
antithesis of that described in the law as "known living parent who is not insane
Or hopelessly intemperate or has not abandoned such child." We are
convinced that in fact said mother had completely and absolutely abandoned
her child. This Court has previously declared that abandonment imports any
conduct on the part of the parent which evinces a settled purpose to forego all
parental claims to the child. 12 Applying this legal yardstick, the unidentified
mother of the child in this case can be declared, as she is hereby declared, as
having abandoned her child with all legal consequences attached thereto.
Having declared that the child was an abandoned one by an unknown parent,
there appears to be no more legal need to require the written consent of such
parent of the child to the adoption. As had been said by this Court in the
aforecited case of Santos vs. Aranzanso, the parental consent required by the
law in adoption proceedings refers to parents who have not abandoned their
child. 13 The question now is whether or not Atty. Corazon de Leon Velasquez,
the undisputed custodian of the abandoned waif may be considered as the
guardian under Art. 340 or the person standing in loco parentis of said infant
contemplated in Art. 349 of the Civil Code.
It seems to Us that when the 3-day old baby was left to and placed in the hands
of Atty. Corazon de Leon Velasquez, the helpless infant was in dire need of
someone who could give it protection and sustain its delicate and fragile life.
Atty. Velasquez was under no legal compulsion to accept the child and to
extend to it the protection and care it badly needed. Since there had been no
showing that the identity of the natural mother was made known to the trial
court or to the herein petitioners, nor had said mother seen fit to present herself
before the court despite the public notice given to the proceedings as required
by law, there clearly appears only one person who could be considered as the
guardian exercising patria potestas over such abandoned child. Since there
was no guardian ad litem appointed by the court and the child not being in the
custody of an orphan asylum, children's home or any benevolent society, there
could not have been anyone other than Atty. Corazon de Leon Velasquez who
could, with reason, be called the guardian of said infant. It was she who had
actual. physical custody of the infant and who, out of compassion and motherly
instinct, extended the mantle of protection over the hapless and helpless infant
which otherwise could have suffered a tragic fate, like being thrown into some
garbage heap as had often happened to some unwanted illegitimate babies.
The least this Court could do to recognize and acknowledge her good
Samaritan deed is to extend, as it hereby extends, to her the recognition that
she was a de facto guardian exercising patria potestas over the abandoned
child.
The trial court in its decision had sought refuge in the ancient Roman legal
maxim "Dura lex sed lex" to cleanse its hands of the hard and harsh decision
it rendered. While this old adage generally finds apt application in many other
legal cases, in adoption of children, however, this should be softened so as to
apply the law with less severity and with compassion and humane
understanding, for adoption is more for the benefit of unfortunate children,
particularly those born out of wedlock, than for those born with a silver spoon
in their mouths. All efforts or acts designed to provide homes, love, care and
education for unfortunate children, who otherwise may grow from cynical street
urchins to hardened criminal offenders and become serious social problems,
should be given the widest attitude of sympathy, encouragement and
assistance. The law is not, and should not be made, an instrument to impede
the achievement of a salutary humane policy. As often as is legally and lawfully
possible, their texts and intendments should be construed so as to give all the
chances for human life to exist with a modicum promise of a useful and
constructive existence.
The herein petitioners, the spouses Robin Francis Radley Duncan and Maria
Lucy Christensen, appear to be qualified to adopt the child. There is no
showing that they suffer from any of the disqualifications under the law. Above
all, they have the means to provide the child with the proper support, care,
education and love that a growing child needs, even if they have previously
adopted another child as theirs. The fact that even before they have applied
for legal custody and adoption of the infant they have already showered it with
love and care and had it baptized, with them appearing in the records of the
baptism as the parents of the child, speaks well of the genuine desire of
petitioners to have the child as their very own. The child was born in May,
1967, and he will be at this time, 1976, about 9 years of age. In all the years,
from the time he was turned over to the herein petitioners when he was only
about a week old (there is no showing that the said child was ever placed at
any' time in the care and custody of some other persons) he had been cared
for and loved by the spouses Robin Francis RadLey Duncan and Maria Lucy
Christensen. He must have known no other parents than these persons. If we
are now to sustain the decision of the court below, this Tribunal will be doing
a graver injustice to all concerned particularly to said spouses, and worse, it
will be imposing a cruel sanction on this innocent child and on all other children
who might be similarly situated. We consider it to be justifiable and more
humane to formalize a factual relation, that of parents and son, existing
between the herein petitioning spouses and the minor child baptized by them
as Colin Berry Christensen Duncan, than to sustain the hard, harsh and cruel
interpretation of the law that was done by the respondent court and Judge. It
is Our view that it is in consonance with the true spirit and purpose of the law,
and with the policy of the State, to uphold, encourage and give life and
meaning to the existence of family relations.
WHEREFORE, in the light of the foregoing, the decision of the respondent
Judge of the Court of First Instance of Rizal, Branch X, in Sp. Proc. No. 5457,
dated June 27, 1968, is hereby annulled, and We declare that the minor Colin
Berry Christensen Duncan is the adopted child and the heir of petitioners
Robin Francis Radley Duncan and Maria Lucy Christensen.
No costs.
G.R. No. 146738 March 2, 2001
JOSEPH E. ESTRADA, petitioner, vs.
GLORIA MACAPAGAL-ARROYO, respondent.
PUNO, J.:
On the line in the cases at bar is the office of the President. Petitioner Joseph
Ejercito Estrada alleges that he is the President on leave while respondent
Gloria Macapagal-Arroyo claims she is the President. The warring
personalities are important enough but more transcendental are the
constitutional issues embedded on the parties' dispute. While the significant
issues are many, the jugular issue involves the relationship between the ruler
and the ruled in a democracy, Philippine style.
First, we take a view of the panorama of events that precipitated the crisis in
the office of the President.
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected
President while respondent Gloria Macapagal-Arroyo was elected Vice-
President. Some ten (10) million Filipinos voted for the petitioner believing he
would rescue them from life's adversity. Both petitioner and the respondent
were to serve a six-year term commencing on June 30, 1998.
From the beginning of his term, however, petitioner was plagued by a plethora
of problems that slowly but surely eroded his popularity. His sharp descent
from power started on October 4, 2000. Ilocos Sur Governor, Luis "Chavit"
Singson, a longtime friend of the petitioner, went on air and accused the
petitioner, his family and friends of receiving millions of pesos from jueteng
lords.1
The expos immediately ignited reactions of rage. The next day, October 5,
2000, Senator Teofisto Guingona, Jr., then the Senate Minority Leader, took
the floor and delivered a fiery privilege speech entitled "I Accuse." He accused
the petitioner of receiving some P220 million in jueteng money from Governor
Singson from November 1998 to August 2000. He also charged that the
petitioner took from Governor Singson P70 million on excise tax on cigarettes
intended for Ilocos Sur. The privilege speech was referred by then Senate
President Franklin Drilon, to the Blue Ribbon Committee (then headed by
Senator Aquilino Pimentel) and the Committee on Justice (then headed by
Senator Renato Cayetano) for joint investigation.2
The House of Representatives did no less. The House Committee on Public
Order and Security, then headed by Representative Roilo Golez, decided to
investigate the expos of Governor Singson. On the other hand,
Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor
spearheaded the move to impeach the petitioner.
Calls for the resignation of the petitioner filled the air. On October 11,
Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf of the
Presbyteral Council of the Archdiocese of Manila, asking petitioner to step
down from the presidency as he had lost the moral authority to govern.3 Two
days later or on October 13, the Catholic Bishops Conference of the
Philippines joined the cry for the resignation of the petitioner.4 Four days later,
or on October 17, former President Corazon C. Aquino also demanded that
the petitioner take the "supreme self-sacrifice" of resignation.5 Former
President Fidel Ramos also joined the chorus. Early on, or on October 12,
respondent Arroyo resigned as Secretary of the Department of Social Welfare
and Services6 and later asked for petitioner's resignation.7 However,
petitioner strenuously held on to his office and refused to resign.
The heat was on. On November 1, four (4) senior economic advisers,
members of the Council of Senior Economic Advisers, resigned. They were
Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former
Senator Vicente Paterno and Washington Sycip.8 On November 2, Secretary
Mar Roxas II also resigned from the Department of Trade and Industry.9 On
November 3, Senate President Franklin Drilon, and House Speaker Manuel
Villar, together with some 47 representatives defected from the ruling coalition,
Lapian ng Masang Pilipino.10
The month of November ended with a big bang. In a tumultuous session on
November 13, House Speaker Villar transmitted the Articles of
Impeachment11 signed by 115 representatives, or more than 1/3 of all the
members of the House of Representatives to the Senate. This caused political
convulsions in both houses of Congress. Senator Drilon was replaced by
Senator Pimentel as Senate President. Speaker Villar was unseated by
Representative Fuentebella.12 On November 20, the Senate formally opened
the impeachment trial of the petitioner. Twenty-one (21) senators took their
oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr.,
presiding.13
The political temperature rose despite the cold December. On December 7,
the impeachment trial started.14 The battle royale was fought by some of the
marquee names in the legal profession. Standing as prosecutors were then
House Minority Floor Leader Feliciano Belmonte and Representatives Joker
Arroyo, Wigberto Taada, Sergio Apostol, Raul Gonzales, Oscar Moreno,
Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and
Antonio Nachura. They were assisted by a battery of private prosecutors led
by now Secretary of Justice Hernando Perez and now Solicitor General
Simeon Marcelo. Serving as defense counsel were former Chief Justice
Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P.
Mendoza, former City Fiscal of Manila Jose Flaminiano, former Deputy
Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty.
Raymund Fortun. The day to day trial was covered by live TV and during its
course enjoyed the highest viewing rating. Its high and low points were the
constant conversational piece of the chattering classes. The dramatic point of
the December hearings was the testimony of Clarissa Ocampo, senior vice
president of Equitable-PCI Bank. She testified that she was one foot away from
petitioner Estrada when he affixed the signature "Jose Velarde" on documents
involving a P500 million investment agreement with their bank on February 4,
2000.15
After the testimony of Ocampo, the impeachment trial was adjourned in the
spirit of Christmas. When it resumed on January 2, 2001, more bombshells
were exploded by the prosecution. On January 11, Atty. Edgardo Espiritu who
served as petitioner's Secretary of Finance took the witness stand. He alleged
that the petitioner jointly owned BW Resources Corporation with Mr. Dante
Tan who was facing charges of insider trading.16 Then came the fateful day
of January 16, when by a vote of 11-1017 the senator-judges ruled against the
opening of the second envelope which allegedly contained evidence showing
that petitioner held P3.3 billion in a secret bank account under the name "Jose
Velarde." The public and private prosecutors walked out in protest of the ruling.
In disgust, Senator Pimentel resigned as Senate President.18 The ruling made
at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets
of the metropolis. By midnight, thousands had assembled at the EDSA Shrine
and speeches full of sulphur were delivered against the petitioner and the
eleven (11) senators.
On January 17, the public prosecutors submitted a letter to Speaker
Fuentebella tendering their collective resignation. They also filed their
Manifestation of Withdrawal of Appearance with the impeachment tribunal.19
Senator Raul Roco quickly moved for the indefinite postponement of the
impeachment proceedings until the House of Representatives shall have
resolved the issue of resignation of the public prosecutors. Chief Justice
Davide granted the motion.20
January 18 saw the high velocity intensification of the call for petitioner's
resignation. A 10-kilometer line of people holding lighted candles formed a
human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati
City to the EDSA Shrine to symbolize the people's solidarity in demanding
petitioner's resignation. Students and teachers walked out of their classes in
Metro Manila to show their concordance. Speakers in the continuing rallies at
the EDSA Shrine, all masters of the physics of persuasion, attracted more and
more people.21
On January 19, the fall from power of the petitioner appeared inevitable. At
1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara that
General Angelo Reyes, Chief of Staff of the Armed Forces of the Philippines,
had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election
for President where he would not be a candidate. It did not diffuse the growing
crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and
General Reyes, together with the chiefs of all the armed services went to the
EDSA Shrine.22 In the presence of former Presidents Aquino and Ramos and
hundreds of thousands of cheering demonstrators, General Reyes declared
that "on behalf of Your Armed Forces, the 130,000 strong members of the
Armed Forces, we wish to announce that we are withdrawing our support to
this government."23 A little later, PNP Chief, Director General Panfilo Lacson
and the major service commanders gave a similar stunning announcement.24
Some Cabinet secretaries, undersecretaries, assistant secretaries, and
bureau chiefs quickly resigned from their posts.25 Rallies for the resignation
of the petitioner exploded in various parts of the country. To stem the tide of
rage, petitioner announced he was ordering his lawyers to agree to the
opening of the highly controversial second envelope.26 There was no turning
back the tide. The tide had become a tsunami.
January 20 turned to be the day of surrender. At 12:20 a.m., the first round of
negotiations for the peaceful and orderly transfer of power started at
Malacaang'' Mabini Hall, Office of the Executive Secretary. Secretary
Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing,
Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty.
Macel Fernandez, head of the Presidential Management Staff, negotiated for
the petitioner. Respondent Arroyo was represented by now Executive
Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and now
Secretary of Justice Hernando Perez.27 Outside the palace, there was a brief
encounter at Mendiola between pro and anti-Estrada protesters which resulted
in stone-throwing and caused minor injuries. The negotiations consumed all
morning until the news broke out that Chief Justice Davide would administer
the oath to respondent Arroyo at high noon at the EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to
respondent Arroyo as President of the Philippines.28 At 2:30 p.m., petitioner
and his family hurriedly left Malacaang Palace.29 He issued the following
press statement:30
"20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took
her oath as President of the Republic of the Philippines. While along with many
other legal minds of our country, I have strong and serious doubts about the
legality and constitutionality of her proclamation as President, I do not wish to
be a factor that will prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of the
presidency of this country, for the sake of peace and in order to begin the
healing process of our nation. I leave the Palace of our people with gratitude
for the opportunities given to me for service to our people. I will not shirk from
any future challenges that may come ahead in the same service of our country.
I call on all my supporters and followers to join me in to promotion of a
constructive national spirit of reconciliation and solidarity.
May the Almighty bless our country and beloved people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA"
It also appears that on the same day, January 20, 2001, he signed the
following letter:31
"Sir:
By virtue of the provisions of Section 11, Article VII of the Constitution, I am
hereby transmitting this declaration that I am unable to exercise the powers
and duties of my office. By operation of law and the Constitution, the Vice-
President shall be the Acting President.
(Sgd.) JOSEPH EJERCITO ESTRADA"
A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on
January 20.23 Another copy was transmitted to Senate President Pimentel on
the same day although it was received only at 9:00 p.m.33
On January 22, the Monday after taking her oath, respondent Arroyo
immediately discharged the powers the duties of the Presidency. On the same
day, this Court issued the following Resolution in Administrative Matter No. 01-
1-05-SC, to wit:
"A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-
Arroyo to Take her Oath of Office as President of the Republic of the
Philippines before the Chief Justice Acting on the urgent request of Vice
President Gloria Macapagal-Arroyo to be sworn in as President of the Republic
of the Philippines, addressed to the Chief Justice and confirmed by a letter to
the Court, dated January 20, 2001, which request was treated as an
administrative matter, the court Resolve unanimously to confirm the authority
given by the twelve (12) members of the Court then present to the Chief Justice
on January 20, 2001 to administer the oath of office of Vice President Gloria
Macapagal-Arroyo as President of the Philippines, at noon of January 20,
2001.
This resolution is without prejudice to the disposition of any justiciable case
that may be filed by a proper party."
Respondent Arroyo appointed members of her Cabinet as well as
ambassadors and special envoys.34 Recognition of respondent Arroyo's
government by foreign governments swiftly followed. On January 23, in a
reception or vin d' honneur at Malacaang, led by the Dean of the Diplomatic
Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats
recognized the government of respondent Arroyo.35 US President George W.
Bush gave the respondent a telephone call from the White House conveying
US recognition of her government.36
On January 24, Representative Feliciano Belmonte was elected new Speaker
of the House of Representatives.37 The House then passed Resolution No.
175 "expressing the full support of the House of Representatives to the
administration of Her Excellency, Gloria Macapagal-Arroyo, President of the
Philippines."38 It also approved Resolution No. 176 "expressing the support
of the House of Representatives to the assumption into office by Vice
President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, extending its congratulations and expressing its support for her
administration as a partner in the attainment of the nation's goals under the
Constitution."39
On January 26, the respondent signed into law the Solid Waste Management
Act.40 A few days later, she also signed into law the Political Advertising ban
and Fair Election Practices Act.41
On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr.,
as her Vice President.42 The next day, February 7, the Senate adopted
Resolution No. 82 confirming the nomination of Senator Guingona, Jr.43
Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmena
voted "yes" with reservations, citing as reason therefor the pending challenge
on the legitimacy of respondent Arroyo's presidency before the Supreme
Court. Senators Teresa Aquino-Oreta and Robert Barbers were absent.44 The
House of Representatives also approved Senator Guingona's nomination in
Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice President
two (2) days later.46
On February 7, the Senate passed Resolution No. 83 declaring that the
impeachment court is functus officio and has been terminated.47 Senator
Miriam Defensor-Santiago stated "for the record" that she voted against the
closure of the impeachment court on the grounds that the Senate had failed to
decide on the impeachment case and that the resolution left open the question
of whether Estrada was still qualified to run for another elective post.48
Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public
acceptance rating jacked up from 16% on January 20, 2001 to 38% on January
26, 2001.49 In another survey conducted by the ABS-CBN/SWS from
February 2-7, 2001, results showed that 61% of the Filipinos nationwide
accepted President Arroyo as replacement of petitioner Estrada. The survey
also revealed that President Arroyo is accepted by 60% in Metro Manila, by
also 60% in the balance of Luzon, by 71% in the Visayas, and 55% in
Mindanao. Her trust rating increased to 52%. Her presidency is accepted by
majorities in all social classes: 58% in the ABC or middle-to-upper classes,
64% in the D or mass class, and 54% among the E's or very poor class.50
After his fall from the pedestal of power, the petitioner's legal problems
appeared in clusters. Several cases previously filed against him in the Office
of the Ombudsman were set in motion. These are: (1) OMB Case No. 0-00-
1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft
and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against
Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and
corruption, bribery, perjury, serious misconduct, violation of the Code of
Conduct for Government Employees, etc; (3) OMB Case No. 0-00-1755 filed
by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for
plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct;
(4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on November
28, 2000 for malversation of public funds, illegal use of public funds and
property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera,
et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of
PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758
filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft and
corruption.
A special panel of investigators was forthwith created by the respondent
Ombudsman to investigate the charges against the petitioner. It is chaired by
Overall Deputy Ombudsman Margarito P. Gervasio with the following as
members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty.
Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued
an Order directing the petitioner to file his counter-affidavit and the affidavits
of his witnesses as well as other supporting documents in answer to the
aforementioned complaints against him.
Thus, the stage for the cases at bar was set. On February 5, petitioner filed
with this Court GR No. 146710-15, a petition for prohibition with a prayer for a
writ of preliminary injunction. It sought to enjoin the respondent Ombudsman
from "conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754,
1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed
in his office, until after the term of petitioner as President is over and only if
legally warranted." Thru another counsel, petitioner, on February 6, filed GR
No. 146738 for Quo Warranto. He prayed for judgment "confirming petitioner
to be the lawful and incumbent President of the Republic of the Philippines
temporarily unable to discharge the duties of his office, and declaring
respondent to have taken her oath as and to be holding the Office of the
President, only in an acting capacity pursuant to the provisions of the
Constitution." Acting on GR Nos. 146710-15, the Court, on the same day,
February 6, required the respondents "to comment thereon within a non-
extendible period expiring on 12 February 2001." On February 13, the Court
ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the
filing of the respondents' comments "on or before 8:00 a.m. of February 15."
On February 15, the consolidated cases were orally argued in a four-hour
hearing. Before the hearing, Chief Justice Davide, Jr.51 and Associate Justice
Artemio Panganiban52 recused themselves on motion of petitioner's counsel,
former Senator Rene A. Saguisag. They debunked the charge of counsel
Saguisag that they have "compromised themselves by indicating that they
have thrown their weight on one side" but nonetheless inhibited themselves.
Thereafter, the parties were given the short period of five (5) days to file their
memoranda and two (2) days to submit their simultaneous replies.
In a resolution dated February 20, acting on the urgent motion for copies of
resolution and press statement for "Gag Order" on respondent Ombudsman
filed by counsel for petitioner in G.R. No. 146738, the Court resolved:
"(1) to inform the parties that the Court did not issue a resolution on January
20, 2001 declaring the office of the President vacant and that neither did the
Chief Justice issue a press statement justifying the alleged resolution;
(2) to order the parties and especially their counsel who are officers of the
Court under pain of being cited for contempt to refrain from making any
comment or discussing in public the merits of the cases at bar while they are
still pending decision by the Court, and
(3) to issue a 30-day status quo order effective immediately enjoining the
respondent Ombudsman from resolving or deciding the criminal cases
pending investigation in his office against petitioner, Joseph E. Estrada and
subject of the cases at bar, it appearing from news reports that the respondent
Ombudsman may immediately resolve the cases against petitioner Joseph E.
Estrada seven (7) days after the hearing held on February 15, 2001, which
action will make the cases at bar moot and academic."53
The parties filed their replies on February 24. On this date, the cases at bar
were deemed submitted for decision.
The bedrock issues for resolution of this Court are:
I
Whether the petitions present a justiciable controversy.
II
Assuming that the petitions present a justiciable controversy, whether
petitioner Estrada is a President on leave while respondent Arroyo is an Acting
President.
III
Whether conviction in the impeachment proceedings is a condition precedent
for the criminal prosecution of petitioner Estrada. In the negative and on the
assumption that petitioner is still President, whether he is immune from
criminal prosecution.
IV
Whether the prosecution of petitioner Estrada should be enjoined on the
ground of prejudicial publicity.
We shall discuss the issues in seriatim.
I
Whether or not the cases
At bar involve a political question
Private respondents54 raise the threshold issue that the cases at bar pose a
political question, and hence, are beyond the jurisdiction of this Court to
decide. They contend that shorn of its embroideries, the cases at bar assail
the "legitimacy of the Arroyo administration." They stress that respondent
Arroyo ascended the presidency through people power; that she has already
taken her oath as the 14th President of the Republic; that she has exercised
the powers of the presidency and that she has been recognized by foreign
governments. They submit that these realities on ground constitute the political
thicket, which the Court cannot enter.
We reject private respondents' submission. To be sure, courts here and
abroad, have tried to lift the shroud on political question but its exact latitude
still splits the best of legal minds. Developed by the courts in the 20th century,
the political question doctrine which rests on the principle of separation of
powers and on prudential considerations, continue to be refined in the mills of
constitutional law.55 In the United States, the most authoritative guidelines to
determine whether a question is political were spelled out by Mr. Justice
Brennan in the 1962 case or Baker v. Carr,56 viz:
"x x x Prominent on the surface of any case held to involve a political question
is found a textually demonstrable constitutional commitment of the issue to a
coordinate political department or a lack of judicially discoverable and
manageable standards for resolving it, or the impossibility of deciding without
an initial policy determination of a kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already
made; or the potentiality of embarrassment from multifarious pronouncements
by various departments on question. Unless one of these formulations is
inextricable from the case at bar, there should be no dismissal for non
justiciability on the ground of a political question's presence. The doctrine of
which we treat is one of 'political questions', not of 'political cases'."
In the Philippine setting, this Court has been continuously confronted with
cases calling for a firmer delineation of the inner and outer perimeters of a
political question.57 Our leading case is Tanada v. Cuenco,58 where this
Court, through former Chief Justice Roberto Concepcion, held that political
questions refer "to those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive
branch of the government. It is concerned with issues dependent upon the
wisdom, not legality of a particular measure." To a great degree, the 1987
Constitution has narrowed the reach of the political question doctrine when it
expanded the power of judicial review of this court not only to settle actual
controversies involving rights which are legally demandable and enforceable
but also to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of government.59 Heretofore, the judiciary has focused on
the "thou shalt not's" of the Constitution directed against the exercise of its
jurisdiction.60 With the new provision, however, courts are given a greater
prerogative to determine what it can do to prevent grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government. Clearly, the new provision did not just grant the
Court power of doing nothing. In sync and symmetry with this intent are other
provisions of the 1987 Constitution trimming the so called political thicket.
Prominent of these provisions is section 18 of Article VII which empowers this
Court in limpid language to "x x x review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual basis of the proclamation of martial
law or the suspension of the privilege of the writ (of habeas corpus) or the
extension thereof x x x."
Respondents rely on the case of Lawyers League for a Better Philippines
and/or Oliver A. Lozano v. President Corazon C. Aquino, et al.61 and related
cases62 to support their thesis that since the cases at bar involve the
legitimacy of the government of respondent Arroyo, ergo, they present a
political question. A more cerebral reading of the cited cases will show that
they are inapplicable. In the cited cases, we held that the government of former
President Aquino was the result of a successful revolution by the sovereign
people, albeit a peaceful one. No less than the Freedom Constitution63
declared that the Aquino government was installed through a direct exercise
of the power of the Filipino people "in defiance of the provisions of the 1973
Constitution, as amended." In is familiar learning that the legitimacy of a
government sired by a successful revolution by people power is beyond judicial
scrutiny for that government automatically orbits out of the constitutional loop.
In checkered contrast, the government of respondent Arroyo is not
revolutionary in character. The oath that she took at the EDSA Shrine is the
oath under the 1987 Constitution.64 In her oath, she categorically swore to
preserve and defend the 1987 Constitution. Indeed, she has stressed that she
is discharging the powers of the presidency under the authority of the 1987
Constitution.1wphi1.nt
In fine, the legal distinction between EDSA People Power I EDSA People
Power II is clear. EDSA I involves the exercise of the people power of
revolution which overthrew the whole government. EDSA II is an exercise of
people power of freedom of speech and freedom of assembly to petition the
government for redress of grievances which only affected the office of the
President. EDSA I is extra constitutional and the legitimacy of the new
government that resulted from it cannot be the subject of judicial review, but
EDSA II is intra constitutional and the resignation of the sitting President that
it caused and the succession of the Vice President as President are subject to
judicial review. EDSA I presented a political question; EDSA II involves legal
questions. A brief discourse on freedom of speech and of the freedom of
assembly to petition the government for redress of grievance which are the
cutting edge of EDSA People Power II is not inappropriate.
Freedom of speech and the right of assembly are treasured by Filipinos. Denial
of these rights was one of the reasons of our 1898 revolution against Spain.
Our national hero, Jose P. Rizal, raised the clarion call for the recognition of
freedom of the press of the Filipinos and included it as among "the reforms
sine quibus non."65 The Malolos Constitution, which is the work of the
revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos shall
not be deprived (1) of the right to freely express his ideas or opinions, orally or
in writing, through the use of the press or other similar means; (2) of the right
of association for purposes of human life and which are not contrary to public
means; and (3) of the right to send petitions to the authorities, individually or
collectively." These fundamental rights were preserved when the United States
acquired jurisdiction over the Philippines. In the Instruction to the Second
Philippine Commission of April 7, 1900 issued by President McKinley, it is
specifically provided "that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble
and petition the Government for redress of grievances." The guaranty was
carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the
Jones Law, the Act of Congress of August 29, 1966.66
Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the
197368 Constitution. These rights are now safely ensconced in section 4,
Article III of the 1987 Constitution, viz:
"Sec. 4. No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to assemble
and petition the government for redress of grievances."
The indispensability of the people's freedom of speech and of assembly to
democracy is now self-evident. The reasons are well put by Emerson: first,
freedom of expression is essential as a means of assuring individual fulfillment;
second, it is an essential process for advancing knowledge and discovering
truth; third, it is essential to provide for participation in decision-making by all
members of society; and fourth, it is a method of achieving a more adaptable
and hence, a more stable community of maintaining the precarious balance
between healthy cleavage and necessary consensus."69 In this sense,
freedom of speech and of assembly provides a framework in which the "conflict
necessary to the progress of a society can take place without destroying the
society."70 In Hague v. Committee for Industrial Organization,71 this function
of free speech and assembly was echoed in the amicus curiae filed by the Bill
of Rights Committee of the American Bar Association which emphasized that
"the basis of the right of assembly is the substitution of the expression of
opinion and belief by talk rather than force; and this means talk for all and by
all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court
similar stressed that " it should be clear even to those with intellectual deficits
that when the sovereign people assemble to petition for redress of grievances,
all should listen. For in a democracy, it is the people who count; those who are
deaf to their grievances are ciphers."
Needless to state, the cases at bar pose legal and not political questions. The
principal issues for resolution require the proper interpretation of certain
provisions in the 1987 Constitution, notably section 1 of Article II,74 and
section 875 of Article VII, and the allocation of governmental powers under
section 1176 of Article VII. The issues likewise call for a ruling on the scope of
presidential immunity from suit. They also involve the correct calibration of the
right of petitioner against prejudicial publicity. As early as the 1803 case of
Marbury v. Madison,77 the doctrine has been laid down that "it is emphatically
the province and duty of the judicial department to say what the law is . . ."
Thus, respondent's in vocation of the doctrine of political question is but a foray
in the dark.
II
Whether or not the petitioner
Resigned as President
We now slide to the second issue. None of the parties considered this issue
as posing a political question. Indeed, it involves a legal question whose factual
ingredient is determinable from the records of the case and by resort to judicial
notice. Petitioner denies he resigned as President or that he suffers from a
permanent disability. Hence, he submits that the office of the President was
not vacant when respondent Arroyo took her oath as President.
The issue brings under the microscope the meaning of section 8, Article VII of
the Constitution which provides:
"Sec. 8. In case of death, permanent disability, removal from office or
resignation of the President, the Vice President shall become the President to
serve the unexpired term. In case of death, permanent disability, removal from
office, or resignation of both the President and Vice President, the President
of the Senate or, in case of his inability, the Speaker of the House of
Representatives, shall then act as President until the President or Vice
President shall have been elected and qualified.
x x x."
The issue then is whether the petitioner resigned as President or should be
considered resigned as of January 20, 2001 when respondent took her oath
as the 14th President of the Public. Resignation is not a high level legal
abstraction. It is a factual question and its elements are beyond quibble: there
must be an intent to resign and the intent must be coupled by acts of
relinquishment.78 The validity of a resignation is not government by any formal
requirement as to form. It can be oral. It can be written. It can be express. It
can be implied. As long as the resignation is clear, it must be given legal effect.
In the cases at bar, the facts show that petitioner did not write any formal letter
of resignation before he evacuated Malacaang Palace in the afternoon of
January 20, 2001 after the oath-taking of respondent Arroyo. Consequently,
whether or not petitioner resigned has to be determined from his act and
omissions before, during and after January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and circumstantial evidence bearing a
material relevance on the issue.
Using this totality test, we hold that petitioner resigned as President.
To appreciate the public pressure that led to the resignation of the petitioner,
it is important to follow the succession of events after the expos of Governor
Singson. The Senate Blue Ribbon Committee investigated. The more detailed
revelations of petitioner's alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of Impeachment filed in
the House of Representatives which initially was given a near cipher chance
of succeeding snowballed. In express speed, it gained the signatures of 115
representatives or more than 1/3 of the House of Representatives. Soon,
petitioner's powerful political allies began deserting him. Respondent Arroyo
quit as Secretary of Social Welfare. Senate President Drilon and former
Speaker Villar defected with 47 representatives in tow. Then, his respected
senior economic advisers resigned together with his Secretary of Trade and
Industry.
As the political isolation of the petitioner worsened, the people's call for his
resignation intensified. The call reached a new crescendo when the eleven
(11) members of the impeachment tribunal refused to open the second
envelope. It sent the people to paroxysms of outrage. Before the night of
January 16 was over, the EDSA Shrine was swarming with people crying for
redress of their grievance. Their number grew exponentially. Rallies and
demonstration quickly spread to the countryside like a brush fire.
As events approached January 20, we can have an authoritative window on
the state of mind of the petitioner. The window is provided in the "Final Days
of Joseph Ejercito Estrada," the diary of Executive Secretary Angara serialized
in the Philippine Daily Inquirer.79 The Angara Diary reveals that in the morning
of January 19, petitioner's loyal advisers were worried about the swelling of
the crowd at EDSA, hence, they decided to create an ad hoc committee to
handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary
Angara into his small office at the presidential residence and exclaimed: "Ed,
seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has
defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a
snap presidential election and stressed he would not be a candidate. The
proposal for a snap election for president in May where he would not be a
candidate is an indicium that petitioner had intended to give up the presidency
even at that time. At 3:00 p.m., General Reyes joined the sea of EDSA
demonstrators demanding the resignation of the petitioner and dramatically
announced the AFP's withdrawal of support from the petitioner and their
pledge of support to respondent Arroyo. The seismic shift of support left
petitioner weak as a president. According to Secretary Angara, he asked
Senator Pimentel to advise petitioner to consider the option of "dignified exit
or resignation."81 Petitioner did not disagree but listened intently.82 The sky
was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel repeated to
the petitioner the urgency of making a graceful and dignified exit. He gave the
proposal a sweetener by saying that petitioner would be allowed to go abroad
with enough funds to support him and his family.83 Significantly, the petitioner
expressed no objection to the suggestion for a graceful and dignified exit but
said he would never leave the country.84 At 10:00 p.m., petitioner revealed to
Secretary Angara, "Ed, Angie (Reyes) guaranteed that I would have five days
to a week in the palace."85 This is proof that petitioner had reconciled himself
to the reality that he had to resign. His mind was already concerned with the
five-day grace period he could stay in the palace. It was a matter of time.
The pressure continued piling up. By 11:00 p.m., former President Ramos
called up Secretary Angara and requested, "Ed, magtulungan tayo para
magkaroon tayo ng (let's cooperate to ensure a) peaceful and orderly transfer
of power."86 There was no defiance to the request. Secretary Angara readily
agreed. Again, we note that at this stage, the problem was already about a
peaceful and orderly transfer of power. The resignation of the petitioner was
implied.
The first negotiation for a peaceful and orderly transfer of power immediately
started at 12:20 a.m. of January 20, that fateful Saturday. The negotiation was
limited to three (3) points: (1) the transition period of five days after the
petitioner's resignation; (2) the guarantee of the safety of the petitioner and his
family, and (3) the agreement to open the second envelope to vindicate the
name of the petitioner.87 Again, we note that the resignation of petitioner was
not a disputed point. The petitioner cannot feign ignorance of this fact.
According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the
three points and the following entry in the Angara Diary shows the reaction of
the petitioner, viz:
"x x x
I explain what happened during the first round of negotiations. The President
immediately stresses that he just wants the five-day period promised by
Reyes, as well as to open the second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.
The President says. "Pagod na pagod na ako. Ayoko na masyado nang
masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I
don't want any more of this it's too painful. I'm tired of the red tape, the
bureaucracy, the intrigue.)
I just want to clear my name, then I will go."88
Again, this is high grade evidence that the petitioner has resigned. The intent
to resign is clear when he said "x x x Ayoko na masyado nang masakit." "Ayoko
na" are words of resignation.
The second round of negotiation resumed at 7:30 a.m. According to the
Angara Diary, the following happened:
"Opposition's deal
7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagal's
spokesperson) Rene Corona. For this round, I am accompanied by Dondon
Bagatsing and Macel.
Rene pulls out a document titled "Negotiating Points." It reads:
'1. The President shall sign a resignation document within the day, 20 January
2001, that will be effective on Wednesday, 24 January 2001, on which day the
Vice President will assume the Presidency of the Republic of the Philippines.
2. Beginning to day, 20 January 2001, the transition process for the
assumption of the new administration shall commence, and persons
designated by the Vice President to various positions and offices of the
government shall start their orientation activities in coordination with the
incumbent officials concerned.
3. The Armed Forces of the Philippines and the Philippine National Police shall
function under the Vice President as national military and police authority
effective immediately.
4. The Armed Forced of the Philippines, through its Chief of Staff, shall
guarantee the security of the President and his family as approved by the
national military and police authority (Vice President).
5. It is to be noted that the Senate will open the second envelope in connection
with the alleged savings account of the President in the Equitable PCI Bank in
accordance with the rules of the Senate, pursuant to the request to the Senate
President.
Our deal
We bring out, too, our discussion draft which reads:
The undersigned parties, for and in behalf of their respective principals, agree
and undertake as follows:
'1. A transition will occur and take place on Wednesday, 24 January 2001, at
which time President Joseph Ejercito Estrada will turn over the presidency to
Vice President Gloria Macapagal-Arroyo.
'2. In return, President Estrada and his families are guaranteed security and
safety of their person and property throughout their natural lifetimes. Likewise,
President Estrada and his families are guarantee freedom from persecution or
retaliation from government and the private sector throughout their natural
lifetimes.
This commitment shall be guaranteed by the Armed Forces of the Philippines
(AFP) through the Chief of Staff, as approved by the national military and
police authorities Vice President (Macapagal).
'3. Both parties shall endeavor to ensure that the Senate sitting as an
impeachment court will authorize the opening of the second envelope in the
impeachment trial as proof that the subject savings account does not belong
to President Estrada.
'4. During the five-day transition period between 20 January 2001 and 24
January 2001 (the 'Transition Period"), the incoming Cabinet members shall
receive an appropriate briefing from the outgoing Cabinet officials as part of
the orientation program.
During the Transition Period, the AFP and the Philippine National Police (PNP)
shall function Vice President (Macapagal) as national military and police
authorities.
Both parties hereto agree that the AFP chief of staff and PNP director general
shall obtain all the necessary signatures as affixed to this agreement and
insure faithful implementation and observance thereof.
Vice President Gloria Macapagal-Arroyo shall issue a public statement in the
form and tenor provided for in "Annex A" heretofore attached to this
agreement."89
The second round of negotiation cements the reading that the petitioner has
resigned. It will be noted that during this second round of negotiation, the
resignation of the petitioner was again treated as a given fact. The only
unsettled points at that time were the measures to be undertaken by the parties
during and after the transition period.
According to Secretary Angara, the draft agreement, which was premised on
the resignation of the petitioner was further refined. It was then, signed by their
side and he was ready to fax it to General Reyes and Senator Pimentel to
await the signature of the United Opposition. However, the signing by the party
of the respondent Arroyo was aborted by her oath-taking. The Angara diary
narrates the fateful events, viz;90
"xxx
11:00 a.m. Between General Reyes and myself, there is a firm agreement
on the five points to effect a peaceful transition. I can hear the general clearing
all these points with a group he is with. I hear voices in the background.
Agreement.
The agreement starts: 1. The President shall resign today, 20 January 2001,
which resignation shall be effective on 24 January 2001, on which day the Vice
President will assume the presidency of the Republic of the Philippines.
xxx
The rest of the agreement follows:
2. The transition process for the assumption of the new administration shall
commence on 20 January 2001, wherein persons designated by the Vice
President to various government positions shall start orientation activities with
incumbent officials.
'3. The Armed Forces of the Philippines through its Chief of Staff, shall
guarantee the safety and security of the President and his families throughout
their natural lifetimes as approved by the national military and police authority
Vice President.
'4. The AFP and the Philippine National Police (PNP) shall function under the
Vice President as national military and police authorities.
'5. Both parties request the impeachment court to open the second envelope
in the impeachment trial, the contents of which shall be offered as proof that
the subject savings account does not belong to the President.
The Vice President shall issue a public statement in the form and tenor
provided for in Annex "B" heretofore attached to this agreement.
11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our
agreement, signed by our side and awaiting the signature of the United
opposition.
And then it happens. General Reyes calls me to say that the Supreme Court
has decided that Gloria Macapagal-Arroyo is President and will be sworn in at
12 noon.
'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't
you wait? What about the agreement)?' I asked.
Reyes answered: 'Wala na, sir (it's over, sir).'
I ask him: Di yung transition period, moot and academic na?'
And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're
deleting the part).'
Contrary to subsequent reports, I do not react and say that there was a double
cross.
But I immediately instruct Macel to delete the first provision on resignation
since this matter is already moot and academic. Within moments, Macel
erases the first provision and faxes the documents, which have been signed
by myself, Dondon and Macel, to Nene Pimentel and General Reyes.
I direct Demaree Ravel to rush the original document to General Reyes for the
signatures of the other side, as it is important that the provisions on security,
at least, should be respected.
I then advise the President that the Supreme Court has ruled that Chief Justice
Davide will administer the oath to Gloria at 12 noon.
The President is too stunned for words:
Final meal
12 noon Gloria takes her oath as president of the Republic of the Philippines.
12:20 p.m. The PSG distributes firearms to some people inside the
compound.
The president is having his final meal at the presidential Residence with the
few friends and Cabinet members who have gathered.
By this time, demonstrators have already broken down the first line of defense
at Mendiola. Only the PSG is there to protect the Palace, since the police and
military have already withdrawn their support for the President.
1 p.m. The President's personal staff is rushing to pack as many of the
Estrada family's personal possessions as they can.
During lunch, Ronnie Puno mentions that the president needs to release a final
statement before leaving Malacaang.
The statement reads: At twelve o'clock noon today, Vice President Gloria
Macapagal-Arroyo took her oath as President of the Republic of the
Philippines. While along with many other legal minds of our country, I have
strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the
restoration of unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of the
presidency of this country, for the sake of peace and in order to begin the
healing process of our nation. I leave the Palace of our people with gratitude
for the opportunities given to me for service to our people. I will not shirk from
any future challenges that may come ahead in the same service of our country.
I call on all my supporters and followers to join me in the promotion of a
constructive national spirit of reconciliation and solidarity.
May the Almighty bless our country and our beloved people.
MABUHAY!"'
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner cannot be doubted. It was
confirmed by his leaving Malacaang. In the press release containing his final
statement, (1) he acknowledged the oath-taking of the respondent as
President of the Republic albeit with reservation about its legality; (2) he
emphasized he was leaving the Palace, the seat of the presidency, for the
sake of peace and in order to begin the healing process of our nation. He did
not say he was leaving the Palace due to any kind inability and that he was
going to re-assume the presidency as soon as the disability disappears: (3) he
expressed his gratitude to the people for the opportunity to serve them. Without
doubt, he was referring to the past opportunity given him to serve the people
as President (4) he assured that he will not shirk from any future challenge that
may come ahead in the same service of our country. Petitioner's reference is
to a future challenge after occupying the office of the president which he has
given up; and (5) he called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity. Certainly, the
national spirit of reconciliation and solidarity could not be attained if he did not
give up the presidency. The press release was petitioner's valedictory, his final
act of farewell. His presidency is now in the part tense.
It is, however, urged that the petitioner did not resign but only took a temporary
leave dated January 20, 2001 of the petitioner sent to Senate President
Pimentel and Speaker Fuentebella is cited. Again, we refer to the said letter,
viz:
"Sir.
By virtue of the provisions of Section II, Article VII of the Constitution, I am
hereby transmitting this declaration that I am unable to exercise the powers
and duties of my office. By operation of law and the Constitution, the Vice
President shall be the Acting president.
(Sgd.) Joseph Ejercito Estrada"
To say the least, the above letter is wrapped in mystery.91 The pleadings filed
by the petitioner in the cases at bar did not discuss, may even intimate, the
circumstances that led to its preparation. Neither did the counsel of the
petitioner reveal to the Court these circumstances during the oral argument. It
strikes the Court as strange that the letter, despite its legal value, was never
referred to by the petitioner during the week-long crisis. To be sure, there was
not the slightest hint of its existence when he issued his final press release. It
was all too easy for him to tell the Filipino people in his press release that he
was temporarily unable to govern and that he was leaving the reins of
government to respondent Arroyo for the time bearing. Under any
circumstance, however, the mysterious letter cannot negate the resignation of
the petitioner. If it was prepared before the press release of the petitioner
clearly as a later act. If, however, it was prepared after the press released, still,
it commands scant legal significance. Petitioner's resignation from the
presidency cannot be the subject of a changing caprice nor of a whimsical will
especially if the resignation is the result of his reputation by the people. There
is another reason why this Court cannot given any legal significance to
petitioner's letter and this shall be discussed in issue number III of this
Decision.
After petitioner contended that as a matter of fact he did not resign, he also
argues that he could not resign as a matter of law. He relies on section 12 of
RA No. 3019, otherwise known as the Anti-graft and Corrupt Practices Act,
which allegedly prohibits his resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending an
investigation, criminals or administrative, or pending a prosecution against
him, for any offense under this Act or under the provisions of the Revised Penal
Code on bribery."
A reading of the legislative history of RA No. 3019 will hardly provide any
comfort to the petitioner. RA No. 3019 originated form Senate Bill No. 293. The
original draft of the bill, when it was submitted to the Senate, did not contain a
provision similar to section 12 of the law as it now stands. However, in his
sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved
to propose during the period of amendments the inclusion of a provision to the
effect that no public official who is under prosecution for any act of graft or
corruption, or is under administrative investigation, shall be allowed to
voluntarily resign or retire."92 During the period of amendments, the following
provision was inserted as section 15:
"Sec. 15. Termination of office No public official shall be allowed to resign or
retire pending an investigation, criminal or administrative, or pending a
prosecution against him, for any offense under the Act or under the provisions
of the Revised Penal Code on bribery.
The separation or cessation of a public official form office shall not be a bar to
his prosecution under this Act for an offense committed during his
incumbency."93
The bill was vetoed by then President Carlos P. Garcia who questioned the
legality of the second paragraph of the provision and insisted that the
President's immunity should extend after his tenure.
Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was
thereafter passed. Section 15 above became section 13 under the new bill,
but the deliberations on this particular provision mainly focused on the
immunity of the President, which was one of the reasons for the veto of the
original bill. There was hardly any debate on the prohibition against the
resignation or retirement of a public official with pending criminal and
administrative cases against him. Be that as it may, the intent of the law ought
to be obvious. It is to prevent the act of resignation or retirement from being
used by a public official as a protective shield to stop the investigation of a
pending criminal or administrative case against him and to prevent his
prosecution under the Anti-Graft Law or prosecution for bribery under the
Revised Penal Code. To be sure, no person can be compelled to render
service for that would be a violation of his constitutional right.94 A public official
has the right not to serve if he really wants to retire or resign. Nevertheless, if
at the time he resigns or retires, a public official is facing administrative or
criminal investigation or prosecution, such resignation or retirement will not
cause the dismissal of the criminal or administrative proceedings against him.
He cannot use his resignation or retirement to avoid prosecution.
There is another reason why petitioner's contention should be rejected. In the
cases at bar, the records show that when petitioner resigned on January 20,
2001, the cases filed against him before the Ombudsman were OMB Case
Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While
these cases have been filed, the respondent Ombudsman refrained from
conducting the preliminary investigation of the petitioner for the reason that as
the sitting President then, petitioner was immune from suit. Technically, the
said cases cannot be considered as pending for the Ombudsman lacked
jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be
invoked by the petitioner for it contemplates of cases whose investigation or
prosecution do not suffer from any insuperable legal obstacle like the immunity
from suit of a sitting President.
Petitioner contends that the impeachment proceeding is an administrative
investigation that, under section 12 of RA 3019, bars him from resigning. We
hold otherwise. The exact nature of an impeachment proceeding is debatable.
But even assuming arguendo that it is an administrative proceeding, it can not
be considered pending at the time petitioner resigned because the process
already broke down when a majority of the senator-judges voted against the
opening of the second envelope, the public and private prosecutors walked
out, the public prosecutors filed their Manifestation of Withdrawal of
Appearance, and the proceedings were postponed indefinitely. There was, in
effect, no impeachment case pending against petitioner when he resigned.
III
Whether or not the petitioner Is only temporarily unable to Act as President.
We shall now tackle the contention of the petitioner that he is merely
temporarily unable to perform the powers and duties of the presidency, and
hence is a President on leave. As aforestated, the inability claim is contained
in the January 20, 2001 letter of petitioner sent on the same day to Senate
President Pimentel and Speaker Fuentebella.
Petitioner postulates that respondent Arroyo as Vice President has no power
to adjudge the inability of the petitioner to discharge the powers and duties of
the presidency. His significant submittal is that "Congress has the ultimate
authority under the Constitution to determine whether the President is
incapable of performing his functions in the manner provided for in section 11
of article VII."95 This contention is the centerpiece of petitioner's stance that
he is a President on leave and respondent Arroyo is only an Acting President.
An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate
and the Speaker of the House of Representatives his written declaration that
he is unable to discharge the powers and duties of his office, and until he
transmits to them a written declaration to the contrary, such powers and duties
shall be discharged by the Vice-President as Acting President.
Whenever a majority of all the Members of the Cabinet transmit to the
President of the Senate and to the Speaker of the House of Representatives
their written declaration that the President is unable to discharge the powers
and duties of his office, the Vice-President shall immediately assume the
powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President of the Senate and
to the Speaker of the House of Representatives his written declaration that no
inability exists, he shall reassume the powers and duties of his office.
Meanwhile, should a majority of all the Members of the Cabinet transmit within
five days to the President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is unable to
discharge the powers and duties of his office, the Congress shall decide the
issue. For that purpose, the Congress shall convene, if it is not in session,
within forty-eight hours, in accordance with its rules and without need of call.
If the Congress, within ten days after receipt of the last written declaration, or,
if not in session, within twelve days after it is required to assemble, determines
by a two-thirds vote of both Houses, voting separately, that the President is
unable to discharge the powers and duties of his office, the Vice-President
shall act as President; otherwise, the President shall continue exercising the
powers and duties of his office."
That is the law. Now, the operative facts:
Petitioner, on January 20, 2001, sent the above letter claiming inability to the
Senate President and Speaker of the House;
Unaware of the letter, respondent Arroyo took her oath of office as President
on January 20, 2001 at about 12:30 p.m.;
Despite receipt of the letter, the House of Representatives passed on January
24, 2001 House Resolution No. 175;96
On the same date, the House of the Representatives passed House
Resolution No. 17697 which states:
"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE
PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS
AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A
PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE
CONSTITUTION
WHEREAS, as a consequence of the people's loss of confidence on the ability
of former President Joseph Ejercito Estrada to effectively govern, the Armed
Forces of the Philippines, the Philippine National Police and majority of his
cabinet had withdrawn support from him;
WHEREAS, upon authority of an en banc resolution of the Supreme Court,
Vice President Gloria Macapagal-Arroyo was sworn in as President of the
Philippines on 20 January 2001 before Chief Justice Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of the international community
had extended their recognition to Her Excellency, Gloria Macapagal-Arroyo as
President of the Republic of the Philippines;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has
espoused a policy of national healing and reconciliation with justice for the
purpose of national unity and development;
WHEREAS, it is axiomatic that the obligations of the government cannot be
achieved if it is divided, thus by reason of the constitutional duty of the House
of Representatives as an institution and that of the individual members thereof
of fealty to the supreme will of the people, the House of Representatives must
ensure to the people a stable, continuing government and therefore must
remove all obstacles to the attainment thereof;
WHEREAS, it is a concomitant duty of the House of Representatives to exert
all efforts to unify the nation, to eliminate fractious tension, to heal social and
political wounds, and to be an instrument of national reconciliation and
solidarity as it is a direct representative of the various segments of the whole
nation;
WHEREAS, without surrending its independence, it is vital for the attainment
of all the foregoing, for the House of Representatives to extend its support and
collaboration to the administration of Her Excellency, President Gloria
Macapagal-Arroyo, and to be a constructive partner in nation-building, the
national interest demanding no less: Now, therefore, be it
Resolved by the House of Representatives, To express its support to the
assumption into office by Vice President Gloria Macapagal-Arroyo as
President of the Republic of the Philippines, to extend its congratulations and
to express its support for her administration as a partner in the attainment of
the Nation's goals under the Constitution.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on January 24,
2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
On February 7, 2001, the House of the Representatives passed House
Resolution No. 17898 which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-
ARROYO'S NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS
VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is a vacancy in the Office of the Vice President due to the
assumption to the Presidency of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President
in the event of such vacancy shall nominate a Vice President from among the
members of the Senate and the House of Representatives who shall assume
office upon confirmation by a majority vote of all members of both Houses
voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has
nominated Senate Minority Leader Teofisto T. Guingona Jr., to the position of
Vice President of the Republic of the Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed
with integrity, competence and courage; who has served the Filipino people
with dedicated responsibility and patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of
true statesmanship, having served the government in various capacities,
among others, as Delegate to the Constitutional Convention, Chairman of the
Commission on Audit, Executive Secretary, Secretary of Justice, Senator of
the Philippines qualities which merit his nomination to the position of Vice
President of the Republic: Now, therefore, be it
Resolved as it is hereby resolved by the House of Representatives, That the
House of Representatives confirms the nomination of Senator Teofisto T.
Guingona, Jr. as the Vice President of the Republic of the Philippines.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on February 7,
2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12)
members of the Senate signed the following:
"RESOLUTION
WHEREAS, the recent transition in government offers the nation an
opportunity for meaningful change and challenge;
WHEREAS, to attain desired changes and overcome awesome challenges the
nation needs unity of purpose and resolve cohesive resolute (sic) will;
WHEREAS, the Senate of the Philippines has been the forum for vital
legislative measures in unity despite diversities in perspectives;
WHEREFORE, we recognize and express support to the new government of
President Gloria Macapagal-Arroyo and resolve to discharge and overcome
the nation's challenges." 99
On February 7, the Senate also passed Senate Resolution No. 82100 which
states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL
ARROYO'S NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is vacancy in the Office of the Vice President due to the
assumption to the Presidency of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President
in the event of such vacancy shall nominate a Vice President from among the
members of the Senate and the House of Representatives who shall assume
office upon confirmation by a majority vote of all members of both Houses
voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has
nominated Senate Minority Leader Teofisto T. Guingona, Jr. to the position of
Vice President of the Republic of the Philippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with
integrity, competence and courage; who has served the Filipino people with
dedicated responsibility and patriotism;
WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true
statemanship, having served the government in various capacities, among
others, as Delegate to the Constitutional Convention, Chairman of the
Commission on Audit, Executive Secretary, Secretary of Justice, Senator of
the land - which qualities merit his nomination to the position of Vice President
of the Republic: Now, therefore, be it
Resolved, as it is hereby resolved, That the Senate confirm the nomination of
Sen. Teofisto T. Guingona, Jr. as Vice President of the Republic of the
Philippines.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
On the same date, February 7, the Senate likewise passed Senate Resolution
No. 83101 which states:
"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS
FUNCTUS OFFICIO
Resolved, as it is hereby resolved. That the Senate recognize that the
Impeachment Court is functus officio and has been terminated.
Resolved, further, That the Journals of the Impeachment Court on Monday,
January 15, Tuesday, January 16 and Wednesday, January 17, 2001 be
considered approved.
Resolved, further, That the records of the Impeachment Court including the
"second envelope" be transferred to the Archives of the Senate for proper
safekeeping and preservation in accordance with the Rules of the Senate.
Disposition and retrieval thereof shall be made only upon written approval of
the Senate president.
Resolved, finally. That all parties concerned be furnished copies of this
Resolution.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL, JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the
existence of vacancy in the Senate and calling on the COMELEC to fill up such
vacancy through election to be held simultaneously with the regular election
on May 14, 2001 and the Senatorial candidate garnering the thirteenth (13th)
highest number of votes shall serve only for the unexpired term of Senator
Teofisto T. Guingona, Jr.'
(6) Both houses of Congress started sending bills to be signed into law by
respondent Arroyo as President.
(7) Despite the lapse of time and still without any functioning Cabinet, without
any recognition from any sector of government, and without any support from
the Armed Forces of the Philippines and the Philippine National Police, the
petitioner continues to claim that his inability to govern is only momentary.
What leaps to the eye from these irrefutable facts is that both houses of
Congress have recognized respondent Arroyo as the President. Implicitly clear
in that recognition is the premise that the inability of petitioner Estrada. Is no
longer temporary. Congress has clearly rejected petitioner's claim of inability.
The question is whether this Court has jurisdiction to review the claim of
temporary inability of petitioner Estrada and thereafter revise the decision of
both Houses of Congress recognizing respondent Arroyo as president of the
Philippines. Following Taada v. Cuenco,102 we hold that this Court cannot
exercise its judicial power or this is an issue "in regard to which full
discretionary authority has been delegated to the Legislative xxx branch of the
government." Or to use the language in Baker vs. Carr,103 there is a "textually
demonstrable or a lack of judicially discoverable and manageable standards
for resolving it." Clearly, the Court cannot pass upon petitioner's claim of
inability to discharge the power and duties of the presidency. The question is
political in nature and addressed solely to Congress by constitutional fiat. It is
a political issue, which cannot be decided by this Court without transgressing
the principle of separation of powers.
In fine, even if the petitioner can prove that he did not resign, still, he cannot
successfully claim that he is a President on leave on the ground that he is
merely unable to govern temporarily. That claim has been laid to rest by
Congress and the decision that respondent Arroyo is the de jure, president
made by a co-equal branch of government cannot be reviewed by this Court.
IV
Whether or not the petitioner enjoys immunity from suit.
Assuming he enjoys immunity, the extent of the immunity
Petitioner Estrada makes two submissions: first, the cases filed against him
before the respondent Ombudsman should be prohibited because he has not
been convicted in the impeachment proceedings against him; and second, he
enjoys immunity from all kinds of suit, whether criminal or civil.
Before resolving petitioner's contentions, a revisit of our legal history executive
immunity will be most enlightening. The doctrine of executive immunity in this
jurisdiction emerged as a case law. In the 1910 case of Forbes, etc. vs.
Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a Chinese citizen, sued
petitioner W. Cameron Forbes, Governor-General of the Philippine Islands.
J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret
Service of the City of Manila, respectively, for damages for allegedly conspiring
to deport him to China. In granting a writ of prohibition, this Court, speaking
thru Mr. Justice Johnson, held:
" The principle of nonliability, as herein enunciated, does not mean that the
judiciary has no authority to touch the acts of the Governor-General; that he
may, under cover of his office, do what he will, unimpeded and unrestrained.
Such a construction would mean that tyranny, under the guise of the execution
of the law, could walk defiantly abroad, destroying rights of person and of
property, wholly free from interference of courts or legislatures. This does not
mean, either that a person injured by the executive authority by an act
unjustifiable under the law has n remedy, but must submit in silence. On the
contrary, it means, simply, that the governors-general, like the judges if the
courts and the members of the Legislature, may not be personally mulcted in
civil damages for the consequences of an act executed in the performance of
his official duties. The judiciary has full power to, and will, when the mater is
properly presented to it and the occasion justly warrants it, declare an act of
the Governor-General illegal and void and place as nearly as possible in status
quo any person who has been deprived his liberty or his property by such act.
This remedy is assured to every person, however humble or of whatever
country, when his personal or property rights have been invaded, even by the
highest authority of the state. The thing which the judiciary can not do is mulct
the Governor-General personally in damages which result from the
performance of his official duty, any more than it can a member of the
Philippine Commission of the Philippine Assembly. Public policy forbids it.
Neither does this principle of nonliability mean that the chief executive may not
be personally sued at all in relation to acts which he claims to perform as such
official. On the contrary, it clearly appears from the discussion heretofore had,
particularly that portion which touched the liability of judges and drew an
analogy between such liability and that of the Governor-General, that the latter
is liable when he acts in a case so plainly outside of his power and authority
that he can not be said to have exercised discretion in determining whether or
not he had the right to act. What is held here is that he will be protected from
personal liability for damages not only when he acts within his authority, but
also when he is without authority, provided he actually used discretion and
judgement, that is, the judicial faculty, in determining whether he had authority
to act or not. In other words, in determining the question of his authority. If he
decide wrongly, he is still protected provided the question of his authority was
one over which two men, reasonably qualified for that position, might honestly
differ; but he s not protected if the lack of authority to act is so plain that two
such men could not honestly differ over its determination. In such case, be
acts, not as Governor-General but as a private individual, and as such must
answer for the consequences of his act."
Mr. Justice Johnson underscored the consequences if the Chief Executive was
not granted immunity from suit, viz "xxx. Action upon important matters of state
delayed; the time and substance of the chief executive spent in wrangling
litigation; disrespect engendered for the person of one of the highest officials
of the state and for the office he occupies; a tendency to unrest and disorder
resulting in a way, in distrust as to the integrity of government itself."105
Our 1935 Constitution took effect but it did not contain any specific provision
on executive immunity. Then came the tumult of the martial law years under
the late President Ferdinand E. Marcos and the 1973 Constitution was born.
In 1981, it was amended and one of the amendments involved executive
immunity. Section 17, Article VII stated:
"The President shall be immune from suit during his tenure. Thereafter, no suit
whatsoever shall lie for official acts done by him or by others pursuant to his
specific orders during his tenure.
The immunities herein provided shall apply to the incumbent President
referred to in Article XVII of this Constitution.
In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential
Immunity and All The King's Men: The Law of Privilege As a Defense To
Actions For Damages,"106 petitioner's learned counsel, former Dean of the
UP College of Law, Atty. Pacificao Agabin, brightened the modifications
effected by this constitutional amendment on the existing law on executive
privilege. To quote his disquisition:
"In the Philippines, though, we sought to do the Americans one better by
enlarging and fortifying the absolute immunity concept. First, we extended it to
shield the President not only form civil claims but also from criminal cases and
other claims. Second, we enlarged its scope so that it would cover even acts
of the President outside the scope of official duties. And third, we broadened
its coverage so as to include not only the President but also other persons, be
they government officials or private individuals, who acted upon orders of the
President. It can be said that at that point most of us were suffering from AIDS
(or absolute immunity defense syndrome)."
The Opposition in the then Batasan Pambansa sought the repeal of this
Marcosian concept of executive immunity in the 1973 Constitution. The move
was led by them Member of Parliament, now Secretary of Finance, Alberto
Romulo, who argued that the after incumbency immunity granted to President
Marcos violated the principle that a public office is a public trust. He denounced
the immunity as a return to the anachronism "the king can do no wrong."107
The effort failed.
The 1973 Constitution ceased to exist when President Marcos was ousted
from office by the People Power revolution in 1986. When the 1987
Constitution was crafted, its framers did not reenact the executive immunity
provision of the 1973 Constitution. The following explanation was given by
delegate J. Bernas vis:108
"Mr. Suarez. Thank you.
The last question is with reference to the Committee's omitting in the draft
proposal the immunity provision for the President. I agree with Commissioner
Nolledo that the Committee did very well in striking out second sentence, at
the very least, of the original provision on immunity from suit under the 1973
Constitution. But would the Committee members not agree to a restoration of
at least the first sentence that the President shall be immune from suit during
his tenure, considering that if we do not provide him that kind of an immunity,
he might be spending all his time facing litigation's, as the President-in-exile in
Hawaii is now facing litigation's almost daily?
Fr. Bernas. The reason for the omission is that we consider it understood in
present jurisprudence that during his tenure he is immune from suit.
Mr. Suarez. So there is no need to express it here.
Fr. Bernas. There is no need. It was that way before. The only innovation made
by the 1973 Constitution was to make that explicit and to add other things.
Mr. Suarez. On that understanding, I will not press for any more query, Madam
President.
I think the Commissioner for the clarifications."
We shall now rule on the contentions of petitioner in the light of this history.
We reject his argument that he cannot be prosecuted for the reason that he
must first be convicted in the impeachment proceedings. The impeachment
trial of petitioner Estrada was aborted by the walkout of the prosecutors and
by the events that led to his loss of the presidency. Indeed, on February 7,
2001, the Senate passed Senate Resolution No. 83 "Recognizing that the
Impeachment Court is Functus Officio."109 Since, the Impeachment Court is
now functus officio, it is untenable for petitioner to demand that he should first
be impeached and then convicted before he can be prosecuted. The plea if
granted, would put a perpetual bar against his prosecution. Such a submission
has nothing to commend itself for it will place him in a better situation than a
non-sitting President who has not been subjected to impeachment
proceedings and yet can be the object of a criminal prosecution. To be sure,
the debates in the Constitutional Commission make it clear that when
impeachment proceedings have become moot due to the resignation of the
President, the proper criminal and civil cases may already be filed against him,
viz:110
"xxx
Mr. Aquino. On another point, if an impeachment proceeding has been filed
against the President, for example, and the President resigns before
judgement of conviction has been rendered by the impeachment court or by
the body, how does it affect the impeachment proceeding? Will it be
necessarily dropped?
Mr. Romulo. If we decide the purpose of impeachment to remove one from
office, then his resignation would render the case moot and academic.
However, as the provision says, the criminal and civil aspects of it may
continue in the ordinary courts."
This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent
Presidents are immune from suit or from being brought to court during the
period of their incumbency and tenure" but not beyond. Considering the
peculiar circumstance that the impeachment process against the petitioner has
been aborted and thereafter he lost the presidency, petitioner Estrada cannot
demand as a condition sine qua non to his criminal prosecution before the
Ombudsman that he be convicted in the impeachment proceedings. His
reliance on the case of Lecaroz vs. Sandiganbayan112 and related cases113
are inapropos for they have a different factual milieu.
We now come to the scope of immunity that can be claimed by petitioner as a
non-sitting President. The cases filed against petitioner Estrada are criminal in
character. They involve plunder, bribery and graft and corruption. By no stretch
of the imagination can these crimes, especially plunder which carries the death
penalty, be covered by the alleged mantle of immunity of a non-sitting
president. Petitioner cannot cite any decision of this Court licensing the
President to commit criminal acts and wrapping him with post-tenure immunity
from liability. It will be anomalous to hold that immunity is an inoculation from
liability for unlawful acts and conditions. The rule is that unlawful acts of public
officials are not acts of the State and the officer who acts illegally is not acting
as such but stands in the same footing as any trespasser.114
Indeed, critical reading of current literature on executive immunity will reveal a
judicial disinclination to expand the privilege especially when it impedes the
search for truth or impairs the vindication of a right. In the 1974 case of US v.
Nixon,115 US President Richard Nixon, a sitting President, was subpoenaed
to produce certain recordings and documents relating to his conversations with
aids and advisers. Seven advisers of President Nixon's associates were facing
charges of conspiracy to obstruct Justice and other offenses, which were
committed in a burglary of the Democratic National Headquarters in
Washington's Watergate Hotel during the 972 presidential campaign.
President Nixon himself was named an unindicted co-conspirator. President
Nixon moved to quash the subpoena on the ground, among others, that the
President was not subject to judicial process and that he should first be
impeached and removed from office before he could be made amenable to
judicial proceedings. The claim was rejected by the US Supreme Court. It
concluded that "when the ground for asserting privilege as to subpoenaed
materials sought for use in a criminal trial is based only on the generalized
interest in confidentiality, it cannot prevail over the fundamental demands of
due process of law in the fair administration of criminal justice." In the 1982
case of Nixon v. Fitzgerald,116 the US Supreme Court further held that the
immunity of the president from civil damages covers only "official acts."
Recently, the US Supreme Court had the occasion to reiterate this doctrine in
the case of Clinton v. Jones117 where it held that the US President's immunity
from suits for money damages arising out of their official acts is inapplicable to
unofficial conduct.
There are more reasons not to be sympathetic to appeals to stretch the scope
of executive immunity in our jurisdiction. One of the great themes of the 1987
Constitution is that a public office is a public trust.118 It declared as a state
policy that "the State shall maintain honesty and integrity in the public service
and take positive and effective measures against graft and corruptio."119 it
ordained that "public officers and employees must at all times be accountable
to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency act with patriotism and justice, and lead modest lives."120 It set the
rule that 'the right of the State to recover properties unlawfully acquired by
public officials or employees, from them or from their nominees or transferees,
shall not be barred by prescription, latches or estoppel."121 It maintained the
Sandiganbayan as an anti-graft court.122 It created the office of the
Ombudsman and endowed it with enormous powers, among which is to
"investigate on its own, or on complaint by any person, any act or omission of
any public official, employee, office or agency, when such act or omission
appears to be illegal, unjust improper or inefficient."123 The Office of the
Ombudsman was also given fiscal autonomy.124 These constitutional policies
will be devalued if we sustain petitioner's claim that a non-sitting president
enjoys immunity from suit for criminal acts committed during his incumbency.
V
Whether or not the prosecution of petitioner
Estrada should be enjoined due to prejudicial publicity
Petitioner also contends that the respondent Ombudsman should be stopped
from conducting the investigation of the cases filed against him due to the
barrage of prejudicial publicity on his guilt. He submits that the respondent
Ombudsman has developed bias and is all set file the criminal cases violation
of his right to due process.
There are two (2) principal legal and philosophical schools of thought on how
to deal with the rain of unrestrained publicity during the investigation and trial
of high profile cases.125 The British approach the problem with the
presumption that publicity will prejudice a jury. Thus, English courts readily
stay and stop criminal trials when the right of an accused to fair trial suffers a
threat.126 The American approach is different. US courts assume a skeptical
approach about the potential effect of pervasive publicity on the right of an
accused to a fair trial. They have developed different strains of tests to resolve
this issue, i.e., substantial; probability of irreparable harm, strong likelihood,
clear and present danger, etc.
This is not the first time the issue of trial by publicity has been raised in this
Court to stop the trials or annul convictions in high profile criminal cases.127
In People vs. Teehankee, Jr.,128 later reiterated in the case of Larranaga vs.
court of Appeals, et al.,129 we laid down the doctrine that:
"We cannot sustain appellant's claim that he was denied the right to impartial
trial due to prejudicial publicity. It is true that the print and broadcast media
gave the case at bar pervasive publicity, just like all high profile and high stake
criminal trials. Then and now, we rule that the right of an accused to a fair trial
is not incompatible to a free press. To be sure, responsible reporting enhances
accused's right to a fair trial for, as well pointed out, a responsible press has
always been regarded as the criminal field xxx. The press does not simply
publish information about trials but guards against the miscarriage of justice
by subjecting the police, prosecutors, and judicial processes to extensive
public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair
trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-
gavel coverage does not by itself prove that the publicity so permeated the
mind of the trial judge and impaired his impartiality. For one, it is impossible to
seal the minds of members of the bench from pre-trial and other off-court
publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our breakfast
tables and right to our bedrooms. These news form part of our everyday menu
of the facts and fictions of life. For another, our idea of a fair and impartial judge
is not that of a hermit who is out of touch with the world. We have not installed
the jury system whose members are overly protected from publicity lest they
lose there impartially. xxx xxx xxx. Our judges are learned in the law and
trained to disregard off-court evidence and on-camera performances of parties
to litigation. Their mere exposure to publications and publicity stunts does not
per se fatally infect their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the
trial judge due to the barrage of publicity that characterized the investigation
and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this
standard of possibility of prejudice and adopted the test of actual prejudice as
we ruled that to warrant a finding of prejudicial publicity, there must be
allegation and proof that the judges have been unduly influenced, not simply
that they might be, by the barrage of publicity. In the case at a bar, the records
do not show that the trial judge developed actual bias against appellants as a
consequence of the extensive media coverage of the pre-trial and trial of his
case. The totality of circumstances of the case does not prove that the trial
judge acquired a fixed opinion as a result of prejudicial publicity, which is
incapable of change even by evidence presented during the trial. Appellant
has the burden to prove this actual bias and he has not discharged the burden.'
We expounded further on this doctrine in the subsequent case of Webb vs.
Hon. Raul de Leon, etc.130 and its companion cases, viz:
"Again petitioners raise the effect of prejudicial publicity on their right to due
process while undergoing preliminary investigation. We find no procedural
impediment to its early invocation considering the substantial risk to their
liberty while undergoing a preliminary investigation.
xxx
The democratic settings, media coverage of trials of sensational cases cannot
be avoided and oftentimes, its excessiveness has been aggravated by kinetic
developments in the telecommunications industry. For sure, few cases can
match the high volume and high velocity of publicity that attended the
preliminary investigation of the case at bar. Our daily diet of facts and fiction
about the case continues unabated even today. Commentators still bombard
the public with views not too many of which are sober and sublime. Indeed,
even the principal actors in the case the NBI, the respondents, their lawyers
and their sympathizers have participated in this media blitz. The possibility of
media abuses and their threat to a fair trial notwithstanding, criminal trials
cannot be completely closed to the press and public. In the seminal case of
Richmond Newspapers, Inc. v. Virginia, it was
xxx
The historical evidence of the evolution of the criminal trial in Anglo-American
justice demonstrates conclusively that at the time this Nation's organic laws
were adopted, criminal trials both here and in England had long been
presumptively open, thus giving assurance that the proceedings were
conducted fairly to all concerned and discouraging perjury, the misconduct of
participants, or decisions based on secret bias or partiality. In addition, the
significant community therapeutic value of public trials was recognized when
a shocking crime occurs a community reaction of outrage and public protest
often follows, and thereafter the open processes of justice serve an important
prophylactic purpose, providing an outlet for community concern, hostility and
emotion. To work effectively, it is important that society's criminal process
satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99 L
ED 11, 75 S Ct 11, which can best be provided by allowing people to observe
such process. From this unbroken, uncontradicted history, supported by
reasons as valid today as in centuries past, it must be concluded that a
presumption of openness inheres in the very nature of a criminal trial under
this Nation's system of justice, Cf., e,g., Levine v. United States, 362 US 610,
4 L Ed 2d 989, 80 S Ct 1038.
The freedoms of speech. Press and assembly, expressly guaranteed by the
First Amendment, share a common core purpose of assuring freedom of
communication on matters relating to the functioning of government. In
guaranteeing freedom such as those of speech and press, the First
Amendment can be read as protecting the right of everyone to attend trials so
as give meaning to those explicit guarantees; the First Amendment right to
receive information and ideas means, in the context of trials, that the
guarantees of speech and press, standing alone, prohibit government from
summarily closing courtroom doors which had long been open to the public at
the time the First Amendment was adopted. Moreover, the right of assembly
is also relevant, having been regarded not only as an independent right but
also as a catalyst to augment the free exercise of the other First Amendment
rights with which the draftsmen deliberately linked it. A trial courtroom is a
public place where the people generally and representatives of the media have
a right to be present, and where their presence historically has been thought
to enhance the integrity and quality of what takes place.
Even though the Constitution contains no provision which be its terms
guarantees to the public the right to attend criminal trials, various fundamental
rights, not expressly guaranteed, have been recognized as indispensable to
the enjoyment of enumerated rights. The right to attend criminal trial is implicit
in the guarantees of the First Amendment: without the freedom to attend such
trials, which people have exercised for centuries, important aspects of freedom
of speech and of the press be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial publicity under
certain circumstances can deprive an accused of his due process right to fair
trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to warrant a
finding of prejudicial publicity there must be allegation and proof that the judges
have been unduly influenced, not simply that they might be, by the barrage of
publicity. In the case at bar, we find nothing in the records that will prove that
the tone and content of the publicity that attended the investigation of
petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense
of fairness of the DOJ Panel, for these are basically unbeknown and beyond
knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State
Prosecutor and Senior State Prosecutors. Their long experience in criminal
investigation is a factor to consider in determining whether they can easily be
blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries
no indubitable indicia of bias for it does not appear that they considered any
extra-record evidence except evidence properly adduced by the parties. The
length of time the investigation was conducted despite its summary nature and
the generosity with which they accommodated the discovery motions of
petitioners speak well of their fairness. At no instance, we note, did petitioners
seek the disqualification of any member of the DOJ Panel on the ground of
bias resulting from their bombardment of prejudicial publicity." (emphasis
supplied)
Applying the above ruling, we hold that there is not enough evidence to warrant
this Court to enjoin the preliminary investigation of the petitioner by the
respondent Ombudsman. Petitioner needs to offer more than hostile headlines
to discharge his burden of proof.131 He needs to show more weighty social
science evidence to successfully prove the impaired capacity of a judge to
render a bias-free decision. Well to note, the cases against the petitioner are
still undergoing preliminary investigation by a special panel of prosecutors in
the office of the respondent Ombudsman. No allegation whatsoever has been
made by the petitioner that the minds of the members of this special panel
have already been infected by bias because of the pervasive prejudicial
publicity against him. Indeed, the special panel has yet to come out with its
findings and the Court cannot second guess whether its recommendation will
be unfavorable to the petitioner.
The records show that petitioner has instead charged respondent
Ombudsman himself with bias. To quote petitioner's submission, the
respondent Ombudsman "has been influenced by the barrage of slanted news
reports, and he has buckled to the threats and pressures directed at him by
the mobs."132 News reports have also been quoted to establish that the
respondent Ombudsman has already prejudged the cases of the petitioner133
and it is postulated that the prosecutors investigating the petitioner will be
influenced by this bias of their superior.
Again, we hold that the evidence proffered by the petitioner is insubstantial.
The accuracy of the news reports referred to by the petitioner cannot be the
subject of judicial notice by this Court especially in light of the denials of the
respondent Ombudsman as to his alleged prejudice and the presumption of
good faith and regularity in the performance of official duty to which he is
entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e.,
that the prejudice of respondent Ombudsman flows to his subordinates. In
truth, our Revised Rules of Criminal Procedure, give investigation prosecutors
the independence to make their own findings and recommendations albeit they
are reviewable by their superiors.134 They can be reversed but they can not
be compelled cases which they believe deserve dismissal. In other words,
investigating prosecutors should not be treated like unthinking slot machines.
Moreover, if the respondent Ombudsman resolves to file the cases against the
petitioner and the latter believes that the findings of probable cause against
him is the result of bias, he still has the remedy of assailing it before the proper
court.
VI.
Epilogue
A word of caution to the "hooting throng." The cases against the petitioner will
now acquire a different dimension and then move to a new stage - - - the Office
of the Ombudsman. Predictably, the call from the majority for instant justice
will hit a higher decibel while the gnashing of teeth of the minority will be more
threatening. It is the sacred duty of the respondent Ombudsman to balance
the right of the State to prosecute the guilty and the right of an accused to a
fair investigation and trial which has been categorized as the "most
fundamental of all freedoms."135 To be sure, the duty of a prosecutor is more
to do justice and less to prosecute. His is the obligation to insure that the
preliminary investigation of the petitioner shall have a circus-free atmosphere.
He has to provide the restraint against what Lord Bryce calls "the impatient
vehemence of the majority." Rights in a democracy are not decided by the mob
whose judgment is dictated by rage and not by reason. Nor are rights
necessarily resolved by the power of number for in a democracy, the
dogmatism of the majority is not and should never be the definition of the rule
of law. If democracy has proved to be the best form of government, it is
because it has respected the right of the minority to convince the majority that
it is wrong. Tolerance of multiformity of thoughts, however offensive they may
be, is the key to man's progress from the cave to civilization. Let us not throw
away that key just to pander to some people's prejudice.
IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the
respondent Gloria Macapagal-Arroyo as the de jure 14th President of the
Republic are DISMISSED.
SO ORDERED.
G.R. No. 83896 February 22, 1991
CIVIL LIBERTIES UNION, petitioner, vs.
THE EXECUTIVE SECRETARY, respondent.
FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution dated August 9,
19881 and are being resolved jointly as both seek a declaration of the
unconstitutionality of Executive Order No. 284 issued by President Corazon C.
Aquino on July 25, 1987. The pertinent provisions of the assailed Executive
Order are:
Sec. 1. Even if allowed by law or by the ordinary functions of his position, a
member of the Cabinet, undersecretary or assistant secretary or other
appointive officials of the Executive Department may, in addition to his primary
position, hold not more than two positions in the government and government
corporations and receive the corresponding compensation therefor; Provided,
that this limitation shall not apply to ad hoc bodies or committees, or to boards,
councils or bodies of which the President is the Chairman.
Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or
other appointive official of the Executive Department holds more positions than
what is allowed in Section 1 hereof, they (sic) must relinquish the excess
position in favor of the subordinate official who is next in rank, but in no case
shall any official hold more than two positions other than his primary position.
Sec. 3. In order to fully protect the interest of the government in government-
owned or controlled corporations, at least one-third (1/3) of the members of
the boards of such corporation should either be a secretary, or undersecretary,
or assistant secretary.
Petitioners maintain that this Executive Order which, in effect, allows members
of the Cabinet, their undersecretaries and assistant secretaries to hold other
government offices or positions in addition to their primary positions, albeit
subject to the limitation therein imposed, runs counter to Section 13, Article VII
of the 1987 Constitution,2 which provides as follows:
Sec. 13. The President, Vice-President, the Members of the Cabinet,
and their deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure. They
shall not, during said tenure, directly or indirectly practice any other profession,
participate in any business, or be financially interested in any contract with, or
in any franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries. They shall strictly avoid conflict
of interest in the conduct of their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public
respondents, as members of the Cabinet, along with the other public officials
enumerated in the list attached to the petitions as Annex "C" in G.R. No.
838153 and as Annex "B" in G.R. No. 838964 from holding any other office or
employment during their tenure. In addition to seeking a declaration of the
unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of
the Philippines further seeks in G.R. No. 83815 the issuance of the
extraordinary writs of prohibition and mandamus, as well as a temporary
restraining order directing public respondents therein to cease and desist from
holding, in addition to their primary positions, dual or multiple positions other
than those authorized by the 1987 Constitution and from receiving any
salaries, allowances, per diems and other forms of privileges and the like
appurtenant to their questioned positions, and compelling public respondents
to return, reimburse or refund any and all amounts or benefits that they may
have received from such positions.

Specifically, petitioner Anti-Graft League of the Philippines charges that
notwithstanding the aforequoted "absolute and self-executing" provision of the
1987 Constitution, then Secretary of Justice Sedfrey Ordoez, construing
Section 13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered
on July 23, 1987 Opinion No. 73, series of 1987,5 declaring that Cabinet
members, their deputies (undersecretaries) and assistant secretaries may
hold other public office, including membership in the boards of government
corporations: (a) when directly provided for in the Constitution as in the case
of the Secretary of Justice who is made an ex-officio member of the Judicial
and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by
law; or (c) if allowed by the primary functions of their respective positions; and
that on the basis of this Opinion, the President of the Philippines, on July 25,
1987 or two (2) days before Congress convened on July 27, 1987:
promulgated Executive Order No. 284.6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion
No. 73 and Executive Order No. 284 as they allegedly "lumped together"
Section 13, Article VII and the general provision in another article, Section 7,
par. (2), Article I-XB. This "strained linkage" between the two provisions, each
addressed to a distinct and separate group of public officers one, the
President and her official family, and the other, public servants in general
allegedly "abolished the clearly separate, higher, exclusive, and mandatory
constitutional rank assigned to the prohibition against multiple jobs for the
President, the Vice-President, the members of the Cabinet, and their deputies
and subalterns, who are the leaders of government expected to lead by
example."7 Article IX-B, Section 7, par. (2)8 provides:
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office or employment in the government
or any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries.
The Solicitor General counters that Department of Justice DOJ Opinion No.
73, series of 1987, as further elucidated and clarified by DOJ Opinion No. 129,
series of 19879 and DOJ Opinion No. 155, series of 1988,10 being the first
official construction and interpretation by the Secretary of Justice of Section
13, Article VII and par. (2) of Section 7, Article I-XB of the Constitution,
involving the same subject of appointments or designations of an appointive
executive official to positions other than his primary position, is "reasonably
valid and constitutionally firm," and that Executive Order No. 284, promulgated
pursuant to DOJ Opinion No. 73, series of 1987 is consequently constitutional.
It is worth noting that DOJ Opinion No. 129, series of 1987 and DOJ Opinion
No. 155, series of 1988 construed the limitation imposed by E.O. No. 284 as
not applying to ex-officio positions or to positions which, although not so
designated as ex-officio are allowed by the primary functions of the public
official, but only to the holding of multiple positions which are not related to or
necessarily included in the position of the public official concerned (disparate
positions).
In sum, the constitutionality of Executive Order No. 284 is being challenged by
petitioners on the principal submission that it adds exceptions to Section 13,
Article VII other than those provided in the Constitution. According to
petitioners, by virtue of the phrase "unless otherwise provided in this
Constitution," the only exceptions against holding any other office or
employment in Government are those provided in the Constitution, namely: (1)
The Vice-President may be appointed as a Member of the Cabinet under
Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-
officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article
VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par.
(2), Article I-XB on the Civil Service Commission applies to officers and
employees of the Civil Service in general and that said exceptions do not apply
and cannot be extended to Section 13, Article VII which applies specifically to
the President, Vice-President, Members of the Cabinet and their deputies or
assistants.
There is no dispute that the prohibition against the President, Vice-President,
the members of the Cabinet and their deputies or assistants from holding dual
or multiple positions in the Government admits of certain exceptions. The
disagreement between petitioners and public respondents lies on the
constitutional basis of the exception. Petitioners insist that because of the
phrase "unless otherwise provided in this Constitution" used in Section 13 of
Article VII, the exception must be expressly provided in the Constitution, as in
the case of the Vice-President being allowed to become a Member of the
Cabinet under the second paragraph of Section 3, Article VII or the Secretary
of Justice being designated an ex-officio member of the Judicial and Bar
Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand,
maintain that the phrase "unless otherwise provided in the Constitution" in
Section 13, Article VII makes reference to Section 7, par. (2), Article I-XB
insofar as the appointive officials mentioned therein are concerned.
The threshold question therefore is: does the prohibition in Section 13, Article
VII of the 1987 Constitution insofar as Cabinet members, their deputies or
assistants are concerned admit of the broad exceptions made for appointive
officials in general under Section 7, par. (2), Article I-XB which, for easy
reference is quoted anew, thus: "Unless otherwise allowed by law or by the
primary functions of his position, no appointive official shall hold any other
office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporation
or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying
the provision under consideration. Thus, it has been held that the Court in
construing a Constitution should bear in mind the object sought to be
accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of
the times, and the condition and circumstances under which the Constitution
was framed. The object is to ascertain the reason which induced the framers
of the Constitution to enact the particular provision and the purpose sought to
be accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose.11
The practice of designating members of the Cabinet, their deputies and
assistants as members of the governing bodies or boards of various
government agencies and instrumentalities, including government-owned and
controlled corporations, became prevalent during the time legislative powers
in this country were exercised by former President Ferdinand E. Marcos
pursuant to his martial law authority. There was a proliferation of newly-created
agencies, instrumentalities and government-owned and controlled
corporations created by presidential decrees and other modes of presidential
issuances where Cabinet members, their deputies or assistants were
designated to head or sit as members of the board with the corresponding
salaries, emoluments, per diems, allowances and other perquisites of office.
Most of these instrumentalities have remained up to the present time.
This practice of holding multiple offices or positions in the government soon
led to abuses by unscrupulous public officials who took advantage of this
scheme for purposes of self-enrichment. In fact, the holding of multiple offices
in government was strongly denounced on the floor of the Batasang
Pambansa.12 This condemnation came in reaction to the published report of
the Commission on Audit, entitled "1983 Summary Annual Audit Report on:
Government-Owned and Controlled Corporations, Self-Governing Boards and
Commissions" which carried as its Figure No. 4 a "Roaster of Membership in
Governing Boards of Government-Owned and Controlled Corporations as of
December 31, 1983."
Particularly odious and revolting to the people's sense of propriety and morality
in government service were the data contained therein that Roberto V. Ongpin
was a member of the governing boards of twenty-nine (29) governmental
agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-
three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen
(15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar
C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roo of twelve
(12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of
eleven (11) each; and Lilia Bautista and Teodoro Q. Pea of ten (10) each.13
The blatant betrayal of public trust evolved into one of the serious causes of
discontent with the Marcos regime. It was therefore quite inevitable and in
consonance with the overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the people successfully
unseated former President Marcos, should draft into its proposed Constitution
the provisions under consideration which are envisioned to remedy, if not
correct, the evils that flow from the holding of multiple governmental offices
and employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz
during the deliberations in these cases, one of the strongest selling points of
the 1987 Constitution during the campaign for its ratification was the
assurance given by its proponents that the scandalous practice of Cabinet
members holding multiple positions in the government and collecting
unconscionably excessive compensation therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7, Article I-XB
already contains a blanket prohibition against the holding of multiple offices or
employment in the government subsuming both elective and appointive public
officials, the Constitutional Commission should see it fit to formulate another
provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-
President, members of the Cabinet, their deputies and assistants from holding
any other office or employment during their tenure, unless otherwise provided
in the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the
constitutional provisions in question, the intent of the framers of the
Constitution was to impose a stricter prohibition on the President and his
official family in so far as holding other offices or employment in the
government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article
VII with other provisions of the Constitution on the disqualifications of certain
public officials or employees from holding other offices or employment. Under
Section 13, Article VI, "(N)o Senator or Member of the House of
Representatives may hold any other office or employment in the Government
. . .". Under Section 5(4), Article XVI, "(N)o member of the armed forces in the
active service shall, at any time, be appointed in any capacity to a civilian
position in the Government, including government-owned or controlled
corporations or any of their subsidiaries." Even Section 7 (2), Article IX-B,
relied upon by respondents provides "(U)nless otherwise allowed by law or by
the primary functions of his position, no appointive official shall hold any other
office or employment in the Government."
It is quite notable that in all these provisions on disqualifications to hold other
office or employment, the prohibition pertains to an office or employment in the
government and government-owned or controlled corporations or their
subsidiaries. In striking contrast is the wording of Section 13, Article VII which
states that "(T)he President, Vice-President, the Members of the Cabinet, and
their deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure." In the
latter provision, the disqualification is absolute, not being qualified by the
phrase "in the Government." The prohibition imposed on the President and his
official family is therefore all-embracing and covers both public and private
office or employment.
Going further into Section 13, Article VII, the second sentence provides: "They
shall not, during said tenure, directly or indirectly, practice any other
profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries." These
sweeping, all-embracing prohibitions imposed on the President and his official
family, which prohibitions are not similarly imposed on other public officials or
employees such as the Members of Congress, members of the civil service in
general and members of the armed forces, are proof of the intent of the 1987
Constitution to treat the President and his official family as a class by itself and
to impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the
President and his official family was also succinctly articulated by
Commissioner Vicente Foz after Commissioner Regalado Maambong noted
during the floor deliberations and debate that there was no symmetry between
the Civil Service prohibitions, originally found in the General Provisions and
the anticipated report on the Executive Department. Commissioner Foz
Commented, "We actually have to be stricter with the President and the
members of the Cabinet because they exercise more powers and, therefore,
more cheeks and restraints on them are called for because there is more
possibility of abuse in their case."14
Thus, while all other appointive officials in the civil service are allowed to hold
other office or employment in the government during their tenure when such
is allowed by law or by the primary functions of their positions, members of the
Cabinet, their deputies and assistants may do so only when expressly
authorized by the Constitution itself. In other words, Section 7, Article I-XB is
meant to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant to be the
exception applicable only to the President, the Vice- President, Members of
the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this
Constitution" in Section 13, Article VII cannot possibly refer to the broad
exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To
construe said qualifying phrase as respondents would have us do, would
render nugatory and meaningless the manifest intent and purpose of the
framers of the Constitution to impose a stricter prohibition on the President,
Vice-President, Members of the Cabinet, their deputies and assistants with
respect to holding other offices or employment in the government during their
tenure. Respondents' interpretation that Section 13 of Article VII admits of the
exceptions found in Section 7, par. (2) of Article IX-B would obliterate the
distinction so carefully set by the framers of the Constitution as to when the
high-ranking officials of the Executive Branch from the President to Assistant
Secretary, on the one hand, and the generality of civil servants from the rank
immediately below Assistant Secretary downwards, on the other, may hold any
other office or position in the government during their tenure.
Moreover, respondents' reading of the provisions in question would render
certain parts of the Constitution inoperative. This observation applies
particularly to the Vice-President who, under Section 13 of Article VII is allowed
to hold other office or employment when so authorized by the Constitution, but
who as an elective public official under Sec. 7, par. (1) of Article I-XB is
absolutely ineligible "for appointment or designation in any capacity to any
public office or position during his tenure." Surely, to say that the phrase
"unless otherwise provided in this Constitution" found in Section 13, Article VII
has reference to Section 7, par. (1) of Article I-XB would render meaningless
the specific provisions of the Constitution authorizing the Vice-President to
become a member of the Cabinet,15 and to act as President without
relinquishing the Vice-Presidency where the President shall not nave been
chosen or fails to qualify.16 Such absurd consequence can be avoided only
by interpreting the two provisions under consideration as one, i.e., Section 7,
par. (1) of Article I-XB providing the general rule and the other, i.e., Section
13, Article VII as constituting the exception thereto. In the same manner must
Section 7, par. (2) of Article I-XB be construed vis-a-vis Section 13, Article VII.
It is a well-established rule in Constitutional construction that no one provision
of the Constitution is to be separated from all the others, to be considered
alone, but that all the provisions bearing upon a particular subject are to be
brought into view and to be so interpreted as to effectuate the great purposes
of the instrument.17 Sections bearing on a particular subject should be
considered and interpreted together as to effectuate the whole purpose of the
Constitution18 and one section is not to be allowed to defeat another, if by any
reasonable construction, the two can be made to stand together.19
In other words, the court must harmonize them, if practicable, and must lean
in favor of a construction which will render every word operative, rather than
one which may make the words idle and nugatory.20

Since the evident purpose of the framers of the 1987 Constitution is to impose
a stricter prohibition on the President, Vice-President, members of the Cabinet,
their deputies and assistants with respect to holding multiple offices or
employment in the government during their tenure, the exception to this
prohibition must be read with equal severity. On its face, the language of
Section 13, Article VII is prohibitory so that it must be understood as intended
to be a positive and unequivocal negation of the privilege of holding multiple
government offices or employment. Verily, wherever the language used in the
constitution is prohibitory, it is to be understood as intended to be a positive
and unequivocal negation.21 The phrase "unless otherwise provided in this
Constitution" must be given a literal interpretation to refer only to those
particular instances cited in the Constitution itself, to wit: the Vice-President
being appointed as a member of the Cabinet under Section 3, par. (2), Article
VII; or acting as President in those instances provided under Section 7, pars.
(2) and (3), Article VII; and, the Secretary of Justice being ex-officio member
of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or employment under
Section 13, Article VII of the Constitution must not, however, be construed as
applying to posts occupied by the Executive officials specified therein without
additional compensation in an ex-officio capacity as provided by law and as
required22 by the primary functions of said officials' office. The reason is that
these posts do no comprise "any other office" within the contemplation of the
constitutional prohibition but are properly an imposition of additional duties and
functions on said officials.23 To characterize these posts otherwise would lead
to absurd consequences, among which are: The President of the Philippines
cannot chair the National Security Council reorganized under Executive Order
No. 115 (December 24, 1986). Neither can the Vice-President, the Executive
Secretary, and the Secretaries of National Defense, Justice, Labor and
Employment and Local Government sit in this Council, which would then have
no reason to exist for lack of a chairperson and members. The respective
undersecretaries and assistant secretaries, would also be prohibited.
The Secretary of Labor and Employment cannot chair the Board of Trustees
of the National Manpower and Youth Council (NMYC) or the Philippine
Overseas Employment Administration (POEA), both of which are attached to
his department for policy coordination and guidance. Neither can his
Undersecretaries and Assistant Secretaries chair these agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary Board.24
Neither can their respective undersecretaries and assistant secretaries. The
Central Bank Governor would then be assisted by lower ranking employees in
providing policy direction in the areas of money, banking and credit.25
Indeed, the framers of our Constitution could not have intended such absurd
consequences. A Constitution, viewed as a continuously operative charter of
government, is not to be interpreted as demanding the impossible or the
impracticable; and unreasonable or absurd consequences, if possible, should
be avoided.26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted
as covering positions held without additional compensation in ex-officio
capacities as provided by law and as required by the primary functions of the
concerned official's office. The term ex-officio means "from office; by virtue of
office." It refers to an "authority derived from official character merely, not
expressly conferred upon the individual character, but rather annexed to the
official position." Ex-officio likewise denotes an "act done in an official
character, or as a consequence of office, and without any other appointment
or authority than that conferred by the office."27 An ex-officio member of a
board is one who is a member by virtue of his title to a certain office, and
without further warrant or appointment.28 To illustrate, by express provision of
law, the Secretary of Transportation and Communications is the ex-officio
Chairman of the Board of the Philippine Ports Authority,29 and the Light Rail
Transit Authority.30
The Court had occasion to explain the meaning of an ex-officio position in
Rafael vs. Embroidery and Apparel Control and Inspection Board,31 thus: "An
examination of section 2 of the questioned statute (R.A. 3137) reveals that for
the chairman and members of the Board to qualify they need only be
designated by the respective department heads. With the exception of the
representative from the private sector, they sit ex-officio. In order to be
designated they must already be holding positions in the offices mentioned in
the law. Thus, for instance, one who does not hold a previous appointment in
the Bureau of Customs, cannot, under the act, be designated a representative
from that office. The same is true with respect to the representatives from the
other offices. No new appointments are necessary. This is as it should be,
because the representatives so designated merely perform duties in the Board
in addition to those already performed under their original appointments."32
The term "primary" used to describe "functions" refers to the order of
importance and thus means chief or principal function. The term is not
restricted to the singular but may refer to the plural.33 The additional duties
must not only be closely related to, but must be required by the official's
primary functions. Examples of designations to positions by virtue of one's
primary functions are the Secretaries of Finance and Budget sitting as
members of the Monetary Board, and the Secretary of Transportation and
Communications acting as Chairman of the Maritime Industry Authority34 and
the Civil Aeronautics Board.
If the functions required to be performed are merely incidental, remotely
related, inconsistent, incompatible, or otherwise alien to the primary function
of a cabinet official, such additional functions would fall under the purview of
"any other office" prohibited by the Constitution. An example would be the
Press Undersecretary sitting as a member of the Board of the Philippine
Amusement and Gaming Corporation. The same rule applies to such positions
which confer on the cabinet official management functions and/or monetary
compensation, such as but not limited to chairmanships or directorships in
government-owned or controlled corporations and their subsidiaries.
Mandating additional duties and functions to the President, Vice-President,
Cabinet Members, their deputies or assistants which are not inconsistent with
those already prescribed by their offices or appointments by virtue of their
special knowledge, expertise and skill in their respective executive offices is a
practice long-recognized in many jurisdictions. It is a practice justified by the
demands of efficiency, policy direction, continuity and coordination among the
different offices in the Executive Branch in the discharge of its multifarious
tasks of executing and implementing laws affecting national interest and
general welfare and delivering basic services to the people. It is consistent with
the power vested on the President and his alter egos, the Cabinet members,
to have control of all the executive departments, bureaus and offices and to
ensure that the laws are faithfully executed.35 Without these additional duties
and functions being assigned to the President and his official family to sit in
the governing bodies or boards of governmental agencies or instrumentalities
in an ex-officio capacity as provided by law and as required by their primary
functions, they would be supervision, thereby deprived of the means for control
and resulting in an unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties or functions
may not transgress the prohibition embodied in Section 13, Article VII of the
1987 Constitution, such additional duties or functions must be required by the
primary functions of the official concerned, who is to perform the same in an
ex-officio capacity as provided by law, without receiving any additional
compensation therefor.
The ex-officio position being actually and in legal contemplation part of the
principal office, it follows that the official concerned has no right to receive
additional compensation for his services in the said position. The reason is that
these services are already paid for and covered by the compensation attached
to his principal office. It should be obvious that if, say, the Secretary of Finance
attends a meeting of the Monetary Board as an ex-officio member thereof, he
is actually and in legal contemplation performing the primary function of his
principal office in defining policy in monetary and banking matters, which come
under the jurisdiction of his department. For such attendance, therefore, he is
not entitled to collect any extra compensation, whether it be in the form of a
per them or an honorarium or an allowance, or some other such euphemism.
By whatever name it is designated, such additional compensation is prohibited
by the Constitution.
It is interesting to note that during the floor deliberations on the proposal of
Commissioner Christian Monsod to add to Section 7, par. (2), Article IX-B,
originally found as Section 3 of the General Provisions, the exception "unless
required by the functions of his position,"36 express reference to certain high-
ranking appointive public officials like members of the Cabinet were made.37
Responding to a query of Commissioner Blas Ople, Commissioner Monsod
pointed out that there are instances when although not required by current law,
membership of certain high-ranking executive officials in other offices and
corporations is necessary by reason of said officials' primary functions. The
example given by Commissioner Monsod was the Minister of Trade and
Industry.38
While this exchange between Commissioners Monsod and Ople may be used
as authority for saying that additional functions and duties flowing from the
primary functions of the official may be imposed upon him without offending
the constitutional prohibition under consideration, it cannot, however, be taken
as authority for saying that this exception is by virtue of Section 7, par. (2) of
Article I-XB. This colloquy between the two Commissioners took place in the
plenary session of September 27, 1986. Under consideration then was Section
3 of Committee Resolution No. 531 which was the proposed article on General
Provisions.39 At that time, the article on the Civil Service Commission had
been approved on third reading on July 22, 1986,40 while the article on the
Executive Department, containing the more specific prohibition in Section 13,
had also been earlier approved on third reading on August 26, 1986.41 It was
only after the draft Constitution had undergone reformatting and "styling" by
the Committee on Style that said Section 3 of the General Provisions became
Section 7, par. (2) of Article IX-B and reworded "Unless otherwise allowed by
law or by the primary functions of his position. . . ."
What was clearly being discussed then were general principles which would
serve as constitutional guidelines in the absence of specific constitutional
provisions on the matter. What was primarily at issue and approved on that
occasion was the adoption of the qualified and delimited phrase "primary
functions" as the basis of an exception to the general rule covering all
appointive public officials. Had the Constitutional Commission intended to
dilute the specific prohibition in said Section 13 of Article VII, it could have re-
worded said Section 13 to conform to the wider exceptions provided in then
Section 3 of the proposed general Provisions, later placed as Section 7, par.
(2) of Article IX-B on the Civil Service Commission.
That this exception would in the final analysis apply also to the President and
his official family is by reason of the legal principles governing additional
functions and duties of public officials rather than by virtue of Section 7, par.
2, Article IX-B At any rate, we have made it clear that only the additional
functions and duties "required," as opposed to "allowed," by the primary
functions may be considered as not constituting "any other office."
While it is permissible in this jurisdiction to consult the debates and
proceedings of the constitutional convention in order to arrive at the reason
and purpose of the resulting Constitution, resort thereto may be had only when
other guides fail42 as said proceedings are powerless to vary the terms of the
Constitution when the meaning is clear.1wphi1 Debates in the constitutional
convention "are of value as showing the views of the individual members, and
as indicating the reasons for their votes, but they give us no light as to the
views of the large majority who did not talk, much less of the mass of our fellow
citizens whose votes at the polls gave that instrument the force of fundamental
law. We think it safer to construe the constitution from what appears upon its
face."43 The proper interpretation therefore depends more on how it was
understood by the people adopting it than in the framers's understanding
thereof.44
It being clear, as it was in fact one of its best selling points, that the 1987
Constitution seeks to prohibit the President, Vice-President, members of the
Cabinet, their deputies or assistants from holding during their tenure multiple
offices or employment in the government, except in those cases specified in
the Constitution itself and as above clarified with respect to posts held without
additional compensation in an ex-officio capacity as provided by law and as
required by the primary functions of their office, the citation of Cabinet
members (then called Ministers) as examples during the debate and
deliberation on the general rule laid down for all appointive officials should be
considered as mere personal opinions which cannot override the constitution's
manifest intent and the people' understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to
Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive Order No.
284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number
of positions that Cabinet members, undersecretaries or assistant secretaries
may hold in addition to their primary position to not more than two (2) positions
in the government and government corporations, Executive Order No. 284
actually allows them to hold multiple offices or employment in direct
contravention of the express mandate of Section 13, Article VII of the 1987
Constitution prohibiting them from doing so, unless otherwise provided in the
1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that will
result from a strict application of the prohibition mandated under Section 13,
Article VII on the operations of the Government, considering that Cabinet
members would be stripped of their offices held in an ex-officio capacity, by
reason of their primary positions or by virtue of legislation. As earlier clarified
in this decision, ex-officio posts held by the executive official concerned without
additional compensation as provided by law and as required by the primary
functions of his office do not fall under the definition of "any other office" within
the contemplation of the constitutional prohibition. With respect to other offices
or employment held by virtue of legislation, including chairmanships or
directorships in government-owned or controlled corporations and their
subsidiaries, suffice it to say that the feared impractical consequences are
more apparent than real. Being head of an executive department is no mean
job. It is more than a full-time job, requiring full attention, specialized
knowledge, skills and expertise. If maximum benefits are to be derived from a
department head's ability and expertise, he should be allowed to attend to his
duties and responsibilities without the distraction of other governmental offices
or employment. He should be precluded from dissipating his efforts, attention
and energy among too many positions of responsibility, which may result in
haphazardness and inefficiency. Surely the advantages to be derived from this
concentration of attention, knowledge and expertise, particularly at this stage
of our national and economic development, far outweigh the benefits, if any,
that may be gained from a department head spreading himself too thin and
taking in more than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the court hereby
orders respondents Secretary of Environment and Natural Resources
Fulgencio Factoran, Jr., Secretary of Local Government45 Luis Santos,
Secretary of National Defense Fidel V. Ramos, Secretary of Health Alfredo
R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately
relinquish their other offices or employment, as herein defined, in the
government, including government-owned or controlled corporations and their
subsidiaries. With respect to the other named respondents, the petitions have
become moot and academic as they are no longer occupying the positions
complained of.
During their tenure in the questioned positions, respondents may be
considered de facto officers and as such entitled to emoluments for actual
services rendered.46 It has been held that "in cases where there is no de jure,
officer, a de facto officer, who, in good faith has had possession of the office
and has discharged the duties pertaining thereto, is legally entitled to the
emoluments of the office, and may in an appropriate action recover the salary,
fees and other compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems unjust that the
public should benefit by the services of an officer de facto and then be freed
from all liability to pay any one for such services.47 Any per diem, allowances
or other emoluments received by the respondents by virtue of actual services
rendered in the questioned positions may therefore be retained by them.
WHEREFORE, subject to the qualification above-stated, the petitions are
GRANTED. Executive Order No. 284 is hereby declared null and void and is
accordingly set aside.
SO ORDERED.
FUNA VVS ERMITA
VILLARAMA, JR., J.:
This is a petition for certiorari, prohibition and mandamus under Rule 65 with
prayer for the issuance of a temporary restraining order and/or writ of
preliminary injunction, to declare as unconstitutional the designation of
respondent Undersecretary Maria Elena H. Bautista as Officer-in-Charge
(OIC) of the Maritime Industry Authority (MARINA).
The Antecedents
On October 4, 2006, President Gloria Macapagal-Arroyo appointed
respondent Maria Elena H. Bautista (Bautista) as Undersecretary of the
Department of Transportation and Communications (DOTC), vice Agustin R.
Bengzon. Bautista was designated as Undersecretary for Maritime Transport
of the department under Special Order No. 2006-171 dated October 23,
2006.[1]
On September 1, 2008, following the resignation of then MARINA
Administrator Vicente T. Suazo, Jr., Bautista was designated as Officer-in-
Charge (OIC), Office of the Administrator, MARINA, in concurrent capacity as
DOTC Undersecretary.[2]
On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer,
concerned citizen and lawyer, filed the instant petition challenging the
constitutionality of Bautistas appointment/designation, which is proscribed by
the prohibition on the President, Vice-President, the Members of the Cabinet,
and their deputies and assistants to hold any other office or employment.
On January 5, 2009, during the pendency of this petition, Bautista was
appointed Administrator of the MARINA vice Vicente T. Suazo, Jr.[3] and she
assumed her duties and responsibilities as such on February 2, 2009.[4]
The Case
Petitioner argues that Bautistas concurrent positions as DOTC Undersecretary
and MARINA OIC is in violation of Section 13, Article VII of the 1987
Constitution, as interpreted and explained by this Court in Civil Liberties
Union v. Executive Secretary,[5] and reiterated in Public Interest Center, Inc.
v. Elma.[6] He points out that while it was clarified in Civil Liberties Union that
the prohibition does not apply to those positions held in ex-officio capacities,
the position of MARINA Administrator is not ex-officio to the post of DOTC
Undersecretary, as can be gleaned from the provisions of its charter,
Presidential Decree (P.D.) No. 474,[7] as amended by Executive Order (EO)
No. 125-A.[8] Moreover, the provisions on the DOTC in the Administrative
Code of 1987, specifically Sections 23 and 24, Chapter 6, Title XV, Book IV do
not provide any ex-officio role for the undersecretaries in any of the
departments attached agencies. The fact that Bautista was extended an
appointment naming her as OIC of MARINA shows that she does not occupy
it in an ex-officio capacity since an ex-officio position does not require any
further warrant or appoint.[9]
Petitioner further contends that even if Bautistas appointment or designation
as OIC of MARINA was intended to be merely temporary, still, such
designation must not violate a standing constitutional prohibition, citing the
rationale in Achacoso v. Macaraig.[10] Section 13, Article VII of the 1987
Constitution does not enumerate temporariness as one (1) of the exceptions
thereto. And since a temporary designation does not have a maximum
duration, it can go on for months or years. In effect, the temporary
appointment/designation can effectively circumvent the prohibition. Allowing
undersecretaries or assistant secretaries to occupy other government posts
would open a Pandoras Box as to let them feast on choice government
positions. Thus, in case of vacancy where no permanent appointment could
as yet be made, the remedy would be to designate one (1) of the two (2)
Deputy Administrators as the Acting Administrator. Such would be the logical
course, the said officers being in a better position in terms of knowledge and
experience to run the agency in a temporary capacity. Should none of them
merit the Presidents confidence, then the practical remedy would be for
Undersecretary Bautista to first resign as Undersecretary in order to qualify
her as Administrator of MARINA. As to whether she in fact does not receive or
has waived any remuneration, the same does not matter because
remuneration is not an element in determining whether there has been a
violation of Section 13, Article VII of the 1987 Constitution.[11]
Petitioner likewise asserts the incompatibility between the posts of DOTC
Undersecretary and MARINA Administrator. The reason is that with respect to
the affairs in the maritime industry, the recommendations of the MARINA may
be the subject of counter or opposing recommendations from the
Undersecretary for Maritime Transport. In this case, the DOTC Undersecretary
for Maritime Transport and the OIC of MARINA have become one (1) and the
same person. There is no more checking and counter-checking of powers and
functions, and therein lies the danger to the maritime industry. There is no
longer a person above the Administrator of MARINA who will be reviewing the
acts of said agency because the person who should be overseeing MARINA,
the Undersecretary for Maritime Transport, has effectively been
compromised.[12]
Finally, petitioner contends that there is a strong possibility in this case that
the challenge herein can be rendered moot through the expediency of simply
revoking the temporary appointment/designation. But since a similar violation
can be committed in the future, there exists a possibility of evading review, and
hence supervening events should not prevent the Court from deciding cases
involving grave violation of the 1987 Constitution, as this Court ruled in Public
Interest Center. Notwithstanding its mootness therefore, should it occur, there
is a compelling reason for this case to be decided: the issue raised being
capable of repetition, yet evading review.[13]
On the other hand, the respondents argue that the requisites of a judicial
inquiry are not present in this case. In fact, there no longer exists an actual
controversy that needs to be resolved in view of the appointment of respondent
Bautista as MARINA Administrator effective February 2, 2009 and the
relinquishment of her post as DOTC Undersecretary for Maritime Transport,
which rendered the present petition moot and academic. Petitioners prayer for
a temporary restraining order or writ of preliminary injunction is likewise moot
and academic since, with this supervening event, there is nothing left to
enjoin.[14]
Respondents also raise the lack of legal standing of petitioner to bring this suit.
Clear from the standard set in Public Interest Center is the requirement that
the party suing as a taxpayer must prove that he has sufficient interest in
preventing illegal expenditure of public funds, and more particularly, his
personal and substantial interest in the case. Petitioner, however, has not
alleged any personal or substantial interest in this case. Neither has he
claimed that public funds were actually disbursed in connection with
respondent Bautistas designation as MARINA OIC. It is to be noted that
respondent Bautista did not receive any salary while she was MARINA OIC.
As to the alleged transcendental importance of an issue, this should not
automatically confer legal standing on a party.[15]
Assuming for the sake of argument that the legal question raised herein needs
to be resolved, respondents submit that the petition should still be dismissed
for being unmeritorious considering that Bautistas concurrent designation as
MARINA OIC and DOTC Undersecretary was constitutional. There was no
violation of Section 13, Article VII of the 1987 Constitution because respondent
Bautista was merely designated acting head of MARINA on September 1,
2008. She was designated MARINA OIC, not appointed MARINA
Administrator. With the resignation of Vicente T. Suazo, Jr., the position of
MARINA Administrator was left vacant, and pending the appointment of
permanent Administrator, respondent Bautista was designated OIC in a
temporary capacity for the purpose of preventing a hiatus in the discharge of
official functions. Her case thus falls under the recognized exceptions to the
rule against multiple offices, i.e., without additional compensation (she did not
receive any emolument as MARINA OIC) and as required by the primary
functions of the office. Besides, Bautista held the position for four (4) months
only, as in fact when she was appointed MARINA Administrator on February
2, 2009, she relinquished her post as DOTC Undersecretary for Maritime
Transport, in acknowledgment of the proscription on the holding of multiple
offices.[16]
As to petitioners argument that the DOTC Undersecretary for Maritime
Transport and MARINA Administrator are incompatible offices, respondents
cite the test laid down in People v. Green,[17] which held that [T]he offices
must subordinate, one [over] the other, and they must, per se, have the right
to interfere, one with the other, before they are compatible at common law.
Thus, respondents point out that any recommendation by the MARINA
Administrator concerning issues of policy and administration go to the
MARINA Board and not the Undersecretary for Maritime Transport. The
Undersecretary for Maritime Transport is, in turn, under the direct supervision
of the DOTC Secretary. Petitioners fear that there is no longer a person above
the Administrator of MARINA who will be reviewing the acts of said agency
(the Undersecretary for Maritime Transport) is, therefore, clearly
unfounded.[18]
In his Reply, petitioner contends that respondents argument on the
incompatibility of positions was made on the mere assumption that the
positions of DOTC Undersecretary for Maritime Transport and the
administratorship of MARINA are closely related and is governed by Section
7, paragraph 2, Article IX-B of the 1987 Constitution rather than by Section 13,
Article VII. In other words, it was a mere secondary argument. The fact remains
that, incompatible or not, Section 13, Article VII still does not allow the herein
challenged designation.[19]
The sole issue to be resolved is whether or not the designation of respondent
Bautista as OIC of MARINA, concurrent with the position of DOTC
Undersecretary for Maritime Transport to which she had been appointed,
violated the constitutional proscription against dual or multiple offices for
Cabinet Members and their deputies and assistants.
Our Ruling
The petition is meritorious.
Requisites for Judicial Review
The courts power of judicial review, like almost all other powers conferred by
the Constitution, is subject to several limitations, namely: (1) there must be an
actual case or controversy calling for the exercise of judicial power; (2) the
person challenging the act must have standing to challenge; he must have a
personal and substantial interest in the case, such that he has sustained or
will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest possible opportunity; and (4) the
issue of constitutionality must be the very lis mota of the case.[20]
Respondents assert that the second requisite is absent in this case.
Generally, a party will be allowed to litigate only when (1) he can show that he
has personally suffered some actual or threatened injury because of the
allegedly illegal conduct of the government; (2) the injury is fairly traceable to
the challenged action; and (3) the injury is likely to be redressed by a favorable
action.[21] The question on standing is whether such parties have alleged
such a personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which
the court so largely depends for illumination of difficult constitutional
questions.[22]
In David v. Macapagal-Arroyo,[23] summarizing the rules culled from
jurisprudence, we held that taxpayers, voters, concerned citizens, and
legislators may be accorded standing to sue, provided that the following
requirements are met:
(1) cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds
or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the
election law in question;
(4) for concerned citizens, there must be a showing that the issues raised are
of transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of
infringes upon their prerogatives as legislators. [EMPHASIS SUPPLIED.]
Petitioner having alleged a grave violation of the constitutional prohibition
against Members of the Cabinet, their deputies and assistants holding two (2)
or more positions in government, the fact that he filed this suit as a concerned
citizen sufficiently confers him with standing to sue for redress of such illegal
act by public officials.
The other objection raised by the respondent is that the resolution of this case
had been overtaken by events considering the effectivity of respondent
Bautistas appointment as MARINA Administrator effective February 2, 2009
and her relinquishment of her former position as DOTC Undersecretary for
Maritime Transport.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon
would be of no practical use or value. Generally, courts decline jurisdiction
over such case or dismiss it on ground of mootness.[24] However, as we held
in Public Interest Center, Inc. v. Elma,[25] supervening events, whether
intended or accidental, cannot prevent the Court from rendering a decision if
there is a grave violation of the Constitution. Even in cases where supervening
events had made the cases moot, this Court did not hesitate to resolve the
legal or constitutional issues raised to formulate controlling principles to guide
the bench, bar, and public.[26]
As a rule, the writ of prohibition will not lie to enjoin acts already done.
However, as an exception to the rule on mootness, courts will decide a
question otherwise moot if it is capable of repetition yet evading review.[27] In
the present case, the mootness of the petition does not bar its resolution. The
question of the constitutionality of the Presidents appointment or designation
of a Department Undersecretary as officer-in-charge of an attached agency
will arise in every such appointment.[28]
Undersecretary Bautistas designation as MARINA OIC falls under the stricter
prohibition under Section 13, Article VII of the 1987 Constitution.
Resolution of the present controversy hinges on the correct application of
Section 13, Article VII of the 1987 Constitution, which provides:
SEC. 13. The President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this Constitution,
hold any other office or employment during their tenure. They shall not, during
said tenure, directly or indirectly practice any other profession, participate in
any business, or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government or any subdivision,
agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of interest in
the conduct of their office.
On the other hand, Section 7, paragraph (2), Article IX-B reads:
SEC. 7. x x x
Unless otherwise allowed by law or the primary functions of his position, no
appointive official shall hold any other office or employment in the Government
or any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries.
In Civil Liberties Union, a constitutional challenge was brought before this
Court to nullify EO No. 284 issued by then President Corazon C. Aquino on
July 25, 1987, which included Members of the Cabinet, undersecretaries and
assistant secretaries in its provisions limiting to two (2) the positions that
appointive officials of the Executive Department may hold in government and
government corporations. Interpreting the above provisions in the light of the
history and times and the conditions and circumstances under which the
Constitution was framed, this Court struck down as unconstitutional said
executive issuance, saying that it actually allows them to hold multiple offices
or employment in direct contravention of the express mandate of Section 13,
Article VII of the 1987 Constitution prohibiting them from doing so, unless
otherwise provided in the 1987 Constitution itself.
Noting that the prohibition imposed on the President and his official family is
all-embracing, the disqualification was held to be absolute, as the holding of
any other office is not qualified by the phrase in the Government unlike in
Section 13, Article VI prohibiting Senators and Members of the House of
Representatives from holding any other office or employment in the
Government; and when compared with other officials and employees such as
members of the armed forces and civil service employees, we concluded thus:
These sweeping, all-embracing prohibitions imposed on the President and his
official family, which prohibitions are not similarly imposed on other public
officials or employees such as the Members of Congress, members of the civil
service in general and members of the armed forces, are proof of the intent of
the 1987 Constitution to treat the President and his official family as a class by
itself and to impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the
President and his official family was also succinctly articulated by
Commissioner Vicente Foz after Commissioner Regalado Maambong noted
during the floor deliberations and debate that there was no symmetry between
the Civil Service prohibitions, originally found in the General Provisions and
the anticipated report on the Executive Department. Commissioner Foz
Commented, We actually have to be stricter with the President and the
members of the Cabinet because they exercise more powers and, therefore,
more checks and restraints on them are called for because there is more
possibility of abuse in their case.
Thus, while all other appointive officials in the civil service are allowed to hold
other office or employment in the government during their tenure when such
is allowed by law or by the primary functions of their positions, members of the
Cabinet, their deputies and assistants may do so only when expressly
authorized by the Constitution itself. In other words, Section 7, Article IX-B is
meant to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant to be the
exception applicable only to the President, the Vice-President, Members of the
Cabinet, their deputies and assistants.
xxxx
Since the evident purpose of the framers of the 1987 Constitution is to impose
a stricter prohibition on the President, Vice-President, members of the Cabinet,
their deputies and assistants with respect to holding multiple offices or
employment in the government during their tenure, the exception to this
prohibition must be read with equal severity. On its face, the language of
Section 13, Article VII is prohibitory so that it must be understood as intended
to be a positive and unequivocal negation of the privilege of holding multiple
government offices or employment. Verily, wherever the language used in the
constitution is prohibitory, it is to be understood as intended to be a positive
and unequivocal negation. The phrase unless otherwise provided in this
Constitution must be given a literal interpretation to refer only to those
particular instances cited in the Constitution itself, to wit: the Vice-President
being appointed as a member of the Cabinet under Section 3, par. (2), Article
VII; or acting as President in those instances provided under Section 7, pars.
(2) and (3), Article VII; and, the Secretary of Justice being ex-officio member
of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.[29]
[EMPHASIS SUPPLIED.]
Respondent Bautista being then the appointed Undersecretary of DOTC, she
was thus covered by the stricter prohibition under Section 13, Article VII and
consequently she cannot invoke the exception provided in Section 7,
paragraph 2, Article IX-B where holding another office is allowed by law or the
primary functions of the position. Neither was she designated OIC of MARINA
in an ex-officio capacity, which is the exception recognized in Civil Liberties
Union.
The prohibition against holding dual or multiple offices or employment under
Section 13, Article VII of the 1987 Constitution was held inapplicable to posts
occupied by the Executive officials specified therein, without additional
compensation in an ex-officio capacity as provided by law and as required by
the primary functions of said office. The reason is that these posts do not
comprise any other office within the contemplation of the constitutional
prohibition but are properly an imposition of additional duties and functions on
said officials.[30] Apart from their bare assertion that respondent Bautista did
not receive any compensation when she was OIC of MARINA, respondents
failed to demonstrate clearly that her designation as such OIC was in an ex-
officio capacity as required by the primary functions of her office as DOTC
Undersecretary for Maritime Transport.
MARINA was created by virtue of P.D. No. 474 issued by President Ferdinand
E. Marcos on June 1, 1974. It is mandated to undertake the following:
(a) Adopt and implement a practicable and coordinated Maritime Industry
Development Program which shall include, among others, the early
replacement of obsolescent and uneconomic vessels; modernization and
expansion of the Philippine merchant fleet, enhancement of domestic
capability for shipbuilding, repair and maintenance; and the development of
reservoir of trained manpower;
(b) Provide and help provide the necessary; (i) financial assistance to the
industry through public and private financing institutions and instrumentalities;
(ii) technological assistance; and (iii) in general, a favorable climate for
expansion of domestic and foreign investments in shipping enterprises; and
(c) Provide for the effective supervision, regulation and rationalization of the
organizational management, ownership and operations of all water transport
utilities, and other maritime enterprises.[31]
The management of MARINA is vested in the Maritime Administrator, who
shall be directly assisted by the Deputy Administrator for Planning and a
Deputy Administrator for Operations, who shall be appointed by the President
for a term of six (6) years. The law likewise prescribes the qualifications for the
office, including such adequate training and experience in economics,
technology, finance, law, management, public utility, or in other phases or
aspects of the maritime industry, and he or she is entitled to receive a fixed
annual salary.[32] The Administrator shall be directly responsible to the
Maritime Industry Board, MARINAs governing body, and shall have powers,
functions and duties as provided in P.D. No. 474, which provides, under
Sections 11 and 12, for his or her general and specific functions, respectively,
as follows:
SEC. 11. General Powers and Functions of the Administrator. Subject to the
general supervision and control of the Board, the Administrators shall have the
following general powers, functions and duties;
a. To implement, enforce and apply the policies, programs, standards,
guidelines, procedures, decisions and rules and regulations issued, prescribed
or adopted by the Board pursuant to this Decree;
b. To undertake researches, studies, investigations and other activities and
projects, on his own initiative or upon instructions of the Board, and to submit
comprehensive reports and appropriate recommendations to the Board for its
information and action;
c. To undertake studies to determine present and future requirements for port
development including navigational aids, and improvement of waterways and
navigable waters in consultation with appropriate agencies;
d. To pursue continuing research and developmental programs on expansion
and modernization of the merchant fleet and supporting facilities taking into
consideration the needs of the domestic trade and the need of regional
economic cooperation schemes; and
e. To manage the affairs of the Authority subject to the provisions of this
Decree and applicable laws, orders, rules and regulations of other appropriate
government entities.
SEC. 12. Specific Powers and Functions of the Administrator. In addition to his
general powers and functions, the Administrator shall;
a. Issue Certificate of Philippine Registry for all vessels being used in
Philippine waters, including fishing vessels covered by Presidential Decree
No. 43 except transient civilian vessels of foreign registry, vessels owned
and/or operated by the Armed Forces of the Philippines or by foreign
governments for military purposes, and bancas, sailboats and other watercraft
which are not motorized, of less than three gross tons;
b. Provide a system of assisting various officers, professionals, technicians,
skilled workers and seamen to be gainfully employed in shipping enterprises,
priority being given to domestic needs;
c. In collaboration and coordination with the Department of Labor, to look into,
and promote improvements in the working conditions and terms of
employment of the officers and crew of vessels of Philippine registry, and of
such officers and crew members who are Philippine citizens and employed by
foreign flag vessels, as well as of personnel of other shipping enterprises, and
to assist in the settlement of disputes between the shipowners and ship
operators and such officers and crew members and between the owner or
manager of other shipping enterprises and their personnel;
d. To require any public water transport utility or Philippine flag vessels to
provide shipping services to any coastal areas in the country where such
services are necessary for the development of the area, to meet emergency
sealift requirements, or when public interest so requires;
e. Investigate by itself or with the assistance of other appropriate government
agencies or officials, or experts from the private sector, any matter within its
jurisdiction, except marine casualties or accidents which shall be undertaken
by the Philippine Coast Guard;
f. Impose, fix, collect and receive in accordance with the schedules approved
by the Board, from any shipping enterprise or other persons concerned, such
fees and other charges for the payment of its services;
g. Inspect, at least annually, the facilities of port and cargo operators and
recommend measures for adherence to prescribed standards of safety, quality
and operations;
h. Approve the sale, lease or transfer of management of vessels owned by
Philippine Nationals to foreign owned or controlled enterprises;
i. Prescribe and enforce rules and regulations for the prevention of marine
pollution in bays, harbors and other navigable waters of the Philippines, in
coordination with the government authorities concerned;
j. Establish and maintain, in coordination with the appropriate government
offices and agencies, a system of regularly and promptly producing, collating,
analyzing and disseminating traffic flows, port operations, marine insurance
services and other information on maritime matters;
k. Recommend such measures as may be necessary for the regulation of the
importation into and exportation from the Philippines of vessels, their
equipment and spare parts;
l. Implement the rules and regulations issued by the Board of Transportation;
m. Compile and codify all maritime laws, orders, rules and regulations,
decisions in leasing cases of courts and the Authoritys procedures and other
requirements relative to shipping and other shipping enterprises, make them
available to the public, and, whenever practicable to publish such materials;
n. Delegate his powers in writing to either of the Deputy Administrators or any
other ranking officials of the Authority; Provided, That he informs the Board of
such delegation promptly; and
o. Perform such other duties as the Board may assign, and such acts as may
be necessary and proper to implement this Decree.
With the creation of the Ministry (now Department) of Transportation and
Communications by virtue of EO No. 546, MARINA was attached to the DOTC
for policy and program coordination on July 23, 1979. Its regulatory function
was likewise increased with the issuance of EO No. 1011 which abolished the
Board of Transportation and transferred the quasi-judicial functions pertaining
to water transportation to MARINA. On January 30, 1987, EO No. 125
(amended by EO No. 125-A) was issued reorganizing the DOTC. The powers
and functions of the department and the agencies under its umbrella were
defined, further increasing the responsibility of MARINA to the industry.
Republic Act No. 9295, otherwise known as the The Domestic Shipping
Development Act of 2004,[33] further strengthened MARINAs regulatory
powers and functions in the shipping sector.
Given the vast responsibilities and scope of administration of the Authority, we
are hardly persuaded by respondents submission that respondent Bautistas
designation as OIC of MARINA was merely an imposition of additional duties
related to her primary position as DOTC Undersecretary for Maritime
Transport. It appears that the DOTC Undersecretary for Maritime Transport is
not even a member of the Maritime Industry Board, which includes the DOTC
Secretary as Chairman, the MARINA Administrator as Vice-Chairman, and the
following as members: Executive Secretary (Office of the President),
Philippine Ports Authority General Manager, Department of National Defense
Secretary, Development Bank of the Philippines General Manager, and the
Department of Trade and Industry Secretary.[34]
Finally, the Court similarly finds respondents theory that being just a
designation, and temporary at that, respondent Bautista was never really
appointed as OIC Administrator of MARINA, untenable. In Binamira v.
Garrucho, Jr.,[35] we distinguished between the terms appointment and
designation, as follows:
Appointment may be defined as the selection, by the authority vested with the
power, of an individual who is to exercise the functions of a given office. When
completed, usually with its confirmation, the appointment results in security of
tenure for the person chosen unless he is replaceable at pleasure because of
the nature of his office. Designation, on the other hand, connotes merely the
imposition by law of additional duties on an incumbent official, as where, in the
case before us, the Secretary of Tourism is designated Chairman of the Board
of Directors of the Philippine Tourism Authority, or where, under the
Constitution, three Justices of the Supreme Court are designated by the Chief
Justice to sit in the Electoral Tribunal of the Senate or the House of
Representatives. It is said that appointment is essentially executive while
designation is legislative in nature.
Designation may also be loosely defined as an appointment because it
likewise involves the naming of a particular person to a specified public office.
That is the common understanding of the term. However, where the person is
merely designated and not appointed, the implication is that he shall hold the
office only in a temporary capacity and may be replaced at will by the
appointing authority. In this sense, the designation is considered only an acting
or temporary appointment, which does not confer security of tenure on the
person named.[36] [EMPHASIS SUPPLIED.]
Clearly, respondents reliance on the foregoing definitions is misplaced
considering that the above-cited case addressed the issue of whether
petitioner therein acquired valid title to the disputed position and so had the
right to security of tenure. It must be stressed though that while the designation
was in the nature of an acting and temporary capacity, the words hold the office
were employed. Such holding of office pertains to both appointment and
designation because the appointee or designate performs the duties and
functions of the office. The 1987 Constitution in prohibiting dual or multiple
offices, as well as incompatible offices, refers to the holding of the office, and
not to the nature of the appointment or designation, words which were not even
found in Section 13, Article VII nor in Section 7, paragraph 2, Article IX-B. To
hold an office means to possess or occupy the same, or to be in possession
and administration,[37] which implies nothing less than the actual discharge of
the functions and duties of the office.
The disqualification laid down in Section 13, Article VII is aimed at preventing
the concentration of powers in the Executive Department officials, specifically
the President, Vice-President, Members of the Cabinet and their deputies and
assistants. Civil Liberties Union traced the history of the times and the
conditions under which the Constitution was framed, and construed the
Constitution consistent with the object sought to be accomplished by adoption
of such provision, and the evils sought to be avoided or remedied. We recalled
the practice, during the Marcos regime, of designating members of the
Cabinet, their deputies and assistants as members of the governing bodies or
boards of various government agencies and instrumentalities, including
government-owned or controlled corporations. This practice of holding multiple
offices or positions in the government led to abuses by unscrupulous public
officials, who took advantage of this scheme for purposes of self-enrichment.
The blatant betrayal of public trust evolved into one of the serious causes of
discontent with the Marcos regime. It was therefore quite inevitable and in
consonance with the overwhelming sentiment of the people that the 1986
Constitutional Commission would draft into the proposed Constitution the
provisions under consideration, which were envisioned to remedy, if not
correct, the evils that flow from the holding of multiple governmental offices
and employment.[38] Our declaration in that case cannot be more explicit:
But what is indeed significant is the fact that although Section 7, Article IX-B
already contains a blanket prohibition against the holding of multiple offices or
employment in the government subsuming both elective and appointive public
officials, the Constitutional Commission should see it fit to formulate another
provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-
President, members of the Cabinet, their deputies and assistants from holding
any other office or employment during their tenure, unless otherwise provided
in the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the
constitutional provisions in question, the intent of the framers of the
Constitution was to impose a stricter prohibition on the President and his
official family in so far as holding other offices or employment in the
government or elsewhere is concerned.[39] [EMPHASIS SUPPLIED.]
Such laudable intent of the law will be defeated and rendered sterile if we are
to adopt the semantics of respondents. It would open the veritable floodgates
of circumvention of an important constitutional disqualification of officials in the
Executive Department and of limitations on the Presidents power of
appointment in the guise of temporary designations of Cabinet Members,
undersecretaries and assistant secretaries as officers-in-charge of
government agencies, instrumentalities, or government-owned or controlled
corporations.
As to respondents contention that the concurrent positions of DOTC
Undersecretary for Maritime Transport and MARINA OIC Administrator are not
incompatible offices, we find no necessity for delving into this matter.
Incompatibility of offices is irrelevant in this case, unlike in the case of PCGG
Chairman Magdangal Elma in Public Interest Center, Inc. v. Elma.[40] Therein
we held that Section 13, Article VII is not applicable to the PCGG Chairman or
to the Chief Presidential Legal Counsel, as he is not a cabinet member,
undersecretary or assistant secretary.[41]
WHEREFORE, the petition is GRANTED. The designation of respondent Ma.
Elena H. Bautista as Officer-in-Charge, Office of the Administrator, Maritime
Industry Authority, in a concurrent capacity with her position as DOTC
Undersecretary for Maritime Transport, is hereby declared
UNCONSTITUTIONAL for being violative of Section 13, Article VII of the 1987
Constitution and therefore, NULL and VOID.
No costs.
G.R. No. 191644 February 19, 2013
DENNIS A.B. FUNA, Petitioner,
vs.
CTING SECRETARY OF JUSTICE ALBERTO C. AGRA, IN HIS OFFICIAL
CONCURRENT CAPACITIES AS ACTING SECRETARY OF THE
DEPARTMENT OF JUSTICE AND AS ACTING SOLICITOR GENERAL,
EXECUTIVE SECRETARY LEANDRO R. MENDOZA, OFFICE OF THE
PRESIDENT, Respondents.
DECISION
BERSAMIN, J.:
Section 13, Article VII of the 1987 Constitution expressly prohibits the
President, Vice-President, the Members of the Cabinet, and their deputies or
assistants from holding any other office or employment during their tenure
unless otherwise provided in the Constitution. Complementing the prohibition
is Section 7, paragraph (2), Article IX-B of the 1987 Constitution, which bans
any appointive official from holding any other office or employment in the
Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries, unless
otherwise allowed by law or the primary functions of his position.
These prohibitions under the Constitution are at the core of this special civil
action for certiorari and prohibition commenced on April 7, 2010 to assail the
designation of respondent Hon. Alberto C. Agra, then the Acting Secretary of
Justice, as concurrently the Acting Solicitor General.
Antecedents
The petitioner alleges that on March 1, 2010, President Gloria M. Macapagal-
Arroyo appointed Agra as the Acting Secretary of Justice following the
resignation of Secretary Agnes VST Devanadera in order to vie for a
congressional seat in Quezon Province; that on March 5, 2010, President
Arroyo designated Agra as the Acting Solicitor General in a concurrent
capacity;1 that on April 7, 2010, the petitioner, in his capacity as a taxpayer, a
concerned citizen and a lawyer, commenced this suit to challenge the
constitutionality of Agras concurrent appointments or designations, claiming it
to be prohibited under Section 13, Article VII of the 1987 Constitution; that
during the pendency of the suit, President Benigno S. Aquino III appointed
Atty. Jose Anselmo I. Cadiz as the Solicitor General; and that Cadiz assumed
as the Solicitor General and commenced his duties as such on August 5,
2010.2
Agra renders a different version of the antecedents. He represents that on
January 12, 2010, he was then the Government Corporate Counsel when
President Arroyo designated him as the Acting Solicitor General in place of
Solicitor General Devanadera who had been appointed as the Secretary of
Justice;3 that on March 5, 2010, President Arroyo designated him also as the
Acting Secretary of Justice vice Secretary Devanadera who had meanwhile
tendered her resignation in order to run for Congress representing a district in
Quezon Province in the May 2010 elections; that he then relinquished his
position as the Government Corporate Counsel; and that pending the
appointment of his successor, Agra continued to perform his duties as the
Acting Solicitor General.4
Notwithstanding the conflict in the versions of the parties, the fact that Agra
has admitted to holding the two offices concurrently in acting capacities is
settled, which is sufficient for purposes of resolving the constitutional question
that petitioner raises herein.
The Case
In Funa v. Ermita,5 the Court resolved a petition for certiorari, prohibition and
mandamus brought by herein petitioner assailing the constitutionality of the
designation of then Undersecretary of the Department of Transportation and
Communications (DOTC) Maria Elena H. Bautista as concurrently the Officer-
in-Charge of the Maritime Industry Authority. The petitioner has adopted here
the arguments he advanced in Funa v. Ermita, and he has rested his grounds
of challenge mainly on the pronouncements in Civil Liberties Union v.
Executive Secretary6 and Public Interest Center, Inc. v. Elma.7
What may differentiate this challenge from those in the others is that the
appointments being hereby challenged were in acting or temporary capacities.
Still, the petitioner submits that the prohibition under Section 13, Article VII of
the 1987 Constitution does not distinguish between an appointment or
designation of a Member of the Cabinet in an acting or temporary capacity, on
the one hand, and one in a permanent capacity, on the other hand; and that
Acting Secretaries, being nonetheless Members of the Cabinet, are not
exempt from the constitutional ban. He emphasizes that the position of the
Solicitor General is not an ex officio position in relation to the position of the
Secretary of Justice, considering that the Office of the Solicitor General (OSG)
is an independent and autonomous office attached to the Department of
Justice (DOJ).8 He insists that the fact that Agra was extended an appointment
as the Acting Solicitor General shows that he did not occupy that office in an
ex officio capacity because an ex officio position does not require any further
warrant or appointment.
Respondents contend, in contrast, that Agras concurrent designations as the
Acting Secretary of Justice and Acting Solicitor General were only in a
temporary capacity, the only effect of which was to confer additional duties to
him. Thus, as the Acting Solicitor General and Acting Secretary of Justice,
Agra was not "holding" both offices in the strict constitutional sense.9 They
argue that an appointment, to be covered by the constitutional prohibition,
must be regular and permanent, instead of a mere designation.
Respondents further contend that, even on the assumption that Agras
concurrent designation constituted "holding of multiple offices," his continued
service as the Acting Solicitor General was akin to a hold-over; that upon
Agras designation as the Acting Secretary of Justice, his term as the Acting
Solicitor General expired in view of the constitutional prohibition against
holding of multiple offices by the Members of the Cabinet; that under the
principle of hold-over, Agra continued his service as the Acting Solicitor
General "until his successor is elected and qualified"10 to "prevent a hiatus in
the government pending the time when a successor may be chosen and
inducted into office;"11 and that during his continued service as the Acting
Solicitor General, he did not receive any salaries and emoluments from the
OSG after becoming the Acting Secretary of Justice on March 5, 2010.12
Respondents point out that the OSGs independence and autonomy are
defined by the powers and functions conferred to that office by law, not by the
person appointed to head such office;13 and that although the OSG is
attached to the DOJ, the DOJs authority, control and supervision over the
OSG are limited only to budgetary purposes.14
In his reply, petitioner counters that there was no "prevailing special
circumstance" that justified the non-application to Agra of Section 13, Article
VII of the 1987 Constitution;15 that the temporariness of the appointment or
designation is not an excuse to disregard the constitutional ban against holding
of multiple offices by the Members of the Cabinet;16 that Agras invocation of
the principle of hold-over is misplaced for being predicated upon an erroneous
presentation of a material fact as to the time of his designation as the Acting
Solicitor General and Acting Secretary of Justice; that Agras concurrent
designations further violated the Administrative Code of 1987 which mandates
that the OSG shall be autonomous and independent.17
Issue
Did the designation of Agra as the Acting Secretary of Justice, concurrently
with his position of Acting Solicitor General, violate the constitutional
prohibition against dual or multiple offices for the Members of the Cabinet and
their deputies and assistants?
Ruling
The petition is meritorious.
The designation of Agra as Acting Secretary of Justice concurrently with his
position of Acting Solicitor General was unconstitutional and void for being in
violation of the constitutional prohibition under Section 13, Article VII of the
1987 Constitution.
1.
Requisites of judicial review not in issue
The power of judicial review is subject to limitations, to wit: (1) there must be
an actual case or controversy calling for the exercise of judicial power; (2) the
person challenging the act must have the standing to assail the validity of the
subject act or issuance, that is, he must have a personal and substantial
interest in the case such that he has sustained, or will sustain, direct injury as
a result of its enforcement; (3) the question of constitutionality must be raised
at the earliest opportunity; and (4) the issue of constitutionality must be the
very lis mota of the case.18
Here, the OSG does not dispute the justiciability and ripeness for consideration
and resolution by the Court of the matter raised by the petitioner. Also, the
locus standi of the petitioner as a taxpayer, a concerned citizen and a lawyer
to bring a suit of this nature has already been settled in his favor in rulings by
the Court on several other public law litigations he brought. In Funa v. Villar,19
for one, the Court has held:
To have legal standing, therefore, a suitor must show that he has sustained or
will sustain a "direct injury" as a result of a government action, or have a
"material interest" in the issue affected by the challenged official act. However,
the Court has time and again acted liberally on the locus standi requirements
and has accorded certain individuals, not otherwise directly injured, or with
material interest affected, by a Government act, standing to sue provided a
constitutional issue of critical significance is at stake. The rule on locus standi
is after all a mere procedural technicality in relation to which the Court, in a
catena of cases involving a subject of transcendental import, has waived, or
relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens,
taxpayers, voters or legislators, to sue in the public interest, albeit they may
not have been personally injured by the operation of a law or any other
government act. In David, the Court laid out the bare minimum norm before
the so-called "non-traditional suitors" may be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of illegal disbursement of public funds
or that the tax measure is unconstitutional;
2.) For voters, there must be a showing of obvious interest in the validity of the
election law in question;
3.) For concerned citizens, there must be a showing that the issues raised are
of transcendental importance which must be settled early; and
4.) For legislators, there must be a claim that the official action complained of
infringes their prerogatives as legislators.
This case before Us is of transcendental importance, since it obviously has
"far-reaching implications," and there is a need to promulgate rules that will
guide the bench, bar, and the public in future analogous cases. We, thus,
assume a liberal stance and allow petitioner to institute the instant petition.20
(Bold emphasis supplied)
In Funa v. Ermita,21 the Court recognized the locus standi of the petitioner as
a taxpayer, a concerned citizen and a lawyer because the issue raised therein
involved a subject of transcendental importance whose resolution was
necessary to promulgate rules to guide the Bench, Bar, and the public in
similar cases.
But, it is next posed, did not the intervening appointment of and assumption
by Cadiz as the Solicitor General during the pendency of this suit render this
suit and the issue tendered herein moot and academic?
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon
would be of no practical use or value.22 Although the controversy could have
ceased due to the intervening appointment of and assumption by Cadiz as the
Solicitor General during the pendency of this suit, and such cessation of the
controversy seemingly rendered moot and academic the resolution of the
issue of the constitutionality of the concurrent holding of the two positions by
Agra, the Court should still go forward and resolve the issue and not abstain
from exercising its power of judicial review because this case comes under
several of the well-recognized exceptions established in jurisprudence. Verily,
the Court did not desist from resolving an issue that a supervening event
meanwhile rendered moot and academic if any of the following recognized
exceptions obtained, namely: (1) there was a grave violation of the
Constitution; (2) the case involved a situation of exceptional character and was
of paramount public interest; (3) the constitutional issue raised required the
formulation of controlling principles to guide the Bench, the Bar and the public;
and (4) the case was capable of repetition, yet evading review.23
It is the same here. The constitutionality of the concurrent holding by Agra of
the two positions in the Cabinet, albeit in acting capacities, was an issue that
comes under all the recognized exceptions. The issue involves a probable
violation of the Constitution, and relates to a situation of exceptional character
and of paramount public interest by reason of its transcendental importance to
the people. The resolution of the issue will also be of the greatest value to the
Bench and the Bar in view of the broad powers wielded through said positions.
The situation further calls for the review because the situation is capable of
repetition, yet evading review.24 In other words, many important and practical
benefits are still to be gained were the Court to proceed to the ultimate
resolution of the constitutional issue posed.
2.
Unconstitutionality of Agras concurrent designation as Acting Secretary of
Justice and Acting Solicitor General
At the center of the controversy is the correct application of Section 13, Article
VII of the 1987 Constitution, viz:
Section 13. The President, Vice-President, the Members of the Cabinet, and
their deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure. They
shall not, during said tenure, directly or indirectly practice any other profession,
participate in any business, or be financially interested in any contract with, or
in any franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries. They shall strictly avoid conflict
of interest in the conduct of their office.
A relevant and complementing provision is Section 7, paragraph (2), Article IX-
B of the 1987 Constitution, to wit:
Section 7. x x x
Unless otherwise allowed by law or the primary functions of his position, no
appointive official shall hold any other office or employment in the Government
or any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries.
The differentiation of the two constitutional provisions was well stated in Funa
v. Ermita,25 a case in which the petitioner herein also assailed the designation
of DOTC Undersecretary as concurrent Officer-in-Charge of the Maritime
Industry Authority, with the Court reiterating its pronouncement in Civil
Liberties Union v. The Executive Secretary26 on the intent of the Framers
behind these provisions of the Constitution, viz:
Thus, while all other appointive officials in the civil service are allowed to hold
other office or employment in the government during their tenure when such
is allowed by law or by the primary functions of their positions, members of the
Cabinet, their deputies and assistants may do so only when expressly
authorized by the Constitution itself. In other words, Section 7, Article IX-B is
meant to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant to be the
exception applicable only to the President, the Vice-President, Members of the
Cabinet, their deputies and assistants.
xxxx
Since the evident purpose of the framers of the 1987 Constitution is to impose
a stricter prohibition on the President, Vice-President, members of the Cabinet,
their deputies and assistants with respect to holding multiple offices or
employment in the government during their tenure, the exception to this
prohibition must be read with equal severity. On its face, the language of
Section 13, Article VII is prohibitory so that it must be understood as intended
to be a positive and unequivocal negation of the privilege of holding multiple
government offices or employment. Verily, wherever the language used in the
constitution is prohibitory, it is to be understood as intended to be a positive
and unequivocal negation. The phrase "unless otherwise provided in this
Constitution" must be given a literal interpretation to refer only to those
particular instances cited in the Constitution itself, to wit: the Vice-President
being appointed as a member of the Cabinet under Section 3, par. (2), Article
VII; or acting as President in those instances provided under Section 7, pars.
(2) and (3), Article VII; and, the Secretary of Justice being ex-officio member
of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII. (Bold
emphasis supplied.)
Being designated as the Acting Secretary of Justice concurrently with his
position of Acting Solicitor General, therefore, Agra was undoubtedly covered
by Section 13, Article VII, supra, whose text and spirit were too clear to be
differently read. Hence, Agra could not validly hold any other office or
employment during his tenure as the Acting Solicitor General, because the
Constitution has not otherwise so provided.27
It was of no moment that Agras designation was in an acting or temporary
capacity. The text of Section 13, supra, plainly indicates that the intent of the
Framers of the Constitution was to impose a stricter prohibition on the
President and the Members of his Cabinet in so far as holding other offices or
employments in the Government or in government-owned or government
controlled-corporations was concerned.28 In this regard, to hold an office
means to possess or to occupy the office, or to be in possession and
administration of the office, which implies nothing less than the actual
discharge of the functions and duties of the office.29 Indeed, in the language
of Section 13 itself, supra, the Constitution makes no reference to the nature
of the appointment or designation. The prohibition against dual or multiple
offices being held by one official must be construed as to apply to all
appointments or designations, whether permanent or temporary, for it is
without question that the avowed objective of Section 13, supra, is to prevent
the concentration of powers in the Executive Department officials, specifically
the President, the Vice-President, the Members of the Cabinet and their
deputies and assistants.30 To construe differently is to "open the veritable
floodgates of circumvention of an important constitutional disqualification of
officials in the Executive Department and of limitations on the Presidents
power of appointment in the guise of temporary designations of Cabinet
Members, undersecretaries and assistant secretaries as officers-in-charge of
government agencies, instrumentalities, or government-owned or controlled
corporations."31
According to Public Interest Center, Inc. v. Elma,32 the only two exceptions
against the holding of multiple offices are: (1) those provided for under the
Constitution, such as Section 3, Article VII, authorizing the Vice President to
become a member of the Cabinet; and (2) posts occupied by Executive
officials specified in Section 13, Article VII without additional compensation in
ex officio capacities as provided by law and as required by the primary
functions of the officials offices. In this regard, the decision in Public Interest
Center, Inc. v. Elma adverted to the resolution issued on August 1, 1991 in
Civil Liberties Union v. The Executive Secretary, whereby the Court held that
the phrase "the Members of the Cabinet, and their deputies or assistants"
found in Section 13, supra, referred only to the heads of the various executive
departments, their undersecretaries and assistant secretaries, and did not
extend to other public officials given the rank of Secretary, Undersecretary or
Assistant Secretary.33 Hence, in Public Interest Center, Inc. v. Elma, the Court
opined that the prohibition under Section 13 did not cover Elma, a Presidential
Assistant with the rank of Undersecretary.34
It is equally remarkable, therefore, that Agras designation as the Acting
Secretary of Justice was not in an ex officio capacity, by which he would have
been validly authorized to concurrently hold the two positions due to the
holding of one office being the consequence of holding the other. Being
included in the stricter prohibition embodied in Section 13, supra, Agra cannot
liberally apply in his favor the broad exceptions provided in Section 7,
paragraph 2, Article IX-B of the Constitution ("Unless otherwise allowed by law
or the primary functions of his position") to justify his designation as Acting
Secretary of Justice concurrently with his designation as Acting Solicitor
General, or vice versa. Thus, the Court has said
[T]he qualifying phrase "unless otherwise provided in this Constitution" in
Section 13, Article VII cannot possibly refer to the broad exceptions provided
under Section 7, Article IX-B of the 1987 Constitution. To construe said
qualifying phrase as respondents would have us do, would render nugatory
and meaningless the manifest intent and purpose of the framers of the
Constitution to impose a stricter prohibition on the President, Vice-President,
Members of the Cabinet, their deputies and assistants with respect to holding
other offices or employment in the government during their tenure.
Respondents interpretation that Section 13 of Article VII admits of the
exceptions found in Section 7, par. (2) of Article IX-B would obliterate the
distinction so carefully set by the framers of the Constitution as to when the
highranking officials of the Executive Branch from the President to Assistant
Secretary, on the one hand, and the generality of civil servants from the rank
immediately below Assistant Secretary downwards, on the other, may hold any
other office or position in the government during their tenure.35
To underscore the obvious, it is not sufficient for Agra to show that his holding
of the other office was "allowed by law or the primary functions of his position."
To claim the exemption of his concurrent designations from the coverage of
the stricter prohibition under Section 13, supra, he needed to establish herein
that his concurrent designation was expressly allowed by the Constitution. But,
alas, he did not do so.
To be sure, Agras concurrent designations as Acting Secretary of Justice and
Acting Solicitor General did not come within the definition of an ex officio
capacity. Had either of his concurrent designations been in an ex officio
capacity in relation to the other, the Court might now be ruling in his favor.
The import of an ex officio capacity has been fittingly explained in Civil Liberties
Union v. Executive Secretary,36 as follows:
x x x. The term ex officio means "from office; by virtue of office." It refers to an
"authority derived from official character merely, not expressly conferred upon
the individual character, but rather annexed to the official position." Ex officio
likewise denotes an "act done in an official character, or as a consequence of
office, and without any other appointment or authority other than that conferred
by the office." An ex officio member of a board is one who is a member by
virtue of his title to a certain office, and without further warrant or appointment.
x x x.
xxxx
The ex officio position being actually and in legal contemplation part of the
principal office, it follows that the official concerned has no right to receive
additional compensation for his services in the said position. The reason is that
these services are already paid for and covered by the compensation attached
to his principal office. x x x.
Under the Administrative Code of 1987, the DOJ is mandated to "provide the
government with a principal law agency which shall be both its legal counsel
and prosecution arm; administer the criminal justice system in accordance with
the accepted processes thereof consisting in the investigation of the crimes,
prosecution of offenders and administration of the correctional system;
implement the laws on the admission and stay of aliens, citizenship, land titling
system, and settlement of land problems involving small landowners and
members of indigenous cultural minorities; and provide free legal services to
indigent members of the society."37 The DOJs specific powers and functions
are as follows:
(1) Act as principal law agency of the government and as legal counsel and
representative thereof, whenever so required;
(2) Investigate the commission of crimes, prosecute offenders and administer
the probation and correction system;
(3) Extend free legal assistance/representation to indigents and poor litigants
in criminal cases and non-commercial civil disputes;
(4) Preserve the integrity of land titles through proper registration;
(5) Investigate and arbitrate untitled land disputes involving small landowners
and members of indigenous cultural communities;
(6) Provide immigration and naturalization regulatory services and implement
the laws governing citizenship and the admission and stay of aliens;
(7) Provide legal services to the national government and its functionaries,
including government-owned or controlled corporations and their subsidiaries;
and
(8) Perform such other functions as may be provided by law.38
On the other hand, the Administrative Code of 1987 confers upon the Office of
the Solicitor General the following powers and functions, to wit:
The Office of the Solicitor General shall represent the Government of the
Philippines, its agencies and instrumentalities and its officials and agents in
any litigation, proceeding, investigation or matter requiring the services of
lawyers. When authorized by the President or head of the office concerned, it
shall also represent government owned or controlled corporations. The Office
of the Solicitor General shall discharge duties requiring the services of lawyers.
It shall have the following specific powers and functions:
1. Represent the Government in the Supreme Court and the Court of Appeals
in all criminal proceedings; represent the Government and its officers in the
Supreme Court, the Court of Appeals, and all other courts or tribunals in all
civil actions and special proceedings in which the Government or any officer
thereof in his official capacity is a party.
2. Investigate, initiate court action, or in any manner proceed against any
person, corporation or firm for the enforcement of any contract, bond,
guarantee, mortgage, pledge or other collateral executed in favor of the
Government. Where proceedings are to be conducted outside of the
Philippines the Solicitor General may employ counsel to assist in the discharge
of the aforementioned responsibilities.
3. Appear in any court in any action involving the validity of any treaty, law,
executive order or proclamation, rule or regulation when in his judgment his
intervention is necessary or when requested by the Court.
4. Appear in all proceedings involving the acquisition or loss of Philippine
citizenship.
5. Represent the Government in all land registration and related proceedings.
Institute actions for the reversion to the Government of lands of the public
domain and improvements thereon as well as lands held in violation of the
Constitution.
6. Prepare, upon request of the President or other proper officer of the National
Government, rules and guidelines for government entities governing the
preparation of contracts, making investments, undertaking of transactions, and
drafting of forms or other writings needed for official use, with the end in view
of facilitating their enforcement and insuring that they are entered into or
prepared conformably with law and for the best interests of the public.
7. Deputize, whenever in the opinion of the Solicitor General the public interest
requires, any provincial or city fiscal to assist him in the performance of any
function or discharge of any duty incumbent upon him, within the jurisdiction
of the aforesaid provincial or city fiscal. When so deputized, the fiscal shall be
under the control and supervision of the Solicitor General with regard to the
conduct of the proceedings assigned to the fiscal, and he may be required to
render reports or furnish information regarding the assignment.
8. Deputize legal officers of government departments, bureaus, agencies and
offices to assist the Solicitor General and appear or represent the Government
in cased involving their respective offices, brought before the courts and
exercise supervision and control over such legal Officers with respect to such
cases.
9. Call on any department, bureau, office, agency or instrumentality of the
Government for such service, assistance and cooperation as may be
necessary in fulfilling its functions and responsibilities and for this purpose
enlist the services of any government official or employee in the pursuit of his
tasks.
10. Departments, bureaus, agencies, offices, instrumentalities and
corporations to whom the Office of the Solicitor General renders legal services
are authorized to disburse funds from their sundry operating and other funds
for the latter Office. For this purpose, the Solicitor General and his staff are
specifically authorized to receive allowances as may be provided by the
Government offices, instrumentalities and corporations concerned, in addition
to their regular compensation.
11. Represent, upon the instructions of the President, the Republic of the
Philippines in international litigations, negotiations or conferences where the
legal position of the Republic must be defended or presented.
12. Act and represent the Republic and/or the people before any court,
tribunal, body or commission in any matter, action or proceedings which, in his
opinion affects the welfare of the people as the ends of justice may require;
and
13. Perform such other functions as may be provided by law.39
The foregoing provisions of the applicable laws show that one position was not
derived from the other. Indeed, the powers and functions of the OSG are
neither required by the primary functions nor included by the powers of the
DOJ, and vice versa. The OSG, while attached to the DOJ,40 is not a
constituent unit of the latter,41 as, in fact, the Administrative Code of 1987
decrees that the OSG is independent and autonomous.42 With the enactment
of Republic Act No. 9417,43 the Solicitor General is now vested with a cabinet
rank, and has the same qualifications for appointment, rank, prerogatives,
salaries, allowances, benefits and privileges as those of the Presiding Justice
of the Court of Appeals.44
Moreover, the magnitude of the scope of work of the Solicitor General, if added
to the equally demanding tasks of the Secretary of Justice, is obviously too
much for any one official to bear. Apart from the sure peril of political pressure,
the concurrent holding of the two positions, even if they are not entirely
incompatible, may affect sound government operations and the proper
performance of duties. Heed should be paid to what the Court has pointedly
observed in Civil Liberties Union v. Executive Secretary: 45
Being head of an executive department is no mean job. It is more than a full-
time job, requiring full attention, specialized knowledge, skills and expertise. If
maximum benefits are to be derived from a department heads ability and
expertise, he should be allowed to attend to his duties and responsibilities
without the distraction of other governmental offices or employment. He should
be precluded from dissipating his efforts, attention and energy among too
many positions of responsibility, which may result in haphazardness and
inefficiency. Surely the advantages to be derived from this concentration of
attention, knowledge and expertise, particularly at this stage of our national
and economic development, far outweigh the benefits, if any, that may be
gained from a department head spreading himself too thin and taking in more
than what he can handle.
It is not amiss to observe, lastly, that assuming that Agra, as the Acting
Solicitor General, was not covered by the stricter prohibition under Section 13,
supra, due to such position being merely vested with a cabinet rank under
Section 3, Republic Act No. 9417, he nonetheless remained covered by the
general prohibition under Section 7, supra. Hence, his concurrent designations
were still subject to the conditions under the latter constitutional provision. In
this regard, the Court aptly pointed out in Public Interest Center, Inc. v.
Elma:46
The general rule contained in Article IX-B of the 1987 Constitution permits an
appointive official to hold more than one office only if "allowed by law or by the
primary functions of his position." In the case of Quimson v. Ozaeta, this Court
ruled that, "[t]here is no legal objection to a government official occupying two
government offices and performing the functions of both as long as there is no
incompatibility." The crucial test in determining whether incompatibility exists
between two offices was laid out in People v. Green - whether one office is
subordinate to the other, in the sense that one office has the right to interfere
with the other.
[I]ncompatibility between two offices, is an inconsistency in the functions of the
two; x x x Where one office is not subordinate to the other, nor the relations of
the one to the other such as are inconsistent and repugnant, there is not that
incompatibility from which the law declares that the acceptance of the one is
the vacation of the other. The force of the word, in its application to this matter
is, that from the nature and relations to each other, of the two places, they
ought not to be held by the same person, from the contrariety and antagonism
which would result in the attempt by one person to faithfully and impartially
discharge the duties of one, toward the incumbent of the other. X x x The
offices must subordinate, one [over] the other, and they must, per se, have the
right to interfere, one with the other, before they are incompatible at common
law. x x x.
xxxx
While Section 7, Article IX-B of the 1987 Constitution applies in general to all
elective and appointive officials, Section 13, Article VII, thereof applies in
particular to Cabinet secretaries, undersecretaries and assistant secretaries.
In the Resolution in Civil Liberties Union v. Executive Secretary, this Court
already clarified the scope of the prohibition provided in Section 13, Article VII
of the 1987 Constitution. Citing the case of US v. Mouat, it specifically identified
the persons who are affected by this prohibition as secretaries,
undersecretaries and assistant secretaries; and categorically excluded public
officers who merely have the rank of secretary, undersecretary or assistant
secretary.
Another point of clarification raised by the Solicitor General refers to the
persons affected by the constitutional prohibition. The persons cited in the
constitutional provision are the "Members of the Cabinet, their deputies and
assistants." These terms must be given their common and general acceptation
as referring to the heads of the executive departments, their undersecretaries
and assistant secretaries. Public officials given the rank equivalent to a
Secretary, Undersecretary, or Assistant Secretary are not covered by the
prohibition, nor is the Solicitor General affected thereby. (Italics supplied).
It is clear from the foregoing that the strict prohibition under Section 13, Article
VII of the 1987 Constitution is not applicable to the PCGG Chairman nor to the
CPLC, as neither of them is a secretary, undersecretary, nor an assistant
secretary, even if the former may have the same rank as the latter positions.
It must be emphasized, however, that despite the non-applicability of Section
13, Article VII of the 1987 Constitution to respondent Elma, he remains
covered by the general prohibition under Section 7, Article IX-B and his
appointments must still comply with the standard of compatibility of officers laid
down therein; failing which, his appointments are hereby pronounced in
violation of the Constitution.47
Clearly, the primary functions of the Office of the Solicitor General are not
related or necessary to the primary functions of the Department of Justice.
Considering that the nature and duties of the two offices are such as to render
it improper, from considerations of public policy, for one person to retain
both,48 an incompatibility between the offices exists, further warranting the
declaration of Agras designation as the Acting Secretary of Justice,
concurrently with his designation as the Acting Solicitor General, to be void for
being in violation of the express provisions of the Constitution.
3.
Effect of declaration of unconstitutionality of Agras concurrent appointment;
the de facto officer doctrine
In view of the application of the stricter prohibition under Section 13, supra,
Agra did not validly hold the position of Acting Secretary of Justice concurrently
with his holding of the position of Acting Solicitor General. Accordingly, he was
not to be considered as a de jure officer for the entire period of his tenure as
the Acting Secretary of Justice. A de jure officer is one who is deemed, in all
respects, legally appointed and qualified and whose term of office has not
expired.49
That notwithstanding, Agra was a de facto officer during his tenure as Acting
Secretary of Justice. In Civil Liberties Union v. Executive Secretary,50 the
Court said:
During their tenure in the questioned positions, respondents may be
considered de facto officers and as such entitled to emoluments for actual
services rendered. It has been held that "in cases where there is no de jure,
officer, a de facto officer, who, in good faith has had possession of the office
and has discharged the duties pertaining thereto, is legally entitled to the
emoluments of the office, and may in an appropriate action recover the salary,
fees and other compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems unjust that the
public should benefit by the services of an officer de facto and then be freed
from all liability to pay any one for such services. Any per diem, allowances or
other emoluments received by the respondents by virtue of actual services
rendered in the questioned positions may therefore be retained by them.
A de facto officer is one who derives his appointment from one having
colorable authority to appoint, if the office is an appointive office, and whose
appointment is valid on its face.51 He may also be one who is in possession
of an office, and is discharging its duties under color of authority, by which is
meant authority derived from an appointment, however irregular or informal,
so that the incumbent is not a mere volunteer.52 Consequently, the acts of the
de facto officer are just as valid for all purposes as those of a de jure officer,
in so far as the public or third persons who are interested therein are
concerned. 53
In order to be clear, therefore, the Court holds that all official actions of Agra
as a de facto Acting Secretary of Justice, assuming that was his later
designation, were presumed valid, binding and effective as if he was the officer
legally appointed and qualified for the office. 54 This clarification is necessary
in order to protect the sanctity of the dealings by the public with persons whose
ostensible authority emanates from the State. 55 Agra's official actions
covered by this claritlcation extend to but are not limited to the promulgation of
resolutions on petitions for review filed in the Department of Justice, and the
issuance of department orders, memoranda and circulars relative to the
prosecution of criminal cases.
WHEREFORE, the Comi GRANTS the petition for certiorari and prohibition;
ANNULS AND VOIDS the designation of Hon. Alberto C. Agra as the Acting
Secretary of Justice in a concurrent capacity with his position as the Acting
Solicitor General for being unconstitutional and violative of Section 13, Article
VII of the 1987 Constitution; and DECLARES that l-Ion. Alberto C. Agra was a
de facto officer during his tenure as Acting Secretary of Justice.
No pronouncement on costs of suit.
G.R. No. 180643 March 25, 2008
ROMULO L. NERI, petitioner, vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS
AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND
COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND
SECURITY, respondents.
DECISION
LEONARDO-DE CASTRO, J.:
At bar is a petition for certiorari under Rule 65 of the Rules of Court assailing
the show cause Letter1 dated November 22, 2007 and contempt Order2 dated
January 30, 2008 concurrently issued by respondent
Senate Committees on Accountability of Public Officers and Investigations,3
Trade and Commerce,4 and National Defense and Security5 against petitioner
Romulo L. Neri, former Director General of the National Economic and
Development Authority (NEDA).
The facts, as culled from the pleadings, are as follows:
On April 21, 2007, the Department of Transportation and Communication
(DOTC) entered into a contract with Zhong Xing Telecommunications
Equipment (ZTE) for the supply of equipment and services for the National
Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290
(approximately P16 Billion Pesos). The Project was to be financed by the
People's Republic of China.
In connection with this NBN Project, various Resolutions were introduced in
the Senate, as follows:
(1) P.S. Res. No. 127, introduced by Senator Aquilino Q. Pimentel, Jr., entitled
RESOLUTION DIRECTING THE BLUE RIBBON COMMITTEE AND THE
COMMITTEE ON TRADE AND INDUSTRY TO INVESTIGATE, IN AID OF
LEGISLATION, THE CIRCUMSTANCES LEADING TO THE APPROVAL OF
THE BROADBAND CONTRACT WITH ZTE AND THE ROLE PLAYED BY
THE OFFICIALS CONCERNED IN GETTING IT CONSUMMATED AND TO
MAKE RECOMMENDATIONS TO HALE TO THE COURTS OF LAW THE
PERSONS RESPONSIBLE FOR ANY ANOMALY IN CONNECTION
THEREWITH AND TO PLUG THE LOOPHOLES, IF ANY IN THE BOT LAW
AND OTHER PERTINENT LEGISLATIONS.
(2) P.S. Res. No. 144, introduced by Senator Mar Roxas, entitled
RESOLUTION URGING PRESIDENT GLORIA MACAPAGAL ARROYO TO
DIRECT THE CANCELLATION OF THE ZTE CONTRACT
(3) P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson, entitled
RESOLUTION DIRECTING THE COMMITTEE ON NATIONAL DEFENSE
AND SECURITY TO CONDUCT AN INQUIRY IN AID OF LEGISLATION INTO
THE NATIONAL SECURITY IMPLICATIONS OF AWARDING THE
NATIONAL BROADBAND NETWORK CONTRACT TO THE CHINESE FIRM
ZHONG XING TELECOMMUNICATIONS EQUIPMENT COMPANY LIMITED
(ZTE CORPORATION) WITH THE END IN VIEW OF PROVIDING
REMEDIAL LEGISLATION THAT WILL PROTECT OUR NATIONAL
SOVEREIGNTY, SECURITY AND TERRITORIAL INTEGRITY.
(4) P.S. Res. No. 136, introduced by Senator Miriam Defensor Santiago,
entitled RESOLUTION DIRECTING THE PROPER SENATE COMMITTEE
TO CONDUCT AN INQUIRY, IN AID OF LEGISLATION, ON THE LEGAL
AND ECONOMIC JUSTIFICATION OF THE NATIONAL BROADBAND
NETWORK (NBN) PROJECT OF THE NATIONAL GOVERNMENT.
At the same time, the investigation was claimed to be relevant to the
consideration of three (3) pending bills in the Senate, to wit:
1. Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled AN ACT
SUBJECTING TREATIES, INTERNATIONAL OR EXECUTIVE
AGREEMENTS INVOLVING FUNDING IN THE PROCUREMENT OF
INFRASTRUCTURE PROJECTS, GOODS, AND CONSULTING SERVICES
TO BE INCLUDED IN THE SCOPE AND APPLICATION OF PHILIPPINE
PROCUREMENT LAWS, AMENDING FOR THE PURPOSE REPUBLIC ACT
NO. 9184, OTHERWISE KNOWN AS THE GOVERNMENT PROCUREMENT
REFORM ACT, AND FOR OTHER PURPOSES;
2. Senate Bill No. 1794, introduced by Senator Mar Roxas, entitled AN ACT
IMPOSING SAFEGUARDS IN CONTRACTING LOANS CLASSIFIED AS
OFFICIAL DEVELOPMENT ASSISTANCE, AMENDING FOR THE
PURPOSE REPUBLIC ACT NO. 8182, AS AMENDED BY REPUBLIC ACT
NO. 8555, OTHERWISE KNOWN AS THE OFFICIAL DEVELOPMENT
ASSISTANCE ACT OF 1996, AND FOR OTHER PURPOSES; and
3. Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago,
entitled AN ACT MANDATING CONCURRENCE TO INTERNATIONAL
AGREEMENTS AND EXECUTIVE AGREEMENTS.
Respondent Committees initiated the investigation by sending invitations to
certain personalities and cabinet officials involved in the NBN Project.
Petitioner was among those invited. He was summoned to appear and testify
on September 18, 20, and 26 and October 25, 2007. However, he attended
only the September 26 hearing, claiming he was "out of town" during the other
dates.
In the September 18, 2007 hearing, businessman Jose de Venecia III testified
that several high executive officials and power brokers were using their
influence to push the approval of the NBN Project by the NEDA. It appeared
that the Project was initially approved as a Build-Operate-Transfer (BOT)
project but, on March 29, 2007, the NEDA acquiesced to convert it into a
government-to-government project, to be financed through a loan from the
Chinese Government.
On September 26, 2007, petitioner testified before respondent Committees for
eleven (11) hours. He disclosed that then Commission on Elections
(COMELEC) Chairman Benjamin Abalos offered him P200 Million in exchange
for his approval of the NBN Project. He further narrated that he informed
President Arroyo about the bribery attempt and that she instructed him not to
accept the bribe. However, when probed further on what they discussed about
the NBN Project, petitioner refused to answer, invoking "executive privilege".
In particular, he refused to answer the questions on (a) whether or not
President Arroyo followed up the NBN Project,6 (b) whether or not she directed
him to prioritize it,7 and (c) whether or not she directed him to approve.8
Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to
petitioner, requiring him to appear and testify on November 20, 2007.
However, in the Letter dated November 15, 2007, Executive Secretary
Eduardo R. Ermita requested respondent Committees to dispense with
petitioner's testimony on the ground of executive privilege. The pertinent
portion of the letter reads:
With reference to the subpoena ad testificandum issued to Secretary Romulo
Neri to appear and testify again on 20 November 2007 before the Joint
Committees you chair, it will be recalled that Sec. Neri had already testified
and exhaustively discussed the ZTE / NBN project, including his conversation
with the President thereon last 26 September 2007.
Asked to elaborate further on his conversation with the President, Sec. Neri
asked for time to consult with his superiors in line with the ruling of the
Supreme Court in Senate v. Ermita, 488 SCRA 1 (2006).
Specifically, Sec. Neri sought guidance on the possible invocation of executive
privilege on the following questions, to wit:
a) Whether the President followed up the (NBN) project?
b) Were you dictated to prioritize the ZTE?
c) Whether the President said to go ahead and approve the project after being
told about the alleged bribe?
Following the ruling in Senate v. Ermita, the foregoing questions fall under
conversations and correspondence between the President and public officials
which are considered executive privilege (Almonte v. Vasquez, G.R. 95637,
23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the
confidentiality of conversations of the President is necessary in the exercise of
her executive and policy decision making process. The expectation of a
President to the confidentiality of her conversations and correspondences, like
the value which we accord deference for the privacy of all citizens, is the
necessity for protection of the public interest in candid, objective, and even
blunt or harsh opinions in Presidential decision-making. Disclosure of
conversations of the President will have a chilling effect on the President, and
will hamper her in the effective discharge of her duties and responsibilities, if
she is not protected by the confidentiality of her conversations.
The context in which executive privilege is being invoked is that the information
sought to be disclosed might impair our diplomatic as well as economic
relations with the People's Republic of China. Given the confidential nature in
which these information were conveyed to the President, he cannot provide
the Committee any further details of these conversations, without disclosing
the very thing the privilege is designed to protect.
In light of the above considerations, this Office is constrained to invoke the
settled doctrine of executive privilege as refined in Senate v. Ermita, and has
advised Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily interrogated on the subject in an
unprecedented 11-hour hearing, wherein he has answered all questions
propounded to him except the foregoing questions involving executive
privilege, we therefore request that his testimony on 20 November 2007 on the
ZTE / NBN project be dispensed with.
On November 20, 2007, petitioner did not appear before respondent
Committees. Thus, on November 22, 2007, the latter issued the show cause
Letter requiring him to explain why he should not be cited in contempt. The
Letter reads:
Since you have failed to appear in the said hearing, the Committees on
Accountability of Public Officers and Investigations (Blue Ribbon), Trade and
Commerce and National Defense and Security require you to show cause why
you should not be cited in contempt under Section 6, Article 6 of the Rules of
the Committee on Accountability of Public Officers and Investigations (Blue
Ribbon).
The Senate expects your explanation on or before 2 December 2007.
On November 29, 2007, petitioner replied to respondent Committees,
manifesting that it was not his intention to ignore the Senate hearing and that
he thought the only remaining questions were those he claimed to be covered
by executive privilege, thus:
It was not my intention to snub the last Senate hearing. In fact, I have
cooperated with the task of the Senate in its inquiry in aid of legislation as
shown by my almost 11 hours stay during the hearing on 26 September 2007.
During said hearing, I answered all the questions that were asked of me, save
for those which I thought was covered by executive privilege, and which was
confirmed by the Executive Secretary in his Letter 15 November 2007. In good
faith, after that exhaustive testimony, I thought that what remained were only
the three questions, where the Executive Secretary claimed executive
privilege. Hence, his request that my presence be dispensed with.
Be that as it may, should there be new matters that were not yet taken up
during the 26 September 2007 hearing, may I be furnished in advance as to
what else I need to clarify, so that as a resource person, I may adequately
prepare myself.
In addition, petitioner submitted a letter prepared by his counsel, Atty. Antonio
R. Bautista, stating, among others that: (1) his (petitioner) non-appearance
was upon the order of the President; and (2) his conversation with President
Arroyo dealt with delicate and sensitive national security and diplomatic
matters relating to the impact of the bribery scandal involving high government
officials and the possible loss of confidence of foreign investors and lenders in
the Philippines. The letter ended with a reiteration of petitioner's request that
he "be furnished in advance" as to what else he needs to clarify so that he may
adequately prepare for the hearing.
In the interim, on December 7, 2007, petitioner filed with this Court the present
petition for certiorari assailing the show cause Letter dated November 22,
2007.
Respondent Committees found petitioner's explanations unsatisfactory.
Without responding to his request for advance notice of the matters that he
should still clarify, they issued the Order dated January 30, 2008, citing him in
contempt of respondent Committees and ordering his arrest and detention at
the Office of the Senate Sergeant-At-Arms until such time that he would
appear and give his testimony. The said Order states:
ORDER
For failure to appear and testify in the Committee's hearing on Tuesday,
September 18, 2007; Thursday, September 20, 2007; Thursday, October 25,
2007; and Tuesday, November 20, 2007, despite personal notice and
Subpoenas Ad Testificandum sent to and received by him, which thereby
delays, impedes and obstructs, as it has in fact delayed, impeded and
obstructed the inquiry into the subject reported irregularities, AND for failure to
explain satisfactorily why he should not be cited for contempt (Neri letter of 29
November 2007), herein attached) ROMULO L. NERI is hereby cited in
contempt of this (sic) Committees and ordered arrested and detained in the
Office of the Senate Sergeant-At-Arms until such time that he will appear and
give his testimony.
The Sergeant-At-Arms is hereby directed to carry out and implement this Order
and make a return hereof within twenty four (24) hours from its enforcement.
SO ORDERED.
On the same date, petitioner moved for the reconsideration of the above
Order.9 He insisted that he has not shown "any contemptible conduct worthy
of contempt and arrest." He emphasized his willingness to testify on new
matters, however, respondent Committees did not respond to his request for
advance notice of questions. He also mentioned the petition for certiorari he
filed on December 7, 2007. According to him, this should restrain respondent
Committees from enforcing the show cause Letter "through the issuance of
declaration of contempt" and arrest.
In view of respondent Committees' issuance of the contempt Order, petitioner
filed on February 1, 2008 a Supplemental Petition for Certiorari (With Urgent
Application for TRO/Preliminary Injunction), seeking to restrain the
implementation of the said contempt Order.
On February 5, 2008, the Court issued a Status Quo Ante Order (a) enjoining
respondent Committees from implementing their contempt Order, (b) requiring
the parties to observe the status quo prevailing prior to the issuance of the
assailed order, and (c) requiring respondent Committees to file their comment.
Petitioner contends that respondent Committees' show cause Letter and
contempt Order were issued with grave abuse of discretion amounting to lack
or excess of jurisdiction. He stresses that his conversations with President
Arroyo are "candid discussions meant to explore options in making policy
decisions." According to him, these discussions "dwelt on the impact of the
bribery scandal involving high government officials on the country's diplomatic
relations and economic and military affairs and the possible loss of confidence
of foreign investors and lenders in the Philippines." He also emphasizes that
his claim of executive privilege is upon the order of the President and within
the parameters laid down in Senate v. Ermita10 and United States v.
Reynolds.11 Lastly, he argues that he is precluded from disclosing
communications made
to him in official confidence under Section 712 of Republic Act No. 6713,
otherwise known as Code of Conduct and Ethical Standards for Public Officials
and Employees, and Section 2413 (e) of Rule 130 of the Rules of Court.
Respondent Committees assert the contrary. They argue that (1) petitioner's
testimony is material and pertinent in the investigation conducted in aid of
legislation; (2) there is no valid justification for petitioner to claim executive
privilege; (3) there is no abuse of their authority to order petitioner's arrest; and
(4) petitioner has not come to court with clean hands.
In the oral argument held last March 4, 2008, the following issues were
ventilated:
1. What communications between the President and petitioner Neri are
covered by the principle of 'executive privilege'?
1.a Did Executive Secretary Ermita correctly invoke the principle of executive
privilege, by order of the President, to cover (i) conversations of the President
in the exercise of her executive and policy decision-making and (ii) information,
which might impair our diplomatic as well as economic relations with the
People's Republic of China?
1.b. Did petitioner Neri correctly invoke executive privilege to avoid testifying
on his conversations with the President on the NBN contract on his assertions
that the said conversations "dealt with delicate and sensitive national security
and diplomatic matters relating to the impact of bribery scandal involving high
government officials and the possible loss of confidence of foreign investors
and lenders in the Philippines" x x x within the principles laid down in Senate
v. Ermita (488 SCRA 1 [2006])?
1.c Will the claim of executive privilege in this case violate the following
provisions of the Constitution:
Sec. 28, Art. II (Full public disclosure of all transactions involving public
interest)
Sec. 7, Art. III (The right of the people to information on matters of public
concern)
Sec. 1, Art. XI (Public office is a public trust)
Sec. 17, Art. VII (The President shall ensure that the laws be faithfully
executed)
and the due process clause and the principle of separation of powers?
2. What is the proper procedure to be followed in invoking executive privilege?
3. Did the Senate Committees gravely abuse their discretion in ordering the
arrest of petitioner for non-compliance with the subpoena?
After the oral argument, the parties were directed to manifest to the Court
within twenty-four (24) hours if they are amenable to the Court's proposal of
allowing petitioner to immediately resume his testimony before the Senate
Committees to answer the other questions of the Senators without prejudice
to the decision on the merits of this pending petition. It was understood that
petitioner may invoke executive privilege in the course of the Senate
Committees proceedings, and if the respondent Committees disagree thereto,
the unanswered questions will be the subject of a supplemental pleading to be
resolved along with the three (3) questions subject of the present petition.14
At the same time, respondent Committees were directed to submit several
pertinent documents.15
The Senate did not agree with the proposal for the reasons stated in the
Manifestation dated March 5, 2008. As to the required documents, the Senate
and respondent Committees manifested that they would not be able to submit
the latter's "Minutes of all meetings" and the "Minute Book" because it has
never been the "historical and traditional legislative practice to keep them."16
They instead submitted the Transcript of Stenographic Notes of respondent
Committees' joint public hearings.
On March 17, 2008, the Office of the Solicitor General (OSG) filed a Motion for
Leave to Intervene and to Admit Attached Memorandum, founded on the
following arguments:
(1) The communications between petitioner and the President are covered by
the principle of "executive privilege."
(2) Petitioner was not summoned by respondent Senate Committees in
accordance with the law-making body's power to conduct inquiries in aid of
legislation as laid down in Section 21, Article VI of the Constitution and Senate
v. Ermita.
(3) Respondent Senate Committees gravely abused its discretion for alleged
non-compliance with the Subpoena dated November 13, 2007.
The Court granted the OSG's motion the next day, March 18, 2008.
As the foregoing facts unfold, related events transpired.
On March 6, 2008, President Arroyo issued Memorandum Circular No. 151,
revoking Executive Order No. 464 and Memorandum Circular No. 108. She
advised executive officials and employees to follow and abide by the
Constitution, existing laws and jurisprudence, including, among others, the
case of Senate v. Ermita17 when they are invited to legislative inquiries in aid
of legislation.
At the core of this controversy are the two (2) crucial queries, to wit:
First, are the communications elicited by the subject three (3) questions
covered by executive privilege?
And second, did respondent Committees commit grave abuse of discretion in
issuing the contempt Order?
We grant the petition.
At the outset, a glimpse at the landmark case of Senate v. Ermita18 becomes
imperative. Senate draws in bold strokes the distinction between the legislative
and oversight powers of the Congress, as embodied under Sections 21 and
22, respectively, of Article VI of the Constitution, to wit:
SECTION 21. The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be respected.
SECTION 22. The heads of department may upon their own initiative, with the
consent of the President, or upon the request of either House, or as the rules
of each House shall provide, appear before and be heard by such House on
any matter pertaining to their departments. Written questions shall be
submitted to the President of the Senate or the Speaker of the House of
Representatives at least three days before their scheduled appearance.
Interpellations shall not be limited to written questions, but may cover matters
related thereto. When the security of the state or the public interest so requires
and the President so states in writing, the appearance shall be conducted in
executive session.
Senate cautions that while the above provisions are closely related and
complementary to each other, they should not be considered as pertaining to
the same power of Congress. Section 21 relates to the power to conduct
inquiries in aid of legislation. Its aim is to elicit information that may be used
for legislation. On the other hand, Section 22 pertains to the power to conduct
a question hour, the objective of which is to obtain information in pursuit of
Congress' oversight function.19 Simply stated, while both powers allow
Congress or any of its committees to conduct inquiry, their objectives are
different.
This distinction gives birth to another distinction with regard to the use of
compulsory process. Unlike in Section 21, Congress cannot compel the
appearance of executive officials under Section 22. The Court's
pronouncement in Senate v. Ermita20 is clear:
When Congress merely seeks to be informed on how department heads are
implementing the statutes which it has issued, its right to such information is
not as imperative as that of the President to whom, as Chief Executive, such
department heads must give a report of their performance as a matter of duty.
In such instances, Section 22, in keeping with the separation of powers, states
that Congress may only request their appearance. Nonetheless, when the
inquiry in which Congress requires their appearance is 'in aid of legislation'
under Section 21, the appearance is mandatory for the same reasons stated
in Arnault.
In fine, the oversight function of Congress may be facilitated by compulsory
process only to the extent that it is performed in pursuit of legislation. This is
consistent with the intent discerned from the deliberations of the Constitutional
Commission
Ultimately, the power of Congress to compel the appearance of executive
officials under section 21 and the lack of it under Section 22 find their basis in
the principle of separation of powers. While the executive branch is a co-equal
branch of the legislature, it cannot frustrate the power of Congress to legislate
by refusing to comply with its demands for information. (Emphasis supplied.)
The availability of the power of judicial review to resolve the issues raised in
this case has also been settled in Senate v. Ermita, when it held:
As evidenced by the American experience during the so-called "McCarthy
era," however, the right of Congress to conduct inquiries in aid of legislation
is, in theory, no less susceptible to abuse than executive or judicial power. It
may thus be subjected to judicial review pursuant to the Court's certiorari
powers under Section 1, Article VIII of the Constitution.
Hence, this decision.
I
The Communications Elicited by the Three (3) Questions are Covered by
Executive Privilege
We start with the basic premises where the parties have conceded.
The power of Congress to conduct inquiries in aid of legislation is broad. This
is based on the proposition that a legislative body cannot legislate wisely or
effectively in the absence of information respecting the conditions which the
legislation is intended to affect or change.21 Inevitably, adjunct thereto is the
compulsory process to enforce it. But, the power, broad as it is, has limitations.
To be valid, it is imperative that it is done in accordance with the Senate or
House duly published rules of procedure and that the rights of the persons
appearing in or affected by such inquiries be respected.
The power extends even to executive officials and the only way for them to be
exempted is through a valid claim of executive privilege.22 This directs us to
the consideration of the question -- is there a recognized claim of executive
privilege despite the revocation of E.O. 464?
A- There is a Recognized Claim
of Executive Privilege Despite the
Revocation of E.O. 464
At this juncture, it must be stressed that the revocation of E.O. 464 does not
in any way diminish our concept of executive privilege. This is because this
concept has Constitutional underpinnings. Unlike the United States which has
further accorded the concept with statutory status by enacting the Freedom of
Information Act23 and the Federal Advisory Committee Act,24 the Philippines
has retained its constitutional origination, occasionally interpreted only by this
Court in various cases. The most recent of these is the case of Senate v.
Ermita where this Court declared unconstitutional substantial portions of E.O.
464. In this regard, it is worthy to note that Executive Ermita's Letter dated
November 15, 2007 limits its bases for the claim of executive privilege to
Senate v. Ermita, Almonte v. Vasquez,25 and Chavez v. PEA.26 There was
never a mention of E.O. 464.
While these cases, especially Senate v. Ermita,27 have comprehensively
discussed the concept of executive privilege, we deem it imperative to explore
it once more in view of the clamor for this Court to clearly define the
communications covered by executive privilege.
The Nixon and post-Watergate cases established the broad contours of the
presidential communications privilege.28 In United States v. Nixon,29 the U.S.
Court recognized a great public interest in preserving "the confidentiality of
conversations that take place in the President's performance of his official
duties." It thus considered presidential communications as "presumptively
privileged." Apparently, the presumption is founded on the "President's
generalized interest in confidentiality." The privilege is said to be necessary to
guarantee the candor of presidential advisors and to provide "the President
and those who assist him with freedom to explore alternatives in the process
of shaping policies and making decisions and to do so in a way many would
be unwilling to express except privately."
In In Re: Sealed Case,30 the U.S. Court of Appeals delved deeper. It ruled
that there are two (2) kinds of executive privilege; one is the presidential
communications privilege and, the other is the deliberative process privilege.
The former pertains to "communications, documents or other materials that
reflect presidential decision-making and deliberations and that the President
believes should remain confidential." The latter includes 'advisory opinions,
recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated."
Accordingly, they are characterized by marked distinctions. Presidential
communications privilege applies to decision-making of the President while,
the deliberative process privilege, to decision-making of executive officials.
The first is rooted in the constitutional principle of separation of power and the
President's unique constitutional role; the second on common law privilege.
Unlike the deliberative process privilege, the presidential communications
privilege applies to documents in their entirety, and covers final and post-
decisional materials as well as pre-deliberative ones31 As a consequence,
congressional or judicial negation of the presidential communications privilege
is always subject to greater scrutiny than denial of the deliberative process
privilege.
Turning on who are the officials covered by the presidential communications
privilege, In Re: Sealed Case confines the privilege only to White House Staff
that has "operational proximity" to direct presidential decision-making. Thus,
the privilege is meant to encompass only those functions that form the core of
presidential authority, involving what the court characterized as "quintessential
and non-delegable Presidential power," such as commander-in-chief power,
appointment and removal power, the power to grant pardons and reprieves,
the sole-authority to receive ambassadors and other public officers, the power
to negotiate treaties, etc.32
The situation in Judicial Watch, Inc. v. Department of Justice33 tested the In
Re: Sealed Case principles. There, while the presidential decision involved is
the exercise of the President's pardon power, a non-delegable, core-
presidential function, the Deputy Attorney General and the Pardon Attorney
were deemed to be too remote from the President and his senior White House
advisors to be protected. The Court conceded that
functionally those officials were performing a task directly related to the
President's pardon power, but concluded that an organizational test was more
appropriate for confining the potentially broad sweep that would result from the
In Re: Sealed Case's functional test. The majority concluded that, the lesser
protections of the deliberative process privilege would suffice. That privilege
was, however, found insufficient to justify the confidentiality of the 4,341
withheld documents.
But more specific classifications of communications covered by executive
privilege are made in older cases. Courts ruled early that the Executive has a
right to withhold documents that might reveal military or state secrets,34
identity of government informers in some circumstances,,35 and information
related to pending investigations.36 An area where the privilege is highly
revered is in foreign relations. In United States v. Curtiss-Wright Export
Corp.37 the U.S. Court, citing President George Washington, pronounced:
The nature of foreign negotiations requires caution, and their success must
often depend on secrecy, and even when brought to a conclusion, a full
disclosure of all the measures, demands, or eventual concessions which may
have been proposed or contemplated would be extremely impolitic, for this
might have a pernicious influence on future negotiations or produce immediate
inconveniences, perhaps danger and mischief, in relation to other powers. The
necessity of such caution and secrecy was one cogent reason for vesting the
power of making treaties in the President, with the advice and consent of the
Senate, the principle on which the body was formed confining it to a small
number of members. To admit, then, a right in the House of Representatives
to demand and to have as a matter of course all the papers respecting a
negotiation with a foreign power would be to establish a dangerous precedent.
Majority of the above jurisprudence have found their way in our jurisdiction. In
Chavez v. PCGG38, this Court held that there is a "governmental privilege
against public disclosure with respect to state secrets regarding military,
diplomatic and other security matters." In Chavez v. PEA,39 there is also a
recognition of the confidentiality of Presidential conversations,
correspondences, and discussions in closed-door Cabinet meetings. In
Senate v. Ermita, the concept of presidential communications privilege is fully
discussed.
As may be gleaned from the above discussion, the claim of executive privilege
is highly recognized in cases where the subject of inquiry relates to a power
textually committed by the Constitution to the President, such as the area of
military and foreign relations. Under our Constitution, the President is the
repository of the commander-in-chief,40 appointing,41 pardoning,42 and
diplomatic43 powers. Consistent with the doctrine of separation of powers, the
information relating to these powers may enjoy greater confidentiality than
others.
The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch,
somehow provide the elements of presidential communications privilege, to
wit:
1) The protected communication must relate to a "quintessential and non-
delegable presidential power."
2) The communication must be authored or "solicited and received" by a close
advisor of the President or the President himself. The judicial test is that an
advisor must be in "operational proximity" with the President.
3) The presidential communications privilege remains a qualified privilege that
may be overcome by a showing of adequate need, such that the information
sought "likely contains important evidence" and by the unavailability of the
information elsewhere by an appropriate investigating authority.44
In the case at bar, Executive Secretary Ermita premised his claim of executive
privilege on the ground that the communications elicited by the three (3)
questions "fall under conversation and correspondence between the President
and public officials" necessary in "her executive and policy decision-making
process" and, that "the information sought to be disclosed might impair our
diplomatic as well as economic relations with the People's Republic of China."
Simply put, the bases are presidential communications privilege and executive
privilege on matters relating to diplomacy or foreign relations.
Using the above elements, we are convinced that, indeed, the communications
elicited by the three (3) questions are covered by the presidential
communications privilege. First, the communications relate to a "quintessential
and non-delegable power" of the President, i.e. the power to enter into an
executive agreement with other countries. This authority of the President to
enter into executive agreements without the concurrence of the Legislature
has traditionally been recognized in Philippine jurisprudence.45 Second, the
communications are "received" by a close advisor of the President. Under the
"operational proximity" test, petitioner can be considered a close advisor,
being a member of President Arroyo's cabinet. And third, there is no adequate
showing of a compelling need that would justify the limitation of the privilege
and of the unavailability of the information elsewhere by an appropriate
investigating authority.
The third element deserves a lengthy discussion.
United States v. Nixon held that a claim of executive privilege is subject to
balancing against other interest. In other words, confidentiality in executive
privilege is not absolutely protected by the Constitution. The U.S. Court held:
[N]either the doctrine of separation of powers, nor the need for confidentiality
of high-level communications, without more, can sustain an absolute,
unqualified Presidential privilege of immunity from judicial process under all
circumstances.
The foregoing is consistent with the earlier case of Nixon v. Sirica,46 where it
was held that presidential communications are presumptively privileged and
that the presumption can be overcome only by mere showing of public need
by the branch seeking access to conversations. The courts are enjoined to
resolve the competing interests of the political branches of the government "in
the manner that preserves the essential functions of each Branch."47 Here,
the record is bereft of any categorical explanation from respondent
Committees to show a compelling or citical need for the answers to the three
(3) questions in the enactment of a law. Instead, the questions veer more
towards the exercise of the legislative oversight function under Section 22 of
Article VI rather than Section 21 of the same Article. Senate v. Ermita ruled
that the "the oversight function of Congress may be facilitated by compulsory
process only to the extent that it is performed in pursuit of legislation." It is
conceded that it is difficult to draw the line between an inquiry in aid of
legislation and an inquiry in the exercise of oversight function of Congress. In
this regard, much will depend on the content of the questions and the manner
the inquiry is conducted.
Respondent Committees argue that a claim of executive privilege does not
guard against a possible disclosure of a crime or wrongdoing. We see no
dispute on this. It is settled in United States v. Nixon48 that "demonstrated,
specific need for evidence in pending criminal trial" outweighs the President's
"generalized interest in confidentiality." However, the present case's distinction
with the Nixon case is very evident. In Nixon, there is a pending criminal
proceeding where the information is requested and it is the demands of due
process of law and the fair administration of criminal justice that the information
be disclosed. This is the reason why the U.S. Court was quick to "limit the
scope of its decision." It stressed that it is "not concerned here with the balance
between the President's generalized interest in confidentiality x x x and
congressional demands for information." Unlike in Nixon, the information here
is elicited, not in a criminal proceeding, but in a legislative inquiry. In this
regard, Senate v. Ermita stressed that the validity of the claim of executive
privilege depends not only on the ground invoked but, also, on the procedural
setting or the context in which the claim is made. Furthermore, in Nixon, the
President did not interpose any claim of need to protect military, diplomatic or
sensitive national security secrets. In the present case, Executive Secretary
Ermita categorically claims executive privilege on the grounds of presidential
communications privilege in relation to her executive and policy decision-
making process and diplomatic secrets.
The respondent Committees should cautiously tread into the investigation of
matters which may present a conflict of interest that may provide a ground to
inhibit the Senators participating in the inquiry if later on an impeachment
proceeding is initiated on the same subject matter of the present Senate
inquiry. Pertinently, in Senate Select Committee on Presidential Campaign
Activities v. Nixon,49 it was held that since an impeachment proceeding had
been initiated by a House Committee, the Senate Select Committee's
immediate oversight need for five presidential tapes should give way to the
House Judiciary Committee which has the constitutional authority to inquire
into presidential impeachment. The Court expounded on this issue in this wise:
It is true, of course, that the Executive cannot, any more than the other
branches of government, invoke a general confidentiality privilege to shield its
officials and employees from investigations by the proper governmental
institutions into possible criminal wrongdoing. The Congress learned this as to
its own privileges in Gravel v. United States, as did the judicial branch, in a
sense, in Clark v. United States, and the executive branch itself in Nixon v.
Sirica. But under Nixon v. Sirica, the showing required to overcome the
presumption favoring confidentiality turned, not on the nature of the
presidential conduct that the subpoenaed material might reveal, but, instead,
on the nature and appropriateness of the function in the performance of which
the material was sought, and the degree to which the material was necessary
to its fulfillment. Here also our task requires and our decision implies no
judgment whatever concerning possible presidential involvement in culpable
activity. On the contrary, we think the sufficiency of the Committee's showing
must depend solely on whether the subpoenaed evidence is demonstrably
critical to the responsible fulfillment of the Committee's functions.
In its initial briefs here, the Committee argued that it has shown exactly this. It
contended that resolution, on the basis of the subpoenaed tapes, of the
conflicts in the testimony before it 'would aid in a determination whether
legislative involvement in political campaigns is necessary' and 'could help
engender the public support needed for basic reforms in our electoral system.'
Moreover, Congress has, according to the Committee, power to oversee the
operations of the executive branch, to investigate instances of possible
corruption and malfeasance in office, and to expose the results of its
investigations to public view. The Committee says that with respect to
Watergate-related matters, this power has been delegated to it by the Senate,
and that to exercise its power responsibly, it must have access to the
subpoenaed tapes.
We turn first to the latter contention. In the circumstances of this case, we need
neither deny that the Congress may have, quite apart from its legislative
responsibilities, a general oversight power, nor explore what the lawful reach
of that power might be under the Committee's constituent resolution. Since
passage of that resolution, the House Committee on the Judiciary has begun
an inquiry into presidential impeachment. The investigative authority of the
Judiciary Committee with respect to presidential conduct has an express
constitutional source. x x x We have been shown no evidence indicating that
Congress itself attaches any particular value to this interest. In these
circumstances, we think the need for the tapes premised solely on an asserted
power to investigate and inform cannot justify enforcement of the Committee's
subpoena.
The sufficiency of the Committee's showing of need has come to depend,
therefore, entirely on whether the subpoenaed materials are critical to the
performance of its legislative functions. There is a clear difference between
Congress' legislative tasks and the responsibility of a grand jury, or any
institution engaged in like functions. While fact-finding by a legislative
committee is undeniably a part of its task, legislative judgments normally
depend more on the predicted consequences of proposed legislative actions
and their political acceptability, than on precise reconstruction of past events;
Congress frequently legislates on the basis of conflicting information provided
in its hearings. In contrast, the responsibility of the grand jury turns entirely on
its ability to determine whether there is probable cause to believe that certain
named individuals did or did not commit specific crimes. If, for example, as in
Nixon v. Sirica, one of those crimes is perjury concerning the content of certain
conversations, the grand jury's need for the most precise evidence, the exact
text of oral statements recorded in their original form, is undeniable. We see
no comparable need in the legislative process, at least not in the
circumstances of this case. Indeed, whatever force there might once have
been in the Committee's argument that the subpoenaed materials are
necessary to its legislative judgments has been substantially undermined by
subsequent events. (Emphasis supplied)
Respondent Committees further contend that the grant of petitioner's claim of
executive privilege violates the constitutional provisions on the right of the
people to information on matters of public concern.50 We might have agreed
with such contention if petitioner did not appear before them at all. But
petitioner made himself available to them during the September 26 hearing,
where he was questioned for eleven (11) hours. Not only that, he expressly
manifested his willingness to answer more questions from the Senators, with
the exception only of those covered by his claim of executive privilege.
The right to public information, like any other right, is subject to limitation.
Section 7 of Article III provides:
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
The provision itself expressly provides the limitation, i.e. as may be provided
by law. Some of these laws are Section 7 of Republic Act (R.A.) No. 6713,51
Article 22952 of the Revised Penal Code, Section 3 (k)53 of R.A. No. 3019,
and Section 24(e)54 of Rule 130 of the Rules of Court. These are in addition
to what our body of jurisprudence classifies as confidential55 and what our
Constitution considers as belonging to the larger concept of executive
privilege. Clearly, there is a recognized public interest in the confidentiality of
certain information. We find the information subject of this case belonging to
such kind.
More than anything else, though, the right of Congress or any of its
Committees to obtain information in aid of legislation cannot be equated with
the people's right to public information. The former cannot claim that every
legislative inquiry is an exercise of the people's right to information. The
distinction between such rights is laid down in Senate v. Ermita:
There are, it bears noting, clear distinctions between the right of Congress to
information which underlies the power of inquiry and the right of people to
information on matters of public concern. For one, the demand of a citizen for
the production of documents pursuant to his right to information does not have
the same obligatory force as a subpoena duces tecum issued by Congress.
Neither does the right to information grant a citizen the power to exact
testimony from government officials. These powers belong only to Congress,
not to an individual citizen.
Thus, while Congress is composed of representatives elected by the people,
it does not follow, except in a highly qualified sense, that in every exercise of
its power of inquiry, the people are exercising their right to information.
The members of respondent Committees should not invoke as justification in
their exercise of power a right properly belonging to the people in general. This
is because when they discharge their power, they do so as public officials and
members of Congress. Be that as it may, the right to information must be
balanced with and should give way, in appropriate cases, to constitutional
precepts particularly those pertaining to delicate interplay of executive-
legislative powers and privileges which is the subject of careful review by
numerous decided cases.
B- The Claim of Executive Privilege
is Properly Invoked
We now proceed to the issue -- whether the claim is properly invoked by the
President. Jurisprudence teaches that for the claim to be properly invoked,
there must be a formal claim of privilege, lodged by the head of the department
which has control over the matter."56 A formal and proper claim of executive
privilege requires a "precise and certain reason" for preserving their
confidentiality.57
The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies
the requirement. It serves as the formal claim of privilege. There, he expressly
states that "this Office is constrained to invoke the settled doctrine of executive
privilege as refined in Senate v. Ermita, and has advised Secretary Neri
accordingly." Obviously, he is referring to the Office of the President. That is
more than enough compliance. In Senate v. Ermita, a less categorical letter
was even adjudged to be sufficient.
With regard to the existence of "precise and certain reason," we find the
grounds relied upon by Executive Secretary Ermita specific enough so as not
"to leave respondent Committees in the dark on how the requested information
could be classified as privileged." The case of Senate v. Ermita only requires
that an allegation be made "whether the information demanded involves
military or diplomatic secrets, closed-door Cabinet meetings, etc." The
particular ground must only be specified. The enumeration is not even
intended to be comprehensive."58 The following statement of grounds
satisfies the requirement:
The context in which executive privilege is being invoked is that the information
sought to be disclosed might impair our diplomatic as well as economic
relations with the People's Republic of China. Given the confidential nature in
which these information were conveyed to the President, he cannot provide
the Committee any further details of these conversations, without disclosing
the very thing the privilege is designed to protect.
At any rate, as held further in Senate v. Ermita, 59 the Congress must not
require the executive to state the reasons for the claim with such particularity
as to compel disclosure of the information which the privilege is meant to
protect. This is a matter of respect to a coordinate and co-equal department.
II
Respondent Committees Committed Grave Abuse of Discretion
in Issuing the Contempt Order
Grave abuse of discretion means "such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or, in other words where the
power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility and it must be so patent and gross as to amount to an
evasion of positive duty or to a virtual refusal to perform the duty enjoined or
to act at all in contemplation of law."60
It must be reiterated that when respondent Committees issued the show cause
Letter dated November 22, 2007, petitioner replied immediately, manifesting
that it was not his intention to ignore the Senate hearing and that he thought
the only remaining questions were the three (3) questions he claimed to be
covered by executive privilege. In addition thereto, he submitted Atty.
Bautista's letter, stating that his non-appearance was upon the order of the
President and specifying the reasons why his conversations with President
Arroyo are covered by executive privilege. Both correspondences include an
expression of his willingness to testify again, provided he "be furnished in
advance" copies of the questions. Without responding to his request for
advance list of questions, respondent Committees issued the Order dated
January 30, 2008, citing him in contempt of respondent Committees and
ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms
until such time that he would appear and give his testimony. Thereupon,
petitioner filed a motion for reconsideration, informing respondent Committees
that he had filed the present petition for certiorari.
Respondent Committees committed grave abuse of discretion in issuing the
contempt Order in view of five (5) reasons.
First, there being a legitimate claim of executive privilege, the issuance of the
contempt Order suffers from constitutional infirmity.
Second, respondent Committees did not comply with the requirement laid
down in Senate v. Ermita that the invitations should contain the "possible
needed statute which prompted the need for the inquiry," along with "the usual
indication of the subject of inquiry and the questions relative to and in
furtherance thereof." Compliance with this requirement is imperative, both
under Sections 21 and 22 of Article VI of the Constitution. This must be so to
ensure that the rights of both persons appearing in or affected by such inquiry
are respected as mandated by said Section 21 and by virtue of the express
language of Section 22. Unfortunately, despite petitioner's repeated demands,
respondent Committees did not send him an advance list of questions.
Third, a reading of the transcript of respondent Committees' January 30, 2008
proceeding reveals that only a minority of the members of the Senate Blue
Ribbon Committee was present during the deliberation. 61 Section 18 of the
Rules of Procedure Governing Inquiries in Aid of Legislation provides that:
"The Committee, by a vote of majority of all its members, may punish for
contempt any witness before it who disobeys any order of the Committee or
refuses to be sworn or to testify or to answer proper questions by the
Committee or any of its members."
Clearly, the needed vote is a majority of all the members of the Committee.
Apparently, members who did not actually participate in the deliberation were
made to sign the contempt Order. Thus, there is a cloud of doubt as to the
validity of the contempt Order dated January 30, 2008. We quote the pertinent
portion of the transcript, thus:
THE CHAIRMAN (SEN. CAYETANO, A). For clarification. x x x The Chair will
call either a caucus or will ask the Committee on Rules if there is a problem.
Meaning, if we do not have the sufficient numbers. But if we have a sufficient
number, we will just hold a caucus to be able to implement that right away
becauseAgain, our Rules provide that any one held in contempt and ordered
arrested, need the concurrence of a majority of all members of the said
committee and we have three committees conducting this.
So thank you very much to the members
SEN. PIMENTEL. Mr. Chairman.
THE CHAIRMAN (SEN. CAYETANO,A). May I recognize the Minority Leader
and give him the floor, Senator Pimentel.
SEN. PIMENTEL. Mr. Chairman, there is no problem, I think, with consulting
the other committees. But I am of the opinion that the Blue Ribbon Committee
is the lead committee, and therefore, it should have preference in enforcing its
own decisions. Meaning to say, it is not something that is subject to
consultation with other committees. I am not sure that is the right interpretation.
I think that once we decide here, we enforce what we decide, because
otherwise, before we know it, our determination is watered down by delay and,
you know, the so-called "consultation" that inevitably will have to take place if
we follow the premise that has been explained.
So my suggestion, Mr. Chairman, is the Blue Ribbon Committee should not
forget it's the lead committee here, and therefore, the will of the lead committee
prevails over all the other, you, know reservations that other committees might
have who are only secondary or even tertiary committees, Mr. Chairman.
THE CHAIRMAN (SEN. CAYETANO, A.) Thank you very much to the Minority
Leader. And I agree with the wisdom of his statements. I was merely
mentioning that under Section 6 of the Rules of the Committee and under
Section 6, "The Committee by a vote of a majority of all its members may
punish for contempt any witness before it who disobeys any order of the
Committee."
So the Blue Ribbon Committee is more than willing to take that responsibility.
But we only have six members here today, I am the seventh as chair and so
we have not met that number. So I am merely stating that, sir, that when we
will prepare the documentation, if a majority of all members sign and I am
following the Sabio v. Gordon rule wherein I do believe, if I am not mistaken,
Chairman Gordon prepared the documentation and then either in caucus or in
session asked the other members to sign. And once the signatures are
obtained, solely for the purpose that Secretary Neri or Mr. Lozada will not be
able to legally question our subpoena as being insufficient in accordance with
law.
SEN. PIMENTEL. Mr. Chairman, the caution that the chair is suggesting is
very well-taken. But I'd like to advert to the fact that the quorum of the
committee is only two as far as I remember. Any two-member senators
attending a Senate committee hearing provide that quorum, and therefore
there is more than a quorum demanded by our Rules as far as we are
concerned now, and acting as Blue Ribbon Committee, as Senator Enrile
pointed out. In any event, the signatures that will follow by the additional
members will only tend to strengthen the determination of this Committee to
put its foot forward put down on what is happening in this country, Mr.
Chairman, because it really looks terrible if the primary Committee of the
Senate, which is the Blue Ribbon Committee, cannot even sanction people
who openly defy, you know, the summons of this Committee. I know that the
Chair is going through an agonizing moment here. I know that. But
nonetheless, I think we have to uphold, you know, the institution that we are
representing because the alternative will be a disaster for all of us, Mr.
Chairman. So having said that, I'd like to reiterate my point.
THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I agree 100 percent with
the intentions of the Minority Leader. But let me very respectfully disagree with
the legal requirements. Because, yes, we can have a hearing if we are only
two but both under Section 18 of the Rules of the Senate and under Section 6
of the Rules of the Blue Ribbon Committee, there is a need for a majority of all
members if it is a case of contempt and arrest. So, I am simply trying to avoid
the court rebuking the Committee, which will instead of strengthening will
weaken us. But I do agree, Mr. Minority Leader, that we should push for this
and show the executive branch that the well-decided the issue has been
decided upon the Sabio versus Gordon case. And it's very clear that we are
all allowed to call witnesses. And if they refure or they disobey not only can we
cite them in contempt and have them arrested. x x x 62
Fourth, we find merit in the argument of the OSG that respondent Committees
likewise violated Section 21 of Article VI of the Constitution, requiring that the
inquiry be in accordance with the "duly published rules of procedure." We
quote the OSG's explanation:
The phrase 'duly published rules of procedure' requires the Senate of every
Congress to publish its rules of procedure governing inquiries in aid of
legislation because every Senate is distinct from the one before it or after it.
Since Senatorial elections are held every three (3) years for one-half of the
Senate's membership, the composition of the Senate also changes by the end
of each term. Each Senate may thus enact a different set of rules as it may
deem fit. Not having published its Rules of Procedure, the subject hearings in
aid of legislation conducted by the 14th Senate, are therefore, procedurally
infirm.
And fifth, respondent Committees' issuance of the contempt Order is arbitrary
and precipitate. It must be pointed out that respondent Committees did not first
pass upon the claim of executive privilege and inform petitioner of their ruling.
Instead, they curtly dismissed his explanation as "unsatisfactory" and
simultaneously issued the Order citing him in contempt and ordering his
immediate arrest and detention.
A fact worth highlighting is that petitioner is not an unwilling witness. He
manifested several times his readiness to testify before respondent
Committees. He refused to answer the three (3) questions because he was
ordered by the President to claim executive privilege. It behooves respondent
Committees to first rule on the claim of executive privilege and inform petitioner
of their finding thereon, instead of peremptorily dismissing his explanation as
"unsatisfactory." Undoubtedly, respondent Committees' actions constitute
grave abuse of discretion for being arbitrary and for denying petitioner due
process of law. The same quality afflicted their conduct when they (a)
disregarded petitioner's motion for reconsideration alleging that he had filed
the present petition before this Court and (b) ignored petitioner's repeated
request for an advance list of questions, if there be any aside from the three
(3) questions as to which he claimed to be covered by executive privilege.
Even the courts are repeatedly advised to exercise the power of contempt
judiciously and sparingly with utmost self-restraint with the end in view of
utilizing the same for correction and preservation of the dignity of the court, not
for retaliation or vindication.63 Respondent Committees should have
exercised the same restraint, after all petitioner is not even an ordinary
witness. He holds a high position in a co-equal branch of government.
In this regard, it is important to mention that many incidents of judicial review
could have been avoided if powers are discharged with circumspection and
deference. Concomitant with the doctrine of separation of powers is the
mandate to observe respect to a co-equal branch of the government.
One last word.
The Court was accused of attempting to abandon its constitutional duty when
it required the parties to consider a proposal that would lead to a possible
compromise. The accusation is far from the truth. The Court did so, only to test
a tool that other jurisdictions find to be effective in settling similar cases, to
avoid a piecemeal consideration of the questions for review and to avert a
constitutional crisis between the executive and legislative branches of
government.
In United States v. American Tel. & Tel Co.,64 the court refrained from
deciding the case because of its desire to avoid a resolution that might disturb
the balance of power between the two branches and inaccurately reflect their
true needs. Instead, it remanded the record to the District Court for further
proceedings during which the parties are required to negotiate a settlement. In
the subsequent case of United States v. American Tel. &Tel Co.,65 it was held
that "much of this spirit of compromise is reflected in the generality of language
found in the Constitution." It proceeded to state:
Under this view, the coordinate branches do not exist in an exclusively
adversary relationship to one another when a conflict in authority arises.
Rather each branch should take cognizance of an implicit constitutional
mandate to seek optimal accommodation through a realistic evaluation of the
needs of the conflicting branches in the particular fact situation.
It thereafter concluded that: "The Separation of Powers often impairs
efficiency, in terms of dispatch and the immediate functioning of government.
It is the long-term staying power of government that is enhanced by the mutual
accommodation required by the separation of powers."
In rendering this decision, the Court emphasizes once more that the basic
principles of constitutional law cannot be subordinated to the needs of a
particular situation. As magistrates, our mandate is to rule objectively and
dispassionately, always mindful of Mr. Justice Holmes' warning on the dangers
inherent in cases of this nature, thus:
"some accident of immediate and overwhelming interestappeals to the
feelings and distorts the judgment. These immediate interests exercise a kind
of hydraulic pressure which makes what previously was clear seem doubtful,
and before which even well settled principles of law will bend."66
In this present crusade to "search for truth," we should turn to the fundamental
constitutional principles which underlie our tripartite system of government,
where the Legislature enacts the law, the Judiciary interprets it and the
Executive implements it. They are considered separate, co-equal, coordinate
and supreme within their respective spheres but, imbued with a system of
checks and balances to prevent unwarranted exercise of power. The Court's
mandate is to preserve these constitutional principles at all times to keep the
political branches of government within constitutional bounds in the exercise
of their respective powers and prerogatives, even if it be in the search for truth.
This is the only way we can preserve the stability of our democratic institutions
and uphold the Rule of Law.
WHEREFORE, the petition is hereby GRANTED. The subject Order dated
January 30, 2008, citing petitioner Romulo L. Neri in contempt of the Senate
Committees and directing his arrest and detention, is hereby nullified.
SO ORDERED.
IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND
HABEAS DATA IN FAVOR OF NORIEL RODRIGUEZ, NORIEL
RODRIGUEZ, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. VICTOR S. IBRADO, PDG JESUS
AME VERSOZA, LT. GEN. DELFIN BANGIT, MAJ. GEN. NESTOR Z.
OCHOA, P/CSUPT. AMETO G. TOLENTINO, P/SSUPT. JUDE W. SANTOS,
COL. REMIGIO M. DE VERA, an officer named MATUTINA, LT. COL.
MINA, CALOG, GEORGE PALACPAC under the name "HARRY,"
ANTONIO CRUZ, ALDWIN "BONG" PASICOLAN and VINCENT
CALLAGAN, Respondents.
RESOLUTION
SERENO, CJ.:
On 15 November 2011, the Court promulgated its Decision in the present case,
the dispositive portion of which reads:

WHEREFORE, we resolve to GRANT the Petition for Partial Review in G.R.
No. 191805 and DENY the Petition for Review in G.R. No. 193160. The
Decision of the Court of Appeals is hereby AFFIRMED WITH MODIFICATION.
The case is dismissed with respect to respondents former President Gloria
Macapagal-Arroyo, P/CSupt. Ameto G. Tolentino, and P/SSupt. Jude W.
Santos, Calog, George Palacpac, Antonio Cruz, Aldwin Pasicolan and Vincent
Callagan for lack of merit.
This Court directs the Office of the Ombudsman (Ombudsman) and the
Department of Justice (DOJ) to take the appropriate action with respect to any
possible liability or liabilities, within their respective legal competence, that may
have been incurred by respondents Gen. Victor lbrado, PDG. Jesus Verzosa,
Lt. Gen. Delfin Bangit, Maj. Gen. Nestor Ochoa, Brig. Gen. Remegio De Vera,
1st Lt. Ryan Matutina, and Lt. Col. Laurence Mina. The Ombudsman and the
DOJ are ordered to submit to this Court the results of their action within a
period of six months from receipt of this Decision.
In the event that herein respondents no longer occupy their respective posts,
the directives mandated in this Decision and in the Court of Appeals are
enforceable against the incumbent officials holding the relevant positions.
Failure to comply with the foregoing shall constitute contempt of court.
SO ORDERED.
After a careful examination of the records, the Court was convinced that the
Court of Appeals correctly found sufficient evidence proving that the soldiers
of the 17th Infantry Battalion, 5th Infantry Division of the military abducted
petitioner Rodriguez on 6 September 2009, and detained and tortured him until
17 September 2009.
Pursuant to the Decision ordering the Office of the Ombudsman to take further
action, Ombudsman Conchita Carpio Morales sent this Court a letter dated 23
May 2012, requesting an additional two-month period, or until 24 July 2012,
within which to submit a report. The Ombudsman stated that Noriel Rodriguez
(Rodriguez) and his family refused to cooperate with the investigation for
security reasons.
On 6 January 2012, respondents filed their Motion for Reconsideration,1
arguing that the soldiers belonging to the 17th Infantry Battalion, 5th Infantry
Division of the military cannot be held accountable for authoring the abduction
and torture of petitioner. Their arguments revolve solely on the claim that
respondents were never specifically mentioned by name as having performed,
permitted, condoned, authorized, or allowed the commission of any act or
incurrence omission which would violate or threaten with violation the rights to
life, liberty, and security of petitioner-respondent and his family.2
On 18 January 2013, the Ombudsman submitted the Investigation Report, as
compliance with the Courts directive to take appropriate action with respect to
possible liabilities respondents may have incurred. The exhaustive report
detailed the steps taken by the Field Investigation Office (FIO) of the Office of
the Ombudsman, concluding that no criminal, civil, or administrative liabilities
may be imputed to the respondents. It was reflected therein that the lawyers
for the Rodriguezes had manifested to the FIO that the latter are hesitant to
appear before them for security reasons, viz:
Karapatan (a non-governmental organization that provides legal assistance to
victims of human rights violations and their families) could not locate Noriel
and Rodel. As of this writing, the Rodriguezes refused to participate in the
present fact-finding investigation for security reasons. Atty. Yambot disclosed
(through a Manifestation dated March 30, 2012 that despite efforts to convince
Noriel to participate in the present proceedings, the latter remains
unconvinced and unwilling to this date.
Recent information, however, revealed that Noriel and his family are no longer
interested in participating in the present case.
Instead of appearing before this Office for a conference under oath, SPO1
Robert B. Molina submitted an Affidavit dated June 13, 2012 stating that on
September 15, 2009, at around 11:00 oclock in the morning, Wilma H.
Rodriguez appeared before the Gonzaga Police Station and requested to
enter into the blotter that her son, Noriel, was allegedly missing in Sitio
Comunal, Gonzaga, Cagayan. Thereupon, he gathered information relative to
Wilmas report "but the community residence failed to reveal anything".3
The other accounts specifically that of respondent Antonino C. Cruz, Special
Investigator II of the Commission on Human Rights (CHR), as well as the
claims of respondents Mina and De Vera that they had disclosed to the CHR
that Noriel had become an agent ("asset") of the 17th Infantry Battalion have
been thoroughly evaluated and ruled upon in our Decision. The OMB further
laments, "If only he (Noriel) could be asked to verify the circumstances under
which he executed these subsequent affidavits, his inconsistent claims will
finally be settled," and that "(I)f there is one person who can attest on whether
detention and torture were indeed committed by any of the Subjects herein, it
is Noriel Rodriguez himself, the supposed victim."4
The purported unwillingness of the petitioner to appear or participate at this
stage of the proceedings due to security reasons does not affect the rationale
of the writ granted by the CA, as affirmed by this Court. In any case, the issue
of the existence of criminal, civil, or administrative liability which may be
imputed to the respondents is not the province of amparo proceedings --
rather, the writ serves both preventive and curative roles in addressing the
problem of extrajudicial killings and enforced disappearances. It is preventive
in that it breaks the expectation of impunity in the commission of these
offenses, and it is curative in that it facilitates the subsequent punishment of
perpetrators by inevitably leading to subsequent investigation and action.5 In
this case then, the thrust of ensuring that investigations are conducted and the
rights to life, liberty, and security of the petitioner, remains.
We deny the motion for reconsideration.
The writ of amparo partakes of a summary proceeding that requires only
substantial evidence to make the appropriate interim and permanent reliefs
available to the petitioner. As explained in the Decision, it is not an action to
determine criminal guilt requiring proof beyond reasonable doubt, or liability
for damages requiring preponderance of evidence, or even administrative
responsibility requiring substantial evidence. The totality of evidence as a
standard for the grant of the writ was correctly applied by this Court, as first
laid down in Razon v. Tagitis:
The fair and proper rule, to our mind, is to consider all the pieces of evidence
adduced in their totality, and to consider any evidence otherwise inadmissible
under our usual rules to be admissible if it is consistent with the admissible
evidence adduced. In other words, we reduce our rules to the most basic test
of reason i.e., to the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum test.6 (Emphasis
supplied.)
No reversible error may be attributed to the grant of the privilege of the writ by
the CA, and the present motion for reconsideration raises no new issues that
would convince us otherwise.
Respondents claim that they were not competently identified as the soldiers
who abducted and detained the petitioner, or that there was no mention of their
names in the documentary evidence, is baseless. The CA rightly considered
Rodriguezs Sinumpaang Salaysay7 as a meticulous and straightforward
account of his horrific ordeal with the military, detailing the manner in which he
was captured and maltreated on account of his suspected membership in the
NPA.8
Petitioner narrated that at dawn on 9 September 2009, he noticed a soldier
with the name tag "Matutina," who appeared to be an official because the other
soldiers addressed him as "sir."9 He saw Matutina again at 11:00 p.m. on 15
September 2009, when his abductors took him to a military operation in the
mountains. His narration of his suffering included an exhaustive description of
his physical surroundings, personal circumstances, and perceived
observations. He likewise positively identified respondents 1st Lt. Matutina and
Lt. Col. Mina to be present during his abduction, detention and torture.10
These facts were further corroborated by Hermie Antonio Carlos in his
Sinumpaang Salaysay dated 16 September 2009,11 wherein he recounted in
detail the circumstances surrounding the victims capture.
Respondents main contention in their Return of the Writ was correctly deemed
illogical and contradictory by the CA. They claim that Rodriguez had
complained of physical ailments due to activities in the CPP-NPA, yet
nevertheless signified his desire to become a double-agent for the military. The
CA stated:
In the Return of the Writ, respondent AFP members alleged that petitioner
confided to his military handler, Cpl. Navarro, that petitioner could no longer
stand the hardships he experienced in the wilderness, and that he wanted to
become an ordinary citizen again because of the empty promises of the CPP-
NPA. However, in the same Return, respondents state that petitioner agreed
to become a double agent for the military and wanted to re-enter the CPP-
NPA, so that he could get information regarding the movement directly from
the source. If petitioner was tired of life in the wilderness and desired to
become an ordinary citizen again, it defies logic that he would agree to become
an undercover agent and work alongside soldiers in the mountains or the
wilderness he dreads to locate the hideout of his alleged NPA comrades.12
(Emphasis supplied.)
Respondents conveniently neglect to address the findings of both the CA and
this Court that aside from the abduction of Rodriguez, respondents, specifically
1st Lt. Matutina, had violated and threatened the formers right to security
when they made a visual recording of his house, as well as the photos of his
relatives. The CA found that the soldiers even went as far as taking videos of
the photos of petitioners relatives hung on the wall of the house, and the
innermost portions of the house.13 There is no reasonable justification for this
violation of the right to privacy and security of petitioners abode, which strikes
at the very heart and rationale of the Rule on the Writ of Amparo. More
importantly, respondents also neglect to address our ruling that the failure to
conduct a fair and effective investigation similarly amounted to a violation of,
or threat to Rodriguezs rights to life, liberty, and security.14
The writs curative role is an acknowledgment that the violation of the right to
life, liberty, and security may be caused not only by a public officials act, but
also by his omission. Accountability may attach to respondents who are
imputed with knowledge relating to the enforced disappearance and who carry
the burden of disclosure; or those who carry, but have failed to discharge, the
burden of extraordinary diligence in the investigation of the enforced
disappearance.15 The duty to investigate must be undertaken in a serious
manner and not as a mere formality preordained to be ineffective.16
The CA found that respondents Gen. Ibrado, PDG Verzosa, LT. Gen. Bangit,
Maj. Gen. Ochoa, Col. De Vera, and Lt. Col. Mina conducted a perfunctory
investigation which relied solely on the accounts of the military. Thus, the CA
correctly held that the investigation was superficial, one-sided, and depended
entirely on the report prepared by 1st Lt. Johnny Calub. No efforts were
undertaken to solicit petitioners version of the incident, and no witnesses were
questioned regarding it.17 The CA also took into account the palpable lack of
effort from respondent Versoza, as the chief of the Philippine National Police.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration is
hereby DENIED with FINALITY. Let a copy of this Resolution be furnished the
Ombudsman for whatever appropriate action she may still take under
circumstances.
SO ORDERED.
IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND
THE WRIT OF HABEAS DATA IN FAVOR OF FRANCIS SAEZ, Petitioner,
vs.
GLORIA MACAPAGAL ARROYO, GEN. HERMOGENES ESPERON, P/DIR.
GEN. AVELINO RAZON, 22ND MICO, CAPT. LAWRENCE BANAAG, SGT.
CASTILLO, CAPT. ROMMEL GUTIERREZ, CAPT. JAKE OBLIGADO, CPL.
ROMAN ITO QUINT ANA, PVT. JERICO DUQUIL, CPL. ARIEL
FONTANILLA, A CERTAIN CAPT. ALCA YDO, A CERTAIN FIRST
SERGEANT, PVT. ZALDY OSlO, A CERTAIN PFC. SONNY, A CERTAIN
CPL. JAMES, A CERTAIN JOEL, RODERICK CLANZA and JEFFREY
GOMEZ, Respondents.
For action by the Court is the Motion for Reconsideration1 dated September
26, 2010 filed by petitioner Francis Saez of our Resolution2 dated August 31,
2010 denying the Petition for Review3 he filed on July 21, 2008.
The Office of the Solicitor General (OSG) filed its Comment4 thereon stating
that it does not find cogent grounds to warrant setting aside our decision.
Antecedent Facts
On March 6, 2008, the petitioner filed with the Court a petition to be granted
the privilege of the writs of amparo and habeas data with prayers for temporary
protection order, inspection of place and production of documents.5 In the
petition, he expressed his fear of being abducted and killed; hence, he sought
that he be placed in a sanctuary appointed by the Court. He likewise prayed
for the military to cease from further conducting surveillance and monitoring of
his activities and for his name to be excluded from the order of battle and other
government records connecting him to the Communist Party of the Philippines
(CPP).
Without necessarily giving due course to the petition, the Court issued the writ
of amparo commanding the respondents to make a verified return, and
referred the case to the Court of Appeals (CA) for hearing and decision.The
case before the CA was docketed as CA-G.R. SP No. 00024 WOA.
In the Return of the Writ,6 the respondents denied the assignment in the units
of Captains Lawrence Banaag and Rommel Gutierrez and Corporal Ariel
Fontanilla. The respondents also alleged that the names and descriptions of
"Capt. Alcaydo," "a certain First Sergeant," "Cpl. James," "Pfc. Sonny," and
"Joel" were insufficient to properly identify some of the persons sought to be
included as among the respondents in the petition.
On the other hand, respondents General Hermogenes Esperon, Jr. (Gen.
Esperon), Capt. Jacob Thaddeus Obligado, Pvt. Rizaldy A. Osio (Pvt. Osio),
Pfc. Romanito C. Quintana, Jr. and Pfc. Jerico Duquil submitted their affidavits.
The CA conducted hearings with an intent to clarify what actually transpired
and to determine specific acts which threatened the petitioners right to life,
liberty or security.
During the hearings, the petitioner narrated that starting April 16, 2007, he
noticed that he was always being followed by a certain "Joel," a former
colleague at Bayan Muna. "Joel" pretended peddling pandesal in the vicinity
of the petitioners store. Three days before the petitioner was apprehended,
"Joel" approached and informed him of his marital status and current job as a
baker in Calapan, Mindoro Oriental. "Joel" inquired if the petitioner was still
involved with ANAKPAWIS. When asked by the CA justices during the hearing
if the petitioner had gone home to Calapan after having filed the petition, he
answered in the negative explaining that he was afraid of Pvt. Osio who was
always at the pier.
CA-G.R. SP No. 00024 WOA
On July 9, 2008, the CA rendered its Decision,7 denying on formal and
substantial grounds the reliefs prayed for in the petition and dropping former
President Gloria Macapagal Arroyo as a respondent. The CA ratiocinated:
There was no attempt at all to clarify how petitioner came to know about Zaldy
Osios presence at their pier if the former had not gone home since the petition
was filed and what Zaldy Osio was doing there to constitute violation or threat
to violate petitioners right to life, liberty or security. This Court cannot just grant
the privilege of the writs without substantial evidence to establish petitioners
entitlement thereto. This Court cannot grant the privilege of the writs applied
for on mere speculation or conjecture. This Court is convinced that the
Supreme Court did not intend it to be so when the rules on the writs of Amparo
and Habeas Data were adopted. It is the impression of this Court that the
privilege of the writs herein prayed for should be considered as extraordinary
remedies available to address the specific situations enumerated in the rules
and no other.
xxxx
Not only did the petition and the supporting affidavit x x x fail to allege how the
supposed threat or violation of petitioners [right to] life, liberty and security is
committed. Neither is there any narration of any circumstances attendant to
said supposed violation or threat to violatepetitioners right to life, liberty or
security to warrant entitlement to the privilege of the writs prayed for.
xxxx
A reading of the petition will show that the allegations therein do not comply
with the aforestated requirements of Section 6 Rule on the Writ of Habeas
Data of the pertinent rule. The petition is bereft of any allegation stating with
specific definiteness as to how petitioners right to privacy was violated or
threatened to be violated. He did not include any allegation as to what
recourses he availed of to obtain the alleged documents from respondents.
Neither did petitioner allege what specific documents he prays for and from
whom or [sic] from what particular office of the government he prays to obtain
them. The petition prays "to order respondents to produce any documents
submitted to any of them in the matter of any report on the case of FRANCIS
SAEZ, including all military intelligence reports."
xxxx
Both the rules on the writs of Amparo and Habeas Data (Section 17, A.M. No.
07-9-12-SC and Section 16, A.M. No. 08-1-16-SC) provide that the parties
shall establish their claims by substantial evidence. Not only was petitioner
unable to establish his entitlement to the privilege of the writs applied for, the
exigency thereof was negated by his own admission that nothing happened
between him and Joel after July 21, 2007. The filing of the petition appears to
have been precipitated by his fear that something might happen to him, not
because of any apparent violation or visible threat to violate his right to life,
liberty or security. Petitioner was, in fact, unable to establish likewise who
among the respondents committed specific acts defined under the rules on
both writs to constitute violation or threat to violate petitioners rights to life,
liberty or security or his right to privacy thereof.
xxxx
x x x The ruling in David, et al. vs. Gloria Macapagal Arroyo, et al. (G.R. No.
171396, May 3, 2006, 489 SCRA 160, 224) is aptly instructive:
"Settled is the doctrine that the President, during his tenure of office or actual
incumbency, may not be sued in any civil or criminal case, and there is no
need to provide for it in the Constitution or law. It will degrade the dignity of the
high office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be freed
from any form of harassment, hindrance or distraction to enable him to fully
attend to the performance of his official duties and functions. x x x."
xxxx
IV. The petition lacks proper verification in violation of Section 12, 2004 Rules
on Notarial Practice.8
On July 21, 2008, Petition for Review was filed assailing the foregoing CA
decision with the following issues submitted for resolution:
WHETHER OR NOT THE CA COMMITTED REVERSIBLE ERROR IN
DISMISSING THE PETITION AND DROPPING GLORIA MACAPAGAL
ARROYO AS PARTY RESPONDENT.
WHETHER OR NOT THE NOTARIAL OFFICERS OMISSION OF
REQUIRING FROM THE PETITIONER IDENTIFICATION CARDS RELATIVE
TO THE LATTERS EXECUTION OF THE VERIFICATION AND
CERTIFICATION OF NON-FORUM SHOPPING JUSTIFIES THE DENIAL OF
THE PETITION.
WHETHER OR NOT THE CA COMMITTED GROSS ABUSE OF
DISCRETION WHEN IT FAILED TO CONCLUDE FROM THE EVIDENCE
OFFERED BY THE PETITIONER THE FACT THAT BY BEING PLACED IN
THE ORDER OF BATTLE LIST, THREATS AND VIOLATIONS TO THE
LATTERS LIFE, LIBERTY AND SECURITY WERE ACTUALLY COMMITTED
BY THE RESPONDENTS.9
Courts Resolution dated August 31, 2010
On August 31, 2010, the Court issued the Resolution10 denying the petition
for review for the following reasons, viz:
A careful perusal of the subject petition shows that the CA correctly found that
the petition was bereft of any allegation as to what particular acts or omission
of respondents violated or threatened petitioners right to life, liberty and
security. His claim that he was incommunicado lacks credibility as he was
given a cellular phone and allowed to go back to Oriental Mindoro. The CA
also correctly held that petitioner failed to present substantial evidence that his
right to life, liberty and security were violated, or how his right to privacy was
threatened by respondents. He did not specify the particular documents to be
secured, their location or what particular government office had custody
thereof, and who has possession or control of the same. He merely prayed
that the respondents be ordered "to produce any documents submitted to any
of them in the matter of any report on the case of FRANCIS SAEZ, including
all military intelligence reports."
Petitioner assails the CA in failing to appreciate that in his Affidavit and Fact
Sheet, he had specifically detailed the violation of his right to privacy as he
was placed in the Order of Battle and promised to have his record cleared if
he would cooperate and become a military asset. However, despite questions
propounded by the CA Associate Justices during the hearing, he still failed to
enlighten the appellate court as to what actually transpired to enable said court
to determine whether his right to life, liberty or security had actually been
violated or threatened. Records bear out the unsubstantiated claims of
petitioner which justified the appellate courts dismissal of the petition.
As to petitioners argument that the CA erred in deleting the President as party-
respondent, we find the same also to be without merit. The Court has already
made it clear in David v. Macapagal-Arroyo that the President, during his or
her tenure of office or actual incumbency, may not be sued in any civil or
criminal case, and there is no need to provide for it in the Constitution or law.
It will degrade the dignity of the high office of the President, the Head of State,
if the President can be dragged into court litigations while serving as such.
Furthermore, it is important that the President be freed from any form of
harassment, hindrance or distraction to enable the President to fully attend to
the performance of official duties and functions.11 (Citation omitted)
Hence, the petitioner filed the instant motion for reconsideration.12
Petitioners Arguments
Contrary to the CAs findings, it had been shown by substantial evidence and
even by the respondents own admissions that the petitioners life, liberty and
security were threatened. Military personnel, whom the petitioner had named
and described, knew where to get him and they can do so with ease. He also
became a military asset, but under duress, as the respondents had documents
allegedly linking him to the CPP and including him in the order of battle. The
petitioner claims that the foregoing circumstances were not denied by the
respondents.
The petitioner likewise challenges the CAs finding that he was not rendered
incommunicado as he was even provided with a cellular phone. The petitioner
argues that the phone was only given to him for the purpose of communicating
with the respondents matters relative to his infiltration activities of target legal
organizations.
The petitioner cites Secretary of National Defense v. Manalo,13 which
pronounced that "in the amparo context, it is more correct to say that the right
to security is actually the freedom from threat".14 According to the petitioner,
his freedom from fear was undoubtedly violated, hence, to him pertains a
cause of action. Anent the quantum of proof required in a petition for the
issuance of the writ of amparo, mere substantial evidence is sufficient. The
petition "is not an action to determine criminal guilt requiring proof beyond
reasonable doubt, or liability for damages requiring preponderance of
evidence, or administrative responsibility requiring substantial evidence that
will require full and exhaustive proceedings".15
Sadly, in the petitioners case, the court not only demanded a greater quantum
of proof than what the rules require, but it also accorded special preference for
the respondents evidence.
The petitioner also cites a speech delivered in Siliman University by former
Chief Justice Reynato Puno who expressed that "the remedy of habeas data
can be used by any citizen against any governmental agency or register to find
out what information is held about his or her person." The person can likewise
"request the rectification or even the destruction of erroneous data gathered
and kept against him or her." In the petitioners case, he specifically sought the
production of the order of battle, which allegedly included his name, and other
records which supposedly contain erroneous data relative to his involvement
with the CPP.
OSGs Comment
In the respondents comment16 filed by the OSG, it is generally claimed that
the petitioner advances no cogent grounds to justify the reversal of the Courts
Resolution dated August 31, 2010.
The Courts Disquisition
While the issuance of the writs sought by the petitioner cannot be granted, the
Court nevertheless finds ample grounds to modify the Resolution dated August
31, 2010.
The petition conforms to the
requirements of the Rules on the
Writs of Amparo and Habeas Data
Section 517 of A.M. No. 07-9-12-SC (Rule on the Writ of Amparo) and Section
618 of A.M. 08-1-16-SC (Rule on the Writ of Habeas Data) provide for what
the said petitions should contain.
In the present case, the Court notes that the petition for the issuance of the
privilege of the writs of amparo and habeas data is sufficient as to its contents.
The petitioner made specific allegations relative to his personal circumstances
and those of the respondents. The petitioner likewise indicated particular acts,
which are allegedly violative of his rights and the participation of some of the
respondents in their commission. As to the pre-requisite conduct and result of
an investigation prior to the filing of the petition, it was explained that the
petitioner expected no relief from the military, which he perceived as his
oppressors, hence, his request for assistance from a human rights
organization, then a direct resort to the court. Anent the documents sought to
be the subject of the writ of habeas data prayed for, the Court finds the
requirement of specificity to have been satisfied. The documents subject of the
petition include the order of battle, those linking the petitioner to the CPP and
those he signed involuntarily, and military intelligence reports making
references to him. Although the exact locations and the custodians of the
documents were not identified, this does not render the petition insufficient.
Section 6(d) of the Rule on the Writ of Habeas Data is clear that the
requirement of specificity arises only when the exact locations and identities
of the custodians are known. The Amparo Rule was not promulgated with the
intent to make it a token gesture of concern for constitutional rights.19 Thus,
despite the lack of certain contents, which the Rules on the Writs of Amparo
and Habeas Data generally require, for as long as their absence under
exceptional circumstances can be reasonably justified, a petition should not
be susceptible to outright dismissal.
From the foregoing, the Court holds that the allegations stated in the petition
for the privilege of the writs of amparo and habeas data filed conform to the
rules. However, they are mere allegations, which the Court cannot accept
"hook, line and sinker", so to speak, and whether substantial evidence exist to
warrant the granting of the petition is a different matter altogether.
No substantial evidence exists to
prove the petitioners claims
The Court has ruled that in view of the recognition of the evidentiary difficulties
attendant to the filing of a petition for the privilege of the writs of amparo and
habeas data, not only direct evidence, but circumstantial evidence, indicia, and
presumptions may be considered, so long as they lead to conclusions
consistent with the admissible evidence adduced.20
With the foregoing in mind, the Court still finds that the CA did not commit a
reversible error in declaring that no substantial evidence exist to compel the
grant of the reliefs prayed for by the petitioner. The Court took a second look
on the evidence on record and finds no reason to reconsider the denial of the
issuance of the writs prayed for.
In the hearing before the CA, it was claimed that "Joel" once inquired from the
petitioner if the latter was still involved with ANAKPAWIS. By itself, such claim
cannot establish with certainty that the petitioner was being monitored. The
encounter happened once and the petitioner, in his pleadings, nowhere stated
that subsequent to the time he was asked about his involvement with
ANAKPAWIS, he still noticed "Joel" conducting surveillance operations on
him. He alleged that he was brought to the camp of the 204th Infantry Brigade
in Naujan, Oriental Mindoro but was sent home at 5:00 p.m. The petitioner and
the respondents have conflicting claims about what transpired thereafter. The
petitioner insisted that he was brought against his will and was asked to stay
by the respondents in places under the latters control. The respondents, on
the other hand, averred that it was the petitioner who voluntarily offered his
service to be a military asset, but was rejected as the former still doubted his
motives and affiliations.
Section 19 of both the Rules on the Writ of Amparo and Habeas Data is explicit
that questions of fact and law can be raised before the Court in a petition for
review on certiorari under Rule 45. As a rule then, the Court is not bound by
the factual findings made by the appellate court which rendered the judgment
in a petition for the issuance of the writs of amparo and habeas data. Be that
as it may, in the instant case, the Court agrees with the CA that the petitioner
failed to discharge the burden of proof imposed upon him by the rules to
establish his claims. It cannot be overemphasized that Section 1 of both the
Rules on the Writ of Amparo and Habeas Data expressly include in their
coverage even threatened violations against a persons right to life, liberty or
security. Further, threat and intimidation that vitiate the free will although not
involving invasion of bodily integrity nevertheless constitute a violation of the
right to security in the sense of "freedom from threat".21
It must be stressed, however, that such "threat" must find rational basis on the
surrounding circumstances of the case. In this case, the petition was mainly
anchored on the alleged threats against his life, liberty and security by reason
of his inclusion in the militarys order of battle, the surveillance and monitoring
activities made on him, and the intimidation exerted upon him to compel him
to be a military asset. While as stated earlier, mere threats fall within the mantle
of protection of the writs of amparo and habeas data, in the petitioners case,
the restraints and threats allegedly made allegations lack corroborations, are
not supported by independent and credible evidence, and thus stand on
nebulous grounds.
The Court is cognizant of the evidentiary difficulties attendant to a petition for
the issuance of the writs. Unlike, however, the unique nature of cases involving
enforced disappearances or extra-judicial killings that calls for flexibility in
considering the gamut of evidence presented by the parties, this case sets a
different scenario and a significant portion of the petitioners testimony could
have been easily corroborated. In his Sinumpaang Salaysay22 dated March
5, 2008 and the Fact Sheet dated December 9, 200723 executed before the
Alliance for the Advancement of Peoples Rights-Southern Tagalog
(KARAPATAN-ST), the petitioner stated that when he was invited and
interrogated at the military camp in Naujan, Oriental Mindoro, he brought with
him his uncle Norberto Roxas, Barangay Captain Mario Ilagan and two of his
bodyguards, and Edwardo Estabillo five witnesses who can attest and easily
corroborate his statement but curiously, the petitioner did not present any
piece of evidence, whether documentary or testimonial, to buttress such claim
nor did he give any reason for their non-presentation.This could have made a
difference in light of the denials made by the respondents as regards the
petitioners claims.
The existence of an order of battle and inclusion of the petitioners name in it
is another allegation by the petitioner that does not find support on the
evidence adduced. The Court notes that such allegation was categorically
denied by respondent Gen. Avelino I. Razon, Jr. who, in his Affidavit dated
March 31, 2008, stated that he "does not have knowledge about any Armed
Forces of the Philippines (AFP) order of battle which allegedly lists the
petitioner as a member of the CPP."24 This was also denied by Pvt. Osio, who
the petitioner identified as the one who told him that he was included in the
order of battle.25 The 2nd Infantry (Jungle Fighter) Division of the Philippine
Army also conducted an investigation pursuant to the directive of AFP Chief of
Staff Gen. Esperon,26 and it was shown that the persons identified by the
petitioners who allegedly committed the acts complained of were not
connected or assigned to the 2nd Infantry Division.27
Moreover, the evidence showed that the petitioners mobility was never
curtailed. From the time he was allegedly brought to Batangas in August of
2007 until the time he sought the assistance of KARAPATAN-ST, there was
no restraint upon the petitioner to go home, as in fact, he went home to
Mindoro on several instances. And while he may have been wary of Pvt. Osios
presence at the pier, there was no claim by the petitioner that he was
threatened or prevented by Pvt. Osio from boarding any vehicle that may
transport him back home. The petitioner also admitted that he had a mobile
phone; hence, he had unhampered access to communication and can readily
seek assistance from non-governmental organizations and even government
agencies.
The respondents also belied the petitioners claim that they forced him to
become a military informant and instead, alleged that it was the petitioner who
volunteered to be one. Thus, in his Sinumpaang Salaysay28 executed on
March 25, 2008, Pvt. Osio admitted that he actually knew the petitioner way
back in 1998 when they were still students. He also stated that when he saw
the petitioner again in 2007, the latter manifested his intention to become a
military informant in exchange for financial and other forms of assistance.
The petitioner also harps on the alleged "monitoring" activities being
conducted by a certain "Joel", e.g., the latters alleged act of following him,
pretending to peddle pandesal and asking him about his personal
circumstances. Such allegation by the petitioner, however, is, at best, a
conclusion on his part, a mere impression that the petitioner had, based on his
personal assessment of the circumstances. The petitioner even admitted in his
testimony before the CA that when he had a conversation with "Joel" sometime
in July 2007, the latter merely asked him whether he was still connected with
ANAKPAWIS, but he was not threatened "with anything" and no other incident
occurred between them since then.29 There is clearly nothing on record which
shows that "Joel" committed overt acts that will unequivocally lead to the
conclusion arrived at by the petitioner, especially since the alleged acts
committed by "Joel" are susceptible of different interpretations.
Given that the totality of the evidence presented by the petitioner failed to
support his claims, the reliefs prayed for, therefore, cannot be granted. The
liberality accorded to amparo and habeas data cases does not mean that a
claimant is dispensed with the onus of proving his case. "Indeed, even the
liberal standard of substantial evidence demands some adequate
evidence."30
The President cannot be
automatically dropped as a
respondent pursuant to the doctrine
of command responsibility
In Noriel Rodriguez v. Gloria Macapagal Arroyo, et al.,31 the Court stated:
a. Command responsibility of the President
Having established the applicability of the doctrine of command responsibility
in amparo proceedings, it must now be resolved whether the president, as
commander-in-chief of the military, can be held responsible or accountable for
extrajudicial killings and enforced disappearances. We rule in the affirmative.

To hold someone liable under the doctrine of command responsibility, the
following elements must obtain:
a. the existence of a superior-subordinate relationship between the accused
as superior and the perpetrator of the crime as his subordinate;
b. the superior knew or had reason to know that the crime was about to be or
had been committed; and
c. the superior failed to take the necessary and reasonable measures to
prevent the criminal acts or punish the perpetrators thereof.
The president, being the commander-in-chief of all armed forces, necessarily
possesses control over the military that qualifies him as a superior within the
purview of the command responsibility doctrine.
On the issue of knowledge, it must be pointed out that although international
tribunals apply a strict standard of knowledge, i.e., actual knowledge, such
may nonetheless be established through circumstantial evidence. In the
Philippines, a more liberal view is adopted and superiors may be charged with
constructive knowledge. This view is buttressed by the enactment of Executive
Order No. 226, otherwise known as the Institutionalization of the Doctrine of
Command Responsibility in all Government Offices, particularly at all Levels
of Command in the
Philippine National Police and other Law Enforcement Agencies (E.O. 226).
Under E.O. 226, a government official may be held liable for neglect of duty
under the doctrine of command responsibility if he has knowledge that a crime
or offense shall be committed, is being committed, or has been committed by
his subordinates, or by others within his area of responsibility and, despite
such knowledge, he did not take preventive or corrective action either before,
during, or immediately after its commission. Knowledge of the commission of
irregularities, crimes or offenses is presumed when (a) the acts are widespread
within the government officials area of jurisdiction; (b) the acts have been
repeatedly or regularly committed within his area of responsibility; or (c)
members of his immediate staff or office personnel are involved.
Meanwhile, as to the issue of failure to prevent or punish, it is important to note
that as the commander-in-chief of the armed forces, the president has the
power to effectively command, control and discipline the military. (Citations
omitted)
Pursuant to the doctrine of command responsibility, the President, as the
Commander-in-Chief of the AFP, can be held liable for affront against the
petitioners rights to life, liberty and security as long as substantial evidence
exist to show that he or she had exhibited involvement in or can be imputed
with knowledge of the violations, or had failed to exercise necessary and
reasonable diligence in conducting the necessary investigations required
under the rules.1wphi1
The Court also stresses that rule that the presidential immunity from suit exists
only in concurrence with the presidents incumbency.32
Conversely, this presidential privilege of immunity cannot be invoked by a non-
sitting president even for acts committed during his or her tenure.33 Courts
look with disfavor upon the presidential privilege of immunity, especially when
it impedes the search for truth or impairs the vindication of a right.34
The petitioner, however, is not exempted from the burden of proving by
substantial evidence his allegations against the President to make the latter
liable for either acts or omissions violative of rights against life, liberty and
security. In the instant case, the petitioner merely included the Presidents
name as a party respondent without any attempt at all to show the latters
actual involvement in, or knowledge of the alleged violations. Further, prior to
the filing of the petition, there was no request or demand for any investigation
that was brought to the Presidents attention. Thus, while the President cannot
be completely dropped as a respondent in a petition for the privilege of the
writs of amparo and habeas data merely on the basis of the presidential
immunity from suit, the petitioner in this case failed to establish accountability
of the President, as commander-in-chief, under the doctrine of command
responsibility.
Compliance with technical rules of
procedure is ideal but it cannot be
accorded primacy
Among the grounds cited by the CA in denying the petition for the issuance of
the writs of amparo and habeas data was the defective verification which was
attached to the petition. In Tagitis,35 supporting affidavits required under
Section 5(c) of the Rule on the Writ of Amparo were not submitted together
with the petition and it was ruled that the defect was fully cured when the
petitioner and the witness personally testified to prove the truth of their
allegations in the hearings held before the CA. In the instant case, the
defective verification was not the sole reason for the CAs denial of the petition
for the issuance of the writs of amparo and habeas data. Nonetheless, it must
be stressed that although rules of procedure play an important rule in
effectively administering justice, primacy should not be accorded to them
especially in the instant case where there was at least substantial compliance
with the requirements and where petitioner himself testified in the hearings to
attest to the veracity of the claims which he stated in his petition.
To conclude, compliance with technical rules of procedure is ideal but it cannot
be accorded primacy. In the proceedings before the CA, the petitioner himself
testified to prove the veracity of his allegations which he stated in the petition.
Hence, the defect in the verification attached to the petition. Hence, the defect
in the verification attached to the petition was deemed cured.
WHEREFORE, premises considered, the petitioner's motion for
reconsideration is DENIED WITH FINALITY.
SO ORDERED.
JOSE D. VILLENA, petitioner, vs.
THE SECRETARY OF THE INTERIOR, respondent.
Vicente del Rosario for petitioner.
Office of the Solicitor-General Ozaeta for respondent.
LAUREL, J.:
This is an original action of prohibition with prayer for preliminary injunction
against the Secretary of the Interior to restrain him and his agents from
proceeding with the investigation of the herein petitioner, Jose D. Villena,
mayor of Makati, Rizal, which was scheduled to take place on March 28, 1939,
until this case is finally determined by this court. The respondent was required
to answer, but the petition for preliminary injunction was denied.
It appears that the Division of Investigation of the Department of Justice, upon
the request of the Secretary of the Interior, conducted an inquiry into the
conduct of the petitioner, as a result of which the latter was found to have
committed bribery, extortion, malicious abuse of authority and unauthorized
practice of the law profession. The respondent, therefore, on February 8, 1939,
recommended to the President of the Philippines the suspension of the
petitioner to prevent possible coercion of witnesses, which recommendation
was granted, according to the answer of the Solicitor-General of March 20,
1939, verbally by the President on the same day. The Secretary of the Interior
suspended the petitioner from office on February 9, 1939, and then and
thereafter wired the Provincial Governor of Rizal with instruction that the
petitioner be advised accordingly. On February 13, 1939, the respondent wrote
the petitioner a letter, specifying the many charges against him and notifying
him of the designation of Emiliano Anonas as special investigator to
investigate the charges. The special investigator forthwith notified the
petitioner that the formal investigation would be commenced on February 17,
1939, at 9 a. m., but due to several incidents and postponements, the same
had to be set definitely for March 28, 1939. Hence, the petition for preliminary
injunction referred to in the beginning of this opinion.
The petitioner contends in his petition:
(1) That the Secretary of the Interior has no jurisdiction or authority to suspend
and much less to prefer by himself administrative charges against the
petitioner and decide also by himself the merits of the charges as the power to
suspend municipal elective officials and to try and punish them for misconduct
in office or dereliction of duty is lodged in some other agencies of the
government;
(2) That the acts of the respondent in suspending the petitioner from office and
in preferring by himself charges against him and in designating a special
investigator to hear the charges specified in Exhibit A are null and void for the
following reasons:
(a) Because the Secretary of the Interior, by suspending the petitioner, has
exercised control over local governments when that power has been taken
away from the President of the Philippines by the Constitution for the to
abrogate and the power to abrogate means the power to power to control has
been interpreted to include the power usurp and the power to usurp
necessarily includes the power to destroy;
(b) Because even if the respondent Secretary of the Interior has power of
supervision over local governments, that power, according to the constitution,
must be exercised in accordance with the provisions of law and the provisions
of law governing trials of charges against elective municipal officials are those
contained in section 2188 of the Administrative Code as amended. In other
words, the Secretary of the Interior must exercise his supervision over local
governments, if he has that power under existing law, in accordance with
section 2188 of the Administrative Code, as amended, as the latter provision
govern the procedure to be followed in suspending and punishing elective local
officials while section 79 (C) of the Administrative Code is the general law
which must yield to the special law;
(c) Because the respondent Secretary of the Interior is exercising an arbitrary
power by converting himself into a complainant and at the same time judge of
the charges he has preferred against the petitioner;
(d) Because the action of the respondent Secretary of the Interior is not based
on any sworn statement of any private person or citizen of this government
when section 2188 of the Administrative Code requires the complaint against
elective municipal officials to be under oath in order to merit consideration by
the authorities.
Petitioner prays this Honorable Court:
(a) To issue a writ of preliminary injunction against the respondent restraining
him, his agents, attorneys and all persons acting by virtue of his authority from
further proceeding against the petitioner until this case is finally determined by
this court;
(b) To declare, after the hearing of this petition, that the respondent is without
authority or jurisdiction to suspend the petitioner from the office of mayor of
Makati and to order his immediate reinstatement in office;
(c) To declare that the respondent has no authority to prefer charges against
the petitioner and to investigate those charges for the grant him that power the
respondent would be acting as prosecutor and judge of the case of his own
creation.
Upon the other hand, the Solicitor-General contends in his answer:
1. That section 79 (C) in relation with section 86 of the Revised Administrative
Code expressly empowers the respondent as Secretary of the Interior to "order
the investigation of any act or conduct of any person in the service of any
bureau or office under his department" and in connection therewith to
"designate an official or person who shall conduct such investigation"; (Par. 4.)
2. That although section 2188 of the Revised Administrative Code, invoked by
the petitioner, empowers the provincial governor to `receive and investigate
complaints made under oath against municipal officers for neglect of duty,
oppression, corruption or other form of maladministration of office', said
section does not preclude the respondent as Secretary of the Interior from
exercising the power vested in him by section 79 (C) in relation with section 86
of the Revised Administrative Code; and that, moreover, said section 2188
must be read in relation with section 37 of Act No. 4007, known as the
Reorganization Law of 1932; (Par. 4 [b].)
3. That at the commencement of the investigation the petitioner did not
question the power or jurisdiction of the Department of the Interior to
investigate the administrative charges against him but merely contended that
the filing of said charges was not in accordance with law for the reason that
they did not bear the oaths of the complainants; (Par. 5.)
4. That the authority of a department head order the investigation of any act or
conduct of any person under his department necessarily carries with it by
implication the authority to take such measures as he may deem necessary to
accomplish the purpose of the investigation, such as by suspending the officer
under investigation to prevent coercion of witnesses; and that, furthermore,
the suspension from office of the herein petitioner by the respondent was
authorized by the Chief Executive, who is empowered by section 64 (B) of the
Administrative Code to remove officials from office; (Par. 7.)
5. That the petition does not allege facts and circumstances that would warrant
the granting of the writ of preliminary injunction under section 164 of the Code
of Civil Procedure; (Par. 8.)
6. That it is a well-settled rule "that courts of equity have no power to restrain
public officers by injunction from performing any official act which they are by
law required to perform, or acts which are not in excess of the authority and
discretion reposed in them." (Par. 9)
The issues presented in this case may be reduced to an inquiry into the legal
authority of the Secretary of the Interior (a) to order an investigation, by a
special investigation appointed by him, of the charges of corruption and
irregularity brought to his attention against the mayor of the municipality of
Makati, Province of Rizal, who is the petitioner herein, and (b) to decree the
suspension of the said mayor pending the investigation of the charges.
Section 79 (C) of the Administrative Code provides as follows:
The Department Head shall have direct control, direction, and supervision over
all bureaus and offices under his jurisdiction and may, any provision of existing
law to the contrary notwithstanding, repeal or modify the decisions of the chiefs
of said bureaus of offices when advisable in the public interest.
The Department Head may order the investigation of any act conduct of any
person in the service of any bureau of office under his department and in
connection therewith may appoint a committee or designate an official or
person who shall conduct such investigations, and such committee, official, or
person may summon, witness by subpoena and subpoena duces tecum,
administer oath and take testimony relevant to the investigation.
The above section speaks, it is true, of direct control, direction, and supervision
over bureaus and offices under the jurisdiction of the Secretary of the Interior,
but this section should be interpreted in relation to section 86 of the same Code
which grants to the Department of the Interior "executive supervision over the
administration of provinces, municipalities, chartered cities and other local
political subdivisions." In the case of Planas vs. Gil (37 Off. Gaz., 1228), we
observed that "Supervision is not a meaningless thing. It is an active power. It
is certainly not without limitation, but it at least implies authority to inquire into
facts and conditions in order to render the power real and effective. If
supervision is to be conscientious and rational, and not automatic and brutal,
it must be founded upon a knowledge of actual facts and conditions disclosed
after careful study and investigation." The principle there enunciated is
applicable with equal force to the present case.
We hold, therefore, that the Secretary of the Interior is invested with authority
to order the investigation of the charges against the petitioner and to appoint
a special investigator for that purpose.
As regards the challenged power of the Secretary of the Interior to decree the
suspension of the herein petitioner pending an administrative investigation of
the charges against him, the question, it may be admitted, is not free from
difficulties. There is no clear and express grant of power to the secretary to
suspend a mayor of a municipality who is under investigation. On the contrary,
the power appears lodged in the provincial governor by section 2188 of the
Administrative Code which provides that "The provincial governor shall receive
and investigate complaints made under oath against municipal officers for
neglect of duty, oppression, corruption or other form of maladministration of
office, and conviction by final judgment of any crime involving moral turpitude.
For minor delinquency he may reprimand the offender; and if a more severe
punishment seems to be desirable he shall submit written charges touching
the matter to the provincial board, furnishing a copy of such charges to the
accused either personally or by registered mail, and he may in such case
suspend the officer (not being the municipal treasurer) pending action by the
board, if in his opinion the charge be one affecting the official integrity of the
officer in question. Where suspension is thus effected, the written charges
against the officer shall be filed with the board within five days." The fact,
however, that the power of suspension is expressly granted by section 2188
of the Administrative Code to the provincial governor does not mean that the
grant is necessarily exclusive and precludes the Secretary of the Interior from
exercising a similar power. For instance, counsel for the petitioner admitted in
the oral argument that the President of the Philippines may himself suspend
the petitioner from office in virtue of his greater power of removal (sec. 2191,
as amended, Administrative Code) to be exercised conformably to law.
Indeed, if the President could, in the manner prescribed by law, remove a
municipal official, it would be a legal incongruity if he were to be devoid of the
lesser power of suspension. And the incongruity would be more patent if,
possessed of the power both to suspend and to remove a provincial official
(sec. 2078, Administrative Code), the President were to be without the power
to suspend a municipal official. Here is, parenthetically, an instance where, as
counsel for petitioner admitted, the power to suspend a municipal official is not
exclusive. Upon the other hand, it may be argued with some degree of
plausibility that, if the Secretary of the Interior is, as we have hereinabove
concluded, empowered to investigate the charges against the petitioner and
to appoint a special investigator for that purpose, preventive suspension may
be a means by which to carry into effect a fair and impartial investigation. This
is a point, however, which, for the reason hereinafter indicated, we do not have
to decide.
The Solicitor-General argues that section 37 of Act No. 4007, known as the
Reorganization Law of 1932, by providing, "the provisions of the existing law
to the contrary notwithstanding," that "whenever a specific power, authority,
duty, function, or activity is entrusted to a chief of bureau, office, division or
service, the same shall be understood as also conferred upon the proper
Department Head who shall have authority to act directly in pursuance thereof,
or to review, modify or revoke any decision or action of said chief of bureau,
office, division or service", should be interpreted to concede to the Secretary
of the Interior the power to suspend a mayor of a municipality. The argument
is so generally sweeping that, unless distinctions are made, the effect would
be the complete abrogation at will of the powers of provincial and municipal
officials even in corporate affairs of local governments. Under the theory
suggested by the Solicitor-General, the Secretary of the Interior could, as
observed by able counsel for the petitioner, enter into a contract and sign a
deed of conveyance of real property in behalf of a municipality against the
opposition of the mayor thereof who is the local official authorized by law to do
so (sec. 2196, Revised Administrative Code), or in behalf of a province in lieu
of the provincial governor thereof (sec 2068, Ibid.), and otherwise exercise
powers of corporate character mentioned in sections 2067 and 2175 of the
Revised Administrative Code and which are lodged in the corresponding
provincial and municipal officials. And if the power of suspension of the
Secretary of the Interior is to be justified on the plea that the pretended power
is governmental and not corporate, the result would be more disastrous. Then
and thereunder, the Secretary of the Interior, in lieu of the mayor of the
municipality, could directly veto municipal ordinances and resolutions under
section 2229 of the Revised Administrative Code; he could, without any
formality, elbow aside the municipal mayor and himself make appointments to
all non-elective positions in the municipal service, under section 2199 of the
Revised Administrative Code; he could, instead of the provincial governor, fill
a temporary vacancy in any municipal office under subsection (a), section
2188, as amended, of the said Code; he-could even directly appoint
lieutenants of barrios and wrest the authority given by section 2218 of the
Revised Administrative Code to a municipal councilor. Instances may be
multiplied but it is unnecessary to go any further. Prudence, then, dictates that
we should hesitate to accept the suggestion urged upon us by the Solicitor-
General, especially where we find the path indicated by him neither illuminated
by the light of our own experience nor cemented by the virtuality of legal
principles but is, on the contrary, dimmed by the recognition however limited
in our own Constitution of the right of local self-government and by the actual
operation and enforcement of the laws governing provinces, chartered cities,
municipalities and other political subdivisions. It is not any question of wisdom
of legislation but the existence of any such destructive authority in the law
invoked by the Government that we are called upon to pass and determine
here.
In the deliberation of this case it has also been suggested that, admitting that
the President of the Philippines is invested with the authority to suspend the
petitioner, and it appearing that he had verbally approved or at least
acquiesced in the action taken by the Secretary of the Interior, the suspension
of the petitioner should be sustained on the principle of approval or ratification
of the act of the Secretary of the Interior by the President of the Philippines.
There is, to be sure, more weight in this argument than in the suggested
generalization of section 37 of Act No. 4007. Withal, at first blush, the argument
of ratification may seem plausible under the circumstances, it should be
observed that there are certain prerogative acts which, by their very nature,
cannot be validated by subsequent approval or ratification by the President.
There are certain constitutional power and prerogatives of the Chief Executive
of the Nation which must be exercised by him in person and no amount of
approval or ratification will validate the exercise of any of those powers by any
other person. Such, for instance, is his power to suspend the writ of habeas
corpus and proclaim martial law (par. 3, sec. 11, Art. VII) and the exercise by
him of the benign prerogative of mercy (par. 6, sec. 11, idem). Upon the other
hand, doubt is entertained by some members of the court whether the
statement made by the Secretary to the President in the latter's behalf and by
his authority that the President had no objection to the suspension of the
petitioner could be accepted as an affirmative exercise of the power of
suspension in this case, or that the verbal approval by the President of the
suspension alleged in a pleading presented in this case by the Solicitor-
General could be considered as a sufficient ratification in law.
After serious reflection, we have decided to sustain the contention of the
government in this case on the board 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 principles 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 President's 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). Secretaries of
departments, of course, exercise certain powers under the law but the law
cannot impair or in any way affect the constitutional power of control and
direction of the President. As a matter of executive policy, they may be granted
departmental autonomy as to certain matters but this is by mere concession
of the executive, in the absence of valid legislation in the particular field. If the
President, then, is the authority in the Executive Department, he assumes the
corresponding responsibility. The head of a department is a man of his
confidence; he controls and directs his acts; he appoints him and can remove
him at pleasure; he is the executive, not any of his secretaries. It is therefore
logical that he, the President, should be answerable for the acts of
administration of the entire Executive Department before his own conscience
no less than before that undefined power of public opinion which, in the
language of Daniel Webster, is the last repository of popular government.
These are the necessary corollaries of the American presidential type of
government, and if there is any defect, it is attributable to the system itself. We
cannot modify the system unless we modify the Constitution, and we cannot
modify the Constitution by any subtle process of judicial interpretation or
constitution.
The petition is hereby dismissed, with costs against the petitioner. So ordered.
G.R. No. L-46440 January 18, 1939
CARMEN PLANAS, petitioner,
vs.
JOSE GIL, Commissioner of Civil Service, respondent.
Juan Sumulong, Vicente Sotto, Godofredo Reyes, Wenceslao Q.
Vinzons, Lorenzo Sumulong and Jose de Leon for petitioner.
Office of the Solicitor-General Ozaeta for respondent.
LAUREL, J.:
This is an original action of prohibition instituted in this court by which the
petitioner seeks to enjoin the respondents Commissioner of Civil Service from
conducting the investigation ordered by authority of the President of the
Philippines. The case arose as a result of the publication in one of the local
dailies of a statement in which the petitioner, then and now a member of the
municipal board of the City of Manila, criticized the acts of certain government
officials in connection with the general election for Assemblymen held on
November 8, 1938. The statement as published in the issue of La Vanguardia
of November 17, 1938, is translated as follows:
All opposition efforts in the country are useless just as all movement toward
the unification of the opposition as long as in the opposition group there are
people who present their candidacies and then speculate on these
candidacies, offering them to the highest bidder. In Manila, the opposition
should have won the November 8 elections, but lost instead because of a
disastrous division due to people who commercialized their candidacies.
The Constitution prohibits the reelection of the President precisely so that the
President may devote all his time to the administration of public affairs for the
welfare of the people, but the President was the first to play politics, publicly
expressing his preference for candidates of his liking; and with the President
all other officials of the government also moved, taking part in electoral
campaigns.
With the government machinery feverishly functioning to flatten the opposition
and prevent candidates supported by the people from going to the National
Assembly, and with frauds and violations of all rules of the civil service to push
the victory the candidates of the Nacionalista Party and the administration, all
constructive opposition in the country is useless. In past elections, all the
municipal and city mayors have been mobilized to insure the victory of the
candidates of the administration, depriving the people of their right to vote for
candidates of their own choosing.
Even members of the cabinet moved, one of them, the Hon. Eulogio Rodriguez
going to the extent of speaking at meetings in the Province of Rizal to
counteract the avalanche of votes for the opposition, instead of staying in his
office in the government. The opposition is struggling within the law, but the
party in power uses means that are not worthy of gentlemen in order that it
may predominate in the government forever; never has it triad to fight fairly.
It may be used that the President of the United States is also making electoral
campaigns, but the situation in the United States is different. There the
President is allowed to run for reelection while in the Philippines the
Constitution wisely provides against the reelection of the President. It is
reasonable to believe that the President is from this moment paying the way
for his reelection. It is to be feared that the new National Assembly will change
this wise provision of our Constitution to permit the reelection of President
Manuel L. Quezon.
On November 18, 1938, the day following the publication of the foregoing
statement, the petitioner received a letter, Annex A, signed as follows: "By
authority of the President: Jorge B. Vargas, Secretary to the President," in
which letter the statement is quoted in full and the petitioner is informed thus:
In the above statement, you appear to make the following charges: (1) That
the President of the Philippines has violated the Constitution in that he has
taken part in politics, expressing his preference for the candidates of the
Nacionalista Party; (2) That the whole government machinery has been put in
action to prevent the election to the National Assembly of the candidates of
the people; (3) That the candidates of the Nacionalista Party and of the
administration have won the election through frauds and violations of the civil
service rules; (4) That the administration does not permit the people to freely
elect the candidates of their choice.
You are hereby directed to appear before the Commissioner of Civil Service,
either alone or accompanied by counsel, at 9 o'clock a. m., on November the
22nd, to prove the statements made by you. Failure to sustain your charges
or to prove that they have been made in good faith will be considered sufficient
cause for your suspension or removal from office.
At the appointed time, the petitioner, accompanied by her counsel, appeared
at the office of the respondent and delivered to him a letter, Annex B, in which
she voiced objection to the authority of the respondent to conduct the
investigation. The respondent Commissioner did not desist from proceeding
with the investigation, but announced before adjourning the hearing of
November 22nd that he would decide the question raised as to his jurisdiction
on November 26, 1938. It was at this state of the investigation that the
petitioner filed in this court her original petition for prohibition of November 25,
1938, in which she at the same time prayed for the issuance of a writ of
preliminary injunction enjoining the respondent commissioner from continuing
with the investigation. The petition for the issuance of a writ of preliminary
injunction was denied by resolution of this court dated November 25, 1938.
The next day the petitioner requested the respondent, in writing (Annex D), to
refrain from making any ruling on the question of his jurisdiction to investigate
the petitioner and to abstain from making any further step in connection with
said investigation until the jurisdictional issue could be finally passed upon by
this court. On the same day, the request of the petitioner was denied and the
respondent ruled that he had jurisdiction to proceed with the investigation
(Annex E.) The respondent also notified the petitioner to appear before him on
Saturday, December 3, 1938, and to testify in her behalf and produce such
other evidence as she might desire to present in support of the charges
contained in her statement of November 17, 1938. The original petition of
November 25th was amended by another of December 2nd. The amendment
was allowed by this court. The Solicitor-General filed his amended answer
accordingly.
Petitioner contends in her amended petition:
(a) That the respondent is absolutely without jurisdiction to investigate
petitioner with a view to her suspension or removal in connection with her
statement of November 17th;
(b) That the said investigation with a view to petitioner's suspension or removal
is against Article VII, sec. 11 (1) of the Constitution of the Philippines and is
not warranted by any statutory provision;
(c) That even under the statutes in force before the approval of the Constitution
of the Philippines, petitioner, as Councilor of the City of Manila, cannot be
investigated administratively with a view to her suspension or removal except
for acts or conduct connected with the discharge of her official functions;
(d) That petitioner, as an elective official, is accountable for her political acts
to her constituency alone, unless such acts constitute offenses punishable
under our penal laws, and not to execute officials belonging to a party opposed
to that to which petitioner is affiliated;
(e) That petitioner's statement of November 17th made be her as a private
citizen and in the exercise of her right to discuss freely political questions
cannot properly be the subject of an administrative investigation had with a
view to her suspension or removal, and is only cognizable by our courts of
justice in case the contents of said statement infringe any provision of our
Penal Code;
(f ) That if petitioner's statement of November 17th, as asserted in the Vargas
letter of November 21st Annex "C", constitute sedition or any other criminal
offense in that said statement "tends to create general discontent, and hatred
among the people against their government, to make them lose faith in the
effectiveness of lawful processes to secure a change in the control of the
government, and to the present the next National Assembly as an illegal body,
constituted by men who been elected through wholesale frauds and violations
of the civil service rules", then petitioner's responsibility is a matter that should
be heard and decided by the competent courts in a trial publicly and impartially
conducted, and should not be the subject of an administrative investigation
with a view to suspension or removal held behind closed doors, with the power
of final decision resting in the hands of the very officials imputing seditious or
other criminal utterances to the petitioner;
(g) That the authority sought to be conferred on respondent by means of the
two letters Annexes A and C both signed `By authority of the President: Jorge
B. Vargas, Secretary to the President' is without any force or effect, since the
powers and prerogatives vested in the President of the Philippines by our
Constitution and by our laws can be exercised by the President alone, and
cannot be delegated to Mr. Jorge B. Vargas or to any other person;
(h) That the proposed investigation with a view to petitioner's suspension or
removal by his Honorable Court, would constitute an exercise of arbitrary,
inquisitorial, unlawful, and oppressive powers on the part of respondent,
tending to the suppression of the constitutional right of petitioner, as a citizen,
to express freely and without fear of political persecution her honest opinions
concerning the policies and political conduct of government officials.
Petitioner prays:
(1) That a writ of preliminary injunction be forthwith issued directing the
respondent Commissioner of Civil Service to desist from the investigation
sought to be conducted by him of petitioner, with a view to her suspension or
removal, in connection with her statement published November 17th, until
further orders of this Honorable Court;
(2) That upon due hearing the respondent be permanently prohibited from
proceeding further in connection with said investigation;
(3) That the orders contained in the two letters of Mr. Jorge B. Vargas (Annex
"A" and "C") and the respondent's resolution dated November 26, 1938 (Annex
"E"'), under which respondent seeks to undertake the investigation so many
times referred to herein, be declared arbitrary and unconstitutional, and
therefore without any force or effect;
(4) For costs of the petitioner and for such other remedy as to this Honorable
Court may seem just and equitable.
Upon the other hand, the Solicitor-General contends in his amended answer:
(a) That respondent not only has jurisdiction but is in duty bound to investigate
the charges contained in the petitioner's statement published on November
17, 1938, by virtue of and pursuant to the order of His Excellency, the
President of the Philippines (par. 3);
(b) That the power to order an investigation is vested in the President of the
Philippines by section 11 (1) of Article VII of the Constitution and section 64
(c) of the Revised Administrative Code (Id.);
(c) That the question of whether or not the good of the public service requires
the investigation in question is a matter on which the opinion of the Chief
Executive is conclusive and not subject to review by the courts (par. 4, [b]);
(d) That an administrative investigation of any act or conduct of any person in
the government service is independent and exclusive of any judicial action that
the interested parties may institute arising from the same act or conduct (par.
4, [c]);
(e) That petitioner's theory that an elected provincial or municipal official is
accountable to his or her constituency alone and is not subject to any
administrative investigation but only to a criminal prosecution in court, has no
basis either in law or in precedent (par. 5, [a]);
(f ) That such investigation is neither arbitrary nor unlawful nor inquisitorial
because sanctioned by the Constitution and statutory provisions (par. 5, [b]);
(g) That the petition does not state a cause of action nor does it appear that
petitioner has suffered any grievance that calls for the court's intervention, for
it is not alleged that petitioner has been removed or suspended from office or
that she has in any way been deprived of any civil or political right (par. 7, [a]);
(h) That the present action is premature and that there is no jurisdiction for the
court to entertain the same (par. 9); and .
(i) That this court has no jurisdiction over the case under the doctrine of
separation of powers (par. 10).
The Solicitor-General, under the last paragraph (par. 10) of his amended
answer, raise the question of jurisdiction of this court over the acts of the Chief
Executive. He contends that "under the separation of powers marked by the
Constitution, the court has no jurisdiction to review the orders of the Chief
Executive, evidenced by Annex A and Annex C of the petition, which are of
purely administrative character." Reliance is had on the previous decisions of
this court: Severino vs. Governor-General ([1910], 16 Phil., 366); Abueva vs.
Wood ([1924], 45 Phil., 612); and Alejandrino vs. Quezon ([1924], 46 Phil., 83).
Although this is the last point raised by the Government in its answer, it should,
for reasons that are apparent, be first to be considered. If this court does not
have jurisdiction to entertain these proceedings, then, the same should be
dismissed as a matter of course; otherwise, the merits of the controversy
should be passed upon and determined.
It must be conceded that the acts of the Chief Executive performed within the
limits of his jurisdiction are his official acts and courts will neither direct nor
restrain executive action in such cases. The rule is non-interference. But from
this legal premise, it does not necessarily follow that we are precluded from
making an inquiry into the validity or constitutionality of his acts when these
are properly challenged in an appropriate legal proceeding. The classical
separation of governmental powers, whether viewed in the light of the political
philosophy of Aristotle, Locke, or Montesquieu, or of the postulations of Mabini,
Madison, or Jefferson, is a relative theory of government. There is more truism
and actuality in interdependence than in independence and separation of
powers, for as observed by Justice Holmes in a case of Philippine origin, we
cannot lay down "with mathematical precision and divide the branches into
watertight compartments" not only because "the great ordinances of the
Constitution do not establish and divide fields of black and white" but also
because "even the more specific of them are found to terminate in a penumbra
shading gradually from one extreme to the other." (Springer vs. Government
[1928], 277 U. S., 189; 72 Law. ed., 845, 852.) As far as the judiciary is
concerned, while it holds "neither the sword nor the purse" it is by constitutional
placement the organ called upon to allocate constitutional boundaries, and to
the Supreme Court is entrusted expressly or by necessary implication the
obligation of determining in appropriate cases the constitutionality or validity of
any treaty, law, ordinance, or executive order or regulation. (Sec. 2 [1], Art.
VIII, Constitution of the Philippines.) In this sense and to this extent, the
judiciary restrains the other departments of the government and this result is
one of the necessary corollaries of the "system of checks and balance" of the
government established.

In the present case, the President is not a party to the proceeding. He is neither
compelled nor restrained to act in a particular way. The Commissioner of Civil
Service is the party respondent and the theory is advanced by the Government
that because an investigation undertaken by him is directed by authority of the
President of the Philippines, this court has no jurisdiction over the present
proceedings instituted by the petitioner, Carmen Planas. The argument is
farfetched. A mere plea that a subordinate officer of the government is acting
under orders from the Chief Executive may be an important averment, but is
neither decisive nor conclusive upon this court. Like the dignity of his high
office, the relative immunity of the Chief Executive from judicial interference is
not in the nature of a sovereign passport for all the subordinate officials and
employees of the Executive Department to the extent that at the mere
invocation of the authority that it purports the jurisdiction of this court to inquire
into the validity or legality of an executive order is necessarily abated or
suspended. The facts in Severino vs. Governor-General, supra, Abueva vs.
Wood, supra, and Alejandrino vs. Quezon, supra, are different, and the
doctrines laid down therein must be confined to the facts and legal
environment involved and whatever general observations might have been
made in elaboration of the views therein expressed but which are not essential
to the determination of the issues presented are mere obiter dicta.
While, generally, prohibition as an extraordinary legal writ will not issue to
restrain or control the performance of other than judicial or quasi-judicial
functions (50 C. J., 658), its issuance and enforcement are regulated by statute
and in this jurisdiction it may issue to any inferior tribunal, corporation, board,
or person, whether exercising functions judicial or ministerial, whose acts are
without or in excess of jurisdiction. (Secs. 516 and 226, Code of Civil
Procedure.) The terms "judicial" and "ministerial" used with reference to
"functions" in the statute are undoubtedly comprehensive and include the
challenged investigation by the respondent Commissioner of Civil Service,
which investigation if unauthorized and is violated of the Constitution as
contended is a fortiori without or in excess of jurisdiction. The statutory rule in
this jurisdiction is that the writ of prohibition is not confined exclusively to courts
or tribunals to keep them within the limits of their own jurisdiction and to
prevent them from encroaching upon the jurisdiction of other tribunals, but will
issue, in appropriate cases, to an officer or person whose acts are without or
in excess of his authority. Not infrequently, "the writ is granted, where it is
necessary for the orderly administration of justice, or to prevent the use of the
strong arm of the law in an oppressive or vindictive manner, or a municipality
of actions." (Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304, 307;
Aglipay vs. Ruiz [1937], 35 Off. Gaz., 2164.) This court, therefore, has
jurisdiction over the instant proceedings and will accordingly proceed to
determine the merits of the present controversy.
As is seen from the foregoing relation of facts various legal questions are
propounded. Reducing, however, the issues to what is considered is the
fundamental legal proposition presented, we are asked in these proceedings
to prohibited the respondent Commissioner of Civil Service from conducting or
continuing with the investigation ordered by authority of the President of the
Philippines. It is not denied that the President did authorize the issuance of the
order, but it is contended "that the said investigation with a view to petitioner's
suspension or removal is against Article VII, sec. 11 (1) of the Constitution of
the Philippines and is not warranted by any statutory provision." (Par. XV [b],
amended petition.) It, therefore, become necessary to inquire into the
constitutional and legal authority of the President to order the investigation
which has given rise to the present controversy.
A perusal of our Constitution will show that extensive authority over the public
service is granted the President of the Philippines. Article VII of the
Constitution begins in its section 1 with the declaration the "The Executive
power shall be vested in a President of the Philippines." All executive authority
is thus vested in him, and upon him devolves the constitutional duty of seeing
that the laws are "faithfully executed." (Art. VII, sec. 11, subsec. 1, last clause.)
In the fulfillment of this duty which he cannot evade, he is granted specific and
express powers and functions. (Art. VII, sec. 11.) In addition to these specific
and express powers and functions, he may also exercise those necessarily
implied and included in them. (Myers vs. United States [1926], 272 U. S., 52;
71 Law. ed., 160; 47 Sup. Ct. Rep., 21; Willoughby, Constitution of the United
States, sec. 953, citing Taft's Our Chief Magistrate and His Powers, p. 139.)
The National Assembly may not enact laws which either expressly or impliedly
diminish the authority conferred upon the President of the Constitution. (Cf.
Concepcion vs. Paredes [1921], 42 Phil., 599.) The Constitution provides that
the President "shall have control of all the executive departments, bureaus,
and offices" (Art. VII, sec. 11 [1], first clause) and shall "exercise general
supervision over all location governments as may be provided by law" (Ibid,
second clause). This power of control and supervision is an important
constitutional grant. The President in the exercise of the executive power
under the Constitution may act through the heads of the executive
departments. The heads of the executive departments are his authorized
assistants and agents in the performance of his executive duties, and their
official acts, promulgated in the regular course of business, are presumptively
his acts. (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., 246.) The power of
removal which the President may exercise directly and the practical
necessities of efficient government brought about by administrative
centralization easily make the President the head of the administration.
(Willoughby, Constitution of the United States, Vol. II, 2nd ed., sec. 959.)
Independently of any statutory provision authorizing the President to conduct
an investigation of the nature involved in this proceeding, and in view of the
nature and character of the executive authority with which the President of the
Philippines is invested, the constitutional grant to him of power to exercise
general supervision over all local governments and to take care that the laws
be faithfully executed must be construed to authorized him to order an
investigation of the act or conduct of the petitioner herein. Supervision is not a
meaningless thing. It is an active power. It is certainly not without limitation,
but it at least implies authority to inquire into facts and conditions in order to
render the power real and effective. If supervision is to be conscientious and
rational, and not automatic and brutal, it must be founded upon a knowledge
of actual facts and conditions disclosed after careful study and investigation.
Viewed from the totality of powers conferred upon the Chief Executive by our
Constitution, we should be reluctant to yield to the proposition that the
President of the Philippines who is endowed with broad and extraordinary
powers by our Constitution, and who is expected to govern with a firm and
steady hand without vexatious or embarrassing interference and much less
dictation from any source, is yet devoid of the power to order the investigation
of the petitioner in this case. We should avoid that result.
Our attention has been directed to the fact that, with reference to local
governments, the Constitution speaks of general supervision which is distinct
from the control given to the President over executive departments, bureaus
and offices. This is correct. But, aside from the fact that this distinction is not
important insofar as the power of the President to order the investigation is
concerned, as hereinabove indicated, the deliberations of the Constitutional
Convention shows that the grant of the supervisory authority of Chief Executive
in this regard was in the nature of a compromise resulting from the conflict of
views in that body, mainly between the historical view which recognizes the
right of local self-government (People ex rel. Le Roy vs. Hurlbut [1871], 24
Mich., 44) and the legal theory which sanctions the possession by the state of
absolute control over local governments (Booten vs. Pinson, L. R. A. [N. S.,
1917-A], 1244; 77 W. Va., 412 [1915]. The result was the recognition of the
power of supervision and all its implications and the rejection of what otherwise
would be an imperium in imperio to the detriment of a strong national
government.
Apart from the constitutional aspect, we find that section 64 of the
Administrative Code of 1917 provides as follows:
In addition to his general supervisory authority, the Governor-General
(President) shall have such specific powers and duties as are expressly
conferred or imposed on him by law and also, in particular, the powers and
duties set forth in this chapter.
Among such special powers and duties shall be:
xxx xxx xxx
(c) To order, when in his opinion the good of the public service so requires, an
investigation of any action or the conduct of any person in the Government
service, and in connection therewith to designate the official, committee, or
person by whom such investigation shall be conducted.
This provision of the law, in existence before the taking effect of the
Constitution, still subsists. It is not inconsistent with the Constitution and has
not been abrogated or repealed by the National Assembly. (See sec. 2, Art.
XV, Constitution.)
It is next urged that assuming the power of the President to order the
investigation, that investigation should be in accordance with law; that the
petitioner as an elective official can be proceed against administratively only
on the grounds specifically stated in the law, namely, disloyalty, dishonesty,
oppression, misconduct, or maladministration ion office; and that as an
elective official she is responsible for her political acts to her constituency
alone. At the risk of repetition, it should be observed that in the letter addressed
by Secretary Vargas, by authority of the President, to Miss Planas, the latter
is informed as follows: "In the above statement, you appear to make the
following charges: (1) That the President of the Philippines has violated the
Constitution in that he has taken part in politics, expressing his preference for
the candidates of the Nacionalista Party; (2) That the whole government
machinery has been put in action to prevent the election to the National
Assembly of the candidates of the people; (3) That the candidates of the
Nacionalista Party and of the administration have won the election through
frauds and violations of the civil service rules; (4) That the administration does
not permit the people to freely elect the candidates of their choice"; and in the
letter she is directed to appear before the Commissioner of the Civil Service to
prove the statement made by her. In the letter designating the respondent
commissioner as investigator of the petitioner, it is stated: "The charges
contained in the foregoing statement tend to create general discontent, and
hatred among the people against their government, to make them lose faith in
the effectiveness of lawful processes to secure a change in the control of the
government, and to present the next National Assembly as an illegal body,
constituted by men who have been elected through wholesale frauds and
violations of the civil service rules. The interest of the public service requires
that these charges be investigated, so that, if found to be true, appropriate
action may be taken against the parties alleged to have been guilty of illegal
acts, and if found untrue and made without justifiable motives, the party making
them may be proceeded against in accordance with section 2440, in
connection, with section, 2078, of the Revised Administrative Code."
Assuming that this is not one of the grounds provided by law for which the
petitioner may be investigated administratively (sec. 2078, Rev. Adm. Code),
there is weight in the argument that the investigation would still be in order if
for no other purpose than to cause a full and honest disclosure of all the facts
so that, if found proper and justified, appropriate action may be taken against
the parties alleged to have been guilty of the illegal acts charged. This is
essential to render effective the authority vested in the President by the
Constitution to "take care that the laws be faithfully executed." (Sec. 11, par.
1, Art. VII.) The enforcement of the law and the maintenance of peace and
order are primarily an executive obligation. The declaration that the President
should "take care that the laws be faithfully executed" is more an imposition of
an obligation than a conferment of power. His oath requires him to "faithfully
and conscientiously fulfill" his duties as President, "preserve and defend" the
Constitution and "execute" the law. This duty of the Executive to see that the
laws be faithfully executed is not limited to the enforcement of legislative acts
or the express terms of the Constitution but also includes the due enforcement
of rights, duties, obligations, prerogatives and immunities growing out of the
Constitution itself and of the protection implied by the nature of the government
under the Constitution. (Cunningham vs. Neagle, 135 U. S., 1; 34 Law. ed.,
55.)
Petitioner contends that she has not abused the right of free speech, and in
this connection directs our attention to the provision of section 1 (pars. 1 and
8) of the bill of Rights. She also urges that " in the supposition that the
statement in question is libelous . . ., the corresponding criminal or civil action
should be brought in the courts of justice at the initiative, not of the
government, but of the individuals claiming to have been defamed by the
statement." (P. 11, printed memorandum of the petitioner.) We are vigilantly
alive to the necessity of maintaining and protecting the constitutional guaranty
of freedom of speech and of the press, no less than the right of assembly and
petition which, according to Stimson (The American Constitution As It Protects
Private Rights, 152), is its origin rather than its derivation. We do not forget
that when repression of political and religious discussion became intense
when censorship of the press was resorted to most vigorously by the Long
Parliament in England John Milton, that great historiographer of Cromwell,
in his Areopagitica, denounced the suppression of truth and appealed for "the
liberty to know, to utter, and to argue freely according to conscience, above all
liberties" ("Areopagitica", 73, 74, Ambler's Reprint). And this court has had
occasion to vindicate this right, and it is now a settled doctrine that the official
conduct and the policies of public officials can be criticized (U. S. vs. Bustos,
37 Phil., 731), and that criticism of the constitution and legislation, of
government measures or policies cannot be suppressed or prevented (U. S.
vs. Perfecto, 43 Phil., 225), unless the intention be to incite rebellion and civil
war (Cooley, Constitutional Limitations, 614). In the present case, however,
the petitioner is not denied the right, nor is she being investigated because she
had exercised that right. She has a perfect right to criticize the Government,
its administration, its policies and officials, but she may not, on the plea ]of
freedom of speech and of the press, impute violations of law and the
commission of frauds and thereafter fold her arms and decline to face an
investigation conducted to elicit the truth or falsity of the charges formulated
by her. Otherwise, the guarantee which, in the language of Wendell Phillips, is
"at once the instrument, and the guarantee, and the bright consummate flower
of all liberty" would degenerate into an unbridled license, and render the
Government powerless to act.
The petition is hereby dismissed, with costs against the petitioner. So ordered.
Mondano vs Silvosa
G.R. No. L-7708 May 30 1955
FACTS:
The Assistant Executive Secretory indorsed the complaint for rape and
concubinage against Mondano, duly elected and qualified mayor of Mainit,
Surigao,to Silvosa, provincial governor of Suriga, for immediate investigation,
appropriate action and report. Silvosa issued an Administrative Order
suspending Mondano from office. Mondano filed a petition for prohibition
enjoining the governor from further proceeding.
ISSUE:
Whether or not the order of suspension by the provincial governor is illegal.
RULING:
Yes. The Department head as agent of the President has direct control and
supervision over all bureaus and offices under his jurisdiction as provided for
in Sec. 79(c) of the Revised Administrative Code, but he does not have the
same control of local governments as that exercised by him over bureaus and
offices under his jurisdiction and does not extend to local governments over
which the President exercises only general supervision as may be provided by
law. If the provisions of section 79 (c) of the RAC are to be construed as
conferring upon the corresponding department head direct control, direction,
and supervision over all local governments and that for that reason he may
order the investigation of an official of a local government for malfeasance in
office, such interpretation would be contrary to the provisions of par 1, sec 10,
Article 7, of the 1935 Constitution. If general supervision over all local
governments is to be construed as the same power granted to the Department
Head in sec 79 (c) of the RAC, then there would no longer be a distinction or
difference between the power of control and that of supervision.
Supervision - overseeing or the power or authority of an officer to see that
subordinate officers perform their duties.
Control - power of an officer to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute
the judgment of the former for that of the latter. Such is the import of the
provisions of section 79 (c) of RAC.
G.R. No. L-7708 May 30, 1955
JOSE MONDANO, petitioner,
vs.
FERNANDO SILVOSA, Provincial Governor of Surigao, JOSE ARREZA
and OLIMPIO EPIS, Members of the Provincial Board, respondents.
D. Avila and C. H. Lozada for petitioner.
Olimpio R. Epis in his own behalf and for his co-respondents.
PADILLA, J.:
The petitioner is the duly elected and qualified mayor of the municipality of
Mainit, province of Surigao. On 27 February 1954 Consolacion Vda. de
Mosende filed a sworn complaint with the Presidential Complaints and Action
Committee accusing him of (1) rape committed on her daughter Caridad
Mosende; and (2) concubinage for cohabiting with her daughter in a place
other than the conjugal dwelling. On 6 March the Assistant Executive
Secretary indorsed the complaint to the respondent provincial governor for
immediate investigation, appropriate action and report. On 10 April the
petitioner appeared before the provincial governor in obedience to his
summons and was served with a copy of the complaint filed by the provincial
governor with provincial board. On the same day, the provincial governor
issued Administrative Order No. 8 suspending the petitioner from office.
Thereafter, the Provincial Board proceeded to hear the charges preferred
against the petitioner over his objection.
The petitioner prays for a writ of prohibition with preliminary injunction to enjoin
the respondents from further proceeding with the hearing of the administrative
case against him and for a declaration that the order of suspension issued by
the respondent provincial governor is illegal and without legal effect.
On 4 May 1954 the writ of preliminary injunction prayed for was issued after
filing and approval of a bond for P500.
The answer of the respondents admits the facts alleged in the petition except
those that are inferences and conclusions of law and invokes the provisions of
section 79 (c)of the Revised Administrative Code which clothes the
department head with "direct control, direction, and supervision over all
bureaus and offices under his jurisdiction . . ." and to that end "may order the
investigation of any act or conduct of any person in the service of any bureau
or office under his Department and in connection therewith may appoint a
committee or designate an official or person who shall conduct such
investigations; . . ."and the rule in the case of Villena vs. Secretary of Interior,
67 Phil. 452, which upheld "the power of the Secretary of Interior to conduct at
its own initiative investigation of charges against local elective municipal
officials and to suspend them preventively," on the board proposition "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 11, Article VII, of our Constitution, all executive and
administrative organizations are adjuncts of the Executive Departments, the
heads of the various executive departments are assistants and agents of the
Chief Executive."
The executive departments of the Government of the Philippines created and
organized before the approval of the Constitution continued to exist as
"authorized by law until the Congress shall provide otherwise."1 Section 10,
paragraph 1, Article VII, of the Constitution provides: "The President shall have
control of all the executive departments, bureaus, or offices, exercise general
supervision over all local governments as may be provided by law, and take
care that the laws be faithfully executed." Under this constitutional provision
the President has been invested with the power of control of all the executive
departments, bureaus, or offices, but not of all local governments over which
he has been granted only the power of general supervision as may be provided
by law. The Department head as agent of the President has direct control and
supervision over all bureaus and offices under his jurisdiction as provided for
in section 79 (c) of the Revised Administrative Code, but he does not have the
same control of local governments as that exercised by him over bureaus and
offices under his jurisdiction. Likewise, his authority to order the investigation
of any act or conduct of any person in the service of any bureau or office under
his department is confined to bureaus or offices under his jurisdiction and does
not extend to local governments over which, as already stated, the President
exercises only general supervision as may be provided by law. If the provisions
of section 79 (c) of the Revised Administrative Code are to be construed as
conferring upon the corresponding department head direct control, direction,
and supervision over all local governments and that for the reason he may
order the investigation of an official of a local government for malfeasance in
office, such interpretation would be contrary to the provisions of paragraph 1,
section 10, Article VII, of the Constitution. If "general supervision over all local
governments" is to be construedas the same power granted to the Department
Head in section 79 (c) of the Revised Administrative Code, then there would
no longer be a distinction or difference between the power of control and that
of supervision. In administrative law supervision means overseeing or the
power or authority of an officer to see that subordinate officers perform their
duties. If the latter fail or neglect to fulfill them the former may take such action
or step as prescribed by law to make them perform their duties. Control, on
the other hand, means the power of an officer to alter or modify or nullify or set
aside what a subordinate officer had done in the performance of his duties and
to substitute the judgment of the former for that of the latter. Such is the import
of the provisions of section 79 (c) of the Revised Administrative Code and 37
of Act No. 4007. The Congress has expressly and specifically lodged the
provincial supervision over municipal officials in the provincial governor who is
authorized to "receive and investigate complaints made under oath against
municipal officers for neglect of duty, oppression, corruption or other form of
maladministration of office, and conviction by final judgment of any crime
involving moral turpitude."2 And if the charges are serious, "he shall submit
written charges touching the matter to the provincial board, furnishing a copy
of such charges to the accused either personally or by registered mail, and he
may in such case suspend the officer (not being the municipal treasurer)
pending action by the board, if in his opinion the charge be one affecting the
official integrity of the officer in question." 3 Section 86 of the Revised
Administrative Code adds nothing to the power of supervision to be exercised
by the Department Head over the administration of . . . municipalities . . .. If it
be construed that it does and such additional power is the same authority as
that vested in the Department Head by section 79 (c) of the Revised
Administrative Code, then such additional power must be deemed to have
been abrogated by section 10 (1), Article VII, of the Constitution.
in accordance with the provisions of the Revised Administrative Code referred
to, a conviction by final judgment must precede the filing by the provincial
governor of charges and trial by the provincial board. Even the provincial fiscal
cannot file an information for rape without a sworn complaint of the offended
party who is 28 years of age and the crime of concubinage cannot be
prosecuted but upon sworn complaint of the offended spouse.4 The charges
preferred against the petitioner, municipal mayor of Mainit, province of
Surigao, not being those or any of those specified in section 2188 of the
Revised Administrative Code, the investigation of such charges by the
provincial board is unauthorized and illegal. The suspension of the petitioner
as mayor of the municipality of Mainit is, consequently, unlawful and without
authority of law.
The writ of prohibition prayed for is granted, without pronouncement as to
costs.

In Lacson vs. Roque, 49 Off. Gaz. 93, this Court held that the power of the
President to remove officials from office as provided for in section 64 (b) of the
Revised Administrative Code must be done "conformably to law;" and only for
disloyalty to the Republic of the Philippines he "may at any time remove a
person from any position of trust or authority under the Government of the
(Philippine Islands) Philippines." Again, this power of removal must be
exercised conformably to law.

In the indorsement to the provincial governor the Assistant Executive

Secretary requested immediate investigation, appropriate action and report on
the complaint indorsed to him, and called his attention to section 2193 of the
Revised Administrative Code which provides for the institution of judicial
proceedings by the provincial fiscal upon direction of the provincial governor.
If the indorsement of the Assistant Executive Secretary be taken as a
designation of the provincial governor to investigate the petitioner, then he
would only be acting as agent of the Executive, but the investigation to be
conducted by him would not be that which is provided for in sections 2188,
2189 and 2190 of the Revised Administrative Code. The charges preferred
against the respondent are not malfeasances or any of those enumerated or
specified in section 2188 of the Revised Administrative Code, because rape
and concubinage have nothing to do with the performance of his duties as
mayor nor do they constitute or involve" neglect of duty, oppression, corruption
or any other form of maladministration of office." True, they may involve moral G.R. No. L-6225 January 10, 1953
turpitude, but before the provincial governor and board may act and proceed
ARSENIO H. LACSON, petitioner,
vs.
MARIANO ROQUE, as Acting Executive Secretary, BARTOLOME
GATMAITAN, as Vice-Mayor of Manila and DIONISIO OJEDA, as Acting
Chief of Police of Manila, respondents.
TUASON, J.:
The petitioner, Arsenio H. Lacson, Mayor of the City of Manila, has been
suspended from the office by the President and has brought this original action
for prohibition contesting the legality of the suspension. Mariano Roque, Acting
Executive Secretary, and Dionisio Ojeda, Chief of Police of Manila, who are
said to have threatened to carry out the President's order, and Bartolome
Gatmaitan, the Vice-Mayor who is performing the duties of mayor, are made
defendants.
The salient facts alleged in the application, not denied by the respondents, are
as follows:
On October 20, 1952, following the acquittal of Celestino C. Juan, Deputy
Chief of Police, in a criminal prosecution for malversation of public property
instituted at the instance of Mayor Lacson, the petitioner made a radio
broadcast in which he criticized the court's decision stating, it is alleged: "I
have nothing but contempt for certain courts of justice. . . . I tell you one thing
(answering an interrogator), if I have the power to fire Judge Montesa (the trial
judge) I will fire him for being incompetent, for being an arrogant . . . an
ignoramus."
Thereafter, Judge Montesa, at a public meeting of the Judges of the Courts of
First Instance of Manila submitted to the consideration of his colleagues the
question of whether Mayor Lacson's remarks were contempt of court. A
committee of judges, which was appointed to study the question, reported that
it was not free to state whether contempt proceedings if instituted would
prosper. The Committee believed that Judge Montesa was the one most
competent to decide upon the action that should be taken.
In the meanwhile, On October 23, Judge Montesa wrote the Secretary of
Justice requesting that a special prosecutor be designated to handle the case
for criminal libel which he intended to file against the mayor. He gave as
reasons for his request that "whatever blunders the mayor had committed, the
same was due to an advice given him by his legal adviser, the city fiscal, "and
that it would be "difficult to expect that he would be willing to move against him
or act in a manner that would put him in a bad light with the mayor."
On October 24, in Special Administrative Order No. 235, marked RUSH, the
Secretary of Justice designated Solicitor Martiniano P. Vivo of the Solicitor's
Office "to assist the City Fiscal of Manila in the investigation of the complaint
of Judge Agustin P. Montesa against Mayor Arsenio H. Lacson, to file
whatever criminal action the evidence may warrant and to prosecute the same
in court."
On the following day, Judge Montesa filed his projected complaint for "libel and
contempt" with the City Fiscal which was numbered 27909. This complaint in
the ordinary routine of distribution of cases in the City Fiscal's Office should
have corresponded to Assistant Fiscal Jose B. Jimenez. Consequently upon
Solicitor Vivo's designation, City Fiscal Angeles designated Assistant Fiscals
Jimenez and also Hermogenes Concepcion, Jr. to represent him and to
collaborate with the Solicitor from the Bureau of Justice.
Solicitor Vivo conducted a preliminary investigation in the office of the Solicitor
General without the presence of either of the Assistant Fiscals assigned to this
case, and sent out subpoenas in his name and upon his signature. And having
completed the preliminary examination, on October 30 he docketed in the
Court of First Instance a complaint for libel against Mayor Lacson, signed and
sworn to by Judge Montesa as complainant. At the foot of the complaint both
Assistant Fiscal Hermogenes Concepcion, Jr. and Solicitor Vivo certified that
"we have conducted the preliminary investigation in this case in accordance
with law" although Fiscal Concepcion had taken no part in the proceedings.
On October 31, the day following the filing of the above complaint, the
President wrote the Mayor a letter of the following tenor:
In view of the pendency before the Court of First Instance of Manila of criminal
case No. 20707 against you, for libel, and pursuant to the present policy of the
administration, requiring the suspension of any local elective official which is
being charged before the courts with any offense involving moral turpitude,
you are hereby suspended from office effective upon receipt hereof, your
suspension to continue until the final disposition of the said criminal case.
And notified of the suspension, Vice-Mayor Bartolome Gatmaitan entered
upon the duties of the office in place of the suspended city executive.
Allegations have been made vigorously attacking the form and legality of
Solicitor Vivo's designation and of the procedure pursued in the conduct of the
preliminary investigation. The objections are at best inconclusive of the
fundamental issues and will be brushed aside in this decision. It will be
assumed for the purpose of our decisions that the assailed designation and
investigation were regular and legal, and we will proceed at once to the
consideration of the validity of the disputed suspension.
By section 9 of the Revised Charter of the City of Manila (Republic Act No.
409), "the Mayor shall hold office for four years unless sooner removed." But
the Chartter does not contain any provision for this officer's removal or
suspension. This silence is in striking contrast to the explicitness with which
Republic Act No. 409 stipulates for the removal and suspension of board
members and other city officials. Section 14 specifies the causes for which
members of the Municipal Board may be suspended and removed, to wit: the
same causes for removal of provincial elective officers, and section 22
expressly authorizes the removal for cause of appointive city officials and
employees by the President or the Mayor depending on who made the
appointments.
Nevertheless, the rights, duties and privileges of municipal officers do not have
to be embodied in the charter, but may be regulated by provisions of general
application specially if these are incorporated in the same code of which the
city organic law forms a part.
Such is the case here. If the Manila City Charter itself is silent regarding the
suspension or removal of the mayor, section 64 (b) of the Revised
Administrative Code does confer upon the President the power to remove any
person from any position of trust or authority under the Government of the
Philippines for disloyalty to the Republic of the Philippines. There is no denying
that the position of mayor is under the Government of the Philippines and one
trust and authority, and comes within the purview of the provision before cited.
The intent of the phrase "unless sooner removed" in section 9 of the Manila
Charter has been a topic of much speculation and debate in the course of the
oral argument and in the briefs. This phrase is not uncommon in statutes
relating to public offices, and has received construction from the courts. It has
been declared that "Power in the appointing authority to remove a public officer
may be implied where to statutory specification of the term of office are added
the words 'unless sooner removed.'" (43 Am. Jur., 30.)
It is obvious from the plain language of this statement that the respondents
can hardly derive comfort from the phrase in question as repository of a hidden
or veiled authority of the President. Implying power of the appointing agency
to remove, the natural inference is that the words have exclusive application
to cases affecting appointive officers; so that, where the officers involved are
elective, like that of mayor of the City of Manila, they have no other meaning
than that the officer is not immune to removal, and the whole clauses is to be
interpreted to read, "The mayor shall hold his position for the prescribed term
unless sooner ousted as provided by other laws," or something to the effect.
The Congress is presumed to have been aware of section 64 (b) of the
Revised Administrative Code and to have in mind this section and other
removal statutes that may be enacted in the future, in employing the phrase
"unless sooner removed." Another conclusion, we are impelled to say, is that
under existing legislation, the Manila City Mayor is removable only for
disloyalty to the Republic. For, as will be shown, the express mention of one
cause or several causes for removal or suspension excludes other causes.
Four justices who join in this decision do not share the view that the only
ground which the Mayor may be expelled is disloyalty. The Chief Justice, Mr.
Justice Padilla and Mr. Justice Jugo, three of the Justices referred to, reason
that, as the office of provincial executive is at least as important as the office
of mayor of the city of Manila, the latter officer, by analogy, ought to be
amenable to removal and suspension for the same causes as provincial
executives, who, under section 2078 of the Revised Administrative Code, may
be discharged for dishonesty, oppression, or misconduct in office, besides
disloyalty. Even so, these members of the Court opine that the alleged offense
for which Mayor Lacson has been suspended is not one of the grounds just
enumerated, and are in complete agreement with others of the majority that
the suspension is unwarranted and illegal. Mr. Justice Pablo also believes that
the suspension was illegal but wants to have it understood that he bases his
concurrence mainly on the strength of the ruling in the case of Cornejo vs.
Naval (54 Phil., 809), of which will speak more later.
The contention that the President has inherent power to remove or suspend
municipal officers is without doubt not well taken. Removal and suspension of
Public officers are always controlled by the particular law applicable and its
proper construction subject to constitutional limitations. (2 McQuillen's
Municipal Corporations [Revised], section 574.) So it has been declared that
the governor of a state, (who is the state what the President is to the Republic
of the Philippines), can only remove where the power is expressly given or
arises by necessary implication under the Constitution or statutes. (43 Am.
Jur., 34.)
There is neither statutory nor constitutional provision granting the President
sweeping authority to remove municipal officials. By Article VII, Section 10,
paragraph (1) of the Constitution the President "shall . . . exercise general
supervision over all local governments," but supervision does not contemplate
control. (People vs. Brophy, 120 P., 2nd., 946; Cal. App., 2nd., 15.) Far from
implying control or power to remove, the President's supervisory authority over
municipal affairs disqualified by the proviso " as may be provided by law," a
clear indication of constitutional intention that the provision was not to be self-
executing but requires legislative implementation. And the limitation does not
stop here. It is significant to note that section 64 (b) of the Revised
Administrative Code in conferring on the Chief Executive power to remove
specifically enjoins that the said power should be exercised conformably to
law, which we assume to mean that removals must be accomplished only for
any of the causes and in the fashion prescribed by law and the procedure.
Then again, strict construction of law relating to suspension and removal, is
the universal rule. The rule is expressed in different forms which convey the
same idea: Removal is to be confined within the limits prescribed for it; The
causes, manner and conditions fixed must be pursued with strictness; Where
the cause for removal is specified, the specification amounts to a prohibition
to remove for a different cause; etc., etc. (Mechem on the Law of Offices and
Officers, p 286; 2 McQuillen's Municipal Corporations [Revised], section 575;
43 Am. Jur., 39.) The last statement is a paraphrase of the well known maxim
Expressio unius est exclusio alterius.
The reason for the stringent rule is said to be that the remedy by removal is a
drastic one (43 Am. Jur., 39) and, according to some courts, including ours
(Cornejo vs. Naval, supra), penal in nature. When dealing with elective posts,
the necessity for restricted construction is greater. Manifesting jealous regard
for the integrity of positions filled by popular election, some courts have refused
to bring officers holding elective offices within constitutional provision which
gives the state governor power to remove at pleasure. Not even in the face of
such provision, it has been emphasized, may elective officers be dismissed
except for cause. (62 C.J.S., 947.)
It may be true, as suggested, that the public interest and the proper
administration of official functions would be best served by an enlargement of
the causes for removal of the mayor, and vice versa. The answer to this
observation is that the shortcoming is for the legislative branch alone to correct
by appropriate enactment. It is trite to say that we are not to pass upon the
folly or wisdom of the law. As has been said in Cornejo vs. Naval, supra, anent
identical criticisms, "if the law is too narrow in scope, it is for the Legislature
rather than the courts to expand it." It is only when all other means of
determining the legislative intention fail that a court may look into the effect of
the law; otherwise the interpretation becomes judicial legislation . (Kansas ex
rel. Little Atty., Gen. vs. Mitchell, 70 L.R.A., 306; Dudly vs. Reynolds, 1 Kan.,
285.)
Yet, the abridgment of the power to remove or suspend an elective mayor is
not without it own justification, and was, we think, deliberately intended by the
lawmakers. The evils resulting from a restricted authority to suspend or remove
must have been weighed against the injustices and harms to the Republic
interest which would be likely to emerge from an unrestrained discretionary
power to suspend and remove.
In consonance with the principles before stated, we are constrained to
conclude that the power of the President to remove or suspend the Mayor of
the City of Manila is confined to disloyalty to the Republic or, at the most,
following the opinion of three of the subscribing Justices, for the other causes
stipulated in section 2078 of the Revised Administrative Code, and that the
suspension of the petitioner for libel is outside the bounds of express or
unwritten law. It needs no argument to show that the offense of libel or oral
defamation for which Mayor Lacson is being prosecuted is not disloyalty,
dishonesty, or oppression within the legal or popular meaning of these words.
Misconduct in office is the nearest approach to the offense of libel, and
misconduct Mayor Lacson's offense is, in the opinion of counsel and of some
members of the court. Admitting, as we understand the respondents' position,
that the petitioner was not guilty of disloyalty, dishonesty or oppression, yet
counsel do contend that the petitioner's "outburst" against Judge Montesa
constituted misconduct in office.
Misconduct in office has a definite and well-understood legal meaning. By
uniform legal definition, it is a misconduct such as affects his performance of
his duties as an officer and not such only as affects his character as a private
individual. In such cases, it has been said all times, it is necessary to separate
the character of the man from the character of the officer. (Mechem, supra,
section 457.) "It is settled that misconduct, misfeasance, or malfeasance
warranting removal from office of an officer, must have direct relation to and
be connected with the performance of official duties amounting either to
maladministration or willful, intentional neglect and failure to discharge the
duties of the office . . . " (43, Am. Jur., 39, 40.) To this effect is the principle
laid down in Cornejo vs. Naval, supra.
In that case, Cornejo, Municipal President of Pasay, Rizal, had been found
guilty of the crime of falsification of a private document and sentenced
therefore to one year, eight months, and twenty-one days' imprisonment, etc.
On the basis of his conviction, the Municipal President had been suspended
and administrative charges preferred against him with the Provincial Board, by
the Governor.
The suspended officer assailed the legality of the suspension before this court,
and this court in a unanimous decision ruled that the suspension was illegal
and without effect. The court prefaced its opinion with the statement that the
charge against the municipal officer to be valid cause for suspension or
removal "must be one affecting the official integrity of the officer in question."
Making this premise the basis of its investigation, the court concluded that the
crime of falsification of a private document is not misconduct in office, pointing
out that this crime "does not imply that one takes advantage of his official
position, inasmuch as corruption signifies in office, and inasmuch of the charge
must be one affecting the official integrity of the officer in question."
Judged by the foregoing standard definition of misconduct in office, the alleged
libel imputed to the suspended mayor was not such misconduct even if the
term "misconduct in office" be taken in its broadest sense. The radio broadcast
in which the objectionable utterances were made had nothing or very little to
do with petitioner's official functions and duties as mayor. It is was not done by
virtue or under color of authority. It was not any wrongful official act, or
omission to perform a duty of public concern, tacitly or expressly annexed to
his position Neither can it be said that Mayor Lacson committed an abuse or
took advantage of his office. One does not have to be a mayor to make those
remarks or to talk on the radio. The use of the radio is a privilege open to
anyone who would pay for the time consumed, or whom the owner would allow
for reasons of his own. The mere circumstance that the broadcast was
transmitted from the City Hall instead of the radio station did not alter the
situation. It is the character of the remarks and their immediate relation to the
office that are of paramount consideration. It is our considered opinion that the
petitioner acted as a private individual and should be made to answer in his
private capacity if he committed any breach of propriety or law.
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 or suspend 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. has been
pointedly stated, "Fixity of tenure destroys 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 can not be deduced, 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., 203, expressly adopted by the Supreme Court in State ex
rel. vs. Maroney, 191, Mo., 548; 90 S.W., 141; State vs. Crandell, 269 Mo., 44;
190 S.W., 889; State vs. Salval, 450, 2d, 995; 62 C.J.S., 947.)
Granting now, for the sake of argument, that the President may remove the
Mayor for cause, was the Mayor's alleged crime sufficient legal justification for
his suspension?
In a limited sense the words "for cause" and "misconduct in office" are
synonymous. "For cause," like "misconduct in office." has been universally
accepted to mean for reasons which the law and sound public policy recognize
as sufficient ground for removal, that is, legal cuase, and not merely cause
which the appointing power in the exercise of discretion may deem sufficient.
It is implied that officers may not be removed at the mere will of those vested
with the power of removal, or without any cause. Moreover, the cause must
relate to and effect the administration of the office and must be restricted to
something to a substantial nature directly affecting the rights and interest of
the public. (43 Am. Jur., 48.) One court went to the extent of saying that "The
eccentric manner of an officer, his having exaggerated notion of his own
importance, indulgence in coarse language, or talking loudly on the streets,
however offensive, would not warrant any interference with his incumbency.
Rudeness of an officer not amounting to illegality of conduct or oppression is
not such misconduct as will give cause for removing him from office."
Much discussion, which we consider of title or no importance, has been
devoted to the question of whether the power to remove carries with it the
power to suspend. The two powers, as has been indicated, are identical and
governed by the same principles in their important aspects that have any
bearing on the case at bar. Whether decreed as a punishment in itself, or as
auxiliary in the proceedings for removal so as to tie the defendant's hand
pending his investigation, suspension ought to be based on the same ground
upon which removal may be effected or is sought. (43 Am. Jur., 65.) When
exercised as a mere incident to the power to remove, the power to suspend
cannot be broader than the power to which it is anciliary. A stream cannot rise
higher than its source, as the saying goes.
In their effects, the difference between the power to remove and the power to
suspend is only one of degree. Suspension is a qualified expulsion, and
whether termed suspension or expulsion, it constitutes either temporary or
permanent disfranchisement. It is an ad interim stoppage or arrest of an official
power and pay. (2 McQuillen's Municipal Corporations [Revised], section 585).
In fact, when the "suspension is to continue until the final disposition" of a
criminal prosecution, like the petitioner's suspension, it might become a virtual
removal, considering that in the event of conviction by the trial court the case
might drag as long as the remainder of the suspended officer's term of office,
or longer.
We believe also that in the field of procedure no less than in that of substantive
law the suspension under review is fatally defective. No administrative charges
have been preferred against the petitioner and none seem to be contemplated.
The sole grounds for the suspension, as recited in the President's order, are
"the pendency of criminal case No. 20707 for libel," and "the present policy of
the administration, requiring the suspension of any elective official who is
being charged before the courts of any offense involving moral turpitude."
It seems self-evident that if, as must be conceded, temporary suspension is
allowed merely so as to prevent the accused from hampering the normal
course of the investigation with his influence and authority over possible
witnesses, the rule presupposes the existence of administrative charges and
investigation being conducted or to be conducted. We are certain that no
authority or good reason can be found in support of a proposition that the Chief
Executive can suspend an officer facing criminal charges for the sole purpose
of aiding the court in the administration of justice. Independent of the other
branches of the Government, the courts can well take care of their own
administration of the law.
An administrative policy or practice not predicated on constitutional or statutory
authority can have no binding force and effect in matters not purely political or
governmental. Where individual rights, honor and reputation are in jeopardy, it
is only law or the Constitution which can give legality to executive actions. It
has been shown that nothing in the Constitution, law or decision warrants the
petitioner's suspension.
If policy is to be a guiding factor, and we think if should be, such policy must
emanate from the legislative branch, which, under our form of government, is
the legitimate policy-making department. The legislative policy, as such policy
may be gathered from section 2188 of the Revised Administrative Code,
frowns upon prolonged or indefinite suspension of local elective officials. By
this section "the provincial governor shall receive and investigate complaints
against municipal officers for neglect of duty, oppression, corruption or other
form of maladministration of office.' It provides that in case suspension has
been effected, the hearing shall occur as soon as practicable, in no case later
than ten days from the date the accused is furnished a copy of the charges,
unless the suspended official on sufficient grounds asks for an extension of
time to prepare his defense. The section further warns that "the preventive
suspension shall not be for more than thirty days," and ordains that at the end
of that period the officer should be reinstated in office without prejudice to the
continuation of the proceedings against him until their completion, unless the
delay in the decision of the case is due to the defendant's fault, neglect or
request, and unless in case of conviction the Secretary of the Interior shall
otherwise direct.
Section 2188 is of relatively recent vintage, and is designed to protect elective
municipal officials against abuses of the power of suspension, abuses of which
past experience and observation had presented abundant examples. The
point we wish to drive home is that, evincing grave concerns for ordinary
municipal officials including municipal councilors, as a matter of public policy,
it is unreasonable to suppose that the Legislature intended to withhold the
same safeguards from the post of mayor of the metropolis and seat of the
National Government. On the contrary, in converting the office from appointive
to elective, one of the legislative purposes, we venture to say, was to afford
the position greater stability as well as to clothe it with greater dignity and
prestige. What could be the practical use of having the people choose the city
executive to manage the city's affairs if by the simple expedient of a criminal
accusation he could be laid off for the long duration of a criminal prosecution,
prosecution which, at long last might, as is not infrequently the case, turn out
to be false, malicious, unsubstantial, or founded on a mistaken notion of law
or evidence? Let it not be overlooked that criminal accusations are easy to
make and take months or years to try and finally decide, and that the filing of
such accusations and the time within which they are to be finished are matters
over which the accused has no effective control. It is not difficult to see that
the tenure of office and the incumbent's rights could easily be overthrown and
defeated if power rested in any authority to suspend the officer on the mere
filing or pendency of a criminal accusation, the suspension to continue until
the final termination of the trial. The idea seems repugnant to the principles of
due process, speedy trial, and simple justice "principles that are
fundamental and eternal."
It will also be noted from section 2188 that it does not only limit the period of
preventive suspension, but requires the filing of charges and prompt
investigation. Without such express provision, however, it is established by the
great weight of authority that the power of removal or suspension for cause
can not, except by clear statutory authority, be exercised without notice and
hearing. Mere silence of the statute with respect to notice and hearing will not
justify the removal of such an officer without knowledge of the charges and an
opportunity to be heard. (Mechem, p. 287; 43 Am. Jur., 50-52; 93 C.J., 65; 62
C.J.S., 924; 43 C.J., 666, footnote 83 [e] and cases cited.) 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 such notice or hearing. (Id.) Not even final conviction
of a crime involving moral turpitude, as distinguished from conviction pending
appeal, dispenses with the requisites notice and hearing. Final conviction is
mentioned in section 2188 of the Revised Administrative Code as ground for
proceeding administratively against the convicted officer but does not operate
as automatic removal doing away with the formalities of an administrative
hearing.
The policy manifested by section 2188 of the Revised Administrative Code,
which is a consecrated policy in other jurisdictions whose republican
institutions this country has copied, requires speedy termination of a case in
which suspension of the accused has been decreed, not only in the interest of
the immediate party but of the public in general. The electorate is vitality
interested, and the public good demands, that the man it has elevated to office
be, within the shortest time possible, separated from the service if proven unfit
and unfaithful to its trust, and restored if found innocent. Special proceedings
alone, unicumbered by nice technicalities of pleading, practice and procedure,
and the right of appeal, are best calculated to guarantee quick result.
The petition must be, and the same is granted, without costs.
G.R. No. 127685 July 23, 1998
BLAS F. OPLE, petitioner,vs.
RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR VILLANUEVA,
CIELITO HABITO, ROBERT BARBERS, CARMENCITA REODICA, CESAR
SARINO, RENATO VALENCIA, TOMAS P. AFRICA, HEAD OF THE
NATIONAL COMPUTER CENTER and CHAIRMAN OF THE COMMISSION
ON AUDIT, respondents.
PUNO, J.:
The petition at bar is a commendable effort on the part of Senator Blas F. Ople
to prevent the shrinking of the right to privacy, which the revered Mr. Justice
Brandeis considered as "the most comprehensive of rights and the right most
valued by civilized men." 1 Petitioner Ople prays that we invalidate
Administrative Order No. 308 entitled "Adoption of a National Computerized
Identification Reference System" on two important constitutional grounds, viz:
one, it is a usurpation of the power of Congress to legislate, and two, it
impermissibly intrudes on our citizenry's protected zone of privacy. We grant
the petition for the rights sought to be vindicated by the petitioner need
stronger barriers against further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos On December 12, 1996
and reads as follows:
ADOPTION OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign residents
with the facility to conveniently transact business with basic service and social
security providers and other government instrumentalities;
WHEREAS, this will require a computerized system to properly and efficiently
identify persons seeking basic services on social security and reduce, if not
totally eradicate fraudulent transactions and misrepresentations;
WHEREAS, a concerted and collaborative effort among the various basic
services and social security providing agencies and other government
intrumentalities is required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, do hereby direct the
following:
Sec. 1. Establishment of a National Compoterized Identification Reference
System. A decentralized Identification Reference System among the key basic
services and social security providers is hereby established.
Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating
Committee (IACC) to draw-up the implementing guidelines and oversee the
implementation of the System is hereby created, chaired by the Executive
Secretary, with the following as members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local Government
Secretary, Department of Health
Administrator, Government Service Insurance System,
Administrator, Social Security System,
Administrator, National Statistics Office
Managing Director, National Computer Center.
Sec. 3. Secretariat. The National Computer Center (NCC) is hereby
designated as secretariat to the IACC and as such shall provide administrative
and technical support to the IACC.
Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN)
generated by the NSO shall serve as the common reference number to
establish a linkage among concerned agencies. The IACC Secretariat shall
coordinate with the different Social Security and Services Agencies to
establish the standards in the use of Biometrics Technology and in computer
application designs of their respective systems.
Sec. 5. Conduct of Information Dissemination Campaign. The Office of the
Press Secretary, in coordination with the National Statistics Office, the GSIS
and SSS as lead agencies and other concerned agencies shall undertake a
massive tri-media information dissemination campaign to educate and raise
public awareness on the importance and use of the PRN and the Social
Security Identification Reference.
Sec. 6. Funding. The funds necessary for the implementation of the system
shall be sourced from the respective budgets of the concerned agencies.
Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit
regular reports to the Office of the President through the IACC, on the status
of implementation of this undertaking.
Sec. 8. Effectivity. This Administrative Order shall take effect immediately.
DONE in the City of Manila, this 12th day of December in the year of Our Lord,
Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS
A.O. No. 308 was published in four newspapers of general circulation on
January 22, 1997 and January 23, 1997. On January 24, 1997, petitioner filed
the instant petition against respondents, then Executive Secretary Ruben
Torres and the heads of the government agencies, who as members of the
Inter-Agency Coordinating Committee, are charged with the implementation of
A.O. No. 308. On April 8, 1997, we issued a temporary restraining order
enjoining its implementation.
Petitioner contends:
A. THE ESTABLISNMENT OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT.
THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL
USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF
THE REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT
FOR THE IMPLEMENTATION OF A.O. NO. 308 IS AN
UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF
CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE
GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF
RIGHTS ENSHRINED IN THE CONSTITUTION. 2
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS
WOULD WARRANT A JUDICIAL REVIEW;
As is usual in constitutional litigation, respondents raise the threshold issues
relating to the standing to sue of the petitioner and the justiciability of the case
at bar. More specifically, respondents aver that petitioner has no legal interest
to uphold and that the implementing rules of A.O. No. 308 have yet to be
promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople is a
distinguished member of our Senate. As a Senator, petitioner is possessed of
the requisite standing to bring suit raising the issue that the issuance of A.O.
No. 308 is a usurpation of legislative power. 4 As taxpayer and member of the
Government Service Insurance System (GSIS), petitioner can also impugn the
legality of the misalignment of public funds and the misuse of GSIS funds to
implement A.O. No. 308. 5
The ripeness for adjudication of the Petition at bar is not affected by the fact
that the implementing rules of A.O. No. 308 have yet to be promulgated.
Petitioner Ople assails A.O. No. 308 as invalid per se and as infirmed on its
face. His action is not premature for the rules yet to be promulgated cannot
cure its fatal defects. Moreover, the respondents themselves have started the
implementation of A.O. No. 308 without waiting for the rules. As early as
January 19, 1997, respondent Social Security System (SSS) caused the
publication of a notice to bid for the manufacture of the National Identification
(ID) card. 6 Respondent Executive Secretary Torres has publicly announced
that representatives from the GSIS and the SSS have completed the
guidelines for the national identification system. 7 All signals from the
respondents show their unswerving will to implement A.O. No. 308 and we
need not wait for the formality of the rules to pass judgment on its
constitutionality. In this light, the dissenters insistence that we tighten the rule
on standing is not a commendable stance as its result would be to throttle an
important constitutional principle and a fundamental right.

B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND II
ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT
ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS; We now come to the core issues. Petitioner claims that A.O. No. 308 is not a
mere administrative order but a law and hence, beyond the power of the
C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE President to issue. He alleges that A.O. No. 308 establishes a system of
IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM THE identification that is all-encompassing in scope, affects the life and liberty of
BUDGETS OF THE CONCERNED AGENCIES; every Filipino citizen and foreign resident, and more particularly, violates their
right to privacy.
D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN
PRIVACY. 3 Petitioner's sedulous concern for the Executive not to trespass on the
lawmaking domain of Congress is understandable. The blurring of the
We now resolve. demarcation line between the power of the Legislature to make laws and the
power of the Executive to execute laws will disturb their delicate balance of
I power and cannot be allowed. Hence, the exercise by one branch of
government of power belonging to another will be given a stricter scrutiny by
this Court.
The line that delineates Legislative and Executive power is not indistinct.
Legislative power is "the authority, under the Constitution, to make laws, and
to alter and repeal them." 8 The Constitution, as the will of the people in their
original, sovereign and unlimited capacity, has vested this power in the
Congress of the Philippines. 9 The grant of legislative power to Congress is
broad, general and comprehensive. 10 The legislative body possesses plenary
power for all purposes of civil government. 11 Any power, deemed to be
legislative by usage and tradition, is necessarily possessed by Congress,
unless the Constitution has lodged it elsewhere. 12 In fine, except as limited
by the Constitution, either expressly or impliedly, legislative power embraces
all subjects and extends to matters of general concern or common interest. 13
While Congress is vested with the power to enact laws, the President executes
the laws. 14 The executive power is vested in the Presidents. 15 It is generally
defined as the power to enforce and administer the laws. 16 It is the power of
carrying the laws into practical operation and enforcing their due observance.
17
As head of the Executive Department, the President is the Chief Executive. He
represents the government as a whole and sees to it that all laws are enforced
by the officials and employees of his department. 18 He has control over the
executive department, bureaus and offices. This means that he has the
authority to assume directly the functions of the executive department, bureau
and office or interfere with the discretion of its officials.19 Corollary to the
power of control, the President also has the duty of supervising the
enforcement of laws for the maintenance of general peace and public order.
Thus, he is granted administrative power over bureaus and offices under his
control to enable him to discharge his duties effectively. 20
Administrative power is concerned with the work of applying policies and
enforcing orders as determined by proper governmental organs. 21 It enables
the President to fix a uniform standard of administrative efficiency and check
the official conduct of his agents. 22 To this end, he can issue administrative
orders, rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves a subject
that is not appropriate to be covered by an administrative order. An
administrative order is:
Sec. 3. Administrative Orders. Acts of the President which relate to
particular aspects of governmental operation in pursuance of his duties as
administrative head shall be promulgated in administrative orders. 23
An administrative order is an ordinance issued by the President which relates
to specific aspects in the administrative operation of government. It must be in
harmony with the law and should be for the sole purpose of implementing the
law and carrying out the legislative policy. 24 We reject the argument that A.O.
No. 308 implements the legislative policy of the Administrative Code of 1987.
The Code is a general law and "incorporates in a unified document the major
structural, functional and procedural principles of governance." 25 and
"embodies changes in administrative structure and procedures designed to
serve the
people." 26 The Code is divided into seven (7) Books: Book I deals with
Sovereignty and General Administration, Book II with the Distribution of
Powers of the three branches of Government, Book III on the Office of the
President, Book IV on the Executive Branch, Book V on Constitutional
Commissions, Book VI on National Government Budgeting, and Book VII on
Administrative Procedure. These Books contain provisions on the
organization, powers and general administration of the executive, legislative
and judicial branches of government, the organization and administration of
departments, bureaus and offices under the executive branch, the
organization and functions of the Constitutional Commissions and other
constitutional bodies, the rules on the national government budget, as well as
guideline for the exercise by administrative agencies of quasi-legislative and
quasi-judicial powers. The Code covers both the internal administration of
government, i.e, internal organization, personnel and recruitment, supervision
and discipline, and the effects of the functions performed by administrative
officials on private individuals or parties outside government. 27
It cannot be simplistically argued that A.O. No. 308 merely implements the
Administrative Code of 1987. It establishes for the first time a National
Computerized Identification Reference System. Such a System requires a
delicate adjustment of various contending state policies the primacy of
national security, the extent of privacy interest against dossier-gathering by
government, the choice of policies, etc. Indeed, the dissent of Mr. Justice
Mendoza states that the A.O. No. 308 involves the all-important freedom of
thought. As said administrative order redefines the parameters of some basic
rights of our citizenry vis-a-vis the State as well as the line that separates the
administrative power of the President to make rules and the legislative power
of Congress, it ought to be evident that it deals with a subject that should be
covered by law.
Nor is it correct to argue as the dissenters do that A.D. No. 308 is not a law
because it confers no right, imposes no duty, affords no proctection, and
creates no office. Under A.O. No. 308, a citizen cannot transact business with
government agencies delivering basic services to the people without the
contemplated identification card. No citizen will refuse to get this identification
card for no one can avoid dealing with government. It is thus clear as daylight
that without the ID, a citizen will have difficulty exercising his rights and
enjoying his privileges. Given this reality, the contention that A.O. No. 308
gives no right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the limits of
administrative legislation and consequently erodes the plenary power of
Congress to make laws. This is contrary to the established approach defining
the traditional limits of administrative legislation. As well stated by Fisher: ". . .
Many regulations however, bear directly on the public. It is here that
administrative legislation must he restricted in its scope and application.
Regulations are not supposed to be a substitute for the general policy-making
that Congress enacts in the form of a public law. Although administrative
regulations are entitled to respect, the authority to prescribe rules and
regulations is not an independent source of power to make laws." 28
III
Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still
it cannot pass constitutional muster as an administrative legislation because
facially it violates the right to privacy. The essence of privacy is the "right to be
let alone." 29 In the 1965 case of Griswold v. Connecticut, 30 the United States
Supreme Court gave more substance to the right of privacy when it ruled that
the right has a constitutional foundation. It held that there is a right of privacy
which can be found within the penumbras of the First, Third, Fourth, Fifth and
Ninth Amendments, 31 viz:
Specific guarantees in the Bill of Rights have penumbras formed by
emanations from these guarantees that help give them life and substance . . .
various guarantees create zones of privacy. The right of association contained
in the penumbra of the First Amendment is one, as we have seen. The Third
Amendment in its prohibition against the quartering of soldiers "in any house"
in time of peace without the consent of the owner is another facet of that
privacy. The Fourth Amendment explicitly affirms the ''right of the people to be
secure in their persons, houses and effects, against unreasonable searches
and seizures." The Fifth Amendment in its Self-Incrimination Clause enables
the citizen to create a zone of privacy which government may not force him to
surrender to his detriment. The Ninth Amendment provides: "The enumeration
in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people."
In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold ruling that
there is a constitutional right to privacy. Speaking thru Mr. Justice, later Chief
Justice, Enrique Fernando, we held:
xxx xxx xxx
The Griswold case invalidated a Connecticut statute which made the use of
contraceptives a criminal offence on the ground of its amounting to an
unconstitutional invasion of the right of privacy of married persons; rightfully it
stressed "a relationship lying within the zone of privacy created by several
fundamental constitutional guarantees." It has wider implications though. The
constitutional right to privacy has come into its own.
So it is likewise in our jurisdiction. The right to privacy as such is accorded
recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: "The concept of limited government has always included the
idea that governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic distinctions between
absolute and limited government. Ultimate and pervasive control of the
individual, in all aspects of his life, is the hallmark of the absolute state. In
contrast, a system of limited government safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the public sector, which
the state can control. Protection of this private sector protection, in other
words, of the dignity and integrity of the individual has become increasingly
important as modern society has developed. All the forces of a technological
age industrialization, urbanization, and organization operate to narrow
the area of privacy and facilitate intrusion into it. In modern terms, the capacity
to maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society."
Indeed, if we extend our judicial gaze we will find that the right of privacy is
recognized and enshrined in several provisions of our Constitution. 33 It is
expressly recognized in section 3 (1) of the Bill of Rights:
Sec. 3. (1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law.
Other facets of the right to privacy are protectad in various provisions of the
Bill of Rights, viz: 34
Sec. 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons, houses papers,
and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

xxx xxx xxx
Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health as may be provided by law.
xxx xxx xxx
Sec. 8. The right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes not
contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself.
Zones of privacy are likewise recognized and protected in our laws. The Civil
Code provides that "[e]very person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and other persons" and punishes
as actionable torts several acts by a person of meddling and prying into the
privacy of another. 35 It also holds a public officer or employee or any private
individual liable for damages for any violation of the rights and liberties of
another person, 36 and recognizes the privacy of letters and other private
communications. 37 The Revised Penal Code makes a crime the violation of
secrets by an officer, 38 the revelation of trade and industrial secrets, 39 and
trespass to dwelling. 40 Invasion of privacy is an offense in special laws like
the Anti-Wiretapping Law, 41 the Secrecy of Bank Deposits Act 42 and the
Intellectual Property Code. 43 The Rules of Court on privileged communication
likewise recognize the privacy of certain information. 44
Unlike the dissenters, we prescind from the premise that the right to privacy is
a fundamental right guaranteed by the Constitution, hence, it is the burden of
government to show that A.O. No. 308 is justified by some compelling state
interest and that it is narrowly drawn. A.O. No. 308 is predicated on two
considerations: (1) the need to provides our citizens and foreigners with the
facility to conveniently transact business with basic service and social security
providers and other government instrumentalities and (2) the need to reduce,
if not totally eradicate, fraudulent transactions and misrepresentations by
persons seeking basic services. It is debatable whether these interests are
compelling enough to warrant the issuance of A.O. No. 308. But what is not
arguable is the broadness, the vagueness, the overbreadth of A.O. No. 308
which if implemented will put our people's right to privacy in clear and present
danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a Population
Reference Number (PRN) as a "common reference number to establish a
linkage among concerned agencies" through the use of "Biometrics
Technology" and "computer application designs."
Biometry or biometrics is "the science of the applicatin of statistical methods
to biological facts; a mathematical analysis of biological data." 45 The term
"biometrics" has evolved into a broad category of technologies which provide
precise confirmation of an individual's identity through the use of the
individual's own physiological and behavioral characteristics. 46 A
physiological characteristic is a relatively stable physical characteristic such
as a fingerprint, retinal scan, hand geometry or facial features. A behavioral
characteristic is influenced by the individual's personality and includes voice
print, signature and keystroke. 47 Most biometric idenfication systems use a
card or personal identificatin number (PIN) for initial identification. The
biometric measurement is used to verify that the individual holding the card or
entering the PIN is the legitimate owner of the card or PIN. 48
A most common form of biological encoding is finger-scanning where
technology scans a fingertip and turns the unique pattern therein into an
individual number which is called a biocrypt. The biocrypt is stored in computer
data banks 49 and becomes a means of identifying an individual using a
service. This technology requires one's fingertip to be scanned every time
service or access is provided. 50 Another method is the retinal scan. Retinal
scan technology employs optical technology to map the capillary pattern of the
retina of the eye. This technology produces a unique print similar to a finger
print. 51 Another biometric method is known as the "artificial nose." This device
chemically analyzes the unique combination of substances excreted from the
skin of people. 52 The latest on the list of biometric achievements is the
thermogram. Scientists have found that by taking pictures of a face using infra-
red cameras, a unique heat distribution pattern is seen. The different densities
of bone, skin, fat and blood vessels all contribute to the individual's personal
"heat signature." 53
In the last few decades, technology has progressed at a galloping rate. Some
science fictions are now science facts. Today, biometrics is no longer limited
to the use of fingerprint to identify an individual. It is a new science that uses
various technologies in encoding any and all biological characteristics of an
individual for identification. It is noteworthy that A.O. No. 308 does not state
what specific biological characteristics and what particular biometrics
technology shall be used to identify people who will seek its coverage.
Considering the banquest of options available to the implementors of A.O. No.
308, the fear that it threatens the right to privacy of our people is not
groundless.
A.O. No. 308 should also raise our antennas for a further look will show that it
does not state whether encoding of data is limited to biological information
alone for identification purposes. In fact, the Solicitor General claims that the
adoption of the Identification Reference System will contribute to the
"generation of population data for development planning." 54 This is an
admission that the PRN will not be used solely for identification but the
generation of other data with remote relation to the avowed purposes of A.O.
No. 308. Clearly, the indefiniteness of A.O. No. 308 can give the government
the roving authority to store and retrieve information for a purpose other than
the identification of the individual through his PRN.
The potential for misuse of the data to be gathered under A.O. No. 308 cannot
be undarplayed as the dissenters do. Pursuant to said administrative order, an
individual must present his PRN everytime he deals with a government agency
to avail of basic services and security. His transactions with the government
agency will necessarily be recorded whether it be in the computer or in the
documentary file of the agency. The individual's file may include his
transactions for loan availments, income tax returns, statement of assets and
liabilities, reimbursements for medication, hospitalization, etc. The more
frequent the use of the PRN, the better the chance of building a huge
formidable informatin base through the electronic linkage of the files. 55 The
data may be gathered for gainful and useful government purposes; but the
existence of this vast reservoir of personal information constitutes a covert
invitation to misuse, a temptation that may be too great for some of our
authorities to resist. 56
We can even grant, arguendo, that the computer data file will be limited to the
name, address and other basic personal infomation about the individual. 57
Even that hospitable assumption will not save A.O. No. 308 from constitutional
infirmity for again said order does not tell us in clear and categorical terms how
these information gathered shall he handled. It does not provide who shall
control and access the data, under what circumstances and for what purpose.
These factors are essential to safeguard the privacy and guaranty the integrity
of the information. 58 Well to note, the computer linkage gives other
government agencies access to the information. Yet, there are no controls to
guard against leakage of information. When the access code of the control
programs of the particular computer system is broken, an intruder, without fear
of sanction or penalty, can make use of the data for whatever purpose, or
worse, manipulate the data stored within the system. 59
It is plain and we hold that A.O. No. 308 falls short of assuring that personal
information which will be gathered about our people will only be processed for
unequivocally specified purposes. 60 The lack of proper safeguards in this
regard of A.O. No. 308 may interfere with the individual's liberty of abode and
travel by enabling authorities to track down his movement; it may also enable
unscrupulous persons to access confidential information and circumvent the
right against self-incrimination; it may pave the way for "fishing expeditions" by
government authorities and evade the right against unreasonable searches
and seizures. 61 The possibilities of abuse and misuse of the PRN, biometrics
and computer technology are accentuated when we consider that the
individual lacks control over what can be read or placed on his ID, much less
verify the correctness of the data encoded. 62 They threaten the very abuses
that the Bill of Rights seeks to prevent. 63
The ability of sophisticated data center to generate a comprehensive cradle-
to-grave dossier on an individual and transmit it over a national network is one
of the most graphic threats of the computer revolution. 64 The computer is
capable of producing a comprehensive dossier on individuals out of
information given at different times and for varied purposes. 65 It can continue
adding to the stored data and keeping the information up to date. Retrieval of
stored date is simple. When information of a privileged character finds its way
into the computer, it can be extracted together with other data on the subject.
66 Once extracted, the information is putty in the hands of any person. The
end of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting
opinions would dismiss its danger to the right to privacy as speculative and
hypothetical. Again, we cannot countenance such a laidback posture. The
Court will not be true to its role as the ultimate guardian of the people's liberty
if it would not immediately smother the sparks that endanger their rights but
would rather wait for the fire that could consume them.
We reject the argument of the Solicitor General that an individual has a
reasonable expectation of privacy with regard to the Natioal ID and the use of
biometrics technology as it stands on quicksand. The reasonableness of a
person's expectation of privacy depends on a two-part test: (1) whether by his
conduct, the individual has exhibited an expectation of privacy; and (2)
whether this expectation is one that society recognizes as reasonable. 67 The
factual circumstances of the case determines the reasonableness of the
expectation. 68 However, other factors, such as customs, physical
surroundings and practices of a particular activity, may serve to create or
diminish this expectation. 69 The use of biometrics and computer technology
in A.O. No. 308 does not assure the individual of a reasonable expectation of
privacy. 70 As technology advances, the level of reasonably expected privacy
decreases. 71 The measure of protection granted by the reasonable
expectation diminishes as relevant technology becomes more widely
accepted. 72 The security of the computer data file depends not only on the
physical inaccessibility of the file but also on the advances in hardware and
software computer technology. A.O. No. 308 is so widely drawn that a
minimum standard for a reasonable expectation of privacy, regardless of
technology used, cannot be inferred from its provisions.
The rules and regulations to be by the IACC cannot remedy this fatal defect.
Rules and regulations merely implement the policy of the law or order. On its
face, A.O. No. gives the IACC virtually infettered discretion to determine the
metes and bounds of the ID System.
Nor do your present laws prvide adequate safeguards for a reasonable
expectation of privacy. Commonwealth Act. No. 591 penalizes the disclosure
by any person of data furnished by the individual to the NSO with imprisonment
and fine. 73 Republic Act. No. 1161 prohibits public disclosure of SSS
employment records and reports. 74 These laws, however, apply to records
and data with the NSO and the SSS. It is not clear whether they may be applied
to data with the other government agencies forming part of the National ID
System. The need to clarify the penal aspect of A.O. No. 308 is another reason
why its enactment should be given to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of
the right of privacy by using the rational relationship test. 75 He stressed that
the purposes of A.O. No. 308 are: (1) to streamline and speed up the
implementation of basic government services, (2) eradicate fraud by avoiding
duplication of services, and (3) generate population data for development
planning. He cocludes that these purposes justify the incursions into the right
to privacy for the means are rationally related to the end. 76
We are not impressed by the argument. In Morfe v. Mutuc, 77 we upheld the
constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a
valid police power measure. We declared that the law, in compelling a public
officer to make an annual report disclosing his assets and liabilities, his
sources of income and expenses, did not infringe on the individual's right to
privacy. The law was enacted to promote morality in public administration by
curtailing and minimizing the opportunities for official corruption and
maintaining a standard of honesty in the public service. 78
The same circumstances do not obtain in the case at bar. For one, R.A. 3019
is a statute, not an administrative order. Secondly, R.A. 3019 itself is
sufficiently detailed. The law is clear on what practices were prohibited and
penalized, and it was narrowly drawn to avoid abuses. IN the case at bar, A.O.
No. 308 may have been impelled by a worthy purpose, but, it cannot pass
constitutional scrutiny for it is not narrowly drawn. And we now hod that when
the integrity of a fundamental right is at stake, this court will give the challenged
law, administrative order, rule or regulation a stricter scrutiny. It will not do for
the authorities to invoke the presumption of regularity in the performance of
official duties. Nor is it enough for the authorities to prove that their act is not
irrational for a basic right can be diminished, if not defeated, even when the
government does not act irrationally. They must satisfactorily show the
presence of compelling state interests and that the law, rule or regulation is
narrowly drawn to preclude abuses. This approach is demanded by the 1987
Constitution whose entire matrix is designed to protect human rights and to
prevent authoritarianism. In case of doubt, the least we can do is to lean
towards the stance that will not put in danger the rights protected by the
Constitutions.
The case of Whalen v. Roe 79 cited by the Solicitor General is also off-line. In
Whalen, the United States Supreme Court was presented with the question of
whether the State of New York could keep a centralized computer record of
the names and addresses of all persons who obtained certain drugs pursuant
to a doctor's prescription. The New York State Controlled Substance Act of
1972 required physicians to identify parties obtaining prescription drugs
enumerated in the statute, i.e., drugs with a recognized medical use but with
a potential for abuse, so that the names and addresses of the patients can be
recorded in a centralized computer file of the State Department of Health. The
plaintiffs, who were patients and doctors, claimed that some people might
decline necessary medication because of their fear that the computerized data
may be readily available and open to public disclosure; and that once
disclosed, it may stigmatize them as drug addicts. 80 The plaintiffs alleged that
the statute invaded a constitutionally protected zone of privacy, i.e., the
individual interest in avoiding disclosure of personal matters, and the interest
in independence in making certain kinds of important decisions. The U.S.
Supreme Court held that while an individual's interest in avoiding disclosuer of
personal matter is an aspect of the right to privacy, the statute did not pose a
grievous threat to establish a constitutional violation. The Court found that the
statute was necessary to aid in the enforcement of laws designed to minimize
the misuse of dangerous drugs. The patient-identification requirement was a
product of an orderly and rational legislative decision made upon
recommmendation by a specially appointed commission which held extensive
hearings on the matter. Moreover, the statute was narrowly drawn and
contained numerous safeguards against indiscriminate disclosure. The statute
laid down the procedure and requirements for the gathering, storage and
retrieval of the informatin. It ebumerated who were authorized to access the
data. It also prohibited public disclosure of the data by imposing penalties for
its violation. In view of these safeguards, the infringement of the patients' right
to privacy was justified by a valid exercise of police power. As we discussed
above, A.O. No. 308 lacks these vital safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the Court is
not per se agains the use of computers to accumulate, store, process, retvieve
and transmit data to improve our bureaucracy. Computers work wonders to
achieve the efficiency which both government and private industry seek. Many
information system in different countries make use of the computer to facilitate
important social objective, such as better law enforcement, faster delivery of
public services, more efficient management of credit and insurance programs,
improvement of telecommunications and streamlining of financial activities. 81
Used wisely, data stored in the computer could help good administration by
making accurate and comprehensive information for those who have to frame
policy and make key decisions. 82 The benefits of the computer has
revolutionized information technology. It developed the internet, 83 introduced the dissents still say we should not be too quick in labelling the right to privacy
the concept of cyberspace 84 and the information superhighway where the as a fundamental right. We close with the statement that the right to privacy
individual, armed only with his personal computer, may surf and search all was not engraved in our Constitution for flattery.
kinds and classes of information from libraries and databases connected to
the net. IN VIEW WHEREOF, the petition is granted and Adminisrative Order No. 308
entitled "Adoption of a National Computerized Identification Reference
In no uncertain terms, we also underscore that the right to privacy does not System" declared null and void for being unconstitutional.
bar all incursions into individual privacy. The right is not intended to stifle
scientific and technological advancements that enhance public service and the SO ORDERED.
common good. It merely requires that the law be narrowly focused 85 and a
compelling interest justify such intrusions. 86 Intrusions into the right must be
accompanied by proper safeguards and well-defined standards to prevent
unconstitutional invasions. We reiterate that any law or order that invades
individual privacy will be subjected by this Court to strict scrutiny. The reason
for this stance was laid down in Morfe v. Mutuc, to wit:

The concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the personal life of
the citizen. This is indeed one of the basic disctinctions between absolute and
limited government. Ultimate and pervasive control of the individual, in all
aspects of his life, is the hallmark of the absolute state. In contrast, a system
of limited government safeguards a private sector, which belongs to the
individual, firmly distinguishing it from the public sector, which the state can
control. Protection of this private sector protection, in other words, of the
dignity and integrity of the individual has become increasingly important as
modern society has developed. All the forces of a technological age
industrialization, urbanization, and organization operate to narrow the area
of privacy and facilitate intrusion into it. In modern terms, the capacity to
maintain and support this enclave of private life marks the difference between
a democratic and a totalitarian society. 87
IV
The right to privacy is one of the most threatened rights of man living in a mass
society. The threats emanate from various sources governments,
journalists, employers, social scientists, etc. 88 In th case at bar, the threat
comes from the executive branch of government which by issuing A.O. No.
308 pressures the people to surrender their privacy by giving information about
themselves on the pretext that it will facilitate delivery of basic services. Given
the record-keeping power of the computer, only the indifferent fail to perceive
the danger that A.O. No. 308 gives the government the power to compile a
devastating dossier against unsuspecting citizens. It is timely to take note of
the well-worded warning of Kalvin, Jr., "the disturbing result could be that
everyone will live burdened by an unerasable record of his past and his
limitations. In a way, the threat is that because of its record-keeping, the
society will have lost its benign capacity to forget." 89 Oblivious to this counsel,
BANDA VS ERMITA
LEONARDO-DE CASTRO, J.:
The present controversy arose from a Petition for Certiorari and prohibition
challenging the constitutionality of Executive Order No. 378 dated October 25,
2004, issued by President Gloria Macapagal Arroyo (President Arroyo).
Petitioners characterize their action as a class suit filed on their own behalf
and on behalf of all their co-employees at the National Printing Office (NPO).
The NPO was formed on July 25, 1987, during the term of former President
Corazon C. Aquino (President Aquino), by virtue of Executive Order No. 2851
which provided, among others, the creation of the NPO from the merger of the
Government Printing Office and the relevant printing units of the Philippine
Information Agency (PIA). Section 6 of Executive Order No. 285 reads:
SECTION 6. Creation of the National Printing Office. There is hereby created
a National Printing Office out of the merger of the Government Printing Office
and the relevant printing units of the Philippine Information Agency. The Office
shall have exclusive printing jurisdiction over the following:
a. Printing, binding and distribution of all standard and accountable forms of
national, provincial, city and municipal governments, including government
corporations;
b. Printing of officials ballots;
c. Printing of public documents such as the Official Gazette, General
Appropriations Act, Philippine Reports, and development information materials
of the Philippine Information Agency.
The Office may also accept other government printing jobs, including
government publications, aside from those enumerated above, but not in an
exclusive basis.
The details of the organization, powers, functions, authorities, and related
management aspects of the Office shall be provided in the implementing
details which shall be prepared and promulgated in accordance with Section
II of this Executive Order.
The Office shall be attached to the Philippine Information Agency.
On October 25, 2004, President Arroyo issued the herein assailed Executive
Order No. 378, amending Section 6 of Executive Order No. 285 by, inter alia,
removing the exclusive jurisdiction of the NPO over the printing services
requirements of government agencies and instrumentalities. The pertinent
portions of Executive Order No. 378, in turn, provide:
SECTION 1. The NPO shall continue to provide printing services to
government agencies and instrumentalities as mandated by law. However, it
shall no longer enjoy exclusive jurisdiction over the printing services
requirements of the government over standard and accountable forms. It shall
have to compete with the private sector, except in the printing of election
paraphernalia which could be shared with the Bangko Sentral ng Pilipinas,
upon the discretion of the Commission on Elections consistent with the
provisions of the Election Code of 1987.
SECTION 2. Government agencies/instrumentalities may source printing
services outside NPO provided that:
2.1 The printing services to be provided by the private sector is superior in
quality and at a lower cost than what is offered by the NPO; and
2.2 The private printing provider is flexible in terms of meeting the target
completion time of the government agency.
SECTION 3. In the exercise of its functions, the amount to be appropriated for
the programs, projects and activities of the NPO in the General Appropriations
Act (GAA) shall be limited to its income without additional financial support
from the government. (Emphases and underscoring supplied.)
Pursuant to Executive Order No. 378, government agencies and
instrumentalities are allowed to source their printing services from the private
sector through competitive bidding, subject to the condition that the services
offered by the private supplier be of superior quality and lower in cost
compared to what was offered by the NPO. Executive Order No. 378 also
limited NPOs appropriation in the General Appropriations Act to its income.
Perceiving Executive Order No. 378 as a threat to their security of tenure as
employees of the NPO, petitioners now challenge its constitutionality,
contending that: (1) it is beyond the executive powers of President Arroyo to
amend or repeal Executive Order No. 285 issued by former President Aquino
when the latter still exercised legislative powers; and (2) Executive Order No.
378 violates petitioners security of tenure, because it paves the way for the
gradual abolition of the NPO.
We dismiss the petition.
Before proceeding to resolve the substantive issues, the Court must first delve
into a procedural matter. Since petitioners instituted this case as a class suit,
the Court, thus, must first determine if the petition indeed qualifies as one. In
Board of Optometry v. Colet,2 we held that "[c]ourts must exercise utmost
caution before allowing a class suit, which is the exception to the requirement
of joinder of all indispensable parties. For while no difficulty may arise if the
decision secured is favorable to the plaintiffs, a quandary would result if the
decision were otherwise as those who were deemed impleaded by their self-
appointed representatives would certainly claim denial of due process."
Section 12, Rule 3 of the Rules of Court defines a class suit, as follows:
Sec. 12. Class suit. When the subject matter of the controversy is one of
common or general interest to many persons so numerous that it is
impracticable to join all as parties, a number of them which the court finds to
be sufficiently numerous and representative as to fully protect the interests of
all concerned may sue or defend for the benefit of all. Any party in interest
shall have the right to intervene to protect his individual interest.
From the foregoing definition, the requisites of a class suit are: 1) the subject
matter of controversy is one of common or general interest to many persons;
2) the parties affected are so numerous that it is impracticable to bring them
all to court; and 3) the parties bringing the class suit are sufficiently numerous
or representative of the class and can fully protect the interests of all
concerned.
In Mathay v. The Consolidated Bank and Trust Company,3 the Court held that:
An action does not become a class suit merely because it is designated as
such in the pleadings. Whether the suit is or is not a class suit depends upon
the attending facts, and the complaint, or other pleading initiating the class
action should allege the existence of the necessary facts, to wit, the existence
of a subject matter of common interest, and the existence of a class and the
number of persons in the alleged class, in order that the court might be enabled
to determine whether the members of the class are so numerous as to make
it impracticable to bring them all before the court, to contrast the number
appearing on the record with the number in the class and to determine whether
claimants on record adequately represent the class and the subject matter of
general or common interest. (Emphases ours.)
Here, the petition failed to state the number of NPO employees who would be
affected by the assailed Executive Order and who were allegedly represented
by petitioners. It was the Solicitor General, as counsel for respondents, who
pointed out that there were about 549 employees in the NPO.4 The 67
petitioners undeniably comprised a small fraction of the NPO employees
whom they claimed to represent. Subsequently, 32 of the original petitioners
executed an Affidavit of Desistance, while one signed a letter denying ever
signing the petition,5 ostensibly reducing the number of petitioners to 34. We
note that counsel for the petitioners challenged the validity of the desistance
or withdrawal of some of the petitioners and insinuated that such desistance
was due to pressure from people "close to the seat of power."6 Still, even if we
were to disregard the affidavit of desistance filed by some of the petitioners, it
is highly doubtful that a sufficient, representative number of NPO employees
have instituted this purported class suit. A perusal of the petition itself would
show that of the 67 petitioners who signed the Verification/Certification of Non-
Forum Shopping, only 20 petitioners were in fact mentioned in the jurat as
having duly subscribed the petition before the notary public. In other words,
only 20 petitioners effectively instituted the present case.
Indeed, in MVRS Publications, Inc. v. Islamic Dawah Council of the
Philippines, Inc.,7 we observed that an element of a class suit or
representative suit is the adequacy of representation. In determining the
question of fair and adequate representation of members of a class, the court
must consider (a) whether the interest of the named party is coextensive with
the interest of the other members of the class; (b) the proportion of those made
a party, as it so bears, to the total membership of the class; and (c) any other
factor bearing on the ability of the named party to speak for the rest of the
class.
Previously, we held in Ibaes v. Roman Catholic Church8 that where the
interests of the plaintiffs and the other members of the class they seek to
represent are diametrically opposed, the class suit will not prosper.
It is worth mentioning that a Manifestation of Desistance,9 to which the
previously mentioned Affidavit of Desistance10 was attached, was filed by the
President of the National Printing Office Workers Association (NAPOWA). The
said manifestation expressed NAPOWAs opposition to the filing of the instant
petition in any court. Even if we take into account the contention of petitioners
counsel that the NAPOWA President had no legal standing to file such
manifestation, the said pleading is a clear indication that there is a divergence
of opinions and views among the members of the class sought to be
represented, and not all are in favor of filing the present suit. There is here an
apparent conflict between petitioners interests and those of the persons whom
they claim to represent. Since it cannot be said that petitioners sufficiently
represent the interests of the entire class, the instant case cannot be properly
treated as a class suit.
As to the merits of the case, the petition raises two main grounds to assail the
constitutionality of Executive Order No. 378:
First, it is contended that President Arroyo cannot amend or repeal Executive
Order No. 285 by the mere issuance of another executive order (Executive
Order No. 378). Petitioners maintain that former President Aquinos Executive
Order No. 285 is a legislative enactment, as the same was issued while
President Aquino still had legislative powers under the Freedom
Constitution;11 thus, only Congress through legislation can validly amend
Executive Order No. 285.
Second, petitioners maintain that the issuance of Executive Order No. 378
would lead to the eventual abolition of the NPO and would violate the security
of tenure of NPO employees.
Anent the first ground raised in the petition, we find the same patently without
merit.
It is a well-settled principle in jurisprudence that the President has the power
to reorganize the offices and agencies in the executive department in line with
the Presidents constitutionally granted power of control over executive offices
and by virtue of previous delegation of the legislative power to reorganize
executive offices under existing statutes.
In Buklod ng Kawaning EIIB v. Zamora,12 the Court pointed out that Executive
Order No. 292 or the Administrative Code of 1987 gives the President
continuing authority to reorganize and redefine the functions of the Office of
the President. Section 31, Chapter 10, Title III, Book III of the said Code, is
explicit:
Sec. 31. Continuing Authority of the President to Reorganize his Office. The
President, subject to the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have continuing authority to
reorganize the administrative structure of the Office of the President. For this
purpose, he may take any of the following actions:
(1) Restructure the internal organization of the Office of the President Proper,
including the immediate Offices, the President Special Assistants/Advisers
System and the Common Staff Support System, by abolishing, consolidating
or merging units thereof or transferring functions from one unit to another;
(2) Transfer any function under the Office of the President to any other
Department or Agency as well as transfer functions to the Office of the
President from other Departments and Agencies; and
(3) Transfer any agency under the Office of the President to any other
department or agency as well as transfer agencies to the Office of the
President from other Departments or agencies. (Emphases ours.)
Interpreting the foregoing provision, we held in Buklod ng Kawaning EIIB, thus:
But of course, the list of legal basis authorizing the President to reorganize any
department or agency in the executive branch does not have to end here. We
must not lose sight of the very source of the power that which constitutes an
express grant of power. Under Section 31, Book III of Executive Order No. 292
(otherwise known as the Administrative Code of 1987), "the President, subject
to the policy in the Executive Office and in order to achieve simplicity, economy
and efficiency, shall have the continuing authority to reorganize the
administrative structure of the Office of the President." For this purpose, he
may transfer the functions of other Departments or Agencies to the Office of
the President. In Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that
reorganization "involves the reduction of personnel, consolidation of offices, or
abolition thereof by reason of economy or redundancy of functions." It takes
place when there is an alteration of the existing structure of government offices
or units therein, including the lines of control, authority and responsibility
between them. The EIIB is a bureau attached to the Department of Finance. It
falls under the Office of the President. Hence, it is subject to the Presidents
continuing authority to reorganize.13 (Emphasis ours.)
It is undisputed that the NPO, as an agency that is part of the Office of the
Press Secretary (which in various times has been an agency directly attached
to the Office of the Press Secretary or as an agency under the Philippine
Information Agency), is part of the Office of the President.14
Pertinent to the case at bar, Section 31 of the Administrative Code of 1987
quoted above authorizes the President (a) to restructure the internal
organization of the Office of the President Proper, including the immediate
Offices, the President Special Assistants/Advisers System and the Common
Staff Support System, by abolishing, consolidating or merging units thereof or
transferring functions from one unit to another, and (b) to transfer functions or
offices from the Office of the President to any other Department or Agency in
the Executive Branch, and vice versa.
Concomitant to such power to abolish, merge or consolidate offices in the
Office of the President Proper and to transfer functions/offices not only among
the offices in the Office of President Proper but also the rest of the Office of
the President and the Executive Branch, the President implicitly has the power
to effect less radical or less substantive changes to the functional and internal
structure of the Office of the President, including the modification of functions
of such executive agencies as the exigencies of the service may require.
In the case at bar, there was neither an abolition of the NPO nor a removal of
any of its functions to be transferred to another agency. Under the assailed
Executive Order No. 378, the NPO remains the main printing arm of the
government for all kinds of government forms and publications but in the
interest of greater economy and encouraging efficiency and profitability, it must
now compete with the private sector for certain government printing jobs, with
the exception of election paraphernalia which remains the exclusive
responsibility of the NPO, together with the Bangko Sentral ng Pilipinas, as the
Commission on Elections may determine. At most, there was a mere alteration
of the main function of the NPO by limiting the exclusivity of its printing
responsibility to election forms.15
There is a view that the reorganization actions that the President may take with
respect to agencies in the Office of the President are strictly limited to transfer
of functions and offices as seemingly provided in Section 31 of the
Administrative Code of 1987.
However, Section 20, Chapter 7, Title I, Book III of the same Code significantly
provides:
Sec. 20. Residual Powers. Unless Congress provides otherwise, the
President shall exercise such other powers and functions vested in the
President which are provided for under the laws and which are not specifically
enumerated above, or which are not delegated by the President in accordance
with law. (Emphasis ours.)
Pursuant to Section 20, the power of the President to reorganize the Executive
Branch under Section 31 includes such powers and functions that may be
provided for under other laws. To be sure, an inclusive and broad interpretation
of the Presidents power to reorganize executive offices has been consistently
supported by specific provisions in general appropriations laws.
In the oft-cited Larin v. Executive Secretary,16 the Court likewise adverted to
certain provisions of Republic Act No. 7645, the general appropriations law for
1993, as among the statutory bases for the Presidents power to reorganize
executive agencies, to wit:
Section 48 of R.A. 7645 provides that:
"Sec. 48. Scaling Down and Phase Out of Activities of Agencies Within the
Executive Branch. The heads of departments, bureaus and offices and
agencies are hereby directed to identify their respective activities which are no
longer essential in the delivery of public services and which may be scaled
down, phased out or abolished, subject to civil [service] rules and regulations.
x x x. Actual scaling down, phasing out or abolition of the activities shall be
effected pursuant to Circulars or Orders issued for the purpose by the Office
of the President."
Said provision clearly mentions the acts of "scaling down, phasing out and
abolition" of offices only and does not cover the creation of offices or transfer
of functions. Nevertheless, the act of creating and decentralizing is included in
the subsequent provision of Section 62, which provides that:
"Sec. 62. Unauthorized organizational changes. Unless otherwise created
by law or directed by the President of the Philippines, no organizational unit or
changes in key positions in any department or agency shall be authorized in
their respective organization structures and be funded from appropriations by
this Act."
The foregoing provision evidently shows that the President is authorized to
effect organizational changes including the creation of offices in the
department or agency concerned.
The contention of petitioner that the two provisions are riders deserves scant
consideration. Well settled is the rule that every law has in its favor the
presumption of constitutionality. Unless and until a specific provision of the law
is declared invalid and unconstitutional, the same is valid and binding for all
intents and purposes.17 (Emphases ours)
Buklod ng Kawaning EIIB v. Zamora,18 where the Court upheld as valid then
President Joseph Estradas Executive Order No. 191 "deactivating" the
Economic Intelligence and Investigation Bureau (EIIB) of the Department of
Finance, hewed closely to the reasoning in Larin. The Court, among others,
also traced from the General Appropriations Act19 the Presidents authority to
effect organizational changes in the department or agency under the executive
structure, thus:
We adhere to the precedent or ruling in Larin that this provision recognizes the
authority of the President to effect organizational changes in the department
or agency under the executive structure. Such a ruling further finds support in
Section 78 of Republic Act No. 8760. Under this law, the heads of
departments, bureaus, offices and agencies and other entities in the Executive
Branch are directed (a) to conduct a comprehensive review of their respective
mandates, missions, objectives, functions, programs, projects, activities and
systems and procedures; (b) identify activities which are no longer essential in
the delivery of public services and which may be scaled down, phased-out or
abolished; and (c) adopt measures that will result in the streamlined
organization and improved overall performance of their respective agencies.
Section 78 ends up with the mandate that the actual streamlining and
productivity improvement in agency organization and operation shall be
effected pursuant to Circulars or Orders issued for the purpose by the Office
of the President. x x x.20 (Emphasis ours)
Notably, in the present case, the 2003 General Appropriations Act, which was
reenacted in 2004 (the year of the issuance of Executive Order No. 378),
likewise gave the President the authority to effect a wide variety of
organizational changes in any department or agency in the Executive Branch.
Sections 77 and 78 of said Act provides:
Section 77. Organized Changes. Unless otherwise provided by law or
directed by the President of the Philippines, no changes in key positions or
organizational units in any department or agency shall be authorized in their
respective organizational structures and funded from appropriations provided
by this Act.
Section 78. Institutional Strengthening and Productivity Improvement in
Agency Organization and Operations and Implementation of
Organization/Reorganization Mandated by Law. The Government shall adopt
institutional strengthening and productivity improvement measures to improve
service delivery and enhance productivity in the government, as directed by
the President of the Philippines. The heads of departments, bureaus, offices,
agencies, and other entities of the Executive Branch shall accordingly conduct
a comprehensive review of their respective mandates, missions, objectives,
functions, programs, projects, activities and systems and procedures; identify
areas where improvements are necessary; and implement corresponding
structural, functional and operational adjustments that will result in streamlined
organization and operations and improved performance and productivity:
PROVIDED, That actual streamlining and productivity improvements in
agency organization and operations, as authorized by the President of the
Philippines for the purpose, including the utilization of savings generated from
such activities, shall be in accordance with the rules and regulations to be
issued by the DBM, upon consultation with the Presidential Committee on
Effective Governance: PROVIDED, FURTHER, That in the implementation of
organizations/reorganizations, or specific changes in agency structure,
functions and operations as a result of institutional strengthening or as
mandated by law, the appropriation, including the functions, projects, purposes
and activities of agencies concerned may be realigned as may be necessary:
PROVIDED, FINALLY, That any unexpended balances or savings in
appropriations may be made available for payment of retirement gratuities and
separation benefits to affected personnel, as authorized under existing laws.
(Emphases and underscoring ours.)
Implicitly, the aforequoted provisions in the appropriations law recognize the
power of the President to reorganize even executive offices already funded by
the said appropriations act, including the power to implement structural,
functional, and operational adjustments in the executive bureaucracy and, in
so doing, modify or realign appropriations of funds as may be necessary under
such reorganization. Thus, insofar as petitioners protest the limitation of the
NPOs appropriations to its own income under Executive Order No. 378, the
same is statutorily authorized by the above provisions.
In the 2003 case of Bagaoisan v. National Tobacco Administration,21 we
upheld the "streamlining" of the National Tobacco Administration through a
reduction of its personnel and deemed the same as included in the power of
the President to reorganize executive offices granted under the laws,
notwithstanding that such streamlining neither involved an abolition nor a
transfer of functions of an office. To quote the relevant portion of that decision:
In the recent case of Rosa Ligaya C. Domingo, et al. vs. Hon. Ronaldo D.
Zamora, in his capacity as the Executive Secretary, et al., this Court has had
occasion to also delve on the Presidents power to reorganize the Office of the
President under Section 31(2) and (3) of Executive Order No. 292 and the
power to reorganize the Office of the President Proper. x x x
xxxx
The first sentence of the law is an express grant to the President of a
continuing authority to reorganize the administrative structure of the Office of
the President. The succeeding numbered paragraphs are not in the nature of
provisos that unduly limit the aim and scope of the grant to the President of
the power to reorganize but are to be viewed in consonance therewith. Section
31(1) of Executive Order No. 292 specifically refers to the Presidents power
to restructure the internal organization of the Office of the President Proper,
by abolishing, consolidating or merging units hereof or transferring functions
from one unit to another, while Section 31(2) and (3) concern executive offices
outside the Office of the President Proper allowing the President to transfer
any function under the Office of the President to any other Department or
Agency and vice-versa, and the transfer of any agency under the Office of the
President to any other department or agency and vice-versa.
In the present instance, involving neither an abolition nor transfer of offices,
the assailed action is a mere reorganization under the general provisions of
the law consisting mainly of streamlining the NTA in the interest of simplicity,
economy and efficiency. It is an act well within the authority of the President
motivated and carried out, according to the findings of the appellate court, in
good faith, a factual assessment that this Court could only but accept.22
(Emphases and underscoring supplied.)
In the more recent case of Tondo Medical Center Employees Association v.
Court of Appeals,23 which involved a structural and functional reorganization
of the Department of Health under an executive order, we reiterated the
principle that the power of the President to reorganize agencies under the
executive department by executive or administrative order is constitutionally
and statutorily recognized. We held in that case:
This Court has already ruled in a number of cases that the President may, by
executive or administrative order, direct the reorganization of government
entities under the Executive Department. This is also sanctioned under the
Constitution, as well as other statutes.
Section 17, Article VII of the 1987 Constitution, clearly states: "[T]he president
shall have control of all executive departments, bureaus and offices." Section
31, Book III, Chapter 10 of Executive Order No. 292, also known as the
Administrative Code of 1987 reads:
SEC. 31. Continuing Authority of the President to Reorganize his Office - The
President, subject to the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have continuing authority to
reorganize the administrative structure of the Office of the President. For this
purpose, he may take any of the following actions:
xxxx
In Domingo v. Zamora [445 Phil. 7 (2003)], this Court explained the rationale
behind the Presidents continuing authority under the Administrative Code to
reorganize the administrative structure of the Office of the President. The law
grants the President the power to reorganize the Office of the President in
recognition of the recurring need of every President to reorganize his or her
office "to achieve simplicity, economy and efficiency." To remain effective and
efficient, it must be capable of being shaped and reshaped by the President in
the manner the Chief Executive deems fit to carry out presidential directives
and policies.
The Administrative Code provides that the Office of the President consists of
the Office of the President Proper and the agencies under it. The agencies
under the Office of the President are identified in Section 23, Chapter 8, Title
II of the Administrative Code:
Sec. 23. The Agencies under the Office of the President.The agencies under
the Office of the President refer to those offices placed under the chairmanship
of the President, those under the supervision and control of the President,
those under the administrative supervision of the Office of the President, those
attached to it for policy and program coordination, and those that are not
placed by law or order creating them under any specific department.
xxxx
The power of the President to reorganize the executive department is likewise
recognized in general appropriations laws. x x x.
xxxx
Clearly, Executive Order No. 102 is well within the constitutional power of the
President to issue. The President did not usurp any legislative prerogative in
issuing Executive Order No. 102. It is an exercise of the Presidents
constitutional power of control over the executive department, supported by
the provisions of the Administrative Code, recognized by other statutes, and
consistently affirmed by this Court.24 (Emphases supplied.)
Subsequently, we ruled in Anak Mindanao Party-List Group v. Executive
Secretary25 that:
The Constitutions express grant of the power of control in the President
justifies an executive action to carry out reorganization measures under a
broad authority of law.
In enacting a statute, the legislature is presumed to have deliberated with full
knowledge of all existing laws and jurisprudence on the subject. It is thus
reasonable to conclude that in passing a statute which places an agency under
the Office of the President, it was in accordance with existing laws and
jurisprudence on the Presidents power to reorganize.
In establishing an executive department, bureau or office, the legislature
necessarily ordains an executive agencys position in the scheme of
administrative structure. Such determination is primary, but subject to the
Presidents continuing authority to reorganize the administrative structure. As
far as bureaus, agencies or offices in the executive department are concerned,
the power of control may justify the President to deactivate the functions of a
particular office. Or a law may expressly grant the President the broad
authority to carry out reorganization measures. The Administrative Code of
1987 is one such law.26
The issuance of Executive Order No. 378 by President Arroyo is an exercise
of a delegated legislative power granted by the aforementioned Section 31,
Chapter 10, Title III, Book III of the Administrative Code of 1987, which
provides for the continuing authority of the President to reorganize the Office
of the President, "in order to achieve simplicity, economy and efficiency." This
is a matter already well-entrenched in jurisprudence. The reorganization of
such an office through executive or administrative order is also recognized in
the Administrative Code of 1987. Sections 2 and 3, Chapter 2, Title I, Book III
of the said Code provide:
Sec. 2. Executive Orders. - Acts of the President providing for rules of a
general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. - Acts of the President which relate to particular
aspects of governmental operations in pursuance of his duties as
administrative head shall be promulgated in administrative orders. (Emphases
supplied.)
To reiterate, we find nothing objectionable in the provision in Executive Order
No. 378 limiting the appropriation of the NPO to its own income. Beginning
with Larin and in subsequent cases, the Court has noted certain provisions in
the general appropriations laws as likewise reflecting the power of the
President to reorganize executive offices or agencies even to the extent of
modifying and realigning appropriations for that purpose.
Petitioners contention that the issuance of Executive Order No. 378 is an
invalid exercise of legislative power on the part of the President has no legal
leg to stand on.
In all, Executive Order No. 378, which purports to institute necessary reforms
in government in order to improve and upgrade efficiency in the delivery of
public services by redefining the functions of the NPO and limiting its funding
to its own income and to transform it into a self-reliant agency able to compete
with the private sector, is well within the prerogative of President Arroyo under
her continuing delegated legislative power to reorganize her own office. As
pointed out in the separate concurring opinion of our learned colleague,
Associate Justice Antonio T. Carpio, the objective behind Executive Order No.
378 is wholly consistent with the state policy contained in Republic Act No.
9184 or the Government Procurement Reform Act to encourage
competitiveness by extending equal opportunity to private contracting parties
who are eligible and qualified.271avvphi1
To be very clear, this delegated legislative power to reorganize pertains only
to the Office of the President and the departments, offices and agencies of the
executive branch and does not include the Judiciary, the Legislature or the
constitutionally-created or mandated bodies. Moreover, it must be stressed
that the exercise by the President of the power to reorganize the executive
department must be in accordance with the Constitution, relevant laws and
prevailing jurisprudence.
In this regard, we are mindful of the previous pronouncement of this Court in
Dario v. Mison28 that:
Reorganizations in this jurisdiction have been regarded as valid provided they
are pursued in good faith. As a general rule, a reorganization is carried out in
"good faith" if it is for the purpose of economy or to make bureaucracy more
efficient. In that event, no dismissal (in case of a dismissal) or separation
actually occurs because the position itself ceases to exist. And in that case,
security of tenure would not be a Chinese wall. Be that as it may, if the
"abolition," which is nothing else but a separation or removal, is done for
political reasons or purposely to defeat security of tenure, or otherwise not in
good faith, no valid "abolition" takes place and whatever "abolition" is done, is
void ab initio. There is an invalid "abolition" as where there is merely a change
of nomenclature of positions, or where claims of economy are belied by the
existence of ample funds. (Emphasis ours.)
Stated alternatively, the presidential power to reorganize agencies and offices
in the executive branch of government is subject to the condition that such
reorganization is carried out in good faith.
If the reorganization is done in good faith, the abolition of positions, which
results in loss of security of tenure of affected government employees, would
be valid. In Buklod ng Kawaning EIIB v. Zamora,29 we even observed that
there was no such thing as an absolute right to hold office. Except those who
hold constitutional offices, which provide for special immunity as regards
salary and tenure, no one can be said to have any vested right to an office or
salary.30
This brings us to the second ground raised in the petition that Executive
Order No. 378, in allowing government agencies to secure their printing
requirements from the private sector and in limiting the budget of the NPO to
its income, will purportedly lead to the gradual abolition of the NPO and the
loss of security of tenure of its present employees. In other words, petitioners
avow that the reorganization of the NPO under Executive Order No. 378 is
tainted with bad faith. The basic evidentiary rule is that he who asserts a fact
or the affirmative of an issue has the burden of proving it.31
A careful review of the records will show that petitioners utterly failed to
substantiate their claim. They failed to allege, much less prove, sufficient facts
to show that the limitation of the NPOs budget to its own income would indeed
lead to the abolition of the position, or removal from office, of any employee.
Neither did petitioners present any shred of proof of their assertion that the
changes in the functions of the NPO were for political considerations that had
nothing to do with improving the efficiency of, or encouraging operational
economy in, the said agency.
In sum, the Court finds that the petition failed to show any constitutional
infirmity or grave abuse of discretion amounting to lack or excess of jurisdiction
in President Arroyos issuance of Executive Order No. 378.
WHEREFORE, the petition is hereby DISMISSED and the prayer for a
Temporary Restraining Order and/or a Writ of Preliminary Injunction is hereby
DENIED. No costs.
SO ORDERED.
G.R. No. 196425 July 24, 2012
PROSPERO A. PICHAY, JR., Petitioner,
vs.
OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR LEGAL
AFFAIRS INVESTIGATIVE AND ADJUDICATORY DIVISION, HON.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary, and
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, and
as an ex-officio member of the Monetary Board, Respondents.
DECISION
PERLAS-BERNABE, J.:
The Case
This is a Petition for Certiorari and Prohibition with a prayer for the issuance of
a temporary restraining order, seeking to declare as unconstitutional Executive
Order No. 13, entitled, "Abolishing the Presidential Anti-Graft Commission and
Transferring Its Investigative, Adjudicatory and Recommendatory Functions to
the Office Of The Deputy Executive Secretary For Legal Affairs, Office of the
President",1 and to permanently prohibit respondents from administratively
proceeding against petitioner on the strength of the assailed executive order.
The Facts
On April 16, 2001, then President Gloria Macapagal-Arroyo issued Executive
Order No. 12 (E.O. 12) creating the Presidential Anti-Graft Commission
(PAGC) and vesting it with the power to investigate or hear administrative
cases or complaints for possible graft and corruption, among others, against
presidential appointees and to submit its report and recommendations to the
President. Pertinent portions of E.O. 12 provide:
Section 4. Jurisdiction, Powers and Functions.
(a) x x x xxx xxx
(b) The Commission, acting as a collegial body, shall have the authority to
investigate or hear administrative cases or complaints against all presidential
appointees in the government and any of its agencies or instrumentalities xxx
xxx xxx xxx
xxx xxx xxx
Section 8. Submission of Report and Recommendations. After completing
its investigation or hearing, the Commission en banc shall submit its report and
recommendations to the President. The report and recommendations shall
state, among others, the factual findings and legal conclusions, as well as the
penalty recommend (sic) to be imposed or such other action that may be
taken."
On November 15, 2010, President Benigno Simeon Aquino III issued
Executive Order No. 13 (E.O. 13), abolishing the PAGC and transferring its
functions to the Office of the Deputy Executive Secretary for Legal Affairs
(ODESLA), more particularly to its newly-established Investigative and
Adjudicatory Division (IAD). The full text of the assailed executive order reads:
EXECUTIVE ORDER NO. 13
ABOLISHING THE PRESIDENTIAL ANTI-GRAFT COMMISSION AND
TRANSFERRING ITS INVESTIGATIVE, ADJUDICATORY AND
RECOMMENDATORY FUNCTIONS TO THE OFFICE OF THE DEPUTY
EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, OFFICE OF THE
PRESIDENT
WHEREAS, this administration has a continuing mandate and advocacy to
fight and eradicate corruption in the different departments, bureaus, offices
and other government agencies and instrumentalities;
WHEREAS, the government adopted a policy of streamlining the government
bureaucracy to promote economy and efficiency in government;
WHEREAS, Section VII of the 1987 Philippine Constitution provides that the
President shall have control of all the executive departments, bureaus and
offices;
WHEREAS, Section 31 Chapter 10, Title III, Book III of Executive Order 292
(Administrative Code of 1987) provides for the continuing authority of the
President to reorganize the administrative structure of the Office of the
President;
WHEREAS, Presidential Decree (PD) No. 1416 (Granting Continuing Authority
to the President of the Philippines to Reorganize the National Government),
as amended by PD 1722, provides that the President of the Philippines shall
have continuing authority to reorganize the administrative structure of the
National Government and may, at his discretion, create, abolish, group,
consolidate, merge or integrate entities, agencies, instrumentalities and units
of the National Government, as well as, expand, amend, change or otherwise
modify their powers, functions and authorities;
WHEREAS, Section 78 of the General Provisions of Republic Act No. 9970
(General Appropriations Act of 2010) authorizes the President of the
Philippines to direct changes in the organizational units or key positions in any
department or agency;
NOW, THEREFORE, I, BENIGNO S. AQUINO III, President of the Philippines,
by virtue of the powers vested in me by law, do hereby order the following:
SECTION 1. Declaration of Policy. It is the policy of the government to fight
and eradicate graft and corruption in the different departments, bureaus,
offices and other government agencies and instrumentalities.
The government adopted a policy of streamlining the government bureaucracy
to promote economy and efficiency in the government.
SECTION 2. Abolition of Presidential Anti-Graft Commission (PAGC). To
enable the Office of the President (OP) to directly investigate graft and corrupt
cases of Presidential appointees in the Executive Department including heads
of government-owned and controlled corporations, the
Presidential Anti-Graft Commission (PAGC) is hereby abolished and their vital
functions and other powers and functions inherent or incidental thereto,
transferred to the Office of the Deputy Executive Secretary for Legal Affairs
(ODESLA), OP in accordance with the provisions of this Executive Order.
SECTION 3. Restructuring of the Office of the Deputy Executive Secretary for
Legal Affairs, OP. In addition to the Legal and Legislative Divisions of the
ODESLA, the Investigative and Adjudicatory Division shall be created.

The newly created Investigative and Adjudicatory Division shall perform
powers, functions and duties mentioned in Section 2 hereof, of PAGC.
The Deputy Executive Secretary for Legal Affairs (DESLA) will be the
recommending authority to the President, thru the Executive Secretary, for
approval, adoption or modification of the report and recommendations of the
Investigative and Adjudicatory Division of ODESLA.
SECTION 4. Personnel Who May Be Affected By the Abolition of PAGC. The
personnel who may be affected by the abolition of the PAGC shall be allowed
to avail of the benefits provided under existing laws if applicable. The
Department of Budget and Management (DBM) is hereby ordered to release
the necessary funds for the benefits of the employees.
SECTION 5. Winding Up of the Operation and Disposition of the Functions,
Positions, Personnel, Assets and Liabilities of PAGC. The winding up of the
operations of PAGC including the final disposition or transfer of their functions,
positions, personnel, assets and liabilities as may be necessary, shall be in
accordance with the applicable provision(s) of the Rules and Regulations
Implementing EO 72 (Rationalizing the Agencies Under or Attached to the
Office of the President) dated March 15, 2002. The winding up shall be
implemented not later than 31 December 2010.
The Office of the Executive Secretary, with the assistance of the Department
of Budget and Management, shall ensure the smooth and efficient
implementation of the dispositive actions and winding-up of the activities of
PAGC.
SECTION 6. Repealing Clause. All executive orders, rules, regulations and
other issuances or parts thereof, which are inconsistent with the provisions of
this Executive Order, are hereby revoked or modified accordingly.
SECTION 7. Effectivity. This Executive Order shall take effect immediately
after its publication in a newspaper of general circulation.
On April 6, 2011, respondent Finance Secretary Cesar V. Purisima filed before
the IAD-ODESLA a complaint affidavit2 for grave misconduct against
petitioner Prospero A. Pichay, Jr., Chairman of the Board of Trustees of the
Local Water Utilities Administration (LWUA), as well as the incumbent
members of the LWUA Board of Trustees, namely, Renato Velasco, Susana
Dumlao Vargas, Bonifacio Mario M. Pena, Sr. and Daniel Landingin, which
arose from the purchase by the LWUA of Four Hundred Forty-Five Thousand
Three Hundred Seventy Seven (445,377) shares of stock of Express Savings
Bank, Inc.
On April 14, 2011, petitioner received an Order3 signed by Executive
Secretary Paquito N. Ochoa, Jr. requiring him and his co-respondents to
submit their respective written explanations under oath. In compliance
therewith, petitioner filed a Motion to Dismiss Ex Abundante Ad Cautelam
manifesting that a case involving the same transaction and charge of grave
misconduct entitled, "Rustico B. Tutol, et al. v. Prospero Pichay, et al.", and
docketed as OMB-C-A-10-0426-I, is already pending before the Office of the
Ombudsman.
Now alleging that no other plain, speedy and adequate remedy is available to
him in the ordinary course of law, petitioner has resorted to the instant petition
for certiorari and prohibition upon the following grounds:
I. E.O. 13 IS UNCONSTITUTIONAL FOR USURPING THE POWER OF THE
LEGISLATURE TO CREATE A PUBLIC OFFICE.
II. E.O. 13 IS UNCONSTITUTIONAL FOR USURPING THE POWER OF THE
LEGISLATURE TO APPROPRIATE FUNDS.
III. E.O. 13 IS UNCONSTITUTIONAL FOR USURPING THE POWER OF
CONGRESS TO DELEGATE QUASI-JUDICIAL POWERS TO
ADMINISTRATIVE AGENCIES.
IV. E.O. 13 IS UNCONSTITUTIONAL FOR ENCROACHING UPON THE
POWERS OF THE OMBUDSMAN.
V. E.O. 13 IS UNCONSTITUTIONAL FOR VIOLATING THE GUARANTEE OF
DUE PROCESS.
VI. E.O. 13 IS UNCONSTITUTIONAL FOR VIOLATING THE EQUAL
PROTECTION CLAUSE.
Our Ruling
In assailing the constitutionality of E.O. 13, petitioner asseverates that the
President is not authorized under any existing law to create the Investigative
and Adjudicatory Division, Office of the Deputy Executive Secretary for Legal
Affairs (IAD-ODESLA) and that by creating a new, additional and distinct office
tasked with quasi-judicial functions, the President has not only usurped the
powers of congress to create a public office, appropriate funds and delegate
quasi-judicial functions to administrative agencies but has also encroached
upon the powers of the Ombudsman. Petitioner avers that the
unconstitutionality of E.O. 13 is also evident when weighed against the due
process requirement and equal protection clause under the 1987 Constitution.
The contentions are unavailing.

The President has Continuing Authority to Reorganize the Executive
Department under E.O. 292.
Section 31 of Executive Order No. 292 (E.O. 292), otherwise known as the
Administrative Code of 1987, vests in the President the continuing authority to
reorganize the offices under him in order to achieve simplicity, economy and
efficiency. E.O. 292 sanctions the following actions undertaken for such
purpose:
(1)Restructure the internal organization of the Office of the President Proper,
including the immediate Offices, the Presidential Special Assistants/Advisers
System and the Common Staff Support System, by abolishing, consolidating,
or merging units thereof or transferring functions from one unit to another;
(2)Transfer any function under the Office of the President to any other
Department or Agency as well as transfer functions to the Office of the
President from other Departments and Agencies; and
(3)Transfer any agency under the Office of the President to any other
Department or Agency as well as transfer agencies to the Office of the
President from other departments or agencies.4
In the case of Buklod ng Kawaning EIIB v. Zamora5 the Court affirmed that
the President's authority to carry out a reorganization in any branch or agency
of the executive department is an express grant by the legislature by virtue of
E.O. 292, thus:
But of course, the list of legal basis authorizing the President to reorganize any
department or agency in the executive branch does not have to end here. We
must not lose sight of the very source of the power that which constitutes an
express grant of power. Under Section 31, Book III of Executive Order No. 292
(otherwise known as the Administrative Code of 1987), "the President, subject
to the policy of the Executive Office and in order to achieve simplicity, economy
and efficiency, shall have the continuing authority to reorganize the
administrative structure of the Office of the President." For this purpose, he
may transfer the functions of other Departments or Agencies to the Office of
the President. (Emphasis supplied)
And in Domingo v. Zamora,6 the Court gave the rationale behind the
President's continuing authority in this wise:
The law grants the President this power in recognition of the recurring need of
every President to reorganize his office "to achieve simplicity, economy and
efficiency." The Office of the President is the nerve center of the Executive
Branch. To remain effective and efficient, the Office of the President must be
capable of being shaped and reshaped by the President in the manner he
deems fit to carry out his directives and policies. After all, the Office of the
President is the command post of the President. (Emphasis supplied)
Clearly, the abolition of the PAGC and the transfer of its functions to a division
specially created within the ODESLA is properly within the prerogative of the
President under his continuing "delegated legislative authority to reorganize"
his own office pursuant to E.O. 292.
Generally, this authority to implement organizational changes is limited to
transferring either an office or a function from the Office of the President to
another Department or Agency, and the other way around.7
Only Section 31(1) gives the President a virtual freehand in dealing with the
internal structure of the Office of the President Proper by allowing him to take
actions as extreme as abolition, consolidation or merger of units, apart from
the less drastic move of transferring functions and offices from one unit to
another. Again, in Domingo v. Zamora8 the Court noted:
However, the President's power to reorganize the Office of the President under
Section 31 (2) and (3) of EO 292 should be distinguished from his power to
reorganize the Office of the President Proper. Under Section 31 (1) of EO 292,
the President can reorganize the Office of the President Proper by abolishing,
consolidating or merging units, or by transferring functions from one unit to
another. In contrast, under Section 31 (2) and (3) of EO 292, the President's
power to reorganize offices outside the Office of the President Proper but still
within the Office of the
President is limited to merely transferring functions or agencies from the Office
of the President to Departments or Agencies, and vice versa.
The distinction between the allowable organizational actions under Section
31(1) on the one hand and Section 31 (2) and (3) on the other is crucial not
only as it affects employees' tenurial security but also insofar as it touches
upon the validity of the reorganization, that is, whether the executive actions
undertaken fall within the limitations prescribed under E.O. 292. When the
PAGC was created under E.O. 12, it was composed of a Chairman and two
(2) Commissioners who held the ranks of Presidential Assistant II and I,
respectively,9 and was placed directly "under the Office of the President."10
On the other hand, the ODESLA, to which the functions of the PAGC have
now been transferred, is an office within the Office of the President Proper.11
Since both of these offices belong to the Office of the President Proper, the
reorganization by way of abolishing the PAGC and transferring its functions to
the ODESLA is allowable under Section 31 (1) of E.O. 292.
Petitioner, however, goes on to assert that the President went beyond the
authority granted by E.O. 292 for him to reorganize the executive department
since his issuance of E.O. 13 did not merely involve the abolition of an office
but the creation of one as well. He argues that nowhere in the legal definition
laid down by the Court in several cases does a reorganization include the act
of creating an office.
The contention is misplaced.
The Reorganization Did not Entail the Creation of a New, Separate and Distinct
Office.
The abolition of the PAGC did not require the creation of a new, additional and
distinct office as the duties and functions that pertained to the defunct anti-
graft body were simply transferred to the ODESLA, which is an existing office
within the Office of the President Proper. The reorganization required no more
than a mere alteration of the administrative structure of the ODESLA through
the establishment of a third division the Investigative and Adjudicatory
Division through which ODESLA could take on the additional functions it has
been tasked to discharge under E.O. 13. In Canonizado v. Aguirre,12 We ruled
that
Reorganization takes place when there is an alteration of the existing structure
of government offices or units therein, including the lines of control, authority
and responsibility between them. It involves a reduction of personnel,
consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions.
The Reorganization was Pursued in Good Faith.
A valid reorganization must not only be exercised through legitimate authority
but must also be pursued in good faith. A reorganization is said to be carried
out in good faith if it is done for purposes of economy and efficiency.13 It
appears in this case that the streamlining of functions within the Office of the
President Proper was pursued with such purposes in mind.
In its Whereas clauses, E.O. 13 cites as bases for the reorganization the policy
dictates of eradicating corruption in the government and promoting economy
and efficiency in the bureaucracy. Indeed, the economical effects of the
reorganization is shown by the fact that while Congress had initially
appropriated P22 Million for the PAGC's operation in the 2010 annual
budget,14 no separate or added funding of such a considerable amount was
ever required after the transfer of the PAGC functions to the IAD-ODESLA.
Apparently, the budgetary requirements that the IAD-ODESLA needed to
discharge its functions and maintain its personnel would be sourced from the
following year's appropriation for the President's Offices under the General
Appropriations Act of 2011.15 Petitioner asseverates, however, that since
Congress did not indicate the manner by which the appropriation for the Office
of the President was to be distributed, taking therefrom the operational funds
of the IAD-ODESLA would amount to an illegal appropriation by the President.
The contention is without legal basis.
There is no usurpation of the legislative power to appropriate public funds.
In the chief executive dwell the powers to run government. Placed upon him is
the power to recommend the budget necessary for the operation of the
Government,16 which implies that he has the necessary authority to evaluate
and determine the structure that each government agency in the executive
department would need to operate in the most economical and efficient
manner.17 Hence, the express recognition under Section 78 of R.A. 9970 or
the General Appropriations Act of 2010 of the Presidents authority to "direct
changes in the organizational units or key positions in any department or
agency." The aforecited provision, often and consistently included in the
general appropriations laws, recognizes the extent of the Presidents power to
reorganize the executive offices and agencies under him, which is, "even to
the extent of modifying and realigning appropriations for that purpose."18
And to further enable the President to run the affairs of the executive
department, he is likewise given constitutional authority to augment any item
in the General Appropriations Law using the savings in other items of the
appropriation for his office.19 In fact, he is explicitly allowed by law to transfer
any fund appropriated for the different departments, bureaus, offices and
agencies of the Executive Department which is included in the General
Appropriations Act, to any program, project or activity of any department,
bureau or office included in the General Appropriations Act or approved after
its enactment.20
Thus, while there may be no specific amount earmarked for the IAD-ODESLA
from the total amount appropriated by Congress in the annual budget for the
Office of the President, the necessary funds for the IAD-ODESLA may be
properly sourced from the President's own office budget without committing
any illegal appropriation. After all, there is no usurpation of the legislature's
power to appropriate funds when the President simply allocates the existing
funds previously appropriated by Congress for his office.
The IAD-ODESLA is a fact-finding and recommendatory body not vested with
quasi-judicial powers.
Petitioner next avers that the IAD-ODESLA was illegally vested with judicial
power which is reserved to the Judicial Department and, by way of exception
through an express grant by the legislature, to administrative agencies. He
points out that the name Investigative and Adjudicatory Division is proof itself
that the IAD-ODESLA wields quasi-judicial power.
The argument is tenuous. As the OSG aptly explained in its Comment,21 while
the term "adjudicatory" appears part of its appellation, the IAD-ODESLA
cannot try and resolve cases, its authority being limited to the conduct of
investigations, preparation of reports and submission of recommendations.
E.O. 13 explicitly states that the IAD-ODESLA shall "perform powers, functions
and duties xxx, of PAGC."22
Under E.O. 12, the PAGC was given the authority to "investigate or hear
administrative cases or complaints against all presidential appointees in the
government"23 and to "submit its report and recommendations to the
President."24 The IAD-ODESLA is a fact-finding and recommendatory body to
the President, not having the power to settle controversies and adjudicate
cases. As the Court ruled in Cario v. Commission on Human Rights,25 and
later reiterated in Biraogo v. The Philippine Truth Commission:26
Fact-finding is not adjudication and it cannot be likened to the judicial function
of a court of justice, or even a quasi-judicial agency or office. The function of
receiving evidence and ascertaining therefrom the facts of a controversy is not
a judicial function. To be considered as such, the act of receiving evidence and
arriving at factual conclusions in a controversy must be accompanied by the
authority of applying the law to the factual conclusions to the end that the
controversy may be decided or determined authoritatively, finally and
definitively, subject to such appeals or modes of review as may be provided
by law.
The President's authority to issue E.O. 13 and constitute the IAD-ODESLA as
his fact-finding investigator cannot be doubted. After all, as Chief Executive,
he is granted full control over the Executive Department to ensure the
enforcement of the laws. Section 17, Article VII of the Constitution provides:
Section 17. The President shall have control of all the executive departments,
bureaus and offices. He shall ensure that the laws be faithfully executed.
The obligation to see to it that laws are faithfully executed necessitates the
corresponding power in the President to conduct investigations into the
conduct of officials and employees in the executive department.27
The IAD-ODESLA does not encroach upon the powers and duties of the
Ombudsman.
Contrary to petitioner's contention, the IAD-ODESLA did not encroach upon
the Ombudsman's primary jurisdiction when it took cognizance of the
complaint affidavit filed against him notwithstanding the earlier filing of criminal
and administrative cases involving the same charges and allegations before
the Office of the Ombudsman. The primary jurisdiction of the Ombudsman to
investigate and prosecute cases refers to criminal cases cognizable by the
Sandiganbayan and not to administrative cases. It is only in the exercise of its
primary jurisdiction that the Ombudsman may, at any time, take over the
investigation being conducted by another investigatory agency. Section 15 (1)
of R.A. No. 6770 or the Ombudsman Act of 1989, empowers the Ombudsman
to
(1)Investigate and prosecute on its own or on complaint by any person, any
act or omission of any public officer or employee, office or agency, when such
act or omission appears to be illegal, unjust, improper or inefficient. It has
primary jurisdiction over cases cognizable by the Sandiganbayan and, in the
exercise of its primary jurisdiction, it may take over, at any stage, from any
investigatory agency of government, the investigation of such cases.
(Emphasis supplied)
Since the case filed before the IAD-ODESLA is an administrative disciplinary
case for grave misconduct, petitioner may not invoke the primary jurisdiction
of the Ombudsman to prevent the IAD-ODESLA from proceeding with its
investigation. In any event, the Ombudsman's authority to investigate both
elective and appointive officials in the government, extensive as it may be, is
by no means exclusive. It is shared with other similarly authorized government
agencies.28
While the Ombudsman's function goes into the determination of the existence
of probable cause and the adjudication of the merits of a criminal accusation,
the investigative authority of the IAD- ODESLA is limited to that of a fact-finding
investigator whose determinations and recommendations remain so until
acted upon by the President. As such, it commits no usurpation of the
Ombudsman's constitutional duties.
Executive Order No. 13 Does Not Violate Petitioner's Right to Due Process
and the Equal Protection of the Laws.
Petitioner goes on to assail E.O. 13 as violative of the equal protection clause
pointing to the arbitrariness of limiting the IAD-ODESLA's investigation only to
presidential appointees occupying upper-level positions in the government.
The equal protection of the laws is a guaranty against any form of undue
favoritism or hostility from the government.29 It is embraced under the due
process concept and simply requires that, in the application of the law, "all
persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed."30 The equal protection clause,
however, is not absolute but subject to reasonable classification so that
aggrupations bearing substantial distinctions may be treated differently from
each other. This we ruled in Farinas v. Executive Secretary,31 wherein we
further stated that
The equal protection of the law clause is against undue favor and individual or
class privilege, as well as hostile discrimination or the oppression of inequality.
It is not intended to prohibit legislation which is limited either in the object to
which it is directed or by territory within which it is to operate. It does not
demand absolute equality among residents; it merely requires that all persons
shall be treated alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced. The equal protection clause is not
infringed by legislation which applies only to those persons falling within a
specified class, if it applies alike to all persons within such class, and
reasonable grounds exist for making a distinction between those who fall
within such class and those who do not. (Emphasis supplied)
Presidential appointees come under the direct disciplining authority of the
President. This proceeds from the well settled principle that, in the absence of
a contrary law, the power to remove or to discipline is lodged in the same
authority on which the power to appoint is vested.32 Having the power to
remove and/or discipline presidential appointees, the President has the
corollary authority to investigate such public officials and look into their conduct
in office.33 Petitioner is a presidential appointee occupying the high-level
position of Chairman of the LWUA. Necessarily, he comes under the
disciplinary jurisdiction of the President, who is well within his right to order an
investigation into matters that require his informed decision.
There are substantial distinctions that set apart presidential appointees
occupying upper-level positions in government from non-presidential
appointees and those that occupy the lower positions in government. In
Salumbides v. Office of the Ombudsman,34 we had ruled extensively on the
substantial distinctions that exist between elective and appointive public
officials, thus:
Substantial distinctions clearly exist between elective officials and appointive
officials. The former occupy their office by virtue of the mandate of the
electorate. They are elected to an office for a definite term and may be
removed therefrom only upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of their designation thereto by an
appointing authority. Some appointive officials hold their office in a permanent
capacity and are entitled to security of tenure while others serve at the
pleasure of the appointing authority.
xxxx
An election is the embodiment of the popular will, perhaps the purest
expression of the sovereign power of the people.1wphi1 It involves the choice
or selection of candidates to public office by popular vote. Considering that
elected officials are put in office by their constituents for a definite term, x x x
complete deference is accorded to the will of the electorate that they be served
by such officials until the end of the term for which they were elected. In
contrast, there is no such expectation insofar as appointed officials are
concerned. (Emphasis supplied)
Also, contrary to petitioner's assertions, his right to due process was not
violated when the IAD-ODESLA took cognizance of the administrative
complaint against him since he was given sufficient opportunity to oppose the
formal complaint filed by Secretary Purisima. In administrative proceedings,
the filing of charges and giving reasonable opportunity for the person so
charged to answer the accusations against him constitute the minimum
requirements of due process,35 which simply means having the opportunity to
explain ones side.36 Hence, as long as petitioner was given the opportunity
to explain his side and present evidence, the requirements of due process are
satisfactorily complied with because what the law abhors is an absolute lack
of opportunity to be heard.37 The records show that petitioner was issued an
Order requiring him to submit his written explanation under oath with respect
to the charge of grave misconduct filed against him. His own failure to submit
his explanation despite notice defeats his subsequent claim of denial of due
process.
Finally, petitioner doubts that the IAD-ODESLA can lawfully perform its duties
as an impartial tribunal, contending that both the IAD-ODESLA and
respondent Secretary Purisima are connected to the President. The mere
suspicion of partiality will not suffice to invalidate the actions of the IAD-
ODESLA. Mere allegation is not equivalent to proof. Bias and partiality
cannot be presumed.38 Petitioner must present substantial proof to show that
the lAD-ODES LA had unjustifiably sided against him in the conduct of the
investigation. No such evidence has been presented as to defeat the
presumption of regularity m the performance of the fact-finding investigator's
duties. The assertion, therefore, deserves scant consideration.
Every law has in its favor the presumption of constitutionality, and to justify its
nullification, there must be a clear and unequivocal breach of the Constitution,
not a doubtful and argumentative one.39 Petitioner has failed to discharge the
burden of proving the illegality of E.O. 13, which IS indubitably a valid exercise
of the President's continuing authority to reorganize the Office of the President.
WHEREFORE, premises considered, the petition IS hereby DISMISSED. SO
ORDERED.