G.R. No.
88211 September 15, 1989 The Petition
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M. ARANETA, IMEE
MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ and
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President, CONRADO F.
ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR
SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs,
Executive Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National Defense and
Chief of Staff, respectively, respondents.
CORTES, J.:
Before the Court is a contreversy of grave national importance. While ostensibly only legal issues are involved,
the Court's decision in this case would undeniably have a profound effect on the political, economic and other
aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-violent
"people power" revolution and forced into exile. In his stead, Corazon C. Aquino was declared President of the
Republic under a revolutionary government. Her ascension to and consilidation of power have not been
unchallenged. The failed Manila Hotel coup in 1986 led by political leaders of Mr. Marcos, the takeover of
television station Channel 7 by rebel troops led by Col. Canlas with the support of "Marcos loyalists" and the
unseccessful plot of the Marcos spouses to surreptitiously return from Hawii with mercenaries aboard an aircraft
chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987] awakened the nation to the capacity of
the Marcoses to stir trouble even from afar and to the fanaticism and blind loyalty of their followers in the country.
The ratification of the 1987 Constitution enshrined the victory of "people power" and also clearly reinforced the
constitutional moorings of Mrs. Aquino's presidency. This did not, however, stop bloody challenges to the
government. On August 28, 1987, Col. Gregorio Honasan, one of the major players in the February Revolution,
led a failed coup that left scores of people, both combatants and civilians, dead. There were several other armed
sorties of lesser significance, but the message they conveyed was the same — a split in the ranks of the military
establishment that thraetened civilian supremacy over military and brought to the fore the realization that civilian
government could be at the mercy of a fractious military.
But the armed threats to the Government were not only found in misguided elements and among rabid followers
of Mr. Marcos. There are also the communist insurgency and the seccessionist movement in Mindanao which
gained ground during the rule of Mr. Marcos, to the extent that the communists have set up a parallel
government of their own on the areas they effectively control while the separatist are virtually free to move about
in armed bands. There has been no let up on this groups' determination to wrest power from the govermnent.
Not only through resort to arms but also to through the use of propaganda have they been successful in dreating
chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder of the nation
attributed to Mr. Marcos and his cronies left the economy devastated. The efforts at economic recovery, three
years after Mrs. Aquino assumed office, have yet to show concrete results in alleviating the poverty of the
masses, while the recovery of the ill-gotten wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs. Aquino,
considering the dire consequences to the nation of his return at a time when the stability of government is
threatened from various directions and the economy is just beginning to rise and move forward, has stood firmly
on the decision to bar the return of Mr. Marcos and his family.
This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into exile
after causing twenty years of political, economic and social havoc in the country and who within the short space
of three years seeks to return, is in a class by itself.
This petition for mandamus and prohibition asks the Courts to order the respondents to issue travel documents
to Mr. Marcos and the immediate members of his family and to enjoin the implementation of the President's
decision to bar their return to the Philippines.
The Issue
Th issue is basically one of power: whether or not, in the exercise of the powers granted by the Constitution, the
President may prohibit the Marcoses from returning to the Philippines.
According to the petitioners, the resolution of the case would depend on the resolution of the following issues:
1. Does the President have the power to bar the return of former President Marcos and family
to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former President Marcos and his family
from returning to the Philippines, in the interest of "national security, public safety or public
health
a. Has the President made a finding that the return of former President Marcos and his family
to the Philippines is a clear and present danger to national security, public safety or public
health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been complied with in making
such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be dispensed with, has the
President's decision, including the grounds upon which it was based, been
made known to petitioners so that they may controvert the same?
c. Is the President's determination that the return of former President Marcos and his family to
the Philippines is a clear and present danger to national security, public safety, or public health
a political question?
d. Assuming that the Court may inquire as to whether the return of former President Marcos
and his family is a clear and present danger to national security, public safety, or public health,
have respondents established such fact?
3. Have the respondents, therefore, in implementing the President's decision to bar the return
of former President Marcos and his family, acted and would be acting without jurisdiction, or in
excess of jurisdiction, or with grave abuse of discretion, in performing any act which would
effectively bar the return of former President Marcos and his family to the Philippines?
[Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.1
The case for petitioners is founded on the assertion that the right of the Marcoses to return to the Philippines is
guaranteed under the following provisions of the Bill of Rights, to wit:
Section 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.
xxx xxx xxx
 Section 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.
The petitioners contend that the President is without power to impair the liberty of abode of the Marcoses
because only a court may do so "within the limits prescribed by law." Nor may the President impair their right to
travel because no law has authorized her to do so. They advance the view that before the right to travel may be
impaired by any authority or agency of the government, there must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr. Marcos and his family to return to the
Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and residence within the
borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the Philippines,
provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public order (order public), public
health or morals or the rights and freedoms of others, and are consistent with the other rights
recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country.
On the other hand, the respondents' principal argument is that the issue in this case involves a political question
which is non-justiciable. According to the Solicitor General:
As petitioners couch it, the question involved is simply whether or not petitioners Ferdinand E.
Marcos and his family have the right to travel and liberty of abode. Petitioners invoke these
constitutional rights in vacuo without reference to attendant circumstances.
Respondents submit that in its proper formulation, the issue is whether or not petitioners
Ferdinand E. Marcos and family have the right to return to the Philippines and reside here at
this time in the face of the determination by the President that such return and residence will
endanger national security and public safety.
It may be conceded that as formulated by petitioners, the question is not a political question as
it involves merely a determination of what the law provides on the matter and application
thereof to petitioners Ferdinand E. Marcos and family. But when the question is whether the
two rights claimed by petitioners Ferdinand E. Marcos and family impinge on or collide with the
more primordial and transcendental right of the State to security and safety of its nationals, the
question becomes political and this Honorable Court cannot consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines and
reestablish their residence here? This is clearly a justiciable question which this Honorable
Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines and
reestablish their residence here even if their return and residence here will endanger national
security and public safety? this is still a justiciable question which this Honorable Court can
decide.
Is there danger to national security and public safety if petitioners Ferdinand E. Marcos and
family shall return to the Philippines and establish their residence here? This is now a political
question which this Honorable Court can not decide for it falls within the exclusive authority
and competence of the President of the Philippines. [Memorandum for Respondents, pp. 9-11;
Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security over individual rights. In support
thereof, they cite Article II of the Constitution, to wit:
Section 4. The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment thereof, all
citizens may be required, under conditions provided by law, to render personal, military, or civil
service.
Section 5. The maintenance of peace and order, the protection of life, liberty, and property,
and the promotion of the general welfare are essential for the enjoyment by all the people of
the blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos and family from returning to the Philippines for
reasons of national security and public safety has international precedents. Rafael Trujillo of the Dominican
Republic, Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista of Cuba, King
Farouk of Egypt, Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of Venezuela were
among the deposed dictators whose return to their homelands was prevented by their governments. [See
Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted in Memorandum for Respondents, pp. 26-32;
Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of presidential power and its limits.
We, however, view this issue in a different light. Although we give due weight to the parties' formulation of the
issues, we are not bound by its narrow confines in arriving at a solution to the controversy.
At the outset, we must state that it would not do to view the case within the confines of the right to travel and the
import of the decisions of the U.S. Supreme Court in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt
1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the right
to travel and recognized exceptions to the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to travel from the Philippines to other
countries or within the Philippines. These are what the right to travel would normally connote. Essentially, the
right involved is the right to return to one's country, a totally distinct right under international law, independent
from although related to the right to travel. Thus, the Universal Declaration of Humans Rights and the
International Covenant on Civil and Political Rights treat the right to freedom of movement and abode within the
territory of a state, the right to leave a country, and the right to enter one's country as separate and distinct rights.
The Declaration speaks of the "right to freedom of movement and residence within the borders of each state"
[Art. 13(l)] separately from the "right to leave any country, including his own, and to return to his country." [Art.
13(2).] On the other hand, the Covenant guarantees the "right to liberty of movement and freedom to choose his
residence" [Art. 12(l)] and the right to "be free to leave any country, including his own." [Art. 12(2)] which rights
may be restricted by such laws as "are necessary to protect national security, public order, public health or
morals or enter qqqs own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It would therefore be
inappropriate to construe the limitations to the right to return to one's country in the same context as those
pertaining to the liberty of abode and the right to travel.
The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights, which
treats only of the liberty of abode and the right to travel, but it is our well-considered view that the right to return
may be considered, as a generally accepted principle of international law and, under our Constitution, is part of
the law of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right to travel
and enjoys a different protection under the International Covenant of Civil and Political Rights, i.e., against being
"arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the purpose of
effectively exercising the right to travel are not determinative of this case and are only tangentially material
insofar as they relate to a conflict between executive action and the exercise of a protected right. The issue
before the Court is novel and without precedent in Philippine, and even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or not there can be limitations on the
right to travel in the absence of legislation to that effect is rendered unnecessary. An appropriate case for its
resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain the methodology for its
resolution. Our resolution of the issue will involve a two-tiered approach. We shall first resolve whether or not the
President has the power under the Constitution, to bar the Marcoses from returning to the Philippines. Then, we
shall determine, pursuant to the express power of the Court under the Constitution in Article VIII, Section 1,
whether or not the President acted arbitrarily or with grave abuse of discretion amounting to lack or excess of
jurisdiction when she determined that the return of the Marcose's to the Philippines poses a serious threat to
national interest and welfare and decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three great branches of government. To
recall the words of Justice Laurel in Angara v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution has
blocked but with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial
departments of the government." [At 157.1 Thus, the 1987 Constitution explicitly provides that "[the legislative
power shall be vested in the Congress of the Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested
in the President of the Philippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law" [Art. VIII, Sec. 1.] These provisions not only
establish a separation of powers by actual division [Angara v. Electoral Commission, supra] but also confer
plenary legislative, executive and judicial powers subject only to limitations provided in the Constitution. For as
the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the legislative power
means a grant of all legislative power; and a grant of the judicial power means a grant of all the judicial power
which may be exercised under the government." [At 631-632.1 If this can be said of the legislative power which is
exercised by two chambers with a combined membership of more than two hundred members and of the judicial
power which is vested in a hierarchy of courts, it can equally be said of the executive power which is vested in
one official the President.
As stated above, the Constitution provides that "[t]he executive power shall be vested in the President of the
Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant by executive power" although in the
same article it touches on the exercise of certain powers by the President, i.e., the power of control over all
executive departments, bureaus and offices, the power to execute the laws, the appointing power, the powers
under the commander-in-chief clause, the power to grant reprieves, commutations and pardons, the power to
grant amnesty with the concurrence of Congress, the power to contract or guarantee foreign loans, the power to
enter into treaties or international agreements, the power to submit the budget to Congress, and the power to
address Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the President did the framers of the
Constitution intend that the President shall exercise those specific powers and no other? Are these se
enumerated powers the breadth and scope of "executive power"? Petitioners advance the view that the
President's powers are limited to those specifically enumerated in the 1987 Constitution. Thus, they assert: "The
President has enumerated powers, and what is not enumerated is impliedly denied to her. Inclusion unius est
exclusio alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 This argument brings to mind the institution of
the U.S. Presidency after which ours is legally patterned.**
Corwin, in his monumental volume on the President of the United States grappled with the same problem. He
said:
Article II is the most loosely drawn chapter of the Constitution. To those who think that a
constitution ought to settle everything beforehand it should be a nightmare; by the same token,
to those who think that constitution makers ought to leave considerable leeway for the future
play of political forces, it should be a vision realized.
We encounter this characteristic of Article 11 in its opening words: "The executive power shall
be vested in a President of the United States of America." . . .. [The President: Office and
Powers, 17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different persons who held the office
from Washington to the early 1900's, and the swing from the presidency by commission to Lincoln's dictatorship,
he concluded that "what the presidency is at any particular moment depends in important measure on who is
President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. it remained of course, an
agency of government subject to unvarying demands and duties no remained, of cas
President. But, more than most agencies of government, it changed shape, intensity and ethos
according to the man in charge. Each President's distinctive temperament and character, his
values, standards, style, his habits, expectations, Idiosyncrasies, compulsions, phobias recast
the WhiteHouse and pervaded the entire government. The executive branch, said Clark
Clifford, was a chameleon, taking its color from the character and personality of the President.
The thrust of the office, its impact on the constitutional order, therefore altered from President
to President. Above all, the way each President understood it as his personal obligation to
inform and involve the Congress, to earn and hold the confidence of the electorate and to
render an accounting to the nation and posterity determined whether he strengthened or
weakened the constitutional order. [At 212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather, that the
consideration of tradition and the development of presidential power under the different constitutions are
essential for a complete understanding of the extent of and limitations to the President's powers under the 1987
Constitution. The 1935 Constitution created a strong President with explicitly broader powers than the U.S.
President. The 1973 Constitution attempted to modify the system of government into the parliamentary type, with
the President as a mere figurehead, but through numerous amendments, the President became even more
powerful, to the point that he was also the de facto Legislature. The 1987 Constitution, however, brought back
the presidential system of government and restored the separation of legislative, executive and judicial powers
by their actual distribution among three distinct branches of government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the
President is head of state as well as head of government and whatever powers inhere in such positions pertain
to the office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides that the
execution of the laws is only one of the powers of the President. It also grants the President other powers that do
not involve the execution of any provision of law, e.g., his power over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise
of specific powers of the President, it maintains intact what is traditionally considered as within the scope of
"executive power." Corollarily, the powers of the President cannot be said to be limited only to the specific
powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers
so enumerated,
It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has
to be executive. Thus, in the landmark decision of Springer v. Government of the Philippine Islands, 277 U.S.
189 (1928), on the issue of who between the Governor-General of the Philippines and the Legislature may vote
the shares of stock held by the Government to elect directors in the National Coal Company and the Philippine
National Bank, the U.S. Supreme Court, in upholding the power of the Governor-General to do so, said:
...Here the members of the legislature who constitute a majority of the "board" and "committee"
respectively, are not charged with the performance of any legislative functions or with the
doing of anything which is in aid of performance of any such functions by the legislature.
Putting aside for the moment the question whether the duties devolved upon these members
are vested by the Organic Act in the Governor-General, it is clear that they are not legislative in
character, and still more clear that they are not judicial. The fact that they do not fall within the
authority of either of these two constitutes logical ground for concluding that they do fall within
that of the remaining one among which the powers of government are divided ....[At 202-203;
Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent we find
reinforcement for the view that it would indeed be a folly to construe the powers of a branch of government to
embrace only what are specifically mentioned in the Constitution:
The great ordinances of the Constitution do not establish and divide fields of black and white.
Even the more specific of them are found to terminate in a penumbra shading gradually from
one extreme to the other. ....
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by veiling words
we do not and cannot carry out the distinction between legislative and executive action with
mathematical precision and divide the branches into watertight compartments, were it ever so
desirable to do so, which I am far from believing that it is, or that the Constitution requires. [At
210- 211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he prime duty of theGovernment is to serve and
protect the people" and that "[t]he maintenance of peace and order,the protection of life, liberty, and property,
and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of
democracy." [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace and order, the protection of life,
liberty and property, and the promotion of the general welfare are essentially ideals to guide governmental
action. But such does not mean that they are empty words. Thus, in the exercise of presidential functions, in
drawing a plan of government, and in directing implementing action for these plans, or from another point of
view, in making any decision as President of the Republic, the President has to consider these principles, among
other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the Philippines, the
President is, under the Constitution, constrained to consider these basic principles in arriving at a decision. More
than that, having sworn to defend and uphold the Constitution, the President has the obligation under the
Constitution to protect the people, promote their welfare and advance the national interest. It must be borne in
mind that the Constitution, aside from being an allocation of power is also a social contract whereby the people
have surrendered their sovereign powers to the State for the common good. Hence, lest the officers of the
Government exercising the powers delegated by the people forget and the servants of the people become rulers,
the Constitution reminds everyone that "[s]overeignty resides in the people and all government authority
emanates from them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who seek to return to the country are the
deposed dictator and his family at whose door the travails of the country are laid and from whom billions of
dollars believed to be ill-gotten wealth are sought to be recovered. The constitutional guarantees they invoke are
neither absolute nor inflexible. For the exercise of even the preferred freedoms of speech and ofexpression,
although couched in absolute terms, admits of limits and must be adjusted to the requirements of equally
important public interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]
To the President, the problem is one of balancing the general welfare and the common good against the exercise
of rights of certain individuals. The power involved is the President's residual power to protect the general welfare
of the people. It is founded on the duty of the President, as steward of the people. To paraphrase Theodore
Roosevelt, it is not only the power of the President but also his duty to do anything not forbidden by the
Constitution or the laws that the needs of the nation demand [See Corwin, supra, at 153]. It is a power borne by
the President's duty to preserve and defend the Constitution. It also may be viewed as a power implicit in the
President's duty to take care that the laws are faithfully executed [see Hyman, The American President, where
the author advances the view that an allowance of discretionary power is unavoidable in any government and is
best lodged in the President].
More particularly, this case calls for the exercise of the President's powers as protector of the peace.
Rossiter The American Presidency].The power of the President to keep the peace is not limited merely to
exercising the commander-in-chief powers in times of emergency or to leading the State against external and
internal threats to its existence. The President is not only clothed with extraordinary powers in times of
emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and order and
ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the
bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want
of an emergency specified in the commander-in-chief provision. For in making the President commander-in-chief
the enumeration of powers that follow cannot be said to exclude the President's exercising as Commander-in-
Chief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas corpus or
declaring martial law, in order to keep the peace, and maintain public order and security.
That the President has the power under the Constitution to bar the Marcose's from returning has been
recognized by memembers of the Legislature, and is manifested by the Resolution proposed in the House of
Representatives and signed by 103 of its members urging the President to allow Mr. Marcos to return to the
Philippines "as a genuine unselfish gesture for true national reconciliation and as irrevocable proof of our
collective adherence to uncompromising respect for human rights under the Constitution and our laws." [House
Resolution No. 1342, Rollo, p. 321.1 The Resolution does not question the President's power to bar the
Marcoses from returning to the Philippines, rather, it appeals to the President's sense of compassion to allow a
man to come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses to be allowed to return to the
Philippines cannot be considered in the light solely of the constitutional provisions guaranteeing liberty of abode
and the right to travel, subject to certain exceptions, or of case law which clearly never contemplated situations
even remotely similar to the present one. It must be treated as a matter that is appropriately addressed to those
residual unstated powers of the President which are implicit in and correlative to the paramount duty residing in
that office to safeguard and protect general welfare. In that context, such request or demand should submit to the
exercise of a broader discretion on the part of the President to determine whether it must be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government." [Art. VIII, Sec. 1] Given this wording, we cannot agree with the Solicitor General that the issue
constitutes a political question which is beyond the jurisdiction of the Court to decide.
The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry
into areas which the Court, under previous constitutions, would have normally left to the political departments to
decide. But nonetheless there remain issues beyond the Court's jurisdiction the determination of which is
exclusively for the President, for Congress or for the people themselves through a plebiscite or referendum. We
cannot, for example, question the President's recognition of a foreign government, no matter how premature or
improvident such action may appear. We cannot set aside a presidential pardon though it may appear to us that
the beneficiary is totally undeserving of the grant. Nor can we amend the Constitution under the guise of
resolving a dispute brought before us because the power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on the political question doctrine.
The deliberations of the Constitutional Commission cited by petitioners show that the framers intended to widen
the scope of judicial review but they did not intend courts of justice to settle all actual controversies before them.
When political questions are involved, the Constitution limits the determination to whether or not there has been
a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is
being questioned. If grave abuse is not established, the Court will not substitute its judgment for that of the
official concerned and decide a matter which by its nature or by law is for the latter alone to decide. In this light, it
would appear clear that the second paragraph of Article VIII, Section 1 of the Constitution, defining "judicial
power," which specifically empowers the courts to determine whether or not there has been a grave abuse of
discretion on the part of any branch or instrumentality of the government, incorporates in the fundamental law the
ruling in Lansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege
of the writ of habeas corpus under specified conditions. Pursuant to the principle of separation
of powers underlying our system of government, the Executive is supreme within his own
sphere. However, the separation of powers, under the Constitution, is not absolute. What is
more, it goes hand in hand with the system of checks and balances, under which the Executive
is supreme, as regards the suspension of the privilege, but only if and when he acts within the
sphere alloted to him by the Basic Law, and the authority to determine whether or not he has
so acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally
supreme. In the exercise of such authority, the function of the Court is merely to check — not
to supplant the Executive, or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine
the wisdom of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there exist factual bases for the President
to conclude that it was in the national interest to bar the return of the Marcoses to the Philippines. If such
postulates do exist, it cannot be said that she has acted, or acts, arbitrarily or that she has gravely abused her
discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed during the
briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security
Adviser, wherein petitioners and respondents were represented, there exist factual bases for the President's
decision..
The Court cannot close its eyes to present realities and pretend that the country is not besieged from within by a
well-organized communist insurgency, a separatist movement in Mindanao, rightist conspiracies to grab power,
urban terrorism, the murder with impunity of military men, police officers and civilian officials, to mention only a
few. The documented history of the efforts of the Marcose's and their followers to destabilize the country, as
earlier narrated in this ponencia bolsters the conclusion that the return of the Marcoses at this time would only
exacerbate and intensify the violence directed against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained. The military establishment has
given assurances that it could handle the threats posed by particular groups. But it is the catalytic effect of the
return of the Marcoses that may prove to be the proverbial final straw that would break the camel's back. With
these before her, the President cannot be said to have acted arbitrarily and capriciously and whimsically in
determining that the return of the Marcoses poses a serious threat to the national interest and welfare and in
prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of violence
against the State, that would be the time for the President to step in and exercise the commander-in-chief
powers granted her by the Constitution to suppress or stamp out such violence. The State, acting through the
Government, is not precluded from taking pre- emptive action against threats to its existence if, though still
nascent they are perceived as apt to become serious and direct. Protection of the people is the essence of the
duty of government. The preservation of the State the fruition of the people's sovereignty is an obligation in the
highest order. The President, sworn to preserve and defend the Constitution and to see the faithful execution the
laws, cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships
brought about by the plunder of the economy attributed to the Marcoses and their close associates and relatives,
many of whom are still here in the Philippines in a position to destabilize the country, while the Government has
barely scratched the surface, so to speak, in its efforts to recover the enormous wealth stashed away by the
Marcoses in foreign jurisdictions. Then, We cannot ignore the continually increasing burden imposed on the
economy by the excessive foreign borrowing during the Marcos regime, which stifles and stagnates development
and is one of the root causes of widespread poverty and all its attendant ills. The resulting precarious state of our
economy is of common knowledge and is easily within the ambit of judicial notice.
The President has determined that the destabilization caused by the return of the Marcoses would wipe away the
gains achieved during the past few years and lead to total economic collapse. Given what is within our individual
and common knowledge of the state of the economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or with grave
abuse of discretion in determining that the return of former President Marcos and his family at the present time
and under present circumstances poses a serious threat to national interest and welfare and in prohibiting their
return to the Philippines, the instant petition is hereby DISMISSED.
SO ORDERED.
 G.R. No. 157013 July 10, 2003
ATTY. ROMULO B. MACALINTAL, petitioner,
vs.
COMMISSION ON ELECTIONS, HON. ALBERTO ROMULO, in his official capacity as Executive Secretary,
and HON. EMILIA T. BONCODIN, Secretary of the Department of Budget and Management, respondents.
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal, a member of the
Philippine Bar, seeking a declaration that certain provisions of Republic Act No. 9189 (The Overseas Absentee
Voting Act of 2003)1 suffer from constitutional infirmity. Claiming that he has actual and material legal interest in
the subject matter of this case in seeing to it that public funds are properly and lawfully used and appropriated,
petitioner filed the instant petition as a taxpayer and as a lawyer.
The Court upholds the right of petitioner to file the present petition.
R.A. No. 9189, entitled, "An Act Providing for A System of Overseas Absentee Voting by Qualified Citizens of the
Philippines Abroad, Appropriating Funds Therefor, and for Other Purposes," appropriates funds under Section 29
thereof which provides that a supplemental budget on the General Appropriations Act of the year of its
enactment into law shall provide for the necessary amount to carry out its provisions. Taxpayers, such as herein
petitioner, have the right to restrain officials from wasting public funds through the enforcement of an
unconstitutional statute.2 The Court has held that they may assail the validity of a law appropriating public
funds3 because expenditure of public funds by an officer of the State for the purpose of executing an
unconstitutional act constitutes a misapplication of such funds. 4
The challenged provision of law involves a public right that affects a great number of citizens. The Court has
adopted the policy of taking jurisdiction over cases whenever the petitioner has seriously and convincingly
presented an issue of transcendental significance to the Filipino people. This has been explicitly pronounced in
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan,5 where the Court held:
Objections to taxpayers’ suit for lack of sufficient personality standing, or interest are, however, in the
main procedural matters. Considering the importance to the public of the cases at bar, and in keeping
with the Court’s duty, under the 1987 Constitution, to determine whether or not the other branches of
government have kept themselves within the limits of the Constitution and the laws and that they have
not abused the discretion given to them, the Court has brushed aside technicalities of procedure and
has taken cognizance of these petitions.6
Indeed, in this case, the Court may set aside procedural rules as the constitutional right of suffrage of a
considerable number of Filipinos is involved.
The question of propriety of the instant petition which may appear to be visited by the vice of prematurity as there
are no ongoing proceedings in any tribunal, board or before a government official exercising judicial, quasi-
judicial or ministerial functions as required by Rule 65 of the Rules of Court, dims in light of the importance of the
constitutional issues raised by the petitioner. In Tañada vs. Angara,7 the Court held:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution,
the petition no doubt raises a justiciable controversy. Where an action of the legislative branch is
seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of
the judiciary to settle the dispute. "The question thus posed is judicial rather than political. The duty (to
adjudicate) remains to assure that the supremacy of the Constitution is upheld." Once a "controversy as
to the application or interpretation of constitutional provision is raised before this Court (as in the instant
case), it becomes a legal issue which the Court is bound by constitutional mandate to decide."
In another case of paramount impact to the Filipino people, it has been expressed that it is illogical to await the
adverse consequences of the law in order to consider the controversy actual and ripe for judicial resolution. 8 In
yet another case, the Court said that:
. . . despite the inhibitions pressing upon the Court when confronted with constitutional issues, it will not
hesitate to declare a law or act invalid when it is convinced that this must be done. In arriving at this
conclusion, its only criterion will be the Constitution and God as its conscience gives it in the light to
probe its meaning and discover its purpose. Personal motives and political considerations are
irrelevancies that cannot influence its decisions. Blandishment is as ineffectual as intimidation, for all the
awesome power of the Congress and Executive, the Court will not hesitate "to make the hammer fall
heavily," where the acts of these departments, or of any official, betray the people’s will as expressed in
the Constitution . . .9
The need to consider the constitutional issues raised before the Court is further buttressed by the fact that it is
now more than fifteen years since the ratification of the 1987 Constitution requiring Congress to provide a system
for absentee voting by qualified Filipinos abroad. Thus, strong reasons of public policy demand that the Court
resolves the instant petition10 and determine whether Congress has acted within the limits of the Constitution or if
it had gravely abused the discretion entrusted to it.11
The petitioner raises three principal questions:
A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are immigrants or
permanent residents in other countries by their mere act of executing an affidavit expressing their
intention to return to the Philippines, violate the residency requirement in Section 1 of Article V of the
Constitution?
B. Does Section 18.5 of the same law empowering the COMELEC to proclaim the winning candidates
for national offices and party list representatives including the President and the Vice-President violate
the constitutional mandate under Section 4, Article VII of the Constitution that the winning candidates for
President and the Vice-President shall be proclaimed as winners by Congress?
C. May Congress, through the Joint Congressional Oversight Committee created in Section 25 of Rep.
Act No. 9189, exercise the power to review, revise, amend, and approve the Implementing Rules and
Regulations that the Commission on Elections shall promulgate without violating the independence of
the COMELEC under Section 1, Article IX-A of the Constitution?
The Court will resolve the questions in seriatim.
A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987 Constitution of the
Republic of the Philippines?
Section 5(d) provides:
Sec. 5. Disqualifications. – The following shall be disqualified from voting under this Act:
.........
d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she
executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that
he/she shall resume actual physical permanent residence in the Philippines not later than three (3)
years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has
not applied for citizenship in another country. Failure to return shall be cause for the removal of the
name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her
permanent disqualification to vote in absentia.
Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of the 1987
Constitution which requires that the voter must be a resident in the Philippines for at least one year and in the
place where he proposes to vote for at least six months immediately preceding an election. Petitioner cites the
ruling of the Court in Caasi vs. Court of Appeals12 to support his claim. In that case, the Court held that a "green
card" holder immigrant to the United States is deemed to have abandoned his domicile and residence in the
Philippines.
Petitioner further argues that Section 1, Article V of the Constitution does not allow provisional registration or a
promise by a voter to perform a condition to be qualified to vote in a political exercise; 13 that the legislature
should not be allowed to circumvent the requirement of the Constitution on the right of suffrage by providing a
condition thereon which in effect amends or alters the aforesaid residence requirement to qualify a Filipino
abroad to vote.14He claims that the right of suffrage should not be granted to anyone who, on the date of the
election, does not possess the qualifications provided for by Section 1, Article V of the Constitution.
Respondent COMELEC refrained from commenting on this issue.15
In compliance with the Resolution of the Court, the Solicitor General filed his comment for all public respondents.
He contraposes that the constitutional challenge to Section 5(d) must fail because of the absence of clear and
unmistakable showing that said provision of law is repugnant to the Constitution. He stresses: All laws are
presumed to be constitutional; by the doctrine of separation of powers, a department of government owes a
becoming respect for the acts of the other two departments; all laws are presumed to have adhered to
constitutional limitations; the legislature intended to enact a valid, sensible, and just law.
In addition, the Solicitor General points out that Section 1, Article V of the Constitution is a verbatim reproduction
of those provided for in the 1935 and the 1973 Constitutions. Thus, he cites Co vs. Electoral Tribunal of the
House of Representatives16 wherein the Court held that the term "residence" has been understood to be
synonymous with "domicile" under both Constitutions. He further argues that a person can have only one
"domicile" but he can have two residences, one permanent (the domicile) and the other temporary; 17 and that the
definition and meaning given to the term residence likewise applies to absentee voters. Invoking Romualdez-
Marcos vs. COMELEC18 which reiterates the Court’s ruling in Faypon vs. Quirino, 19 the Solicitor General
maintains that Filipinos who are immigrants or permanent residents abroad may have in fact never abandoned
their Philippine domicile.20
Taking issue with the petitioner’s contention that "green card" holders are considered to have abandoned their
Philippine domicile, the Solicitor General suggests that the Court may have to discard its ruling in Caasi vs. Court
of Appeals21 in so far as it relates to immigrants and permanent residents in foreign countries who have executed
and submitted their affidavits conformably with Section 5(d) of R.A. No. 9189. He maintains that through the
execution of the requisite affidavits, the Congress of the Philippines with the concurrence of the President of the
Republic had in fact given these immigrants and permanent residents the opportunity, pursuant to Section 2,
Article V of the Constitution, to manifest that they had in fact never abandoned their Philippine domicile; that
indubitably, they would have formally and categorically expressed the requisite intentions, i.e., "animus manendi"
and "animus revertendi;" that Filipino immigrants and permanent residents abroad possess the unquestionable
right to exercise the right of suffrage under Section 1, Article V of the Constitution upon approval of their
registration, conformably with R.A. No. 9189.22
The seed of the present controversy is the interpretation that is given to the phrase, "qualified citizens of the
Philippines abroad" as it appears in R.A. No. 9189, to wit:
SEC. 2. Declaration of Policy. – It is the prime duty of the State to provide a system of honest and orderly
overseas absentee voting that upholds the secrecy and sanctity of the ballot. Towards this end, the State
ensures equal opportunity to all qualified citizens of the Philippines abroad in the exercise of this fundamental
right.
SEC. 3. Definition of Terms. – For purposes of this Act:
a) "Absentee Voting" refers to the process by which qualified citizens of the Philippines
abroad, exercise their right to vote;
. . . (Emphasis supplied)
f) "Overseas Absentee Voter" refers to a citizen of the Philippines who is qualified to
register and vote under this Act, not otherwise disqualified by law, who is abroad on the day
of elections. (Emphasis supplied)
SEC. 4. Coverage. – All citizens of the Philippines abroad, who are not otherwise disqualified by
law, at least eighteen (18) years of age on the day of elections, may vote for president, vice-president,
senators and party-list representatives. (Emphasis supplied)
in relation to Sections 1 and 2, Article V of the Constitution which read:
SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law,
who are at least eighteen years of age, and who shall have resided in the Philippines for at least one
year and in the place wherein they propose to vote for at least six months immediately preceding the
election. No literacy, property, or other substantive requirement shall be imposed on the exercise of
suffrage.
SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as
well as a system for absentee voting by qualified Filipinos abroad.
. . . . . . . . . (Emphasis supplied)
Section 1, Article V of the Constitution specifically provides that suffrage may be exercised by (1) all citizens of
the Philippines, (2) not otherwise disqualified by law, (3) at least eighteen years of age, (4) who are residents in
the Philippines for at least one year and in the place where they propose to vote for at least six months
immediately preceding the election. Under Section 5(d) of R.A. No. 9189, one of those disqualified from voting is
an immigrant or permanent resident who is recognized as such in the host country unless he/she executes an
affidavit declaring that he/she shall resume actual physical permanent residence in the Philippines not later than
three years from approval of his/her registration under said Act.
Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the Filipinos abroad who
are immigrants or permanent residents, to vote. He focuses solely on Section 1, Article V of the Constitution in
ascribing constitutional infirmity to Section 5(d) of R.A. No. 9189, totally ignoring the provisions of Section 2
empowering Congress to provide a system for absentee voting by qualified Filipinos abroad.
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the impression that it contravenes
Section 1, Article V of the Constitution. Filipino immigrants and permanent residents overseas are perceived as
having left and abandoned the Philippines to live permanently in their host countries and therefore, a provision in
the law enfranchising those who do not possess the residency requirement of the Constitution by the mere act of
executing an affidavit expressing their intent to return to the Philippines within a given period, risks a declaration
of unconstitutionality. However, the risk is more apparent than real.
The Constitution is the fundamental and paramount law of the nation to which all other laws must conform and in
accordance with which all private rights must be determined and all public authority administered. 23 Laws that do
not conform to the Constitution shall be stricken down for being unconstitutional.
Generally, however, all laws are presumed to be constitutional. In Peralta vs. COMELEC, the Court said:
. . . An act of the legislature, approved by the executive, is presumed to be within constitutional
limitations. The responsibility of upholding the Constitution rests not on the courts alone but on the
legislature as well. The question of the validity of every statute is first determined by the legislative
department of the government itself.24
Thus, presumption of constitutionality of a law must be overcome convincingly:
. . . To declare a law unconstitutional, the repugnancy of that law to the Constitution must be clear and
unequivocal, for even if a law is aimed at the attainment of some public good, no infringement of
constitutional rights is allowed. To strike down a law there must be a clear showing that what the
fundamental law condemns or prohibits, the statute allows it to be done.25
As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court to take a
holistic view of the pertinent provisions of both the Constitution and R.A. No. 9189. It is a basic rule in
constitutional construction that the Constitution should be construed as a whole. In Chiongbian vs. De
Leon,26 the Court held that a constitutional provision should function to the full extent of its substance and its
terms, not by itself alone, but in conjunction with all other provisions of that great document. Constitutional
provisions are mandatory in character unless, either by express statement or by necessary implication, a
different intention is manifest.27 The intent of the Constitution may be drawn primarily from the language of the
document itself. Should it be ambiguous, the Court may consider the intent of its framers through their debates in
the constitutional convention.28
R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V of the
Constitution that Congress shall provide a system for voting by qualified Filipinos abroad. It must be stressed that
Section 2 does not provide for the parameters of the exercise of legislative authority in enacting said law. Hence,
in the absence of restrictions, Congress is presumed to have duly exercised its function as defined in Article VI
(The Legislative Department) of the Constitution.
To put matters in their right perspective, it is necessary to dwell first on the significance of absentee voting. The
concept of absentee voting is relatively new. It is viewed thus:
The method of absentee voting has been said to be completely separable and distinct from the regular
system of voting, and to be a new and different manner of voting from that previously known, and an
exception to the customary and usual manner of voting. The right of absentee and disabled voters to
cast their ballots at an election is purely statutory; absentee voting was unknown to, and not
recognized at, the common law.
Absentee voting is an outgrowth of modern social and economic conditions devised to accommodate
those engaged in military or civil life whose duties make it impracticable for them to attend their polling
places on the day of election, and the privilege of absentee voting may flow from constitutional
provisions or be conferred by statutes, existing in some jurisdictions, which provide in varying terms for
the casting and reception of ballots by soldiers and sailors or other qualified voters absent on election
day from the district or precinct of their residence.
Such statutes are regarded as conferring a privilege and not a right, or an absolute right. When the
legislature chooses to grant the right by statute, it must operate with equality among all the
class to which it is granted; but statutes of this nature may be limited in their application to
particular types of elections. The statutes should be construed in the light of any constitutional
provisions affecting registration and elections, and with due regard to their texts prior to
amendment and to predecessor statutes and the decisions thereunder; they should also be
construed in the light of the circumstances under which they were enacted; and so as to carry out
the objects thereof, if this can be done without doing violence to their provisions and mandates.
Further, in passing on statutes regulating absentee voting, the court should look to the whole
and every part of the election laws, the intent of the entire plan, and reasons and spirit of their
adoption, and try to give effect to every portion thereof.29 (Emphasis supplied)
Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a resident
and an absentee.30 However, under our election laws and the countless pronouncements of the Court pertaining
to elections, an absentee remains attached to his residence in the Philippines as residence is considered
synonymous with domicile.
In Romualdez-Marcos,31 the Court enunciated:
Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is their place of habitual residence." In Ong vs. Republic,
this court took the concept of domicile to mean an individual’s "permanent home," "a place to which,
whenever absent for business or for pleasure, one intends to return, and depends on facts and
circumstances in the sense that they disclose intent." Based on the foregoing, domicile includes the twin
elements of "the fact of residing or physical presence in a fixed place" and animus manendi, or the
intention of returning there permanently.
Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place.
It is the physical presence of a person in a given area, community or country. The essential distinction
between residence and domicile in law is that residence involves the intent to leave when the purpose
for which the resident has taken up his abode ends. One may seek a place for purposes such as
pleasure, business, or health. If a person’s intent be to remain, it becomes his domicile; if his intent is to
leave as soon as his purpose is established it is residence. It is thus, quite perfectly normal for an
individual to have different residences in various places. However, a person can only have a single
domicile, unless, for various reasons, he successfully abandons his domicile in favor of another domicile
of choice. In Uytengsu vs. Republic, we laid this distinction quite clearly:
"There is a difference between domicile and residence. ‘Residence’ is used to indicate a place
of abode, whether permanent or temporary; ‘domicile’ denotes a fixed permanent residence to
which, when absent, one has the intention of returning. A man may have a residence in one
place and a domicile in another. Residence is not domicile, but domicile is residence coupled
with the intention to remain for an unlimited time. A man can have but one domicile for the
same purpose at any time, but he may have numerous places of residence. His place of
residence is generally his place of domicile, but it is not by any means necessarily so since no
length of residence without intention of remaining will constitute domicile."
For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of
political laws. As these concepts have evolved in our election law, what has clearly and
unequivocally emerged is the fact that residence for election purposes is used synonymously
with domicile.32 (Emphasis supplied)
Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the framers of the
Constitution considered the circumstances that impelled them to require Congress to establish a system for
overseas absentee voting, thus:
MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, which here has a
residential restriction, is not denied to citizens temporarily residing or working abroad. Based on the
statistics of several government agencies, there ought to be about two million such Filipinos at this time.
Commissioner Bernas had earlier pointed out that these provisions are really lifted from the two
previous Constitutions of 1935 and 1973, with the exception of the last paragraph. They could not
therefore have foreseen at that time the phenomenon now described as the Filipino labor force
explosion overseas.
According to government data, there are now about 600,000 contract workers and employees, and
although the major portions of these expatriate communities of workers are to be found in the Middle
East, they are scattered in 177 countries in the world.
In a previous hearing of the Committee on Constitutional Commissions and Agencies, the Chairman of
the Commission on Elections, Ramon Felipe, said that there was no insuperable obstacle to making
effective the right of suffrage for Filipinos overseas. Those who have adhered to their Filipino citizenship
notwithstanding strong temptations are exposed to embrace a more convenient foreign citizenship. And
those who on their own or under pressure of economic necessity here, find that they have to detach
themselves from their families to work in other countries with definite tenures of employment. Many of
them are on contract employment for one, two, or three years. They have no intention of changing their
 residence on a permanent basis, but are technically disqualified from exercising the right of suffrage in
their countries of destination by the residential requirement in Section 1 which says:
Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by law,
who are eighteen years of age or over, and who shall have resided in the Philippines for at
least one year and in the place wherein they propose to vote for at least six months preceding
the election.
I, therefore, ask the Committee whether at the proper time they might entertain an amendment that will
make this exercise of the right to vote abroad for Filipino citizens an effective, rather than merely a
nominal right under this proposed Constitution.
FR. BERNAS. Certainly, the Committee will consider that. But more than just saying that, I would like to
make a comment on the meaning of "residence" in the Constitution because I think it is a concept that
has been discussed in various decisions of the Supreme Court, particularly in the case of Faypon vs.
Quirino, a 1954 case which dealt precisely with the meaning of "residence" in the Election Law. Allow
me to quote:
A citizen may leave the place of his birth to look for greener pastures, as the saying goes, to
improve his lot and that, of course, includes study in other places, practice of his avocation,
reengaging in business. When an election is to be held, the citizen who left his birthplace to
improve his lot may decide to return to his native town, to cast his ballot, but for professional or
business reasons, or for any other reason, he may not absent himself from the place of his
professional or business activities.
So, they are here registered as voters as he has the qualifications to be one, and is not willing
to give up or lose the opportunity to choose the officials who are to run the government
especially in national elections. Despite such registration, the animus revertendi to his home,
to his domicile or residence of origin has not forsaken him.
This may be the explanation why the registration of a voter in a place other than his residence of origin has not
been deemed sufficient to consider abandonment or loss of such residence of origin.
In other words, "residence" in this provision refers to two residence qualifications: "residence" in the
Philippines and "residence" in the place where he will vote. As far as residence in the Philippines is
concerned, the word "residence" means domicile, but as far as residence in the place where he will
actually cast his ballot is concerned, the meaning seems to be different. He could have a domicile
somewhere else and yet he is a resident of a place for six months and he is allowed to vote there. So
that there may be serious constitutional obstacles to absentee voting, unless the vote of the person
who is absent is a vote which will be considered as cast in the place of his domicile.
MR. OPLE. Thank you for citing the jurisprudence.
It gives me scant comfort thinking of about two million Filipinos who should enjoy the right of suffrage, at
least a substantial segment of these overseas Filipino communities. The Committee, of course, is aware
that when this Article of the Constitution explicitly and unequivocally extends the right of effective
suffrage to Filipinos abroad, this will call for a logistical exercise of global proportions. In effect, this will
require budgetary and administrative commitments on the part of the Philippine government, mainly
through the COMELEC and the Ministry of Foreign Affairs, and perhaps, a more extensive elaboration
of this mechanism that will be put in place to make effective the right to vote. Therefore, seeking
shelter in some wise jurisprudence of the past may not be sufficient to meet the demands of the
right of suffrage for Filipinos abroad that I have mentioned. But I want to thank the Committee for
saying that an amendment to this effect may be entertained at the proper time. . . . . . . . . . 33 (Emphasis
supplied)
Thus, the Constitutional Commission recognized the fact that while millions of Filipinos reside abroad principally
for economic reasons and hence they contribute in no small measure to the economic uplift of this country, their
voices are marginal insofar as the choice of this country’s leaders is concerned.
The Constitutional Commission realized that under the laws then existing and considering the novelty of the
system of absentee voting in this jurisdiction, vesting overseas Filipinos with the right to vote would spawn
constitutional problems especially because the Constitution itself provides for the residency requirement of
voters:
MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod if the term "absentee
voting" also includes transient voting; meaning, those who are, let us say, studying in Manila need not
go back to their places of registration, for instance, in Mindanao, to cast their votes.
MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad.
MR. REGALADO. How about those people who cannot go back to the places where they are
registered?
MR. MONSOD. Under the present Election Code, there are provisions for allowing students and military
people who are temporarily in another place to register and vote. I believe that those situations can be
covered by the Omnibus Election Code. The reason we want absentee voting to be in the
Constitution as a mandate to the legislature is that there could be inconsistency on the
residence rule if it is just a question of legislation by Congress. So, by allowing it and saying
that this is possible, then legislation can take care of the rest.34 (Emphasis supplied)
Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the inapplicability of the
residency requirement in Section 1. It is precisely to avoid any problems that could impede the implementation of
its pursuit to enfranchise the largest number of qualified Filipinos who are not in the Philippines that the
Constitutional Commission explicitly mandated Congress to provide a system for overseas absentee voting.
The discussion of the Constitutional Commission on the effect of the residency requirement prescribed by
Section 1, Article V of the Constitution on the proposed system of absentee voting for qualified Filipinos abroad is
enlightening:
MR. SUAREZ. May I just be recognized for a clarification. There are certain qualifications for the
exercise of the right of suffrage like having resided in the Philippines for at least one year and in the
place where they propose to vote for at least six months preceding the elections. What is the effect of
these mandatory requirements on the matter of the exercise of the right of suffrage by the absentee
voters like Filipinos abroad?
THE PRESIDENT. Would Commissioner Monsod care to answer?
MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that the domicile
requirements as well as the qualifications and disqualifications would be the same.
THE PRESIDENT. Are we leaving it to the legislature to devise the system?
FR. BERNAS. I think there is a very legitimate problem raised there.
THE PRESIDENT. Yes.
MR. BENGZON. I believe Commissioner Suarez is clarified.
FR. BERNAS. But I think it should be further clarified with regard to the residence requirement or the
place where they vote in practice; the understanding is that it is flexible. For instance, one might be a
resident of Naga or domiciled therein, but he satisfies the requirement of residence in Manila, so he is
able to vote in Manila.
MR. TINGSON. Madam President, may I then suggest to the Committee to change the word "Filipinos"
to QUALIFIED FILIPINO VOTERS. Instead of "VOTING BY FILIPINOS ABROAD," it should be
 QUALIFIED FILIPINO VOTERS. If the Committee wants QUALIFIED VOTERS LIVING ABROAD,
would that not satisfy the requirement?
THE PRESIDENT. What does Commissioner Monsod say?
MR. MONSOD. Madam President, I think I would accept the phrase "QUALIFIED FILIPINOS ABROAD"
because "QUALIFIED" would assume that he has the qualifications and none of the disqualifications to
vote.
MR. TINGSON. That is right. So does the Committee accept?
FR. BERNAS. "QUALIFIED FILIPINOS ABROAD"?
THE PRESIDENT. Does the Committee accept the amendment?
MR. REGALADO. Madam President.
THE PRESIDENT. Commissioner Regalado is recognized.
MR. REGALADO. When Commissioner Bengzon asked me to read my proposed amendment, I
specifically stated that the National Assembly shall prescribe a system which will enable qualified
citizens, temporarily absent from the Philippines, to vote. According to Commissioner Monsod, the use
of the phrase "absentee voting" already took that into account as its meaning. That is referring to
qualified Filipino citizens temporarily abroad.
MR. MONSOD. Yes, we accepted that. I would like to say that with respect to registration we will
leave it up to the legislative assembly, for example, to require where the registration is. If it is,
say, members of the diplomatic corps who may be continuously abroad for a long time, perhaps,
there can be a system of registration in the embassies. However, we do not like to preempt the
legislative assembly.
THE PRESIDENT. Just to clarify, Commissioner Monsod’s amendment is only to provide a system.
MR. MONSOD. Yes.
THE PRESIDENT. The Commissioner is not stating here that he wants new qualifications for these
absentee voters.
MR. MONSOD. That is right. They must have the qualifications and none of the disqualifications.
THE PRESIDENT. It is just to devise a system by which they can vote.
MR. MONSOD. That is right, Madam President.35 (Emphasis supplied)
Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the responsibility of
devising a system of absentee voting. The qualifications of voters as stated in Section 1 shall remain except for
the residency requirement. This is in fact the reason why the Constitutional Commission opted for the
term qualified Filipinos abroad with respect to the system of absentee voting that Congress should draw up. As
stressed by Commissioner Monsod, by the use of the adjective qualified with respect to Filipinos abroad, the
assumption is that they have the "qualifications and none of the disqualifications to vote." In fine-tuning the
provision on absentee voting, the Constitutional Commission discussed how the system should work:
MR. SUAREZ. For clarification purposes, we just want to state for the record that in the case of qualified
Filipino citizens residing abroad and exercising their right of suffrage, they can cast their votes for the
candidates in the place where they were registered to vote in the Philippines. So as to avoid any
complications, for example, if they are registered in Angeles City, they could not vote for a mayor in
Naga City.
In other words, if that qualified voter is registered in Angeles City, then he can vote only for the local and
national candidates in Angeles City. I just want to make that clear for the record.
MR. REGALADO. Madam President.
THE PRESIDENT. What does Commissioner Regalado say?
MR. REGALADO. I just want to make a note on the statement of Commissioner Suarez that this
envisions Filipinos residing abroad. The understanding in the amendment is that the Filipino is
temporarily abroad. He may not be actually residing abroad; he may just be there on a business trip. It
just so happens that the day before the elections he has to fly to the United States, so he could not cast
his vote. He is temporarily abroad, but not residing there. He stays in a hotel for two days and comes
back. This is not limited only to Filipinos temporarily residing abroad. But as long as he is
temporarily abroad on the date of the elections, then he can fall within the prescription of
Congress in that situation.
MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we need this clarification
on record.
MR. MONSOD. Madam President, to clarify what we mean by "temporarily abroad," it need not be
on very short trips. One can be abroad on a treaty traders visa. Therefore, when we talk about
registration, it is possible that his residence is in Angeles and he would be able to vote for the
candidates in Angeles, but Congress or the Assembly may provide the procedure for registration,
like listing one’s name, in a registry list in the embassy abroad. That is still possible under the
system.
FR. BERNAS. Madam President, just one clarification if Commissioner Monsod agrees with this.
Suppose we have a situation of a child of a diplomatic officer who reaches the voting age while living
abroad and he has never registered here. Where will he register? Will he be a registered voter of a
certain locality in the Philippines?
MR. MONSOD. Yes, it is possible that the system will enable that child to comply with the registration
requirements in an embassy in the United States and his name is then entered in the official registration
book in Angeles City, for instance.
FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a registered voter of a
locality here.
MR. MONSOD. That is right. He does not have to come home to the Philippines to comply with the
registration procedure here.
FR. BERNAS. So, he does not have to come home.
MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are more clarifications
needed from the body.
Also, the Floor Leader is happy to announce that there are no more registered Commissioners to
propose amendments. So I move that we close the period of amendments. 36 (Emphasis supplied)
It is clear from these discussions of the members of the Constitutional Commission that they intended to
enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin.
The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents’
domicile of origin is in the Philippines, and consider them qualified as voters for the first time.
It is in pursuance of that intention that the Commission provided for Section 2 immediately after the residency
requirement of Section 1. By the doctrine of necessary implication in statutory construction, which may be
applied in construing constitutional provisions, 37 the strategic location of Section 2 indicates that the
Constitutional Commission provided for an exception to the actual residency requirement of Section 1 with
respect to qualified Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who
are not in the Philippines may be allowed to vote even though they do not satisfy the residency requirement in
Section 1, Article V of the Constitution.
That Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1 of
the same Article was in fact the subject of debate when Senate Bill No. 2104, which became R.A. No. 9189, was
deliberated upon on the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked into in relation to the constitutional provisions.
I think the sponsor and I would agree that the Constitution is supreme in any statute that we may enact.
Let me read Section 1, Article V, of the Constitution entitled, "Suffrage." It says:
Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have resided in the
Philippines for at least one year and in the place wherein they propose to vote for at least six
months immediately preceding the election.
Now, Mr. President, the Constitution says, "who shall have resided in the Philippines." They are
permanent immigrants. They have changed residence so they are barred under the Constitution. This is
why I asked whether this committee amendment which in fact does not alter the original text of the bill
will have any effect on this?
Senator Angara. Good question, Mr. President. And this has been asked in various fora. This is in
compliance with the Constitution. One, the interpretation here of "residence" is synonymous with
"domicile."
As the gentleman and I know, Mr. President, "domicile" is the intent to return to one’s home. And the
fact that a Filipino may have been physically absent from the Philippines and may be physically
a resident of the United States, for example, but has a clear intent to return to the Philippines,
will make him qualified as a resident of the Philippines under this law.
This is consistent, Mr. President, with the constitutional mandate that we – that Congress – must
provide a franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle literally as demanding physical presence,
then there is no way we can provide for offshore voting to our offshore kababayan, Mr. President.
Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, it reads: "The
Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system
for absentee voting by qualified Filipinos abroad."
The key to this whole exercise, Mr. President, is "qualified." In other words, anything that we
may do or say in granting our compatriots abroad must be anchored on the proposition that
they are qualified. Absent the qualification, they cannot vote. And "residents" (sic) is a
qualification.
I will lose votes here from permanent residents so-called "green-card holders", but the Constitution is
the Constitution. We cannot compromise on this. The Senate cannot be a party to something that would
affect or impair the Constitution.
Look at what the Constitution says – "In the place wherein they propose to vote for at least six months
immediately preceding the election."
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are separated only by a
creek. But one who votes in Makati cannot vote in Pateros unless he resides in Pateros for six months.
That is how restrictive our Constitution is. I am not talking even about the Election Code. I am talking
about the Constitution.
As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But he must do so,
make the transfer six months before the election, otherwise, he is not qualified to vote.
That is why I am raising this point because I think we have a fundamental difference here.
Senator Angara. It is a good point to raise, Mr. President. But it is a point already well-debated even in
the constitutional commission of 1986. And the reason Section 2 of Article V was placed
immediately after the six-month/one-year residency requirement is to demonstrate unmistakably
that Section 2 which authorizes absentee voting is an exception to the six-month/one-year
residency requirement. That is the first principle, Mr. President, that one must remember.
The second reason, Mr. President, is that under our jurisprudence – and I think this is so well-
entrenched that one need not argue about it – "residency" has been interpreted as synonymous
with "domicile."
But the third more practical reason, Mr. President, is, if we follow the interpretation of the
gentleman, then it is legally and constitutionally impossible to give a franchise to vote to
overseas Filipinos who do not physically live in the country, which is quite ridiculous because
that is exactly the whole point of this exercise – to enfranchise them and empower them to
vote.38 (Emphasis supplied)
Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting process, to wit:
SEC. 4. Coverage. – All citizens of the Philippines abroad, who are not otherwise disqualified by law, at
least eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators
and party-list representatives.
which does not require physical residency in the Philippines; and Section 5 of the assailed law which enumerates
those who are disqualified, to wit:
SEC. 5. Disqualifications. – The following shall be disqualified from voting under this Act:
a) Those who have lost their Filipino citizenship in accordance with Philippine laws;
b) Those who have expressly renounced their Philippine citizenship and who have pledged allegiance
to a foreign country;
c) Those who have committed and are convicted in a final judgment by a court or tribunal of an offense
punishable by imprisonment of not less than one (1) year, including those who have committed and
been found guilty of Disloyalty as defined under Article 137 of the Revised Penal Code, such disability
not having been removed by plenary pardon or amnesty: Provided, however, That any person
disqualified to vote under this subsection shall automatically acquire the right to vote upon expiration of
five (5) years after service of sentence; Provided, further, That the Commission may take cognizance of
final judgments issued by foreign courts or tribunals only on the basis of reciprocity and subject to the
formalities and processes prescribed by the Rules of Court on execution of judgments;
d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she
executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that
he/she shall resume actual physical permanent residence in the Philippines not later than three (3)
years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has
not applied for citizenship in another country. Failure to return shall be cause for the removal of the
name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her
permanent disqualification to vote in absentia.
e) Any citizen of the Philippines abroad previously declared insane or incompetent by competent
authority in the Philippines or abroad, as verified by the Philippine embassies, consulates or foreign
service establishments concerned, unless such competent authority subsequently certifies that such
person is no longer insane or incompetent.
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or permanent
resident who is "recognized as such in the host country" because immigration or permanent residence in another
country implies renunciation of one’s residence in his country of origin. However, same Section allows an
immigrant and permanent resident abroad to register as voter for as long as he/she executes an affidavit to show
that he/she has not abandoned his domicile in pursuance of the constitutional intent expressed in Sections 1 and
2 of Article V that "all citizens of the Philippines not otherwise disqualified by law" must be entitled to exercise the
right of suffrage and, that Congress must establish a system for absentee voting; for otherwise, if actual, physical
residence in the Philippines is required, there is no sense for the framers of the Constitution to mandate
Congress to establish a system for absentee voting.
Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or enfranchising act. The
affidavit required in Section 5(d) is not only proof of the intention of the immigrant or permanent resident to go
back and resume residency in the Philippines, but more significantly, it serves as an explicit expression that he
had not in fact abandoned his domicile of origin. Thus, it is not correct to say that the execution of the affidavit
under Section 5(d) violates the Constitution that proscribes "provisional registration or a promise by a voter to
perform a condition to be qualified to vote in a political exercise."
To repeat, the affidavit is required of immigrants and permanent residents abroad because by their status in their
host countries, they are presumed to have relinquished their intent to return to this country; thus, without the
affidavit, the presumption of abandonment of Philippine domicile shall remain.
Further perusal of the transcripts of the Senate proceedings discloses another reason why the Senate required
the execution of said affidavit. It wanted the affiant to exercise the option to return or to express his intention to
return to his domicile of origin and not to preempt that choice by legislation. Thus:
Senator Villar. Yes, we are going back.
It states that: "For Filipino immigrants and those who have acquired permanent resident status abroad,"
a requirement for the registration is the submission of "a Sworn Declaration of Intent to Return duly
sworn before any Philippine embassy or consulate official authorized to administer oath…"
Mr. President, may we know the rationale of this provision? Is the purpose of this Sworn Declaration to
include only those who have the intention of returning to be qualified to exercise the right of suffrage?
What if the Filipino immigrant has no purpose of returning? Is he automatically disbarred from
exercising this right to suffrage?
Senator Angara. The rationale for this, Mr. President, is that we want to be expansive and all-
inclusive in this law. That as long as he is a Filipino, no matter whether he is a green-card holder
in the U.S. or not, he will be authorized to vote. But if he is already a green-card holder, that
means he has acquired permanent residency in the United States, then he must indicate an
intention to return. This is what makes for the definition of "domicile." And to acquire the vote, we
thought that we would require the immigrants and the green-card holders . . . Mr. President, the three
administration senators are leaving, maybe we may ask for a
vote [Laughter].
Senator Villar. For a merienda, Mr. President.
Senator Angara. Mr. President, going back to the business at hand. The rationale for the requirement
that an immigrant or a green-card holder should file an affidavit that he will go back to the Philippines is
that, if he is already an immigrant or a green-card holder, that means he may not return to the country
any more and that contradicts the definition of "domicile" under the law.
But what we are trying to do here, Mr. President, is really provide the choice to the voter. The
voter, after consulting his lawyer or after deliberation within the family, may decide "No, I think we are
risking our permanent status in the United States if we file an affidavit that we want to go back." But we
want to give him the opportunity to make that decision. We do not want to make that decision
for him. 39 (Emphasis supplied)
The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are disqualified to run for
any elective office finds no application to the present case because the Caasi case did not, for obvious reasons,
consider the absentee voting rights of Filipinos who are immigrants and permanent residents in their host
countries.
In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still be considered as a
"qualified citizen of the Philippines abroad" upon fulfillment of the requirements of registration under the new law
for the purpose of exercising their right of suffrage.
It must be emphasized that Section 5(d) does not only require an affidavit or a promise to "resume actual
physical permanent residence in the Philippines not later than three years from approval of his/her registration,"
the Filipinos abroad must also declare that they have not applied for citizenship in another country. Thus, they
must return to the Philippines; otherwise, their failure to return "shall be cause for the removal" of their names
"from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia."
Thus, Congress crafted a process of registration by which a Filipino voter permanently residing abroad who is at
least eighteen years old, not otherwise disqualified by law, who has not relinquished Philippine citizenship and
who has not actually abandoned his/her intentions to return to his/her domicile of origin, the Philippines, is
allowed to register and vote in the Philippine embassy, consulate or other foreign service establishments of the
place which has jurisdiction over the country where he/she has indicated his/her address for purposes of the
elections, while providing for safeguards to a clean election.
Thus, Section 11 of R.A. No. 9189 provides:
SEC. 11. Procedure for Application to Vote in Absentia. –
11.1. Every qualified citizen of the Philippines abroad whose application for registration has been
approved, including those previously registered under Republic Act No. 8189, shall, in every national
election, file with the officer of the embassy, consulate or other foreign service establishment authorized
by the Commission, a sworn written application to vote in a form prescribed by the Commission. The
authorized officer of such embassy, consulate or other foreign service establishment shall transmit to
the Commission the said application to vote within five (5) days from receipt thereof. The application
form shall be accomplished in triplicate and submitted together with the photocopy of his/her overseas
absentee voter certificate of registration.
11.2. Every application to vote in absentia may be done personally at, or by mail to, the embassy,
consulate or foreign service establishment, which has jurisdiction over the country where he/she has
indicated his/her address for purposes of the elections.
11.3. Consular and diplomatic services rendered in connection with the overseas absentee voting
processes shall be made available at no cost to the overseas absentee voter.
Contrary to petitioner’s claim that Section 5(d) circumvents the Constitution, Congress enacted the law
prescribing a system of overseas absentee voting in compliance with the constitutional mandate. Such mandate
expressly requires that Congress provide a system of absentee voting that necessarily presupposes that the
"qualified citizen of the Philippines abroad" is not physically present in the country. The provisions of Sections
5(d) and 11 are components of the system of overseas absentee voting established by R.A. No. 9189. The
qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in the Philippines. He
is presumed not to have lost his domicile by his physical absence from this country. His having become an
immigrant or permanent resident of his host country does not necessarily imply an abandonment of his intention
to return to his domicile of origin, the Philippines. Therefore, under the law, he must be given the opportunity to
express that he has not actually abandoned his domicile in the Philippines by executing the affidavit required by
Sections 5(d) and 8(c) of the law.
Petitioner’s speculative apprehension that the implementation of Section 5(d) would affect the credibility of the
elections is insignificant as what is important is to ensure that all those who possess the qualifications to vote on
the date of the election are given the opportunity and permitted to freely do so. The COMELEC and the
Department of Foreign Affairs have enough resources and talents to ensure the integrity and credibility of any
election conducted pursuant to R.A. No. 9189.
As to the eventuality that the Filipino abroad would renege on his undertaking to return to the Philippines, the
penalty of perpetual disenfranchisement provided for by Section 5(d) would suffice to serve as deterrence to non-
compliance with his/her undertaking under the affidavit.
Petitioner argues that should a sizable number of "immigrants" renege on their promise to return, the result of the
elections would be affected and could even be a ground to contest the proclamation of the winning candidates
and cause further confusion and doubt on the integrity of the results of the election. Indeed, the probability that
after an immigrant has exercised the right to vote, he shall opt to remain in his host country beyond the third year
from the execution of the affidavit, is not farfetched. However, it is not for this Court to determine the wisdom of a
legislative exercise. As expressed in Tañada vs. Tuvera,40 the Court is not called upon to rule on the wisdom of
the law or to repeal it or modify it if we find it impractical.
Congress itself was conscious of said probability and in fact, it has addressed the expected problem. Section
5(d) itself provides for a deterrence which is that the Filipino who fails to return as promised stands to lose his
right of suffrage. Under Section 9, should a registered overseas absentee voter fail to vote for two consecutive
national elections, his name may be ordered removed from the National Registry of Overseas Absentee Voters.
Other serious legal questions that may be raised would be: what happens to the votes cast by the qualified
voters abroad who were not able to return within three years as promised? What is the effect on the votes cast
by the non-returnees in favor of the winning candidates? The votes cast by qualified Filipinos abroad who failed
to return within three years shall not be invalidated because they were qualified to vote on the date of the
elections, but their failure to return shall be cause for the removal of the names of the immigrants or permanent
residents from the National Registry of Absentee Voters and their permanent disqualification to vote in absentia.
In fine, considering the underlying intent of the Constitution, the Court does not find Section 5(d) of R.A. No.
9189 as constitutionally defective.
B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in contravention of Section 4,
Article VII of the Constitution?
Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for president, vice-president,
senators and party-list representatives.
Section 18.5 of the same Act provides:
SEC. 18. On-Site Counting and Canvassing. –
.........
18. 5 The canvass of votes shall not cause the delay of the proclamation of a winning candidate if the
outcome of the election will not be affected by the results thereof. Notwithstanding the foregoing, the
Commission is empowered to order the proclamation of winning candidates despite the fact that
the scheduled election has not taken place in a particular country or countries, if the holding of elections
therein has been rendered impossible by events, factors and circumstances peculiar to such country or
countries, in which events, factors and circumstances are beyond the control or influence of the
Commission. (Emphasis supplied)
Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the COMELEC to order the
proclamation of winning candidates insofar as it affects the canvass of votes and proclamation of winning
candidates for president and vice-president, is unconstitutional because it violates the following provisions of
paragraph 4, Section 4 of Article VII of the Constitution:
SEC. 4 . . .
The returns of every election for President and Vice-President, duly certified by the board of canvassers
of each province or city, shall be transmitted to the Congress, directed to the President of the Senate.
Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days
after the day of the election, open all the certificates in the presence of the Senate and the House of
Representatives in joint public session, and the Congress, upon determination of the authenticity and
due execution thereof in the manner provided by law, canvass the votes.
The person having the highest number of votes shall be proclaimed elected, but in case two or more
shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a
majority of all the Members of both Houses of the Congress, voting separately.
The Congress shall promulgate its rules for the canvassing of the certificates.
...
which gives to Congress the duty to canvass the votes and proclaim the winning candidates for president and
vice-president.
The Solicitor General asserts that this provision must be harmonized with paragraph 4, Section 4, Article VII of
the Constitution and should be taken to mean that COMELEC can only proclaim the winning Senators and party-
list representatives but not the President and Vice-President.41
Respondent COMELEC has no comment on the matter.
Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189 is far too sweeping that
it necessarily includes the proclamation of the winning candidates for the presidency and the vice-presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the Constitution only insofar as
said Section totally disregarded the authority given to Congress by the Constitution to proclaim the winning
candidates for the positions of president and vice-president.
In addition, the Court notes that Section 18.4 of the law, to wit:
18.4. . . . Immediately upon the completion of the canvass, the chairman of the Special Board of
Canvassers shall transmit via facsimile, electronic mail, or any other means of transmission equally safe
and reliable the Certificates of Canvass and the Statements of Votes to the Commission, . . .
[Emphasis supplied]
clashes with paragraph 4, Section 4, Article VII of the Constitution which provides that the returns of every
election for President and Vice-President shall be certified by the board of canvassers to Congress.
Congress could not have allowed the COMELEC to usurp a power that constitutionally belongs to it or, as aptly
stated by petitioner, to encroach "on the power of Congress to canvass the votes for president and vice-president
and the power to proclaim the winners for the said positions." The provisions of the Constitution as the
fundamental law of the land should be read as part of The Overseas Absentee Voting Act of 2003 and hence, the
canvassing of the votes and the proclamation of the winning candidates for president and vice-president for the
entire nation must remain in the hands of Congress.
C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IX-A of the Constitution?
Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A (Common Provisions) of the
Constitution, to wit:
 Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service
Commission, the Commission on Elections, and the Commission on Audit. (Emphasis supplied)
He submits that the creation of the Joint Congressional Oversight Committee with the power to review, revise,
amend and approve the Implementing Rules and Regulations promulgated by the COMELEC, R.A. No. 9189
intrudes into the independence of the COMELEC which, as a constitutional body, is not under the control of
either the executive or legislative departments of government; that only the COMELEC itself can promulgate
rules and regulations which may be changed or revised only by the majority of its members; and that should the
rules promulgated by the COMELEC violate any law, it is the Court that has the power to review the same via the
petition of any interested party, including the legislators.
It is only on this question that respondent COMELEC submitted its Comment. It agrees with the petitioner that
Sections 19 and 25 of R.A. No. 9189 are unconstitutional. Like the petitioner, respondent COMELEC anchors its
claim of unconstitutionality of said Sections upon Section 1, Article IX-A of the Constitution providing for the
independence of the constitutional commissions such as the COMELEC. It asserts that its power to formulate
rules and regulations has been upheld in Gallardo vs. Tabamo, Jr.42 where this Court held that the power of the
COMELEC to formulate rules and regulations is implicit in its power to implement regulations under Section 2(1)
of Article IX-C43 of the Constitution. COMELEC joins the petitioner in asserting that as an independent
constitutional body, it may not be subject to interference by any government instrumentality and that only this
Court may review COMELEC rules and only in cases of grave abuse of discretion.
The COMELEC adds, however, that another provision, vis-à-vis its rule-making power, to wit:
SEC. 17. Voting by Mail. –
17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not more than three
(3) countries, subject to the approval of the Congressional Oversight Committee. Voting by mail
may be allowed in countries that satisfy the following conditions:
a) Where the mailing system is fairly well-developed and secure to prevent occasion for fraud;
b) Where there exists a technically established identification system that would preclude multiple or
proxy voting; and
c) Where the system of reception and custody of mailed ballots in the embassies, consulates and other
foreign service establishments concerned are adequate and well-secured.
Thereafter, voting by mail in any country shall be allowed only upon review and approval of the
Joint Congressional Oversight Committee . . . . . . . . . (Emphasis supplied)
is likewise unconstitutional as it violates Section 1, Article IX-A mandating the independence of constitutional
commissions.
The Solicitor General takes exception to his prefatory statement that the constitutional challenge must fail and
agrees with the petitioner that Sections 19 and 25 are invalid and unconstitutional on the ground that there is
nothing in Article VI of the Constitution on Legislative Department that would as much as imply that Congress
has concurrent power to enforce and administer election laws with the COMELEC; and by the principles
of exclusio unius est exclusio alterius and expressum facit cessare tacitum, the constitutionally enumerated
powers of Congress circumscribe its authority to the exclusion of all others.
The parties are unanimous in claiming that Sections 19, 25 and portions of Section 17.1 are unconstitutional.
Thus, there is no actual issue forged on this question raised by petitioner.
However, the Court finds it expedient to expound on the role of Congress through the Joint Congressional
Oversight Committee (JCOC) vis-à-vis the independence of the COMELEC, as a constitutional body.
R.A. No. 9189 created the JCOC, as follows:
SEC. 25. Joint Congressional Oversight Committee. – A Joint Congressional Oversight Committee is
hereby created, composed of the Chairman of the Senate Committee on Constitutional Amendments,
Revision of Codes and Laws, and seven (7) other Senators designated by the Senate President, and
the Chairman of the House Committee on Suffrage and Electoral Reforms, and seven (7) other
Members of the House of Representatives designated by the Speaker of the House of
Representatives: Provided, That, of the seven (7) members to be designated by each House of
Congress, four (4) should come from the majority and the remaining three (3) from the minority.
The Joint Congressional Oversight Committee shall have the power to monitor and evaluate the
implementation of this Act. It shall review, revise, amend and approve the Implementing Rules
and Regulations promulgated by the Commission. (Emphasis supplied)
SEC. 19. Authority of the Commission to Promulgate Rules. – The Commission shall issue the
necessary rules and regulations to effectively implement the provisions of this Act within sixty (60) days
from the effectivity of this Act. The Implementing Rules and Regulations shall be submitted to the
Joint Congressional Oversight Committee created by virtue of this Act for prior approval.
. . . . . . . . . (Emphasis supplied)
Composed of Senators and Members of the House of Representatives, the Joint Congressional Oversight
Committee (JCOC) is a purely legislative body. There is no question that the authority of Congress to "monitor
and evaluate the implementation" of R.A. No. 9189 is geared towards possible amendments or revision of the
law itself and thus, may be performed in aid of its legislation.
However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to the JCOC the following
functions: (a) to "review, revise, amend and approve the Implementing Rules and Regulations" (IRR)
promulgated by the COMELEC [Sections 25 and 19]; and (b) subject to the approval of the JCOC [Section 17.1],
the voting by mail in not more than three countries for the May 2004 elections and in any country determined by
COMELEC.
The ambit of legislative power under Article VI of the Constitution is circumscribed by other constitutional
provisions. One such provision is Section 1 of Article IX-A of the 1987 Constitution ordaining that constitutional
commissions such as the COMELEC shall be "independent."
Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be an independent COMELEC,
the Court has held that "[w]hatever may be the nature of the functions of the Commission on Elections, the fact is
that the framers of the Constitution wanted it to be independent from the other departments of the
Government."44In an earlier case, the Court elucidated:
The Commission on Elections is a constitutional body. It is intended to play a distinct and important part
in our scheme of government. In the discharge of its functions, it should not be hampered with
restrictions that would be fully warranted in the case of a less responsible organization. The
Commission may err, so may this court also. It should be allowed considerable latitude in devising
means and methods that will insure the accomplishment of the great objective for which it was created –
free, orderly and honest elections. We may not agree fully with its choice of means, but unless these
are clearly illegal or constitute gross abuse of discretion, this court should not interfere. Politics is a
practical matter, and political questions must be dealt with realistically – not from the standpoint of pure
theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political
strategists, and its knowledge derived from actual experience in dealing with political controversies, is in
a peculiarly advantageous position to decide complex political questions.45 (Emphasis supplied)
The Court has no general powers of supervision over COMELEC which is an independent body "except those
specifically granted by the Constitution," that is, to review its decisions, orders and rulings. 46 In the same vein, it
is not correct to hold that because of its recognized extensive legislative power to enact election laws, Congress
may intrude into the independence of the COMELEC by exercising supervisory powers over its rule-making
authority.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to "issue the necessary rules The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect only to the authority given to the
and regulations to effectively implement the provisions of this Act within sixty days from the effectivity of this Act." COMELEC to proclaim the winning candidates for the Senators and party-list representatives but not as to the
This provision of law follows the usual procedure in drafting rules and regulations to implement a law – the power to canvass the votes and proclaim the winning candidates for President and Vice-President which is
legislature grants an administrative agency the authority to craft the rules and regulations implementing the law it lodged with Congress under Section 4, Article VII of the Constitution.
has enacted, in recognition of the administrative expertise of that agency in its particular field of The constitutionality of Section 5(d) is UPHELD.
operation.47 Once a law is enacted and approved, the legislative function is deemed accomplished and complete.
The legislative function may spring back to Congress relative to the same law only if that body deems it proper to Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law continues to be in full force and
review, amend and revise the law, but certainly not to approve, review, revise and amend the IRR of the effect.
COMELEC.
SO ORDERED.
By vesting itself with the powers to approve, review, amend, and revise the IRR for The Overseas Absentee
Voting Act of 2003, Congress went beyond the scope of its constitutional authority. Congress trampled upon the
constitutional mandate of independence of the COMELEC. Under such a situation, the Court is left with no option
but to withdraw from its usual reticence in declaring a provision of law unconstitutional.

The second sentence of the first paragraph of Section 19 stating that "[t]he Implementing Rules and Regulations
shall be submitted to the Joint Congressional Oversight Committee created by virtue of this Act for prior
approval," and the second sentence of the second paragraph of Section 25 stating that "[i]t shall review, revise,
amend and approve the Implementing Rules and Regulations promulgated by the Commission," whereby
Congress, in both provisions, arrogates unto itself a function not specifically vested by the Constitution, should
be stricken out of the subject statute for constitutional infirmity. Both provisions brazenly violate the mandate on
the independence of the COMELEC.

Similarly, the phrase, "subject to the approval of the Congressional Oversight Committee" in the first sentence of
Section 17.1 which empowers the Commission to authorize voting by mail in not more than three countries for
the May, 2004 elections; and the phrase, "only upon review and approval of the Joint Congressional Oversight
Committee" found in the second paragraph of the same section are unconstitutional as they require review and
approval of voting by mail in any country after the 2004 elections. Congress may not confer upon itself the
authority to approve or disapprove the countries wherein voting by mail shall be allowed, as determined by the
COMELEC pursuant to the conditions provided for in Section 17.1 of R.A. No. 9189. 48 Otherwise, Congress
would overstep the bounds of its constitutional mandate and intrude into the independence of the COMELEC.
During the deliberations, all the members of the Court agreed to adopt the separate opinion of Justice Reynato
S. Puno as part of the ponencia on the unconstitutionality of Sections 17.1, 19 and 25 of R.A. No. 9189 insofar
as they relate to the creation of and the powers given to the Joint Congressional Oversight Committee.

WHEREFORE, the petition is partly GRANTED. The following portions of R.A. No. 9189 are
declared VOIDfor being UNCONSTITUTIONAL:
a) The phrase in the first sentence of the first paragraph of Section 17.1, to wit: "subject to the
approval of the Joint Congressional Oversight Committee;"
b) The portion of the last paragraph of Section 17.1, to wit: "only upon review and approval of the
Joint Congressional Oversight Committee;"
c) The second sentence of the first paragraph of Section 19, to wit: "The Implementing Rules and
Regulations shall be submitted to the Joint Congressional Oversight Committee created by
virtue of this Act for prior approval;" and
d) The second sentence in the second paragraph of Section 25, to wit: "It shall review, revise, amend
and approve the Implementing Rules and Regulations promulgated by the Commission" of the
same law;

for being repugnant to Section 1, Article IX-A of the Constitution mandating the independence of constitutional
commission, such as COMELEC.
ATTY. ROMULO B. MACALINTAL, G.R. No. 191618
Petitioner, Promulgated:
- versus - November 23, 2010
PRESIDENTIAL ELECTORAL TRIBUNAL,
Respondent.
x-----------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
Confronting us is an undesignated petition[1] filed by Atty. Romulo B. Macalintal (Atty. Macalintal), that
questions the constitution of the Presidential Electoral Tribunal (PET) as an illegal and unauthorized progeny of
Section 4,[2] Article VII of the Constitution:
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.
While petitioner concedes that the Supreme Court is authorized to promulgate its rules for the purpose,
he chafes at the creation of a purportedly separate tribunal complemented by a budget allocation, a seal, a set of
personnel and confidential employees, to effect the constitutional mandate. Petitioners averment is supposedly
supported by the provisions of the 2005 Rules of the Presidential Electoral Tribunal (2005 PET
Rules),[3] specifically:
(1) Rule 3 which provides for membership of the PET wherein the Chief Justice and the Associate
Justices are designated as Chairman and Members, respectively;
(2) Rule 8(e) which authorizes the Chairman of the PET to appoint employees and confidential
employees of every member thereof;
(3) Rule 9 which provides for a separate Administrative Staff of the Tribunal with the appointment of a
Clerk and a Deputy Clerk of the Tribunal who, at the discretion of the PET, may designate the Clerk of Court (en
banc) as the Clerk of the Tribunal; and
(4) Rule 11 which provides for a seal separate and distinct from the Supreme Court seal.
Grudgingly, petitioner throws us a bone by acknowledging that the invoked constitutional provision does
allow the appointment of additional personnel.
Further, petitioner highlights our decision in Buac v. COMELEC[4] which peripherally declared that contests
involving the President and the Vice-President fall within the exclusive original jurisdiction of the PET, x x x in the
exercise of quasi-judicial power. On this point, petitioner reiterates that the constitution of the PET, with the
designation of the Members of the Court as Chairman and Members thereof, contravenes Section 12, Article VIII
of the Constitution, which prohibits the designation of Members of the Supreme Court and of other courts
established by law to any agency performing quasi-judicial or administrative functions.
The Office of the Solicitor General (OSG), as directed in our Resolution dated April 6, 2010, filed a
Comment[5] thereon. At the outset, the OSG points out that the petition filed by Atty. Macalintal is unspecified and
without statutory basis; the liberal approach in its preparation x x x is a violation of the well known rules of
practice and pleading in this jurisdiction.
In all, the OSG crystallizes the following issues for resolution of the Court:
I relief as a citizen or taxpayer.
WHETHER x x x PETITIONER HAS LOCUS STANDI TO FILE THE INSTANT PETITION.
II
WHETHER x x x THE CREATION OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS
UNCONSTITUTIONAL FOR BEING A VIOLATION OF PARAGRAPH 7, SECTION 4 OF
ARTICLE VII OF THE 1987 CONSTITUTION.
III
WHETHER x x x THE DESIGNATION OF MEMBERS OF THE SUPREME COURT AS
MEMBERS OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS UNCONSTITUTIONAL
FOR BEING A VIOLATION OF SECTION 12, ARTICLE VIII OF THE 1987 CONSTITUTION.[6]
In his Reply,[7] petitioner maintains that:
1. He has legal standing to file the petition given his averment of transcendental importance of the issues raised
therein;
2. The creation of the PET, a separate tribunal from the Supreme Court, violates Section 4, Article VII of the
Constitution; and
3. The PET, being a separate tribunal, exercises quasi-judicial functions contrary to Section 12, Article VIII of the
Constitution.
We winnow the meanderings of petitioner into the singular issue of whether the constitution of the PET,
composed of the Members of this Court, is unconstitutional, and violates Section 4, Article VII and Section 12,
Article VIII of the Constitution.
But first, we dispose of the procedural issue of whether petitioner has standing to file the present petition.
The issue of locus standi is derived from the following requisites of a judicial inquiry:
1. There must be an actual case or controversy;
2. The question of constitutionality must be raised by the proper party;
3. The constitutional question must be raised at the earliest possible opportunity;
and
4. The decision of the constitutional question must be necessary to the
determination of the case itself.[8]
On more than one occasion we have characterized a proper party as one who has sustained or is in
immediate danger of sustaining an injury as a result of the act complained of. [9] The dust has long settled on the
test laid down in Baker v. Carr:[10] whether the party has alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult questions. [11] Until and unless such actual or threatened injury
is established, the complainant is not clothed with legal personality to raise the constitutional question.
Our pronouncements in David v. Macapagal-Arroyo[12] illuminate:
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who
asserts a public right in assailing an allegedly illegal official action, does so as a representative
of the general public. He may be a person who is affected no differently from any other
person. He could be suing as a stranger, or in the category of a citizen, or taxpayer. In either
case, he has to adequately show that he is entitled to seek judicial protection. In other words,
he has to make out a sufficient interest in the vindication of the public order and the securing of
xxxx
However, to prevent just about any person from seeking judicial interference in any
official policy or act with which he disagreed with, and thus hinders the activities of
 governmental agencies engaged in public service, the United States Supreme Court laid down
the more stringent direct injury test in Ex Parte Levitt, later reaffirmed in Tileston v.
Ullman. The same Court ruled that for a private individual to invoke the judicial power to
determine the validity of an executive or legislative action, he must show that he has
sustained a direct injury as a result of that action, and it is not sufficient that he has a
general interest common to all members of the public.
This Court adopted the direct injury test in our jurisdiction. In People v. Vera, it
held that the person who impugns the validity of a statute must have a personal and
substantial interest in the case such that he has sustained, or will sustain direct injury
as a result. The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President
of the Senate, Manila Race Horse Trainers Association v. De la Fuente, Pascual v. Secretary
of Public Works and Anti-Chinese League of the Philippines v. Felix.
However, being a mere procedural technicality, the requirement of locus standi may
be waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency
Powers Cases, Araneta v. Dinglasan, where the transcendental importance of the cases
prompted the Court to act liberally. Such liberality was neither a rarity nor
accidental. In Aquino v. Comelec, this Court resolved to pass upon the issues raised due to
the far-reaching implications of the petition notwithstanding its categorical statement that
petitioner therein had no personality to file the suit. Indeed, there is a chain of cases where
this liberal policy has been observed, allowing ordinary citizens, members of Congress, and
civic organizations to prosecute actions involving the constitutionality or validity of laws,
regulations and rulings.
xxxx
By way of summary, the following rules may be culled from the cases decided by this
Court. 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.
Contrary to the well-settled actual and direct injury test, petitioner has simply alleged a generalized
interest in the outcome of this case, and succeeds only in muddling the issues. Paragraph 2 of the petition reads:
2. x x x Since the creation and continued operation of the PET involves the use of public funds
and the issue raised herein is of transcendental importance, it is petitioners humble submission
that, as a citizen, a taxpayer and a member of the BAR, he has the legal standing to file this
petition.
But even if his submission is valid, petitioners standing is still imperiled by the white elephant in the
petition, i.e., his appearance as counsel for former President Gloria Macapagal-Arroyo (Macapagal-Arroyo) in the
election protest filed by 2004 presidential candidate Fernando Poe, Jr. before the Presidential Electoral
Tribunal,[13] because judicial inquiry, as mentioned above, requires that the constitutional question be raised at
the earliest possible opportunity.[14] Such appearance as counsel before the Tribunal, to our mind, would have
been the first opportunity to challenge the constitutionality of the Tribunals constitution.
Although there are recognized exceptions to this requisite, we find none in this instance. Petitioner is
unmistakably estopped from assailing the jurisdiction of the PET before which tribunal he had ubiquitously
appeared and had acknowledged its jurisdiction in 2004. His failure to raise a seasonable constitutional
challenge at that time, coupled with his unconditional acceptance of the Tribunals authority over the case he was
defending, translates to the clear absence of an indispensable requisite for the proper invocation of this Courts
power of judicial review. Even on this score alone, the petition ought to be dismissed outright.
Prior to petitioners appearance as counsel for then protestee Macapagal-Arroyo, we had occasion to affirm the
grant of original jurisdiction to this Court as a Presidential Electoral Tribunal in the auspicious case of Tecson v.
Commission on Elections.[15] Thus -
Petitioners Tecson, et al., in G.R. No. 161434, and Velez, in G.R. No. 161634, invoke
the provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the
jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the
Supreme Court to instead take on the petitions they directly instituted before it. The
Constitutional provision cited reads:
"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 provision is an innovation of the 1987 Constitution. The omission in the 1935 and the
1973 Constitution to designate any tribunal to be the sole judge of presidential and vice-
presidential contests, has constrained this Court to declare, in Lopez vs. Roxas, as not (being)
justiciable controversies or disputes involving contests on the elections, returns and
qualifications of the President or Vice-President. The constitutional lapse prompted Congress,
on 21 June 1957, to enact Republic Act No. 1793, "An Act Constituting an Independent
Presidential Electoral Tribunal to Try, Hear and Decide Protests Contesting the Election of the
President-Elect and the Vice-President-Elect of the Philippines and Providing for the Manner of
Hearing the Same." Republic Act 1793 designated the Chief Justice and the Associate
Justices of the Supreme Court to be the members of the tribunal. Although the subsequent
adoption of the parliamentary form of government under the 1973 Constitution might
have implicitly affected Republic Act No. 1793, the statutory set-up, nonetheless, would
now be deemed revived under the present Section 4, paragraph 7, of the 1987
Constitution.
Former Chief Justice Reynato S. Puno, in his separate opinion, was even more categorical:
The Court is unanimous on the issue of jurisdiction. It has no jurisdiction on the
Tecson and Valdez petitions. Petitioners cannot invoke Article VII, Section 4, par. 7 of the
Constitution which provides:
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 word contest in the provision means that the jurisdiction of this Court can only be invoked
after the election and proclamation of a President or Vice President. There can be no contest
before a winner is proclaimed.[16]
Similarly, in her separate opinion, Justice Alicia Austria-Martinez declared:
 G.R. Nos. 161434 and 161634 invoke the Courts exclusive jurisdiction under the last
paragraph of Section 4, Article VII of the 1987 Constitution. I agree with the majority opinion
that these petitions should be dismissed outright for prematurity. The Court has no jurisdiction
at this point of time to entertain said petitions.
The Supreme Court, as a Presidential Electoral Tribunal (PET), the Senate Electoral
Tribunal (SET) and House of Representatives Electoral Tribunal (HRET) are electoral
tribunals, each specifically and exclusively clothed with jurisdiction by the Constitution to act
respectively as sole judge of all contests relating to the election, returns, and qualifications of
the President and Vice-President, Senators, and Representatives. In a litany of cases, this
Court has long recognized that these electoral tribunals exercise jurisdiction over election
contests only after a candidate has already been proclaimed winner in an election. Rules 14
and 15 of the Rules of the Presidential Electoral Tribunal provide that, for President or Vice-
President, election protest or quo warranto may be filed after the proclamation of the winner.[17]
Petitioner, a prominent election lawyer who has filed several cases before this Court involving
constitutional and election law issues, including, among others, the constitutionality of certain provisions of
Republic Act (R.A.) No. 9189 (The Overseas Absentee Voting Act of 2003),[18] cannot claim ignorance of: (1) the
invocation of our jurisdiction under Section 4, Article VII of the Constitution; and (2) the unanimous holding
thereon. Unquestionably, the overarching framework affirmed in Tecson v. Commission on Elections[19] is that
the Supreme Court has original jurisdiction to decide presidential and vice-presidential election protests while
concurrently acting as an independent Electoral Tribunal.
Despite the foregoing, petitioner is adamant on his contention that the provision, as worded, does not
authorize the constitution of the PET. And although he concedes that the Supreme Court may promulgate its
rules for this purpose, petitioner is insistent that the constitution of the PET is unconstitutional. However,
petitioner avers that it allows the Court to appoint additional personnel for the purpose, notwithstanding the
silence of the constitutional provision.
Petitioners pastiche arguments are all hurled at the Court, hopeful that at least one might possibly stick.
But these arguments fail to elucidate on the scope of the rules the Supreme Court is allowed to promulgate.
Apparently, petitioners concept of this adjunct of judicial power is very restrictive. Fortunately, thanks in no part to
petitioners opinion, we are guided by well-settled principles of constitutional construction.
Verba legis dictates that wherever possible, the words used in the Constitution must be given their
ordinary meaning except where technical terms are employed, in which case the significance thus attached to
them prevails. This Court, speaking through former Chief Justice Enrique Fernando, in J.M. Tuason & Co., Inc. v.
Land Tenure Administration[20] instructs:
As the Constitution is not primarily a lawyers document, it being essential for the rule of law to
obtain that it should ever be present in the peoples consciousness, its language as much as
possible should be understood in the sense they have in common use. What it says according
to the text of the provision to be construed compels acceptance and negates the power of the
courts to alter it, based on the postulate that the framers and the people mean what they say.
Thus these are cases where the need for construction is reduced to a minimum.
However, where there is ambiguity or doubt, the words of the Constitution should be interpreted in accordance
with the intent of its framers or ratio legis et anima. A doubtful provision must be examined in light of the history
of the times, and the condition and circumstances surrounding the framing of the Constitution. [21] In following this
guideline, courts should bear in mind the object sought to be accomplished in adopting a doubtful constitutional
provision, and the evils sought to be prevented or remedied. [22] Consequently, the intent of the framers and the
people ratifying the constitution, and not the panderings of self-indulgent men, should be given effect.
Last, ut magis valeat quam pereat the Constitution is to be interpreted as a whole. We intoned thus in the
landmark case of Civil Liberties Union v. Executive Secretary:[23]
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. Sections bearing on a
particular subject should be considered and interpreted together as to effectuate the whole
purpose of the Constitution and one section is not to be allowed to defeat another, if by any
reasonable construction, the two can be made to stand together.
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.
We had earlier expounded on this rule of construction in Chiongbian v. De Leon, et al., [24] to wit:
[T]he members of the Constitutional Convention could not have dedicated a provision of our
Constitution merely for the benefit of one person without considering that it could also affect
others. When they adopted subsection 2, they permitted, if not willed, that said provision
should function to the full extent of its substance and its terms, not by itself alone, but in
conjunction with all other provisions of that great document.
On its face, the contentious constitutional provision does not specify the establishment of the PET. But
neither does it preclude, much less prohibit, otherwise. It entertains divergent interpretations which, though
unacceptable to petitioner, do not include his restrictive view one which really does not offer a solution.
Section 4, Article VII of the Constitution, the provision under scrutiny, should be read with other related
provisions of the Constitution such as the parallel provisions on the Electoral Tribunals of the Senate and the
House of Representatives.
Before we resort to the records of the Constitutional Commission, we discuss the framework of judicial
power mapped out in the Constitution. Contrary to petitioners assertion, the Supreme Courts constitutional
mandate to act as sole judge of election contests involving our countrys highest public officials, and its rule-
making authority in connection therewith, is not restricted; it includes all necessary powers implicit in the exercise
thereof.
We recall the unprecedented and trailblazing case of Marcos v. Manglapus:[25]
The 1987 Constitution has fully restored the separation of powers of the three great
branches of government. To recall the words of Justice Laurel in Angara v. Electoral
Commission, the Constitution has blocked but with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial departments of the government. Thus,
the 1987 Constitution explicitly provides that [t]he legislative power shall be vested in the
Congress of the Philippines [Art. VI, Sec. 1], [t]he executive power shall be vested in the
President of the Philippines [Art. VII, Sec. 1], and [t]he judicial power shall be vested in one
Supreme Court and in such lower courts as may be established by law [Art. VIII, Sec. 1].
These provisions not only establish a separation of powers by actual division but also confer
plenary legislative, executive and judicial powers subject only to limitations provided in the
Constitution. For as the Supreme Court in Ocampo v. Cabangis pointed out a grant of the
legislative power means a grant of all legislative power; and a grant of the judicial
power means a grant of all the judicial power which may be exercised under the
government.
The Court could not have been more explicit then on the plenary grant and exercise of judicial power. Plainly, the
abstraction of the Supreme Court acting as a Presidential Electoral Tribunal from the unequivocal grant of
jurisdiction in the last paragraph of Section 4, Article VII of the Constitution is sound and tenable.
The mirabile dictu of the grant of jurisdiction to this Court, albeit found in the Article on the executive
branch of government, and the constitution of the PET, is evident in the discussions of the Constitutional
Commission. On the exercise of this Courts judicial power as sole judge of presidential and vice-presidential
election contests, and to promulgate its rules for this purpose, we find the proceedings in the Constitutional
Commission most instructive:
MR. DAVIDE. On line 25, after the words Vice-President, I propose to add AND MAY
PROMULGATE ITS RULES FOR THE PURPOSE. This refers to the Supreme Court sitting en
banc. This is also to confer on the Supreme Court exclusive authority to enact the
necessary rules while acting as sole judge of all contests relating to the election,
returns and qualifications of the President or Vice-President.
MR. REGALADO. My personal position is that the rule-making power of the
Supreme Court with respect to its internal procedure is already implicit under the Article
on the Judiciary; considering, however, that according to the Commissioner, the
purpose of this is to indicate the sole power of the Supreme Court without intervention
by the legislature in the promulgation of its rules on this particular point, I think I will
personally recommend its acceptance to the Committee.[26]
xxxx
MR. NOLLEDO. x x x.
With respect to Sections 10 and 11 on page 8, I understand that the Committee has also
created an Electoral Tribunal in the Senate and a Commission on Appointments which may
cover membership from both Houses. But my question is: It seems to me that the committee
report does not indicate which body should promulgate the rules that shall govern the Electoral
Tribunal and the Commission on Appointments. Who shall then promulgate the rules of these
bodies?
MR. DAVIDE. The Electoral Tribunal itself will establish and promulgate its rules
because it is a body distinct and independent already from the House, and so with the
Commission on Appointments also. It will have the authority to promulgate its own
rules.[27]
On another point of discussion relative to the grant of judicial power, but equally cogent, we listen to
former Chief Justice Roberto Concepcion:
MR. SUAREZ. Thank you.
Would the Commissioner not consider that violative of the doctrine of separation of powers?
MR. CONCEPCION. I think Commissioner Bernas explained that this is a
contest between two parties. This is a judicial power.
MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the
right to declare who will be the President of our country, which to me is a political action.
MR. CONCEPCION. There are legal rights which are enforceable under the law,
and these are essentially justiciable questions.
MR. SUAREZ. If the election contest proved to be long, burdensome and
tedious, practically all the time of the Supreme Court sitting en banc would be occupied
with it considering that they will be going over millions and millions of ballots or
election returns, Madam President.[28]
Echoing the same sentiment and affirming the grant of judicial power to the Supreme Court, Justice Florenz D.
Regalado[29] and Fr. Joaquin Bernas[30] both opined:
MR. VILLACORTA. Thank you very much, Madam President.
I am not sure whether Commissioner Suarez has expressed his point. On page 2, the fourth
paragraph of Section 4 provides:
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.
May I seek clarification as to whether or not the matter of determining the outcome of
the contests relating to the election returns and qualifications of the President or Vice-
President is purely a political matter and, therefore, should not be left entirely to the
judiciary. Will the above-quoted provision not impinge on the doctrine of separation of
powers between the executive and the judicial departments of the government?
MR. REGALADO. No, I really do not feel that would be a problem. This is a new
provision incidentally. It was not in the 1935 Constitution nor in the 1973 Constitution.
MR. VILLACORTA. That is right.
MR. REGALADO. We feel that it will not be an intrusion into the separation of
powers guaranteed to the judiciary because this is strictly an adversarial and judicial
proceeding.
MR. VILLACORTA. May I know the rationale of the Committee because this
supersedes Republic Act 7950 which provides for the Presidential Electoral Tribunal?
FR. BERNAS. Precisely, this is necessary. Election contests are, by their nature,
judicial. Therefore, they are cognizable only by courts. If, for instance, we did not have a
constitutional provision on an electoral tribunal for the Senate or an electoral tribunal
for the House, normally, as composed, that cannot be given jurisdiction over contests.
So, the background of this is really the case of Roxas v. Lopez. The Gentleman will
remember that in that election, Lopez was declared winner. He filed a protest before the
Supreme Court because there was a republic act which created the Supreme Court as the
Presidential Electoral Tribunal. The question in this case was whether new powers could be
given the Supreme Court by law. In effect, the conflict was actually whether there was an
attempt to create two Supreme Courts and the answer of the Supreme Court was: No, this did
not involve the creation of two Supreme Courts, but precisely we are giving new jurisdiction to
the Supreme Court, as it is allowed by the Constitution. Congress may allocate various
jurisdictions.
 Before the passage of that republic act, in case there was any contest between two
presidential candidates or two vice-presidential candidates, no one had jurisdiction over it. So,
it became necessary to create a Presidential Electoral Tribunal. What we have done is to
constitutionalize what was statutory but it is not an infringement on the separation of
powers because the power being given to the Supreme Court is a judicial power. [31]
Unmistakable from the foregoing is that the exercise of our power to judge presidential and vice-
presidential election contests, as well as the rule-making power adjunct thereto, is plenary; it is not as restrictive
as petitioner would interpret it. In fact, former Chief Justice Hilario G. Davide, Jr., who proposed the insertion of
the phrase, intended the Supreme Court to exercise exclusive authority to promulgate its rules of procedure for
that purpose. To this, Justice Regalado forthwith assented and then emphasized that the sole power ought to be
without intervention by the legislative department. Evidently, even the legislature cannot limit the judicial power to
resolve presidential and vice-presidential election contests and our rule-making power connected thereto.
To foreclose all arguments of petitioner, we reiterate that the establishment of the PET simply constitutionalized
what was statutory before the 1987 Constitution. The experiential context of the PET in our country cannot be
denied.[32]
Consequently, we find it imperative to trace the historical antecedents of the PET.
Article VII, Section 4, paragraph 7 of the 1987 Constitution is an innovation. The precursors of the present
Constitution did not contain similar provisions and instead vested upon the legislature all phases of presidential
and vice-presidential elections from the canvassing of election returns, to the proclamation of the president-elect
and the vice-president elect, and even the determination, by ordinary legislation, of whether such proclamations
may be contested. Unless the legislature enacted a law creating an institution that would hear election contests
in the Presidential and Vice-Presidential race, a defeated candidate had no legal right to demand a recount of the
votes cast for the office involved or to challenge the ineligibility of the proclaimed candidate. Effectively,
presidential and vice-presidential contests were non-justiciable in the then prevailing milieu.
The omission in the 1935 Constitution was intentional. It was mainly influenced by the absence of a similar
provision in its pattern, the Federal Constitution of the United States. Rather, the creation of such tribunal was
left to the determination of the National Assembly. The journal of the 1935 Constitutional Convention is crystal
clear on this point:
Delegate Saguin. For an information. It seems that this Constitution does not contain any
provision with respect to the entity or body which will look into the protests for the positions of
the President and Vice-President.
President Recto. Neither does the American constitution contain a provision over the subject.
Delegate Saguin. But then, who will decide these protests?
President Recto. I suppose that the National Assembly will decide on that. [33]
To fill the void in the 1935 Constitution, the National Assembly enacted R.A. No. 1793, establishing an
independent PET to try, hear, and decide protests contesting the election of President and Vice-President. The
Chief Justice and the Associate Justices of the Supreme Court were tasked to sit as its Chairman and Members,
respectively. Its composition was extended to retired Supreme Court Justices and incumbent Court of Appeals
Justices who may be appointed as substitutes for ill, absent, or temporarily incapacitated regular members.
The eleven-member tribunal was empowered to promulgate rules for the conduct of its proceedings. It
was mandated to sit en banc in deciding presidential and vice-presidential contests and authorized to exercise
powers similar to those conferred upon courts of justice, including the issuance of subpoena, taking of
depositions, arrest of witnesses to compel their appearance, production of documents and other evidence, and
the power to punish contemptuous acts and bearings. The tribunal was assigned a Clerk, subordinate officers,
and employees necessary for the efficient performance of its functions.
R.A. No. 1793 was implicitly repealed and superseded by the 1973 Constitution which replaced the
bicameral legislature under the 1935 Constitution with the unicameral body of a parliamentary government.
With the 1973 Constitution, a PET was rendered irrelevant, considering that the President was not
directly chosen by the people but elected from among the members of the National Assembly, while the position
of Vice-President was constitutionally non-existent.
In 1981, several modifications were introduced to the parliamentary system. Executive power was
restored to the President who was elected directly by the people. An Executive Committee was formed to assist
the President in the performance of his functions and duties. Eventually, the Executive Committee was abolished
and the Office of Vice-President was installed anew.
These changes prompted the National Assembly to revive the PET by enacting, on December 3, 1985,
Batas Pambansa Bilang (B.P. Blg.) 884, entitled An Act Constituting an Independent Presidential Electoral
Tribunal to Try, Hear and Decide Election Contests in the Office of the President and Vice-President of the
Philippines, Appropriating Funds Therefor and For Other Purposes. This tribunal was composed of nine
members, three of whom were the Chief Justice of the Supreme Court and two Associate Justices designated by
him, while the six were divided equally between representatives of the majority and minority parties in the
Batasang Pambansa.
Aside from the license to wield powers akin to those of a court of justice, the PET was permitted to
recommend the prosecution of persons, whether public officers or private individuals, who in its opinion had
participated in any irregularity connected with the canvassing and/or accomplishing of election returns.
The independence of the tribunal was highlighted by a provision allocating a specific budget from the
national treasury or Special Activities Fund for its operational expenses. It was empowered to appoint its own
clerk in accordance with its rules. However, the subordinate officers were strictly employees of the judiciary or
other officers of the government who were merely designated to the tribunal.
After the historic People Power Revolution that ended the martial law era and installed Corazon Aquino
as President, civil liberties were restored and a new constitution was formed.
With R.A. No. 1793 as framework, the 1986 Constitutional Commission transformed the then statutory
PET into a constitutional institution, albeit without its traditional nomenclature:
FR. BERNAS. x x x.
x x x. So it became necessary to create a Presidential Electoral Tribunal. What we have done
is to constitutionalize what was statutory but it is not an infringement on the separation of
powers because the power being given to the Supreme Court is a judicial power. [34]
Clearly, petitioners bete noire of the PET and the exercise of its power are unwarranted. His arguments that: (1)
the Chief Justice and Associate Justices are referred to as Chairman and Members, respectively; (2) the PET
uses a different seal; (3) the Chairman is authorized to appoint personnel; and (4) additional compensation is
allocated to the Members, in order to bolster his claim of infirmity in the establishment of the PET, are too
superficial to merit further attention by the Court.
Be that as it may, we hasten to clarify the structure of the PET as a legitimate progeny of Section 4, Article VII of
the Constitution, composed of members of the Supreme Court, sitting en banc. The following exchange in the
1986 Constitutional Commission should provide enlightenment:
MR. SUAREZ. Thank you. Let me proceed to line 23, page 2, wherein it is provided,
and I quote:
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.
Are we not giving enormous work to the Supreme Court especially when it is directed to
sit en banc as the sole judge of all presidential and vice-presidential election contests?
MR. SUMULONG. That question will be referred to Commissioner Concepcion.
MR. CONCEPCION. This function was discharged by the Supreme Court twice
and the Supreme Court was able to dispose of each case in a period of one year as
provided by law. Of course, that was probably during the late 1960s and early 1970s. I
do not know how the present Supreme Court would react to such circumstances, but
there is also the question of who else would hear the election protests.
MR. SUAREZ. We are asking this question because between lines 23 to 25, there are
no rules provided for the hearings and there is not time limit or duration for the election contest
to be decided by the Supreme Court. Also, we will have to consider the historical background
that when R.A. 1793, which organized the Presidential Electoral Tribunal, was promulgated on
June 21, 1957, at least three famous election contests were presented and two of them ended
up in withdrawal by the protestants out of sheer frustration because of the delay in the
resolution of the cases. I am referring to the electoral protest that was lodged by former
President Carlos P. Garcia against our kabalen former President Diosdado Macapagal in 1961
and the vice-presidential election contest filed by the late Senator Gerardo Roxas against Vice-
President Fernando Lopez in 1965.
MR. CONCEPCION. I cannot answer for what the protestants had in mind. But when
that protest of Senator Roxas was withdrawn, the results were already available. Senator
Roxas did not want to have a decision adverse to him. The votes were being counted already,
and he did not get what he expected so rather than have a decision adverse to his protest, he
withdrew the case.
xxxx
MR. SUAREZ. I see. So the Commission would not have any objection to
vesting in the Supreme Court this matter of resolving presidential and vice-presidential
contests?
MR. CONCEPCION. Personally, I would not have any objection.
MR. SUAREZ. Thank you.
Would the Commissioner not consider that violative of the doctrine of separation of powers?
MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest
between two parties. This is a judicial power.
MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the
right to declare who will be the President of our country, which to me is a political action.
MR. CONCEPCION. There are legal rights which are enforceable under the law, and
these are essentially justiciable questions.
MR. SUAREZ. If the election contest proved to be long, burdensome and
tedious, practically all the time of the Supreme Court sitting en banc would be occupied
with it considering that they will be going over millions and millions of ballots or
election returns, Madam President.
MR. CONCEPCION. The time consumed or to be consumed in this contest for
President is dependent upon they key number of teams of revisors. I have no experience
insofar as contests in other offices are concerned.
MR. SUAREZ. Although there is a requirement here that the Supreme Court is
mandated to sit en banc?
MR. CONCEPCION. Yes.
MR. SUAREZ. I see.
MR. CONCEPCION. The steps involved in this contest are: First, the ballot
boxes are opened before teams of three, generally, a representative each of the court, of
the protestant and of the protestee. It is all a questions of how many teams are
organized. Of course, that can be expensive, but it would be expensive whatever court
one would choose. There were times that the Supreme Court, with sometimes 50 teams
at the same time working, would classify the objections, the kind of problems, and the
court would only go over the objected votes on which the parties could not agree. So it
is not as awesome as it would appear insofar as the Court is concerned. What is
awesome is the cost of the revision of the ballots because each party would have to
appoint one representative for every team, and that may take quite a big amount.
MR. SUAREZ. If we draw from the Commissioners experience which he is sharing
with us, what would be the reasonable period for the election contest to be decided?
MR. CONCEPCION. Insofar as the Supreme Court is concerned, the Supreme Court
always manages to dispose of the case in one year.
MR. SUAREZ. In one year. Thank you for the clarification.[35]
Obvious from the foregoing is the intent to bestow independence to the Supreme Court as the PET, to
undertake the Herculean task of deciding election protests involving presidential and vice-presidential candidates
in accordance with the process outlined by former Chief Justice Roberto Concepcion. It was made in response to
the concern aired by delegate Jose E. Suarez that the additional duty may prove too burdensome for the
Supreme Court. This explicit grant of independence and of the plenary powers needed to discharge this burden
justifies the budget allocation of the PET.
The conferment of additional jurisdiction to the Supreme Court, with the duty characterized as an
awesome task, includes the means necessary to carry it into effect under the doctrine of necessary
implication.[36] We cannot overemphasize that the abstraction of the PET from the explicit grant of power to the
Supreme Court, given our abundant experience, is not unwarranted.
 A plain reading of Article VII, Section 4, paragraph 7, readily reveals a grant of authority to the Supreme
Court sitting en banc. In the same vein, although the method by which the Supreme Court exercises this
authority is not specified in the provision, the grant of power does not contain any limitation on the Supreme
Courts exercise thereof. The Supreme Courts method of deciding presidential and vice-presidential election
contests, through the PET, is actually a derivative of the exercise of the prerogative conferred by the aforequoted
constitutional provision. Thus, the subsequent directive in the provision for the Supreme Court to promulgate its
rules for the purpose.
The conferment of full authority to the Supreme Court, as a PET, is equivalent to the full authority
conferred upon the electoral tribunals of the Senate and the House of Representatives, i.e., the Senate Electoral
Tribunal (SET) and the House of Representatives Electoral Tribunal (HRET), [37] which we have affirmed on
numerous occasions.[38]
Particularly cogent are the discussions of the Constitutional Commission on the parallel provisions of
the SET and the HRET. The discussions point to the inevitable conclusion that the different electoral tribunals,
with the Supreme Court functioning as the PET, are constitutional bodies, independent of the three departments
of government Executive, Legislative, and Judiciary but not separate therefrom.
MR. MAAMBONG. x x x.
My questions will be very basic so we can go as fast as we can. In the case of the electoral
tribunal, either of the House or of the Senate, is it correct to say that these tribunals are
constitutional creations? I will distinguish these with the case of the Tanodbayan and the
Sandiganbayan which are created by mandate of the Constitution but they are not
constitutional creations. Is that a good distinction?
xxxx
MR. MAAMBONG. Could we, therefore, say that either the Senate Electoral Tribunal
or the House Electoral Tribunal is a constitutional body?
MR. AZCUNA. It is, Madam President.
MR. MAAMBONG. If it is a constitutional body, is it then subject to constitutional
restrictions?
MR. AZCUNA. It would be subject to constitutional restrictions intended for that body.
MR. MAAMBONG. I see. But I want to find out if the ruling in the case of Vera v.
Avelino, 77 Phil. 192, will still be applicable to the present bodies we are creating since it ruled
that the electoral tribunals are not separate departments of the government. Would that ruling
still be valid?
MR. AZCUNA. Yes, they are not separate departments because the separate
departments are the legislative, the executive and the judiciary; but they are
constitutional bodies.[39]
The view taken by Justices Adolfo S. Azcuna [40] and Regalado E. Maambong[41] is schooled by our holding
in Lopez v. Roxas, et al.:[42]
Section 1 of Republic Act No. 1793, which provides that:
There shall be an independent Presidential Electoral Tribunal x x x which
shall be the sole judge of all contests relating to the election, returns, and
qualifications of the president-elect and the vice-president-elect of
the Philippines.
has the effect of giving said defeated candidate the legal right to contest judicially the election
of the President-elect of Vice-President-elect and to demand a recount of the votes case for
the office involved in the litigation, as well as to secure a judgment declaring that he is the one
elected president or vice-president, as the case may be, and that, as such, he is entitled to
assume the duties attached to said office. And by providing, further, that the Presidential
Electoral Tribunal shall be composed of the Chief Justice and the other ten Members of the
Supreme Court, said legislation has conferred upon such Court an additional original
jurisdiction of an exclusive character.
Republic Act No. 1793 has not created a new or separate court. It has merely
conferred upon the Supreme Court the functions of a Presidential Electoral Tribunal. The result
of the enactment may be likened to the fact that courts of first instance perform the functions of
such ordinary courts of first instance, those of court of land registration, those of probate
courts, and those of courts of juvenile and domestic relations. It is, also, comparable to the
situation obtaining when the municipal court of a provincial capital exercises its authority,
pursuant to law, over a limited number of cases which were previously within the exclusive
jurisdiction of courts of first instance.
In all of these instances, the court (court of first instance or municipal court) is
only one, although the functions may be distinct and, even, separate. Thus the powers of
a court of first instance, in the exercise of its jurisdiction over ordinary civil cases, are broader
than, as well as distinct and separate from, those of the same court acting as a court of land
registration or a probate court, or as a court of juvenile and domestic relations. So too, the
authority of the municipal court of a provincial capital, when acting as such municipal court, is,
territorially more limited than that of the same court when hearing the aforementioned cases
which are primary within the jurisdiction of courts of first instance. In other words, there is
only one court, although it may perform the functions pertaining to several types of courts,
each having some characteristics different from those of the others.
Indeed, the Supreme Court, the Court of Appeals and courts of first instance, are
vested with original jurisdiction, as well as with appellate jurisdiction, in consequence of which
they are both trial courts and, appellate courts, without detracting from the fact that there is
only one Supreme Court, one Court of Appeals, and one court of first instance, clothed with
authority to discharge said dual functions. A court of first instance, when performing the
functions of a probate court or a court of land registration, or a court of juvenile and domestic
relations, although with powers less broad than those of a court of first instance, hearing
ordinary actions, is not inferior to the latter, for one cannot be inferior to itself. So too, the
Presidential Electoral Tribunal is not inferior to the Supreme Court, since it is the same
Court although the functions peculiar to said Tribunal are more limited in scope than those of
the Supreme Court in the exercise of its ordinary functions. Hence, the enactment of Republic
Act No. 1793, does not entail an assumption by Congress of the power of appointment vested
by the Constitution in the President. It merely connotes the imposition of additional duties upon
the Members of the Supreme Court.
By the same token, the PET is not a separate and distinct entity from the Supreme Court, albeit it has functions
peculiar only to the Tribunal. It is obvious that the PET was constituted in implementation of Section 4, Article VII
of the Constitution, and it faithfully complies not unlawfully defies the constitutional directive. The adoption of a
separate seal, as well as the change in the nomenclature of the Chief Justice and the Associate Justices into presidential election contests, with full authority in the exercise thereof. The power wielded by PET is a derivative
Chairman and Members of the Tribunal, respectively, was designed simply to highlight the singularity and of the plenary judicial power allocated to courts of law, expressly provided in the Constitution. On the whole, the
exclusivity of the Tribunals functions as a special electoral court. Constitution draws a thin, but, nevertheless, distinct line between the PET and the Supreme Court.

As regards petitioners claim that the PET exercises quasi-judicial functions in contravention of Section
12, Article VIII of the Constitution, we point out that the issue in Buac v. COMELEC[43] involved the
characterization of the enforcement and administration of a law relative to the conduct of a plebiscite which falls
under the jurisdiction of the Commission on Elections. However, petitioner latches on to the enumeration
in Buac which declared, in an obiter, that contests involving the President and the Vice-President fall within the
exclusive original jurisdiction of the PET, also in the exercise of quasi-judicial power.
The issue raised by petitioner is more imagined than real. Section 12, Article VIII of the Constitution reads:
SEC. 12. The Members of the Supreme Court and of other courts established by law
shall not be designated to any agency performing quasi-judicial or administrative functions.
The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution which provides
that the power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Consistent with our presidential system of government, the function of dealing with the settlement of disputes,
controversies or conflicts involving rights, duties or prerogatives that are legally demandable and
enforceable [44] is apportioned to courts of justice. With the advent of the 1987 Constitution, judicial power was
expanded to include the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.[45] The power was expanded, but it remained absolute.
If the logic of petitioner is to be followed, all Members of the Court, sitting in the Senate and House
Electoral Tribunals would violate the constitutional proscription found in Section 12, Article VIII. Surely, the
petitioner will be among the first to acknowledge that this is not so. The Constitution which, in Section 17, Article
VI, explicitly provides that three Supreme Court Justices shall sit in the Senate and House Electoral Tribunals,
respectively, effectively exempts the Justices-Members thereof from the prohibition in Section 12, Article VIII. In
the same vein, it is the Constitution itself, in Section 4, Article VII, which exempts the Members of the Court,
constituting the PET, from the same prohibition.
We have previously declared that the PET is not simply an agency to which Members of the Court were
designated. Once again, the PET, as intended by the framers of the Constitution, is to be an
institution independent, but not separate, from the judicial department, i.e., the Supreme Court. McCulloch v.
State of Maryland[49] proclaimed that [a] power without the means to use it, is a nullity. The vehicle for the
exercise of this power, as intended by the Constitution and specifically mentioned by the Constitutional
Commissioners during the discussions on the grant of power to this Court, is the PET. Thus, a microscopic view,
like the petitioners, should not constrict an absolute and constitutional grant of judicial power.
One final note. Although this Court has no control over contrary people and naysayers, we reiterate a
word of caution against the filing of baseless petitions which only clog the Courts docket. The petition in the
instant case belongs to that classification.
WHEREFORE, the petition is DISMISSED. Costs against petitioner.

The set up embodied in the Constitution and statutes characterizes the resolution of electoral SO ORDERED.
contests as essentially an exercise of judicial power.

At the barangay and municipal levels, original and exclusive jurisdiction over election contests is vested
in the municipal or metropolitan trial courts and the regional trial courts, respectively.

At the higher levels city, provincial, and regional, as well as congressional and senatorial exclusive and
original jurisdiction is lodged in the COMELEC and in the House of Representatives and Senate Electoral
Tribunals, which are not, strictly and literally speaking, courts of law. Although not courts of law, they are,
nonetheless, empowered to resolve election contests which involve, in essence, an exercise of judicial power,
because of the explicit constitutional empowerment found in Section 2(2), Article IX-C (for the COMELEC) and
Section 17, Article VI (for the Senate and House Electoral Tribunals) of the Constitution. Besides, when the
COMELEC, the HRET, and the SET decide election contests, their decisions are still subject to judicial
review via a petition for certiorari filed by the proper party if there is a showing that the decision was rendered
with grave abuse of discretion tantamount to lack or excess of jurisdiction.[46]

It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or vice-presidential
election contest, it performs what is essentially a judicial power. In the landmark case of Angara v. Electoral
Commission,[47] Justice Jose P. Laurel enucleated that it would be inconceivable if the Constitution had not
provided for a mechanism by which to direct the course of government along constitutional channels. In
fact, Angara pointed out that [t]he Constitution is a definition of the powers of government. And yet, at that time,
the 1935 Constitution did not contain the expanded definition of judicial power found in Article VIII, Section 1,
paragraph 2 of the present Constitution.

With the explicit provision, the present Constitution has allocated to the Supreme Court, in conjunction
with latters exercise of judicial power inherent in all courts, [48] the task of deciding presidential and vice-
 [G.R. No. 163783. June 22, 2004]
PIMENTEL vs. CONGRESS
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated JUN 22 2004.
G. R. No. 163783 (Aquilino Q. Pimentel, Jr. vs. Joint Committee of Congress to Canvass the Votes Cast for
President and Vice-President in the May 10, 2004 Elections.)
RESOLUTION
By the present Petition for Prohibition, petitioner Senator Aquilino Q. Pimentel, Jr. seeks a judgment declaring
null and void the continued existence of the Joint Committee of Congress (Joint Committee) to determine the
authenticity and due execution of the certificates of canvass and preliminarily canvass the votes cast for
Presidential and Vice-Presidential candidates in the May 10, 2004 elections following the adjournment of
Congress sine die on June 11, 2004. The petition corollarily prays for the issuance of a writ of prohibition
directing the Joint Committee to cease and desist from conducting any further proceedings pursuant to the Rules
of the Joint Public Session of Congress on Canvassing.
Petitioner posits that with "the adjournment sine die on June 11, 2004 by the Twelfth Congress of its last regular
session, [its] term ... terminated and expired on the said day and the said Twelfth Congress serving the term
2001 to 2004 passed out of legal existence." Henceforth, petitioner goes on, "all pending matters and
proceedings terminate upon the expiration of ... Congress." To advance this view, he relies on "legislative
procedure, precedent or practice [as] borne [out] by the rules of both Houses of Congress."
Given the importance of the constitutional issue raised and to put to rest all questions regarding the regularity,
validity or constitutionality of the canvassing of votes fro President and Vice-President in the recently concluded
national elections, this Court assumes jurisdiction over the instant petition pursuant to its power and duty "to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government" under Section 1 of Article VIII of the Constitution
and its original jurisdiction over petitions for prohibition under Section 5 of the same Article.
After a considered and judicious examination of the arguments raised by petitioner as well as those presented in
the Comments filed by the Solicitor General and respondent Joint Committee, this Court finds that the petition
has absolutely no basis under the Constitution and must, therefore, be dismissed.
Petitioner's claim that his arguments are buttressed by "legislative procedure, precedent or practice [as] borne
[out] by the rules of both Houses of Congress" is directly contradicted by Section 42 of Rule XIV of the Rules
adopted by the Senate, of which he is an incumbent member. This section clearly provides that the
Senate shall convene in joint session during any voluntary or compulsory recess to canvass the votes
for President and Vice-President not later than thirty days after the day of the elections in accordance with
Section 4, Article VII of the Constitution.
Moreover, as pointed out in the Comment filed by the Senate Panel for respondent Joint Committee and that of
the Office of the Solicitor General, the precedents set by the 1992 and 1998 Presidential Elections do not support
the move to stop the ongoing canvassing by the Joint Committee, they citing the observations of former Senate
President Jovito Salonga.
Thus, during the 1992 Presidential elections, both Houses of Congress adjourned sine die on May 25, 1992. On
June 16, 1992, the Joint Committee finished tallying the votes for President and Vice-
President.[1]cralaw Thereafter, on June 22, 1992, the Eighth Congress convened in joint public session as the
National Board of Canvassers, and on even date proclaimed Fidel V. Ramos and Joseph Ejercito Estrada as
President and Vice-President, respectively.[2]
Upon the other hand, during the 1998 Presidential elections, both Houses of Congress adjourned sine dieon May
25, 1998. The Joint Committee completed the counting of the votes for President and Vice-President on May 27,
1998.[3]cralaw The Tenth Congress then convened in joint public session on May 29, 1998 as the National Board
of Canvassers and proclaimed Joseph Ejercito Estrada as President and Gloria Macapagal-Arroyo as President
and Vice-President, respectively.
As for petitioner's argument that "the [e]xistence and [p]roceedings [o]f the Joint Committee of Congress [a]re
[i]nvalid, [i]llegal and [u]nconstitutional [f]ollowing the [a]djournment [s]ine [d]ie [o]f [b]oth Houses of Congress [o]f
[t]heir [r]egular [s]essions on June 11, 2004," he cites in support thereof Section 15, Article VI of the Constitution
which reads:
Sec. 15. The Congress shall convene once every year on the fourth Monday of July for its regular session,
unless a different date is fixed by law, and shall continue to be in session for such number of days as it may
determine until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays, and
legal holidays. The President may call a special session at any time.
Contrary to petitioner's argument, however, the term of the present Twelfth Congress did not terminate and
expire upon the adjournment sine die of the regular session of both Houses on June 11, 2004.
Section 15, Article VI of the Constitution cited by petitioner does not pertain to the term of Congress, but to its
regular annual legislative sessions and the mandatory 30-day recess before the opening of its next regular
session (subject to the power of the President to call a special session at any time).
Section 4 of Article VIII also of the Constitution clearly provides that "[t]he term of office of the Senators shall be
six years and shall commence, unless otherwise provided by law, at noon on the thirtieth day of June next
following their election." Similarly, Section 7 of the same Article provides that "[t]he Members of the House of
Representatives shall be elected for a term of three years which shall begin, unless otherwise provided by law,
at noon on the thirtieth day of June next following their election." Consequently, there being no law to the
contrary, until June 30, 2004, the present Twelfth Congress to which the present legislators belong cannot be
said to have "passed out of legal existence."
The legislative functions of the Twelfth Congress may have come to a close upon the final adjournment of its
regular sessions on June 11, 2004, but this does not affect its non-legislative functions, such as that of being
the National Board of Canvassers. In fact, the joint public session of both Houses of Congress convened by
express directive of Section 4, Article VII of the Constitution to canvass the votes for and to proclaim the newly
elected President and Vice-President has not, and cannot, adjourn sine dieuntil it has accomplished its
constitutionally mandated tasks. For only when a board of canvassers has completed its functions is it
rendered functus officio. Its membership may change, but it retains its authority as a board until it has
accomplished its purposes. (Pelayo v. Commission on Elections, 23 SCRA 1374, 1385 [1968], citing Bautista v.
Fugoso, 60 Phil. 383, 389 [1934] and Aquino v. Commission on Elections, L-28392, January 29 1968)
Since the Twelfth Congress has not yet completed its non-legislative duty to canvass the votes and proclaim the
duly elected President and Vice-President, its existence as the National Board of Canvassers, as well as that of
the Joint Committee to which it referred the preliminary tasks of authenticating and canvassing the certificates of
canvass, has not become functus officio.
In sum, despite the adjournment sine die of Congress, there is no legal impediment to the Joint Committee
completing the tasks assigned to it and transmitting its report for the approval of the joint public session of both
Houses of Congress, which may reconvene without need of call by the President to a special session.
WHEREFORE, the instant Petition is hereby DISMISSED.

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, 1988 1 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 Ordoñez,
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 1987 9 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. Roño of twelve (12) each;
Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and
Teodoro Q. Peña of ten (10) each.13
The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime.
It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the people successfully unseated former President Marcos,
should draft into its proposed Constitution the provisions under consideration which are envisioned to remedy, if
not correct, the evils that flow from the holding of multiple governmental offices and employment. In fact, as
keenly observed by Mr. Justice Isagani A. Cruz during the deliberations in these cases, one of the strongest
selling points of the 1987 Constitution during the campaign for its ratification was the assurance given by its
proponents that the scandalous practice of Cabinet members holding multiple positions in the government and
collecting unconscionably excessive compensation therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket
prohibition against the holding of multiple offices or employment in the government subsuming both elective and
appointive public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13,
Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and
assistants from holding any other office or employment during their tenure, unless otherwise provided in the
Constitution itself.
Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the
intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family
in so far as holding other offices or employment in the government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the
Constitution on the disqualifications of certain public officials or employees from holding other offices or
employment. Under Section 13, Article VI, "(N)o Senator or Member of the House of Representatives may hold
any other office or employment in the Government . . .". Under Section 5(4), Article XVI, "(N)o member of the
armed forces in the active service shall, at any time, be appointed in any capacity to a civilian position in the
Government,including government-owned or controlled corporations or any of their subsidiaries." Even Section 7
(2), Article IX-B, relied upon by respondents provides "(U)nless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold any other office or employment in the Government."
It is quite notable that in all these provisions on disqualifications to hold other office or employment, the
prohibition pertains to an office or employment in the government and government-owned or controlled
corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that
"(T)he President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or employment during their tenure." In the latter
provision, the disqualification is absolute, not being qualified by the phrase "in the Government." The prohibition
imposed on the President and his official family is therefore all-embracing and covers both public and private
office or employment.
Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure,
directly or indirectly, practice any other profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their subsidiaries." These
sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are not
similarly imposed on other public officials or employees such as the Members of Congress, members of the civil
service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the
President and his official family as a class by itself and to impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was
also succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during
the floor deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally
found in the General Provisions and the anticipated report on the Executive Department. Commissioner Foz
Commented, "We actually have to be stricter with the President and the members of the Cabinet because they
exercise more powers and, therefore, more cheeks and restraints on them are called for because there is more
possibility of abuse in their case."14
Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the
government during their tenure when such is allowed by law or by the primary functions of their positions,
members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the
Constitution itself. In other words, Section 7, Article I-XB is meant to lay down the general rule applicable to all
elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice- President, Members of the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article
VII cannot possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987 Constitution.
To construe said qualifying phrase as respondents would have us do, would render nugatory and meaningless
the manifest intent and purpose of the framers of the Constitution to impose a stricter prohibition on the
President, Vice-President, Members of the Cabinet, their deputies and assistants with respect to holding other
offices or employment in the government during their tenure. Respondents' interpretation that Section 13 of
Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the distinction so
carefully set by the framers of the Constitution as to when the high-ranking officials of the Executive Branch from
the President to Assistant Secretary, on the one hand, and the generality of civil servants from the rank
immediately below Assistant Secretary downwards, on the other, may hold any other office or position in the
government during their tenure.
Moreover, respondents' reading of the provisions in question would render certain parts of the Constitution
inoperative. This observation applies particularly to the Vice-President who, under Section 13 of Article VII is
allowed to hold other office or employment when so authorized by the Constitution, but who as an elective public
official under Sec. 7, par. (1) of Article I-XB is absolutely ineligible "for appointment or designation in any capacity
to any public office or position during his tenure." Surely, to say that the phrase "unless otherwise provided in this
Constitution" found in Section 13, Article VII has reference to Section 7, par. (1) of Article I-XB would render
meaningless the specific provisions of the Constitution authorizing the Vice-President to become a member of
the Cabinet,15 and to act as President without relinquishing the Vice-Presidency where the President shall not
nave been chosen or fails to qualify.16 Such absurd consequence can be avoided only by interpreting the two
provisions under consideration as one, i.e., Section 7, par. (1) of Article I-XB providing the general rule and the
other, i.e., Section 13, Article VII as constituting the exception thereto. In the same manner must Section 7, par.
(2) of Article I-XB be construed vis-a-vis Section 13, Article VII.
It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be
separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject
are to be brought into view and to be so interpreted as to effectuate the great purposes of the
instrument.17 Sections bearing on a particular subject should be considered and interpreted together as to
effectuate the whole purpose of the Constitution18 and one section is not to be allowed to defeat another, if by
any reasonable construction, the two can be made to stand together.19
In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will
render every word operative, rather than one which may make the words idle and nugatory. 20
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the
President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple
offices or employment in the government during their tenure, the exception to this prohibition must be read with
equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as
intended to be a positive and unequivocal negation of the privilege of holding multiple government offices or
employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as
intended to be a positive and unequivocal negation. 21 The phrase "unless otherwise provided in this Constitution"
must be given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to
wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or
acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary
of Justice being ex-officiomember of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the
Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified
therein without additional compensation in an ex-officio capacity as provided by law and as required22 by the
primary functions of said officials' office. The reason is that these posts do no comprise "any other office" within
the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions
on said officials.23 To characterize these posts otherwise would lead to absurd consequences, among which are:
The President of the Philippines cannot chair the National Security Council reorganized under Executive Order
No. 115 (December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries of
National Defense, Justice, Labor and Employment and Local Government sit in this Council, which would then
have no reason to exist for lack of a chairperson and members. The respective undersecretaries and assistant
secretaries, would also be prohibited.
The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and
Youth Council (NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are
attached to his department for policy coordination and guidance. Neither can his Undersecretaries and Assistant
Secretaries chair these agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary Board. 24 Neither can their respective
undersecretaries and assistant secretaries. The Central Bank Governor would then be assisted by lower ranking
employees in providing policy direction in the areas of money, banking and credit.25
Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution,
viewed as a continuously operative charter of government, is not to be interpreted as demanding the impossible
or the impracticable; and unreasonable or absurd consequences, if possible, should be avoided. 26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held
without additional compensation in ex-officio capacities as provided by law and as required by the primary
functions of the concerned official's office. The term ex-officio means "from office; by virtue of office." It refers to
an "authority derived from official character merely, not expressly conferred upon the individual character, but
rather annexed to the official position." Ex-officio likewise denotes an "act done in an official character, or as a
consequence of office, and without any other appointment or authority than that conferred by the office." 27 An ex-
officio member of a board is one who is a member by virtue of his title to a certain office, and without further
warrant or appointment.28 To illustrate, by express provision of law, the Secretary of Transportation and
Communications is the ex-officioChairman of the Board of the Philippine Ports Authority, 29 and the Light Rail
Transit Authority.30
The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel
Control and Inspection Board,31 thus: "An examination of section 2 of the questioned statute (R.A. 3137) reveals
that for the chairman and members of the Board to qualify they need only be designated by the respective
department heads. With the exception of the representative from the private sector, they sit ex-officio. In order to
be designated they must already be holding positions in the offices mentioned in the law. Thus, for instance, one
who does not hold a previous appointment in the Bureau of Customs, cannot, under the act, be designated a
representative from that office. The same is true with respect to the representatives from the other offices. No
new appointments are necessary. This is as it should be, because the representatives so designated merely
perform duties in the Board in addition to those already performed under their original appointments."32
The term "primary" used to describe "functions" refers to the order of importance and thus means chief or
principal function. The term is not restricted to the singular but may refer to the plural. 33 The additional duties
must not only be closely related to, but must be required by the official's primary functions. Examples of
designations to positions by virtue of one's primary functions are the Secretaries of Finance and Budget sitting as
members of the Monetary Board, and the Secretary of Transportation and Communications acting as Chairman
of the Maritime Industry Authority34 and the Civil Aeronautics Board.
If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible, or
otherwise alien to the primary function of a cabinet official, such additional functions would fall under the purview
of "any other office" prohibited by the Constitution. An example would be the Press Undersecretary sitting as a
member of the Board of the Philippine Amusement and Gaming Corporation. The same rule applies to such
positions which confer on the cabinet official management functions and/or monetary compensation, such as but
not limited to chairmanships or directorships in government-owned or controlled corporations and their
subsidiaries.
Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or
assistants which are not inconsistent with those already prescribed by their offices or appointments by virtue of
their special knowledge, expertise and skill in their respective executive offices is a practice long-recognized in
many jurisdictions. It is a practice justified by the demands of efficiency, policy direction, continuity and
coordination among the different offices in the Executive Branch in the discharge of its multifarious tasks of
executing and implementing laws affecting national interest and general welfare and delivering basic services to
the people. It is consistent with the power vested on the President and his alter egos, the Cabinet members, to
have control of all the executive departments, bureaus and offices and to ensure that the laws are faithfully
executed.35 Without these additional duties and functions being assigned to the President and his official family
to sit in the governing bodies or boards of governmental agencies or instrumentalities in an ex-officio capacity as
provided by law and as required by their primary functions, they would be supervision, thereby deprived of the
means for control and resulting in an unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties or functions may not transgress the prohibition
embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required
by the primary functions of the official concerned, who is to perform the same in an ex-officio capacity as
provided by law, without receiving any additional compensation therefor.
The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the
official concerned has no right to receive additional compensation for his services in the said position. The
reason is that these services are already paid for and covered by the compensation attached to his principal
office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the Monetary Board as
an ex-officio member thereof, he is actually and in legal contemplation performing the primary function of his
principal office in defining policy in monetary and banking matters, which come under the jurisdiction of his
department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it be in
the form of a per them or an honorarium or an allowance, or some other such euphemism. By whatever name it
is designated, such additional compensation is prohibited by the Constitution.
It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian Monsod to
add to Section 7, par. (2), Article IX-B, originally found as Section 3 of the General Provisions, the exception
"unless required by the functions of his position,"36 express reference to certain high-ranking appointive public
officials like members of the Cabinet were made. 37 Responding to a query of Commissioner Blas Ople,
Commissioner Monsod pointed out that there are instances when although not required by current law,
membership of certain high-ranking executive officials in other offices and corporations is necessary by reason of
said officials' primary functions. The example given by Commissioner Monsod was the Minister of Trade and
Industry.38
While this exchange between Commissioners Monsod and Ople may be used as authority for saying that
additional functions and duties flowing from the primary functions of the official may be imposed upon him
without offending the constitutional prohibition under consideration, it cannot, however, be taken as authority for
saying that this exception is by virtue of Section 7, par. (2) of Article I-XB. This colloquy between the two
Commissioners took place in the plenary session of September 27, 1986. Under consideration then was Section
3 of Committee Resolution No. 531 which was the proposed article on General Provisions. 39 At that time, the
article on the Civil Service Commission had been approved on third reading on July 22, 1986, 40 while the article
on the Executive Department, containing the more specific prohibition in Section 13, had also been earlier
approved on third reading on August 26, 1986. 41 It was only after the draft Constitution had undergone
reformatting and "styling" by the Committee on Style that said Section 3 of the General Provisions became
Section 7, par. (2) of Article IX-B and reworded "Unless otherwise allowed by law or by the primary functions of
his position. . . ."
What was clearly being discussed then were general principles which would serve as constitutional guidelines in
the absence of specific constitutional provisions on the matter. What was primarily at issue and approved on that
occasion was the adoption of the qualified and delimited phrase "primary functions" as the basis of an exception
to the general rule covering all appointive public officials. Had the Constitutional Commission intended to dilute
the specific prohibition in said Section 13 of Article VII, it could have re-worded said Section 13 to conform to the
wider exceptions provided in then Section 3 of the proposed general Provisions, later placed as Section 7, par.
(2) of Article IX-B on the Civil Service Commission.
That this exception would in the final analysis apply also to the President and his official family is by reason of
the legal principles governing additional functions and duties of public officials rather than by virtue of Section 7,
par. 2, Article IX-B At any rate, we have made it clear that only the additional functions and duties "required," as
opposed to "allowed," by the primary functions may be considered as not constituting "any other office."
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention
in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when
other guides fail42 as said proceedings are powerless to vary the terms of the Constitution when the meaning is
clear.1âwphi1Debates 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 Government 45 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.
DENNIS A. B. FUNA, G.R. No. 184740 she does not occupy it in an ex-officio capacity since an ex-officio position does not require any further warrant or
Petitioner, appoint.[9]
- versus - Promulgated:
EXECUTIVE SECRETARY EDUARDO R. ERMITA, February 11, 2010 Petitioner further contends that even if Bautistas appointment or designation as OIC of MARINA was intended to
Office of the President, SEC. LEANDRO R. be merely temporary, still, such designation must not violate a standing constitutional prohibition, citing the
MENDOZA, in his official capacity as Secretary rationale in Achacoso v. Macaraig.[10] Section 13, Article VII of the 1987 Constitution does not enumerate
of the Department of Transportation and temporariness as one (1) of the exceptions thereto. And since a temporary designation does not have a
Communications, USEC. MARIA ELENA H. maximum duration, it can go on for months or years. In effect, the temporary appointment/designation can
BAUTISTA, in her official capacities as effectively circumvent the prohibition. Allowing undersecretaries or assistant secretaries to occupy other
Undersecretary of the Department of government posts would open a Pandoras Box as to let them feast on choice government positions. Thus, in
Transportation and Communications and as case of vacancy where no permanent appointment could as yet be made, the remedy would be to designate one
Officer-in-Charge of the Maritime Industry (1) of the two (2) Deputy Administrators as the Acting Administrator. Such would be the logical course, the said
Authority (MARINA), officers being in a better position in terms of knowledge and experience to run the agency in a temporary
Respondents. capacity. Should none of them merit the Presidents confidence, then the practical remedy would be for
x-----------------------------------------------------------------------------------------x Undersecretary Bautista to first resign as Undersecretary in order to qualify her as Administrator of MARINA. As
DECISION 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
VILLARAMA, JR., J.: the 1987 Constitution.[11]
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 Petitioner likewise asserts the incompatibility between the posts of DOTC Undersecretary and MARINA
respondent Undersecretary Maria Elena H. Bautista as Officer-in-Charge (OIC) of the Maritime Industry Authority Administrator. The reason is that with respect to the affairs in the maritime industry, the recommendations of
(MARINA). 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
The Antecedents one (1) and the same person. There is no more checking and counter-checking of powers and functions, and
On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent Maria Elena H. Bautista therein lies the danger to the maritime industry. There is no longer a person above the Administrator of MARINA
(Bautista) as Undersecretary of the Department of Transportation and Communications (DOTC), vice Agustin who will be reviewing the acts of said agency because the person who should be overseeing MARINA, the
R. Bengzon. Bautista was designated as Undersecretary for Maritime Transport of the department under Undersecretary for Maritime Transport, has effectively been compromised.[12]
Special Order No. 2006-171 dated October 23, 2006.[1]
Finally, petitioner contends that there is a strong possibility in this case that the challenge herein can be rendered
On September 1, 2008, following the resignation of then MARINA Administrator Vicente T. Suazo, Jr., Bautista moot through the expediency of simply revoking the temporary appointment/designation. But since a similar
was designated as Officer-in-Charge (OIC), Office of the Administrator, MARINA, in concurrent capacity as violation can be committed in the future, there exists a possibility of evading review, and hence supervening
DOTC Undersecretary.[2] 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
On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned citizen and lawyer, filed the compelling reason for this case to be decided: the issue raised being capable of repetition, yet evading review. [13]
instant petition challenging the constitutionality of Bautistas appointment/designation, which is proscribed by On the other hand, the respondents argue that the requisites of a judicial inquiry are not present in this case. In
the prohibition on the President, Vice-President, the Members of the Cabinet, and their deputies and fact, there no longer exists an actual controversy that needs to be resolved in view of the appointment of
assistants to hold any other office or employment. respondent Bautista as MARINA Administrator effective February 2, 2009 and the relinquishment of her post as
On January 5, 2009, during the pendency of this petition, Bautista was appointed Administrator of DOTC Undersecretary for Maritime Transport, which rendered the present petition moot and
the MARINA vice Vicente T. Suazo, Jr.[3] and she assumed her duties and responsibilities as such on February academic. Petitioners prayer for a temporary restraining order or writ of preliminary injunction is likewise moot
2, 2009.[4] and academic since, with this supervening event, there is nothing left to enjoin.[14]

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
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 As to respondents contention that the concurrent positions of DOTC Undersecretary for Maritime
involves the naming of a particular person to a specified public office. That is the common Transport and MARINA OIC Administrator are not incompatible offices, we find no necessity for delving into this
understanding of the term. However, where the person is merely designated and not matter. Incompatibility of offices is irrelevant in this case, unlike in the case of PCGG Chairman Magdangal Elma
appointed, the implication is that he shall hold the office only in a temporary capacity and may in Public Interest Center, Inc. v. Elma.[40] Therein we held that Section 13, Article VII is not applicable to the
be replaced at will by the appointing authority. In this sense, the designation is considered only PCGG Chairman or to the Chief Presidential Legal Counsel, as he is not a cabinet member, undersecretary or
an acting or temporary appointment, which does not confer security of tenure on the person assistant secretary.[41]
named.[36] [EMPHASIS SUPPLIED.]
WHEREFORE, the petition is GRANTED. The designation of respondent Ma. Elena H. Bautista as Officer-in-
Clearly, respondents reliance on the foregoing definitions is misplaced considering that the above-cited case Charge, Office of the Administrator, Maritime Industry Authority, in a concurrent capacity with her position as DOTC
addressed the issue of whether petitioner therein acquired valid title to the disputed position and so had the right to Undersecretary for Maritime Transport, is hereby declared UNCONSTITUTIONAL for being violative of Section 13,
security of tenure. It must be stressed though that while the designation was in the nature of an acting and temporary Article VII of the 1987 Constitution and therefore, NULL and VOID.
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 No costs.
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, SO ORDERED.
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.
 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 Agra’s 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
Secretary6and 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 Agra’s 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 Agra’s concurrent designation constituted
"holding of multiple offices," his continued service as the Acting Solicitor General was akin to a hold-over; that
upon Agra’s 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 OSG’s 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 DOJ’s 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 Agra’s 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 Agra’s 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 Agra’s 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 Agra’s 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 President’s 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 Agra’s 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, Agra’s 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. x x x x
The ex officio position being actually and in legal contemplation part of the principal office, it follows that the
official concerned has no right to receive additional compensation for his services in the said position. The
reason is that these services are already paid for and covered by the compensation attached to his principal
office. 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 DOJ’s
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 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.
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.x x x x
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 Agra’s 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.
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.
SO ORDERED.

3. Effect of declaration of unconstitutionality of Agra’s 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.
 G.R. No. 147392 March 12, 2004
BENEDICTO ERNESTO R. BITONIO, JR., petitioner,
vs.
COMMISSION ON AUDIT and CELSO D. GANGAN, CHAIRMAN OF THE COMMISSION ON
AUDIT,respondents.
DECISION
CALLEJO, SR., J.:
The instant petition filed under Rule 64 of the Revised Rules of Court seeks the annulment of the Decision1 of the
Commission on Audit (COA) dated January 30, 2001 denying the petitioner’s motion for the reconsideration of
the COA Notices of Disallowance Nos. 98-008-101 (95) and 98-017-101 (97) dated July 31, 1998 and October 9,
1998, respectively, involving the per diems the petitioner received from the Philippine Economic Zone Authority
(PEZA). In order to avoid multiplicity of suits, an Amended Petition2 dated August 16, 2002 was later filed to
include in the resolution of the instant petition Notice of Disallowance No. 98-003-101 (96) dated July 31, 1998
which was belatedly received by the petitioner on August 13, 2002.
The antecedent facts are as follows:
In 1994, petitioner Benedicto Ernesto R. Bitonio, Jr. was appointed Director IV of the Bureau of Labor Relations
in the Department of Labor and Employment.
In a Letter dated May 11, 1995 addressed to Honorable Rizalino S. Navarro, then Secretary of the Department of
Trade and Industry, Acting Secretary Jose S. Brilliantes of the Department of Labor and Employment designated
the petitioner to be the DOLE representative to the Board of Directors of PEZA. 3 Such designation was in
pursuance to Section 11 of Republic Act No. 7916, otherwise known as the Special Economic Zone Act of 1995,
which provides:
Section 11. The Philippine Economic Zone Authority (PEZA) Board. – There is hereby created a body
corporate to be known as the Philippine Economic Zone Authority (PEZA)…
… The COA anchors the disallowance of per diems in the case of Civil Liberties Union v. Executive
The Board shall be composed of the Director General as ex officio chairman with eight (8) members as
follows: the Secretaries or their representatives of the Department of Trade and Industry, the
Department of Finance, the Department of Labor and Employment, the Department of [the] Interior and
Local Government, the National Economic and Development Authority, and the Bangko Sentral ng
Pilipinas, one (1) representative from the labor sector, and one (1) representative from the
investor/business sector in the ECOZONE.
… Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants
Members of the Board shall receive a per diem of not less than the amount equivalent to the
representation and transportation allowances of the members of the Board and/or as may be
determined by the Department of Budget and Management: Provided, however, That the per
diem collected per month does not exceed the equivalent of four (4) meetings.
As representative of the Secretary of Labor to the PEZA, the petitioner was receiving a per diem for every board
meeting he attended during the years 1995 to 1997.
After a post audit of the PEZA’s disbursement transactions, the COA disallowed the payment of per diems to the
petitioner and thus issued the following:
(a) Notice of Disallowance No. 98-008-101 (95) dated July 31, 1998 for the total sum of P24,500
covering the period of July-December 1995;
(b) Notice of Disallowance No. 98-003-101 (96) also dated July 31, 1998 for a total amount of P100,000
covering the period of January 1996 to January 1997;4
(c) Notice of Disallowance No. 98-017-101 (97) dated October 9, 1998 for the total amount of P210,000
covering the period of February 1997 to January 1998.
The uniform reason for the disallowance was stated in the Notices, as follows:
Cabinet members, their deputies and assistants holding other offices in addition to their primary office
and to receive compensation therefore was declared unconstitutional by the Supreme Court in the Civil
Liberties Union vs. Executive Secretary. Disallowance is in pursuance to COA Memorandum No. 97-
038 dated September 19, 1997 implementing Senate Committee Report No. 509. 5
On November 24, 1998, the petitioner filed his motion for reconsideration to the COA on the following grounds:
1. The Supreme Court in its Resolution dated August 2, 1991 on the motion for clarification filed by the
Solicitor General modified its earlier ruling in the Civil Liberties Union case which limits the prohibition to
Cabinet Secretaries, Undersecretaries and their Assistants. Officials given the rank equivalent to a
Secretary, Undersecretary or Assistant Secretary and other appointive officials below the rank of
Assistant Secretary are not covered by the prohibition.
2. Section 11 of R.A. No. 7916 provides the legal basis for the movant to receive per diem. Said law
was enacted in 1995, four years after the Civil Liberties Union case became final. In expressly
authorizing per diems, Congress should be conclusively presumed to have been aware of the
parameters of the constitutional prohibition as interpreted in the Civil Liberties Union case.6
On January 30, 2001, the COA rendered the assailed decision denying petitioner’s motion for reconsideration.
Hence, this petition.
The issue in this case is whether or not the COA correctly disallowed the per diems received by the petitioner for
his attendance in the PEZA Board of Directors’ meetings as representative of the Secretary of Labor.
We rule in the affirmative.
Secretary7 where the Court declared Executive Order No. 284 8 allowing government officials to hold multiple
positions in government, unconstitutional. Thus, Cabinet Secretaries, Undersecretaries, and their Assistant
Secretaries, are prohibited to hold other government offices or positions in addition to their primary positions and
to receive compensation therefor, except in cases where the Constitution expressly provides. The Court’s ruling
was in conformity with Section 13, Article VII of the 1987 Constitution which reads:
shall not, unless otherwise provided in this Constitution, hold any other office or employment during
their tenure. They shall not, during their tenure, directly or indirectly, practice any other profession,
participate in any business or be financially interested in any other contract with, or in any franchise, or
special privilege granted by the Government or any subdivision, agency or instrumentality thereof,
including any government-owned or controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.
The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall
not, during his tenure, be appointed as members of the Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries, Chairmen, or heads of bureaus or offices, including
government-owned or controlled corporations and subsidiaries.
Pursuant to the Court’s ruling in this case and the Senate Committee Report on the Accountability of Public
Officers and Investigations (Blue Ribbon),9 the COA issued Memorandum No. 97-038 which authorized the
issuance of the Notices of Disallowances for the per diems received by the petitioner. It states:
 The Commission received a copy of Senate Committee Report No. 509 urging "the Commission on
Audit to immediately cause the disallowance of any payment of any form of additional compensation or
remuneration to cabinet secretaries, their deputies and assistants, or their representatives in violation of
the rule on multiple positions and to effect the refund of any and all such additional compensation given
to and received by the officials concerned, or their representatives, from the time of the finality of the
Supreme Court ruling in Civil Liberties Union vs. Executive Secretary to the present." In the Civil
Liberties Union case, the Supreme Court ruled that Cabinet Secretaries, their deputies and assistants
may not hold any other office or employment. It declared Executive Order No. 284 unconstitutional
insofar as it allows Cabinet members, their deputies and assistants to hold other offices in addition to
their primary office and to receive compensation therefor. The said decision became final and executory
on August 19, 1991.
In view thereof, all unit heads/auditors/team leaders of the national government agencies and
government-owned or controlled corporations which have effected payment of subject allowances are
directed to implement the recommendation contained in the subject Senate Committee Report by
undertaking the following audit action: …10
The petitioner maintains that he is entitled to the payment of per diems, as R.A. No. 7916 specifically and
categorically provides for the payment of a per diem for the attendance of the members of the Board of Directors
at board meetings of PEZA. The petitioner contends that this law is presumed to be valid; unless and until the
law is declared unconstitutional, it remains in effect and binding for all intents and purposes. Neither can this law
be rendered nugatory on the basis of a mere memorandum circular – COA Memorandum No. 97-038 issued by
the COA. The petitioner stresses that R.A. No. 7916 is a statute more superior than an administrative directive
and the former cannot just be repealed or amended by the latter.
The petitioner also posits that R.A. No. 7916 was enacted four (4) years after the case of Civil Liberties
Union was promulgated. It is, therefore, assumed that the legislature, before enacting a law, was aware of the
prior holdings of the courts. Since the constitutionality or the validity of R.A. No. 7916 was never challenged, the
provision on the payment of per diems remains in force notwithstanding the Civil Liberties Union case.
Nonetheless, the petitioner’s position as Director IV is not included in the enumeration of officials prohibited to
receive additional compensation as clarified in the Resolution of the Court dated August 1, 1991; thus, he is still
entitled to receive the per diems.
The petitioner’s contentions are untenable.
It must be noted that the petitioner’s presence in the PEZA Board meetings is solely by virtue of his capacity as
representative of the Secretary of Labor. As the petitioner himself admitted, there was no separate or special
appointment for such position.11 Since the Secretary of Labor is prohibited from receiving compensation for his
additional office or employment, such prohibition likewise applies to the petitioner who sat in the Board only in
behalf of the Secretary of Labor.
The petitioner’s case stands on all fours with the case of Dela Cruz v. Commission on Audit.12 Here, the Court
upheld the COA in disallowing the payment of honoraria and per diems to the officers concerned who sat as
members of the Board of Directors of the National Housing Authority. The officers concerned sat as alternates of
their superiors in an ex officio capacity. Citing also the Civil Liberties Union case, the Court explained thus:
"The ex-officio position being actually and in legal contemplation part of the principal office, it follows
that the official concerned has no right to receive additional compensation for his services in the said
position. The reason is that these services are already paid for and covered by the compensation
attached to his principal office. It should be obvious that if, say, the Secretary of Finance attends a
meeting of the Monetary Board as an ex-officio member thereof, he is actually and in legal
contemplation performing the primary function of his principal office in defining policy in monetary
banking matters, which come under the jurisdiction of his department. For such attendance, therefore,
he is not entitled to collect any extra compensation, whether it be in the form of a per diem or
an honorarium or an allowance, or some other such euphemism. By whatever name it is designated,
such additional compensation is prohibited by the Constitution."
…
Since the Executive Department Secretaries, as ex-officio members of the NHA Board, are prohibited
from receiving "extra (additional) compensation, whether it be in the form of a per diem or
an honorarium or an allowance, or some other such euphemism," it follows that petitioners who sit as
their alternates cannot likewise be entitled to receive such compensation. A contrary rule would give
petitioners a better right than their principals.13
Similarly in the case at bar, we cannot allow the petitioner who sat as representative of the Secretary of Labor in
the PEZA Board to have a better right than his principal. As the representative of the Secretary of Labor, the
petitioner sat in the Board in the same capacity as his principal. Whatever laws and rules the member in the
Board is covered, so is the representative; and whatever prohibitions or restrictions the member is subjected, the
representative is, likewise, not exempted. Thus, his position as Director IV of the DOLE which the petitioner
claims is not covered by the constitutional prohibition set by the Civil Liberties Union case is of no moment. The
petitioner attended the board meetings by the authority given to him by the Secretary of Labor to sit as his
representative. If it were not for such designation, the petitioner would not have been in the Board at all.
There is also no merit in the allegation that the legislature was certainly aware of the parameters set by the Court
when it enacted R.A. No. 7916, four (4) years after the finality of the Civil Liberties Union case. The payment
of per diems was clearly an express grant in favor of the members of the Board of Directors which the petitioner
is entitled to receive.
It is a basic tenet that any legislative enactment must not be repugnant to the highest law of the land which is the
Constitution. No law can render nugatory the Constitution because the Constitution is more superior to a
statute.14 If a law happens to infringe upon or violate the fundamental law, courts of justice may step in to nullify
its effectiveness.15 It is the task of the Court to see to it that the law must conform to the Constitution. In the
clarificatory resolution issued by the Court in the Civil Liberties Union case on August 1, 1991, the Court
addressed the issue as to the extent of the exercise of legislative prerogative, to wit:
The Solicitor General next asks: "x x x may the Decision then control or otherwise encroach on the
exclusive competence of the legislature to provide funds for a public purpose, in terms of compensation
or honoraria under existing laws, where in the absence of such provision said laws would otherwise
meet the terms of the "exception by law?" Again, the question is anchored on a misperception. It must
be stressed that the so-called "exclusive competence of the legislature to provide funds for a public
purpose" or to enact all types of laws, for that matter, is not unlimited. Such competence must be
exercised within the framework of the fundamental law from which the Legislature draws its
power and with which the resulting legislation or statute must conform. When the Court sets
aside legislation for being violative of the Constitution, it is not thereby substituting its wisdom
for that of the Legislature or encroaching upon the latter’s prerogative, but again simply
discharging its sacred task of safeguarding and upholding the paramount law.
The framers of R.A. No. 7916 must have realized the flaw in the law which is the reason why the law was later
amended by R.A. No. 874816 to cure such defect. In particular, Section 11 of R.A. No. 7916 was amended to
read:
SECTION 11. The Philippine Economic Zone Authority (PEZA) Board. – There is hereby created a body
corporate to be known as the Philippine Economic Zone Authority (PEZA) attached to the Department
of Trade and Industry. The Board shall have a director general with the rank of department
undersecretary who shall be appointed by the President. The director general shall be at least forty (40)
years of age, of proven probity and integrity, and a degree holder in any of the following fields:
 economics, business, public administration, law, management or their equivalent, and with at least ten
(10) years relevant working experience preferably in the field of management or public administration.
The director general shall be assisted by three (3) deputy directors general each for policy and
planning, administration and operations, who shall be appointed by the PEZA Board, upon the
recommendation of the director general. The deputy directors general shall be at least thirty-five (35)
years old, with proven probity and integrity and a degree holder in any of the following fields:
economics, business, public administration, law, management or their equivalent.

The Board shall be composed of thirteen (13) members as follows: the Secretary of the
Department of Trade and Industry as Chairman, the Director General of the Philippine Economic Zone
Authority as Vice-chairman, the undersecretaries of the Department of Finance, the Department of
Labor and Employment, the Department of [the] Interior and Local Government, the Department of
Environment and Natural Resources, the Department of Agriculture, the Department of Public Works
and Highways, the Department of Science and Technology, the Department of Energy, the Deputy
Director General of the National Economic and Development Authority, one (1) representative from the
labor sector, and one (1) representative from the investors/business sector in the ECOZONE. In case of
the unavailability of the Secretary of the Department of Trade and Industry to attend a particular board
meeting, the Director General of PEZA shall act as Chairman.17

As can be gleaned from above, the members of the Board of Directors was increased from 8 to 13, specifying
therein that it is the undersecretaries of the different Departments who should sit as board members of the
PEZA. The option of designating his representative to the Board by the different Cabinet Secretaries was
deleted. Likewise, the last paragraph as to the payment of per diems to the members of the Board of Directors
was also deleted, considering that such stipulation was clearly in conflict with the proscription set by the
Constitution.

Prescinding from the above, the petitioner is, indeed, not entitled to receive a per diem for his attendance at
board meetings during his tenure as member of the Board of Director of the PEZA.

IN LIGHT OF THE FOREGOING, the petition is DISMISSED. The assailed decision of the COA is AFFIRMED.

SO ORDERED.
PUBLIC INTEREST CENTER INC., LAUREANO T. G. R. No. 138965
ANGELES, and JOCELYN P. CELESTINO,
Petitioners,
- versus -
MAGDANGAL B. ELMA, as Chief Presidential
Legal Counsel and as Chairman of the
Presidential Commission on Good Government,
and RONALDO ZAMORA, as Executive Secretary, Promulgated:
Respondents. June 30, 2006
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - x
DECISION
CHICO-NAZARIO, J.:
This is an original action for Certiorari, Prohibition, and Mandamus, with a Prayer for Temporary
Restraining Order/Writ of Preliminary Injunction filed on 30 June 1999.[1] This action seeks to declare as null
and void the concurrent appointments of respondent Magdangal B. Elma as Chairman of the Presidential
Commission on Good Government (PCGG) and as Chief Presidential Legal Counsel (CPLC) for being
contrary to Section 13,[2] Article VII and Section 7, par. 2,[3] Article IX-B of the 1987 Constitution. In addition,
the petitioners further seek the issuance of the extraordinary writs of prohibition and mandamus, as well as a
temporary restraining order to enjoin respondent Elma from holding and discharging the duties of both
positions and from receiving any salaries, compensation or benefits from such positions during
the pendency of this petition.[4] Respondent Ronaldo Zamora was sued in his official capacity as Executive
Secretary.
On 30 October 1998, respondent Elma was appointed and took his oath of office as Chairman of the
PCGG. Thereafter, on 11 January 1999, during his tenure as PCGG Chairman, respondent Elma was appointed
CPLC. He took his oath of office as CPLC the following day, but he waived any remuneration that he may
receive as CPLC.[5]
Petitioners cited the case of Civil Liberties Union v. Executive Secretary [6] to support their position that
respondent Elmas concurrent appointments as PCGG Chairman and CPLC contravenes Section 13, Article VII
and Section 7, par. 2, Article IX-B of the 1987 Constitution. Petitioners also maintained that respondent Elma
was holding incompatible offices.
Citing the Resolution[7] in Civil Liberties Union v. Executive Secretary, respondents allege that the strict
prohibition against holding multiple positions provided under Section 13, Article VII of the 1987 Constitution
applies only to heads of executive departments, their undersecretaries and assistant secretaries; it does not
cover other public officials given the rank of Secretary, Undersecretary, or Assistant Secretary.
Respondents claim that it is Section 7, par. 2, Article IX-B of the 1987 Constitution that should be
applied in their case. This provision, according to the respondents, would allow a public officer to hold multiple
positions if (1) the law allows the concurrent appointment of the said official; and (2) the primary functions of
either position allows such concurrent appointment. Respondents also alleged that since there exists a close
relation between the two positions and there is no incompatibility between them, the primary functions of either
position would allow respondent Elmas concurrent appointments to both positions. Respondents further add that
the appointment of the CPLC among incumbent public officials is an accepted practice.
The resolution of this case had already been overtaken by supervening events. In 2001, the appointees
of former President Joseph Estrada were replaced by the appointees of the incumbent president,
Gloria Macapagal Arroyo. The present PCGG Chairman is Camilo Sabio, while the position vacated by the last
CPLC, now Solicitor General Antonio Nachura, has not yet been filled. There no longer exists an actual
controversy that needs to be resolved. However, this case raises a significant legal question as yet unresolved -
whether the PCGG Chairman can concurrently hold the position of CPLC. The resolution of this question
requires the exercise of the Courts judicial power, more specifically its exclusive and final authority to interpret
laws. Moreover, the likelihood that the same substantive issue raised in this case will be raised again compels
this Court to resolve it.[8] The rule is that courts will decide a question otherwise moot and academic if it is
capable of repetition, yet evading review.[9]
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.[10]
The merits of this case may now be discussed.
The issue in this case is whether the position of the PCGG Chairman or that of the CPLC falls
under the prohibition against multiple offices imposed by Section 13, Article VII and Section 7, par. 2, Article
IX-B of the 1987 Constitution, which provide that:
Art. VII .x x x x
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. x x x
Art. IX-Bx x x x
Section 7. No elective official shall be eligible for appointment or designation in any capacity to
any public office or position during his tenure.
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.
To harmonize these two provisions, this Court, in the case of Civil Liberties Union v. Executive
Secretary,[11] construed the prohibition against multiple offices contained in Section 7, Article IX-B andSection 13,
Article VII in this manner:
[T]hus, 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.
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,[12] 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[13] - whether
one office is subordinate to the other, in the sense that one office has the right to interfere with the other.
[I]n c o m p a t i b i l i t y 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
I n t h i s c a s e , a n i n c o m p a t i b i l i t y e xi s t s b e t w e e n t h e p o s i t i o n s o f t h e P C G G C h a i r m a n
a n d t h e C P L C . T h e d u t i e s o f t h e C P L C i n c l u d e g i vi n g i n d e p e n d e n t a n d i m p a r t i a l l e g a l
a d vi c e o n t h e a c t i o n s o f t h e h e a d s o f va r i o u s e x e c u t i ve d e p a r t m e n t s a n d a g e n c i e s a n d t o
r e vi e w i n ve s t i g a t i o n s i n vo l vi n g h e a d s o f e xe c u t i ve d e p a r t m e n t s a n d a g e n c i e s , a s we l l a s
o t h e r P r e s i d e n t i a l a p p o i n t e e s . Th e P C G G i s , wi t h o u t q u e s t i o n , a n a g e n c y u n d e r t h e
E xe c u t i ve D e p a r t m e n t . T h u s , t h e a c t i o n s o f t h e P C G G C h a i r m a n a r e s u b j e c t t o t h e r e vi e w
o f t h e C P L C . I n Me m o r a n d u m O r d e r N o . 1 5 2 , i s s u e d o n 9 J u l y 2 0 0 4 , t h e O f f i c e o f t h e
P r e s i d e n t , i n a n e f f o r t t o p r o m o t e e f f i c i e n c y a n d e f f e c t i ve c o o r d i n a t i o n , c l e a r l y d e l i n e a t e d
and specified the functions and duties of its senior officers as such:
SECTION 1. The Chief Presidential Legal Counsel (CPLC) shall advise and provide the
President with legal assistance on matters requiring her action, including matters pertaining to
legislation.
The CPLC shall have the following duties and functions:
a. Exercise administrative supervision over the Office of the CPLC;
b. Review and/or draft legal orders referred to her by the President on the following matters
that are subject of decisions of the President;
1. Executive Orders, proclamations, administrative orders, memorandum
orders, and other legal documents initiated by the President;
2. Decision on investigation involving Cabinet Secretaries, agency heads,
or Presidential appointees with the rank of Secretary conducted by the
Presidential Anti-Graft Commission (PAGC);[14]
As CPLC, respondent Elma will be required to give his legal opinion on his own actions as PCGG Chairman and
review any investigation conducted by the Presidential Anti-Graft Commission, which may involve himself as
PCGG Chairman. In such cases, questions on his impartiality will inevitably be raised. This is the situation that
the law seeks to avoid in imposing the prohibition against holding incompatible offices.
Having thus ruled that Section 7, Article IX-B of the 1987 Constitution enjoins the concurrent
appointments of respondent Elma as PCGG Chairman and CPLC inasmuch as they are incompatible offices, this
Court will proceed to determine whether such appointments violate the other constitutional provision regarding
multiple offices, Section 13, Article VII of the 1987 Constitution.
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, [15] 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[16], 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. (Underscoring 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.
Granting that the prohibition under Section 13, Article VII of the 1987 Constitution is applicable to the
present case, the defect in respondent Elmas concurrent appointments to the incompatible offices of the PCGG
Chairman and the CPLC would even be magnified when seen through the more stringent requirements imposed
by the said constitutional provision. In the aforecited case Civil Liberties Union v. Executive Secretary,[17] the
Court stressed that the language of Section 13, Article VII is a definite and unequivocal negation of the privilege
of holding multiple offices or employment. The Court cautiously allowed only two exceptions to the rule against
multiple offices: (1) those provided for under the Constitution, such as Section 3, Article VII, authorizing the Vice-
President to become a member of the Cabinet; or (2) posts occupied by the Executive officials specified in
Section 13, Article VII without additional compensation in an ex-officio capacity as provided by law and as
required by the primary functions of said officials office. The Court further qualified that additional duties must not
only be closely related to, but must be required by the officials primary functions. Moreover, the additional post
must be exercised in an ex-officio capacity, which denotes an act done in an official character, or as a
consequence of office, and without any other appointment or authority than that conferred by the office. [18] Thus,
it will not suffice that no additional compensation shall be received by virtue of the second appointment, it is
mandatory that the second post is required by the primary functions of the first appointment and is exercised in
an ex-officio capacity.
With its forgoing qualifications, it is evident that even Section 13, Article VII does not sanction this
dual appointment. Appointment to the position of PCGG Chairman is not required by the primary functions of
the CPLC, and vice versa. The primary functions of the PCGG Chairman involve the recovery of ill-gotten
wealth accumulated by former President Ferdinand E. Marcos, his family and associates, the investigation of
graft and corruption cases assigned to him by the President, and the adoption of measures to prevent the
occurrence of corruption.[19] On the other hand, the primary functions of the CPLC encompass a different
matter, that is, the review and/or drafting of legal orders referred to him by the President. [20] And while
respondent Elma did not receive additional compensation in connection with his position as CPLC, he did
not act as either CPLC or PGCC Chairman in an ex-officio capacity. The fact that a separate appointment
had to be made for respondent Elma to qualify as CPLC negates the premise that he is acting in an ex-
officio capacity.
In sum, the prohibition in Section 13, Article VII of the 1987 Constitution does not
apply to respondent Elma since neither the PCGG Chairman nor the CPLC is a Cabinet
s e c r e t a r y , u n d e r s e c r e t a r y, o r a s s i s t a n t s e c r e t a r y. E ve n i f t h i s C o u r t a s s u m e s , a r g u e n d o ,
that Section 13, Article VII is applicable to respondent Elma, he still could not be
appointed concurrently to the offices of the PCGG Chairman and CPLC because neither
o f f i c e wa s o c c u p i e d b y h i m i n a n e x - o f f i c i o c a p a c i t y, a n d t h e p r i m a r y f u n c t i o n s o f o n e
o f f i c e d o n o t r e q u i r e a n a p p o i n t m e n t t o t h e o t h e r p o s t . Mo r e o v e r , e ve n i f t h e a p p o i n t m e n t s
i n q u e s t i o n a r e n o t c o ve r e d b y S e c t i o n 1 3 , A r t i c l e V I I o f t h e 1 9 8 7 C o n s t i t u t i o n , s a i d
a p p o i n t m e n t s a r e s t i l l p r o h i b i t e d u n d e r S e c t i o n 7 , A r t i c l e I X - B , wh i c h c o v e r s a l l a p p o i n t i ve
a n d e l e c t i ve o f f i c i a l s , d u e t o t h e i n c o m p a t i b i l i t y b e t we e n t h e p r i m a r y f u n c t i o n s o f t h e
offices of the PCGG Chairman and the CPLC.

WHEREFORE, premises considered, this Court partly GRANTS this petition and declares
respondent Magdangal B. Elmas concurrent appointments as PCGG Chairman and CPLC
as UNCONSTITUTIONAL. No costs.

SO ORDERED.
ARTURO M. DE CASTRO, G. R. No. 191002 Immediate Past President, ATTY. ISRAELITO P.
Petitioner, TORREON, and the latter in his own personal
capacity as a MEMBER of the PHILIPPINE BAR;
- versus -
MITCHELL JOHN L. BOISER;
JUDICIAL AND BAR COUNCIL (JBC) and
PRESIDENT GLORIA MACAPAGAL ARROYO, BAGONG ALYANSANG BAYAN (BAYAN)
Respondents. CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN
x-----------------------x SECRETARY GENERAL RENATO M. REYES, JR.;
JAIME N. SORIANO, CONFEDERATION FOR UNITY, RECOGNITION
Petitioner, G.R. No. 191032 AND ADVANCE-MENT OF GOVERNMENT
EMPLOYEES (COURAGE) CHAIRMAN
- versus - FERDINAND GAITE; KALIPUNAN NG DAMAYANG
MAHIHIRAP (KADAMAY) SECRETARY GENERAL
JUDICIAL AND BAR COUNCIL (JBC), GLORIA ARELLANO; ALYANSA NG
Respondent. NAGKAKAISANG KABATAAN NG SAMBAYANAN
x-----------------------x PARA SA KAUNLARAN (ANAKBAYAN)
PHILIPPINE CONSTITUTION ASSOCIATION CHAIRMAN KEN LEONARD RAMOS; TAYO ANG
(PHILCONSA), PAG-ASA CONVENOR ALVIN PETERS; LEAGUE
Petitioner, G.R. No. 191057 OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES
MARK TERRY LACUANAN RIDON; NATIONAL
- versus - UNION OF STUDENTS OF THE PHILIPPINES
(NUSP) CHAIRMAN EINSTEIN RECEDES;
JUDICIAL AND BAR COUNCIL (JBC), COLLEGE EDITORS GUILD OF THE PHILIPPINES
Respondent. (CEGP) CHAIRMAN VIJAE ALQUISOLA; and
x-----------------------x STUDENT CHRISTIAN MOVEMENT OF THE
IN RE APPLICABILITY OF SECTION 15, ARTICLE PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA
VII OF THE CONSTITUTION TO APPOINTMENTS ANGELA GUEVARRA;
TO THE JUDICIARY, A.M. No. 10-2-5-SC
ESTELITO P. MENDOZA, WALDEN F. BELLO and LORETTA ANN P.
Petitioner, ROSALES;
x-----------------------x
JOHN G. PERALTA, WOMEN TRIAL LAWYERS ORGANIZATION OF
Petitioner, THE PHILIPPINES, represented by YOLANDA
- versus - QUISUMBING-
JAVELLANA; BELLEZA ALOJADO DEMAISIP;
JUDICIAL AND BAR COUNCIL (JBC). G.R. No. 191149 TERESITA GANDIONCO-OLEDAN; MA. VERENA
Respondent. KASILAG-VILLANUEVA; MARILYN STA.
x - - - - - - - - - - - - - - - - - - - - - - - -x ROMANA; LEONILA DE JESUS; and GUINEVERE
PETER IRVING CORVERA; DE LEON.
Intervenors.
CHRISTIAN ROBERT S. LIM; x - - - - - - - - - - - - - - - - - - - - - - - -x
ATTY. AMADOR Z. TOLENTINO, JR., (IBP
ALFONSO V. TAN, JR.; GovernorSouthern Luzon), and ATTY. ROLAND B.
INTING
NATIONAL UNION OF PEOPLES LAWYERS; (IBP GovernorEastern Visayas),
Petitioners,
MARLOU B. UBANO;
- versus -
INTEGRATED BAR OF THE PHILIPPINES-DAVAO
DEL SUR CHAPTER, represented by its
JUDICIAL AND BAR COUNCIL (JBC),
Respondent. DECISION
x-----------------------x
PHILIPPINE BAR ASSOCIATION, INC., BERSAMIN, J.:
Petitioner,
The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the coming
presidential elections on May 10, 2010. Even before the event actually happens, it is giving rise to many legal
dilemmas. May the incumbent President appoint his successor, considering that Section 15, Article VII
(Executive Department) of the Constitution prohibits the President or Acting President from making appointments
within two months immediately before the next presidential elections and up to the end of his term, except
temporary appointments to executive positions when continued vacancies therein will prejudice public service or
endanger public safety? What is the relevance of Section 4 (1), Article VIII (Judicial Department) of the
- versus - Constitution, which provides that any vacancy in the Supreme Court shall be filled within 90 days from the
occurrence thereof, to the matter of the appointment of his successor? May the Judicial and Bar Council (JBC)
resume the process of screening the candidates nominated or being considered to succeed Chief Justice Puno,
and submit the list of nominees to the incumbent President even during the period of the prohibition under
G.R. No. 191342 Section 15, Article VII? Does mandamus lie to compel the submission of the shortlist of nominees by the JBC?

JUDICIAL AND BAR COUNCIL and HER Precs of the Consolidated Cases
EXCELLENCY GLORIA MACAPAGAL-ARROYO,
Respondents. Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R. No. 191002 [1] and
G.R. No. 191149[2] as special civil actions for certiorari and mandamus, praying that the JBC be compelled to
submit to the incumbent President the list of at least three nominees for the position of the next Chief Justice.

In G.R. No. 191032,[3] Jaime N. Soriano, via his petition for prohibition, proposes to prevent the JBC
from conducting its search, selection and nomination proceedings for the position of Chief Justice.

In G.R. No. 191057, a special civil action for mandamus,[4] the Philippine Constitution Association
G.R. No. 191420 (PHILCONSA) wants the JBC to submit its list of nominees for the position of Chief Justice to be vacated by
Chief Justice Puno upon his retirement on May 17, 2010, because the incumbent President is not covered by the
Present: prohibition that applies only to appointments in the Executive Department.

PUNO, C.J., In Administrative Matter No. 10-2-5-SC,[5] petitioner Estelito M. Mendoza, a former Solicitor General, seeks a
CARPIO, ruling from the Court for the guidance of the JBC on whether Section 15, Article VII applies to appointments to
CORONA, the Judiciary.
CARPIO MORALES,
VELASCO, JR., In G.R. No. 191342,[6] which the Court consolidated on March 9, 2010 with the petitions earlier filed, petitioners
NACHURA, Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated Bar of the Philippines (IBP) Governors for Southern
LEONARDO-DE CASTRO, Luzon and Eastern Visayas, respectively, want to enjoin and restrain the JBC from submitting a list of nominees
BRION, for the position of Chief Justice to the President for appointment during the period provided for in Section 15,
PERALTA, Article VII.
BERSAMIN,
DEL CASTILLO, All the petitions now before the Court pose as the principal legal question whether the incumbent President can
ABAD, appoint the successor of Chief Justice Puno upon his retirement. That question is undoubtedly impressed with
VILLARAMA, JR., transcendental importance to the Nation, because the appointment of the Chief Justice is any Presidents most
PEREZ, and important appointment.
MENDOZA, JJ.
A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela
Promulgated: and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24,
March 17, 2010 Cabanatuan City, respectively (Valenzuela),[7] by which the Court held that Section 15, Article VII prohibited the
exercise by the President of the power to appoint to judicial positions during the period therein fixed.
x-----------------------------------------------------------------------------------------x
 In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue expressed by legal
luminaries one side holds that the incumbent President is prohibited from making appointments within two
months immediately before the coming presidential elections and until the end of her term of office as President
on June 30, 2010, while the other insists that the prohibition applies only to appointments to executive positions
that may influence the election and, anyway, paramount national interest justifies the appointment of a Chief
Justice during the election ban has impelled the JBC to defer the decision to whom to send its list of at least
three nominees, whether to the incumbent President or to her successor. [8] He opines that the JBC is thereby
arrogating unto itself the judicial function that is not conferred upon it by the Constitution, which has limited it to
the task of recommending appointees to the Judiciary, but has not empowered it to finally resolve constitutional
questions, which is the power vested only in the Supreme Court under the Constitution. As such, he contends
that the JBC acted with grave abuse of discretion in deferring the submission of the list of nominees to the
President; and that a final and definitive resolution of the constitutional questions raised above would diffuse (sic)
the tension in the legal community that would go a long way to keep and maintain stability in the judiciary and the
political system.[9]
In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse of discretion
amounting to lack or excess of its jurisdiction when it resolved unanimously on January 18, 2010 to open the
search, nomination, and selection process for the position of Chief Justice to succeed Chief Justice Puno,
because the appointing authority for the position of Chief Justice is the Supreme Court itself, the Presidents
authority being limited to the appointment of the Members of the Supreme Court. Hence, the JBC should not
intervene in the process, unless a nominee is not yet a Member of the Supreme Court. [10]
For its part, PHILCONSA observes in its petition in G.R. No. 191057 that unorthodox and exceptional
circumstances spawned by the discordant interpretations, due perhaps to a perfunctory understanding, of Sec.
15, Art. VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII of the Constitution have bred a frenzied inflammatory
legal debate on the constitutional provisions mentioned that has divided the bench and the bar and the general
public as well, because of its dimensional impact to the nation and the people, thereby fashioning transcendental
questions or issues affecting the JBCs proper exercise of its principal function of recommending appointees to
the Judiciary by submitting only to the President (not to the next President) a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy from which the members of the Supreme Court and
judges of the lower courts may be appointed.[11] PHILCONSA further believes and submits that now is the time to
revisit and review Valenzuela, the strange and exotic Decision of the Court en banc.[12]
Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC to immediately
transmit to the President, within a reasonable time, its nomination list for the position of chief justice upon the
mandatory retirement of Chief Justice Reynato S. Puno, in compliance with its mandated duty under the
Constitution in the event that the Court resolves that the President can appoint a Chief Justice even during the
election ban under Section 15, Article VII of the Constitution.[13]
The petitioners in G.R. No. 191342 insist that there is an actual controversy, considering that the JBC
has initiated the process of receiving applications for the position of Chief Justice and has in fact begun the
evaluation process for the applications to the position, and is perilously near completing the nomination process
and coming up with a list of nominees for submission to the President, entering into the period of the ban on
midnight appointments on March 10, 2010, which only highlights the pressing and compelling need for a writ of
prohibition to enjoin such alleged ministerial function of submitting the list, especially if it will be cone within the
period of the ban on midnight appointments.[14]
Antecedents
These cases trace their genesis to the controversy that has arisen from the forthcoming compulsory
retirement of Chief Justice Puno on May 17, 2010, or seven days after the presidential election. Under Section
4(1), in relation to Section 9, Article VIII, that vacancy shall be filled within ninety days from the occurrence
thereof from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy.
On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the JBC, addressed
a letter to the JBC, requesting that the process for nominations to the office of the Chief Justice be commenced
immediately.
In its January 18, 2010 meeting en banc, therefore, the JBC passed a resolution,[15] which reads:
The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the
process of filling up the position of Chief Justice to be vacated on May 17, 2010 upon the
retirement of the incumbent Chief Justice Honorable Reynato S. Puno.
It will publish the opening of the position for applications or recommendations;
deliberate on the list of candidates; publish the names of candidates; accept comments on or
opposition to the applications; conduct public interviews of candidates; and prepare the
shortlist of candidates.
As to the time to submit this shortlist to the proper appointing authority, in the light of the
Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all views on
the matter.
18 January 2010.
(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council
As a result, the JBC opened the position of Chief Justice for application or recommendation, and published for
that purpose its announcement dated January 20, 2010,[16] viz:
The Judicial and Bar Council (JBC) announces the opening for application or
recommendation, of the position of CHIEF JUSTICE OF THE SUPREME COURT, which will
be vacated on 17 May 2010 upon the retirement of the incumbent Chief Justice, HON.
REYNATO S. PUNO.
Applications or recommendations for this position must be submitted not later than 4
February 2010 (Thursday) to the JBC Secretariat xxx:
The announcement was published on January 20, 2010 in the Philippine Daily Inquirer and The
Philippine Star.[17]
Conformably with its existing practice, the JBC automatically considered for the position of Chief Justice the five
most senior of the Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio; Associate
Justice Renato C. Corona; Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco,
Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the last two declined their nomination through
letters dated January 18, 2010 and January 25, 2010, respectively.[18]
Others either applied or were nominated. Victor Fernandez, the retired Deputy Ombudsman for Luzon, applied,
but later formally withdrew his name from consideration through his letter dated February 8, 2010. Candidates
who accepted their nominations without conditions were Associate Justice Renato C. Corona; Associate Justice
Teresita J. Leonardo-De Castro; Associate Justice Arturo D. Brion; and Associate Justice Edilberto G. Sandoval
(Sandiganbayan). Candidates who accepted their nominations with conditions were Associate Justice Antonio T.
Carpio and Associate Justice Conchita Carpio Morales.[19] Declining their nominations were Atty. Henry Villarica
(via telephone conversation with the Executive Officer of the JBC on February 5, 2010) and Atty. Gregorio M.
Batiller, Jr. (via telephone conversation with the Executive Officer of the JBC on February 8, 2010).[20]
The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to meet the standards set
by the JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the Office of the Ombudsman (due to cases
pending in the Office of the Ombudsman).[21]
In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the
following candidates to invite the public to file their sworn complaint, written report, or opposition, if any, not later
than February 22, 2010, to wit: Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio
Morales, Associate Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice Sandoval.
The announcement came out in the Philippine Daily Inquirer and The Philippine Star issues of February 13,
2010.[22]
Issues
Although it has already begun the process for the filling of the position of Chief Justice Puno in
accordance with its rules, the JBC is not yet decided on when to submit to the President its list of nominees for
the position due to the controversy now before us being yet unresolved. In the meanwhile, time is marching in
quick step towards May 17, 2010 when the vacancy occurs upon the retirement of Chief Justice Puno.
The actions of the JBC have sparked a vigorous debate not only among legal luminaries, but also
among non-legal quarters, and brought out highly disparate opinions on whether the incumbent President can
appoint the next Chief Justice or not. Petitioner Mendoza notes that in Valenzuela, which involved the
appointments of two judges of the Regional Trial Court, the Court addressed this issue now before us as an
administrative matter to avoid any possible polemics concerning the matter, but he opines that the polemics
leading to Valenzuela would be miniscule [sic] compared to the polemics that have now erupted in regard to the
current controversy, and that unless put to a halt, and this may only be achieved by a ruling from the Court, the
integrity of the process and the credibility of whoever is appointed to the position of Chief Justice, may
irreparably be impaired.[23]
Accordingly, we reframe the issues as submitted by each petitioner in the order of the chronological filing of their
petitions.
G.R. No. 191002
a. Does the JBC have the power and authority to resolve the constitutional question of whether
the incumbent President can appoint a Chief Justice during the election ban period?
b. Does the incumbent President have the power and authority to appoint during the election
ban the successor of Chief Justice Puno when he vacates the position of Chief Justice on
his retirement on May 17, 2010?
G.R. No. 191032
a. Is the power to appoint the Chief Justice vested in the Supreme Court en banc?
G.R. No. 191057
a. Is the constitutional prohibition against appointment under Section 15, Article VII of the
Constitution applicable only to positions in the Executive Department?
b. Assuming that the prohibition under Section 15, Article VII of the Constitution also applies to
members of the Judiciary, may such appointments be excepted because they are
impressed with public interest or are demanded by the exigencies of public service,
thereby justifying these appointments during the period of prohibition?
c. Does the JBC have the authority to decide whether or not to include and submit the names
of nominees who manifested interest to be nominated for the position of Chief Justice on
the understanding that his/her nomination will be submitted to the next President in view of
the prohibition against presidential appointments from March 11, 2010 until June 30,
2010?
A. M. No. 10-2-5-SC
a. Does Section 15, Article VII of the Constitution apply to appointments to positions in the
Judiciary under Section 9, Article VIII of the Constitution?
b. May President Gloria Macapagal-Arroyo make appointments to the Judiciary after March 10,
2010, including that for the position of Chief Justice after Chief Justice Puno retires
on May 17, 2010?
G.R. No. 191149
a. Does the JBC have the discretion to withhold the submission of the short list to President
Gloria Macapagal-Arroyo?
G.R. No. 191342
a. Does the JBC have the authority to submit the list of nominees to the incumbent
President without committing a grave violation of the Constitution and jurisprudence
prohibiting the incumbent President from making midnight appointments two months
immediately preceding the next presidential elections until the end of her term?
b. Is any act performed by the JBC, including the vetting of the candidates for the position of
Chief Justice, constitutionally invalid in view of the JBCs illegal composition allowing each
member from the Senate and the House of Representatives to have one vote each?
On February 16, 2010, the Court directed the JBC and the Office of the Solicitor General (OSG) to
comment on the consolidated petitions, except that filed in G.R. No. 191342.
 On February 26, 2010, the JBC submitted its comment, reporting therein that the next stage of the
process for the selection of the nominees for the position of Chief Justice would be the public interview of the
candidates and the preparation of the short list of candidates, including the interview of the constitutional experts,
as may be needed.[24] It stated:[25]
Likewise, the JBC has yet to take a position on when to submit the shortlist to the
proper appointing authority, in light of Section 4 (1), Article VIII of the Constitution,
which provides that vacancy in the Supreme Court shall be filled within ninety (90)
days from the occurrence thereof, Section 15, Article VII of the Constitution
concerning the ban on Presidential appointments two (2) months immediately
before the next presidential elections and up to the end of his term and Section 261
(g), Article XXII of the Omnibus Election Code of the Philippines.
12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the JBC will
be guided by its decision in these consolidated Petitions and Administrative Matter.
On February 26, 2010, the OSG also submitted its comment, essentially stating that the incumbent
President can appoint the successor of Chief Justice Puno upon his retirement by May 17, 2010.
The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from performing its
principal function under the Constitution to recommend appointees in the Judiciary; (b) the JBCs function to
recommend is a continuing process, which does not begin with each vacancy or end with each nomination,
because the goal is to submit the list of nominees to Malacaang on the very day the vacancy arises; [26] the JBC
was thus acting within its jurisdiction when it commenced and set in motion the process of selecting the
nominees to be submitted to the President for the position of Chief Justice to be vacated by Chief Justice
Puno;[27] (c) petitioner Sorianos theory that it is the Supreme Court, not the President, who has the power to
appoint the Chief Justice, is incorrect, and proceeds from his misinterpretation of the phrase members of the
Supreme Court found in Section 9, Article VIII of the Constitution as referring only to the Associate Justices, to
the exclusion of the Chief Justice; [28] (d) a writ of mandamus can issue to compel the JBC to submit the list of
nominees to the President, considering that its duty to prepare the list of at least three nominees is unqualified,
and the submission of the list is a ministerial act that the JBC is mandated to perform under the Constitution; as
such, the JBC, the nature of whose principal function is executive, is not vested with the power to resolve who
has the authority to appoint the next Chief Justice and, therefore, has no discretion to withhold the list from the
President; [29] and (e) a writ of mandamus cannot issue to compel the JBC to include or exclude particular
candidates as nominees, considering that there is no imperative duty on its part to include in or exclude from the
list particular individuals, but, on the contrary, the JBCs determination of who it nominates to the President is an
exercise of a discretionary duty.[30]
The OSG contends that the incumbent President may appoint the next Chief Justice, because the
prohibition under Section 15, Article VII of the Constitution does not apply to appointments in the Supreme Court.
It argues that any vacancy in the Supreme Court must be filled within 90 days from its occurrence, pursuant to
Section 4(1), Article VIII of the Constitution; [31] that in their deliberations on the mandatory period for the
appointment of Supreme Court Justices, the framers neither mentioned nor referred to the ban against midnight
appointments, or its effects on such period, or vice versa;[32] that had the framers intended the prohibition to
apply to Supreme Court appointments, they could have easily expressly stated so in the Constitution, which
explains why the prohibition found in Article VII (Executive Department) was not written in Article VIII (Judicial
Department); and that the framers also incorporated in Article VIII ample restrictions or limitations on the
Presidents power to appoint members of the Supreme Court to ensure its independence from political
vicissitudes and its insulation from political pressures,[33] such as stringent qualifications for the positions, the
establishment of the JBC, the specified period within which the President shall appoint a Supreme Court Justice.
The OSG posits that although Valenzuela involved the appointment of RTC Judges, the situation now
refers to the appointment of the next Chief Justice to which the prohibition does not apply; that, at any
rate, Valenzuela even recognized that there might be the imperative need for an appointment during the period
of the ban, like when the membership of the Supreme Court should be so reduced that it will have no quorum, or
should the voting on a particular important question requiring expeditious resolution be divided; [34] and
that Valenzuela also recognized that the filling of vacancies in the Judiciary is undoubtedly in the public interest,
most especially if there is any compelling reason to justify the making of the appointments during the period of
the prohibition.[35]
Lastly, the OSG urges that there are now undeniably compelling reasons for the incumbent President to
appoint the next Chief Justice, to wit: (a) a deluge of cases involving sensitive political issues is quite
expected;[36] (b) the Court acts as the Presidential Electoral Tribunal (PET), which, sitting en banc, is the sole
judge of all contests relating to the election, returns, and qualifications of the President and Vice President and,
as such, has the power to correct manifest errors on the statement of votes (SOV) and certificates of canvass
(COC);[37] (c) if history has shown that during ordinary times the Chief Justice was appointed immediately upon
the occurrence of the vacancy, from the time of the effectivity of the Constitution, there is now even more reason
to appoint the next Chief Justice immediately upon the retirement of Chief Justice Puno; [38] and (d) should the
next Chief Justice come from among the incumbent Associate Justices of the Supreme Court, thereby causing a
vacancy, it also becomes incumbent upon the JBC to start the selection process for the filling up of the vacancy
in accordance with the constitutional mandate.[39]
On March 9, 2010, the Court admitted the following comments/oppositions-in-intervention, to wit:
(a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving Corvera
(Corvera);[40]
(b) The opposition-in-intervention dated February 22, 2010 of Atty. Christian Robert S. Lim
(Lim);
(c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso V. Tan, Jr. (Tan);
(d) The comment/opposition-in-intervention dated March 1, 2010 of the National Union of
Peoples Lawyers (NUPL);
(e) The opposition-in-intervention dated February 25, 2010 of Atty. Marlou B. Ubano (Ubano);
(f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the Philippines-
Davao del Sur Chapter and its Immediate Past President, Atty. Israelito P. Torreon (IBP-
Davao del Sur);
(g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L. Boiser
(Boiser);
(h)The consolidated comment/opposition-in-intervention dated February 26, 2010 of BAYAN
Chairman Dr. Carolina P. Araullo; BAYAN Secretary General Renato M. Reyes, Jr.;
Confederation for Unity, Recognition and Advancement of Government Employees
(COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY)
Secretary General Gloria Arellano; Alyansa ng Nagkakaisang Kabataan ng Samayanan
Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo ang Pag-asa
Convenor Alvin Peters; League of Filipino Students (LFS) Chairman James Mark Terry
Lacuanan Ridon; National Union of Students of the Philippines (NUSP) Chairman Einstein
 Recedes, College Editors Guild of the Philippines (CEGP) Chairman Vijae Alquisola; and
Student Christian Movement of the Philippines (SCMP) Chairman Ma. Cristina Angela
Guevarra (BAYAN et al.);
(i) The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and Loretta Ann P.
Rosales (Bello et al.); and
(j) The consolidated comment/opposition-in-intervention dated March 4, 2010 of the Women
Trial Lawyers Organization of the Philippines (WTLOP), represented by Atty. Yolanda
Quisumbing-Javellana; Atty. Belleza Alojado Demaisip; Atty. Teresita Gandionco-Oledan;
Atty. Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta. Romana; Atty. Leonila de Jesus;
and Atty. Guinevere de Leon (WTLOP).
Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL take the position that De
Castros petition was bereft of any basis, because under Section 15, Article VII, the outgoing President is
constitutionally banned from making any appointments from March 10, 2010 until June 30, 2010, including the
appointment of the successor of Chief Justice Puno. Hence, mandamus does not lie to compel the JBC to submit
the list of nominees to the outgoing President if the constitutional prohibition is already in effect. Tan adds that
the prohibition against midnight appointments was applied by the Court to the appointments to the Judiciary
made by then President Ramos, with the Court holding that the duty of the President to fill the vacancies within
90 days from occurrence of the vacancies (for the Supreme Court) or from the submission of the list (for all other
courts) was not an excuse to violate the constitutional prohibition.
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose the insistence
that Valenzuela recognizes the possibility that the President may appoint the next Chief Justice if exigent
circumstances warrant the appointment, because that recognition is obiter dictum; and aver that the absence of a
Chief Justice or even an Associate Justice does not cause epic damage or absolute disruption or paralysis in the
operations of the Judiciary. They insist that even without the successor of Chief Justice Puno being appointed by
the incumbent President, the Court is allowed to sit and adjudge en banc or in divisions of three, five or seven
members at its discretion; that a full membership of the Court is not necessary; that petitioner De Castros fears
are unfounded and baseless, being based on a mere possibility, the occurrence of which is entirely unsure; that it
is not in the national interest to have a Chief Justice whose appointment is unconstitutional and, therefore, void;
and that such a situation will create a crisis in the judicial system and will worsen an already vulnerable political
situation.
ice is imperative for the stability of the judicial system and the political situation in the country when the election-
related questions reach the Court as false, because there is an existing law on filling the void brought about by a
vacancy in the office of Chief Justice; that the law is Section 12 of the Judiciary Act of 1948, which has not been
repealed by Batas Pambansa Blg. 129 or any other law; that a temporary or an acting Chief Justice is not
anathema to judicial independence; that the designation of an acting Chief Justice is not only provided for by law,
but is also dictated by practical necessity; that the practice was intended to be enshrined in the 1987
Constitution, but the Commissioners decided not to write it in the Constitution on account of the settled practice;
that the practice was followed under the 1987 Constitution, when, in 1992, at the end of the term of Chief Justice
Marcelo B. Fernan, Associate Justice Andres Narvasa assumed the position as Acting Chief Justice prior to his
official appointment as Chief Justice; that said filling up of a vacancy in the office of the Chief Justice was
acknowledged and even used by analogy in the case of the vacancy of the Chairman of the Commission on
Elections, per Brillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme Court has shown that this
rule of succession has been repeatedly observed and has become a part of its tradition.
Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus Election
Code penalizes as an election offense the act of any government official who appoints, promotes, or gives any
increase in salary or remuneration or privilege to any government official or employee during the period of 45
days before a regular election; that the provision covers all appointing heads, officials, and officers of a
government office, agency or instrumentality, including the President; that for the incumbent President to appoint
the next Chief Justice upon the retirement of Chief Justice Puno, or during the period of the ban under
the Omnibus Election Code, constitutes an election offense; that even an appointment of the next Chief Justice
prior to the election ban is fundamentally invalid and without effect because there can be no appointment until a
vacancy occurs; and that the vacancy for the position can occur only by May 17, 2010.
Intervenor Boiser adds that De Castros prayer to compel the submission of nominees by the JBC to the
incumbent President is off-tangent because the position of Chief Justice is still not vacant; that to speak of a list,
much more a submission of such list, before a vacancy occurs is glaringly premature; that the proposed advance
appointment by the incumbent President of the next Chief Justice will be unconstitutional; and that no list of
nominees can be submitted by the JBC if there is no vacancy.
All the intervenors-oppositors submit that Section 15, Article VII makes no distinction between the kinds of
appointments made by the President; and that the Court, in Valenzuela, ruled that the appointments by the
President of the two judges during the prohibition period were void.
Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not apply only to the
appointments in the Executive Department, but also to judicial appointments, contrary to the submission of
PHILCONSA; that Section 15 does not distinguish; and that Valenzuela already interpreted the prohibition as
applicable to judicial appointments.
Intervenor WTLOP further posits that petitioner Sorianos contention that the power to appoint the Chief
Justice is vested, not in the President, but in the Supreme Court, is utterly baseless, because the Chief Justice is
also a Member of the Supreme Court as contemplated under Section 9, Article VIII; and that, at any rate, the
term members was interpreted in Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to the Chief
Justice and the Associate Justices of the Supreme Court; that PHILCONSAs prayer that the Court pass a
resolution declaring that persons who manifest their interest as nominees, but with conditions, shall not be
considered nominees by the JBC is diametrically opposed to the arguments in the body of its petition; that such
glaring inconsistency between the allegations in the body and the relief prayed for highlights the lack of merit of
PHILCONSAs petition; that the role of the JBC cannot be separated from the constitutional prohibition on the
President; and that the Court must direct the JBC to follow the rule of law, that is, to submit the list of nominees
only to the next duly elected President after the period of the constitutional ban against midnight appointments
has expired.
Oppositor IBP Davao del Sur opines that the JBC because it is neither a judicial nor a quasi-judicial
body has no duty under the Constitution to resolve the question of whether the incumbent President can appoint
a Chief Justice during the period of prohibition; that even if the JBC has already come up with a short list, it still
has to bow to the strict limitations under Section 15, Article VII; that should the JBC defer submission of the list, it
is not arrogating unto itself a judicial function, but simply respecting the clear mandate of the Constitution; and
that the application of the general rule in Section 15, Article VII to the Judiciary does not violate the principle of
separation of powers, because said provision is an exception.
Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBCs act of nominating appointees to
the Supreme Court is purely ministerial and does not involve the exercise of judgment; that there can be no
default on the part of the JBC in submitting the list of nominees to the President, considering that the call for
applications only begins from the occurrence of the vacancy in the Supreme Court; and that the commencement
of the process of screening of applicants to fill the vacancy in the office of the Chief Justice only begins from the
retirement on May 17, 2010, for, prior to this date, there is no definite legal basis for any party to claim that the
submission or non-submission of the list of nominees to the President by the JBC is a matter of right under law.
 The main question presented in all the filings herein because it involves two seemingly conflicting
provisions of the Constitution imperatively demands the attention and resolution of this Court, the only authority
that can resolve the question definitively and finally. The imperative demand rests on the ever-present need, first,
to safeguard the independence, reputation, and integrity of the entire Judiciary, particularly this Court, an
institution that has been unnecessarily dragged into the harsh polemics brought on by the controversy; second,
to settle once and for all the doubt about an outgoing Presidents power to appoint to the Judiciary within the long
period starting two months before the presidential elections until the end of the presidential term; and third, to set
a definite guideline for the JBC to follow in the discharge of its primary office of screening and nominating
qualified persons for appointment to the Judiciary.
Thus, we resolve.
Ruling of the Court
Locus Standi of Petitioners
The preliminary issue to be settled is whether or not the petitioners have locus standi.
Black defines locus standi as a right of appearance in a court of justice on a given question.[41] In public
or constitutional litigations, the Court is often burdened with the determination of the locus standi of the
petitioners due to the ever-present need to regulate the invocation of the intervention of the Court to correct any
official action or policy in order to avoid obstructing the efficient functioning of public officials and offices involved
in public service. It is required, therefore, that the petitioner must have a personal stake in the outcome of the
controversy, for, as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:[42]
The question on legal 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. [43] Accordingly, it has been
held that the interest of a person assailing the constitutionality of a statute must be
direct and personal. He must be able to show, not only that the law or any government
act is invalid, but also that he sustained or is in imminent danger of sustaining some
direct injury as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way. It must appear that the person complaining has been or is about to
be denied some right or privilege to which he is lawfully entitled or that he is about to
be subjected to some burdens or penalties by reason of the statute or act complained
of.[44]
It is true that as early as in 1937, in People v. Vera,[45] the Court adopted the direct injury test for
determining whether a petitioner in a public action had locus standi. There, the Court held that the person who
would assail the validity of a statute must have a personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result. Vera was followed in Custodio v. President of the
Senate,[46] Manila Race Horse Trainers Association v. De la Fuente,[47] Anti-Chinese League of the Philippines v.
Felix,[48] and Pascual v. Secretary of Public Works.[49]
Yet, the Court has also held that the requirement of locus standi, being a mere procedural technicality,
can be waived by the Court in the exercise of its discretion. For instance, in 1949, in Araneta v. Dinglasan,[50] the
Court liberalized the approach when the cases had transcendental importance. Some notable controversies
whose petitioners did not pass the direct injury test were allowed to be treated in the same way as in Araneta v.
Dinglasan.[51]
In the 1975 decision in Aquino v. Commission on Elections,[52] this Court decided to resolve the issues raised by
the petition due to their far-reaching implications, even if the petitioner had no personality to file the suit. The
liberal approach of Aquino v. Commission on Elections has been adopted in
several notable cases, permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or validity of laws, regulations, and rulings.[53]
However, the assertion of a public right as a predicate for challenging a supposedly illegal or
unconstitutional executive or legislative action rests on the theory that the petitioner represents the public in
general. Although such petitioner may not be as adversely affected by the action complained against as are
others, it is enough that he sufficiently demonstrates in his petition that he is entitled to protection or relief from
the Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus standi.
That is not surprising, for even if the issue may appear to concern only the public in general, such capacities
nonetheless equip the petitioner with adequate interest to sue. In David v. Macapagal-Arroyo,[54] the Court aptly
explains why:
Case law in most jurisdictions now allows both citizen and taxpayer standing in public
actions. The distinction was first laid down in Beauchamp v. Silk,[55] where it was held that the
plaintiff in a taxpayers suit is in a different category from the plaintiff in a citizens suit. In the
former, the plaintiff is affected by the expenditure of public funds, while in the latter, he
is but the mere instrument of the public concern. As held by the New York Supreme Court
in People ex rel Case v. Collins:[56] In matter of mere public right, howeverthe people are
the real partiesIt is at least the right, if not the duty, of every citizen to interfere and see
that a public offence be properly pursued and punished, and that a public grievance be
remedied. With respect to taxpayers suits, Terr v. Jordan[57] held that the right of a citizen
and a taxpayer to maintain an action in courts to restrain the unlawful use of public
funds to his injury cannot be denied.[58]
Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta (G.R. No. 191149) all
assert their right as citizens filing their petitions on behalf of the public who are directly affected by the issue of
the appointment of the next Chief Justice. De Castro and Soriano further claim standing as taxpayers, with
Soriano averring that he is affected by the continuing proceedings in the JBC, which involve unnecessary, if not,
illegal disbursement of public funds.[59]
PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the law for the
purpose of defending, protecting, and preserving the Constitution and promoting its growth and flowering. It also
alleges that the Court has recognized its legal standing to file cases on constitutional issues in several cases.[60]
In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a member of the
Philippine Bar engaged in the active practice of law, and a former Solicitor General, former Minister of Justice,
former Member of the Interim Batasang Pambansa and the Regular Batasang Pambansa, and former member of
the Faculty of the College of Law of the University of the Philippines.
The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the Philippines (IBP)
for Southern Luzon and Eastern Visayas. They allege that they have the legal standing to enjoin the submission
of the list of nominees by the JBC to the President, for [a]n adjudication of the proper interpretation and
application of the constitutional ban on midnight appointments with regard to respondent JBCs function in
submitting the list of nominees is well within the concern of petitioners, who are duty bound to ensure that
obedience and respect for the Constitution is upheld, most especially by government offices, such as respondent
JBC, who are specifically tasked to perform crucial functions in the whole scheme of our democratic institution.
They further allege that, reposed in them as members of the Bar, is a clear legal interest in the process of
selecting the members of the Supreme Court, and in the selection of the Chief Justice, considering that the
person appointed becomes a member of the body that has constitutional supervision and authority over them
and other members of the legal profession.[61]
The Court rules that the petitioners have each demonstrated adequate interest in the outcome of the
controversy as to vest them with the requisite locus standi. The issues before us are of transcendental
importance to the people as a whole, and to the petitioners in particular. Indeed, the issues affect everyone
(including the petitioners), regardless of ones personal interest in life, because they concern that great doubt
about the authority of the incumbent President to appoint not only the successor of the retiring incumbent Chief
Justice, but also others who may serve in the Judiciary, which already suffers from a far too great number of
vacancies in the ranks of trial judges throughout the country.
In any event, the Court retains the broad discretion to waive the requirement of legal standing in favor of
any petitioner when the matter involved has transcendental importance, or otherwise requires a liberalization of
the requirement.[62]
Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt now in order to
remove any obstacle or obstruction to the resolution of the essential issue squarely presented herein. We are not
to shirk from discharging our solemn duty by reason alone of an obstacle more technical than otherwise.
In Agan, Jr. v. Philippine International Air Terminals Co., Inc.,[63] we pointed out: Standing is a peculiar concept in
constitutional law because in some cases, suits are not brought by parties who have been personally injured by
the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually
sue in the public interest. But even if, strictly speaking, the petitioners are not covered by the definition, it is still
within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing
and resolving the serious constitutional questions raised.[64]
Justiciability
Intervenor NUPL maintains that there is no actual case or controversy that is appropriate or ripe for
adjudication, considering that although the selection process commenced by the JBC is going on, there is yet no
final list of nominees; hence, there is no imminent controversy as to whether such list must be submitted to the
incumbent President, or reserved for submission to the incoming President.
Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for judicial determination,
pointing out that petitioner De Castro has not even shown that the JBC has already completed its selection
process and is now ready to submit the list to the incumbent President; and that petitioner De Castro is merely
presenting a hypothetical scenario that is clearly not sufficient for the Court to exercise its power of judicial
review.
Intervenors Corvera and Lim separately opine that De Castros petition rests on an overbroad and vague
allegation of political tension, which is insufficient basis for the Court to exercise its power of judicial review.
Intervenor BAYAN et al. contend that the petitioners are seeking a mere advisory opinion on what the
JBC and the President should do, and are not invoking any issues that are justiciable in nature.
Intervenors Bello et al. submit that there exist no conflict of legal rights and no assertion of opposite
legal claims in any of the petitions; that PHILCONSA does not allege any action taken by the JBC, but simply
avers that the conditional manifestations of two Members of the Court, accented by the divided opinions and
interpretations of legal experts, or associations of lawyers and law students on the issues published in the daily
newspapers are matters of paramount and transcendental importance to the bench, bar and general public; that
PHILCONSA fails not only to cite any legal duty or allege any failure to perform the duty, but also to indicate what
specific action should be done by the JBC; that Mendoza does not even attempt to portray the matter as a
controversy or conflict of rights, but, instead, prays that the Court should rule for the guidance of the JBC; that
the fact that the Court supervises the JBC does not automatically imply that the Court can rule on the issues
presented in the Mendoza petition, because supervision involves oversight, which means that the subordinate
officer or body must first act, and if such action is not in accordance with prescribed rules, then, and only then,
may the person exercising oversight order the action to be redone to conform to the prescribed rules; that the
Mendoza petition does not allege that the JBC has performed a specific act susceptible to correction for being
illegal or unconstitutional; and that the Mendoza petition asks the Court to issue an advisory ruling, not to
exercise its power of supervision to correct a wrong act by the JBC, but to declare the state of the law in the
absence of an actual case or controversy.
We hold that the petitions set forth an actual case or controversy that is ripe for judicial determination.
The reality is that the JBC already commenced the proceedings for the selection of the nominees to be included
in a short list to be submitted to the President for consideration of which of them will succeed Chief Justice Puno
as the next Chief Justice. Although the position is not yet vacant, the fact that the JBC began the process of
nomination pursuant to its rules and practices, although it has yet to decide whether to submit the list of
nominees to the incumbent outgoing President or to the next President, makes the situation ripe for judicial
determination, because the next steps are the public interview of the candidates, the preparation of the short list
of candidates, and the interview of constitutional experts, as may be needed.
A part of the question to be reviewed by the Court is whether the JBC properly initiated the process,
there being an insistence from some of the oppositors-intervenors that the JBC could only do so once the
vacancy has occurred (that is, after May 17, 2010). Another part is, of course, whether the JBC may resume its
process until the short list is prepared, in view of the provision of Section 4(1), Article VIII, which unqualifiedly
requires the President to appoint one from the short list to fill the vacancy in the Supreme Court (be it the Chief
Justice or an Associate Justice) within 90 days from the occurrence of the vacancy.
The ripeness of the controversy for judicial determination may not be doubted. The challenges to the
authority of the JBC to open the process of nomination and to continue the process until the submission of the
list of nominees; the insistence of some of the petitioners to compel the JBC through mandamus to submit the
short list to the incumbent President; the counter-insistence of the intervenors to prohibit the JBC from submitting
the short list to the incumbent President on the ground that said list should be submitted instead to the next
President; the strong position that the incumbent President is already prohibited under Section 15, Article VII
from making any appointments, including those to the Judiciary, starting on May 10, 2010 until June 30, 2010;
and the contrary position that the incumbent President is not so prohibited are only some of the real issues for
determination. All such issues establish the ripeness of the controversy, considering that for some the short list
must be submitted before the vacancy actually occurs by May 17, 2010. The outcome will not be an abstraction,
or a merely hypothetical exercise. The resolution of the controversy will surely settle with finality the nagging
questions that are preventing the JBC from moving on with the process that it already began, or that are reasons
persuading the JBC to desist from the rest of the process.
We need not await the occurrence of the vacancy by May 17, 2010 in order for the principal issue to
ripe for judicial determination by the Court. It is enough that one alleges conduct arguably affected with a
constitutional interest, but seemingly proscribed by the Constitution. A reasonable certainty of the occurrence of
the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the
Court has sufficient facts before it to enable it to intelligently adjudicate the issues. [65] Herein, the facts are not in
doubt, for only legal issues remain.
Substantive Merits
I
Prohibition under Section 15, Article VII does not apply
to appointments to fill a vacancy in the Supreme Court
or to other appointments to the Judiciary
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department), provides:
Section 15. Two months immediately before the next presidential elections and up to
the end of his term, a President or Acting President shall not make appointments, except
temporary appointments to executive positions when continued vacancies therein will prejudice
public service or endanger public safety.
The other, Section 4 (1), Article VIII (Judicial Department), states:
Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven
Members. Any vacancy shall be filled within ninety days from the occurrence thereof.
In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino and Inting, submit
that the incumbent President can appoint the successor of Chief Justice Puno upon his retirement on May 17,
2010, on the ground that the prohibition against presidential appointments under Section 15, Article VII does not
extend to appointments in the Judiciary.
The Court agrees with the submission.
First. The records of the deliberations of the Constitutional Commission reveal that the framers devoted
time to meticulously drafting, styling, and arranging the Constitution. Such meticulousness indicates that the
organization and arrangement of the provisions of the Constitution were not arbitrarily or whimsically done by the
framers, but purposely made to reflect their intention and manifest their vision of what the Constitution should
contain.
The Constitution consists of 18 Articles, three of which embody the allocation of the awesome powers of
government among the three great departments, the Legislative (Article VI), the Executive (Article VII), and the
Judicial Departments (Article VIII). The arrangement was a true recognition of the principle of separation of
powers that underlies the political structure, as Constitutional Commissioner Adolfo S. Azcuna (later a worthy
member of the Court) explained in his sponsorship speech:
We have in the political part of this Constitution opted for the separation of powers in
government because we believe that the only way to protect freedom and liberty is to separate
and divide the awesome powers of government. Hence, we return to the separation of powers
doctrine and the legislative, executive and judicial departments.[66]
As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists the
powers vested by the Constitution in the President. The presidential power of appointment is dealt with in
Sections 14, 15 and 16 of the Article.
Article VIII is dedicated to the Judicial Department and defines the duties and qualifications of Members
of the Supreme Court, among others. Section 4(1) and Section 9 of this Article are the provisions specifically
providing for the appointment of Supreme Court Justices. In particular, Section 9 states that the appointment of
Supreme Court Justices can only be made by the President upon the submission of a list of at least three
nominees by the JBC; Section 4(1) of the Article mandates the President to fill the vacancy within 90 days from
the occurrence of the vacancy.
Had the framers intended to extend the prohibition contained in Section 15, Article VII to the
appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored
the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit
in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in
Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that
the prohibition against the President or Acting President making appointments within two months before the next
presidential elections and up to the end of the Presidents or Acting Presidents term does not refer to the
Members of the Supreme Court.
Although Valenzuela[67] came to hold that the prohibition covered even judicial appointments, it cannot
be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission.
Thereby, the confirmation made to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court,
a former member of the Constitutional Commission, about the prohibition not being intended to apply to the
appointments to the Judiciary, which confirmation Valenzuela even expressly mentioned, should prevail.
Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4 (1), Article VIII, viz:
V . Intent of the Constitutional Commission
The journal of the Commission which drew up the present Constitution discloses that
the original proposal was to have an eleven-member Supreme Court. Commissioner Eulogio
Lerum wanted to increase the number of Justices to fifteen. He also wished to ensure that that
number would not be reduced for any appreciable length of time (even only temporarily), and
to this end proposed that any vacancy must be filled within two months from the date that the
vacancy occurs. His proposal to have a 15-member Court was not initially adopted. Persisting
however in his desire to make certain that the size of the Court would not be decreased for any
substantial period as a result of vacancies, Lerum proposed the insertion in the provision
(anent the Courts membership) of the same mandate that IN CASE OF ANY VACANCY, THE
SAME SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF. He
later agreed to suggestions to make the period three, instead of two, months. As thus
amended, the proposal was approved. As it turned out, however, the Commission ultimately
agreed on a fifteen-member Court. Thus it was that the section fixing the composition of
the Supreme Court came to include a command to fill up any vacancy therein within 90
days from its occurrence.
In this connection, it may be pointed out that that instruction that any vacancy shall
be filled within ninety days (in the last sentence of Section 4 (1) of Article VIII) contrasts with
the prohibition in Section 15, Article VII, which is couched in stronger negative language - that
a President or Acting President shall not make appointments
The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now
a Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph:
WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE
APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST (of
nominees by the Judicial and Bar Council to the President). Davide stated that his purpose
 was to provide a uniform rule for lower courts. According to him, the 90-day period should be
counted from submission of the list of nominees to the President in view of the possibility that
the President might reject the list submitted to him and the JBC thus need more time to submit
a new one.
On the other hand, Section 15, Article VII - which in effect deprives the President of his
appointing power two months immediately before the next presidential elections up to the end
of his term - was approved without discussion.[68]
However, the reference to the records of the Constitutional Commission did not advance or support the result
in Valenzuela. Far to the contrary, the records disclosed the express intent of the framers to enshrine in the
Constitution, upon the initiative of Commissioner Eulogio Lerum, a command [to the President] to fill up any
vacancy therein within 90 days from its occurrence, which even Valenzuela conceded.[69]The exchanges
during deliberations of the Constitutional Commission on October 8, 1986 further show that the filling of a
vacancy in the Supreme Court within the 90-day period was a true mandate for the President, viz:
MR. DE CASTRO. I understand that our justices now in the Supreme Court, together with
the Chief Justice, are only 11.
MR. CONCEPCION. Yes.
MR. DE CASTRO. And the second sentence of this subsection reads: Any vacancy
shall be filled within ninety days from the occurrence thereof.
MR. CONCEPCION. That is right.
MR. DE CASTRO. Is this now a mandate to the executive to fill the vacancy?
MR. CONCEPCION. That is right. That is borne out of the fact that in the past 30
years, seldom has the Court had a complete complement.[70]
Moreover, the usage in Section 4(1), Article VIII of the word shall an imperative, operating to impose a
duty that may be enforced[71] should not be disregarded. Thereby, Sections 4(1) imposes on the President
the imperative duty to make an appointment of a Member of the Supreme Court within 90 days from the
occurrence of the vacancy. The failure by the President to do so will be a clear disobedience to the Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the
Supreme Court was undoubtedly a special provision to establish a definite mandate for the President as the
appointing power, and cannot be defeated by mere judicial interpretation in Valenzuela to the effect that Section
15, Article VII prevailed because it was couched in stronger negative language. Such interpretation even turned
out to be conjectural, in light of the records of the Constitutional Commissions deliberations on Section 4 (1),
Article VIII.
How Valenzuela justified its pronouncement and result is hardly warranted. According to an authority on
statutory construction:[72]
xxx the court should seek to avoid any conflict in the provisions of the statute by
endeavoring to harmonize and reconcile every part so that each shall be effective. It is not
easy to draft a statute, or any other writing for that matter, which may not in some manner
contain conflicting provisions. But what appears to the reader to be a conflict may not have
seemed so to the drafter. Undoubtedly, each provision was inserted for a definite reason.
Often by considering the enactment in its entirety, what appears to be on its face a conflict may
be cleared up and the provisions reconciled.
Consequently, that construction which will leave every word operative will be favored
over one which leaves some word or provision meaningless because of inconsistency. But a
word should not be given effect, if to do so gives the statute a meaning contrary to the intent of
the legislature. On the other hand, if full effect cannot be given to the words of a statute, they
must be made effective as far as possible. Nor should the provisions of a statute which are
inconsistent be harmonized at a sacrifice of the legislative intention. It may be that two
provisions are irreconcilable; if so, the one which expresses the intent of the law-makers
should control. And the arbitrary rule has been frequently announced that where there is an
irreconcilable conflict between the different provisions of a statute, the provision last in order of
position will prevail, since it is the latest expression of the legislative will. Obviously, the rule is
subject to deserved criticism. It is seldom applied, and probably then only where an
irreconcilable conflict exists between different sections of the same act, and after all other
means of ascertaining the meaning of the legislature have been exhausted. Where the conflict
is between two statutes, more may be said in favor of the rules application, largely because of
the principle of implied repeal.
In this connection, PHILCONSAs urging of a revisit and a review of Valenzuela is timely and
appropriate. Valenzuela arbitrarily ignored the express intent of the Constitutional Commission to have Section 4
(1), Article VIII stand independently of any other provision, least of all one found in Article VII. It further ignored
that the two provisions had no irreconcilable conflict, regardless of Section 15, Article VII being couched in the
negative. As judges, we are not to unduly interpret, and should not accept an interpretation that defeats the intent
of the framers.[73]
Consequently, prohibiting the incumbent President from appointing a Chief Justice on the premise that Section
15, Article VII extends to appointments in the Judiciary cannot be sustained. A misinterpretation
like Valenzuela should not be allowed to last after its false premises have been exposed. [74] It will not do to
merely distinguish Valenzuela from these cases, for the result to be reached herein is entirely incompatible with
what Valenzuela decreed. Consequently, Valenzuela now deserves to be quickly sent to the dustbin of the
unworthy and forgettable.
We reverse Valenzuela.
Second. Section 15, Article VII does not apply as well to all other appointments in the Judiciary.
There is no question that one of the reasons underlying the adoption of Section 15 as part of Article VII
was to eliminate midnight appointments from being made by an outgoing Chief Executive in the mold of the
appointments dealt with in the leading case of Aytona v. Castillo.[75] In fact, in Valenzuela, the Court so observed,
stating that:
xxx it appears that Section 15, Article VII is directed against two types of appointments:
(1) those made for buying votes and (2) those made for partisan considerations. The first
refers to those appointments made within the two months preceding a Presidential election
and are similar to those which are declared election offenses in the Omnibus Election
Code, viz.:
xxx
The second type of appointments prohibited by Section 15, Article VII consists of the so-
called midnight appointments. In Aytona v. Castillo, it was held that after the proclamation of
Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated
 in his bid for reelection, became no more than a caretaker administrator whose duty was to
prepare for the orderly transfer of authority to the incoming President. Said the Court:
The filling up of vacancies in important positions, if few, and so spaced
as to afford some assurance of deliberate action and careful consideration of
the need for the appointment and appointee's qualifications may undoubtedly
be permitted. But the issuance of 350 appointments in one night and the
planned induction of almost all of them in a few hours before the
inauguration of the new President may, with some reason, be regarded by the
latter as an abuse of Presidential prerogatives, the steps taken being
apparently a mere partisan effort to fill all vacant positions irrespective of
fitness and other conditions, and thereby to deprive the new administration
of an opportunity to make the corresponding appointments.
As indicated, the Court recognized that there may well be appointments to important
positions which have to be made even after the proclamation of the new President. Such
appointments, so long as they are few and so spaced as to afford some assurance of
deliberate action and careful consideration of the need for the appointment and the
appointees qualifications, can be made by the outgoing President. Accordingly, several
appointments made by President Garcia, which were shown to have been well considered,
were upheld.
Section 15, Article VII has a broader scope than the Aytona ruling. It may not
unreasonably be deemed to contemplate not only midnight appointments those made
obviously for partisan reasons as shown by their number and the time of their making
but also appointments presumed made for the purpose of influencing the outcome of
the Presidential election.
On the other hand, the exception in the same Section 15 of Article VII allowing
appointments to be made during the period of the ban therein provided is much narrower than
that recognized in Aytona. The exception allows only the making of temporary appointments
to executive positions when continued vacancies will prejudice public service or endanger
public safety. Obviously, the article greatly restricts the appointing power of the President
during the period of the ban.
Considering the respective reasons for the time frames for filling vacancies in the courts
and the restriction on the President's power of appointment, it is this Courts view that, as a
general proposition, in case of conflict, the former should yield to the latter. Surely, the
prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up
of court vacancies or the disposition of some cases. Temporary vacancies can abide the
period of the ban which, incidentally and as earlier pointed out, comes to exist only once in
every six years. Moreover, those occurring in the lower courts can be filled temporarily by
designation. But prohibited appointments are long-lasting and permanent in their effects. They
may, as earlier pointed out, in fact influence the results of elections and, for that reason, their
making is considered an election offense.[76]
Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that
the Constitutional Commission confined the prohibition to appointments made in the Executive Department. The
framers did not need to extend the prohibition to appointments in the Judiciary, because their establishment of
the JBC and their subjecting the nomination and screening of candidates for judicial positions to the unhurried
and deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the
Judiciary. If midnight appointments in the mold of Aytona were made in haste and with irregularities, or made by
an outgoing Chief Executive in the last days of his administration out of a desire to subvert the policies of the
incoming President or for partisanship,[77] the appointments to the Judiciary made after the establishment of the
JBC would not be suffering from such defects because of the JBCs prior processing of candidates. Indeed, it is
axiomatic in statutory construction that the ascertainment of the purpose of the enactment is a step in the
process of ascertaining the intent or meaning of the enactment, because the reason for the enactment must
necessarily shed considerable light on the law of the statute, i.e., the intent; hence, the enactment should be
construed with reference to its intended scope and purpose, and the court should seek to carry out this purpose
rather than to defeat it.[78]
Also, the intervention of the JBC eliminates the danger that appointments to the Judiciary can be made
for the purpose of buying votes in a coming presidential election, or of satisfying partisan considerations. The
experience from the time of the establishment of the JBC shows that even candidates for judicial positions at any
level backed by people influential with the President could not always be assured of being recommended for the
consideration of the President, because they first had to undergo the vetting of the JBC and pass muster
there. Indeed, the creation of the JBC was precisely intended to de-politicize the Judiciary by doing away with the
intervention of the Commission on Appointments. This insulating process was absent from
the Aytona midnight appointment.
Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the Judiciary
was confirmed by then Senior Associate Justice Regalado to the JBC itself when it met on March 9, 1998 to
discuss the question raised by some sectors about the constitutionality of xxx appointments to the Court of
Appeals in light of the forthcoming presidential elections. He assured that on the basis of the (Constitutional)
Commissions records, the election ban had no application to appointments to the Court of Appeals. [79] This
confirmation was accepted by the JBC, which then submitted to the President for consideration the nominations
for the eight vacancies in the Court of Appeals.[80]
The fault of Valenzuela was that it accorded no weight and due consideration to the confirmation of
Justice Regalado. Valenzuela was weak, because it relied on interpretation to determine the intent of the framers
rather than on the deliberations of the Constitutional Commission. Much of the unfounded doubt about the
Presidents power to appoint during the period of prohibition in Section 15, Article VII could have been dispelled
since its promulgation on November 9, 1998, had Valenzuela properly acknowledged and relied on the
confirmation of a distinguished member of the Constitutional Commission like Justice Regalado.
Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16) concern the
appointing powers of the President.
Section 14 speaks of the power of the succeeding President to revoke appointments made by an Acting
President,[81] and evidently refers only to appointments in the Executive Department. It has no application to
appointments in the Judiciary, because temporary or acting appointments can only undermine the independence
of the Judiciary due to their being revocable at will. [82] The letter and spirit of the Constitution safeguard that
independence. Also, there is no law in the books that authorizes the revocation of appointments in the Judiciary.
Prior to their mandatory retirement or resignation, judges of the first and second level courts and the Justices of
the third level courts may only be removed for cause, but the Members of the Supreme Court may be removed
only by impeachment.
Section 16 covers only the presidential appointments that require confirmation by the Commission on
Appointments. Thereby, the Constitutional Commission restored the requirement of confirmation by the
Commission on Appointments after the requirement was removed from the 1973 Constitution. Yet, because of
Section 9 of Article VIII, the restored requirement did not include appointments to the Judiciary. [83]
 Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the
power of the President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the
Executive Department renders conclusive that Section 15 also applies only to the Executive Department. This
conclusion is consistent with the rule that every part of the statute must be interpreted with reference to the
context, i.e. that every part must be considered together with the other parts, and kept subservient to the general
intent of the whole enactment.[84] It is absurd to assume that the framers deliberately situated Section
15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds of presidential
appointments. If that was their intention in respect of appointments to the Judiciary, the framers, if only to be
clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely within Section 4 (1)
thereof.
Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the Judiciary
further undermines the intent of the Constitution of ensuring the independence of the Judicial Department from
the Executive and Legislative Departments. Such a holding will tie the Judiciary and the Supreme Court to the
fortunes or misfortunes of political leaders vying for the Presidency in a presidential election. Consequently, the
wisdom of having the new President, instead of the current incumbent President, appoint the next Chief Justice
is itself suspect, and cannot ensure judicial independence, because the appointee can also become beholden to
the appointing authority. In contrast, the appointment by the incumbent President does not run the same risk of
compromising judicial independence, precisely because her term will end by June 30, 2010.
Sixth. The argument has been raised to the effect that there will be no need for the incumbent President
to appoint during the prohibition period the successor of Chief Justice Puno within the context of Section 4 (1),
Article VIII, because anyway there will still be about 45 days of the 90 days mandated in Section 4(1), Article VIII
remaining.
The argument is flawed, because it is focused only on the coming vacancy occurring from Chief Justice
Punos retirement by May 17, 2010. It ignores the need to apply Section 4(1) to every situation of a vacancy in
the Supreme Court.
The argument also rests on the fallacious assumption that there will still be time remaining in the 90-day
period under Section 4(1), Article VIII. The fallacy is easily demonstrable, as the OSG has shown in its comment.
Section 4 (3), Article VII requires the regular elections to be held on the second Monday of May, letting
the elections fall on May 8, at the earliest, or May 14, at the latest. If the regular presidential elections are held on
May 8, the period of the prohibition is 115 days. If such elections are held on May 14, the period of the prohibition
is 109 days. Either period of the prohibition is longer than the full mandatory 90-day period to fill the vacancy in
the Supreme Court. The result is that there are at least 19 occasions (i.e., the difference between the shortest
possible period of the ban of 109 days and the 90-day mandatory period for appointments) in which the outgoing
President would be in no position to comply with the constitutional duty to fill up a vacancy in the Supreme Court.
It is safe to assume that the framers of the Constitution could not have intended such an absurdity. In fact, in
their deliberations on the mandatory period for the appointment of Supreme Court Justices under Section 4 (1),
Article VIII, the framers neither discussed, nor mentioned, nor referred to the ban against midnight appointments
under Section 15, Article VII, or its effects on the 90-day period, or vice versa. They did not need to, because
they never intended Section 15, Article VII to apply to a vacancy in the Supreme Court, or in any of the lower
courts.
Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list is
necessary at all for the President any President to appoint a Chief Justice if the appointee is to come from the
ranks of the sitting justices of the Supreme Court.
Sec. 9, Article VIII says:
xxx. The Members of the Supreme Court xxx shall be appointed by the President from a
list of at least three nominees prepared by the Judicial and Bar Council for any vacancy. Such
appointments need no confirmation.
xxx
The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a non-
member of the Court aspiring to become one. It speaks of candidates for the Supreme Court, not of those who
are already members or sitting justices of the Court, all of whom have previously been vetted by the JBC.
Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief Justice?
The question is not squarely before us at the moment, but it should lend itself to a deeper analysis if
and when circumstances permit. It should be a good issue for the proposed Constitutional Convention to
consider in the light of Senate President Juan Ponce Enriles statement that the President can appoint the Chief
Justice from among the sitting justices of the Court even without a JBC list.
II
The Judiciary Act of 1948
The posture has been taken that no urgency exists for the President to appoint the successor of Chief Justice
Puno, considering that the Judiciary Act of 1948 can still address the situation of having the next President
appoint the successor.
Section 12 of the Judiciary Act of 1948 states:
Section 12. Vacancy in Office of Chief Justice. In case of a vacancy in the office of Chief
Justice of the Supreme Court or of his inability to perform the duties and powers of his office,
they shall devolve upon the Associate Justice who is first in precedence, until such disability is
removed, or another Chief Justice is appointed and duly qualified. This provision shall apply to
every Associate Justice who succeeds to the office of Chief Justice.
The provision calls for an Acting Chief Justice in the event of a vacancy in the office of the Chief Justice,
or in the event that the Chief Justice is unable to perform his duties and powers. In either of such circumstances,
the duties and powers of the office of the Chief Justice shall devolve upon the Associate Justice who is first in
precedence until a new Chief Justice is appointed or until the disability is removed.
Notwithstanding that there is no pressing need to dwell on this peripheral matter after the Court has hereby
resolved the question of consequence, we do not find it amiss to confront the matter now.
We cannot agree with the posture.
A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is composed of a Chief Justice and
14 Associate Justices, who all shall be appointed by the President from a list of at least three nominees prepared
by the JBC for every vacancy, which appointments require no confirmation by the Commission on Appointments.
With reference to the Chief Justice, he or she is appointed by the President as Chief Justice, and the
appointment is never in an acting capacity. The express reference to a Chief Justice abhors the idea that the
framers contemplated an Acting Chief Justice to head the membership of the Supreme Court. Otherwise, they
would have simply written so in the Constitution. Consequently, to rely on Section 12 of the Judiciary Act of 1948
in order to forestall the imperative need to appoint the next Chief Justice soonest is to defy the plain intent of the
Constitution.
For sure, the framers intended the position of Chief Justice to be permanent, not one to be occupied in
an acting or temporary capacity. In relation to the scheme of things under the present Constitution, Section 12 of
the Judiciary Act of 1948 only responds to a rare situation in which the new Chief Justice is not yet appointed, or
in which the incumbent Chief Justice is unable to perform the duties and powers of the office. It ought to be
remembered, however, that it was enacted because the Chief Justice appointed under the 1935 Constitution was
subject to the confirmation of the Commission on Appointments, and the confirmation process might take longer
than expected.
The appointment of the next Chief Justice by the incumbent President is preferable to having the
Associate Justice who is first in precedence take over. Under the Constitution, the heads of the Legislative and
Executive Departments are popularly elected, and whoever are elected and proclaimed at once become the
leaders of their respective Departments. However, the lack of any appointed occupant of the office of Chief
Justice harms the independence of the Judiciary, because the Chief Justice is the head of the entire Judiciary.
The Chief Justice performs functions absolutely significant to the life of the nation. With the entire Supreme Court
being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no
obstacle to the appointment of the next Chief Justice, aside from its being mandatory for the incumbent President
to make within the 90-day period from May 17, 2010, there is no justification to insist that the successor of Chief
Justice Puno be appointed by the next President.
Historically, under the present Constitution, there has been no wide gap between the retirement and the
resignation of an incumbent Chief Justice, on one hand, and the appointment to and assumption of office of his
successor, on the other hand. As summarized in the comment of the OSG, the chronology of succession is as
follows:
1. When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice Pedro
Yap was appointed on the same day;
2. When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan was
appointed on the same day;
3. When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres
Narvasa was appointed the following day, December 8, 1991;
4. When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario Davide,
Jr. was sworn into office the following early morning of November 30, 1998;
5. When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio
Panganiban was appointed the next day, December 20, 2005; and
6. When Chief Justice Panganiban retired on December 6, 2006, Chief Justice Reynato S.
Puno took his oath as Chief Justice at midnight of December 6, 2006.[85]
III
Writ of mandamus does not lie against the JBC
May the JBC be compelled to submit the list of nominees to the President?
Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act that the law specifically enjoins as a duty resulting from an office, trust, or station. [86] It is
proper when the act against which it is directed is one addressed to the discretion of the tribunal or
officer. Mandamus is not available to direct the exercise of a judgment or discretion in a particular way. [87]
For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear legal right to the
act demanded; (b) it must be the duty of the defendant to perform the act, because it is mandated by law; (c)
the defendant unlawfully neglects the performance of the duty enjoined by law; (d) the act to be performed is
ministerial, not discretionary; and (e) there is no appeal or any other plain, speedy and adequate remedy in the
ordinary course of law.
Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least three nominees to
the President for every vacancy in the Judiciary:
Section 8. xxx
(5) The Council shall have the principal function of recommending appointees to
the Judiciary. xxx
Section 9. The Members of the Supreme Court and judges of lower courts shall be
appointed by the President from a list of at least three nominees prepared by the Judicial
and Bar Council for every vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments within ninety days
from the submission of the list.
However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in the
Supreme Court within 90 days from the occurrence of the vacancy, and within 90 days from the submission of
the list, in the case of the lower courts. The 90-day period is directed at the President, not at the JBC. Thus, the
JBC should start the process of selecting the candidates to fill the vacancy in the Supreme Court before the
occurrence of the vacancy.
Under the Constitution, it is mandatory for the JBC to submit to the President the list of nominees to fill a
vacancy in the Supreme Court in order to enable the President to appoint one of them within the 90-day period
from the occurrence of the vacancy. The JBC has no discretion to submit the list to the President after the
vacancy occurs, because that shortens the 90-day period allowed by the Constitution for the President to make
the appointment. For the JBC to do so will be unconscionable on its part, considering that it will
thereby effectively and illegally deprive the President of the ample time granted under the Constitution to reflect
on the qualifications of the nominees named in the list of the JBC before making the appointment.
The duty of the JBC to submit a list of nominees before the start of the Presidents mandatory 90-day
period to appoint is ministerial, but its selection of the candidates whose names will be in the list to be submitted
to the President lies within the discretion of the JBC. The object of the petitions for mandamus herein should only
refer to the duty to submit to the President the list of nominees for every vacancy in the Judiciary, because in
order to constitute unlawful neglect of duty, there must be an unjustified delay in performing that
duty.[88] For mandamus to lie against the JBC, therefore, there should be an unexplained delay on its part in
recommending nominees to the Judiciary, that is, in submitting the list to the President.
The distinction between a ministerial act and a discretionary one has been delineated in the following
manner:
The distinction between a ministerial and discretionary act is well delineated. A purely
ministerial act or duty is one which an officer or tribunal performs in a given state of
 facts, in a prescribed manner, in obedience to the mandate of a legal authority, without
regard to or the exercise of his own judgment upon the propriety or impropriety of the SO ORDERED.
act done. If the law imposes a duty upon a public officer and gives him the right to
decide how or when the duty shall be performed, such duty is discretionary and not
ministerial. The duty is ministerial only when the discharge of the same requires neither
the exercise of official discretion or judgment.[89]

Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a writ
of mandamus against the JBC. The actions for that purpose are premature, because it is clear that the JBC still
has until May 17, 2010, at the latest, within which to submit the list of nominees to the President to fill the
vacancy created by the compulsory retirement of Chief Justice Puno.

IV
Writ of prohibition does not lie against the JBC

In light of the foregoing disquisitions, the conclusion is ineluctable that only the President can appoint
the Chief Justice. Hence, Sorianos petition for prohibition in G.R. No. 191032, which proposes to prevent the
JBC from intervening in the process of nominating the successor of Chief Justice Puno, lacks merit.

On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of merit. The
challenge mounted against the composition of the JBC based on the allegedly unconstitutional allocation of a
vote each to the ex officio members from the Senate and the House of Representatives, thereby prejudicing the
chances of some candidates for nomination by raising the minimum number of votes required in accordance with
the rules of the JBC, is not based on the petitioners actual interest, because they have not alleged in their
petition that they were nominated to the JBC to fill some vacancies in the Judiciary. Thus, the petitioners
lack locus standi on that issue.

WHEREFORE, the Court:

1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149,
and the petition for mandamus in G.R. No. 191057 for being premature;

2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of merit;
and

3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council:

(a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created
by the compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010;

(b) To prepare the short list of nominees for the position of Chief Justice;

(c) To submit to the incumbent President the short list of nominees for the position of Chief
Justice on or before May 17, 2010; and

(d) To continue its proceedings for the nomination of candidates to fill other vacancies in the
Judiciary and submit to the President the short list of nominees corresponding thereto in
accordance with this decision.
 G.R. No. 91636 April 23, 1992
PETER JOHN D. CALDERON, petitioner,
vs.
BARTOLOME CARALE, in his capacity as Chairman of the National Labor Relations Commission, EDNA
BONTO PEREZ, LOURDES C. JAVIER, ERNESTO G. LADRIDO III, MUSIB M. BUAT, DOMINGO H.
ZAPANTA, VICENTE S.E. VELOSO III, IRENEO B. BERNARDO, IRENEA E. CENIZA, LEON G. GONZAGA,
JR., ROMEO B. PUTONG, ROGELIO I. RAYALA, RUSTICO L. DIOKNO, BERNABE S. BATUHAN and
OSCAR N. ABELLA, in their capacity as Commissioners of the National Labor Relations Commission,
and GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management, respondents.
PADILLA, J.:
Controversy is focused anew on Sec. 16, Art. VII of the 1987 Constitution which provides:
Sec. 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this Constitution. He shall also
appoint all other officers of the Government whose appointments are not otherwise provided
for by law, and those whom he may be authorized by law to appoint. The Congress may, by
law, vest the appointment of other officers lower in rank in the President alone, in the courts, or
in the heads of departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next adjournment of the
Congress. 1
The power of the Commission on Appointments (CA for brevity) to confirm appointments, contained in the
aforequoted paragraph 1 of Sec. 16, Art. VII, was first construed in Sarmiento III vs. Mison 2 as follows:
. . . it is evident that the position of Commissioner of the Bureau of Customs (a bureau head) is
not one of those within the first group of appointments where the consent of the Commission
on Appointments is required. As a matter of fact, as already pointed out, while the 1935
Constitution includes "heads of bureaus" among those officers whose appointments need the
consent of the Commission on Appointments, the 1987 Constitution, on the other hand,
deliberately excluded the position of "heads of bureaus" from appointments that need the
consent (confirmation) of the Commission on Appointments.
. . . Consequently, we rule that the President of the Philippines acted within her constitutional
authority and power in appointing respondent Salvador Mison, Commissioner of the Bureau of
Customs, without submitting his nomination to the Commission on Appointments for
confirmation. . . .
. . . In the 1987 Constitution, however, as already pointed out, the clear and expressed intent
of its framers was to exclude presidential appointments from confirmation by the Commission
on Appointments, except appointments to offices expressly mentioned in the first sentence of
Sec. 16, Art.VII. Consequently, there was no reason to use in the third sentence of Sec. 16,
Article VII the word "alone" after the word "President" in providing that Congress may by law
vest the appointment of lower-ranked officers in the President alone, or in the courts, or in the
heads of departments, because the power to appoint officers whom he (the president) may be
authorized by law to appoint is already vested in the President, without need of confirmation by
the Commission on Appointments, in the second sentence of the same Sec. 16, Article VII."
(emphasis supplied)
Next came Mary Concepcion Bautista v. Salonga, 3 this time involving the appointment of the Chairman of the
Commission on Human Rights. Adhering to the doctrine in Mison, the Court explained:
. . . Since the position of Chairman of the Commission on Human Rights is not among the
positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution,
appointments to which are to be made with the confirmation of the Commission on
Appointments, it follows that the appointment by the President of the Chairman of the CHR is
to be made without the review or participation of the Commission on Appointments. To be
more precise, the appointment of the Chairman and Members of the Commission on Human
Rights is not specifically provided for in the Constitution itself, unlike the Chairmen and
Members of the Civil Service Commission, the Commission on Elections and the Commission
on Audit, whose appointments are expressly vested by the Constitution in the president with
the consent of the Commission on Appointments. The president appoints the Chairman and
Members of The Commission on Human Rights pursuant to the second sentence in Section
16, Art. VII, that is, without the confirmation of the Commission on Appointments because they
are among the officers of government "whom he (the President) may be authorized by law to
appoint." And Section 2(c), Executive Order No. 163, 5 May 1987, authorizes the President to
appoint the Chairman and Members of the Commission on Human Rights.
Consistent with its rulings in Mison and Bautista, in Teresita Quintos Deles, et al. v. The Commission on
Constitutional Commissions, et al.,4 the power of confirmation of the Commission on Appointments over
appointments by the President of sectoral representatives in Congress was upheld because:
. . . Since the seats reserved for sectoral representatives in paragraph 2, Section 5, Art. VI may
be filled by appointment by the President by express provision of Section 7, Art. XVIII of the
Constitution, it is indubitable that sectoral representatives to the House of Representatives are
among the "other officers whose appointments are vested in the President in this Constitution,"
referred to in the first sentence of Section 16, Art. VII whose appointments are subject to
confirmation by the Commission on Appointments.
From the three (3) cases above-mentioned, these doctrines are deducible:
1. Confirmation by the Commission on Appointments is required only for presidential appointees mentioned in
the first sentence of Section 16, Article VII, including, those officers whose appointments are expressly vested by
the Constitution itself in the president (like sectoral representatives to Congress and members of the
constitutional commissions of Audit, Civil Service and Election).
2. Confirmation is not required when the President appoints other government officers whose appointments are
not otherwise provided for by law or those officers whom he may be authorized by law to appoint (like the
Chairman and Members of the Commission on Human Rights). Also, as observed in Mison, when Congress
creates inferior offices but omits to provide for appointment thereto, or provides in an unconstitutional manner for
such appointments, the officers are considered as among those whose appointments are not otherwise provided
for by law.
Sometime in March 1989, RA 6715 (Herrera-Veloso Law), amending the Labor Code (PD 442) was approved. It
provides in Section 13 thereof as follows:
xxx xxx xxx
The Chairman, the Division Presiding Commissioners and other Commissioners shall all be
appointed by the President, subject to confirmation by the Commission on Appointments.
Appointments to any vacancy shall come from the nominees of the sector which nominated the
predecessor. The Executive Labor Arbiters and Labor Arbiters shall also be appointed by the
President, upon recommendation of the Secretary of Labor and Employment, and shall be
subject to the Civil Service Law, rules and regulations. 5
Pursuant to said law (RA 6715), President Aquino appointed the Chairman and Commissioners of the NLRC
representing the public, workers and employers sectors. The appointments stated that the appointees may
qualify and enter upon the performance of the duties of the office. After said appointments, then Labor Secretary
Franklin Drilon issued Administrative Order No. 161, series of 1989, designating the places of assignment of the
newly appointed commissioners.
This petition for prohibition questions the constitutionality and legality of the permanent appointments extended
by the President of the Philippines to the respondents Chairman and Members of the National Labor Relations
Commission (NLRC), without submitting the same to the Commission on Appointments for confirmation pursuant
to Art. 215 of the Labor Code as amended by said RA 6715.
Petitioner insists on a mandatory compliance with RA 6715 which has in its favor the presumption of validity. RA
6715 is not, according to petitioner, an encroachment on the appointing power of the executive contained in
Section 16, Art. VII, of the Constitution, as Congress may, by law, require confirmation by the Commission on
Appointments of other officers appointed by the President additional to those mentioned in the first sentence of
Section 16 of Article VII of the Constitution. Petitioner claims that the Mison and Bautista rulings are not decisive
of the issue in this case for in the case at bar, the President issued permanent appointments to the respondents
without submitting them to the CA for confirmation despite passage of a law (RA 6715) which requires the
confirmation by the Commission on Appointments of such appointments.
The Solicitor General, on the other hand, contends that RA 6715 which amended the Labor
Code transgressesSection 16, Article VII by expanding the confirmation powers of the Commission on
Appointments without constitutional basis. Mison and Bautista laid the issue to rest, says the Solicitor General,
with the following exposition:
As interpreted by this Honorable Court in the Mison case, confirmation by the Commission on
Appointments is required exclusively for the heads of executive departments, ambassadors,
public ministers, consuls, officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in the President by the Constitution, such as
the members of the various Constitutional Commissions. With respect to the other officers
whose appointments are not otherwise provided for by the law and to those whom the
President may be authorized by law to appoint, no confirmation by the Commission on
Appointments is required.
Had it been the intention to allow Congress to expand the list of officers whose appointments
must be confirmed by the Commission on Appointments, the Constitution would have said so
by adding the phrase "and other officers required by law" at the end of the first sentence, or the
phrase, "with the consent of the Commission on Appointments" at the end of the second
sentence. Evidently, our Constitution has significantly omitted to provide for such additions.
The original text of Section 16 of Article VII of the present Constitution as embodied in
Resolution No. 517 of the Constitutional Commission reads as follows:
"The President shall nominate and, with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and
bureaus, ambassadors, other public ministers and consuls, or officers of the
armed forces from the rank of captain or commander, and all other officers
of the Government whose appointments are not herein otherwise provided
for by law, and those whom he may be authorized by law to appoint. The
Congress may by law vest the appointment of inferior officers in the
President alone, in the courts or in the heads of the department."
Three points should be noted regarding sub-section 3 of Section 10 of Article VII of the 1935
Constitution and in the original text of Section 16 of Article VII of the present Constitution as
proposed in Resolution No. 517.
First, in both of them, the appointments of heads of bureaus were required to be confirmed by
the Commission on Appointments.
Second, in both of them, the appointments of other officers, "whose appointments are not
otherwise provided for by law to appoint" are expressly made subject to confirmation by the
Commission on Appointments. However, in the final version of Resolution No. 517, as
embodied in Section 16 of Article VII of the present Constitution, the appointment of the above
mentioned officers (heads of bureaus; other officers whose appointments are not provided for
by law; and those whom he may be authorized by law to appoint) are excluded from the list of
those officers whose appointments are to be confirmed by the Commission on Appointments.
This amendment, reflected in Section 16 of Article VII of the Constitution, clearly shows the
intent of the framers to exclude such appointments from the requirement of confirmation by the
Commission on Appointments.
Third, under the 1935 Constitution the word "nominate" qualifies the entire Subsection 3 of
Section 10 of Article VII thereof.
Respondent reiterates that if confirmation is required, the three (3) stage process of
nomination, confirmation and appointment operates. This is only true of the first group
enumerated in Section 16, but the word nominate does not any more appear in the 2nd and
3rd sentences. Therefore, the president's appointment pursuant to the 2nd and 3rd sentences
needs no confirmation. 6
The only issue to be resolved by the Court in the present case is whether or not Congress may, by law, require
confirmation by the Commission on Appointments of appointments extended by the president to government
officers additional to those expressly mentioned in the first sentence of Sec. 16, Art. VII of the Constitution whose
appointments require confirmation by the Commission on Appointments.
To resolve the issue, we go back to Mison where the Court stated:
. . . there are four (4) groups of officers whom the President shall appoint. These four (4)
groups, to which we will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other public
ministers and consuls, officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are vested in him in
this Constitution;
Second, all other officers of the Government whose appointments are not
otherwise provided for by law;
Third, those whom the president may be authorized by law to appoint;
Fourth, officers lower in rank whose appointments the Congress may by law
vest in the President alone. 7
Mison also opined:
In the course of the debates on the text of Section 16, there were two (2) major changes
proposed and approved by the Commission. These were (1) the exclusion of the appointments
of heads of bureaus from the requirement of confirmation by the Commission on
Appointments; and (2) the exclusion of appointments made under the second sentence of the
section from the same requirement. . . .
The second sentence of Sec. 16, Art. VII refers to all other officers of the government whose appointments are
not otherwise provided for by law and those whom the President may be authorized by law to appoint.
Indubitably, the NLRC Chairman and Commissioners fall within the second sentence of Section 16, Article VII of
the Constitution, more specifically under the "third groups" of appointees referred to in Mison, i.e. those whom
the President may be authorized by law to appoint. Undeniably, the Chairman and Members of the NLRC are not
among the officers mentioned in the first sentence of Section 16, Article VII whose appointments requires
confirmation by the Commission on Appointments. To the extent that RA 6715 requires confirmation by the
Commission on Appointments of the appointments of respondents Chairman and Members of the National Labor
Relations Commission, it is unconstitutional because:
1) it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding thereto
appointments requiring confirmation by the Commission on Appointments; and
2) it amends by legislation the second sentence of Sec. 16, Art. VII of the Constitution, by imposing the
confirmation of the Commission on Appointments on appointments which are otherwise entrusted only with the
President.
Deciding on what laws to pass is a legislative prerogative. Determining their constitutionality is a judicial function.
The Court respects the laudable intention of the legislature. Regretfully, however, the constitutional infirmity of
Sec. 13 of RA 6715 amending Art. 215 of the Labor Code, insofar as it requires confirmation of the Commission
on Appointments over appointments of the Chairman and Member of the National Labor Relations Commission
(NLRC) is, as we see it, beyond redemption if we are to render fealty to the mandate of the Constitution in Sec.
16, Art. VII thereof.
Supreme Court decisions applying or interpreting the Constitution shall form part of the legal system of the
Philippines.8 No doctrine or principle of law laid down by the Court in a decision rendered en banc or in division
may be modified or reversed except by the Court sitting en banc.9
. . . The interpretation upon a law by this Court constitutes, in a way, a part of the law as of the
date that law was originally passed, since this Court's construction merely establishes the
contemporaneous legislative intent that the law thus construed intends to effectuate. The
settled rule supported by numerous authorities is a restatement of the legal maxim "legis
interpretado legis vim obtinent" — the interpretation placed upon the written law by a
competent court has the force of law. 10
The rulings in Mison, Bautista and Quintos-Deles have interpreted Art. VII, Sec. 16 consistently in one manner.
Can legislation expand a constitutional provision after the Supreme Court has interpreted it?
In Endencia and Jugo vs. David, 11 the Court held:
By legislative fiat as enunciated in Section 13, Republic Act No. 590, Congress says that
taxing the salary of a judicial officer is not a decrease of compensation. This is a clear example
of interpretation or ascertainment of the meaning of the phrase "which shall not be diminished
during their continuance in office," found in Section 9, Article VIII of the Constitution, referring
to the salaries of judicial officers.
xxx xxx xxx
The rule is recognized elsewhere that the legislature cannot pass any
declaratory act, or act declaratory of what the law was before its passage, so
as to give it any binding weight with the courts. A legislative definition of a
word as used in a statute is not conclusive of its meaning as used
elsewhere; otherwise, the legislature would be usurping a judicial function in
defining a term. (11 Am. Jur., 914, emphasis supplied).
The legislature cannot, upon passing law which violates a constitutional
provision, validate it so as to prevent an attack thereon in the courts, by a
declaration that it shall be so construed as not to violate the constitutional
inhibition. (11 Am., Jur., 919, emphasis supplied).
We have already said that the Legislature under our form of government is assigned the task
and the power to make and enact laws, but not to interpret them. This is more true with regard
to the interpretation of the basic law, the Constitution, which is not within the sphere of the
Legislative department. If the Legislature may declare what a law means, or what a specific
portion of the Constitution means, especially after the courts have in actual case ascertained
its meaning by interpretation and applied it in a decision, this would surely cause confusion
and instability in judicial processes and court decisions. Under such a system, a final court
determination of a case based on a judicial interpretation of the law or of the Constitution may
be undermined or even annulled by a subsequent and different interpretation of the law or of
the Constitution by the Legislative department that would be neither wise nor desirable, being
clearly violative of the fundamental principles of our constitutional system of government,
particularly those governing the separation of powers. 14(Emphasis supplied)
Congress, of course, must interpret the Constitution, must estimate the scope of its constitutional powers when it
sets out to enact legislation and it must take into account the relevant constitutional prohibitions. 15
. . . The Constitution did not change with public opinion.
It is not only the same words, but the same in meaning . . . and as long as it it speaks not only
in the same words, but with the same meaning and intent with which it spoke when it came
from the hands of its framers, and was voted and adopted by the people . . . 16
The function of the Court in passing upon an act of Congress is to "lay the article of the Constitution which is
invoked beside the statute which is challenged and to decide whether the latter squares with the former" and to
"announce its considered judgment upon the question." 17
It can not be overlooked that Sec. 16, Art. VII of the 1987 Constitution was deliberately, not unconsciously,
intended by the framers of the 1987 Constitution to be a departure from the system embodied in the 1935
Constitution where the Commission on Appointments exercised the power of confirmation over almost all
presidential appointments, leading to many cases of abuse of such power of confirmation. Subsection 3, Section
10, Art. VII of the 1935 Constitution provided:
3. The President shall nominate and with the consent of the Commission on Appointments,
shall appoint the heads of the executive departments and bureaus, officers of the Army from
the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all
other officers of the Government whose appointments are not herein otherwise provided for,
and those whom he may be authorized by law to appoint; . . .
The deliberate limitation on the power of confirmation of the Commission on Appointments over presidential
appointments, embodied in Sec. 16, Art. VII of the 1987 Constitution, has undoubtedly evoked the displeasure
and disapproval of members of Congress. The solution to the apparent problem, if indeed a problem, is not
judicial or legislative but constitutional. A future constitutional convention or Congress sitting as a constituent
(constitutional) assembly may then consider either a return to the 1935 Constitutional provisions or the adoption
of a hybrid system between the 1935 and 1987 constitutional provisions. Until then, it is the duty of the Court to
apply the 1987 Constitution in accordance with what it says and not in accordance with how the legislature or the
executive would want it interpreted.
WHEREFORE, the petition is DISMISSED. Art. 215 of the Labor Code as amended by RA 6715 insofar as it
requires the confirmation of the Commission on Appointments of appointments of the Chairman and Members of
the National Labor Relations Commission (NLRC) is hereby declared unconstitutional and of no legal force and
effect.
SO ORDERED.
 G.R. No. 111243 May 25, 1994
JESUS ARMANDO A.R. TARROSA, petitioner,
vs.
GABRIEL C. SINGSON and HON. SALVADOR M. ENRIQUEZ III, respondents
Marlon B. Llaunder for petitioner.
QUIASON, J.:
This is a petition for prohibition filed by petitioner as a "taxpayer," questioning the appointment of respondent
Gabriel Singson as Governor of the Bangko Sentral Ng Pilipinas for not having been confirmed by the
Commission on Appointments. The petition seeks to enjoin respondent Singson from the performance of his
functions as such official until his appointment is confirmed by the Commission on Appointments and respondent
Salvador M. Enriquez, Secretary of Budget and Management, from disbursing public funds in payment of the
salaries and emoluments of respondent Singson.
I occupy the said office.
Respondent Singson was appointed Governor of the Bangko Sentral by President Fidel V. Ramos on July 2,
1993, effective on July 6, 1993 (Rollo, p. 10).
Petitioner argues that respondent Singson's appointment is null and void since it was not submitted for
confirmation to the Commission on Appointments. The petition is anchored on the provisions of Section 6 of R.A.
No. 7653, which established the Bangko Sentral as the Central Monetary Authority of the Philippines. Section 6,
Article II of R.A. No. 7653 provides:
Sec. 6. Composition of the Monetary Board. The powers and functions of the Bangko Sentral
shall be exercised by the Bangko Sentral Monetary Board, hereafter referred to as the
Monetary Board, composed of seven (7) members appointed by the President of the
Philippines for a term of six (6) years.
The seven (7) members are:
(a) The Governor of the Bangko Sentral, who shall be the Chairman of the Monetary
Board. The Governor of the Bangko Sentral shall be head of a department and his
appointment shall be subject to confirmation by the Commission on Appointments. Whenever
the Governor is unable to attend a meeting of the Board, he shall designate a Deputy
Governor to act as his alternate: Provided, That in such event, the Monetary Board shall
designate one of its members as acting Chairman . . . (Emphasis supplied).
II
The instant petition is in the nature of a quo warranto proceeding as it seeks the ouster of respondent Singson
and alleges that the latter is unlawfully holding or exercising the powers of Governor of the Bangko Sentral (Cf.
Castro v. Del Rosario, 19 SCRA 196 [1967]). Such a special civil action can only be commenced by the Solicitor
General or by a "person claiming to be entitled to a public office or position unlawfully held or exercised by
another" (Revised Rules of Court, Rule 66, Sec. 6; Acosta v. Flor, 5 Phil. 18 [1905]).
In Sevilla v. Court of Appeals, 209 SCRA 637 (1992), we held that the petitioner therein, who did not aver that he
was entitled to the office of the City Engineer of Cabanatuan City, could not bring the action for quo warranto to
oust the respondent from said office as a mere usurper.
Likewise in Greene v. Knox, 175 N.Y. 432 (1903), 67 N.E. 910, it was held that the question of title to an office,
which must be resolved in a quo warranto proceeding, may not be determined in a suit to restrain the payment of
salary to the person holding such office, brought by someone who does not claim to be the one entitled to
It is obvious that the instant action was improvidently brought by petitioner. To uphold the action would
encourage every disgruntled citizen to resort to the courts, thereby causing incalculable mischief and hindrance
to the efficient operation of the governmental machinery (See Roosevelt v. Draper, 7 Abb. Pr. 108, 23 N.Y. 218).
Its capstone having been removed, the whole case of petitioner collapses. Hence, there is no need to resolve the
question of whether the disbursement of public funds to pay the salaries and emoluments of respondent Singson
can be enjoined. Likewise, the Court refrains from passing upon the constitutionality of Section 6, R.A. No. 7653
in deference to the principle that bars a judicial inquiry into a constitutional question unless the resolution thereof
is indispensable for the determination of the case (Fernandez v. Torres, 215 SCRA 489 [1992]).
However for the information of all concerned, we call attention to our decision in Calderon v. Carale, 208 SCRA
254 (1992), with Justice Isagani A. Cruz dissenting, where we ruled that Congress cannot by law expand the
confirmation powers of the Commission on Appointments and require confirmation of appointment of other
government officials not expressly mentioned in the first sentence of Section 16 of Article VII of the Constitution.
WHEREFORE, the petition is DENIED. No pronouncement as to costs.
SO ORDERED.

In their comment, respondents claim that Congress exceeded its legislative powers in requiring the confirmation
by the Commission on Appointments of the appointment of the Governor of the Bangko Sentral. They contend
that an appointment to the said position is not among the appointments which have to be confirmed by the
Commission on Appointments, citing Section 16 of Article VII of the Constitution which provides that:

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

Respondents also aver that the Bangko Sentral has its own budget and accordingly, its budgetary requirements
are not subject to the provisions of the General Appropriations Act.
We dismiss the petition.
 [G.R. No. 153881. March 24, 2003]
ELPIDIO G. SORIANO III, petitioner, vs. REUBEN S. LISTA, DOMINGO T. ESTERA, ELPIDIO B. PADAMA,
MIGUEL C. TABARES, ARTHUR N. GOSINGAN, EFREN L. TADURAN, CESAR A. SARILE,
DANILO M. VILDA and HONORABLE EMILIA T. BONCODIN, in her capacity as Secretary of
Budget and Management, respondents.
DECISION
CORONA, J.:
Before us is a Petition for Prohibition under Rule 65 of the Rules of Court questioning the constitutionality
and legality of the permanent appointments, made by President Gloria Macapagal-Arroyo, of public respondents
to different positions in the Philippine Coast Guard and their subsequent assumption of office without
confirmation by the Commission on Appointments under the 1987 Constitution.
The petition impleads Hon. Emilia T. Boncodin in her capacity as Secretary of the Department of Budget
and Management (DBM). Petitioner, Elpidio G. Soriano, filed the instant petition as member of the Integrated Bar
of the Philippines and as a taxpayer.
Public respondents were promoted to different ranks in the Philippine Coast Guard (PCG) on different dates
as follows:
Reuben S. Lista Vice Admiral, Philippine Coast Guard
Domingo T. Estera Rear Admiral, Philippine Coast Guard
Miguel C. Tabares Commodore, Philippine Coast Guard
Arthur N. Gosingan Commodore, Philippine Coast Guard
Efren L. Taduran Naval Captain, Philippine Coast Guard
Cesar A. Sarile Naval Captain, Philippine Coast Guard
Danilo M. Vilda Naval Captain, Philippine Coast Guard
Elpidio B. Padama Commodore, Philippine Coast Guard
Petitioner bewails the fact that despite the non-submission of their names to the Commission on
Appointments (CA) for confirmation, all of the said respondent officers of the PCG had assumed their duties
and functions. According to petitioner, their respective appointments are illegal and unconstitutional for failure to
undergo the confirmation process in the CA. Thus, they should be prohibited from discharging their duties and
functions as such officers of the PCG.
In the same vein, petitioner opines that there is no legal basis for the DBM to allow the disbursement of the
salaries and emoluments of respondent officers of the PCG. Accordingly, he prays that respondent Secretary
Boncodin be ordered to desist from allowing such disbursements until the confirmation of their respective
appointments by the CA.
At the outset, the Court finds petitioner to be without any legal personality to file the instant petition. We
have ruled that a private citizen is allowed to raise constitutional questions only if he can show that he has
personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the
government, the injury is fairly traceable to the challenged action and the injury is likely to be redressed by a
favorable action.[1] In the case at bar, petitioner has failed to clearly demonstrate that he has personally suffered
actual or threatened injury. It should be emphasized that a party bringing a suit challenging the constitutionality of
an act or statute must show not only that the law or act is invalid, but also that he has sustained or is in
immediate, or imminent danger of sustaining some direct injury as a result of its enforcement and not merely that
he suffers thereby in some indefinite way.[2]
The instant petition cannot even be classified as a taxpayers suit because petitioner has no interest as such
and this case does not involve the exercise by Congress of its taxing power.
Assuming arguendo that petitioner has the legal personality to question the subject appointments, the
petition will nevertheless fail. As aptly pointed out by the Solicitor General, the PCG used to be administered and
maintained as a separate unit of the Philippine Navy under Section 4 of RA 5173. It was subsequently placed
under the direct supervision and control of the Secretary of the Department of National Defense (DND) pursuant
to Section 4 of PD 601. Eventually, it was integrated into the Armed Forces of the Philippines (AFP) as a major
subordinate unit of the Philippine Navy under Section 54 of Chapter 8, Sub-title II, Title VIII, Book IV of EO 292,
as amended.
However, on March 30, 1998, after the aforesaid changes in the charter of the PCG, then President Fidel V.
Ramos, in the exercise of his statutory authority to reorganize the Office of the President, issued EO 475
transferring the PCG from the DND to the Office of the President. He later on again transferred the PCG from the
Office of the President to the Department of Transportation and Communications (DOTC).
Now that the PCG is under the DOTC and no longer part of the Philippine Navy or the Armed Forces of the
Philippines, the promotions and appointments of respondent officers of the PCG, or any PCG officer from the
rank of captain and higher for that matter, do not require confirmation by the CA.
Section 16, Article VII of the 1987 Constitution provides:
Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed
forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in
this Constitution. He shall also appoint all other officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by
law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess of the Congress, whether voluntary
or compulsory, but such appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress.
It is clear from the foregoing provision of the Constitution that only appointed officers from the rank of
colonel or naval captain in the armed forces require confirmation by the CA. The rule is that the plain, clear and
unambiguous language of the Constitution should be construed as such and should not be given a construction
that changes its meaning.[3]
The enumeration of appointments subject to confirmation by the CA under Section 16, Article VII of the
1987 Constitution is exclusive. The clause officers of the armed forces from the rank of colonel or naval captain
refers to military officers alone. This is clear from the deliberations of the Constitutional Commission on the
proposed text of said Section 16, Article VII of the Constitution. Since the promotions and appointments of
respondent officers are not covered by the above-cited provision of the Constitution, the same need not be
confirmed by the CA.[4]
Accordingly, the Court declares that no grave abuse of discretion amounting to lack or excess of jurisdiction
was committed by respondent officers of the PCG. Their assumption to office as well as the disbursement of their
respective salaries and other emoluments by the respondent Secretary of the DBM are hereby declared valid
and legal.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
 G.R. No. 86439 April 13, 1989
MARY CONCEPCION BAUTISTA, petitioner,
vs.
SENATOR JOVITO R. SALONGA, COMMISSION ON APPOINTMENTS COMMITTEE ON JUSTICE,
JUDICIAL AND BAR COUNCIL AND HUMAN RIGHTS AND HESIQUIO R. MALLILLIN, respondents.
PADILLA, J.:
The Court had hoped that its decision in Sarmiento III vs. Mison, 1 would have settled the question of which
appointments by the President, under the 1987 Constitution, are to be made with and without the review of the
Commission on Appointments. The Mison case was the first major case under the 1987 Constitution and in
construing Sec. 16, Art. VII of the 1987 Constitution which provides:
The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution. He shall also appoint all
other officers of the Government whose appointments are not otherwise provided for by law,
and those whom he may be authorized by law to appoint. The Congress may, by law, vest the
appointment of other officers lower in rank in the President alone, in the courts, or in the heads
of the departments, agencies, commissions or boards.
confirmation of the Commission on Appointments, it follows that the appointment by the President of the
Chairman of the (CHR), is to be made without the review or participation of the Commission on Appointments.
To be more precise, the appointment of the Chairman and Members of the Commission on Human Rights is not
specifically provided for in the Constitution itself, unlike the Chairmen and Members of the Civil Service
Commission, the Commission on Elections and the Commission on Audit, whose appointments are expressly
vested by the Constitution in the President with the consent of the Commission on Appointments. 2
The President appoints the Chairman and Members of the Commission on Human Rights pursuant to the second
sentence in Section 16, Art. VII, that is, without the confirmation of the Commission on Appointments because
they are among the officers of government "whom he (the President) may be authorized by law to appoint." And
Section 2(c), Executive Order No. 163, 5 May 1987, authorizes the President to appoint the Chairman and
Members of the Commission on Human Rights. It provides:
(c) The Chairman and the Members of the Commission on Human Rights shall be appointed
by the President for a term of seven years without reappointment. Appointment to any vacancy
shall be only for the unexpired term of the predecessor.
The above conclusions appear to be plainly evident and, therefore, irresistible. However, the presence in this
case of certain elements — absent in the Mison case — makes necessary a closer scrutiny. The facts are
therefore essential.

The President shall have the power to make appointments during the recess of the Congress, On 27 August 1987, the President of the Philippines designated herein petitioner Mary Concepcion Bautista
whether voluntary or compulsory, but such appointments shall be effective only until as "Acting Chairman, Commission on Human Rights." The letter of designation reads:
disapproval by the Commission on Appointments or until the next adjournment of the 27 August 1987
Congress.
M a d a m:
this Court, drawing extensively from the proceedings of the 1986 Constitutional Commission and the country's You are hereby designated ACTING CHAIRMAN, COMMISSION ON HUMAN RIGHTS, to succeed the late
experience under the 1935 and 1973 Constitutions, held that only those appointments expressly mentioned in Senator Jose W. Diokno and Justice J. B. L. Reyes.
the first sentence of Sec. 16, Art. VII are to be reviewed by the Commission on Appointments, namely, "the
heads of the executive department, ambassadors, other public ministers and consuls, or officers of the armed HON. MARY CONCEPCION BAUTISTA 3
forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Realizing perhaps the need for a permanent chairman and members of the Commission on Human Rights,
Constitution." All other appointments by the President are to be made without the participation of the Commission befitting an independent office, as mandated by the Constitution, 4 the President of the Philippines on 17
on Appointments. Accordingly, in the Mison case, the appointment of therein respondent Salvador M. Mison as December 1988 extended to petitioner Bautista a permanent appointment as Chairman of the Commission. The
head of the Bureau of Customs, without the confirmation of the Commission on Appointments, was held valid appointment letter is as follows:
and in accordance with the Constitution.
The Honorable
The Mison case doctrine did not foreclose contrary opinions. So with the very provisions of Sec. 16, Art. VII as The Chairman
designed by the framers of the 1987 Constitution. But the Constitution, as construed by this Court in appropriate Commission on Human Rights
cases, is the supreme law of the land. And it cannot be over-stressed that the strength of the Constitution, with Pasig, Metro Manila
all its imperfections, lies in the respect and obedience accorded to it by the people, especially the officials of M a d a m:
government, who are the subjects of its commands.
Pursuant to the provisions of existing laws, the following are hereby appointed to the positions indicated opposite
Barely a year after Mison, the Court is again confronted with a similar question, this time, whether or not the their respective names in the Commission on Human Rights:
appointment by the President of the Chairman of the Commission on Human Rights (CHR), an "independent
office" created by the 1987 Constitution, is to be made with or without the confirmation of the Commission on MARY CONCEPCION BAUTISTA — Chairman
Appointments (CA, for brevity). Once more, as in Mison, the Court will resolve the issue irrespective of the ABELARDO L. APORTADERA, JR — Member
parties involved in the litigation, mindful that what really matters are the principles that will guide this SAMUEL SORIANO — Member
Administration and others in the years to come. HESIQUIO R. MALLILLIN — Member
NARCISO C. MONTEIRO — Member
Since the position of Chairman of the Commission on Human Rights is not among the positions mentioned in the By virtue hereof, they may qualify and enter upon the performance of the duties of the office
first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to which are to be made with the furnishing this Office and the Civil Service Commission with copies of their oath of office.
Very truly yours,
CORAZON C. AQUINO 5
It is to be noted that by virtue of such appointment, petitioner Bautista was advised by the President that she
could qualify and enter upon the performance of the duties of the office of Chairman of the Commission on
Human Rights, requiring her to furnish the office of the President and the Civil Service Commission with copies
of her oath of office.
On 22 December 1988, before the Chief Justice of this Court, Hon. Marcelo B. Fernan, petitioner Bautista took
her oath of office by virtue of her appointment as Chairman of the Commission on Human Rights. The full text of
the oath of office is as follows:
OATH OF OFFICE
I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street, Bangkal, Makati, Metro Manila having
been appointed to the position of CHAIRMAN of the Commission on Human Rights, do solemnly swear that I will
discharge to the best of my ability all the duties and responsibilities of the office to which I have been appointed;
uphold the Constitution of the Republic of the Philippines, and obey all the laws of the land without mental
reservation or purpose of evasion.
SO HELP ME GOD.
MARY CONCEPCION BAUTISTA
SUBSCRIBED AND SWORN TO before me this 22nd day of December in the year of Our Lord, 1988 in Manila.
Chief Justice Supreme Court of the Philippines 6
Immediately, after taking her oath of office as Chairman of the Commission on Human Rights, petitioner Bautista
discharged the functions and duties of the Office of Chairman of the Commission on Human Rights which, as
previously stated, she had originally held merely in an acting capacity beginning 27 August 1987.
On 9 January 1989, petitioner Bautista received a letter from the Secretary of the Commission on Appointments
requesting her to submit to the Commission certain information and documents as required by its rules in
connection with the confirmation of her appointment as Chairman of the Commission on Human Rights. 7 On 10
January 1989, the Commission on Appointments' Secretary again wrote petitioner Bautista requesting her
presence at a meeting of the Commission on Appointments Committee on Justice, Judicial and Bar Council and
Human Rights set for 19 January 1989 at 9 A.M. at the Conference Room, 8th Floor, Kanlaon Tower I, Roxas
Boulevard, Pasay City that would deliberate on her appointment as Chairman of the Commission on Human
Rights. 8
On 13 January 1989, petitioner Bautista wrote to the Chairman of the Commission on Appointments stating, for
the reasons therein given, why she considered the Commission on Appointments as having no jurisdiction to
review her appointment as Chairman of the Commission on Human Rights. The petitioner's letter to the
Commission on Appointments' Chairman reads:
SENATE PRESIDENT JOVITO R. SALONGA Chairman Commission on Appointments Senate, Manila
S i r:
We acknowledge receipt of the communication from the Commission on Appointments requesting our
appearance on January 19, 1989 for deliberation on our appointments. We respectfully submit that the
appointments of the Commission commissioners of the Human Rights Commission are not subject to
confirmation by the Commission on Appointments.
The Constitution, in Article VII Section 16 which expressly vested on the President the appointing power, has
expressly mentioned the government officials whose appointments are subject to the confirmation of the
Commission on Appointments of Congress. The Commissioners of the Commission on Human Rights are not
included among those.
Where the confirmation of the Commission on Appointments is required, as in the case of the Constitutional
Commissions such as the Commission on Audit, Civil Service Commission and the Commission on Elections, it
was expressly provided that the nominations will be subject to confirmation of Commission on Appointments. The
exclusion again of the Commission on Human Rights, a constitutional office, from this enumeration is a clear
denial of authority to the Commission on Appointments to review our appointments to the Commission on Human
Rights.
Furthermore, the Constitution specifically provides that this Commission is an independent office which:
a. must investigate all forms of human rights violations involving civil and political rights;
b. shall monitor the government's compliance in all our treaty obligations on human rights. We submit that, the
monitoring of all agencies of government, includes even Congress itself, in the performance of its functions which
may affect human rights;
c. may call on all agencies of government for the implementation of its mandate.
The powers of the Commission on Appointments is in fact a derogation of the Chief Executive's appointing power
and therefore the grant of that authority to review a valid exercise of the executive power can never be
presumed. It must be expressly granted.
The Commission on Appointments has no jurisdiction under the Constitution to review appointments by the
President of Commissioners of the Commission on Human Rights.
In view of the foregoing considerations, as Chairman of an independent constitutional office. I cannot submit
myself to the Commission on Appointments for the purpose of confirming or rejecting my appointment.
Very truly yours,
In respondent Commission's comment (in this case), dated 3 February 1989, there is attached as Annex 1 a
letter of the Commission on Appointments' Secretary to the Executive Secretary, Hon. Catalino Macaraig, Jr.
making reference to the "ad interim appointment which Her Excellency extended to Atty. Mary Concepcion
Bautista on 14 January 1989 as Chairperson of the Commission on Human Rights" 10 and informing Secretary
Macaraig that, as previously conveyed to him in a letter of 25 January 1989, the Commission on Appointments
disapproved petitioner Bautista's "ad interim appointment' as Chairperson of the Commission on Human Rights
in view of her refusal to submit to the jurisdiction of the Commission on Appointments. The letter reads:
S i r:
This refers to the ad interim appointment which Her Excellency extended to Atty. Mary Concepcion Bautista on
14 January 1989 as Chairperson of the Commission on Human Rights.
As we conveyed to you in our letter of 25 January 1989, the Commission on Appointments, assembled in plenary
(session) on the same day, disapproved Atty. Bautista's ad interim appointment as Chairperson of the
Commission on Human Rights in view of her refusal to submit to the jurisdiction of the Commission on
Appointments.
This is to inform you that the Commission on Appointments, likewise assembled in plenary (session) earlier
today, denied Senator Mamintal A. J. Tamano's motion for reconsideration of the disapproval of Atty.
Bautista's ad interim appointment as Chairperson of the Commission on Human Rights.
On the same date (1 February 1989), the Commission on Appointments' Secretary informed petitioner Bautista
that the motion for reconsideration of the disapproval of her "ad interim appointment as Chairman of the
Commission on Human Rights" was denied by the Commission on Appointments. The letter reads as follows:
ATTY. MARY CONCEPCION BAUTISTA
Commission on Human Rights
Integrated Bar of the Philippines
Bldg. Pasig, Metro Manila
Dear Atty. Bautista:
Pursuant to Sec. 6 (a), Chapter II of the Rules of the Commission on Appointments, the denial by the
Commission on Appointments, assembled in plenary (session) earlier today, of Senator Mamintal A.J. Tamano's
motion for reconsideration of the disapproval of your ad interim appointment as Chairperson of the Commission
on Human Rights is respectfully conveyed.
Thank you for your attention.
In Annex 3 of respondent Commission's same comment, dated 3 February 1989, is a news item appearing in the
3 February 1989 issue of the "Manila Standard" reporting that the President had designated PCHR
Commissioner Hesiquio R. Mallillin as "Acting Chairman of the Commission" pending the resolution of Bautista's
case which had been elevated to the Supreme Court. The news item is here quoted in full, thus —
Aquino names replacement for MaryCon
President Aquino has named replacement for Presidential Commission on Human Rights
Chairman Mary Concepcion Bautista whose appointment was rejected anew by the
Congressional commission on appointments.
The President designated PCHR commissioner Hesiquio R. Mallillin as acting chairman of the
Commission pending the resolution of Bautista's case which had been elevated to the
Supreme Court.
The President's action followed after Congressional Commission on Appointments Chairman,
Senate President Jovito Salonga declared Bautista can no longer hold on to her position after
her appointment was not confirmed for the second time.
For all practical purposes, Salonga said Bautista can be accused of usurpation of authority if
she insists to stay on her office.
In effect, the President had asked Bautista to vacate her office and give way to Mallillin (Mari
Villa) 13
On 20 January 1989, or even before the respondent Commission on Appointments had acted on her "ad
interimappointment as Chairman of the Commission on Human Rights" petitioner Bautista filed with this Court
the present petition for certiorari with a prayer for the immediate issuance of a restraining order, to declare "as
unlawful and unconstitutional and without any legal force and effect any action of the Commission on
Appointments as well as of the Committee on Justice, Judicial and Bar Council and Human Rights, on the
lawfully extended appointment of the petitioner as Chairman of the Commission on Human Rights, on the ground
that they have no lawful and constitutional authority to confirm and to review her appointment." 14
The prayer for temporary restraining order was "to enjoin the respondent Commission on Appointments not to
proceed further with their deliberation and/or proceedings on the appointment of the petitioner ... nor to enforce,
implement or act on any order, resolution, etc. issued in the course of their deliberations." 15
Respondents were required to file comment within ten (10) days. 16 On 7 February 1989, petitioner filed an
amended petition, with urgent motion for restraining order, impleading Commissioner Hesiquio R. Mallillin the
designated acting chairman as party respondent and praying for the nullification of his appointment. The
succeeding day, a supplemental urgent ex-parte motion was filed by petitioner seeking to restrain respondent
Mallillin from continuing to exercise the functions of chairman and to refrain from demanding courtesy
resignations from officers or separating or dismissing employees of the Commission.
Acting on petitioner's amended petition and supplemental urgent ex-parte motion, the Court resolved to issue a
temporary restraining order directing respondent Mallillin to cease and desist from effecting the dismissal,
courtesy resignation, i removal and reorganization and other similar personnel actions. 17 Respondents were
likewise required to comment on said amended petition with allowance for petitioner to file a reply within two (2)
days from receipt of a copy thereof.
Respondents Senator Salonga, the Commission on Appointments the Committee on J & BC and Human Rights
filed a comment to the amended petition on 21 February 1989. 18 Petitioner filed her reply. 19 On 24 February
1989, respondent Mallillin filed a separate comment. 20 The Court required petitioner to reply to respondent
Mallillin's comment . 21 Petitioner filed her reply. 22
In deference to the Commission on Appointments, an instrumentality of a co-ordinate and co-equal branch of
government, the Court did not issue a temporary restraining order directed against it. However, this does not
mean that the issues raised by the petition, as met by the respondents' comments, will not be resolved in this
case. The Court will not shirk from its duty as the final arbiter of constitutional issues, in the same way that it did
not in Mison.
As disclosed by the records, and as previously adverted to, it is clear that petitioner Bautista was extended by
Her Excellency, the President a permanent appointment as Chairman of the Commission on Human Rights on
17 December 1988. Before this date, she was merely the "Acting Chairman" of the Commission. Bautista's
appointment on 17 December 1988 is an appointment that was for the President solely to make, i.e., not an
appointment to be submitted for review and confirmation (or rejection) by the Commission on Appointments. This
is in accordance with Sec. 16, Art. VII of the 1987 Constitution and the doctrine in Mison which is here reiterated.
The threshold question that has really come to the fore is whether the President, subsequent to her act of 17
December 1988, and after petitioner Bautista had qualified for the office to which she had been appointed, by
taking the oath of office and actually assuming and discharging the functions and duties thereof, could extend
another appointment to the petitioner on 14 January 1989, an "ad interim appointment" as termed by the
respondent Commission on Appointments or any other kind of appointment to the same office of Chairman of the
Commission on Human Rights that called for confirmation by the Commission on Appointments.
The Court, with all due respect to both the Executive and Legislative Departments of government, and after
careful deliberation, is constrained to hold and rule in the negative. When Her Excellency, the President
converted petitioner Bautista's designation as Acting Chairman to a permanent appointment as Chairman of the
Commission on Human Rights on 17 December 1988, significantly she advised Bautista (in the same
appointment letter) that, by virtue of such appointment, she could qualify and enter upon the performance of the
duties of the office (of Chairman of the Commission on Human Rights). All that remained for Bautista to do was
to reject or accept the appointment. Obviously, she accepted the appointment by taking her oath of office before
the Chief Justice of the Supreme Court, Hon. Marcelo B. Fernan and assuming immediately thereafter the
functions and duties of the Chairman of the Commission on Human Rights. Bautista's appointment therefore on
17 December 1988 as Chairman of the Commission on Human Rights was a completed act on the part of the
President. To paraphrase the great jurist, Mr. Chief Justice Marshall, in the celebrated case of Marbury vs.
Madison. 23
xxx xxx xxx
The answer to this question seems an obvious one. The appointment being the sole act of the
President, must be completely evidenced, when it is shown that he has done everything to be
performed by him.
xxx xxx xxx
Some point of time must be taken when the power of the executive over an officer, not
removable at his will must cease. That point of time must be when the constitutional power of
appointment has been exercised. And this power has been exercised when the last act,
required from the person possessing the power, has been performed. ....
 xxx xxx xxx
But having once made the appointment, his (the President's) power over the office is
terminated in all cases, where by law the officer is not removable by him. The right to the office
is then in the person appointed, and he has the absolute, unconditional power of accepting or
rejecting it.
xxx xxx xxx
THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989
It is respondent Commission's submission that the President, after the appointment of 17 December 1988
extended to petitioner Bautista, decided to extend another appointment (14 January 1989) to petitioner Bautista,
this time, submitting such appointment (more accurately, nomination) to the Commission on Appointments for
confirmation. And yet, it seems obvious enough, both in logic and in fact, that no new or further appointment
could be made to a position already filled by a previously completed appointment which had been accepted by
the appointee, through a valid qualification and assumption of its duties.
Respondent Commission vigorously contends that, granting that petitioner's appointment as Chairman of the
Commission on Human Rights is one that, under Sec. 16, Art. VII of the Constitution, as interpreted in the Mison
case, is solely for the President to make, yet, it is within the president's prerogative to voluntarily submit such
appointment to the Commission on Appointment for confirmation. The mischief in this contention, as the Court
perceives it, lies in the suggestion that the President (with Congress agreeing) may, from time to time move
power boundaries, in the Constitution differently from where they are placed by the Constitution.
The Court really finds the above contention difficult of acceptance. Constitutional Law, to begin with, is
concerned with power not political convenience, wisdom, exigency, or even necessity. Neither the Executive nor
the Legislative (Commission on Appointments) can create power where the Constitution confers none. The
evident constitutional intent is to strike a careful and delicate balance, in the matter of appointments to public
office, between the President and Congress (the latter acting through the Commission on Appointments). To tilt
one side or the other of the scale is to disrupt or alter such balance of power. In other words, to the extent that
the Constitution has blocked off certain appointments for the President to make with the participation of the
Commission on Appointments, so also has the Constitution mandated that the President can confer no power of
participation in the Commission on Appointments over other appointments exclusively reserved for her by the
Constitution. The exercise of political options that finds no support in the Constitution cannot be sustained.
Nor can the Commission on Appointments, by the actual exercise of its constitutionally delimited power to review
presidential appointments, create power to confirm appointments that the Constitution has reserved to the
President alone. Stated differently, when the appointment is one that the Constitution mandates is for the
President to make without the participation of the Commission on Appointments, the executive's voluntary act of
submitting such appointment to the Commission on Appointments and the latter's act of confirming or rejecting
the same, are done without or in excess of jurisdiction.
EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE COMMISSION ON APPOINTMENTS AN
APPOINTMENT THAT UNDER THE CONSTITUTION SOLELY BELONGS TO HER, STILL, THERE WAS NO
VACANCY TO WHICH AN APPOINTMENT COULD BE MADE ON 14 JANUARY 1989
Under this heading, we will assume, ex gratia argumenti, that the Executive may voluntarily allow the
Commission on Appointments to exercise the power of review over an appointment otherwise solely vested by
the Constitution in the President. Yet, as already noted, when the President appointed petitioner Bautista on 17
December 1988 to the position of Chairman of the Commission on Human Rights with the advice to her that by
virtue of such appointment (not, until confirmed by the Commission on Appointments), she could qualify and
enter upon the performance of her duties after taking her oath of office, the presidential act of appointment to the
subject position which, under the Constitution, is to be made, in the first place, without the participation of the
Commission on Appointments, was then and there a complete and finished act, which, upon the acceptance by
Bautista, as shown by her taking of the oath of office and actual assumption of the duties of said office, installed
her, indubitably and unequivocally, as the lawful Chairman of the Commission on Human Rights for a term of
seven (7) years. There was thus no vacancy in the subject office on 14 January 1989 to which an appointment
could be validly made. In fact, there is no vacancy in said office to this day.
Nor can respondents impressively contend that the new appointment or re-appointment on 14 January 1989 was
an ad interim appointment, because, under the Constitutional design, ad interim appointments do not apply to
appointments solely for the President to make, i.e., without the participation of the Commission on
Appointments. Ad interim appointments, by their very nature under the 1987 Constitution, extend only to
appointments where the review of the Commission on Appointments is needed. That is why ad
interim appointments are to remain valid until disapproval by the Commission on Appointments or until the next
adjournment of Congress; but appointments that are for the President solely to make, that is, without the
participation of the Commission on Appointments, can not be ad interim appointments.
EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING THAT THE TENURE OF THE CHAIRMAN AND
MEMBERS OF THE COMMISSION ON HUMAN RIGHTS SHALL BE AT THE PLEASURE OF THE
PRESIDENT IS UNCONSTITUTIONAL.
Respondent Mallillin contends that with or without confirmation by the Commission on Appointments, petitioner
Bautista, as Chairman of the Commission on Human Rights, can be removed from said office at anytime, at the
pleasure of the President; and that with the disapproval of Bautista's appointment (nomination) by the
Commission on Appointments, there was greater reason for her removal by the President and her replacement
with respondent Mallillin Thus, according to respondent Mallillin the petition at bar has become moot and
academic.
We do not agree that the petition has become moot and academic. To insist on such a posture is akin to
deluding oneself that day is night just because the drapes are drawn and the lights are on. For, aside from the
substantive questions of constitutional law raised by petitioner, the records clearly show that petitioner came to
this Court in timely manner and has not shown any indication of abandoning her petition.
Reliance is placed by respondent Mallillin on Executive Order No. 163-A, 30 June 1987, full text of which is as
follows:
WHEREAS, the Constitution does not prescribe the term of office of the Chairman and
Members of the Commission on Human Rights unlike those of other Constitutional
Commissions;
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, do hereby order:
SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is hereby amended to
read as follows:
The Chairman and Members of the Commission on Human Rights shall be appointed by the
President. Their tenure in office shall be at the pleasure of the President.
SEC. 2. This Executive Order shall take effect immediately. DONE in the City of Manila, this
30th day of June, in the year of Our Lord, nineteen hundred and eighty-seven.
By the President:
(Sgd.) JOKER P. ARROYO
Executive Secretary 24
25
Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No. 163 was issued by the
President, Sec. 2(c) of which provides:
 Sec. 2(c). The Chairman and the Members of the Commission on Human Rights shall be
appointed by the President for a term of seven years without reappointment. Appointments to
any vacancy shall be only for the unexpired term of the predecessor.
It is to be noted that, while the earlier executive order (No. 163) speaks of a term of office of the Chairman and
Members of the Commission on Human Rights — which is seven (7) years without reappointment — the later
executive order (163-A) speaks of the tenure in office of the Chairman and Members of the Commission on
Human Rights, which is "at the pleasure of the President."
Tenure in office should not be confused with term of office. As Mr. Justice (later, Chief Justice) Concepcion in his
concurring opinion in Alba vs. Evangelista, 26 stated:
The distinction between "term" and "tenure" is important, for, pursuant to the Constitution, "no
officer or employee in the Civil Service may be removed or suspended except for cause, as
provided by law" (Art. XII, section 4), and this fundamental principle would be defeated if
Congress could legally make the tenure of some officials dependent upon the pleasure of the
President, by clothing the latter with blanket authority to replace a public officer before the
expiration of his term. 27
When Executive Order No. 163 was issued, the evident purpose was to comply with the constitutional provision
that "the term of office and other qualifications and disabilities of the Members of the Commission (on Human
Rights) shall be provided by law" (Sec. 17(2), Art. XIII, 1987 Constitution).
As the term of office of the Chairman (and Members) of the Commission on Human Rights, is seven (7) years,
without reappointment, as provided by Executive Order No. 163, and consistent with the constitutional design to
give the Commission the needed independence to perform and accomplish its functions and duties, the tenure in
office of said Chairman (and Members) cannot be later made dependent on the pleasure of the President.
Nor can respondent Mallillin find support in the majority opinion in the Alba case, supra, because the power of
the President, sustained therein, to replace a previously appointed vice-mayor of Roxas City given the express
provision in Sec. 8, Rep. Act No. 603 (creating the City of Roxas) stating that the vice-mayor shall serve at the
pleasure of the President, can find no application to the Chairman of an INDEPENDENT OFFICE, created not by
statute but by the Constitution itself. Besides, unlike in the Alba case, here the Constitution has decreed that the
Chairman and Members of the Commission on Human Rights shall have a "term of office."
Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and created by the
Constitution to be independent as the Commission on Human Rights-and vested with the delicate and vital
functions of investigating violations of human rights, pinpointing responsibility and recommending sanctions as
well as remedial measures therefor, can truly function with independence and effectiveness, when the tenure in
office of its Chairman and Members is made dependent on the pleasure of the President. Executive Order No.
163-A, being antithetical to the constitutional mandate of independence for the Commission on Human Rights
has to be declared unconstitutional.
The Court is not alone in viewing Executive Order No. 163-A as containing the seeds of its constitutional
destruction. The proceedings in the 1986 Constitutional Commission clearly point to its being plainly at war with
the constitutional intent of independence for the Commission. Thus —
MR. GARCIA (sponsor). Precisely, one of the reasons why it is important for this body to be
constitutionalized is the fact that regardless of who is the President or who holds the executive
power, the human rights issue is of such importance that it should be safeguarded and it
should be independent of political parties or powers that are actually holding the reins of
government. Our experience during the martial law period made us realize how precious those
rights are and, therefore, these must be safeguarded at all times.
xxx xxx xxx
MR. GARCIA. I would like to state this fact: Precisely we do not want the term or the power of
the Commission on Human Rights to be coterminous with the president, because the
President's power is such that if he appoints a certain commissioner and that commissioner is
subject to the President, therefore, any human rights violations committed under the person's
administration will be subject to presidential pressure. That is what we would like to avoid — to
make the protection of human rights go beyond the fortunes of different political parties or
administrations in power. 28
xxx xxx xxx
MR. SARMIENTO (sponsor). Yes, Madam President. I conferred with the honorable Chief
Justice Concepcion and retired Justice J.B.L. Reyes and they believe that there should be an
independent Commission on Human Rights free from executive influence because many of the
irregularities on human rights violations are committed by members of the armed forces and
members of the executive branch of the government. So as to insulate this body from political
interference, there is a need to constitutionalize it. 29
xxx xxx xxx
MR. SARMIENTO: On the inquiry on whether there is a need for this to be constitutionalized, I
would refer to a previous inquiry that there is still a need for making this a constitutional body
free or insulated from interference. I conferred with former Chief Justice Concepcion and the
acting chairman of the Presidential Committee on Human Rights, retired Justice J.B.L. Reyes,
and they are one in saying that this body should be constitutionalized so that it will be free from
executive control or interferences, since many of the abuses are committed by the members of
the military or the armed forces. 30
xxx xxx xxx
MR. SARMIENTO. Yes, Congress can create this body, but as I have said, if we leave it to
Congress, this commission will be within the reach of politicians and of public officers and that
to me is dangerous. We should insulate this body from political control and political
interference because of the nature of its functions to investigate all forms of human rights
violations which are principally committed by members of the military, by the Armed Forces of
the Philippines. 31
xxx xxx xxx
MR. GARCIA. The critical factor here is political control, and normally, when a body is
appointed by Presidents who may change, the commission must remain above these changes
in political control. Secondly, the other important factor to consider are the armed forces, the
police forces which have tremendous power at their command and, therefore, we would need
a commission composed of men who also are beyond the reach of these forces and the
changes in political administration. 32
xxx xxx xxx
MR MONSOD. Yes, It is the committee's position that this proposed special body, in order to
function effectively, must be invested with an independence that is necessary not only for its
credibility but also for the effectiveness of its work. However, we want to make a distinction in
this Constitution. May be what happened was that it was referred to the wrong committee. In
the opinion of the committee, this need not be a commission that is similar to the three
constitutional commissions like the COA, the COMELEC, and the Civil Service. It need not be
in that article. 33
xxx xxx xxx
MR. COLAYCO. The Commissioners earlier objection was that the Office of the President is
not involved in the project. How sure are we that the next President of the Philippines will be
somebody we can trust? Remember, even now there is a growing concern about some of the
bodies, agencies and commission created by President Aquino. 34
xxx xxx xxx
 .... Leaving to Congress the creation of the Commission on Human Rights is giving less
importance to a truly fundamental need to set up a body that will effectively enforce the rules
designed to uphold human rights. 35

PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE

To hold, as the Court holds, that petitioner Bautista is the lawful incumbent of the office of Chairman of the
Commission on Human Rights by virtue of her appointment, as such, by the President on 17 December 1988,
and her acceptance thereof, is not to say that she cannot be removed from office before the expiration of her
seven (7) year term. She certainly can be removed but her removal must be for cause and with her right to due
process properly safeguarded. In the case of NASECO vs. NLRC, 36 this Court held that before a rank-and-file
employee of the NASECO, a government-owned corporation, could be dismissed, she was entitled to a hearing
and due process. How much more, in the case of the Chairman of a constitutionally mandated INDEPENDENT
OFFICE, like the Commission on Human Rights.

If there are charges against Bautista for misfeasance or malfeasance in office, charges may be filed against her
with the Ombudsman. If he finds a prima facie case against her, the corresponding information or informations
can be filed with the Sandiganbayan which may in turn order her suspension from office while the case or cases
against her are pending before said court. 37 This is due process in action. This is the way of a government of
laws and not of men.

A FINAL WORD

It is to the credit of the President that, in deference to the rule of law, after petitioner Bautista had elevated her
case to this Tribunal, Her Excellency merely designated an Acting Chairman for the Commission on Human
Rights (pending decision in this case) instead of appointing another permanent Chairman. The latter course
would have added only more legal difficulties to an already difficult situation.

WHEREFORE, the petition is GRANTED. Petitioner Bautista is declared to be, as she is, the duly appointed
Chairman of the Commission on Human Rights and the lawful incumbent thereof, entitled to all the benefits,
privileges and emoluments of said office. The temporary restraining order heretofore issued by the Court against
respondent Mallillin enjoining him from dismissing or terminating personnel of the Commission on Human Rights
is made permanent.

SO ORDERED.
 G.R. No. 92008 July 30, 1990
RAMON P. BINAMIRA, petitioner,
vs.
PETER D. GARRUCHO, JR., respondent.
CRUZ, J.:
In this petition for quo warranto, Ramon P. Binamira seeks reinstatement to the office of General Manager of the
Philippine Tourism Authority from which he claims to have been removed without just cause in violation of his
security of tenure.
The petitioner bases his claim on the following communication addressed to him by the Minister of Tourism on
April 7, 1986:
MEMORANDUM TO: MR. RAMON P. BINAMIRA
You are hereby designated General Manager of the Philippine Tourism Authority, effective
immediately.
By virtue hereof, you may qualify and enter upon the performance of the duties of the office.
(Sgd.) JOSE ANTONIO GONZALES Minister of Tourism and Chairman, P.T.A. Board
Pursuant thereto, the petitioner assumed office on the same date.
On April 10, 1986, Minister Gonzales sought approval from President Aquino of the composition of the Board of
Directors of the PTA, which included Binamira as Vice-Chairman in his capacity as General Manager. This
approval was given by the President on the same date. 1
Binamira claims that since assuming office, he had discharged the duties of PTA General Manager and Vice-
Chairman of its Board of Directors and had been acknowledged as such by various government offices, including
the Office of the President.
He complains, though, that on January 2, 1990, his resignation was demanded by respondent Garrucho as the
new Secretary of Tourism. Binamira's demurrer led to an unpleasant exchange that led to his filing of a complaint
against the Secretary with the Commission on Human Rights. But that is another matter that does not concern us
here.
What does is that on January 4, 1990, President Aquino sent respondent Garrucho the following
memorandum, 2copy furnished Binamira:
4 January 1990
MEMORANDUM TO: Hon. Peter D. Garrucho, Jr.. Secretary of Tourism
It appearing from the records you have submitted to this Office that the present General
Manager of the Philippine Tourism Authority was designated not by the President, as required
by P.D. No. 564, as amended, but only by the Secretary of Tourism, such designation is
invalid. Accordingly, you are hereby designated concurrently as General Manager, effective
immediately, until I can appoint a person to serve in the said office in a permanent capacity.
Please be guided accordingly.
(Sgd.) CORAZON C. AQUINO
cc: Mr. Ramon P. Binamira Philippine Tourism Authority Manila
Garrucho having taken over as General Manager of the PTA in accordance with this memorandum, the petitioner
filed this action against him to question his title. Subsequently, while his original petition was pending, Binamira
filed a supplemental petition alleging that on April 6, 1990, the President of the Philippines appointed Jose A.
Capistrano as General Manager of the Philippine Tourism Authority. Capistrano was impleaded as additional
respondent.
The issue presented in this case is starkly simple.
Section 23-A of P.D. 564, which created the Philippine Tourism Authority, provides as follows:
SECTION 23-A. General Manager-Appointment and Tenure. — The General Manager shall be
appointed by the President of the Philippines and shall serve for a term of six (6) years unless
sooner removed for cause; Provided, That upon the expiration of his term, he shall serve as
such until his successor shall have been appointed and qualified. (As amended by P.D. 1400)
It is not disputed that the petitioner was not appointed by the President of the Philippines but only designated by
the Minister of Tourism. There is a clear distinction between appointment and designation that the petitioner has
failed to consider.
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. 3 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, 4as 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. 5 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.
Even if so understood, that is, as an appointment, the designation of the petitioner cannot sustain his claim that
he has been illegally removed. The reason is that the decree clearly provides that the appointment of the
General Manager of the Philippine Tourism Authority shall be made by the President of the Philippines, not by
any other officer. Appointment involves the exercise of discretion, which because of its nature cannot be
delegated. Legally speaking, it was not possible for Minister Gonzales to assume the exercise of that discretion
as an alter ego of the President. The appointment (or designation) of the petitioner was not a merely mechanical
or ministerial act that could be validly performed by a subordinate even if he happened as in this case to be a
member of the Cabinet.
An officer to whom a discretion is entrusted cannot delegate it to another, the presumption
being that he was chosen because he was deemed fit and competent to exercise that
judgment and discretion, and unless the power to substitute another in his place has been
given to him, he cannot delegate his duties to another. 6
In those cases in which the proper execution of the office requires, on the part of the officer,
the exercise of judgment or discretion, the presumption is that he was chosen because he was
deemed fit and competent to exercise that judgment and discretion, and, unless power to
substitute another in his place has been given to him, he cannot delegate his duties to
another. 7
Indeed, even on the assumption that the power conferred on the President could be validly exercised by the
Secretary, we still cannot accept that the act of the latter, as an extension or "projection" of the personality of the
President, made irreversible the petitioner's title to the position in question. The petitioner's conclusion that
Minister Gonzales's act was in effect the act of President Aquino is based only on half the doctrine he vigorously
invokes. Justice Laurel stated that doctrine clearly in the landmark case of Villena v. Secretary of the
Interior, 8 where he described the relationship of the President of the Philippines and the members of the Cabinet
as follows:
... 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.

The doctrine presumes the acts of the Department Head to be the acts of the President of the Philippines when
"performed and promulgated in the regular course of business," which was true of the designation made by
Minister Gonzales in favor of the petitioner. But it also adds that such acts shall be considered valid only if not
'disapproved or reprobated by the Chief Executive," as also happened in the case at bar.

The argument that the designation made by Minister Gonzales was approved by President Aquino through her
approval of the composition of the Board of Directors of the PTA is not persuasive. It must be remembered that
Binamira was included therein as Vice- Chairman only because of his designation as PTA General Manager by
Minister Gonzales. Such designation being merely provisional, it could be recalled at will, as in fact it was
recalled by the President herself, through the memorandum she addressed to Secretary Garrucho on January 4,
1990.

With these rulings, the petitioner's claim of security of tenure must perforce fall to the ground. His designation
being an unlawful encroachment on a presidential prerogative, he did not acquire valid title thereunder to the
position in question. Even if it be assumed that it could be and was authorized, the designation signified merely a
temporary or acting appointment that could be legally withdrawn at pleasure, as in fact it was (albeit for a
different reason).i•t•c-aüsl In either case, the petitioner's claim of security of tenure must be rejected.

The Court sympathizes with the petitioner, who apparently believed in good faith that he was being extended a
permanent appointment by the Minister of Tourism. After all, Minister Gonzales had the ostensible authority to do
so at the time the designation was made. This belief seemed strengthened when President Aquino later
approved the composition of the PTA Board of Directors where the petitioner was designated Vice-Chairman
because of his position as General Manager of the PTA. However, such circumstances fall short of the
categorical appointment required to be made by the President herself, and not the Minister of Tourism, under
Sec. 23 of P.D. No. 564. We must rule therefore that the petitioner never acquired valid title to the disputed
position and so has no right to be reinstated as General Manager of the Philippine Tourism Authority.

WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.
 G.R. No. 149036 April 2, 2002
MA. J. ANGELINA G. MATIBAG, petitioner,
vs.
ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., VELMA J. CINCO,
and GIDEON C. DE GUZMAN in his capacity as Officer-In-Charge, Finance Services Department of the
Commission on Elections, respondents.
CARPIO, J.:
The Case
Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary injunction and
a temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure. Petitioner Ma. J. Angelina G.
Matibag ("Petitioner" for brevity) questions the constitutionality of the appointment and the right to hold office of
the following: (1) Alfredo L. Benipayo ("Benipayo" for brevity) as Chairman of the Commission on Elections
("COMELEC" for brevity); and (2) Resurreccion Z. Borra ("Borra" for brevity) and Florentino A. Tuason, Jr.
("Tuason" for brevity) as COMELEC Commissioners. Petitioner also questions the legality of the appointment of
Velma J. Cinco1 ("Cinco" for brevity) as Director IV of the COMELEC’s Education and Information Department
("EID" for brevity).
The Facts
On February 2, 1999, the COMELEC en banc appointed petitioner as "Acting Director IV" of the EID. On
February 15, 2000, then Chairperson Harriet O. Demetriou renewed the appointment of petitioner as Director IV
of EID in a "Temporary" capacity. On February 15, 2001, Commissioner Rufino S.B. Javier renewed again the
appointment of petitioner to the same position in a "Temporary" capacity.2
On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as COMELEC
Chairman,3and Borra4 and Tuason5 as COMELEC Commissioners, each for a term of seven years and all
expiring on February 2, 2008. Benipayo took his oath of office and assumed the position of COMELEC
Chairman. Borra and Tuason likewise took their oaths of office and assumed their positions as COMELEC
Commissioners. The Office of the President submitted to the Commission on Appointments on May 22, 2001
the ad interim appointments of Benipayo, Borra and Tuason for confirmation. 6 However, the Commission on
Appointments did not act on said appointments.
On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra and Tuason to the
same positions and for the same term of seven years, expiring on February 2, 2008. 7 They took their oaths of
office for a second time. The Office of the President transmitted on June 5, 2001 their appointments to the
Commission on Appointments for confirmation.8
Congress adjourned before the Commission on Appointments could act on their appointments. Thus, on June 8,
2001, President Macapagal Arroyo renewed again the ad interim appointments of Benipayo, Borra and Tuason
to the same positions.9 The Office of the President submitted their appointments for confirmation to the
Commission on Appointments.10 They took their oaths of office anew.
In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11, 2001 11 addressed to
petitioner as Director IV of the EID and to Cinco as Director III also of the EID, designating Cinco Officer-in-
Charge of the EID and reassigning petitioner to the Law Department. COMELEC EID Commissioner-in-Charge
Mehol K. Sadain objected to petitioner’s reassignment in a Memorandum dated April 14, 2001 12 addressed to the
COMELEC en banc. Specifically, Commissioner Sadain questioned Benipayo’s failure to consult the
Commissioner-in-Charge of the EID in the reassignment of petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the EID and her
reassignment to the Law Department.13 Petitioner cited Civil Service Commission Memorandum Circular No. 7
dated April 10, 2001, reminding heads of government offices that "transfer and detail of employees are prohibited
during the election period beginning January 2 until June 13, 2001." Benipayo denied her request for
reconsideration on April 18, 2001,14 citing COMELEC Resolution No. 3300 dated November 6, 2000, which
states in part:
"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the
Constitution, the Omnibus Election Code and other election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new
positions and transfer or reassign its personnel, when necessary in the effective performance of its
mandated functions during the prohibited period, provided that the changes in the assignment of its field
personnel within the thirty-day period before election day shall be effected after due notice and hearing."
Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a Memorandum
dated April 23, 2001.15 Petitioner also filed an administrative and criminal complaint 16 with the Law
Department17 against Benipayo, alleging that her reassignment violated Section 261 (h) of the Omnibus Election
Code, COMELEC Resolution No. 3258, Civil Service Memorandum Circular No. 07, s. 001, and other pertinent
administrative and civil service laws, rules and regulations.
During the pendency of her complaint before the Law Department, petitioner filed the instant petition questioning
the appointment and the right to remain in office of Benipayo, Borra and Tuason, as Chairman and
Commissioners of the COMELEC, respectively. Petitioner claims that the ad interim appointments of Benipayo,
Borra and Tuason violate the constitutional provisions on the independence of the COMELEC, as well as on the
prohibitions on temporary appointments and reappointments of its Chairman and members. Petitioner also
assails as illegal her removal as Director IV of the EID and her reassignment to the Law Department.
Simultaneously, petitioner challenges the designation of Cinco as Officer-in-Charge of the EID. Petitioner,
moreover, questions the legality of the disbursements made by COMELEC Finance Services Department
Officer-in-Charge Gideon C. De Guzman to Benipayo, Borra and Tuason by way of salaries and other
emoluments.
In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again the ad
interimappointments of Benipayo as COMELEC Chairman and Borra and Tuason as Commissioners,
respectively, for a term of seven years expiring on February 2, 2008.18 They all took their oaths of office anew.
The Issues
The issues for resolution of this Court are as follows:
1. Whether or not the instant petition satisfies all the requirements before this Court may exercise its power of
judicial review in constitutional cases;
2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad
interimappointments issued by the President amounts to a temporary appointment prohibited by Section 1 (2),
Article IX-C of the Constitution;
3. Assuming that the first ad interim appointments and the first assumption of office by Benipayo, Borra and
Tuason are legal, whether or not the renewal of their ad interim appointments and subsequent assumption of
office to the same positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of the
Constitution;
4. Whether or not Benipayo’s removal of petitioner from her position as Director IV of the EID and her
reassignment to the Law Department is illegal and without authority, having been done without the approval of
the COMELEC as a collegial body;
5. Whether or not the Officer-in-Charge of the COMELEC’s Finance Services Department, in continuing to make
disbursements in favor of Benipayo, Borra, Tuason and Cinco, is acting in excess of jurisdiction.
First Issue: Propriety of Judicial Review
Respondents assert that the petition fails to satisfy all the four requisites before this Court may exercise its power
of judicial review in constitutional cases. Out of respect for the acts of the Executive department, which is co-
equal with this Court, respondents urge this Court to refrain from reviewing the constitutionality of the ad
interim appointments issued by the President to Benipayo, Borra and Tuason unless all the four requisites are
present. These are: (1) the existence of an actual and appropriate controversy; (2) a personal and substantial
interest of the party raising the constitutional issue; (3) the exercise of the judicial review is pleaded at the
earliest opportunity; and (4) the constitutional issue is the lis mota of the case.19 Respondents argue that the
second, third and fourth requisites are absent in this case. Respondents maintain that petitioner does not have a
personal and substantial interest in the case because she has not sustained a direct injury as a result of the ad
interim appointments of Benipayo, Borra and Tuason and their assumption of office. Respondents point out that
petitioner does not claim to be lawfully entitled to any of the positions assumed by Benipayo, Borra or Tuason.
Neither does petitioner claim to be directly injured by the appointments of these three respondents.
Respondents also contend that petitioner failed to question the constitutionality of the ad interim appointments at
the earliest opportunity. Petitioner filed the petition only on August 3, 2001 despite the fact that the ad
interimappointments of Benipayo, Borra and Tuason were issued as early as March 22, 2001. Moreover, the
petition was filed after the third time that these three respondents were issued ad interim appointments.
Respondents insist that the real issue in this case is the legality of petitioner’s reassignment from the EID to the
Law Department. Consequently, the constitutionality of the ad interim appointments is not the lis mota of this
case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law Department, where she
was placed on detail service.20 Respondents claim that the reassignment was "pursuant to x x x Benipayo’s
authority as Chairman of the Commission on Elections, and as the Commission’s Chief Executive
Officer."21 Evidently, respondents anchor the legality of petitioner’s reassignment on Benipayo’s authority as
Chairman of the COMELEC. The real issue then turns on whether or not Benipayo is the lawful Chairman of the
COMELEC. Even if petitioner is only an Acting Director of the EID, her reassignment is without legal basis if
Benipayo is not the lawful COMELEC Chairman, an office created by the Constitution.
On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in accordance with
the Constitution, then petitioner’s reassignment is legal and she has no cause to complain provided the
reassignment is in accordance with the Civil Service Law. Clearly, petitioner has a personal and material stake in
the resolution of the constitutionality of Benipayo’s assumption of office. Petitioner’s personal and substantial
injury, if Benipayo is not the lawful COMELEC Chairman, clothes her with the requisite locus standi to raise the
constitutional issue in this petition.
Respondents harp on petitioner’s belated act of questioning the constitutionality of the ad interim appointments of
Benipayo, Borra and Tuason. Petitioner filed the instant petition only on August 3, 2001, when the first ad
interimappointments were issued as early as March 22, 2001. However, it is not the date of filing of the petition
that determines whether the constitutional issue was raised at the earliest opportunity. The earliest opportunity to
raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same,
such that, "if it is not raised in the pleadings, it cannot be considered at the trial, and, if not considered at the trial,
it cannot be considered on appeal."22 Petitioner questioned the constitutionality of the ad interim appointments of
Benipayo, Borra and Tuason when she filed her petition before this Court, which is the earliest opportunity for
pleading the constitutional issue before a competent body. Furthermore, this Court may determine, in the
exercise of sound discretion, the time when a constitutional issue may be passed upon. 23 There is no doubt
petitioner raised the constitutional issue on time.
Moreover, the legality of petitioner’s reassignment hinges on the constitutionality of Benipayo’s ad
interimappointment and assumption of office. Unless the constitutionality of Benipayo’s ad interim appointment
and assumption of office is resolved, the legality of petitioner’s reassignment from the EID to the Law
Department cannot be determined. Clearly, the lis mota of this case is the very constitutional issue raised by
petitioner.
In any event, the issue raised by petitioner is of paramount importance to the public. The legality of the directives
and decisions made by the COMELEC in the conduct of the May 14, 2001 national elections may be put in doubt
if the constitutional issue raised by petitioner is left unresolved. In keeping with this Court’s duty to determine
whether other agencies of government have remained within the limits of the Constitution and have not abused
the discretion given them, this Court may even brush aside technicalities of procedure and resolve any
constitutional issue raised.24 Here the petitioner has complied with all the requisite technicalities. Moreover,
public interest requires the resolution of the constitutional issue raised by petitioner.
Second Issue: The Nature of an Ad Interim Appointment
Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is prohibited
by Section 1 (2), Article IX-C of the Constitution, which provides as follows:
"The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission
on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall
hold office for seven years, two Members for five years, and the last Members for three years, without
reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case
shall any Member be appointed or designated in a temporary or acting capacity." (Emphasis supplied)
Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President at her
pleasure, and can even be disapproved or simply by-passed by the Commission on Appointments. For this
reason, petitioner claims that an ad interim appointment is temporary in character and consequently prohibited
by the last sentence of Section 1 (2), Article IX-C of the Constitution.
Based on petitioner’s theory, there can be no ad interim appointment to the COMELEC or to the other two
constitutional commissions, namely the Civil Service Commission and the Commission on Audit. The last
sentence of Section 1 (2), Article IX-C of the Constitution is also found in Article IX-B and Article IX-D providing
for the creation of the Civil Service Commission and the Commission on Audit, respectively. Petitioner interprets
the last sentence of Section 1 (2) of Article IX-C to mean that the ad interim appointee cannot assume office until
his appointment is confirmed by the Commission on Appointments for only then does his appointment become
permanent and no longer temporary in character.
The rationale behind petitioner’s theory is that only an appointee who is confirmed by the Commission on
Appointments can guarantee the independence of the COMELEC. A confirmed appointee is beyond the
influence of the President or members of the Commission on Appointments since his appointment can no longer
be recalled or disapproved. Prior to his confirmation, the appointee is at the mercy of both the appointing and
confirming powers since his appointment can be terminated at any time for any cause. In the words of petitioner,
a Sword of Damocles hangs over the head of every appointee whose confirmation is pending with the
Commission on Appointments.
We find petitioner’s argument without merit.
An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be
withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation
by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad
interim appointment permanent in character by making it effective until disapproved by the Commission on
Appointments or until the next adjournment of Congress. The second paragraph of Section 16, Article VII of the
Constitution provides as follows:
"The President shall have the power to make appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress." (Emphasis supplied)
Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it
can no longer be withdrawn or revoked by the President. The fear that the President can withdraw or revoke at
any time and for any reason an ad interim appointment is utterly without basis.
More than half a century ago, this Court had already ruled that an ad interim appointment is permanent in
character. In Summers vs. Ozaeta,25 decided on October 25, 1948, we held that:
"x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of
the Constitution, which provides that the ‘President shall have the power to make appointments during
the recess of the Congress, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress.’ It is an appointment
permanent in nature, and the circumstance that it is subject to confirmation by the Commission on
Appointments does not alter its permanent character. An ad interim appointment is disapproved
certainly for a reason other than that its provisional period has expired. Said appointment is of course
distinguishable from an ‘acting’ appointment which is merely temporary, good until another permanent
appointment is issued." (Emphasis supplied)
The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad
interimappointment takes effect immediately. The appointee can at once assume office and exercise, as a de
jure officer, all the powers pertaining to the office. In Pacete vs. Secretary of the Commission on
Appointments,26 this Court elaborated on the nature of an ad interim appointment as follows:
"A distinction is thus made between the exercise of such presidential prerogative requiring confirmation
by the Commission on Appointments when Congress is in session and when it is in recess. In the
former, the President nominates, and only upon the consent of the Commission on Appointments may
the person thus named assume office. It is not so with reference to ad interim appointments. It takes
effect at once. The individual chosen may thus qualify and perform his function without loss of time. His
title to such office is complete. In the language of the Constitution, the appointment is effective ‘until
disapproval by the Commission on Appointments or until the next adjournment of the Congress.’"
Petitioner cites Black’s Law Dictionary which defines the term "ad interim" to mean "in the meantime" or "for the
time being." Hence, petitioner argues that an ad interim appointment is undoubtedly temporary in character. This
argument is not new and was answered by this Court in Pamantasan ng Lungsod ng Maynila vs. Intermediate
Appellate Court,27 where we explained that:
"x x x From the arguments, it is easy to see why the petitioner should experience difficulty in understanding the
situation. Private respondent had been extended several ‘ad interim’ appointments which petitioner mistakenly
understands as appointments temporary in nature. Perhaps, it is the literal translation of the word ‘ad interim’
which creates such belief. The term is defined by Black to mean "in the meantime" or "for the time being". Thus,
an officer ad interim is one appointed to fill a vacancy, or to discharge the duties of the office during the absence
or temporary incapacity of its regular incumbent (Black’s Law Dictionary, Revised Fourth Edition, 1978). But such
is not the meaning nor the use intended in the context of Philippine law. In referring to Dr. Esteban’s
appointments, the term is not descriptive of the nature of the appointments given to him. Rather, it is used to
denote the manner in which said appointments were made, that is, done by the President of the Pamantasan in
the meantime, while the Board of Regents, which is originally vested by the University Charter with the power of
appointment, is unable to act. x x x." (Emphasis supplied)
Thus, the term "ad interim appointment", as used in letters of appointment signed by the President, means a
permanent appointment made by the President in the meantime that Congress is in recess. It does not mean a
temporary appointment that can be withdrawn or revoked at any time. The term, although not found in the text of
the Constitution, has acquired a definite legal meaning under Philippine jurisprudence. The Court had again
occasion to explain the nature of an ad interim appointment in the more recent case of Marohombsar vs. Court of
Appeals,28where the Court stated:
"We have already mentioned that an ad interim appointment is not descriptive of the nature of the
appointment, that is, it is not indicative of whether the appointment is temporary or in an acting capacity,
rather it denotes the manner in which the appointment was made. In the instant case, the appointment
extended to private respondent by then MSU President Alonto, Jr. was issued without condition nor
limitation as to tenure. The permanent status of private respondent’s appointment as Executive
Assistant II was recognized and attested to by the Civil Service Commission Regional Office No.
12. Petitioner’s submission that private respondent’s ad interim appointment is synonymous with a
temporary appointment which could be validly terminated at any time is clearly untenable. Ad interim
appointments are permanent but their terms are only until the Board disapproves them." (Emphasis
supplied)
An ad interim appointee who has qualified and assumed office becomes at that moment a government employee
and therefore part of the civil service. He enjoys the constitutional protection that "[n]o officer or employee in the
civil service shall be removed or suspended except for cause provided by law."29 Thus, an ad
interim appointment becomes complete and irrevocable once the appointee has qualified into office. The
withdrawal or revocation of an ad interim appointment is possible only if it is communicated to the appointee
before the moment he qualifies, and any withdrawal or revocation thereafter is tantamount to removal from
office.30 Once an appointee has qualified, he acquires a legal right to the office which is protected not only by
statute but also by the Constitution. He can only be removed for cause, after notice and hearing, consistent with
the requirements of due process.
An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is the
disapproval of his ad interim appointment by the Commission on Appointments. The second cause is the
adjournment of Congress without the Commission on Appointments acting on his appointment. These two
causes are resolutory conditions expressly imposed by the Constitution on all ad interim appointments. These
resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad interim appointees. No one,
however, can complain because it is the Constitution itself that places the Sword of Damocles over the heads of
the ad interimappointees.
While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or
designation in a temporary or acting capacity can be withdrawn or revoked at the pleasure of the appointing
power.31A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. This is the
kind of appointment that the Constitution prohibits the President from making to the three independent
constitutional commissions, including the COMELEC. Thus, in Brillantes vs. Yorac,32 this Court struck down as
unconstitutional the designation by then President Corazon Aquino of Associate Commissioner Haydee Yorac as
Acting Chairperson of the COMELEC. This Court ruled that:
"A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at
will. No cause need be established to justify its revocation. Assuming its validity, the designation of the
respondent as Acting Chairman of the Commission on Elections may be withdrawn by the President of
the Philippines at any time and for whatever reason she sees fit. It is doubtful if the respondent, having
accepted such designation, will not be estopped from challenging its withdrawal.
xxx
The Constitution provides for many safeguards to the independence of the Commission on Elections,
foremost among which is the security of tenure of its members. That guarantee is not available to the
respondent as Acting Chairman of the Commission on Elections by designation of the President of the
Philippines."
Earlier, in Nacionalista Party vs. Bautista,33 a case decided under the 1935 Constitution, which did not have a
provision prohibiting temporary or acting appointments to the COMELEC, this Court nevertheless declared
unconstitutional the designation of the Solicitor General as acting member of the COMELEC. This Court ruled
that the designation of an acting Commissioner would undermine the independence of the COMELEC and hence
violate the Constitution. We declared then: "It would be more in keeping with the intent, purpose and aim of the
framers of the Constitution to appoint a permanent Commissioner than to designate one to act temporarily."
(Emphasis supplied)
In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in the
COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo, Borra and Tuason were
extended permanent appointments during the recess of Congress. They were not appointed or designated in a
temporary or acting capacity, unlike Commissioner Haydee Yorac in Brillantes vs. Yorac34 and Solicitor General
Felix Bautista in Nacionalista Party vs. Bautista.35 The ad interim appointments of Benipayo, Borra and Tuason
are expressly allowed by the Constitution which authorizes the President, during the recess of Congress, to
make appointments that take effect immediately.
While the Constitution mandates that the COMELEC "shall be independent"36 , this provision should be
harmonized with the President’s power to extend ad interim appointments. To hold that the independence of the
COMELEC requires the Commission on Appointments to first confirm ad interim appointees before the
appointees can assume office will negate the President’s power to make ad interim appointments. This is
contrary to the rule on statutory construction to give meaning and effect to every provision of the law. It will also
run counter to the clear intent of the framers of the Constitution.
The original draft of Section 16, Article VII of the Constitution - on the nomination of officers subject to
confirmation by the Commission on Appointments - did not provide for ad interim appointments. The original
intention of the framers of the Constitution was to do away with ad interim appointments because the plan was
for Congress to remain in session throughout the year except for a brief 30-day compulsory recess. However,
because of the need to avoid disruptions in essential government services, the framers of the Constitution
thought it wise to reinstate the provisions of the 1935 Constitution on ad interim appointments. The following
discussion during the deliberations of the Constitutional Commission elucidates this:
"FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such circumstances, is it
necessary to provide for ad interim appointments? Perhaps there should be a little discussion on that.
xxx
MS. AQUINO: My concern is that unless this problem is addressed, this might present problems in
terms of anticipating interruption of government business, considering that we are not certain of the
length of involuntary recess or adjournment of the Congress. We are certain, however, of the
involuntary adjournment of the Congress which is 30 days, but we cannot leave to conjecture the matter
of involuntary recess.
FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the Commissioner has
a formula x x x.
xxx
MR. BENGZON: Madam President, apropos of the matter raised by Commissioner Aquino and after
conferring with the Committee, Commissioner Aquino and I propose the following amendment as the
last paragraph of Section 16, the wordings of which are in the 1935 Constitution: THE PRESIDENT
SHALL HAVE THE POWER TO MAKE APPOINTMENTS DURING THE RECESS OF CONGRESS
WHETHER IT BE VOLUNTARY OR COMPULSORY BUT SUCH APPOINTMENTS SHALL BE
EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE COMMISSION ON APPOINTMENTS OR UNTIL
THE NEXT ADJOURNMENT OF THE CONGRESS.
This is otherwise called the ad interim appointments.
xxx
THE PRESIDENT: Is there any objection to the proposed amendment of Commissioners Aquino and
Bengzon, adding a paragraph to the last paragraph of Section 16? (Silence) The Chair hears none; the
amendment is approved."37 (Emphasis supplied)
Clearly, the reinstatement in the present Constitution of the ad interim appointing power of the President was for
the purpose of avoiding interruptions in vital government services that otherwise would result from prolonged
vacancies in government offices, including the three constitutional commissions. In his concurring opinion
in Guevara vs. Inocentes,38 decided under the 1935 Constitution, Justice Roberto Concepcion, Jr. explained the
rationale behind ad interim appointments in this manner:
"Now, why is the lifetime of ad interim appointments so limited? Because, if they expired before the
session of Congress, the evil sought to be avoided – interruption in the discharge of essential
functions – may take place. Because the same evil would result if the appointments ceased to be
effective during the session of Congress and before its adjournment. Upon the other hand, once
Congress has adjourned, the evil aforementioned may easily be conjured by the issuance of other ad
interim appointments or reappointments." (Emphasis supplied)
Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution barely avoided the
interruption of essential government services in the May 2001 national elections. Following the decision of this
Court in Gaminde vs. Commission on Appointments,39 promulgated on December 13, 2000, the terms of office of
constitutional officers first appointed under the Constitution would have to be counted starting February 2, 1987,
the date of ratification of the Constitution, regardless of the date of their actual appointment. By this reckoning,
the terms of office of three Commissioners of the COMELEC, including the Chairman, would end on February 2,
2001.40
Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000 to serve, pursuant
to her appointment papers, until February 15, 2002,41 the original expiry date of the term of her predecessor,
Justice Bernardo P. Pardo, who was elevated to this Court. The original expiry date of the term of Commissioner
Teresita Dy-Liacco Flores was also February 15, 2002, while that of Commissioner Julio F. Desamito was
November 3, 2001.42 The original expiry dates of the terms of office of Chairperson Demetriou and
Commissioners Flores and Desamito were therefore supposed to fall after the May 2001 elections. Suddenly and
unexpectedly, because of the Gaminde ruling, there were three vacancies in the seven-person COMELEC, with
national elections looming less than three and one-half months away. To their credit, Chairperson Demetriou and
Commissioner Flores vacated their offices on February 2, 2001 and did not question any more before this Court
the applicability of the Gaminderuling to their own situation.
In a Manifestation43 dated December 28, 2000 filed with this Court in the Gaminde case, Chairperson Demetriou
stated that she was vacating her office on February 2, 2001, as she believed any delay in choosing her
successor might create a "constitutional crisis" in view of the proximity of the May 2001 national elections.
Commissioner Desamito chose to file a petition for intervention 44 in the Gaminde case but this Court denied the
intervention. Thus, Commissioner Desamito also vacated his office on February 2, 2001.
During an election year, Congress normally goes on voluntary recess between February and June considering
that many of the members of the House of Representatives and the Senate run for re-election. In 2001, the
Eleventh Congress adjourned from January 9, 2001 to June 3, 2001. 45 Concededly, there was no more time for
Benipayo, Borra and Tuason, who were originally extended ad interim appointments only on March 22, 2001, to
be confirmed by the Commission on Appointments before the May 14, 2001 elections.
If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three vacancies in the
COMELEC, there would only have been one division functioning in the COMELEC instead of two during the May
2001 elections. Considering that the Constitution requires that "all x x x election cases shall be heard and
decided in division",46 the remaining one division would have been swamped with election cases. Moreover,
since under the Constitution motions for reconsideration "shall be decided by the Commission en banc", the
mere absence of one of the four remaining members would have prevented a quorum, a less than ideal situation
considering that the Commissioners are expected to travel around the country before, during and after the
elections. There was a great probability that disruptions in the conduct of the May 2001 elections could occur
because of the three vacancies in the COMELEC. The successful conduct of the May 2001 national elections,
right after the tumultuous EDSA II and EDSA III events, was certainly essential in safeguarding and
strengthening our democracy.
Evidently, the exercise by the President in the instant case of her constitutional power to make ad
interimappointments prevented the occurrence of the very evil sought to be avoided by the second paragraph of
Section 16, Article VII of the Constitution. This power to make ad interim appointments is lodged in the President
to be exercised by her in her sound judgment. Under the second paragraph of Section 16, Article VII of the
Constitution, the President can choose either of two modes in appointing officials who are subject to confirmation
by the Commission on Appointments. First, while Congress is in session, the President may nominate the
prospective appointee, and pending consent of the Commission on Appointments, the nominee cannot qualify
and assume office. Second, during the recess of Congress, the President may extend an ad interim appointment
which allows the appointee to immediately qualify and assume office.
Whether the President chooses to nominate the prospective appointee or extend an ad interim appointment is a
matter within the prerogative of the President because the Constitution grants her that power. This Court cannot
inquire into the propriety of the choice made by the President in the exercise of her constitutional power, absent
grave abuse of discretion amounting to lack or excess of jurisdiction on her part, which has not been shown in
the instant case.
The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing practice. Former
President Corazon Aquino issued an ad interim appointment to Commissioner Alfredo E. Abueg.47 Former
President Fidel V. Ramos extended ad interim appointments to Commissioners Julio F. Desamito, Japal M.
Guiani, Graduacion A. Reyes-Claravall and Manolo F. Gorospe.48 Former President Joseph Estrada also
extended ad interim appointments to Commissioners Abdul Gani M. Marohombsar, Luzviminda Tancangco,
Mehol K. Sadain and Ralph C. Lantion.49
The President’s power to extend ad interim appointments may indeed briefly put the appointee at the mercy of
both the appointing and confirming powers. This situation, however, is only for a short period - from the time of
issuance of the ad interim appointment until the Commission on Appointments gives or withholds its consent.
The Constitution itself sanctions this situation, as a trade-off against the evil of disruptions in vital government
services. This is also part of the check-and-balance under the separation of powers, as a trade-off against the
evil of granting the President absolute and sole power to appoint. The Constitution has wisely subjected the
President’s appointing power to the checking power of the legislature.
This situation, however, does not compromise the independence of the COMELEC as a constitutional body. The
vacancies in the COMELEC are precisely staggered to insure that the majority of its members hold confirmed
appointments, and not one President will appoint all the COMELEC members.50 In the instant case, the
Commission on Appointments had long confirmed four51 of the incumbent COMELEC members, comprising a
majority, who could now be removed from office only by impeachment. The special constitutional safeguards that
insure the independence of the COMELEC remain in place.52 The COMELEC enjoys fiscal autonomy, appoints
its own officials and employees, and promulgates its own rules on pleadings and practice. Moreover, the salaries
of COMELEC members cannot be decreased during their tenure.
In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and Tuason, as
COMELEC Chairman and Commissioners, respectively, do not constitute temporary or acting appointments
prohibited by Section 1 (2), Article IX-C of the Constitution.
Third Issue: The Constitutionality of Renewals of Appointments
Petitioner also agues that assuming the first ad interim appointments and the first assumption of office by
Benipayo, Borra and Tuason are constitutional, the renewal of the their ad interim appointments and their
subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1
(2), Article IX-C of the Constitution, which provides as follows:
"The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first appointed,
three Members shall hold office for seven years, two Members for five years, and the last members for
three years, without reappointment. X x x." (Emphasis supplied)
Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on Appointments, his ad
interim appointment can no longer be renewed because this will violate Section 1 (2), Article IX-C of the
Constitution which prohibits reappointments. Petitioner asserts that this is particularly true to permanent
appointees who have assumed office, which is the situation of Benipayo, Borra and Tuason if their ad
interim appointments are deemed permanent in character.
There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can no longer
be extended a new appointment. The disapproval is a final decision of the Commission on Appointments in the
exercise of its checking power on the appointing authority of the President. The disapproval is a decision on the
merits, being a refusal by the Commission on Appointments to give its consent after deliberating on the
qualifications of the appointee. Since the Constitution does not provide for any appeal from such decision, the
disapproval is final and binding on the appointee as well as on the appointing power. In this instance, the
President can no longer renew the appointment not because of the constitutional prohibition on reappointment,
but because of a final decision by the Commission on Appointments to withhold its consent to the appointment.
An ad interim appointment that is by-passed because of lack of time or failure of the Commission on
Appointments to organize is another matter. A by-passed appointment is one that has not been finally acted
upon on the merits by the Commission on Appointments at the close of the session of Congress. There is no
final decision by the Commission on Appointments to give or withhold its consent to the appointment as required
by the Constitution. Absent such decision, the President is free to renew the ad interim appointment of a by-
passed appointee. This is recognized in Section 17 of the Rules of the Commission on Appointments, which
provides as follows:
"Section 17. Unacted Nominations or Appointments Returned to the President. Nominations or
appointments submitted by the President of the Philippines which are not finally acted upon at the close
of the session of Congress shall be returned to the President and, unless new nominations or
appointments are made, shall not again be considered by the Commission." (Emphasis supplied)
Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be considered again
if the President renews the appointment.
It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-passed
appointees. Justice Roberto Concepcion, Jr. lucidly explained in his concurring opinion in Guevara vs.
Inocentes53why by-passed ad interim appointees could be extended new appointments, thus:
"In short, an ad interim appointment ceases to be effective upon disapproval by the Commission,
because the incumbent can not continue holding office over the positive objection of the Commission. It
ceases, also, upon "the next adjournment of the Congress", simply because the President may then
issue new appointments - not because of implied disapproval of the Commission deduced from its
inaction during the session of Congress, for, under the Constitution, the Commission may affect
adversely the interim appointments only by action, never by omission. If the adjournment of Congress
were an implied disapproval of ad interimappointments made prior thereto, then the President could no
longer appoint those so by-passed by the Commission. But, the fact is that the President may reappoint
them, thus clearly indicating that the reason for said termination of the ad interim appointments is not
the disapproval thereof allegedly inferred from said omission of the Commission, but the circumstance
that upon said adjournment of the Congress, the President is free to make ad interim appointments or
reappointments." (Emphasis supplied)
Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16, Article VII of
the present Constitution on ad interim appointments was lifted verbatim.54 The jurisprudence under the 1935
Constitution governing ad interim appointments by the President is doubtless applicable to the present
Constitution. The established practice under the present Constitution is that the President can renew the
appointments of by-passed ad interim appointees. This is a continuation of the well-recognized practice under
the 1935 Constitution, interrupted only by the 1973 Constitution which did not provide for a Commission on
Appointments but vested sole appointing power in the President.
The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to disapproved
nor by-passed ad interim appointments. A disapproved ad interim appointment cannot be revived by another ad
interimappointment because the disapproval is final under Section 16, Article VII of the Constitution, and not
because a reappointment is prohibited under Section 1 (2), Article IX-C of the Constitution. A by-passed ad
interim appointment can be revived by a new ad interim appointment because there is no final disapproval under
Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving
beyond the fixed term of seven years.
Section 1 (2), Article IX-C of the Constitution provides that "[t]he Chairman and the Commissioners shall be
appointed x x x for a term of seven years without reappointment." (Emphasis supplied) There are four situations
where this provision will apply. The first situation is where an ad interim appointee to the COMELEC, after
confirmation by the Commission on Appointments, serves his full seven-year term. Such person cannot be
reappointed to the COMELEC, whether as a member or as a chairman, because he will then be actually serving
more than seven years. The second situation is where the appointee, after confirmation, serves a part of his term
and then resigns before his seven-year term of office ends. Such person cannot be reappointed, whether as a
member or as a chair, to a vacancy arising from retirement because a reappointment will result in the appointee
also serving more than seven years. The third situation is where the appointee is confirmed to serve the
unexpired term of someone who died or resigned, and the appointee completes the unexpired term. Such person
cannot be reappointed, whether as a member or chair, to a vacancy arising from retirement because a
reappointment will result in the appointee also serving more than seven years.
The fourth situation is where the appointee has previously served a term of less than seven years, and a
vacancy arises from death or resignation. Even if it will not result in his serving more than seven years, a
reappointment of such person to serve an unexpired term is also prohibited because his situation will be similar
to those appointed under the second sentence of Section 1 (2), Article IX-C of the Constitution. This provision
refers to the first appointees under the Constitution whose terms of office are less than seven years, but are
barred from ever being reappointed under any situation. Not one of these four situations applies to the case of
Benipayo, Borra or Tuason.
The framers of the Constitution made it quite clear that any person who has served any term of office as
COMELEC member – whether for a full term of seven years, a truncated term of five or three years, or even for
an unexpired term of any length of time – can no longer be reappointed to the COMELEC. Commissioner Foz
succinctly explained this intent in this manner:
"MR. FOZ. But there is the argument made in the concurring opinion of Justice Angelo Bautista in the
case of Visarra vs. Miraflor, to the effect that the prohibition on reappointment applies only when the
term or tenure is for seven years. But in cases where the appointee serves only for less than seven
years, he would be entitled to reappointment. Unless we put the qualifying words "without
reappointment" in the case of those appointed, then it is possible that an interpretation could be made
later on their case, they can still be reappointed to serve for a total of seven years.
Precisely, we are foreclosing that possibility by making it clear that even in the case of those first
appointed under the Constitution, no reappointment can be made."55 (Emphasis supplied)
In Visarra vs. Miraflor,56 Justice Angelo Bautista, in his concurring opinion, quoted Nacionalista vs. De
Vera57that a "[r]eappointment is not prohibited when a Commissioner has held office only for, say, three
or six years, provided his term will not exceed nine years in all." This was the interpretation despite the
express provision in the 1935 Constitution that a COMELEC member "shall hold office for a term of nine
years and may not be reappointed."
To foreclose this interpretation, the phrase "without reappointment" appears twice in Section 1 (2), Article IX-C of
the present Constitution. The first phrase prohibits reappointment of any person previously appointed for a term
of seven years. The second phrase prohibits reappointment of any person previously appointed for a term of five
or three years pursuant to the first set of appointees under the Constitution. In either case, it does not matter if
the person previously appointed completes his term of office for the intention is to prohibit any reappointment of
any kind.
However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not
constitute a term of office. The period from the time the ad interim appointment is made to the time it lapses is
neither a fixed term nor an unexpired term. To hold otherwise would mean that the President by his unilateral
action could start and complete the running of a term of office in the COMELEC without the consent of the
Commission on Appointments. This interpretation renders inutile the confirming power of the Commission on
Appointments.
The phrase "without reappointment" applies only to one who has been appointed by the President and confirmed
by the Commission on Appointments, whether or not such person completes his term of office. There must be a
confirmation by the Commission on Appointments of the previous appointment before the prohibition on
reappointment can apply. To hold otherwise will lead to absurdities and negate the President’s power to make ad
interim appointments.
In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time, on the ad
interim appointments first issued to appointees. If such ad interim appointments can no longer be renewed, the
President will certainly hesitate to make ad interim appointments because most of her appointees will effectively
be disapproved by mere inaction of the Commission on Appointments. This will nullify the constitutional power of
the President to make ad interim appointments, a power intended to avoid disruptions in vital government
services. This Court cannot subscribe to a proposition that will wreak havoc on vital government services.
The prohibition on reappointment is common to the three constitutional commissions. The framers of the present
Constitution prohibited reappointments for two reasons. The first is to prevent a second appointment for those
who have been previously appointed and confirmed even if they served for less than seven years. The second is
to insure that the members of the three constitutional commissions do not serve beyond the fixed term of seven
years. As reported in the Journal of the Constitutional Commission, Commissioner Vicente B. Foz, who
sponsored58 the proposed articles on the three constitutional commissions, outlined the four important features of
the proposed articles, to wit:
"Mr. Foz stated that the Committee had introduced basic changes in the common provision affecting the
three Constitutional Commissions, and which are: 1) fiscal autonomy which provides (that)
appropriations shall be automatically and regularly released to the Commission in the same manner
(as) provided for the Judiciary; 2) fixed term of office without reappointment on a staggered basis to
ensure continuity of functions and to minimize the opportunity of the President to appoint all the
members during his incumbency; 3) prohibition to decrease salaries of the members of the
Commissions during their term of office; and 4) appointments of members would not require
confirmation."59 (Emphasis supplied)
There were two important amendments subsequently made by the Constitutional Commission to these four
features. First, as discussed earlier, the framers of the Constitution decided to require confirmation by the
Commission on Appointments of all appointments to the constitutional commissions. Second, the framers
decided to strengthen further the prohibition on serving beyond the fixed seven-year term, in the light of a former
chair of the Commission on Audit remaining in office for 12 years despite his fixed term of seven years. The
following exchange in the deliberations of the Constitutional Commission is instructive:
"MR. SUAREZ: These are only clarificatory questions, Madam President. May I call the sponsor’s
attention, first of all, to Section 2 (2) on the Civil Service Commission wherein it is stated: "In no case
shall any Member be appointed in a temporary or acting capacity." I detect in the Committee’s proposed
resolutions a constitutional hangover, if I may use the term, from the past administration. Am I correct in
 concluding that the reason the Committee introduced this particular provision is to avoid an incident
similar to the case of the Honorable Francisco Tantuico who was appointed in an acting capacity as
Chairman of the Commission on Audit for about 5 years from 1975 until 1980, and then in 1980, was
appointed as Chairman with a tenure of another 7 years. So, if we follow that appointment to (its) logical
conclusion, he occupied that position for about 12 years in violation of the Constitution?
MR. FOZ: It is only one of the considerations. Another is really to make sure that any member who is
appointed to any of the commissions does not serve beyond 7 years."60 (Emphasis supplied)
Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner:
"MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice that there is no
reappointment of any kind and, therefore as a whole there is no way that somebody can serve for more
than seven years. The purpose of the last sentence is to make sure that this does not happen by
including in the appointment both temporary and acting capacities."61 (Emphasis supplied)
Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of any kind. On
the other hand, the prohibition on temporary or acting appointments is intended to prevent any circumvention of
the prohibition on reappointment that may result in an appointee’s total term of office exceeding seven years.
The evils sought to be avoided by the twin prohibitions are very specific - reappointment of any kind and
exceeding one’s term in office beyond the maximum period of seven years.
Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even further the
screws on those who might wish to extend their terms of office. Thus, the word "designated" was inserted to plug
any loophole that might be exploited by violators of the Constitution, as shown in the following discussion in the
Constitutional Commission:
"MR. DE LOS REYES: On line 32, between the words "appointed" and "in", I propose to insert the
words OR DESIGNATED so that the whole sentence will read: "In no case shall any Member be
appointed OR DESIGNATED in a temporary or acting capacity."
THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?
MR. FOZ: But it changes the meaning of this sentence. The sentence reads: "In no case shall any
Member be appointed in a temporary or acting capacity."
MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that some lawyers make
a distinction between an appointment and a designation. The Gentleman will recall that in the case of
Commissioner on Audit Tantuico, I think his term exceeded the constitutional limit but the Minister of
Justice opined that it did not because he was only designated during the time that he acted as
Commissioner on Audit. So, in order to erase that distinction between appointment and designation, we
should specifically place the word so that there will be no more ambiguity. "In no case shall any Member
be appointed OR DESIGNATED in a temporary or acting capacity."
MR. FOZ: The amendment is accepted, Mr. Presiding Officer.
MR. DE LOS REYES: Thank you.
THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair hears none; the
amendment is approved."62
The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason do not
violate the prohibition on reappointments because there were no previous appointments that were confirmed by
the Commission on Appointments. A reappointment presupposes a previous confirmed appointment. The
same ad interim appointments and renewals of appointments will also not breach the seven-year term limit
because all the appointments and renewals of appointments of Benipayo, Borra and Tuason are for a fixed term
expiring on February 2, 2008.63 Any delay in their confirmation will not extend the expiry date of their terms of
office. Consequently, there is no danger whatsoever that the renewal of the ad interim appointments of these
three respondents will result in any of the evils intended to be exorcised by the twin prohibitions in the
Constitution. The continuing renewal of the ad interim appointment of these three respondents, for so long as
their terms of office expire on February 2, 2008, does not violate the prohibition on reappointments in Section 1
(2), Article IX-C of the Constitution.
Fourth Issue: Respondent Benipayo’s Authority to Reassign Petitioner
Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to the
Law Department. Petitioner further argues that only the COMELEC, acting as a collegial body, can authorize
such reassignment. Moreover, petitioner maintains that a reassignment without her consent amounts to removal
from office without due process and therefore illegal.
Petitioner’s posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of
the COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC Chairman, and consequently
he has full authority to exercise all the powers of that office for so long as his ad interim appointment remains
effective. Under Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised Administrative Code, the Chairman
of the COMELEC is vested with the following power:
"Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who shall be the Chief
Executive Officer of the Commission, shall:
xxx
(4) Make temporary assignments, rotate and transfer personnel in accordance with the provisions of the
Civil Service Law." (Emphasis supplied)
The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to
transfer or reassign COMELEC personnel in accordance with the Civil Service Law. In the exercise of this power,
the Chairman is not required by law to secure the approval of the COMELEC en banc.
Petitioner’s appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001, attached as
Annexes "X", "Y" and "Z" to her Petition, indisputably show that she held her Director IV position in the EID only
in an acting or temporary capacity.64 Petitioner is not a Career Executive Service (CES) officer, and neither does
she hold Career Executive Service Eligibility, which are necessary qualifications for holding the position of
Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil Service
Commission.65 Obviously, petitioner does not enjoy security of tenure as Director IV. In Secretary of Justice
Serafin Cuevas vs. Atty. Josefina G. Bacal,66 this Court held that:
"As respondent does not have the rank appropriate for the position of Chief Public Attorney, her
appointment to that position cannot be considered permanent, and she can claim no security of tenure
in respect of that position. As held in Achacoso v. Macaraig:
‘It is settled that a permanent appointment can be issued only ‘to a person who meets all the
requirements for the position to which he is being appointed, including the appropriate eligibility
prescribed.’ Achacoso did not. At best, therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the appointing authority and ‘at a
moment’s notice’, conformably to established jurisprudence x x x.
The mere fact that a position belongs to the Career Service does not automatically confer
security of tenure on its occupant even if he does not possess the required qualifications. Such
right will have to depend on the nature of his appointment, which in turn depends on his
eligibility or lack of it. A person who does not have the requisite qualifications for the position
cannot be appointed to it in the first place, or as an exception to the rule, may be appointed to
it merely in an acting capacity in the absence of appropriate eligibles. The appointment
extended to him cannot be regarded as permanent even if it may be so designated x x x.’"
Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary
qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her reassignment
was contrary to the Civil Service Law. This time, the vigorous argument of petitioner that a temporary or acting
appointment can be withdrawn or revoked at the pleasure of the appointing power happens to apply squarely to
her situation.
Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under Section
261 (h) of the Omnibus Election Code, which provides as follows:
"Section 261. Prohibited Acts. The following shall be guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil service - Any public official who makes or causes any
transfer or detail whatever of any officer or employee in the civil service including public school
teachers, within the election period except upon prior approval of the Commission."
such concurrence will render the resolution meaningless since the COMELEC en banc will have to approve
every personnel transfer or reassignment, making the resolution utterly useless. Resolution No. 3300 should be
interpreted for what it is, an approval to effect transfers and reassignments of personnel, without need of
securing a second approval from the COMELEC en banc to actually implement such transfer or reassignment.
The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC
personnel. The person holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in
COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during the
election period. Thus, Benipayo’s order reassigning petitioner from the EID to the Law Department does not
violate Section 261 (h) of the Omnibus Election Code. For the same reason, Benipayo’s order designating Cinco
Officer-in-Charge of the EID is legally unassailable.

Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or Fifth Issue: Legality of Disbursements to Respondents
reassignments of COMELEC personnel during the election period.67 Moreover, petitioner insists that the Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-Charge of the Finance
COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the election Services Department of the Commission on Elections, did not act in excess of jurisdiction in paying the salaries
period. and other emoluments of Benipayo, Borra, Tuason and Cinco.

Contrary to petitioner’s allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner.
November 6, 2000,68 exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. The
resolution states in part: SO ORDERED.
"WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code provides as
follows:
xxx
Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil service – Any public official who makes or
causes any transfer or detail whatever of any officer or employee in the civil service including
public school teachers, within the election period except upon approval of the Commission.

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

WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the Commission on
Elections during the prohibited period in order that it can carry out its constitutional duty to conduct free,
orderly, honest, peaceful and credible elections;

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

The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or
reassignment can be made within thirty days prior to election day, refers only to COMELEC field personnel and
not to head office personnel like the petitioner. Under the Revised Administrative Code,69 the COMELEC
Chairman is the sole officer specifically vested with the power to transfer or reassign COMELEC personnel. The
COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel pursuant
to COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this power because that
will mean amending the Revised Administrative Code, an act the COMELEC en banc cannot legally do.
COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel
should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No. 3300 to require
AQUILINO Q. PIMENTEL, JR., G.R. No. 164978 Sir:
EDGARDO J. ANGARA, Pursuant to the provisions of existing laws, you are hereby appointed ACTING
JUAN PONCE ENRILE, SECRETARY, DEPARTMENT OF (appropriate department) vice (name of person replaced).
LUISA P. EJERCITO-ESTRADA, By virtue hereof, you may qualify and enter upon the performance of the duties and
JINGGOY E. ESTRADA, functions of the office, furnishing this Office and the Civil Service Commission with copies of
PANFILO M. LACSON, your Oath of Office.
ALFREDO S. LIM, (signed)
JAMBY A.S. MADRIGAL, and Gloria Arroyo
SERGIO R. OSMEA III,
Petitioners, Respondents took their oath of office and assumed duties as acting secretaries.
- versus -
EXEC. SECRETARY EDUARDO On 8 September 2004, Aquilino Q. Pimentel, Jr. (Senator Pimentel), Edgardo J. Angara (Senator Angara), Juan
R. ERMITA, FLORENCIO B. ABAD, Ponce Enrile (Senator Enrile), Luisa P. Ejercito-Estrada (Senator Ejercito-Estrada), Jinggoy E. Estrada (Senator
AVELINO J. CRUZ, JR., Estrada), Panfilo M. Lacson (Senator Lacson), Alfredo S. Lim (Senator Lim), Jamby A.S. Madrigal (Senator
MICHAEL T. DEFENSOR, Chico-Nazario, and Madrigal), and Sergio R. Osmea, III (Senator Osmea) (petitioners) filed the present petition as Senators of the
JOSEPH H. DURANO, Garcia, JJ. Republic of the Philippines.
RAUL M. GONZALEZ,
ALBERTO G. ROMULO, Congress adjourned on 22 September 2004. On 23 September 2004, President Arroyo issued ad
RENE C. VILLA, and Promulgated: interim appointments[3] to respondents as secretaries of the departments to which they were previously
ARTHUR C. YAP, appointed in an acting capacity. The appointment papers are uniformly worded as follows:
Respondents. October 13, 2005
x-----------------------------------------------------x Sir:
DECISION Pursuant to the provisions of existing laws, you are hereby appointed SECRETARY
CARPIO, J.: [AD INTERIM], DEPARTMENT OF (appropriate department).
The Case
This is a petition for certiorari and prohibition[1] with a prayer for the issuance of a writ of preliminary By virtue hereof, you may qualify and enter upon the performance of the duties and
injunction to declare unconstitutional the appointments issued by President Gloria Macapagal-Arroyo (President functions of the office, furnishing this Office and the Civil Service Commission with copies of
Arroyo) through Executive Secretary Eduardo R. Ermita (Secretary Ermita) to Florencio B. Abad, Avelino J. Cruz, your oath of office.
Jr., Michael T. Defensor, Joseph H. Durano, Raul M. Gonzalez, Alberto G. Romulo, Rene C. Villa, and Arthur C. (signed)
Yap (respondents) as acting secretaries of their respective departments. The petition also seeks to prohibit Gloria Arroyo
respondents from performing the duties of department secretaries.
Issue
Antecedent Facts The petition questions the constitutionality of President Arroyos appointment of respondents as
The Senate and the House of Representatives (Congress) commenced their regular session on 26 acting secretaries without the consent of the Commission on Appointments while Congress is in session.
July 2004. The Commission on Appointments, composed of Senators and Representatives, was constituted
on 25 August 2004. The Courts Ruling
The petition has no merit.
Meanwhile, President Arroyo issued appointments[2] to respondents as acting secretaries of their
respective departments. Preliminary Matters On the Mootness of the Petition
The Solicitor General argues that the petition is moot because President Arroyo had extended to respondents ad
Appointee Department Date of Appointment interim appointments on 23 September 2004 immediately after the recess of Congress.
Arthur C. Yap Agriculture 15 August 2004
Alberto G. Romulo Foreign Affairs 23 August 2004 As a rule, the writ of prohibition will not lie to enjoin acts already done. [4] However, as an exception to
the rule on mootness, courts will decide a question otherwise moot if it is capable of repetition yet evading
Raul M. Gonzalez Justice 23 August 2004
review.[5]
Florencio B. Abad Education 23 August 2004 In the present case, the mootness of the petition does not bar its resolution. The question of the constitutionality
Avelino J. Cruz, Jr. National Defense 23 August 2004 of the Presidents appointment of department secretaries in an acting capacity while Congress is in session will
Rene C. Villa Agrarian Reform 23 August 2004 arise in every such appointment.
Joseph H. Durano Tourism 23 August 2004
Michael T. Defensor Environment and Natural Resources 23 August 2004 On the Nature of the Power to Appoint
The power to appoint is essentially executive in nature, and the legislature may not interfere with the exercise of
The appointment papers are uniformly worded as follows: this executive power except in those instances when the Constitution expressly allows it to interfere. [6] Limitations
on the executive power to appoint are construed strictly against the legislature.[7] The scope of the legislatures
interference in the executives power to appoint is limited to the power to prescribe the qualifications to an
appointive office. Congress cannot appoint a person to an office in the guise of prescribing qualifications to that
office. Neither may Congress impose on the President the duty to appoint any particular person to an office. [8]
However, even if the Commission on Appointments is composed of members of Congress, the exercise of its
powers is executive and not legislative. The Commission on Appointments does not legislate when it exercises
its power to give or withhold consent to presidential appointments. Thus:
xxx The Commission on Appointments is a creature of the Constitution. Although its
membership is confined to members of Congress, said Commission is independent of
Congress. The powers of the Commission do not come from Congress, but emanate directly
from the Constitution. Hence, it is not an agent of Congress. In fact, the functions of the
Commissioner are purely executive in nature. xxx[9]
On Petitioners Standing
The Solicitor General states that the present petition is a quo warranto proceeding because, with the exception of
Secretary Ermita, petitioners effectively seek to oust respondents for unlawfully exercising the powers of
department secretaries. The Solicitor General further states that petitioners may not claim standing as Senators
because no power of the Commission on Appointments has been infringed upon or violated by the President. xxx
If at all, the Commission on Appointments as a body (rather than individual members of the Congress) may
possess standing in this case.[10]
Petitioners, on the other hand, state that the Court can exercise its certiorari jurisdiction over unconstitutional
acts of the President.[11] Petitioners further contend that they possess standing because President Arroyos
appointment of department secretaries in an acting capacity while Congress is in session impairs the powers of
Congress. Petitioners cite Sanlakas v. Executive Secretary[12] as basis, thus:
To the extent that the powers of Congress are impaired, so is the power of each
member thereof, since his office confers a right to participate in the exercise of the powers of
that institution.
An act of the Executive which injures the institution of Congress causes a derivative
but nonetheless substantial injury, which can be questioned by a member of Congress. In such
a case, any member of Congress can have a resort to the courts.
Considering the independence of the Commission on Appointments from Congress, it is error for petitioners to
claim standing in the present case as members of Congress. President Arroyos issuance of acting appointments
while Congress is in session impairs no power of Congress. Among the petitioners, only the following are
members of the Commission on Appointments of the 13 th Congress: Senator Enrile as Minority Floor Leader,
Senator Lacson as Assistant Minority Floor Leader, and Senator Angara, Senator Ejercito-Estrada, and Senator
Osmea as members.
Thus, on the impairment of the prerogatives of members of the Commission on Appointments, only
Senators Enrile, Lacson, Angara, Ejercito-Estrada, and Osmea have standing in the present petition. This is in
contrast to Senators Pimentel, Estrada, Lim, and Madrigal, who, though vigilant in protecting their perceived
prerogatives as members of Congress, possess no standing in the present petition.
The Constitutionality of President Arroyos Issuance of Appointments to Respondents as Acting
Secretaries
Petitioners contend that President Arroyo should not have appointed respondents as acting secretaries
because in case of a vacancy in the Office of a Secretary, it is only an Undersecretary who can be designated as
Acting Secretary.[13] Petitioners base their argument on Section 10, Chapter 2, Book IV of Executive Order No.
292 (EO 292),[14] which enumerates the powers and duties of the undersecretary. Paragraph 5 of Section 10
reads:
SEC. 10. Powers and Duties of the Undersecretary. - The Undersecretary shall:
xxx
(5) Temporarily discharge the duties of the Secretary in the latters absence or inability
to discharge his duties for any cause or in case of vacancy of the said office, unless otherwise
provided by law. Where there are more than one Undersecretary, the Secretary shall allocate
the foregoing powers and duties among them. The President shall likewise make the
temporary designation of Acting Secretary from among them; and
xxx
Petitioners further assert that while Congress is in session, there can be no appointments, whether regular or
acting, to a vacant position of an office needing confirmation by the Commission on Appointments, without first
having obtained its consent.[15]
In sharp contrast, respondents maintain that the President can issue appointments in an acting capacity to
department secretaries without the consent of the Commission on Appointments even while Congress is in
session. Respondents point to Section 16, Article VII of the 1987 Constitution. Section 16 reads:
SEC. 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this Constitution. He shall also
appoint all other officers of the Government whose appointments are not otherwise provided
for by law, and those whom he may be authorized by law to appoint. The Congress may, by
law, vest the appointment of other officers lower in rank in the President alone, in the courts, or
in the heads of departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next adjournment of the
Congress.
Respondents also rely on EO 292, which devotes a chapter to the Presidents power of appointment.
Sections 16 and 17, Chapter 5, Title I, Book III of EO 292 read:
SEC. 16. Power of Appointment. The President shall exercise the power to
appoint such officials as provided for in the Constitution and laws.
SEC. 17. Power to Issue Temporary Designation. (1) The President may
temporarily designate an officer already in the government service or any other
competent person to perform the functions of an office in the executive branch,
appointment to which is vested in him by law, when: (a) the officer regularly appointed
to the office is unable to perform his duties by reason of illness, absence or any other
cause; or (b) there exists a vacancy[.]
(2) The person designated shall receive the compensation attached to the position,
unless he is already in the government service in which case he shall receive only such
additional compensation as, with his existing salary, shall not exceed the salary authorized by
law for the position filled. The compensation hereby authorized shall be paid out of the funds
appropriated for the office or agency concerned.
(3) In no case shall a temporary designation exceed one (1) year. (Emphasis
supplied)
 Petitioners and respondents maintain two diametrically opposed lines of thought. Petitioners assert that the However, we find no abuse in the present case. The absence of abuse is readily apparent from President
President cannot issue appointments in an acting capacity to department secretaries while Congress is in Arroyos issuance of ad interim appointments to respondents immediately upon the recess of Congress, way
session because the law does not give the President such power. In contrast, respondents insist that the before the lapse of one year.
President can issue such appointments because no law prohibits such appointments.
WHEREFORE, we DISMISS the present petition for certiorari and prohibition.
The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap measure intended
to fill an office for a limited time until the appointment of a permanent occupant to the office. [16]In case of vacancy SO ORDERED.
in an office occupied by an alter ego of the President, such as the office of a department secretary, the President
must necessarily appoint an alter ego of her choice as acting secretary before the permanent appointee of her
choice could assume office.

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

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

The law expressly allows the President to make such acting appointment. Section 17, Chapter 5, Title I,
Book III of EO 292 states that [t]he President may temporarily designate an officer already in the government
service or any other competent person to perform the functions of an office in the executive branch. Thus, the
President may even appoint in an acting capacity a person not yet in the government service, as long as the
President deems that person competent.

Petitioners assert that Section 17 does not apply to appointments vested in the President by the Constitution,
because it only applies to appointments vested in the President by law. Petitioners forget that Congress is not
the only source of law. Law refers to the Constitution, statutes or acts of Congress, municipal ordinances,
implementing rules issued pursuant to law, and judicial decisions.[17]

Finally, petitioners claim that the issuance of appointments in an acting capacity is susceptible to abuse.
Petitioners fail to consider that acting appointments cannot exceed one year as expressly provided in Section
17(3), Chapter 5, Title I, Book III of EO 292. The law has incorporated this safeguard to prevent abuses, like the
use of acting appointments as a way to circumvent confirmation by the Commission on Appointments.

In distinguishing ad interim appointments from appointments in an acting capacity, a noted textbook

writer on constitutional law has observed:

Ad-interim appointments must be distinguished from appointments in an acting

capacity. Both of them are effective upon acceptance. But ad-interim appointments are
extended only during a recess of Congress, whereas acting appointments may be extended
any time there is a vacancy. Moreover ad-interim appointments are submitted to the
Commission on Appointments for confirmation or rejection; acting appointments are not
submitted to the Commission on Appointments. Acting appointments are a way of temporarily
filling important offices but, if abused, they can also be a way of circumventing the need for
confirmation by the Commission on Appointments.[18]
ANAK MINDANAO PARTY-LIST GROUP, as G.R. No. 166052 SECTION 1. The Department of Agrarian Reform is hereby transformed into
represented by Rep. Mujiv S. Hataman, Present: the Department of Land Reform. It shall be responsible for all land reform in the country,
andMAMALO DESCENDANTS August 29, 2007 including agrarian reform, urban land reform, and ancestral domain reform.
ORGANIZATION, INC., as represented by its SECTION 2. The PCUP is hereby placed under the supervision and control of the
Chairman Romy Pardi, Department of Land Reform. The Chairman of the PCUP shall be ex-officio Undersecretary
Petitioners, of the Department of Land Reform for UrbanLand Reform.
- versus - SECTION 3. The NCIP is hereby placed under the supervision and control of the Department
THE EXECUTIVE of Land Reform. The Chairman of the NCIP shall be ex-officio Undersecretary of the
SECRETARY, THE HON. EDUARDO R. Department of Land Reform for Ancestral Domain Reform.
ERMITA, and THE SECRETARY OF SECTION 4. The PCUP and the NCIP shall have access to the services provided by the
AGRARIAN/LAND REFORM, THE HON. RENE Departments Finance, Management and Administrative Office; Policy, Planning and Legal
C. VILLA, Affairs Office, Field Operations and Support Services Office, and all other offices of the
Respondents. Department of Land Reform.
x----------------------------------------------------------------------------------------x SECTION 5. All previous issuances that conflict with this Executive Order are hereby repealed
DECISION or modified accordingly.
CARPIO MORALES, J.: SECTION 6. This Executive Order takes effect immediately. (Emphasis and underscoring
Petitioners Anak Mindanao Party-List Group (AMIN) and Mamalo Descendants Organization, Inc. (MDOI) assail supplied)
the constitutionality of Executive Order (E.O.) Nos. 364 and 379, both issued in 2004, via the present Petition for
Certiorari and Prohibition with prayer for injunctive relief. E.O. No. 379, which amended E.O. No. 364 a month later or on October 26, 2004, reads:

E.O. No. 364, which President Gloria Macapagal-Arroyo issued on September 27, 2004, reads: EXECUTIVE ORDER NO. 379
AMENDING EXECUTIVE ORDER NO. 364 ENTITLED TRANSFORMING THE DEPARTMENT
EXECUTIVE ORDER NO. 364 OF AGRARIAN REFORM INTO THE DEPARTMENT OF LAND REFORM
TRANSFORMING THE DEPARTMENT OF AGRARIAN REFORM INTO THE DEPARTMENT
OF LAND REFORM WHEREAS, Republic Act No. 8371 created the National Commission on Indigenous Peoples;

WHEREAS, one of the five reform packages of the Arroyo administration is Social Justice and WHEREAS, pursuant to the Administrative Code of 1987, the President has the continuing
Basic [N]eeds; authority to reorganize the administrative structure of the National Government.

WHEREAS, one of the five anti-poverty measures for social justice is asset reform;
WHEREAS, asset reforms covers [sic] agrarian reform, urban land reform, and ancestral
domain reform;
WHEREAS, urban land reform is a concern of the Presidential Commission [for] the Urban
Poor (PCUP) and ancestral domain reform is a concern of the National Commission on
Indigenous Peoples (NCIP);
WHEREAS, another of the five reform packages of the Arroyo administration is Anti-Corruption
and Good Government;
WHEREAS, one of the Good Government reforms of the Arroyo administration is rationalizing
the bureaucracy by consolidating related functions into one department;
WHEREAS, under law and jurisprudence, the President of the Philippines has broad powers to
reorganize the offices under her supervision and control;
Petitioners contend that the two presidential issuances are unconstitutional for violating:
NOW[,] THEREFORE[,] I, Gloria Macapagal-Arroyo, by the powers vested in me as President
of the Republic of the Philippines, do hereby order:
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of
the Philippines, by virtue of the powers vested in me by the Constitution and existing laws, do
hereby order:
Section 1. Amending Section 3 of Executive Order No. 364. Section 3 of Executive Order No.
364, dated September 27, 2004 shall now read as follows:
Section 3. The National Commission on Indigenous Peoples (NCIP) shall be
an attached agency of the Department of Land Reform.
Section 2. Compensation. The Chairperson shall suffer no diminution in rank and salary.
Section 3. Repealing Clause. All executive issuances, rules and regulations or parts thereof
which are inconsistent with this Executive Order are hereby revoked, amended or modified
accordingly.
Section 4. Effectivity. This Executive Order shall take effect immediately. (Emphasis and
underscoring in the original)
- THE CONSTITUTIONAL PRINCIPLES OF SEPARATION OF POWERS AND OF THE
RULE OF LAW[;]
- THE CONSTITUTIONAL SCHEME AND POLICIES FOR AGRARIAN REFORM,
URBAN LAND REFORM, INDIGENOUS PEOPLES RIGHTS AND ANCESTRAL
DOMAIN[; AND]
 - THE CONSTITUTIONAL RIGHT OF THE PEOPLE AND THEIR ORGANIZATIONS TO
EFFECTIVE AND REASONABLE PARTICIPATION IN DECISION-MAKING, INCLUDING
THROUGH ADEQUATE CONSULTATION[.][1]
By Resolution of December 6, 2005, this Court gave due course to the Petition and required the submission of
memoranda, with which petitioners and respondents complied on March 24, 2006 and April 11, 2006,
respectively.
The issue on the transformation of the Department of Agrarian Reform (DAR) into the Department of Land
Reform (DLR) became moot and academic, however, the department having reverted to its former name by
virtue of E.O. No. 456[2] which was issued on August 23, 2005.
The Court is thus left with the sole issue of the legality of placing the PresidentialCommission [3]
for the
Urban Poor (PCUP) under the supervision and control of the DAR, and the National Commission on Indigenous
Peoples (NCIP) under the DAR as an attached agency.
Before inquiring into the validity of the reorganization, petitioners locus standi or legal standing, inter
alia,[4] becomes a preliminary question.
The Office of the Solicitor General (OSG), on behalf of respondents, concedes that AMIN [5] has the requisite
legal standing to file this suit as member[6] of Congress.
Petitioners find it impermissible for the Executive to intrude into the domain of the Legislature. They posit that an
act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial
injury, which can be questioned by a member of Congress. [7] They add that to the extent that the powers of
Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in
the exercise of the powers of that institution.[8]
Indeed, a member of the House of Representatives has standing to maintain inviolate the prerogatives,
powers and privileges vested by the Constitution in his office.[9]
The OSG questions, however, the standing of MDOI, a registered peoples organization
of Teduray and Lambangian tribesfolk of (North) Upi and South Upi in the province of Maguindanao.
As co-petitioner, MDOI alleges that it is concerned with the negative impact of NCIPs becoming an attached
agency of the DAR on the processing of ancestral domain claims. It fears that transferring the NCIP to the DAR
would affect the processing of ancestral domain claims filed by its members.
Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the
party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The
gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends
for illumination of difficult constitutional questions.[10]
It has been held that a party who assails the constitutionality of a statute must have a direct and personal
interest. It must show not only that the law or any governmental act is invalid, but also that it sustained or is in
immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that it suffers
thereby in some indefinite way. It must show that it has been or is about to be denied some right or privilege to
which it is lawfully entitled or that it is about to be subjected to some burdens or penalties by reason of the
statute or act complained of.[11]
For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally
suffered some actual or threatened injury as a result 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.[12]
An examination of MDOIs nebulous claims of negative impact and probable setbacks [13] shows that they are too
abstract to be considered judicially cognizable. And the line of causation it proffers between the challenged
action and alleged injury is too attenuated.
Vague propositions that the implementation of the assailed orders will work injustice and violate the
rights of its members cannot clothe MDOI with the requisite standing. Neither would its status as a peoples
organization vest it with the legal standing to assail the validity of the executive orders.[14]
La Bugal-Blaan Tribal Association, Inc. v. Ramos,[15] which MDOI cites in support of its claim to legal
standing, is inapplicable as it is not similarly situated with the therein petitioners who alleged personal and
substantial injury resulting from the mining activities permitted by the assailed statute. And so is Cruz v.
Secretary of Environment and Natural Resources,[16] for the indigenous peoples leaders and organizations were
not the petitioners therein, who necessarily had to satisfy the locus standi requirement, but were intervenors who
sought and were allowed to be impleaded, not to assail but to defend the constitutionality of the statute.
Moreover, MDOI raises no issue of transcendental importance to justify a relaxation of the rule on legal
standing. To be accorded standing on the ground of transcendental importance, Senate of the Philippines v.
Ermita[17] requires that the following elements must be established: (1) the public character of the funds or other
assets involved in the case, (2) the presence of a clear case of disregard of a constitutional or statutory
prohibition by the public respondent agency or instrumentality of government, and (3) the lack of any other party
with a more direct and specific interest in raising the questions being raised. The presence of these elements
MDOI failed to establish, much less allege.
Francisco, Jr. v. Fernando[18] more specifically declares that the transcendental importance of the issues raised
must relate to the merits of the petition.
This Court, not being a venue for the ventilation of generalized grievances, must thus deny adjudication of the
matters raised by MDOI.
Now, on AMINs position. AMIN charges the Executive Department with transgression of the principle of
separation of powers.
Under the principle of separation of powers, Congress, the President, and the Judiciary may not
encroach on fields allocated to each of them. The legislature is generally limited to the enactment of laws, the
executive to the enforcement of laws, and the judiciary to their interpretation and application to cases and
controversies. The principle presupposes mutual respect by and between the executive, legislative and judicial
departments of the government and calls for them to be left alone to discharge their duties as they see fit.[19]
AMIN contends that since the DAR, PCUP and NCIP were created by statutes,[20] they can only be transformed,
merged or attached by statutes, not by mere executive orders.
While AMIN concedes that the executive power is vested in the President [21] who, as Chief Executive, holds the
power of control of all the executive departments, bureaus, and offices, [22] it posits that this broad power of
control including the power to reorganize is qualified and limited, for it cannot be exercised in a manner contrary
to law, citing the constitutional duty[23] of the President to ensure that the laws, including those creating the
agencies, be faithfully executed.
AMIN cites the naming of the PCUP as a presidential commission to be clearly an extension of the President,
and the creation of the NCIP as an independent agency under the Office of the President. [24] It thus argues that
since the legislature had seen fit to create these agencies at separate times and with distinct mandates, the
President should respect that legislative disposition.
In fine, AMIN contends that any reorganization of these administrative agencies should be the subject of
a statute.
AMINs position fails to impress.
The Constitution confers, by express provision, the power of control over executive departments,
bureaus and offices in the President alone. And it lays down a limitation on the legislative power.
The line that delineates the Legislative and Executive power is not indistinct. Legislative power
is the authority, under the Constitution, to make laws, and to alter and repeal them. 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. The grant of legislative power to
Congress is broad, general and comprehensive. The legislative body possesses plenary power
for all purposes of civil government. Any power, deemed to be legislative by usage and
tradition, is necessarily possessed by Congress, unless the Constitution has lodged it
elsewhere. 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.
While Congress is vested with the power to enact laws, the President executes the laws. The
executive power is vested in the President. It is generally defined as the power to enforce and
administer the laws. It is the power of carrying the laws into practical operation and enforcing
their due observance.
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. 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. Corollary to the power of
control, the President also has the duty of supervising and 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.[25] (Italics omitted, underscoring supplied)
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.[26]
In enacting a statute, the legislature is presumed to have deliberated with full knowledge of all existing laws and
jurisprudence on the subject.[27] 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,[28] 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.[29] The Administrative Code of 1987 is one such law:[30]
SEC. 30. Functions of Agencies under the Office of the President. Agencies under the Office of
the President shall continue to operate and function in accordance with their respective
charters or laws creating them, except as otherwise provided in this Code or by law.
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 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.[31] (Italics in the original; emphasis and underscoring supplied)
In carrying out the laws into practical operation, the President is best equipped to assess whether an executive
agency ought to continue operating in accordance with its charter or the law creating it. This is not to say that the
legislature is incapable of making a similar assessment and appropriate action within its plenary power. The
Administrative Code of 1987 merely underscores the need to provide the President with suitable solutions to
situations on hand to meet the exigencies of the service that may call for the exercise of the power of control.
x x x 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. This is the rationale behind the Presidents
continuing authority to reorganize the administrative structure of the Office of the President.[32]
The Office of the President consists of the Office of the President proper and the agencies under it. [33] It is not
disputed that PCUP and NCIP were formed as agencies under the Office of the President. [34] 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 the Office for policy and program coordination, and those that are not placed by law
or order creating them under any special department.[35]
As thus provided by law, the President may transfer any agency under the Office of the President to any other
department or agency, subject to the policy in the Executive Office and in order to achieve simplicity, economy
and efficiency. Gauged against these guidelines,[36] the challenged executive orders may not be said to have
been issued with grave abuse of discretion or in violation of the rule of law.
The references in E.O. 364 to asset reform as an anti-poverty measure for social justice and to rationalization of
the bureaucracy in furtherance of good government [37] encapsulate a portion of the existing policy in the
Executive Office. As averred by the OSG, the President saw it fit to streamline the agencies so as not to hinder
the delivery of crucial social reforms.[38]
The consolidation of functions in E.O. 364 aims to attain the objectives of simplicity, economy and efficiency as
gathered from the provision granting PCUP and NCIP access to the range of services provided by the DARs
technical offices and support systems.[39]
The characterization of the NCIP as an independent agency under the Office of the President does not remove
said body from the Presidents control and supervision with respect to its performance of administrative
functions. So it has been opined:
That Congress did not intend to place the NCIP under the control of the President in all
instances is evident in the IPRA itself, which provides that the decisions of the NCIP in the
exercise of its quasi-judicial functions shall be appealable to the Court of Appeals, like those
of the National Labor Relations Commission (NLRC) and the Securities and Exchange
Commission (SEC). Nevertheless, the NCIP, although independent to a certain degree, was
placed by Congress under the office of the President and, as such, is still subject to the
Presidents power of control and supervision granted under Section 17, Article VII of the
Constitution with respect to its performance of administrative functions[.][40] (Underscoring
supplied)
In transferring the NCIP to the DAR as an attached agency, the President effectively tempered the exercise of
presidential authority and considerably recognized that degree of independence.
The Administrative Code of 1987 categorizes administrative relationships into (1) supervision and control, (2)
administrative supervision, and (3) attachment.[41] With respect to the third category, it has been held that an
attached agency has a larger measure of independence from the Department to which it is attached than one
which is under departmental supervision and control or administrative supervision. This is borne out by the lateral
relationship between the Department and the attached agency. The attachment is merely for policy and program
coordination.[42] Indeed, the essential autonomous character of a board is not negated by its attachment to a
commission.[43]
AMIN argues, however, that there is an anachronism of sorts because there can be no policy and program
coordination between conceptually different areas of reform. It claims that the new framework subsuming
agrarian reform, urban land reform and ancestral domain reform is fundamentally incoherent in view of the widely
different contexts.[44] And it posits that it is a substantive transformation or reorientation that runs contrary to the
constitutional scheme and policies.
AMIN goes on to proffer the concept of ordering the law[45] which, so it alleges, can be said of the Constitutions
distinct treatment of these three areas, as reflected in separate provisions in different parts of the
Constitution.[46] It argues that the Constitution did not intend an over-arching concept of agrarian reform to
encompass the two other areas, and that how the law is ordered in a certain way should not be undermined by
mere executive orders in the guise of administrative efficiency.
The Court is not persuaded.
The interplay of various areas of reform in the promotion of social justice is not something implausible or
unlikely.[47] Their interlocking nature cuts across labels and works against a rigid pigeonholing of executive tasks
among the members of the Presidents official family. Notably, the Constitution inhibited from identifying and
compartmentalizing the composition of the Cabinet. In vesting executive power in one person rather than in a
plural executive, the evident intention was to invest the power holder with energy. [48]
AMIN takes premium on the severed treatment of these reform areas in marked provisions of the Constitution. It
is a precept, however, that inferences drawn from title, chapter or section headings are entitled to very little
weight.[49] And so must reliance on sub-headings,[50] or the lack thereof, to support a strained deduction be given
the weight of helium.
Secondary aids may be consulted to remove, not to create doubt. [51] AMINs thesis unsettles, more than
settles the order of things in construing the Constitution. Its interpretation fails to clearly establish that the so-
called ordering or arrangement of provisions in the Constitution was consciously adopted to imply a signification
in terms of government hierarchy from where a constitutional mandate can per se be derived or asserted. It fails
to demonstrate that the ordering or layout was not simply a matter of style in constitutional drafting but one of
intention in government structuring. With its inherent ambiguity, the proposed interpretation cannot be made a
basis for declaring a law or governmental act unconstitutional.
A law has in its favor the presumption of constitutionality. For it to be nullified, it must be shown that there is a
clear and unequivocal breach of the Constitution. The ground for nullity must be clear and beyond reasonable
doubt.[52] Any reasonable doubt should, following the universal rule of legal hermeneutics, be resolved in favor of
the constitutionality of a law.[53]
Ople v. Torres[54] on which AMIN relies is unavailing. In that case, an administrative order involved a system of
identification that required a delicate adjustment of various contending state policies properly lodged in the
legislative arena. It was declared unconstitutional for dealing with a subject that should be covered by law and for
violating the right to privacy.
In the present case, AMIN glaringly failed to show how the reorganization by executive fiat would hamper the
exercise of citizens rights and privileges. It rested on the ambiguous conclusion that the reorganization
jeopardizes economic, social and cultural rights. It intimated, without expounding, that the agendum behind the
issuances is to weaken the indigenous peoples rights in favor of the mining industry. And it raised concerns
about the possible retrogression in DARs performance as the added workload may impede the implementation of
the comprehensive agrarian reform program.
AMIN has not shown, however, that by placing the NCIP as an attached agency of the DAR, the President
altered the nature and dynamics of the jurisdiction and adjudicatory functions of the NCIP concerning all claims
and disputes involving rights of indigenous cultural communities and
indigenous peoples. Nor has it been shown, nay alleged, that the reorganization was made in bad faith. [55]
As for the other arguments raised by AMIN which pertain to the wisdom or soundness of the executive decision,
the Court finds it unnecessary to pass upon them. The raging debate on the most fitting framework in the delivery
of social services is endless in the political arena. It is not the business of this Court to join in the fray. Courts
have no judicial power to review cases involving political questions and, as a rule, will desist from taking
cognizance of speculative or hypothetical cases, advisory opinions and cases that have become moot. [56]
Finally, a word on the last ground proffered for declaring the unconstitutionality of the assailed issuances ─ that
they violate Section 16, Article XIII of the Constitution[57] on the peoples right to participate in decision-making
through adequate consultation mechanisms.
The framers of the Constitution recognized that the consultation mechanisms were already operating
without the States action by law, such that the role of the State would be mere facilitation, not necessarily
creation of these consultation mechanisms. The State provides the support, but eventually it is the people,
properly organized in their associations, who can assert the right and pursue the objective.Penalty for failure on
the part of the government to consult could only be reflected in the ballot box and would not nullify government
action.[58]
WHEREFORE, the petition is DISMISSED. Executive Order Nos. 364 and 379 issued on September 27,
2004 and October 26, 2004, respectively, are declared not unconstitutional.
SO ORDERED.
 MALARIA EMPLOYEES AND G.R. No. 160093 adopting the procedures and standards set forth in R.A. No. 6656 [4] or the Rules on Governmental
WORKERS ASSOCIATION OF Reorganization, Civil Service Rules and Regulations, Sections 76 to 78 of the GAA for the Year 2000, and
THE PHILIPPINES, INC. (MEWAP), Section 42 of E.O. No. 292.
represented by its National President,
DR. RAMON A. SULLA, and MEWAP On August 29, 2000, the Secretary of Health issued Department Memorandum No. 157, Series of 2000, viz.:
DOH Central Office Chapter President,
DR. GRACELA FIDELA MINA-RAMOS, Pursuant to the Notice of Organization, Staffing and Compensation Action (NOSCA) approved
and PRISCILLA CARILLO, and by the DBM on 8 July 2000 and Memorandum Circular No. 62 issued by the Presidential
HERMINIO JAVIER, Committee on Effective Governance (PCEG) on 17 July 2000, Implementing E.O. 102
Petitioners, vs dated 24 May 1999, the following approved Placement List of DOH Personnel is hereby
THE HONORABLE EXECUTIVE disseminated for your information and guidance.
SECRETARY ALBERTO ROMULO,
(substituting the former Executive All personnel are hereby directed to report to their new assignments on or before 2 October
Secretary Renato de Villa), THE 2000 pending processing of new appointments, required clearances and other pertinent
HONORABLE SECRETARY OF Promulgated: documents.
HEALTH MANUEL DAYRIT
and THE HONORABLE SECRETARY All Heads of Office/Unit in the Department of Health are hereby directed to facilitate the
OF BUDGET AND MANAGEMENT implementation of E.O. 102, to include[,] among others, the transfer or movement of personnel,
EMILIA T. BONCODIN, properties, records and documents to appropriate office/unit and device other necessary
Respondents. July 31, 2007 means to minimize disruption of office functions and delivery of health services.
x--------------------------------------------------x
DECISION Appeals, oversights, issues and concerns of personnel related to this Placement List shall be
made in writing using the Appeals Form (available at the Administrative Service) addressed to
PUNO, C.J.: the Appeals Committee chaired by Dr. Gerardo Bayugo. All Appeals Forms shall be submitted
At bar is a Petition for Review on Certiorari of the Decision of the Court of Appeals in CA-G.R. SP No. 65475 to the Re-Engineering Secretariat xxx not later than 18 September 2000. [5]
dated September 12, 2003 which upheld the validity of Executive Order (E.O.) No. 102,[1] the law Redirecting the
Functions and Operations of the Department of Health. Then President Joseph E. Estrada issued E.O. No. 102 Petitioner Malaria Employees and Workers Association of the Philippines, Inc. (MEWAP) is a union of affected
on May 24, 1999 pursuant to Section 20, Chapter 7, Title I, Book III of E.O. No. 292, otherwise known as the employees in the Malaria Control Service of the Department of Health. MEWAP filed a complaint, docketed as
Administrative Code of 1987, and Sections 78 and 80 of Republic Act (R.A.) No. 8522, also known as the Civil Case No. 00-98793, with the Regional Trial Court of Manila seeking to nullify Department Memorandum No.
General Appropriations Act (GAA) of 1998. E.O. No. 102 provided for structural changes and redirected the 157, the NOSCA and the Placement List of Department of Health Personnel and other issuances implementing
functions and operations of the Department of Health. E.O. No. 102.

On October 19, 1999, the President issued E.O. No. 165 Directing the Formulation of an Institutional
Strengthening and Streamlining Program for the Executive Branch which created the Presidential Committee on
Executive Governance (PCEG) composed of the Executive Secretary as chair and the Secretary of the
Department of Budget and Management (DBM) as co-chair.
The DBM, on July 8, 2000, issued the Notice of Organization, Staffing and Compensation Action (NOSCA).
On July 17, 2000, the PCEG likewise issued Memorandum Circular (M.C.) No. 62, entitled Implementing
Executive Order No. 102, Series of 1999 Redirecting the Functions and Operations of the Department of
Health.[2] M.C. No. 62 directed the rationalization and streamlining of the said Department.
On July 24, 2000, the Secretary of Health issued Department Memorandum No. 136, Series of 2000, ordering
the Undersecretary, Assistant Secretaries, Bureau or Service Directors and Program Managers of the
Department of Health to direct all employees under their respective offices to accomplish and submit the
Personal Information Sheet due to the approval of the Department of Health Rationalization and Streamlining
Plan.
On July 28, 2000, the Secretary of Health again issued Department Circular No. 221, Series of 2000, stating that
the Department will start implementing the Rationalization and Streamlining Plan by a process of selection,
placement or matching of personnel to the approved organizational chart and the list of the approved plantilla
items.[3] The Secretary also issued Administrative Order (A.O.) No. 94, Series of 2000, which set the
implementing guidelines for the restructuring process on personnel selection and placement, retirement and/or
voluntary resignation. A.O. No. 94 outlined the general guidelines for the selection and placement of employees
On May 2, 2001, while the civil case was pending at the Regional Trial Court of Manila, Branch 22, petitioners
filed with this Court a petition for certiorari under Rule 65 of the Rules of Court. Petitioners sought to nullify E.O.
No. 102 for being issued with grave abuse of discretion amounting to lack or excess of jurisdiction as it allegedly
violates certain provisions of E.O. No. 292 and R.A. No. 8522. The petition was referred to the Court of Appeals
which dismissed the same in its assailed Decision. Hence, this appeal where petitioners ask for a re-examination
of the pertinent pronouncements of this Court that uphold the authority of the President to reorganize a
department, bureau or office in the executive department. Petitioners raise the following issues, viz.:
1. WHETHER SECTIONS 78 AND 80 OF THE GENERAL PROVISION OF REPUBLIC ACT
NO. 8522, OTHERWISE KNOWN AS THE GENERAL APPROPRIATION[S] ACT OF 1998[,]
EMPOWER FORMER PRESIDENT JOSEPH E. ESTRADA TO REORGANIZE
STRUCTURALLY AND FUNCTIONALLY THE DEPARTMENT OF HEALTH.
2. WHETHER SECTION 20, CHAPTER I, TITLE I, BOOK III OF THE ADMINISTRATIVE
CODE OF 1987 PROVIDES LEGAL BASIS IN REORGANIZING THE DEPARTMENT OF
HEALTH.
(A) WHETHER PRESIDENTIAL DECREE NO. 1416, AS AMENDED BY
PRESIDENTIAL DECREE NO. 1772, HAS BEEN REPEALED.
 3. WHETHER THE PRESIDENT HAS AUTHORITY UNDER SECTION 17, ARTICLE VIII OF
THE CONSTITUTION TO EFFECT A REORGANIZATION OF A DEPARTMENT UNDER THE
EXECUTIVE BRANCH.
4. WHETHER THERE HAS BEEN ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION ON THE PART OF FORMER PRESIDENT JOSEPH E.
ESTRADA IN ISSUING EXECUTIVE ORDER NO. 102, REDIRECTING THE FUNCTIONS
AND OPERATIONS OF THE DEPARTMENT OF HEALTH.
5. WHETHER EXECUTIVE ORDER NO. 102 IS NULL AND VOID.[6]
We deny the petition.
The President has the authority to carry out a reorganization of the Department of Health under the Constitution
and statutory laws. This authority is an adjunct of his power of control under Article VII, Sections 1 and 17 of the
1987 Constitution, viz.:
Section 1. The executive power shall be vested in the President of the Philippines.
Section 17. The President shall have control of all the executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed.
In Canonizado v. Aguirre,[7] we held that reorganization involves the reduction of personnel, consolidation of
offices, or abolition thereof by reason of economy or redundancy of functions. It alters the existing structure of
government offices or units therein, including the lines of control, authority and responsibility between
them.[8] While the power to abolish an office is generally lodged with the legislature, the authority of the President
to reorganize the executive branch, which may include such abolition, is permissible under our present laws, viz.:
The general rule has always been that the power to abolish a public office is lodged with the
legislature. This proceeds from the legal precept that the power to create includes the power to
destroy. A public office is either created by the Constitution, by statute, or by authority of law.
Thus, except where the office was created by the Constitution itself, it may be abolished by the
same legislature that brought it into existence.
The exception, however, is that as far as bureaus, agencies or offices in the executive
department are concerned, the Presidents power of control may justify him to inactivate the
functions of a particular office, or certain laws may grant him the broad authority to carry out
reorganization measures.[9]
The Presidents power to reorganize the executive branch is also an exercise of his residual powers under
Section 20, Title I, Book III of E.O. No. 292 which grants the President broad organization powers to implement
reorganization measures, viz.:
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.[10]
We explained the nature of the Presidents residual powers under this section in the case of Larin v. Executive
Secretary, [11] viz.:
This provision speaks of such other powers vested in the President under the
law. What law then gives him the power to reorganize? It is Presidential Decree No. 1772
which amended Presidential Decree No. 1416.These decrees expressly grant the
President of the Philippines the continuing authority to reorganize the national
government, which includes the power to group, consolidate bureaus and agencies, to
abolish offices, to transfer functions, to create and classify functions, services and
activities and to standardize salaries and materials. The validity of these two decrees [is]
unquestionable. The 1987 Constitution clearly provides that all laws, decrees, executive
orders, proclamations, letters of instructions and other executive issuances not inconsistent
with this Constitution shall remain operative until amended, repealed or revoked. So far, there
is yet no law amending or repealing said decrees.[12]
The pertinent provisions of Presidential Decree No. 1416, as amended by Presidential Decree No.
1772, clearly support the Presidents continuing power to reorganize the executive branch, viz.:
1. The President of the Philippines shall have continuing authority to reorganize the
National Government. In exercising this authority, the President shall be guided by generally
acceptable principles of good government and responsive national development, including but
not limited to the following guidelines for a more efficient, effective, economical and
development-oriented governmental framework:
xxx
b) Abolish departments, offices, agencies or functions which may not be necessary, or
create those which are necessary, for the efficient conduct of government functions, services
and activities;
c) Transfer functions, appropriations, equipment, properties, records and personnel from
one department, bureau, office, agency or instrumentality to another;
d) Create, classify, combine, split, and abolish positions;
e) Standardize salaries, materials, and equipment;
f) 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, including, with respect to
government-owned or controlled corporations, their corporate life, capitalization, and other
relevant aspects of their charters;
g) Take such other related actions as may be necessary to carry out the purposes and
objectives of this Decree.
Petitioners argue that the residual powers of the President under Section 20, Title I, Book III of E.O. No. 292
refer only to the Office of the President and not to the departments, bureaus or offices within the executive
branch. They invoke Section 31, Chapter 10, Title III, Book III of the same law, viz.:
Section 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. x x x
The interpretation of petitioners is illogically restrictive and lacks legal basis. The residual powers granted to the
President under Section 20, Title I, Book III are too broad to be construed as having a sole application to the
Office of the President. As correctly stated by respondents, there is nothing in E.O. No. 292 which provides that
the continuing authority should apply only to the Office of the President. [13] If such was the intent of the law, the
same should have been expressly stated. To adopt the argument of petitioners would result to two conflicting
provisions in one statute. It is a basic canon of statutory construction that in interpreting a statute, care should be
taken that every part thereof be given effect, on the theory that it was enacted as an integrated measure and not
as a hodge-podge of conflicting provisions. The rule is that a construction that would render a provision
inoperative should be avoided; instead, apparently inconsistent provisions should be reconciled whenever
possible as parts of a coordinated and harmonious whole. [14]
In fact, as pointed out by respondents, the Presidents power to reorganize the executive department even finds
further basis under Sections 78 and 80 of R.A. No. 8522, viz.:[15]
Section 78. Organizational Changes Unless otherwise provided 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 organizational structure and funded from appropriations
provided by this Act.
Section 80. Scaling Down and Phase-out of Activities of Agencies within the Executive Branch The
heads of departments, bureaus, 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.
Said activities shall be reported to the Office of the President through the Department of
Budget and Management and to the Chairman, Committee on Appropriations of the House of
Representatives and the Chairman, Committee on Finance of the Senate. Actual scaling down,
phase-out or abolition of the activities shall be effected pursuant to Circulars or Orders issued
for the purpose by the Office of the President.

Petitioners contend that Section 78 refers only to changes in organizational units or key positions in any
department or agency, while Section 80 refers merely to scaling down and phasing out of activities within the
executive department. They argue that neither section authorizes reorganization. Thus, the realignment of the
appropriations to implement the reorganization of the Department of Health under E.O. No. 102 is illegal.
Again, petitioners construction of the law is unduly restrictive. This Court has consistently held
in Larin[16] and Buklod ng Kawanihang EIIB v. Zamora[17] that the corresponding pertinent provisions in the
GAA in these subject cases authorize the President to effect organizational changes in the department or agency
concerned.

Be that as it may, the President must exercise good faith in carrying out the reorganization of any branch or
agency of the executive department. Reorganization is effected in good faith if it is for the purpose of economy or
to make bureaucracy more efficient.[18] R.A. No. 6656[19] provides for the circumstances which may be
considered as evidence of bad faith in the removal of civil service employees made as a result of reorganization,
to wit: (a) where there is a significant increase in the number of positions in the new staffing pattern of the
department or agency concerned; (b) where an office is abolished and another performing substantially the same
functions is created; (c) where incumbents are replaced by those less qualified in terms of status of appointment,
performance and merit; (d) where there is a classification of offices in the department or agency concerned and
the reclassified offices perform substantially the same functions as the original offices; and (e) where the removal
violates the order of separation.

We agree with the ruling of the Court of Appeals that the President did not commit bad faith in the questioned
reorganization, viz.:

In this particular case, there is no showing that the reorganization undertaking in the
[Department of Health] had violated this requirement, nor [are] there adequate allegations to
that effect. It is only alleged that the petitioners were directly affected by the reorganization
ordered under E.O. [No.] 102. Absent is any showing that bad faith attended the actual
implementation of the said presidential issuance.

IN VIEW WHEREOF, the petition is DENIED. The assailed Decision of the Court of Appeals in CA-G.R. SP No.
65475 dated September 12, 2003 is AFFIRMED.
Costs against petitioners.

SO ORDERED.
 G.R. No. 140423 July 14, 2006
JOSE LUIS ANGEL B. OROSA, petitioner,
vs.
ALBERTO C. ROA, respondent.
DECISION
GARCIA, J.:
Assailed and sought to be set aside in this petition for review is the Resolution1 dated July 8, 1999 of the Court of
Appeals (CA) in CA-G.R. SP No. 53190, dismissing the petition for review under Rule 43 of the 1997 Rules of
Civil Procedure thereat filed by the herein petitioner from an adverse resolution of the Secretary of Justice.
The petition is casts against the following factual backdrop:
On November 27, 1996, petitioner, a dentist by profession, filed with the Pasig City Prosecution Office a
complaint-affidavit charging respondent Alberto C. Roa, likewise a dentist, with the crime of libel. The complaint,
docketed in said office as I.S. No. 96-5442, stemmed from an article entitled "Truth vs. Rumors: Questions
against Dr. Orosa" written by respondent and published in the March-April 1996 issue of the Dental Trading Post,
a bi-monthly publication of the Dental Exchange Co., Inc. In gist, the article delved into the possibility of a father,
who happened to be an examiner in a licensure examination for dentistry where his sons were examinees,
manipulating the examinations or the results thereof to enable his children to top the same.
In his complaint-affidavit, petitioner alleged that the article in question is defamatory as it besmirched his honor
and reputation as a dentist and as the topnotcher in the dental board examinations held in May 1994.
Respondent denied the accusation, claiming that the article constitutes a "fair and accurate report on a matter of
both public and social concern." He averred that the article in question was not written with malice but with a
sincere desire to contribute to the improvement of the integrity of professional examinations.
After preliminary investigation, Pasig City Prosecutor Noel Paz issued a Resolution, dismissing petitioner's
complaint in this wise:
The publication being a bona fide communication on matters of public concern, and made without
malice, we find the respondent entitled to the protection of the rule on privileged matters under Article
354 of the Revised Penal Code.
Petitioner appealed to the Department of Justice (DOJ). Acting on the appeal, Chief State Prosecutor Jovencito
Zuño issued a Resolution (Zuño Resolution), setting aside the findings of the City Prosecutor and directing the
latter to file an Information for libel against respondent. Accordingly, in the Regional Trial Court (RTC) of Pasig
City, an Information for libel was filed against respondent, thereat docketed as Criminal Case No. 114517.
Adversely affected, respondent appealed to the Secretary of Justice. On October 28, 1998, then Justice
Secretary Serafin Cuevas reversed the Zuño Resolution and directed the City Prosecutor of Pasig to withdraw
the Information earlier filed with the RTC. In compliance therewith, a "Motion to Withdraw Information" was
accordingly filed in court by the Pasig City Prosecution Office.
Petitioner seasonably moved for a reconsideration but his motion was denied by the Secretary of Justice in his
Resolution of May 12, 1999.
Therefrom, petitioner went to the CA on a petition for review under Rule 432 of the 1997 Rules of Civil Procedure,
docketed as CA-G.R. No. SP No. 53190.
As stated at the outset hereof, the CA, in the herein assailed Resolution dated July 8, 1999, dismissed
petitioner's petition for review. Partly says the CA in its dismissal Resolution:
The Pasig City Prosecution Office and the Department of Justice are not among the quasi-judicial
agencies included in Section 1 of Rule 43 whose final orders or resolutions are subject to review by the
Court of Appeals.
The Supreme Court in its Resolution En Banc dated April 8, 1997, approving the 1997 Rules of Civil
Procedure in Bar Matter No. 803, did not include final orders or resolutions issued by these agencies as
appealable under Rule 43. The Court of Appeals is therefore not at liberty to supply the omissions in the
Rule, that would constitute an encroachment on the rule making power of the Supreme Court.3
With his motion for reconsideration having been denied by the CA in its subsequent Resolution of October 14,
1999, petitioner is now with this Court on his submission that the appellate court erred:
I
XXX IN HOLDING THAT THE RESOLUTIONS OF THE DEPARTMENT OF JUSTICE ARE NOT
REVIEWABLE BY IT UNDER RULE 43 OF THE 1997 RULES OF CIVIL PROCEDURE.
II
XXX IN FINDING THE PETITION IN CA G.R. SP NO. 53190 [WAS] PREMATURELY FILED.
III
XXX IN HOLDING THAT THE RESOLUTIONS OF THE DEPARTMENT OF JUSTICE ASSAILED IN
CA G.R. SP NO. 53190 ARE NOT REVIEWABLE UNDER RULE 65 (sic) OF THE 1997 RULES OF
CIVIL PROCEDURE SINCE THESE RESOLUTIONS WERE ISSUED BY THE SECRETARY OF
JUSTICE IN THE EXERCISE OF HIS POWER OF CONTROL AND SUPERVISION OVER
PROSECUTORS.
IV
XXX IN NOT RESOLVING THE PETITION IN CA G.R. SP NO. 53190 ON THE MERITS.
V
XXX IN NOT REVERSING THE ASSAILED RESOLUTION OF THE DEPARTMENT OF JUSTICE IN
CA G.R. SP NO. 53190 ON THE FOLLOWING GROUNDS:
a. RESPONDENT'S APPEAL FROM THE RESOLUTION OF THE DEPARTMENT OF
JUSTICE, THROUGH THE CHIEF STATE PROSECUTOR, DATED JANUARY 22, 1998,
WAS FATALLY DEFECTIVE.
b. RESPONDENT'S ARTICLE WAS DEFAMATORY.
c. MALICE ATTENDED THE PUBLICATION OF RESPONDENT'S ARTICLE.
d. RESPONDENT'S ARTICLE WAS NOT PROTECTED BY THE MANTLE OF PRIVILEGED
MATTER.
As the Court sees it, the petition commends for its consideration the issue of whether or not a petition for review
under Rule 43 of the 1997 Rules of Civil Procedure is a proper mode of appeal from a resolution of the Secretary
of Justice directing the prosecutor to withdraw an information in a criminal case.
It is petitioner's thesis that Rule 43 was intended to apply to all quasi-judicial agencies exercising quasi-judicial
functions. Upon this premise, petitioner submits that resolutions of the DOJ in the exercise of its quasi-judicial
functions are properly appealable to the CA via a petition for review under Rule 43, adding that the quasi-judicial
bodies enumerated under said Rule are not exclusive.
Petitioner's above posture, while valid to a point, will not carry the day for him.
Rule 43 governs all appeals from the Court of Tax Appeals and quasi-judicial bodies to the CA. Section 1 thereof
provides:
Section 1. Scope.― This Rule shall apply to appeals from judgments or final orders of the Court of Tax
Appeals, and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial
agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service
Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of
the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board,
 Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration,
Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform
under Republic Act No. 6657, Government Service and Insurance System, Employees' Compensation
Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy
Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary
arbitrators authorized by law.
As may be noted, the DOJ is not among the agencies expressly enumerated under Section 1 of Rule 43, albeit
any suggestion that it does not perform quasi-judicial functions may have to be rejected. However, its absence
from the list of agencies mentioned thereunder does not, by this fact alone, already imply its exclusion from the
coverage of said Rule. This is because said Section 1 uses the phrase "among these agencies," thereby
implying that the enumeration made is not exclusive of the agencies therein listed.
with the assailed directive of the Secretary of Justice. Having control of the case, the trial court can look
into the claim of petitioner. This will enable the trial court to rule on the matter first without the precipitate
intervention of this Court. In other words, this is a prerequisite to the elevation of the case to this
Court.11
In view of the foregoing disquisition, the Court deems it unnecessary to address the other issues raised in the
petition.
WHEREFORE, the instant petition is DENIED and the assailed resolution of the Court of Appeals is AFFIRMED.
SO ORDERED.

There is compelling reason to believe, however, that the exclusion of the DOJ from the list is deliberate, being in
consonance with the constitutional power of control 4 lodged in the President over executive departments,
bureaus and offices. This power of control, which even Congress cannot limit, let alone withdraw, means the
power of the Chief Executive to review, alter, modify, nullify, or set aside what a subordinate, e.g., members of
the Cabinet and heads of line agencies, had done in the performance of their duties and to substitute the
judgment of the former for that of the latter.5

Being thus under the control of the President, the Secretary of Justice, or, to be precise, his decision is subject to
review of the former. In fine, recourse from the decision of the Secretary of Justice should be to the President,
instead of the CA, under the established principle of exhaustion of administrative remedies. The thrust of the rule
on exhaustion of administrative remedies is that if an appeal or remedy obtains or is available within the
administrative machinery, this should be resorted to before resort can be made to the courts. 6 Immediate
recourse to the court would be premature and precipitate; 7 subject to defined exception, a case is susceptible of
dismissal for lack of cause of action should a party fail to exhaust administrative remedies. 8 Notably, Section 1,
supra, of Rule 43 includes the Office of the President in the agencies named therein, thereby accentuating the
fact that appeals from rulings of department heads must first be taken to and resolved by that office before any
appellate recourse may be resorted to.

Given the above perspective, the question of whether or not a preliminary investigation is a quasi-judicial
proceeding, as petitioner posits, or whether or not the Secretary of Justice performs quasi-judicial functions when
he reviews the findings of a state or city prosecutor is of little moment. The Court wishes, however, to draw
attention to what it said in Santos v. Go9 where the Court, citing Bautista v. Court of Appeals,10 stated:

[t]he prosecutor in a preliminary investigation does not determine the guilt or innocence of the accused.
He does not exercise adjudication nor rule-making functions. Preliminary investigation is merely
inquisitorial, and is often the only means of discovering the persons who may be reasonably charged
with a crime and to enable the fiscal [prosecutor] to prepare his complaint or information. It is not a trial
of the case on the merits and has no purpose except that of determining whether a crime has been
committed and whether there is probable cause to believe that the accused is guilty thereof. While the
fiscal [prosecutor] makes that determination, he cannot be said to be acting as a quasi-court, for it is the
courts, ultimately that pass judgment on the accused, not the fiscal [prosecutor]. (Words in bracket ours)

While now perhaps anti-climactic to delve into, the ensuing holdings of the appellate court are worth quoting:

The petition is premature. The Information charging respondent with the crime of libel, docketed as
Criminal Case No. 114517, is now with Branch 155 of the Regional Trial Court in Pasig City. Thus
understood, the said trial court has now the control of the case. The remedy of petitioner is to reiterate
the reasons or grounds alleged in his present petition by way of an appropriate opposition to the Pasig
City Prosecution Office's "Motion to Withdraw Information" dated November 5, 1998, filed in compliance
LOUIS BAROK C. BIRAOGO, G.R. No. 192935 To transform his campaign slogan into reality, President Aquino found a need for a special body to
Petitioner, investigate reported cases of graft and corruption allegedly committed during the previous administration.
- versus -
THE PHILIPPINE TRUTH COMMISSION OF 2010, Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order No. 1
Respondent. establishing the Philippine Truth Commission of 2010 (Truth Commission). Pertinent provisions of said executive
x-----------------------x order read:
REP. EDCEL C. LAGMAN, EXECUTIVE ORDER NO. 1
REP. RODOLFO B. ALBANO, JR., REP. SIMEON A. CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
DATUMANONG, and REP. ORLANDO B. FUA, SR.,
Petitioners, G.R. No. 193036 WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines
- versus - Promulgated: the principle that a public office is a public trust and mandates that public officers and
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. December 7, 2010 employees, who are servants of the people, must at all times be accountable to the latter,
and DEPARTMENT OF BUDGET AND serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and
MANAGEMENT SECRETARY FLORENCIO B. justice, and lead modest lives;
ABAD,
Respondents. WHEREAS, corruption is among the most despicable acts of defiance of this principle and
x -------------------------------------------------------------------------------------- x notorious violation of this mandate;
DECISION
WHEREAS, corruption is an evil and scourge which seriously affects the political, economic,
MENDOZA, J.: and social life of a nation; in a very special way it inflicts untold misfortune and misery on the
When the judiciary mediates to allocate constitutional boundaries, it does not assert poor, the marginalized and underprivileged sector of society;
any superiority over the other departments; it does not in reality nullify or invalidate an act of
the legislature, but only asserts the solemn and sacred obligation assigned to it by the WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined
Constitution to determine conflicting claims of authority under the Constitution and to establish the peoples trust and confidence in the Government and its institutions;
for the parties in an actual controversy the rights which that instrument secures and
guarantees to them. --- Justice Jose P. Laurel[1] WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of
large scale graft and corruption in the government and to put a closure to them by the filing of
The role of the Constitution cannot be overlooked. It is through the Constitution that the fundamental powers of the appropriate cases against those involved, if warranted, and to deter others from committing
government are established, limited and defined, and by which these powers are distributed among the several the evil, restore the peoples faith and confidence in the Government and in their public
departments.[2] The Constitution is the basic and paramount law to which all other laws must conform and to servants;
which all persons, including the highest officials of the land, must defer.[3]Constitutional doctrines must remain
steadfast no matter what may be the tides of time. It cannot be simply made to sway and accommodate the call WHEREAS, the Presidents battlecry during his campaign for the Presidency in the last
of situations and much more tailor itself to the whims and caprices of government and the people who run it. [4] elections kung walang corrupt, walang mahirap expresses a solemn pledge that if elected, he
would end corruption and the evil it breeds;
For consideration before the Court are two consolidated cases[5] both of which essentially assail the validity and
constitutionality of Executive Order No. 1, dated July 30, 2010, entitled Creating the Philippine Truth Commission WHEREAS, there is a need for a separate body dedicated solely to investigating and finding
of 2010. out the truth concerning the reported cases of graft and corruption during the previous
administration, and which will recommend the prosecution of the offenders and secure justice
The first case is G.R. No. 192935, a special civil action for prohibition instituted by petitioner Louis for all;
Biraogo (Biraogo) in his capacity as a citizen and taxpayer. Biraogo assails Executive Order No. 1 for being WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as
violative of the legislative power of Congress under Section 1, Article VI of the Constitution [6] as it usurps the the Revised Administrative Code of the Philippines, gives the President the continuing authority
constitutional authority of the legislature to create a public office and to appropriate funds therefor. [7] to reorganize the Office of the President.

The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed by petitioners Edcel
C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr. (petitioners-legislators) as
incumbent members of the House of Representatives.
The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections, when
then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft and corruption with his
slogan, Kung walang corrupt, walang mahirap. The Filipino people, convinced of his sincerity and of his ability to
carry out this noble objective, catapulted the good senator to the presidency.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, do hereby order:
SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the COMMISSION, which shall primarily seek and
find the truth on, and toward this end, investigate reports of graft and corruption of such scale
and magnitude that shock and offend the moral and ethical sensibilities of the people,
committed by public officers and employees, their co-principals, accomplices and accessories
from the private sector, if any, during the previous administration; and thereafter recommend
the appropriate action or measure to be taken thereon to ensure that the full measure of justice
shall be served without fear or favor.
The Commission shall be composed of a Chairman and four (4) members who will act as an
independent collegial body.
SECTION 2. Powers and Functions. The Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is
primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and
corruption referred to in Section 1, involving third level public officers and higher, their co-
principals, accomplices and accessories from the private sector, if any, during the previous
administration and thereafter submit its finding and recommendations to the President,
Congress and the Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft and corruption which it will
investigate;
b) Collect, receive, review and evaluate evidence related to or regarding the cases of large
scale corruption which it has chosen to investigate, and to this end require any agency, official
or employee of the Executive Branch, including government-owned or controlled corporations,
to produce documents, books, records and other papers;
c) Upon proper request or representation, obtain information and documents from the
Senate and the House of Representatives records of investigations conducted by committees
thereof relating to matters or subjects being investigated by the Commission;
d) Upon proper request and representation, obtain information from the courts, including the
Sandiganbayan and the Office of the Court Administrator, information or documents in respect
to corruption cases filed with the Sandiganbayan or the regular courts, as the case may be;
e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer
oaths or affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person as a state witness to
ensure that the ends of justice be fully served, that such person who qualifies as a state
witness under the Revised Rules of Court of the Philippines be admitted for that purpose;
g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial
authorities, by means of a special or interim report and recommendation, all evidence on
corruption of public officers and employees and their private sector co-principals, accomplices
or accessories, if any, when in the course of its investigation the Commission finds that there is
reasonable ground to believe that they are liable for graft and corruption under pertinent
applicable laws;
h) Call upon any government investigative or prosecutorial agency such as the Department
of Justice or any of the agencies under it, and the Presidential Anti-Graft Commission, for such
assistance and cooperation as it may require in the discharge of its functions and duties;
i) Engage or contract the services of resource persons, professionals and other personnel
determined by it as necessary to carry out its mandate;
j) Promulgate its rules and regulations or rules of procedure it deems necessary to
effectively and efficiently carry out the objectives of this Executive Order and to ensure the
orderly conduct of its investigations, proceedings and hearings, including the presentation of
evidence;
k) Exercise such other acts incident to or are appropriate and necessary in connection with
the objectives and purposes of this Order.
SECTION 3. Staffing Requirements. x x x.
SECTION 4. Detail of Employees. x x x.
SECTION 5. Engagement of Experts. x x x
SECTION 6. Conduct of Proceedings. x x x.
SECTION 7. Right to Counsel of Witnesses/Resource Persons. x x x.
SECTION 8. Protection of Witnesses/Resource Persons. x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. Any government
official or personnel who, without lawful excuse, fails to appear upon subpoena issued by the
Commission or who, appearing before the Commission refuses to take oath or affirmation, give
testimony or produce documents for inspection, when required, shall be subject to
administrative disciplinary action. Any private person who does the same may be dealt with in
accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. x x x.
SECTION 11. Budget for the Commission. The Office of the President shall provide the
necessary funds for the Commission to ensure that it can exercise its powers, execute its
functions, and perform its duties and responsibilities as effectively, efficiently, and expeditiously
as possible.
SECTION 12. Office. x x x.
SECTION 13. Furniture/Equipment. x x x.
SECTION 14. Term of the Commission. The Commission shall accomplish its mission on or
before December 31, 2012.
SECTION 15. Publication of Final Report. x x x.
SECTION 16. Transfer of Records and Facilities of the Commission. x x x.
SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the
President there is a need to expand the mandate of the Commission as defined in Section 1
hereof to include the investigation of cases and instances of graft and corruption during the
prior administrations, such mandate may be so extended accordingly by way of a supplemental
Executive Order.
SECTION 18. Separability Clause. If any provision of this Order is declared unconstitutional,
the same shall not affect the validity and effectivity of the other provisions hereof.
SECTION 19. Effectivity. This Executive Order shall take effect immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commissio
As can be gleaned from the above-quoted provisions, the Philippine Truth Commission (PTC) is a
mere ad hoc body formed under the Office of the President with the primary task to investigate reports of graft
and corruption committed by third-level public officers and employees, their co-principals, accomplices and
accessories during the previous administration, and thereafter to submit its finding and recommendations to the
President, Congress and the Ombudsman. Though it has been described as an independent collegial body, it is
essentially an entity within the Office of the President Proper and subject to his control. Doubtless, it constitutes a
public office, as an ad hoc body is one.[8]
To accomplish its task, the PTC shall have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987. It is not, however, a quasi-judicial body as it cannot
adjudicate, arbitrate, resolve, settle, or render awards in disputes between contending parties. All it can do is
gather, collect and assess evidence of graft and corruption and make recommendations. It may have subpoena
powers but it has no power to cite people in contempt, much less order their arrest. Although it is a fact-finding
body, it cannot determine from such facts if probable cause exists as to warrant the filing of an information in our
courts of law. Needless to state, it cannot impose criminal, civil or administrative penalties or sanctions.
 The PTC is different from the truth commissions in other countries which have been created as official,
transitory and non-judicial fact-finding bodies to establish the facts and context of serious violations of human
rights or of international humanitarian law in a countrys past. [9] They are usually established by states emerging
from periods of internal unrest, civil strife or authoritarianism to serve as mechanisms for transitional justice.
Truth commissions have been described as bodies that share the following characteristics: (1) they
examine only past events; (2) they investigate patterns of abuse committed over a period of time, as opposed to
a particular event; (3) they are temporary bodies that finish their work with the submission of a report containing
conclusions and recommendations; and (4) they are officially sanctioned, authorized or empowered by the
State.[10] Commissions members are usually empowered to conduct research, support victims, and propose
policy recommendations to prevent recurrence of crimes. Through their investigations, the commissions may aim
to discover and learn more about past abuses, or formally acknowledge them. They may aim to prepare the way
for prosecutions and recommend institutional reforms.[11]
Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo war crime
tribunals are examples of a retributory or vindicatory body set up to try and punish those responsible for crimes
against humanity. A form of a reconciliatory tribunal is the Truth and Reconciliation Commission of South Africa,
the principal function of which was to heal the wounds of past violence and to prevent future conflict by providing
a cathartic experience for victims.
The PTC is a far cry from South Africas model. The latter placed more emphasis on reconciliation than
on judicial retribution, while the marching order of the PTC is the identification and punishment of perpetrators.
As one writer[12] puts it:
The order ruled out reconciliation. It translated the Draconian code spelled out by
Aquino in his inaugural speech: To those who talk about reconciliation, if they mean that they
would like us to simply forget about the wrongs that they have committed in the past, we have
this to say: There can be no reconciliation without justice. When we allow crimes to go
unpunished, we give consent to their occurring over and over again.
The Thrusts of the Petitions
Barely a month after the issuance of Executive Order No. 1, the petitioners asked the Court to declare it
unconstitutional and to enjoin the PTC from performing its functions. A perusal of the arguments of the
petitioners in both cases shows that they are essentially the same. The petitioners-legislators summarized them
in the following manner:
(a) E.O. No. 1 violates the separation of powers as it arrogates the power of the
Congress to create a public office and appropriate funds for its operation.
(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of
1987 cannot legitimize E.O. No. 1 because the delegated authority of the President to
structurally reorganize the Office of the President to achieve economy, simplicity and efficiency
does not include the power to create an entirely new public office which was hitherto inexistent
like the Truth Commission.
(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested
the Truth Commission with quasi-judicial powers duplicating, if not superseding, those of the
Office of the Ombudsman created under the 1987 Constitution and the Department of Justice
created under the Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively targets for
investigation and prosecution officials and personnel of the previous administration as if
corruption is their peculiar species even as it excludes those of the other administrations, past
and present, who may be indictable.
(e) The creation of the Philippine Truth Commission of 2010 violates the consistent
and general international practice of four decades wherein States constitute truth commissions
to exclusively investigate human rights violations, which customary practice forms part of the
generally accepted principles of international law which the Philippines is mandated to adhere
to pursuant to the Declaration of Principles enshrined in the Constitution.
(f) The creation of the Truth Commission is an exercise in futility, an adventure in
partisan hostility, a launching pad for trial/conviction by publicity and a mere populist
propaganda to mistakenly impress the people that widespread poverty will altogether vanish if
corruption is eliminated without even addressing the other major causes of poverty
(g) The mere fact that previous commissions were not constitutionally challenged is of
no moment because neither laches nor estoppel can bar an eventual question on the
constitutionality and validity of an executive issuance or even a statute. [13]
In their Consolidated Comment,[14] the respondents, through the Office of the Solicitor
General (OSG), essentially questioned the legal standing of petitioners and defended the assailed executive
order with the following arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to create a public office
because the Presidents executive power and power of control necessarily include the inherent
power to conduct investigations to ensure that laws are faithfully executed and that, in any
event, the Constitution, Revised Administrative Code of 1987 (E.O. No. 292), [15] Presidential
Decree (P.D.) No. 1416[16] (as amended by P.D. No. 1772), R.A. No. 9970,[17] and settled
jurisprudence that authorize the President to create or form such bodies.
2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because
there is no appropriation but a mere allocation of funds already appropriated by Congress.
3] The Truth Commission does not duplicate or supersede the functions of the Office of
the Ombudsman (Ombudsman) and the Department of Justice (DOJ), because it is a fact-
finding body and not a quasi-judicial body and its functions do not duplicate, supplant or erode
the latters jurisdiction.
4] The Truth Commission does not violate the equal protection clause because it was
validly created for laudable purposes.
The OSG then points to the continued existence and validity of other executive orders and presidential
issuances creating similar bodies to justify the creation of the PTC such as Presidential Complaint and Action
Commission (PCAC) by President Ramon B. Magsaysay, Presidential Committee on Administrative Performance
Efficiency (PCAPE) by President Carlos P. Garcia and Presidential Agency on Reform and Government
Operations (PARGO) by President Ferdinand E. Marcos.[18]
From the petitions, pleadings, transcripts, and memoranda, the following are the principal issues to be
resolved:
1. Whether or not the petitioners have the legal standing to file their
respective petitions and question Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates the principle of
separation of powers by usurping the powers of Congress to create and to appropriate funds
for public offices, agencies and commissions;
3. Whether or not Executive Order No. 1 supplants the powers of the Ombudsman
and the DOJ;
4. Whether or not Executive Order No. 1 violates the equal protection clause; and
5. Whether or not petitioners are entitled to injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the Court needs to
ascertain whether the requisites for a valid exercise of its power of judicial review are present.
Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit:
(1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person
challenging the act must have the standing to question the validity of the subject act or issuance; otherwise
stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest
opportunity; and (4) the issue of constitutionality must be the very lis motaof the case.[19]
Among all these limitations, only the legal standing of the petitioners has been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators to file their petition for failure to
demonstrate their personal stake in the outcome of the case. It argues that the petitioners have not shown that
they have sustained or are in danger of sustaining any personal injury attributable to the creation of the PTC.
Not claiming to be the subject of the commissions investigations, petitioners will not sustain injury in its creation
or as a result of its proceedings.[20]
The Court disagrees with the OSG in questioning the legal standing of the petitioners-legislators to
assail Executive Order No. 1. Evidently, their petition primarily invokes usurpation of the power of the Congress
as a body to which they belong as members. This certainly justifies their resolve to take the cudgels for Congress
as an institution and present the complaints on the usurpation of their power and rights as members of the
legislature before the Court. As held in Philippine Constitution Association v. Enriquez,[21]
To the extent the powers of Congress are impaired, so is the power of each member
thereof, since his office confers a right to participate in the exercise of the powers of that
institution.
An act of the Executive which injures the institution of Congress causes a derivative
but nonetheless substantial injury, which can be questioned by a member of Congress. In such
a case, any member of Congress can have a resort to the courts.
Indeed, legislators have a legal standing to see to it that the prerogative, powers and privileges vested
by the Constitution in their office remain inviolate. Thus, they are allowed to question the validity of any official
action which, to their mind, infringes on their prerogatives as legislators. [22]
With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to question the
creation of the PTC and the budget for its operations.[23] It emphasizes that the funds to be used for the creation
and operation of the commission are to be taken from those funds already appropriated by Congress. Thus, the
allocation and disbursement of funds for the commission will not entail congressional action but will simply be an
exercise of the Presidents power over contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in danger of
sustaining, any personal and direct injury attributable to the implementation of Executive Order No. 1. Nowhere
in his petition is an assertion of a clear right that may justify his clamor for the Court to exercise judicial power
and to wield the axe over presidential issuances in defense of the Constitution. The case of David v.
Arroyo[24] explained the deep-seated rules on locus standi. Thus:
Locus standi is defined as a right of appearance in a court of justice on a given
question. In private suits, standing is governed by the real-parties-in interest rule as contained
in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that every
action must be prosecuted or defended in the name of the real party in
interest. Accordingly, the real-party-in interest is the party who stands to be benefited or
injured by the judgment in the suit or the party entitled to the avails of the suit. Succinctly put,
the plaintiffs standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who
asserts a public right in assailing an allegedly illegal official action, does so as a representative
of the general public. He may be a person who is affected no differently from any other
person. He could be suing as a stranger, or in the category of a citizen, or taxpayer. In either
case, he has to adequately show that he is entitled to seek judicial protection. In other words,
he has to make out a sufficient interest in the vindication of the public order and the securing of
relief as a citizen or taxpayer.
Case law in most jurisdictions now allows both citizen and taxpayer standing in public
actions. The distinction was first laid down in Beauchamp v. Silk, where it was held that the
plaintiff in a taxpayers suit is in a different category from the plaintiff in a citizens suit. In the
former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but
the mere instrument of the public concern.As held by the New York Supreme Court in People
ex rel Case v. Collins: In matter of mere public right, howeverthe people are the real partiesIt is
at least the right, if not the duty, of every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance be remedied. With respect to
taxpayers suits, Terr v. Jordan held that the right of a citizen and a taxpayer to maintain an
action in courts to restrain the unlawful use of public funds to his injury cannot be denied.
However, to prevent just about any person from seeking judicial interference in any
official policy or act with which he disagreed with, and thus hinders the activities of
governmental agencies engaged in public service, the United State Supreme Court laid down
the more stringent direct injury test in Ex Parte Levitt, later reaffirmed in Tileston v.
Ullman. The same Court ruled that for a private individual to invoke the judicial power to
determine the validity of an executive or legislative action, he must show that he has
sustained a direct injury as a result of that action, and it is not sufficient that he has a
general interest common to all members of the public.
This Court adopted the direct injury test in our jurisdiction. In People v. Vera, it held
that the person who impugns the validity of a statute must have a personal and substantial
interest in the case such that he has sustained, or will sustain direct injury as a
result. The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the
Senate, Manila Race Horse Trainers Association v. De la Fuente, Pascual v. Secretary of
Public Works and Anti-Chinese League of the Philippines v. Felix. [Emphases included.
Citations omitted]
Notwithstanding, the Court leans on the doctrine that the rule on standing is a matter of procedure,
hence, can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators when the public
interest so requires, such as when the matter is of transcendental importance, of overreaching significance to
society, or of paramount public interest.[25]
Thus, in Coconut Oil Refiners Association, Inc. v. Torres,[26] the Court held that in cases of paramount
importance where serious constitutional questions are involved, the standing requirements may be relaxed and a
suit may be allowed to prosper even where there is no direct injury to the party claiming the right of judicial
review. In the first Emergency Powers Cases,[27] ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders although they had only an indirect and general interest shared in
common with the public.
The OSG claims that the determinants of transcendental importance [28] laid down in CREBA v. ERC and
Meralco[29] are non-existent in this case. The Court, however, finds reason in Biraogos assertion that the petition
covers matters of transcendental importance to justify the exercise of jurisdiction by the Court. There
are constitutional issues in the petition which deserve the attention of this Court in view of their seriousness,
novelty and weight as precedents. Where the issues are of transcendental and paramount importance not only to
the public but also to the Bench and the Bar, they should be resolved for the guidance of all. [30] Undoubtedly, the
Filipino people are more than interested to know the status of the Presidents first effort to bring about a promised
change to the country. The Court takes cognizance of the petition not due to overwhelming political undertones
that clothe the issue in the eyes of the public, but because the Court stands firm in its oath to perform its
constitutional duty to settle legal controversies with overreaching significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a public office
and not merely an adjunct body of the Office of the President. [31] Thus, in order that the President may create a
public office he must be empowered by the Constitution, a statute or an authorization vested in him by law.
According to petitioner, such power cannot be presumed [32] since there is no provision in the Constitution or any
specific law that authorizes the President to create a truth commission. [33] He adds that Section 31 of the
Administrative Code of 1987, granting the President the continuing authority to reorganize his office, cannot
serve as basis for the creation of a truth commission considering the aforesaid provision merely uses verbs such
as reorganize, transfer, consolidate, merge, and abolish. [34]Insofar as it vests in the President the plenary power
to reorganize the Office of the President to the extent of creating a public office, Section 31 is inconsistent with
the principle of separation of powers enshrined in the Constitution and must be deemed repealed upon the
effectivity thereof.[35]
Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public office lies within
the province of Congress and not with the executive branch of government. They maintain that the delegated
authority of the President to reorganize under Section 31 of the Revised Administrative Code: 1) does not permit
the President to create a public office, much less a truth commission; 2) is limited to the reorganization of the
administrative structure of the Office of the President; 3) is limited to the restructuring of the internal organs of the
Office of the President Proper, transfer of functions and transfer of agencies; and 4) only to achieve simplicity,
economy and efficiency.[36] Such continuing authority of the President to reorganize his office is limited, and by
issuing Executive Order No. 1, the President overstepped the limits of this delegated authority.
The OSG counters that there is nothing exclusively legislative about the creation by the President of a
fact-finding body such as a truth commission. Pointing to numerous offices created by past presidents, it argues
that the authority of the President to create public offices within the Office of the President Proper has long been
recognized.[37] According to the OSG, the Executive, just like the other two branches of government, possesses
the inherent authority to create fact-finding committees to assist it in the performance of its constitutionally
mandated functions and in the exercise of its administrative functions. [38] This power, as the OSG explains it, is
but an adjunct of the plenary powers wielded by the President under Section 1 and his power of control under
Section 17, both of Article VII of the Constitution.[39]
It contends that the President is necessarily vested with the power to conduct fact-finding investigations,
pursuant to his duty to ensure that all laws are enforced by public officials and employees of his department and
in the exercise of his authority to assume directly the functions of the executive department, bureau and office, or
interfere with the discretion of his officials.[40] The power of the President to investigate is not limited to the
exercise of his power of control over his subordinates in the executive branch, but extends further in the exercise
of his other powers, such as his power to discipline subordinates, [41] his power for rule making, adjudication and
licensing purposes[42] and in order to be informed on matters which he is entitled to know. [43]
The OSG also cites the recent case of Banda v. Ermita,[44] where it was held that the President has the
power to reorganize the offices and agencies in the executive department in line with his constitutionally granted
power of control and by virtue of a valid delegation of the legislative power to reorganize executive offices under
existing statutes.
Thus, the OSG concludes that the power of control necessarily includes the power to create offices. For
the OSG, the President may create the PTC in order to, among others, put a closure to the reported large scale
graft and corruption in the government.[45]
The question, therefore, before the Court is this: Does the creation of the PTC fall within the ambit of the
power to reorganize as expressed in Section 31 of the Revised Administrative Code? Section 31 contemplates
reorganization as limited by the following functional and structural lines: (1) restructuring the internal organization
of the Office of the President Proper by abolishing, consolidating or merging units thereof or transferring
functions from one unit to another; (2) transferring any function under the Office of the President to any other
Department/Agency or vice versa; or (3) transferring any agency under the Office of the President to any other
Department/Agency or vice versa. Clearly, the provision refers to reduction of personnel, consolidation of offices,
or abolition thereof by reason of economy or redundancy of functions. These point to situations where a body or
an office is already existent but a modification or alteration thereof has to be effected. The creation of an office is
nowhere mentioned, much less envisioned in said provision. Accordingly, the answer to the question is in the
negative.
To say that the PTC is borne out of a restructuring of the Office of the President under Section 31 is a
misplaced supposition, even in the plainest meaning attributable to the term restructure an alteration of an
existing structure. Evidently, the PTC was not part of the structure of the Office of the President prior to the
enactment of Executive Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon. Executive Secretary,[46]
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. [Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the Presidents power of control. Control is
essentially the power 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 with that of the latter. [47] Clearly, the power
of control is entirely different from the power to create public offices. The former is inherent in the Executive,
while the latter finds basis from either a valid delegation from Congress, or his inherent duty to faithfully execute
the laws.
The question is this, is there a valid delegation of power from Congress, empowering the President to
create a public office?
According to the OSG, the power to create a truth commission pursuant to the above provision finds
statutory basis under P.D. 1416, as amended by P.D. No. 1772. [48] The said law granted the President the
continuing authority to reorganize the national government, including the power to group, consolidate bureaus
and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities,
transfer appropriations, and to standardize salaries and materials. This decree, in relation to Section 20, Title I,
Book III of E.O. 292 has been invoked in several cases such as Larin v. Executive Secretary.[49]
The Court, however, declines to recognize P.D. No. 1416 as a justification for the President to create a
public office. Said decree is already stale, anachronistic and inoperable. P.D. No. 1416 was a delegation to then
President Marcos of the authority to reorganize the administrative structure of the national government including
the power to create offices and transfer appropriations pursuant to one of the purposes of the decree, embodied
in its last Whereas clause:
WHEREAS, the transition towards the parliamentary form of government will
necessitate flexibility in the organization of the national government.
Clearly, as it was only for the purpose of providing manageability and resiliency during the interim, P.D.
No. 1416, as amended by P.D. No. 1772, became functus oficio upon the convening of the First Congress, as
expressly provided in Section 6, Article XVIII of the 1987 Constitution. In fact, even the Solicitor General agrees
with this view. Thus:
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last whereas
clause of P.D. 1416 says it was enacted to
prepare the transition from presidential to
parliamentary. Now, in a parliamentary form of
government, the legislative and executive
powers are fused, correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued. Now would you
agree with me that P.D. 1416 should not be
considered effective anymore upon the
promulgation, adoption, ratification of the 1987
Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize the entire National
Government is deemed repealed, at least,
upon the adoption of the 1987 Constitution,
correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.[50]
While the power to create a truth commission cannot pass muster on the basis of P.D. No. 1416 as amended by
P.D. No. 1772, the creation of the PTC finds justification under Section 17, Article VII of the Constitution,
imposing upon the President the duty to ensure that the laws are faithfully executed. Section 17 reads:
Section 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed. (Emphasis
supplied).
As correctly pointed out by the respondents, the allocation of power in the three principal branches of
government is a grant of all powers inherent in them. The Presidents power to conduct investigations to aid him
in ensuring the faithful execution of laws in this case, fundamental laws on public accountability and transparency
is inherent in the Presidents powers as the Chief Executive. That the authority of the President to conduct
investigations and to create bodies to execute this power is not explicitly mentioned in the Constitution or in
statutes does not mean that he is bereft of such authority. [51] As explained in the landmark case of Marcos v.
Manglapus:[52]
x x x. The 1987 Constitution, however, brought back the presidential system of
government and restored the separation of legislative, executive and judicial powers by their
actual distribution among three distinct branches of government with provision for checks and
balances.
It would not be accurate, however, to state that "executive power" is the power to
enforce the laws, for the President is head of state as well as head of government and
whatever powers inhere in such positions pertain to the office unless the Constitution itself
withholds it. Furthermore, the Constitution itself provides that the execution of the laws is only
one of the powers of the President. It also grants the President other powers that do not
involve the execution of any provision of law, e.g., his power over the country's foreign
relations.
On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the President, it maintains intact what is
traditionally considered as within the scope of "executive power." Corollarily, the powers of the
President cannot be said to be limited only to the specific powers enumerated in the
Constitution. In other words, executive power is more than the sum of specific powers so
enumerated.
It has been advanced that whatever power inherent in the government that is neither
legislative nor judicial has to be executive. x x x.
Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above,
the powers of the President are not limited to those specific powers under the Constitution. [53]One of the
recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to
create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been
faithfully executed. Thus, in Department of Health v. Camposano,[54] the authority of the President to issue
Administrative Order No. 298, creating an investigative committee to look into the administrative charges filed
against the employees of the Department of Health for the anomalous purchase of medicines was upheld. In said
case, it was ruled:
The Chief Executives power to create the Ad hoc Investigating Committee cannot be
doubted. Having been constitutionally granted full control of the Executive Department, to
which respondents belong, the President has the obligation to ensure that all executive officials
and employees faithfully comply with the law. With AO 298 as mandate, the legality of the
investigation is sustained. Such validity is not affected by the fact that the investigating team
and the PCAGC had the same composition, or that the former used the offices and facilities of
the latter in conducting the inquiry. [Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow an
inquiry into matters which the President is entitled to know so that he can be properly advised and guided in the
performance of his duties relative to the execution and enforcement of the laws of the land. And if history is to be
revisited, this was also the objective of the investigative bodies created in the past like the PCAC, PCAPE,
PARGO, the Feliciano Commission, the Melo Commission and the Zenarosa Commission. There being no
changes in the government structure, the Court is not inclined to declare such executive power as non-existent
just because the direction of the political winds have changed.
On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate funds for
the operation of a public office, suffice it to say that there will be no appropriation but only an allotment or
allocations of existing funds already appropriated. Accordingly, there is no usurpation on the part of the
Executive of the power of Congress to appropriate funds. Further, there is no need to specify the amount to be
earmarked for the operation of the commission because, in the words of the Solicitor General, whatever funds
the Congress has provided for the Office of the President will be the very source of the funds for the
commission.[55] Moreover, since the amount that would be allocated to the PTC shall be subject to existing
auditing rules and regulations, there is no impropriety in the funding.
Power of the Truth Commission to Investigate
The Presidents power to conduct investigations to ensure that laws are faithfully executed is well
recognized. It flows from the faithful-execution clause of the Constitution under Article VII, Section 17
thereof.[56] As the Chief Executive, the president represents the government as a whole and sees to it that all
laws are enforced by the officials and employees of his department. He has the authority to directly assume the
functions of the executive department.[57]
Invoking this authority, the President constituted the PTC to primarily investigate reports of graft and corruption
and to recommend the appropriate action. As previously stated, no quasi-judicial powers have been vested in the
said body as it cannot adjudicate rights of persons who come before it. It has been said that Quasi-judicial
powers involve the power to hear and determine questions of fact to which the legislative policy is to apply and to
decide in accordance with the standards laid down by law itself in enforcing and administering the same
law.[58] In simpler terms, judicial discretion is involved in the exercise of these quasi-judicial power, such that it is
exclusively vested in the judiciary and must be clearly authorized by the legislature in the case of administrative
agencies.
The distinction between the power to investigate and the power to adjudicate was delineated by the
Court in Cario v. Commission on Human Rights.[59] Thus:
"Investigate," commonly understood, means to examine, explore, inquire or delve or
probe into, research on, study. The dictionary definition of "investigate" is "to observe or study
closely: inquire into systematically: "to search or inquire into: x x to subject to an official probe x
x: to conduct an official inquiry." The purpose of investigation, of course, is to discover, to find
out, to learn, obtain information. Nowhere included or intimated is the notion of settling,
deciding or resolving a controversy involved in the facts inquired into by application of the law
to the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step
by patient inquiry or observation. To trace or track; to search into; to examine and inquire into
with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a
legal inquiry;" "to inquire; to make an investigation," "investigation" being in turn described as
"(a)n administrative function, the exercise of which ordinarily does not require a hearing. 2 Am
J2d Adm L Sec. 257; x x an inquiry, judicial or otherwise, for the discovery and collection of
facts concerning a certain matter or matters."
"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge,
decide, determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally
(the rights and duties of the parties to a court case) on the merits of issues raised: x x to pass
judgment on: settle judicially: x x act as judge." And "adjudge" means "to decide or rule upon
as a judge or with judicial or quasi-judicial powers: x x to award or grant judicially in a case of
controversy x x."
In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority.
To determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means:
"To pass on judicially, to decide, settle or decree, or to sentence or condemn. x x. Implies a
judicial determination of a fact, and the entry of a judgment." [Italics included. Citations
Omitted]
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 resolved authoritatively, finally and definitively,
subject to appeals or modes of review as may be provided by law. [60] Even respondents themselves admit that
the commission is bereft of any quasi-judicial power.[61]
Contrary to petitioners apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their
respective powers. If at all, the investigative function of the commission will complement those of the two
offices. As pointed out by the Solicitor General, the recommendation to prosecute is but a consequence of the
overall task of the commission to conduct a fact-finding investigation.[62] The actual prosecution of suspected
offenders, much less adjudication on the merits of the charges against them, [63] is certainly not a function given to
the commission. The phrase, when in the course of its investigation, under Section 2(g), highlights this fact and
gives credence to a contrary interpretation from that of the petitioners. The function of determining probable
cause for the filing of the appropriate complaints before the courts remains to be with the DOJ and the
Ombudsman.[64]
At any rate, the Ombudsmans power to investigate under R.A. No. 6770 is not exclusive but is shared with other
similarly authorized government agencies. Thus, in the case of Ombudsman v. Galicia,[65] it was written:
This power of investigation granted to the Ombudsman by the 1987 Constitution and The
Ombudsman Act is not exclusive but is shared with other similarly authorized
government agencies such as the PCGG and judges of municipal trial courts and municipal
circuit trial courts. The power to conduct preliminary investigation on charges against public
employees and officials is likewise concurrently shared with the Department of Justice. Despite
the passage of the Local Government Code in 1991, the Ombudsman retains concurrent
jurisdiction with the Office of the President and the local Sanggunians to investigate complaints
against local elective officials. [Emphasis supplied].
Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to investigate criminal cases under
Section 15 (1) of R.A. No. 6770, which states:
(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. [Emphases supplied]
The act of investigation by the Ombudsman as enunciated above contemplates the conduct of a
preliminary investigation or the determination of the existence of probable cause. This is categorically out of the
PTCs sphere of functions. Its power to investigate is limited to obtaining facts so that it can advise and guide the
President in the performance of his duties relative to the execution and enforcement of the laws of the land. In
this regard, the PTC commits no act of usurpation of the Ombudsmans primordial duties.
The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter 1, Title III, Book IV in the
Revised Administrative Code is by no means exclusive and, thus, can be shared with a body likewise tasked to
investigate the commission of crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are to be accorded
conclusiveness. Much like its predecessors, the Davide Commission, the Feliciano Commission and the
Zenarosa Commission, its findings would, at best, be recommendatory in nature. And being so, the Ombudsman
and the DOJ have a wider degree of latitude to decide whether or not to reject the recommendation. These
offices, therefore, are not deprived of their mandated duties but will instead be aided by the reports of the PTC
for possible indictments for violations of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the investigative power of the President, the
Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent
transgression of the equal protection clause enshrined in Section 1, Article III (Bill of Rights) of the 1987
Constitution. Section 1 reads:
Section 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.
The petitioners assail Executive Order No. 1 because it is violative of this constitutional safeguard. They
contend that it does not apply equally to all members of the same class such that the intent of singling out the
previous administration as its sole object makes the PTC an adventure in partisan hostility. [66] Thus, in order to
be accorded with validity, the commission must also cover reports of graft and corruption in virtually all
administrations previous to that of former President Arroyo. [67]
The petitioners argue that the search for truth behind the reported cases of graft and corruption must
encompass acts committed not only during the administration of former President Arroyo but also during prior
administrations where the same magnitude of controversies and anomalies [68] were reported to have been
committed against the Filipino people. They assail the classification formulated by the respondents as it does not
fall under the recognized exceptions because first, there is no substantial distinction between the group of
officials targeted for investigation by Executive Order No. 1 and other groups or persons who abused their public
office for personal gain; and second, the selective classification is not germane to the purpose of Executive
Order No. 1 to end corruption.[69] In order to attain constitutional permission, the petitioners advocate that the
commission should deal with graft and grafters prior and subsequent to the Arroyo administration with the strong
arm of the law with equal force.[70]
Position of respondents
According to respondents, while Executive Order No. 1 identifies the previous administration as the
initial subject of the investigation, following Section 17 thereof, the PTC will not confine itself to cases of large
scale graft and corruption solely during the said administration. [71] Assuming arguendo that the commission
would confine its proceedings to officials of the previous administration, the petitioners argue that no offense is
committed against the equal protection clause for the segregation of the transactions of public officers during the
previous administration as possible subjects of investigation is a valid classification based on substantial
distinctions and is germane to the evils which the Executive Order seeks to correct. [72] To distinguish the Arroyo
administration from past administrations, it recited the following:
First. E.O. No. 1 was issued in view of widespread reports of large scale graft and
corruption in the previous administration which have eroded public confidence in public
institutions.There is, therefore, an urgent call for the determination of the truth regarding
certain reports of large scale graft and corruption in the government and to put a closure to
them by the filing of the appropriate cases against those involved, if warranted, and to deter
others from committing the evil, restore the peoples faith and confidence in the Government
and in their public servants.
Second. The segregation of the preceding administration as the object of fact-finding
is warranted by the reality that unlike with administrations long gone, the current administration
will most likely bear the immediate consequence of the policies of the previous administration.
Third. The classification of the previous administration as a separate class for
investigation lies in the reality that the evidence of possible criminal activity, the evidence that
could lead to recovery of public monies illegally dissipated, the policy lessons to be learned to
ensure that anti-corruption laws are faithfully executed, are more easily established in the
regime that immediately precede the current administration.
Fourth. Many administrations subject the transactions of their predecessors to
investigations to provide closure to issues that are pivotal to national life or even as a routine
measure of due diligence and good housekeeping by a nascent administration like the
Presidential Commission on Good Government (PCGG), created by the late President
Corazon C. Aquino under Executive Order No. 1 to pursue the recovery of ill-gotten wealth of
her predecessor former President Ferdinand Marcos and his cronies, and
the Saguisag Commission created by former President Joseph Estrada under Administrative
Order No, 53, to form an ad-hoc and independent citizens committee to investigate all the facts
and circumstances surrounding Philippine Centennial projects of his predecessor, former
President Fidel V. Ramos.[73] [Emphases supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded is that of the equality of right which
is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced in the
concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has
been embodied in a separate clause, however, to provide for a more specific guaranty against any form of undue
favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due
process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper
weapon to cut it down is the equal protection clause.[74]
According to a long line of decisions, equal protection simply requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and responsibilities imposed. [75] It requires public
bodies and institutions to treat similarly situated individuals in a similar manner. [76] The purpose of the equal
protection clause is to secure every person within a states jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statue or by its improper execution through the
states duly constituted authorities.[77] In other words, the concept of equal justice under the law requires the state
to govern impartially, and it may not draw distinctions between individuals solely on differences that are irrelevant
to a legitimate governmental objective.[78]
The equal protection clause is aimed at all official state actions, not just those of the legislature.[79] Its
inhibitions cover all the departments of the government including the political and executive departments, and
extend to all actions of a state denying equal protection of the laws, through whatever agency or whatever guise
is taken. [80]
It, however, does not require the universal application of the laws to all persons or things without
distinction. What it simply requires is equality among equals as determined according to a valid classification.
Indeed, the equal protection clause permits classification. Such classification, however, to be valid must pass the
test of reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It
is germane to the purpose of the law; (3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.[81] Superficial differences do not make for a valid
classification.[82]
For a classification to meet the requirements of constitutionality, it must include or embrace all persons
who naturally belong to the class.[83] The classification will be regarded as invalid if all the members of the class
are not similarly treated, both as to rights conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that the members of the class should possess the
same characteristics in equal degree. Substantial similarity will suffice; and as long as this is achieved, all those
covered by the classification are to be treated equally. The mere fact that an individual belonging to a class
differs from the other members, as long as that class is substantially distinguishable from all others, does not
justify the non-application of the law to him.[84]
The classification must not be based on existing circumstances only, or so constituted as to preclude
addition to the number included in the class. It must be of such a nature as to embrace all those who may
thereafter be in similar circumstances and conditions. It must not leave out or underinclude those that should
otherwise fall into a certain classification. As elucidated in Victoriano v. Elizalde Rope Workers' Union[85] and
reiterated in a long line of cases,[86]
The guaranty of equal protection of the laws is not a guaranty of equality in the
application of the laws upon all citizens of the state. It is not, therefore, a requirement, in order
to avoid the constitutional prohibition against inequality, that every man, woman and child
should be affected alike by a statute. Equality of operation of statutes does not mean
indiscriminate operation on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution
does not require that things which are different in fact be treated in law as though they were the
same. The equal protection clause does not forbid discrimination as to things that are different.
It does not prohibit legislation which is limited either in the object to which it is directed or by
the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification
in law, as in the other departments of knowledge or practice, is the grouping of things in
speculation or practice because they agree with one another in certain particulars. A law is not
invalid because of simple inequality. The very idea of classification is that of inequality, so that
it goes without saying that the mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that it be reasonable, which
means that the classification should be based on substantial distinctions which make for real
differences, that it must be germane to the purpose of the law; that it must not be limited to
existing conditions only; and that it must apply equally to each member of the class. This Court
has held that the standard is satisfied if the classification or distinction is based on a
reasonable foundation or rational basis and is not palpably arbitrary. [Citations omitted]
Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the
equal protection clause. The clear mandate of the envisioned truth commission is to investigate and find out the
truth concerning the reported cases of graft and corruption during the previous administration[87] only. The intent
to single out the previous administration is plain, patent and manifest. Mention of it has been made in at least
three portions of the questioned executive order. Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely to investigating and finding
out the truth concerning the reported cases of graft and corruption during the previous
administration, and which will recommend the prosecution of the offenders and secure justice
for all;
SECTION 1. Creation of a Commission. There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the COMMISSION, which shall primarily seek and
find the truth on, and toward this end, investigate reports of graft and corruption of such scale
and magnitude that shock and offend the moral and ethical sensibilities of the people,
committed by public officers and employees, their co-principals, accomplices and accessories
from the private sector, if any, during the previous administration; and thereafter recommend
the appropriate action or measure to be taken thereon to ensure that the full measure of justice
shall be served without fear or favor.
SECTION 2. Powers and Functions. The Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is
primarily tasked to conduct a thorough fact-finding investigation of reported cases of graft and
corruption referred to in Section 1, involving third level public officers and higher, their co-
principals, accomplices and accessories from the private sector, if any, during the previous
administration and thereafter submit its finding and recommendations to the President,
Congress and the Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class,
that is, a class of past administrations. It is not a class of its own. Not to include past administrations similarly
situated constitutes arbitrariness which the equal protection clause cannot sanction. Such discriminating
differentiation clearly reverberates to label the commission as a vehicle for vindictiveness and selective
retribution.
Though the OSG enumerates several differences between the Arroyo administration and other past
administrations, these distinctions are not substantial enough to merit the restriction of the investigation to the
previous administration only. The reports of widespread corruption in the Arroyo administration cannot be taken
as basis for distinguishing said administration from earlier administrations which were also blemished by similar
widespread reports of impropriety. They are not inherent in, and do not inure solely to, the Arroyo administration.
As Justice Isagani Cruz put it, Superficial differences do not make for a valid classification. [88]
The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope of the
intended investigation to the previous administration only. The OSG ventures to opine that to include other past
administrations, at this point, may unnecessarily overburden the commission and lead it to lose its
effectiveness.[89] The reason given is specious. It is without doubt irrelevant to the legitimate and noble objective
of the PTC to stamp out or end corruption and the evil it breeds. [90]
The probability that there would be difficulty in unearthing evidence or that the earlier reports involving
the earlier administrations were already inquired into is beside the point. Obviously, deceased presidents and
cases which have already prescribed can no longer be the subjects of inquiry by the PTC. Neither is the PTC
expected to conduct simultaneous investigations of previous administrations, given the bodys limited time and
resources. The law does not require the impossible (Lex non cogit ad impossibilia).[91]
Given the foregoing physical and legal impossibility, the Court logically recognizes the unfeasibility of
investigating almost a centurys worth of graft cases. However, the fact remains that Executive Order No. 1
suffers from arbitrary classification. The PTC, to be true to its mandate of searching for the truth, must not
exclude the other past administrations. The PTC must, at least, have the authority to investigate all past
administrations. While reasonable prioritization is permitted, it should not be arbitrary lest it be struck down for
being unconstitutional. In the often quoted language of Yick Wo v. Hopkins,[92]
Though the law itself be fair on its face and impartial in appearance, yet, if applied
and administered by public authority with an evil eye and an unequal hand, so as practically to
make unjust and illegal discriminations between persons in similar circumstances, material to
their rights, the denial of equal justice is still within the prohibition of the
constitution. [Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court,
however, is of the considered view that although its focus is restricted, the constitutional guarantee of equal
protection under the laws should not in any way be circumvented. The Constitution is the fundamental and
paramount law of the nation to which all other laws must conform and in accordance with which all private rights
determined and all public authority administered. [93] Laws that do not conform to the Constitution should be
stricken down for being unconstitutional.[94] While the thrust of the PTC is specific, that is, for investigation of acts
of graft and corruption, Executive Order No. 1, to survive, must be read together with the provisions of the
Constitution. To exclude the earlier administrations in the guise of substantial distinctions would only confirm the
petitioners lament that the subject executive order is only an adventure in partisan hostility. In the case of US v.
Cyprian,[95] it was written: A rather limited number of such classifications have routinely been held or assumed to
be arbitrary; those include: race, national origin, gender, political activity or membership in a political party, union
activity or membership in a labor union, or more generally the exercise of first amendment rights.
 To reiterate, in order for a classification to meet the requirements of constitutionality, it must include or
embrace all persons who naturally belong to the class. [96] Such a classification must not be based on existing
circumstances only, or so constituted as to preclude additions to the number included within a class, but must be
of such a nature as to embrace all those who may thereafter be in similar circumstances and
conditions. Furthermore, all who are in situations and circumstances which are relative to the discriminatory
legislation and which are indistinguishable from those of the members of the class must be brought under the
influence of the law and treated by it in the same way as are the members of the class. [97]
The Court is not unaware that mere under inclusiveness is not fatal to the validity of a law under the
equal protection clause.[98] Legislation is not unconstitutional merely because it is not all-embracing and does not
include all the evils within its reach.[99] It has been written that a regulation challenged under the equal protection
clause is not devoid of a rational predicate simply because it happens to be incomplete. [100] In several instances,
the under inclusiveness was not considered a valid reason to strike down a law or regulation where the purpose
can be attained in future legislations or regulations. These cases refer to the step by step process. [101] With
regard to equal protection claims, a legislature does not run the risk of losing the entire remedial scheme simply
because it fails, through inadvertence or otherwise, to cover every evil that might conceivably have been
attacked.[102]
In Executive Order No. 1, however, there is no inadvertence. That the previous administration was
picked out was deliberate and intentional as can be gleaned from the fact that it was underscored at least three
times in the assailed executive order. It must be noted that Executive Order No. 1 does not even mention any
particular act, event or report to be focused on unlike the investigative commissions created in the past. The
equal protection clause is violated by purposeful and intentional discrimination. [103]
To disprove petitioners contention that there is deliberate discrimination, the OSG clarifies that the
commission does not only confine itself to cases of large scale graft and corruption committed during the
previous administration.[104] The OSG points to Section 17 of Executive Order No. 1, which provides:
SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the
President there is a need to expand the mandate of the Commission as defined in Section 1
hereof to include the investigation of cases and instances of graft and corruption during the
prior administrations, such mandate may be so extended accordingly by way of a
supplemental Executive Order.
The Court is not convinced. Although Section 17 allows the President the discretion to expand the
scope of investigations of the PTC so as to include the acts of graft and corruption committed in other past
administrations, it does not guarantee that they would be covered in the future. Such expanded mandate of the
commission will still depend on the whim and caprice of the President. If he would decide not to include them, the
section would then be meaningless. This will only fortify the fears of the petitioners that the Executive Order No.
1 was crafted to tailor-fit the prosecution of officials and personalities of the Arroyo administration. [105]
The Court tried to seek guidance from the pronouncement in the case of Virata v.
Sandiganbayan,[106] that the PCGG Charter (composed of Executive Orders Nos. 1, 2 and 14) does not violate
the equal protection clause. The decision, however, was devoid of any discussion on how such conclusory
statement was arrived at, the principal issue in said case being only the sufficiency of a cause of action.
A final word
The issue that seems to take center stage at present is - whether or not the Supreme Court, in the
exercise of its constitutionally mandated power of Judicial Review with respect to recent initiatives of the
legislature and the executive department, is exercising undue interference. Is the Highest Tribunal, which is
expected to be the protector of the Constitution, itself guilty of violating fundamental tenets like the doctrine of
separation of powers? Time and again, this issue has been addressed by the Court, but it seems that the present
political situation calls for it to once again explain the legal basis of its action lest it continually be accused of
being a hindrance to the nations thrust to progress.
The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987 Constitution, is vested
with Judicial Power that includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave of
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government.
Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which is the power to
declare a treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation unconstitutional. This power also includes the duty to rule on the constitutionality of the
application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other
regulations. These provisions, however, have been fertile grounds of conflict between the Supreme Court, on
one hand, and the two co-equal bodies of government, on the other. Many times the Court has been accused of
asserting superiority over the other departments.
To answer this accusation, the words of Justice Laurel would be a good source of enlightenment, to wit:
And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn
and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and
guarantees to them.[107]
Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon a co-equal
body but rather simply making sure that any act of government is done in consonance with the authorities and
rights allocated to it by the Constitution. And, if after said review, the Court finds no constitutional violations of
any sort, then, it has no more authority of proscribing the actions under review. Otherwise, the Court will not be
deterred to pronounce said act as void and unconstitutional.
It cannot be denied that most government actions are inspired with noble intentions, all geared towards
the betterment of the nation and its people. But then again, it is important to remember this ethical principle: The
end does not justify the means. No matter how noble and worthy of admiration the purpose of an act, but if the
means to be employed in accomplishing it is simply irreconcilable with constitutional parameters, then it cannot
still be allowed.[108] The Court cannot just turn a blind eye and simply let it pass. It will continue to uphold the
Constitution and its enshrined principles.
The Constitution must ever remain supreme. All must bow to the mandate of this law.
Expediency must not be allowed to sap its strength nor greed for power debase its rectitude. [109]
Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the
present administration. Perhaps a revision of the executive issuance so as to include the earlier past
administrations would allow it to pass the test of reasonableness and not be an affront to the
Constitution. Of all the branches of the government, it is the judiciary which is the most interested in knowing
the truth and so it will not allow itself to be a hindrance or obstacle to its attainment. It must, however, be
emphasized that the search for the truth must be within constitutional bounds for ours is still a government of
laws and not of men.[110]
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby
declared UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the Constitution.
As also prayed for, the respondents are hereby ordered to cease and desist from carrying out the
provisions of Executive Order No. 1.
SO ORDERED.
 [G.R. No. 149724. August 19, 2003]
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, represented herein by its
Secretary, HEHERSON T. ALVAREZ, petitioner, vs. DENR REGION 12 EMPLOYEES,represented
by BAGUIDALI KARIM, Acting President of COURAGE (DENR Region 12 Chapter), respondents.
DECISION
YNARES-SANTIAGO, J.:
This is a petition for review assailing the Resolutions dated May 31, 2000 [1] of the Court of Appeals which
dismissed the petition for certiorari in CA-G.R. SP No. 58896, and its Resolution dated August 20, 2001 [2], which
denied the motion for reconsideration.
The facts are as follows:
On November 15, 1999, Regional Executive Director of the Department of Environment and Natural
Resources for Region XII, Israel C. Gaddi, issued a Memorandum [3] directing the immediate transfer of the
DENR XII Regional Offices from Cotabato City to Koronadal (formerly Marbel), South Cotabato. The
Memorandum was issued pursuant to DENR Administrative Order No. 99-14, issued by then DENR Secretary
Antonio H. Cerilles, which reads in part:
Subject: Providing for the Redefinition of Functions and Realignment of Administrative Units in the
Regional and Field Offices:
Pursuant to Executive Order No. 192, dated June 10, 1987 and as an interim administrative arrangement to
improve the efficiency and effectiveness of the Department of Environment and Natural Resources (DENR) in
delivering its services pending approval of the government-wide reorganization by Congress, the following
redefinition of functions and realignment of administrative units in the regional and field offices are hereby
promulgated:
Section 1. Realignment of Administrative Units:
The DENR hereby adopts a policy to establish at least one Community Environment and Natural Resources
Office (CENRO) or Administrative Unit per Congressional District except in the Autonomous Region of Muslim
Mindanao (ARMM) and the National Capital Region (NCR). The Regional Executive Directors (REDs) are hereby
authorized to realign/relocate existing CENROs and implement this policy in accordance with the attached
distribution list per region which forms part of this Order. Likewise, the following realignment and administrative
arrangements are hereby adopted:
xxxxxxxxx
1.6. The supervision of the Provinces of South Cotabato and Sarangani shall be transferred from Region XI to
XII.[4]
Respondents, employees of the DENR Region XII who are members of the employees association,
COURAGE, represented by their Acting President, Baguindanai A. Karim, filed with the Regional Trial Court of
Cotabato, a petition for nullity of orders with prayer for preliminary injunction.
On December 8, 1999, the trial court issued a temporary restraining order enjoining petitioner from
implementing the assailed Memorandum. The dispositive portion of the Order reads:
WHEREFORE, defendants DENR Secretary Antonio H. Cerilles and Regional Executive Director Israel C. Gaddi
are hereby ordered to cease and desist from doing the act complained of, namely, to stop the transfer of DENR
[Region] 12 offices from Cotabato City to Korandal (Marbel), South Cotabato.
xxx xxx xxx.
SO ORDERED.[5]
Petitioner filed a Motion for Reconsideration with Motion to Dismiss, raising the following grounds:
I.
The power to transfer the Regional Office of the Department of Environment and Natural Resources (DENR) is
executive in nature.
II.
The decision to transfer the Regional Office is based on Executive Order No. 429, which reorganized Region XII.
III.
The validity of EO 429 has been affirmed by the Honorable Supreme Court in the Case of Chiongbian vs. Orbos
(1995) 245 SCRA 255.
IV.
Since the power to reorganize the Administrative Regions is Executive in Nature citing Chiongbian, the Honorable
Court has no jurisdiction to entertain this petition.[6]
On January 14, 2000, the trial court rendered judgment, the dispositive portion of which reads:
CONSEQUENTLY, order is hereby issued ordering the respondents herein to cease and desist from enforcing
their Memorandum Order dated November 15, 1999 relative to the transfer of the DENR Regional Offices from
Region 12 to Region 11 at Koronadal, South Cotabato for being bereft of legal basis and issued with grave
abuse of discretion amounting to lack or excess of jurisdiction on their part, and they are further ordered to return
back the seat of the DENR Regional Offices 12 to Cotabato City.
SO ORDERED.[7]
Petitioners motion for reconsideration was denied in an Order dated April 10, 2000. A petition
for certiorari under Rule 65 was filed before the Court of Appeals, docketed as CA-G.R. SP No. 58896. The
petition was dismissed outright for: (1) failure to submit a written explanation why personal service was not done
on the adverse party; (2) failure to attach affidavit of service; (3) failure to indicate the material dates when copies
of the orders of the lower court were received; (4) failure to attach certified true copy of the order denying
petitioners motion for reconsideration; (5) for improper verification, the same being based on petitioners
knowledge and belief, and (6) wrong remedy of certiorari under Rule 65 to substitute a lost appeal. [8]
The motion for reconsideration was denied in a resolution dated August 20, 2001. [9] Hence, this petition
based on the following assignment of errors:
I
RULES OF PROCEDURE CAN NOT BE USED TO DEFEAT THE ENDS OF SUBSTANTIAL JUSTICE
II
THE DECISION OF THE LOWER COURT DATED 14 JANUARY 2000 WHICH WAS AFFIRMED IN THE
QUESTIONED RESOLUTIONS OF THE COURT OF APPEALS DATED 31 MAY 2000 AND 20 AUGUST 2001
IS PATENTLY ILLEGAL AND SHOULD BE NULLIFIED, CONSIDERING THAT:
A. RESPONDENTS HAVE NO CAUSE OF ACTION AGAINST PETITIONER AS THEY HAVE
NO RIGHT TO CAUSE THE DENR REGION 12 OFFICE TO REMAIN IN
COTABATO CITY.
B. THE STATE DID NOT GIVE ITS CONSENT TO BE SUED.
C. THE DECISION OF THE LOWER COURT DATED 14 JANUARY 2000 IS CONTRARY TO
THE RULE OF PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF
OFFICIAL FUNCTIONS.
D. IN ANY EVENT, THE DECISION OF THE LOWER COURT DATED 14 JANUARY 2000 IS
CONTRARY TO THE LETTER AND INTENT OF EXECUTIVE ORDER NO. 429 AND
REPUBLIC ACT NO. 6734.
E. THE DETERMINATION OF THE PROPRIETY AND PRACTICALITY OF THE TRANSFER
OF REGIONAL OFFICES IS INHERENTLY EXECUTIVE, AND THEREFORE, NON-
JUSTICIABLE.[10]
In essence, petitioner argues that the trial court erred in enjoining it from causing the transfer of the DENR
XII Regional Offices, considering that it was done pursuant to DENR Administrative Order 99-14.
The issues to be resolved in this petition are: (1) Whether DAO-99-14 and the Memorandum implementing
the same were valid; and (2) Whether the DENR Secretary has the authority to reorganize the DENR.
 Prefatorily, petitioner prays for a liberal application of procedural rules considering the greater interest of
justice.
This Court is fully aware that procedural rules are not to be simply disregarded for these prescribed
procedures ensure an orderly and speedy administration of justice. However, it is equally true that litigation is not
merely a game of technicalities. Time and again, courts have been guided by the principle that the rules of
procedure are not to be applied in a very rigid and technical manner, as rules of procedure are used only to help
secure and not to override substantial justice. [11] Thus, if the application of the Rules would tend to frustrate
rather than promote justice, it is always within the power of this Court to suspend the rules, or except a particular
case from its operation.[12]
Despite the presence of procedural flaws, we find it necessary to address the issues because of the
demands of public interest, including the need for stability in the public service and the serious implications this
case may cause on the effective administration of the executive department. Although no appeal was made
within the reglementary period to appeal, nevertheless, the departure from the general rule that the extraordinary
writ of certiorari cannot be a substitute for the lost remedy of appeal is justified because the execution of the
assailed decision would amount to an oppressive exercise of judicial authority.[13]
Petitioner maintains that the assailed DAO-99-14 and the implementing memorandum were valid and that
the trial court should have taken judicial notice of Republic Act No. 6734, otherwise known as An Organic Act for
the Autonomous Region in Muslim Mindanao, and its implementing Executive Order 429, [14] as the legal bases
for the issuance of the assailed DAO-99-14. Moreover, the validity of R.A. No. 6734 and E.O. 429 were upheld in
the case of Chiongbian v. Orbos.[15] Thus, the respondents cannot, by means of an injunction, force the DENR
XII Regional Offices to remain in Cotabato City, as the exercise of the authority to transfer the same is executive
in nature.
It is apropos to reiterate the elementary doctrine of qualified political agency, thus:
Under this doctrine, which recognizes the establishment of a single executive, 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 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.[16]
This doctrine is corollary to the control power of the President as provided for under Article VII, Section 17
of the 1987 Constitution, which reads:
Sec. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.
However, as head of the Executive Department, the President cannot be expected to exercise his control
(and supervisory) powers personally all the time. He may delegate some of his powers to the Cabinet members
except when he is required by the Constitution to act in person or the exigencies of the situation demand that he
acts personally.[17]
In Buklod ng Kawaning EIIB v. Zamora,[18] this Court upheld the continuing authority of the President to
carry out the reorganization in any branch or agency of the executive department. Such authority includes the
creation, alteration or abolition of public offices. [19] The Chief Executives authority to reorganize the National
Government finds basis in Book III, Section 20 of E.O. No. 292, otherwise known as the Administrative Code of
1987, viz:
Section 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.
Further, in Larin v. Executive Secretary,[20] this Court had occasion to rule:
This provision speaks of such other powers vested in the President under the law. What law then gives him the
power to reorganize? It is Presidential Decree No. 1772 which amended Presidential Decree No. 1416. These
decrees expressly grant the President of the Philippines the continuing authority to reorganize the national
government, which includes the power to group, consolidate bureaus and agencies, to abolish offices, to transfer
functions, to create and classify functions, services and activities and to standardize salaries and materials. The
validity of these two decrees is unquestionable. The 1987 Constitution clearly provides that all laws, decrees,
executive orders, proclamations, letters of instructions and other executive issuances not inconsistent with this
Constitution shall remain operative until amended, repealed or revoked. So far, there is yet no law amending or
repealing said decrees.
Applying the doctrine of qualified political agency, the power of the President to reorganize the National
Government may validly be delegated to his cabinet members exercising control over a particular executive
department. Thus, in DOTC Secretary v. Mabalot,[21] we held that the President through his duly constituted
political agent and alter ego, the DOTC Secretary may legally and validly decree the reorganization of the
Department, particularly the establishment of DOTC-CAR as the LTFRB Regional Office at the Cordillera
Administrative Region, with the concomitant transfer and performance of public functions and responsibilities
appurtenant to a regional office of the LTFRB.
Similarly, in the case at bar, the DENR Secretary can validly reorganize the DENR by ordering the transfer
of the DENR XII Regional Offices from Cotabato City to Koronadal, South Cotabato. The exercise of this
authority by the DENR Secretary, as an alter ego, is presumed to be the acts of the President for the latter had
not expressly repudiated the same.
The trial court should have taken judicial notice of R.A. No. 6734, as implemented by E.O. No. 429, as legal
basis of the Presidents power to reorganize the executive department, specifically those administrative regions
which did not vote for their inclusion in the ARMM. It is axiomatic that a court has the mandate to apply relevant
statutes and jurisprudence in determining whether the allegations in a complaint establish a cause of action.
While it focuses on the complaint, a court clearly cannot disregard decisions material to the proper appreciation
of the questions before it.[22] In resolving the motion to dismiss, the trial court should have taken cognizance of
the official acts of the legislative, executive, and judicial departments because they are proper subjects of
mandatory judicial notice as provided by Section 1 of Rule 129 of the Rules of Court, to wit:
A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of
states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty
and maritime courts of the world and their seals, the political constitution and history of the Philippines, the
official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the
measure of time, and the geographical divisions. (Emphasis supplied)
Article XIX, Section 13 of R.A. No. 6734 provides:
SECTION 13. The creation of the Autonomous Region in Muslim Mindanao shall take effect when approved by a
majority of the votes cast by the constituent units provided in paragraph (2) of Sec. 1 of Article II of this Act in a
plebiscite which shall be held not earlier than ninety (90) days or later than one hundred twenty (120) days after
the approval of this Act: Provided, That only the provinces and cities voting favorably in such plebiscite shall be
included in the Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite do not
vote for inclusion in the Autonomous Region shall remain in the existing administrative regions: Provided,
however, That the President may, by administrative determination, merge the existing regions.
 Pursuant to the authority granted by the aforequoted provision, then President Corazon C. Aquino issued
on October 12, 1990 E.O. 429, Providing for the Reorganization of the Administrative Regions in
Mindanao.Section 4 thereof provides:
SECTION 4. REGION XII, to be known as CENTRAL MINDANAO, shall include the following provinces and
cities:
Provinces
Sultan Kudarat
Cotabato
South Cotabato
Cities
Cotabato
General Santos

The Municipality of Koronadal (Marinduque) in South Cotabato shall serve as the regional center.

In Chiongbian v. Orbos, this Court stressed the rule that the power of the President to reorganize the
administrative regions carries with it the power to determine the regional centers. In identifying the regional
centers, the President purposely intended the effective delivery of the field services of government
agencies.[23] The same intention can be gleaned from the preamble of the assailed DAO-99-14 which the DENR
sought to achieve, that is, to improve the efficiency and effectiveness of the DENR in delivering its services.

It may be true that the transfer of the offices may not be timely considering that: (1) there are no buildings
yet to house the regional offices in Koronadal, (2) the transfer falls on the month of Ramadan, (3) the children of
the affected employees are already enrolled in schools in Cotabato City, (4) the Regional Development Council
was not consulted, and (5) the Sangguniang Panglungsond, through a resolution, requested the DENR Secretary
to reconsider the orders. However, these concern issues addressed to the wisdom of the transfer rather than to
its legality. It is basic in our form of government that the judiciary cannot inquire into the wisdom or expediency of
the acts of the executive or the legislative department, [24] for each department is supreme and independent of the
others, and each is devoid of authority not only to encroach upon the powers or field of action assigned to any of
the other department, but also to inquire into or pass upon the advisability or wisdom of the acts performed,
measures taken or decisions made by the other departments. [25]

The Supreme Court should not be thought of as having been tasked with the awesome responsibility of
overseeing the entire bureaucracy. Unless there is a clear showing of constitutional infirmity or grave abuse of
discretion amounting to lack or excess of jurisdiction, the Courts exercise of the judicial power, pervasive and
limitless it may seem to be, still must succumb to the paramount doctrine of separation of powers. [26] After a
careful review of the records of the case, we find that this jurisprudential element of abuse of discretion has not
been shown to exist.

WHEREFORE, in view of the foregoing, the petition for review is GRANTED. The resolutions of the Court of
Appeals in CA-G.R. SP No. 58896 dated May 31, 2000 and August 20, 2001, as well as the decision dated
January 14, 2000 of the Regional Trial Court of Cotabato City, Branch 15, in Civil Case No 389, are REVERSED
and SET ASIDE. The permanent injunction, which enjoined the petitioner from enforcing the Memorandum Order
of the DENR XII Regional Executive Director, is LIFTED.

SO ORDERED.
 G.R. No. 181293, February 23, 2015 latter committed to provide PNCC with a pre-feasibility study on the proposed MME project. The agreement was
ANA THERESIA “RISA” HONTIVEROS-BARAQUEL, DANIEL L. EDRALIN, VICTOR M. GONZALES, SR., supplemented6 on 14 February 1994 with a related undertaking on the part of CITRA. CITRA was to provide a
JOSE APOLLO R. ADO, RENE D. SORIANO, ALLIANCE OF PROGRESSIVE LABOR, BUKLURAN NG preliminary feasibility study on the Metro Manila Skyways (MMS) project, a system of elevated roadway networks
MANGGAGAWANG PILIPINO, LAHING PILIPINO MULTI-PURPOSE TRANSPORT SERVICE passing through the heart of the Metropolitan Manila area. In order to accelerate the actual implementation of
COOPERATIVE, PNCC SKYWAY CORPORATION EMPLOYEES UNION (PSCEU), AND PNCC TRAFFIC both the MME and the MMS projects, PNCC and CITRA entered into a second agreement. 7 Through that
MANAGEMENT & SECURITY DEPARTMENT WORKERS ORGANIZATION agreement, CITRA committed to finance and undertake the preparation, updating, and revalidation of previous
(PTMSDWO), Petitioners, v. TOLL REGULATORY BOARD, THE SECRETARY OF THE DEPARTMENT OF studies on the construction, operation, and maintenance of the projects.
TRANSPORTATION AND COMMUNICATIONS (DOTC), PNCC SKYWAY CORPORATION, PHILIPPINE
NATIONAL CONSTRUCTION CORPORATION, SKYWAY O & M CORPORATION, AND CITRA METRO As a result of the feasibility and related studies, PNCC and CITRA submitted, through the TRB, a Joint
MANILA TOLLWAYS CORP., Respondents. Investment Proposal (JIP) to the Republic of the Philippines.8 The JIP embodied the implementation schedule for
DECISION the financing, design and construction of the MMS in three stages: the South Metro Manila Skyway, the North
Metro Manila Skyway, and the Central Metro Manila Skyway. 9cralawred
SERENO, C.J.:
This is an original petition for certiorari and prohibition under Rule 65 of the Rules of Court, with a prayer for the The TRB reviewed, evaluated and approved the JIP, particularly as it related to Stage 1, Phases 1 and 2; and
issuance of a writ of preliminary injunction and/or temporary restraining order, seeking the annulment of the Stage 2, Phase 1 of the South Metro Manila Skyway.
following:
1. The Amendment to the Supplemental Toll Operation Agreement executed on 18 July 2007 between the On 30 August 1995, PNCC and CITRA entered into a Business and Joint Venture Agreement 10 and created the
Republic of the Philippines, the Philippine National Construction Corporation, and Citra Metro Manila Citra Metro Manila Tollways Corporation (CMMTC). CMMTC was a joint venture corporation organized under
Tollways Corporation;ChanRoblesVirtualawlibrary Philippine laws to serve as a channel through which CITRA shall participate in the construction and development
2. The Memorandum dated 20 July 2007 of the Secretary of Transportation and Communications, of the project.
approving the Amendment to the Supplemental Toll Operation Agreement;ChanRoblesVirtualawlibrary
3. The Memorandum of Agreement executed on 21 December 2007 between the Philippine National On 27 November 1995, the Republic of the Philippines – through the TRB – as Grantor, CMMTC as Investor,
Construction Corporation, PNCC Skyway Corporation, and Citra Metro Manila Tollways Corporation; and PNCC as Operator executed a Supplemental Toll Operation Agreement (STOA)11 covering Stage 1, Phases
and 1 and 2; and Stage 2, Phase 1 of the South Metro Manila Skyway. Under the STOA, the design and construction
4. The Toll Operation Certificate issued by the Toll Regulatory Board on 28 December 2007 in favor of of the project roads became the primary and exclusive privilege and responsibility of CMMTC. The operation and
Skyway O & M Corporation. maintenance of the project roads became the primary and exclusive privilege and responsibility of the PNCC
Skyway Corporation (PSC), a wholly owned subsidiary of PNCC, which undertook and performed the latter’s
The annulment of the above is sought for being unconstitutional, contrary to law, and grossly disadvantageous to obligations under the STOA.
the government. Petitioners also seek to prohibit Skyway O & M Corporation from assuming operations and
maintenance responsibilities over the Skyway toll facilities.chanroblesvirtuallawlibrary CMMTC completed the design and construction of Stage 1 of the South Metro Manila Skyway, which was
operated and maintained by PSC.12cralawred
ANTECEDENT FACTS
The Toll Regulatory Board (TRB) was created on 31 March 1977 by Presidential Decree No. (P.D.) 1112 1in order On 18 July 2007, the Republic of the Philippines, through the TRB, CMMTC, and PNCC executed the assailed
to supervise and regulate, on behalf of the government, the collection of toll fees and the operation of toll Amendment to the Supplemental Toll Operation Agreement (ASTOA). 13 The ASTOA incorporated the
facilities by the private sector. amendments, revisions, and modifications necessary to cover the design and construction of Stage 2 of the
South Metro Manila Skyway. Also under the ASTOA, Skyway O & M Corporation (SOMCO) replaced PSC in
On the same date, P.D. 11132 was issued granting to the Construction and Development Corporation of the performing the operations and maintenance of Stage 1 of the South Metro Manila Skyway.
Philippines (now Philippine National Construction Corporation or PNCC) the right, privilege, and authority to
construct, operate, and maintain toll facilities in the North and South Luzon Toll Expressways for a period of 30 Pursuant to the authority granted to him under Executive Order No. (E.O.) 497 14 dated 24 January 2006,
years starting 1 May 1977. Department of Transportation and Communications (DOTC) Secretary Leandro Mendoza approved the ASTOA
through the challenged Memorandum dated 20 July 2007. 15cralawred
TRB and PNCC later entered into a Toll Operation Agreement, 3 which prescribed the operating conditions of the
right granted to PNCC under P.D. 1113. On 21 December 2007, PNCC, PSC, and CMMTC entered into the assailed Memorandum of Agreement
(MOA)16 providing for the successful and seamless assumption by SOMCO of the operations and maintenance
P.D. 1113 was amended by P.D. 1894,4 which granted PNCC the right, privilege, and authority to construct, of Stage 1 of the South Metro Manila Skyway. Under the MOA, PSC received the amount of ?320 million which
maintain, and operate the North Luzon, South Luzon and Metro Manila Expressways, together with the toll was used for the settlement of its liabilities arising from the consequent retrenchment or separation of its affected
facilities appurtenant thereto. The term of 30 years provided under P. D. 1113 starting from 1 May 1977 employees.
remained the same for the North and the South Luzon Expressways, while the franchise granted for the Metro
Manila Expressway (MME) provided a term of 30 years commencing from the date of completion of the project. The TRB issued the challenged Toll Operation Certificate (TOC) 17 to SOMCO on 28 December 2007, authorizing
the latter to operate and maintain Stage 1 of the South Metro Manila Skyway effective 10:00 p.m. on 31
On 22 September 1993, PNCC entered into an agreement5 with PT Citra Lamtoro Gung Persada (CITRA), a December 2007.
limited liability company organized and established under the laws of the Republic of Indonesia, whereby the
Meanwhile, on 28 December 2007, petitioner PNCC Traffic Management and Security Department Workers
Organization (PTMSDWO) filed a Notice of Strike against PSC on the ground of unfair labor practice, specifically
union busting.18 The Secretary of Labor and Employment19 assumed jurisdiction over the dispute in an Order
dated 31 December 2007 and set the initial hearing of the case on 2 January 2008. 20cralawred
On 3 January 2008, petitioners PTMSDWO and PNCC Skyway Corporation Employees Union (PSCEU) filed
before the Regional Trial Court of Parañaque City, Branch 258 (RTC), a complaint against respondents TRB,
PNCC, PSC, CMMTC, and SOMCO. The complaint was for injunction and prohibition with a prayer for a writ of
preliminary injunction and/or a temporary restraining order, and sought to prohibit the implementation of the
ASTOA and the MOA, as well as the assumption of the toll operations by SOMCO. 21Petitioners PSCEU and
PTMSDWO also sought the subsequent nullification of the ASTOA and the MOA for being contrary to law and for
being grossly disadvantageous to the government. 22 They later filed an Amended Complaint23 dated 8 January
2008, additionally praying that PSC be allowed to continue the toll operations. With the exception of TRB, all
defendants therein filed their Opposition.
On 23 January 2008, the RTC issued an Order 24 denying the prayer for the issuance of a temporary restraining
order and/or writ of preliminary injunction. According to the RTC, petitioners were seeking to enjoin a national
government infrastructure project. Under Republic Act No. (R.A.) 8975, 25 lower courts are prohibited from issuing
a temporary restraining order or preliminary injunction against the government – or any person or entity acting
under the government’s direction – to restrain the execution, implementation, or operation of any such contract or
project. Furthermore, the RTC ruled that it could no longer issue a temporary restraining order or preliminary
injunction, considering that the act sought to be restrained had already been consummated. 26 The ASTOA, the
MOA, and the assumption of the toll operations by SOMCO took effect at 10:00 p.m. on 31 December 2007,
while petitioners PSCEU and PTMSDWO sought to prohibit their implementation only on 3 January 2008.
In view of its denial of the ancillary prayer, the RTC required defendants to file their respective Answers to the
Amended Complaint.27cralawred
On 28 January 2008, petitioners PSCEU and PTMSDWO filed a Notice of Dismissal with Urgent Ex-Parte Motion
for the Issuance of Order Confirming the Dismissal,28 considering that no Answers had yet been filed. On the
basis thereof, the RTC dismissed the case without prejudice on 29 January 2008. 29cralawred
On 4 February 2008, petitioners filed the instant Petition30 before this Court. On 13 February 2008, we required
respondents to comment on the same.31cralawred
Meanwhile, defendants PNCC32 and PSC33 filed their respective Motions for Partial Reconsideration of the Order
of the RTC dismissing the case without prejudice. Both argued that the RTC should have dismissed the case
with prejudice. They pointed out that petitioners PSCEU and PTMSDWO had acted in bad faith by filing the
complaint before the RTC, despite the pendency of a labor case over which the Secretary of Labor and
Employment had assumed jurisdiction. Defendant CMMTC joined PNCC and PSC in moving for a partial
reconsideration of the RTC Order.34cralawred
The RTC denied the Motions for Partial Reconsideration in an Order dated 13 June 2008. 35cralawred
Before this Court, SOMCO,36 PSC,37 PNCC,38 CMMTC,39 and TRB40 filed their respective Comments on the
Petition.
THE PARTIES’ POSITIONS
Petitioners argue that the franchise for toll operations was exclusively vested by P.D. 1113 in PNCC, which
exercised the powers under its franchise through PSC in accordance with the STOA. By agreeing to the
arrangement whereby SOMCO would replace PSC in the toll operations and management, PNCC seriously
breached the terms and conditions of its undertaking under the franchise and effectively abdicated its rights and
privileges in favor of SOMCO.
Furthermore, the TOC granted to SOMCO was highly irregular and contrary to law, because 1) it did not indicate
the conditions that shall be imposed on SOMCO as provided under P.D. 1112; 41 2) none of the requirements on
public bidding, negotiations, or even publication was complied with before the issuance of the TOC to SOMCO;
3) applying the stricter “grandfather rule,” SOMCO does not qualify as a facility operator as defined under R.A.
6957,42 as amended by R.A. 7718;43 and 4) there were no public notices and hearings conducted wherein all
legitimate issues and concerns about the transfer of the toll operations would have been properly ventilated.
Petitioners also claim that the approval by the DOTC Secretary of the ASTOA could not take the place of the
presidential approval required under P.D. 1113 44 and P.D. 189445 concerning the franchise granted to PNCC.
Finally, petitioners claim that the assumption of the toll operations by SOMCO was grossly disadvantageous to
the government, because 1) for a measly capital investment of P2.5 million, SOMCO stands to earn P400 million
in gross revenues based on official and historical records; 2) with its measly capital, SOMCO would not be able
to cover the direct overhead for personal services in the amount of P226 million as borne out by Commission on
Audit reports; 3) the net revenue from toll operations would go to private shareholders of SOMCO, whereas all
earnings of PSC when it was still in charge of the toll operations went to PNCC – the mother company whose
earnings, as an “acquired-asset corporation,” formed part of the public treasury; 4) the new arrangement would
result in the poor delivery of toll services by SOMCO, which had no proven track record; 5) PSC received only
P320 million as settlement for the transfer of toll operations to SOMCO.
All respondents counter that petitioners do not have the requisite legal standing to file the petition. According to
respondents, petitioner Hontiveros-Baraquel filed the instant petition as a legislator in her capacity as party-list
representative of Akbayan. As such, she was only allowed to sue to question the validity of any official action
when it infringed on her prerogative as a legislator. 46 Presently, she has cited no such prerogative, power, or
privilege that is adversely affected by the assailed acts. 47cralawred
While suing as citizens, the individual petitioners have not shown any personal or substantial interest in the case
indicating that they sustained or will sustain direct injury as a result of the implementation of the assailed
acts.48 The maintenance of the suit by petitioners as taxpayers has no merit either because the assailed acts do
not involve the disbursement of public funds. 49 Finally, the bringing of the suit by petitioners as people’s
organizations does not automatically confer legal standing, especially since petitioner-organizations do not even
allege that they represent their members,50 nor do they cite any particular constitutional provision that has been
violated or disregarded by the assailed acts.51 In fact, the suit raises only issues of contract law, and none of the
petitioners is a party or is privy to the assailed agreements and issuances. 52cralawred
Respondents also argue that petitioners violate the hierarchy of courts. In particular, it is alleged that while lower
courts are prohibited from issuing temporary restraining orders or preliminary injunctions against national
government projects under R.A. 8975, the law does not preclude them from assuming jurisdiction over
complaints that seek the nullification of a national government project as ultimate relief.53cralawred
As a final procedural challenge to the petition, respondents aver that petitioners are guilty of forum shopping.
When petitioners filed the instant petition, the case before the RTC seeking similar reliefs was still pending, as
respondents PNCC, PSC and CMMTC had moved for the partial reconsideration of the RTC’s Order of dismissal
within the reglementary period.54 Furthermore, the instant case and the one before the RTC were filed while
petitioners’ labor grievances seeking similar reliefs were also being heard before the Department of Labor and
Employment.55cralawred
On the merits of the arguments in the petition, respondents argue that nothing in the ASTOA, the approval
thereof by the DOTC Secretary, the MOA, or the TOC was violative of the Constitution.
It is argued that the authority to operate a public utility can be granted by administrative agencies when
authorized by law.56 Under P.D. 1112, the TRB is empowered to grant authority and enter into contracts for the Our Ruling
construction, operation, and maintenance of a toll facility,57 such as the ASTOA in this case. Also, the ASTOA I
was an amendment, not to the legislative franchise of PNCC, but to the STOA previously executed between the Not all petitioners have
Republic of the Philippines through the TRB, PNCC, and CMMTC.58 In fact, PNCC’s franchise was never sold, personality to sue
transferred, or otherwise assigned to SOMCO59 in the same way that PSC’s previous assumption of the Standing is a constitutional law concept allowing suits to be brought not necessarily by parties personally injured
operation and maintenance of the South Metro Manila Skyway did not amount to a sale, transfer or assignment by the operation of a law or official action, but by concerned citizens, taxpayers, or voters who sue in the public
of PNCC’s franchise.60cralawred interest.75 Determining the standing of concerned citizens, taxpayers, or voters requires a partial consideration of
the substantive merit of the constitutional question,76 or at least a preliminary estimate thereof.77cralawred
There can be no valid objection to the approval of the ASTOA by the DOTC Secretary, because he was
authorized by the President to do so by virtue of E.O. 497. 61 Also, the phrase “subject to the approval of the In this case, petitioners raise the power of Congress to grant franchises as a constitutional question. They allege
President of the Philippines” in P.D. 1112 and 1113 does not in any way mean that the presidential approval that the execution of the ASTOA and the MOA, the approval of the ASTOA by the DOTC Secretary and the
must be obtained prior to the execution of a contract, or that the approval be made personally by the issuance of the TOC infringed on the constitutional power of Congress, which has the sole authority to grant
President.62 The presidential approval may be obtained under the doctrine of qualified political franchises for the operation of public utilities.
agency.63cralawred
This Court has had a few occasions to rule that a franchise from Congress is not required before each and every
Respondents argue that there is no merit in the claim that the TOC granted to SOMCO was highly irregular and public utility may operate.78 Unless there is a law that specifically requires a franchise for the operation of a
contrary to law. First, the TOC clearly states that the toll operation and maintenance by SOMCO shall be public utility, particular agencies in the executive branch may issue authorizations and licenses for the operation
regulated by the Republic of the Philippines in accordance with P.D. 1112, the STOA, the toll operations and of certain classes of public utilities.79 In the instant case, there is no law that states that a legislative franchise is
maintenance rules and regulations, and lawful orders, instructions, and conditions that may be imposed from necessary for the operation of toll facilities.
time to time.64 Second, there is no need to comply with the public bidding and negotiation requirements, because
the South Metro Manila Skyway is an ongoing project, not a new one. 65 Furthermore, the STOA, which was the In PAL v. Civil Aeronautics Board,80 this Court enunciated:
basis for the ASTOA, was concluded way before the effectivity of R.A. 918466 in 2003.67cralawred Congress has granted certain administrative agencies the power to grant licenses for, or to authorize the
operation of certain public utilities. With the growing complexity of modern life, the multiplication of the subjects of
Third, SOMCO is a Filipino corporation with substantial 72% Filipino ownership. 68 Fourth, the law requires prior governmental regulation, and the increased difficulty of administering the laws, there is a constantly growing
notice and hearing only in an administrative body’s exercise of quasi-judicial functions.69 In this case, the transfer tendency towards the delegation of greater powers by the legislature, and towards the approval of the practice by
of the toll operations and maintenance to SOMCO was a contractual arrangement entered into in accordance the courts. It is generally recognized that a franchise may be derived indirectly from the state through a duly
with law.70cralawred designated agency, and to this extent, the power to grant franchises has frequently been delegated, even to
agencies other than those of a legislative nature. In pursuance of this, it has been held that privileges conferred
Finally, the assumption of the toll operation and maintenance by SOMCO is not disadvantageous to the by grant by local authorities as agents for the state constitute as much a legislative franchise as though the grant
government. Petitioners belittle the P2.5 million capitalization of SOMCO, considering that PSC’s capitalization at had been made by an act of the Legislature.81cralawlawlibrary
the time it was incorporated was merely P500,000. 71cralawred
It is thus clear that Congress does not have the sole authority to grant franchises for the operation of public
Respondents claim that under the ASTOA, PNCC shall get a direct share in the toll revenues without any utilities. Considering the foregoing, we find that the petition raises no issue of constitutional import. More
corollary obligation, unlike the arrangement in the STOA whereby PNCC’s 10% share in the toll revenues was particularly, no legislative prerogative, power, or privilege has been impaired. Hence, legislators have no
intended primarily for the toll operation and maintenance by PSC. 72cralawred standing to file the instant petition, for they are only allowed to sue to question the validity of any official action
when it infringes on their prerogatives as members of Congress.82 Standing is accorded to them only if there is
Finally, respondents assert that there is no reason to fear that the assumption by SOMCO would result in poor an unmistakable showing that the challenged official act affects or impairs their rights and prerogatives as
delivery of toll services. CITRA and the other shareholders of SOMCO are entities with experience and proven legislators.83cralawred
track record in toll operations.73 Also, SOMCO hired or absorbed more than 300 PSC employees,74 who brought
with them their work expertise and experience In line with our ruling in Kilosbayan, Inc. v. Morato,84 the rule concerning a real party in interest – which is
applicable to private litigation – rather than the liberal rule on standing, should be applied to petitioners.
ISSUES
The instant case shall be resolved on the basis of the following issues: A real party in interest is one who stands to be benefited or injured by the judgment in the suit, or the party
Procedural: entitled to the avails of the suit.85 One’s interest must be personal and not one based on a desire to vindicate the
I. Whether petitioners have standing; constitutional right of some third and unrelated party. 86 The purposes of the rule are to prevent the prosecution of
II. Whether petitioners are guilty of forum-shopping; actions by persons without any right or title to or interest in the case; to require that the actual party entitled to
Substantive: legal relief be the one to prosecute the action; to avoid a multiplicity of suits; and to discourage litigation and
III. Whether the TRB has the power to grant authority to operate a toll facility; keep it within certain bounds, pursuant to sound public policy. 87cralawred
IV. Whether the TOC issued to SOMCO was valid;
V. Whether the approval of the ASTOA by the DOTC Secretary was valid; and At bottom, what is being questioned in the petition is the relinquishment by PSC of the toll operations in favor of
VI. Whether the assumption of toll operations by SOMCO is disadvantageous to the government. SOMCO, effectively leading to the cessation of the former’s business. In this case, we find that among
petitioners, the only real parties in interest are the labor unions PSCEU and PTMSDWO. legality of the retrenchment and separation, and on the presence or absence of bad faith in PSC’s cessation of
business. On the other hand, the complaint before the RTC would require it to focus on the legality of the
PSCEU and PTMSDWO filed the petition not as a representative suit on behalf of their members who are rank- ASTOA, the MOA and the transfer of toll operations. Ultimately, even if the Secretary of Labor and Employment
and-file employees of PSC, but as people’s organizations “invested with a public duty to defend the rule of makes a finding of unfair labor practice, this determination would not amount to res judicata as regards the case
law.”88 PSCEU and PTMSDWO cite Kilosbayan v. Ermita89 as authority to support their standing to file the before the RTC.
instant suit.
We also reject the claim of respondents that petitioners PSCEU and PTMSDWO committed forum shopping by
It is well to point out that the Court, in Ermita, accorded standing to people’s organizations to file the suit, filing the instant petition before this Court while the motion for partial reconsideration of the RTC’s Order of
because the matter involved therein was the qualification of a person to be appointed as a member of this Court dismissal without prejudice was still pending. Section 1, Rule 17 of the Rules of Court states:
– “an issue of utmost and far-reaching constitutional importance.”90 As discussed, the instant petition raises no
genuine constitutional issues. SECTION 1. Dismissal upon notice by plaintiff. – A complaint may be dismissed by the plaintiff by filing a notice
of dismissal at any time before service of the answer or of a motion for summary judgment. Upon such notice
Nevertheless, for a different reason, we accord standing to PSCEU and PTMSDWO to file the instant suit. With being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the
the transfer of toll operations to SOMCO and the resulting cessation of PSC’s business comes the retrenchment dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a
and separation of all its employees. The existence of petitioner labor unions would terminate with the dissolution plaintiff who has once dismissed in a competent court an action based on or including the same claim.
of its employer and the separation of its members. This is why the petition also prays that this Court issue an
order “that would smoothly preserve the toll operations services of respondent PNCC and/or respondent PSC In this case, petitioners PSCEU and PTMSDWO had filed a notice of dismissal of the complaint before the RTC
under its legislative franchise.”91 We have recognized that the right of self-preservation is inherent in every labor on 28 January 2008, before respondents filed their Answers. The following day, the RTC issued an order
union or any organization for that matter. 92 Thus, PSCEU and PTMSDWO, as real parties in interest, have the confirming the dismissal. Under the above-cited rule, this confirmation is the only qualification imposed on the
personality to question the assumption of the toll operations by SOMCO. right of a party to dismiss the action before the adverse party files an answer. 98 In this case, the dismissal of the
action therefore became effective upon that confirmation by the RTC despite the subsequent filing of the motions
II for partial reconsideration.
PSCEU and PTMSDWO are not guilty of forum-shopping.
Forum shopping refers to the act of availing of several remedies in different courts and/or administrative Thus, when the instant petition was filed on 4 February 2008, the complaint before the RTC was no longer
agencies, either simultaneously or successively, when these remedies are substantially founded on the same pending. The complaint was dismissed without prejudice by virtue of the notice of dismissal filed by petitioners
material facts and circumstances and raise basically the same issues either pending in or already resolved by PSCEU and PTMSDWO. Consequently, there was not even any need for petitioners to mention the prior filing
some other court or administrative agency.93 What is pivotal in determining whether forum shopping exists is the and dismissal of the complaint in the certificate of non-forum shopping in the instant petition,99 but they did so
vexation caused to the courts and litigants and the possibility of conflicting decisions being rendered by different anyway.100cralawred
courts and/or administrative agencies upon the same issues. 94cralawred
Parenthetically, in their motions for partial reconsideration, respondents PNCC and PSC insisted that the
The elements of forum shopping are as follows: a) identity of parties or at least such parties that represent the dismissal should have been with prejudice, because petitioners allegedly acted in bad faith in filing the notice of
same interests in both actions; b) identity of rights asserted and the relief prayed for, the relief founded on the dismissal, were guilty of forum shopping, and did not notify respondents of their intention to file a notice of
same facts; and c) identity of the two preceding particulars, such that any judgment rendered in one action will dismissal. With regard to the first and the third allegation, petitioners may ask for dismissal at any time before the
amount to res judicata in the other.95cralawred filing of the answer as a matter of right, even if the notice cites “the most ridiculous of grounds for
dismissal.”101 As to the second, we have already ruled that there was no forum shopping as regards the
Respondents argue that petitioners PSCEU and PTMSDWO committed forum shopping by filing the complaint successive filings of the labor case and the complaint before the RTC.chanroblesvirtuallawlibrary
for injunction and prohibition before the RTC during the pendency of NCMB-NCR-NS-12-188-07 entitled In Re:
Labor Dispute at PNCC Skyway Corporation. It was a case they also filed, over which the Secretary of Labor and III
Employment has assumed jurisdiction. TRB has the power to grant authority to operate a toll facility.
This matter has already been settled by the Court in Francisco, Jr. v. TRB, 102 which ruled thus:
The case involves a Notice of Strike filed against PSC on the ground of unfair labor practice. While the specific
act in question is not specified, the prohibited acts constituting unfair labor practice 96 essentially relate to It is abundantly clear that Sections 3 (a) and (e) of P.D. 1112 in relation to Section 4 of P.D. 1894 have invested
violations concerning the workers’ right to self-organization.97 When compared with the complaint filed with the the TRB with sufficient power to grant a qualified person or entity with authority to construct, maintain, and
RTC for injunction and prohibition seeking to prohibit the implementation of the ASTOA and the MOA, as well as operate a toll facility and to issue the corresponding toll operating permit or TOC.
the assumption of the toll operations by SOMCO for being unconstitutional, contrary to law and disadvantageous
to the government, it is easily discernible that there is no identity of rights asserted and relief prayed for. These Sections 3 (a) and (e) of P.D. 1112 and Section 4 of P.D. 1894 amply provide the power to grant authority to
cases are distinct and dissimilar in their nature and character. operate toll facilities:
Section 3. Powers and Duties of the Board. – The Board shall have in addition to its general powers of
For the sake of argument, let us assume that, in order to hurt the unions, PSC feigned a cessation of business administration the following powers and duties:
that led to the retrenchment and separation of all employees. That is an unfair labor practice. In that complaint,
the unions cannot be expected to ask for, or the Secretary of Labor and Employment to grant, the annulment of (a) Subject to the approval of the President of the Philippines, to enter into contracts in behalf of the Republic of
the ASTOA and the MOA and the continuation of toll operations by PSC. The Secretary would only focus on the the Philippines with persons, natural or juridical, for the construction, operation and maintenance of toll facilities
such as but not limited to national highways, roads, bridges, and public thoroughfares. Said contract shall be
open to citizens of the Philippines and/or to corporations or associations qualified under the Constitution and
authorized by law to engage in toll operations
x x x x
(e) To grant authority to operate a toll facility and to issue therefore the necessary “Toll Operation Certificate”
subject to such conditions as shall be imposed by the Board including inter alia the following:
(1) That the Operator shall desist from collecting toll upon the expiration of the Toll Operation Certificate.
(2) That the entire facility operated as a toll system including all operation and maintenance equipment directly
related thereto shall be turned over to the government immediately upon the expiration of the Toll
Operation Certificate.
(3) That the toll operator shall not lease, transfer, grant the usufruct of, sell or assign the rights or privileges
acquired under the Toll Operation Certificate to any person, firm, company, corporation or other
commercial or legal entity, nor merge with any other company or corporation organized for the same
purpose, without the prior approval of the President of the Philippines. In the event of any valid transfer of
the Toll Operation Certificate, the Transferee shall be subject to all the conditions, terms, restrictions and
limitations of this Decree as fully and completely and to the same extent as if the Toll Operation Certificate
has been granted to the same person, firm, company, corporation or other commercial or legal entity.
(4) That in time of war, rebellion, public peril, emergency, calamity, disaster or disturbance of peace and order,
the President of the Philippines may cause the total or partial closing of the toll facility or order to take over
thereof by the Government without prejudice to the payment of just compensation.
(5) That no guarantee, Certificate of Indebtedness, collateral, securities, or bonds shall be issued by any
government agency or government-owned or controlled corporation on any financing program of the toll
operator in connection with his undertaking under the Toll Operation Certificate.
(6) The Toll Operation Certificate may be amended, modified or revoked whenever the public interest so
requires.
(a) The Board shall promulgate rules and regulations governing the procedures for the grant of Toll
Certificates. The rights and privileges of a grantee under a Toll Operation Certificate shall be defined
by the Board.
(b) To issue rules and regulations to carry out the purposes of this Decree.
SECTION 4. The Toll Regulatory Board is hereby given jurisdiction and supervision over the GRANTEE with
respect to the Expressways, the toll facilities necessarily appurtenant thereto and, subject to the provisions of
Section 8 and 9 hereof, the toll that the GRANTEE will charge the users thereof.
By explicit provision of law, the TRB was given the power to grant administrative franchise for toll facility
projects.103 (Emphases supplied)
We cannot abide by the contention of petitioners that the franchise for toll operations was exclusively vested in
PNCC, which effectively breached its franchise when it transferred the toll operations to SOMCO. First, there is
nothing in P.D. 1113 or P.D. 1894 that states that the franchise granted to PNCC is to the exclusion of all others.
Second, if we were to go by the theory of petitioners, it is only the operation and maintenance of the toll facilities
that is vested with PNCC. This interpretation is contrary to the wording of P.D. 1113 and P.D. 1894 granting
PNCC the right, privilege and authority to construct, operate and maintain the North Luzon, South Luzon and
Metro Manila Expressways and their toll facilities.
It appears that petitioners have confused the franchise granted under P.D. 1113 and P.D. 1894 with particular
provisions in the STOA. To clarify, the operation and maintenance of the project roads were the primary and
exclusive privilege and responsibility of PNCC through PSC under the STOA. On the other hand, the design and
construction of the project roads were the primary and exclusive privilege and responsibility of CMMTC.
However, with the execution of the ASTOA, the parties agreed that SOMCO shall replace PSC in undertaking
the operations and maintenance of the project roads. Thus, the “exclusivity clause” was a matter of agreement
between the parties, which amended it in a later contract; it was not a matter provided under the law.
Third, aside from having been granted the power to grant administrative franchises for toll facility projects, TRB is
also empowered to modify, amend, and impose additional conditions on the franchise of PNCC in an appropriate
contract, particularly when public interest calls for it. This is provided under Section 3 of P.D. 1113 and Section 6
of P.D. 1894, to wit:
SECTION 3. This franchise is granted subject to such conditions as may be imposed by the [Toll
Regulatory] Board in an appropriate contract to be executed for this purpose, and with the
understanding and upon the condition that it shall be subject to amendment, alteration or repeal when
public interest so requires.
x x x
SECTION 6. This franchise is granted subject to such conditions, consistent with the provisions of this
Decree, as may be imposed by the Toll Regulatory Board in the Toll Operation Agreement and such
other modifications or amendments that may be made thereto, and with the understanding and upon the
condition that it shall be subject to amendment or alteration when public interest so dictates.
Section 6 of P.D. 1894 specifically mentions the Toll Operation Agreement. The STOA was one such
modification or amendment of the franchise of PNCC. So was the ASTOA, which further modified the franchise.
PNCC cannot be said to have breached its franchise when it transferred the toll operations to SOMCO. PNCC
remained the franchise holder for the construction, operation, and maintenance of the project roads; it only opted
to partner with investors in the exercise of its franchise leading to the organization of companies such as PSC
and SOMCO.
Again, considering that PNCC was granted the right, privilege, and authority to construct, operate, and maintain
the North Luzon, South Luzon, and Metro Manila Expressways and their toll facilities, we have not heard
petitioners decrying the “breach” by PNCC of its franchise when it agreed to make CMMTC responsible for the
design and construction of the project roads under the STOA.
IV
The TOC issued to SOMCO was not irregular.
Petitioners argue that the conditions provided under Section 3(e) of P.D. 1112104 were not imposed on
SOMCO,because these do not appear on the face of the TOC. Petitioners are mistaken.
The TOC, as a grant of authority from the government, is subject to the latter’s control insofar as the grant affects
or concerns the public.105 Like all other franchises or licenses issued by the government, the TOC is issued
subject to terms, conditions, and limitations under existing laws and agreements. This rule especially holds true
in this instance since the TRB has the power to issue “the necessary ‘Toll Operation Certificate’ subject to such
conditions as shall be imposed by the Board including inter alia” those specified under Section 3(e) of P.D. 1112.
Thus, impliedly written into every TOC are the conditions prescribed therein.
In any case, part of the TOC issued to SOMCO reads:chanRoblesvirtualLawlibrary
Pursuant to Section 3(e) of Presidential Decree No. 1112 or the Toll Operation Decree, Skyway O & M
Corporation is hereby given authority to operate and maintain Stage 1 of the South Metro Manila Skyway
effective as of 10:00 p.m. of 31 December 2007.
This authorization is issued upon the clear understanding that the operation and maintenance of Stage 1 of the
South Metro Manila Skyway as a toll facility and the collection of toll fees shall be closely supervised and
regulated by the Grantor, by and through the Board of Directors, in accordance with the terms and conditions set
forth in the STOA, as amended, the rules and regulations duly promulgated by the Grantor for toll road
operations and maintenance, as well as the lawful orders, instructions and conditions which the Grantor, through
the TRB, may impose from time to time in view of the public nature of the facility.cralawlawlibrary

As regards the allegation that none of the requirements for public bidding was observed before the TOC was
issued to SOMCO, this matter was also squarely answered by the Court in Francisco, Jr. v. TRB,106to
wit:chanRoblesvirtualLawlibrary
Where, in the instant case, a franchisee undertakes the tollway projects of construction, rehabilitation and
expansion of the tollways under its franchise, there is no need for a public bidding. In pursuing the projects with
the vast resource requirements, the franchisee can partner with other investors, which it may choose in the
exercise of its management prerogatives. In this case, no public bidding is required upon the franchisee in
choosing its partners as such process was done in the exercise of management prerogatives and in pursuit of its
right of delectus personae. Thus, the subject tollway projects were undertaken by companies, which are the
product of the joint ventures between PNCC and its chosen partners. 107cralawlawlibrary
Under the STOA in this case, PNCC partnered with CMMTC in Stages 1 and 2 of the South Metro Manila
Skyway. The STOA gave birth to PSC, which was put in charge of the operation and maintenance of the project
roads. The ASTOA had to be executed for Stage 2 to accommodate changes and modifications in the original
design. The ASTOA then brought forth the incorporation of SOMCO to replace PSC in the operations and
maintenance of Stage 1 of the South Metro Manila Skyway. Clearly, no public bidding was necessary because
PNCC, the franchisee, merely exercised its management prerogative when it decided to undertake the
construction, operation, and maintenance of the project roads through companies which are products of joint
ventures with chosen partners.
Petitioners also insist that SOMCO is not qualified to operate a toll facility, because it does not meet the
nationality requirement for a corporation when scrutinized under the “grandfather rule.” Other than advancing this
argument, however, petitioners have not shown how SOMCO fails to meet the nationality requirement for a
public utility operator. Petitioners only aver in their petition that 40% of SOMCO is owned by CMMTC, a foreign
company, while the rest is owned by the following: a) Toll Road Operation and Maintenance Venture Corporation
(TROMVC), almost 40% of which is owned by a Singaporean company; b) Assetvalues Holding Company, Inc.
(AHCI), of which almost 40% is Dutch-owned; and c) Metro Strategic Infrastructure Holdings, Inc. (MSIHI), 40%
of which is owned by Metro Pacific Corporation, whose ownership or nationality was not specified.108cralawred
Section 11, Article XII of the Constitution provides that “[n]o franchise, certificate, or any other form of
authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to
corporations or associations organized under the laws of the Philippines at least sixty per centum of whose
capital is owned by such citizens x x x.” Clearly, under the Constitution, a corporation at least 60% of whose
capital is owned by Filipinos is of Philippine nationality. Considering this constitutional provision, petitioners’
silence on the ownership of the remaining 60% of the corporations cited is very telling.
In order to rebut petitioners’ allegations, respondents readily present matrices showing the itemization of
percentage ownerships of the subscribed capital stock of SOMCO, as well as that of TROMVC, AHCI, and
MSIHI. Respondents attempt to show that all these corporations are of Philippine nationality, with 60% of their
capital stock owned by Filipino citizens. We need not reproduce the itemization here. Suffice it to say that in their
Consolidated Reply,109 petitioners did not refute the unanimous claim of respondents. It is axiomatic that one
who alleges a fact has the burden of proving it. On this matter, we find that petitioners have failed to prove their
allegation that SOMCO is not qualified to operate a toll facility for failure to meet the nationality requirement
under the Constitution.
Finally, no public notices and hearings were necessary prior to the issuance of the TOC to SOMCO. For the
same reason that a public bidding is not necessary, PNCC cannot be required to call for public hearings
concerning matters within its prerogative. At any rate, we have studied P.D. 1112 and the Implementing Rules
and Regulations Authorizing the Establishment of Toll Facilities and found no provision requiring the issuance of
public notices and the conduct of public hearings prior to the issuance of a TOC.chanroblesvirtuallawlibrary
V
Approval of the ASTOA by the DOTC Secretary was approval by the President.
The doctrine of qualified political agency declares that, save in matters on which the Constitution or the
circumstances require the President to act personally, executive and administrative functions are exercised
through executive departments headed by cabinet secretaries, whose acts are presumptively the acts of the
President unless disapproved by the latter.110 As explained in Villena v. Executive Secretary,111 this doctrine is
rooted in the Constitution:
x x x With reference to the Executive Department of the government, there is one purpose which is crystal-clear
and is readily visible without the projection of judicial searchlight, and that is, the establishment of a single, not
plural, Executive. The first section of Article VII of the Constitution, dealing with the Executive Department,
begins with the enunciation of the principle that “The executive power shall be vested in a President of the
Philippines.” This means that the President of the Philippines is the Executive of the Government of the
Philippines, and no other. The heads of the executive departments occupy political positions and hold office in an
advisory capacity, and, in the language of Thomas Jefferson, “should be of the President's bosom confidence,”
and, in the language of Attorney-General Cushing, “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.” 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.112 x x x (Citations omitted)
Applying the doctrine of qualified political agency, we have ruled that the Secretary of Environment and Natural
Resources can validly order the transfer of a regional office by virtue of the power of the President to reorganize
the national government.113 In Constantino v. Cuisia,114 the Court upheld the authority of the Secretary of
Finance to execute debt-relief contracts. The authority emanates from the power of the President to contract
foreign loans under Section 20, Article VII of the Constitution. In Angeles v. Gaite,115 the Court ruled that there
can be no issue with regard to the President’s act of limiting his power to review decisions and orders of the
Secretary of Justice, especially since the decision or order was issued by the secretary, the President’s “own
alter ego.”116cralawred
There can be no question that the act of the secretary is the act of the President, unless repudiated by the latter.
In this case, approval of the ASTOA by the DOTC Secretary had the same effect as approval by the President.
The same would be true even without the issuance of E.O. 497, in which the President, on 24 January 2006,
specifically delegated to the DOTC Secretary the authority to approve contracts entered into by the TRB.
Petitioners are unimpressed. They cite Section 8 of P.D. 1113 and Section 13 of P.D. 1894 as follows:
SECTION 8. The GRANTEE shall not lease, transfer, grant the usufruct of, sell or assign this franchise nor the
rights or privileges acquired hereby, to any person, firm, company, corporation or other commercial or legal
entity, nor merge with any other company or corporation without the prior approval of the President of the
Philippines. In the event that this franchise is sold, transferred or assigned, the transferee shall be subject to all
the conditions, terms, restrictions and limitations of this Decree as fully and completely and to the same extents
as if the franchise has been granted to the same person, firm, company, corporation or other commercial or legal
entity. (Emphasis supplied)
SECTION 13. The GRANTEE shall not lease, transfer, grant the usufruct of, sell or assign this franchise nor the
rights or privileges required hereby, to any person, firm, company, corporation or other legal entity, nor merge
with any other company or corporation without the prior approval of the President of the Philippines. and authorized by law to engage in toll operations; (Emphasis supplied)

In the event that this franchise is sold, transferred or assigned, the transferee shall be subject to all the
conditions, terms, restrictions and limitations of this Decree as fully and completely and to the same extent as if
the franchise has been granted to the said person, firm, company, corporation or other legal entity. (Emphasis
supplied)
Petitioners insist that based on the above provisions, it is the President who should give personal approval
considering that the power to grant franchises was exclusively vested in Congress. Hence, to allow the DOTC
Secretary to exercise the power of approval would supposedly dilute that legislative prerogative.
The argument of petitioners is founded on the assumption that PNCC in some way leased, transferred, granted
the usufruct of, sold, or assigned to SOMCO its franchise or the rights or privileges PNCC had acquired by it.
Here lies the error in petitioners’ stand. First, as discussed above, the power to grant franchises or issue
authorizations for the operation of a public utility is not exclusively exercised by Congress. Second, except where
the situation falls within that special class that demands the exclusive and personal exercise by the President of
constitutionally vested power,117 the President acts through alter egos whose acts are as if the Chief Executive’s
own.
Third, no lease, transfer, grant of usufruct, sale, or assignment of franchise by PNCC or its merger with another
company ever took place.
The creation of the TRB and the grant of franchise to PNCC were made in the light of the recognition on the part
of the government that the private sector had to be involved as an alternative source of financing for the
pursuance of national infrastructure projects. As the franchise holder for the construction, maintenance and
operation of infrastructure toll facilities, PNCC was equipped with the right and privilege, but not necessarily the
means, to undertake the project. This is where joint ventures with private investors become necessary.
A joint venture is an association of companies jointly undertaking a commercial endeavor, with all of them
contributing assets and sharing risks, profits, and losses.118 It is hardly distinguishable from a partnership
considering that their elements are similar and, thus, generally governed by the law on partnership. 119cralawred
In joint ventures with investor companies, PNCC contributes the franchise it possesses, while the partner
contributes the financing – both necessary for the construction, maintenance, and operation of the toll facilities.
PNCC did not thereby lease, transfer, grant the usufruct of, sell, or assign its franchise or other rights or
privileges. This remains true even though the partnership acquires a distinct and separate personality from that
of the joint venturers or leads to the formation of a new company that is the product of such joint venture, such as
PSC and SOMCO in this case.
Hence, when we say that the approval by the DOTC Secretary in this case was approval by the President, it was
not in connection with the franchise of PNCC, as required under Section 8 of P.D. 1113 and Section 13 of P.D.
1894. Rather, the approval was in connection with the powers of the TRB to enter into contracts on behalf of the
government as provided under Section 3(a) of P.D. 1112, which states:
SECTION 3. Powers and Duties of the Board. – The Board shall have in addition to its general powers of
administration the following powers and duties:
(a) Subject to the approval of the President of the Philippines, to enter into contracts in behalf of the
Republic of the Philippines with persons, natural or juridical, for the construction, operation and maintenance of
toll facilities such as but not limited to national highways, roads, bridges, and public thoroughfares. Said contract
shall be open to citizens of the Philippines and/or to corporations or associations qualified under the Constitution
VI
Petitioners have not shown that the transfer of toll operations to SOMCO was grossly disadvantageous
to the government.
In support of their contention that the transfer of toll operations from PSC to SOMCO was grossly
disadvantageous to the government, petitioners belittle the initial capital investment, private ownership, and track
record of SOMCO.
When one uses the term “grossly disadvantageous to the government,” the allegations in support thereof must
reflect the meaning accorded to the phrase. “Gross” means glaring, reprehensible, culpable, flagrant, and
shocking.120 It requires that the mere allegation shows that the disadvantage on the part of the government is
unmistakable, obvious, and certain.
In this case, we find that the allegations of petitioners are nothing more than speculations, apprehensions, and
suppositions. They speculate that with its “measly” capital investment, SOMCO would not be able to cover the
overhead expenses for personal services alone. They fear that the revenue from toll operations would go to
“private pockets” in exchange for a small settlement amount to be given to PSC. Given that SOMCO has no
proven track record, petitioners deduce that its assumption of the toll operations would lead to poor delivery of
toll services to the public.
The aim in the establishment of toll facilities is to draw from private resources the financing of government
infrastructure projects. Naturally, these private investors would want to receive reasonable return on their
investments. Thus, the collection of toll fees for the use of public improvements has been authorized, subject to
supervision and regulation by the national government. 121 As regards the P320 million settlement given to PSC,
the amount was to be used principally for the payment of its liabilities of PSC arising from the retrenchment of its
employees. We note that under the MOA, the residual assets of PSC shall still be offered for sale to CMMTC,
subject to valuation.122 Thus, it would be inaccurate to say that PSC would receive only P320 million for the
entire arrangement.
It is quite understandable that SOMCO does not yet have a proven track record in toll operations, considering
that it was only the ASTOA and the MOA that gave birth to it. We are not prepared to rule that this lack of track
record would result in poor delivery of toll services, especially because most of the former employees of PSC
have been rehired by SOMCO, an allegation of respondents that was never refuted by petitioners. Neither are
we prepared to take the amount of SOMCO’s initial capital investment against it, as it is considerably higher than
?500,000, the authorized capital stock of PSC as of 2002. 123cralawred
A FINAL NOTE
R.A. 8975 prohibits lower courts from issuing any temporary restraining order, preliminary injunction, or
preliminary mandatory injunction against the government – or any of its subdivisions, officials or any person or
entity, whether public or private, acting under the government’s direction – to restrain, prohibit or compel acts
related to the implementation and completion of government infrastructure projects.
The rationale for the law is easily discernible. Injunctions and restraining orders tend to derail the expeditious and
efficient implementation and completion of government infrastructure projects; increase construction,
maintenance and repair costs; and delay the enjoyment of the social and economic benefits therefrom. Thus,
unless the matter is of extreme urgency involving a constitutional issue, judges of lower courts who shall issue
injunctive writs or restraining orders in violation of the law shall be administratively liable.
The law is clear that what is prohibited is merely the issuance of provisional orders enjoining the implementation
of a national government project. R.A. 8975 does not bar lower courts from assuming jurisdiction over complaints
that seek the nullification or implementation of a national government infrastructure project as ultimate relief.
There is no question that the ultimate prayer in the instant case is the nullification of a national government
project considering that the ASTOA involved the design and construction of Stage 2 of the South Metro Manila
Skyway, as well as the operation and maintenance of Stage 1 thereof. The prayer is grounded on the contract’s
alleged unconstitutionality, violation of the law, and gross disadvantage to the government. Such principal action
and relief were within the jurisdiction of the RTC, which acted correctly when it ordered respondents to file their
respective answers to the complaint, even while it denied the prayer for the issuance of a writ of preliminary
injunction and/or temporary restraining order in observance of R.A. 8975.

It was therefore error on the part of petitioners to come directly before this Court for the sole reason that the
lower courts will not be able to grant the prayer for the issuance of a writ of preliminary injunction and/or
temporary restraining order to enjoin the assumption of toll operations by SOMCO. The error even takes on a
whole new meaning, because SOMCO assumed responsibility for the operations and maintenance of the South
Metro Manila Skyway at 10:00 p.m. on 31 December 2007. On the other hand, the complaint before the RTC
seeking to enjoin the assumption by SOMCO was filed only on 3 January 2008, while the instant petition was
filed on 4 February 2008.

As we held in Aznar Brothers Realty, Inc. v. CA,125 injunction does not lie when the act sought to be enjoined has
already become a fait accompli or an accomplished or consummated act.

Parties must observe the hierarchy of courts before seeking relief from this Court. Observance thereof minimizes
the imposition on the already limited time of this Court and prevents delay, intended or otherwise, in the
adjudication of cases.126 We do not appreciate the litigants’ practice of directly seeking recourse before this
Court, relying on the gravitas of a personality yet making serious claims without the proof to support them.

WHEREFORE, the petition is DISMISSED. The prayer for the issuance of a writ of preliminary injunction and/or
temporary restraining order is DENIED.

SO ORDERED.
 G.R. No. 119903. August 15, 2000]
HON. RICARDO T. GLORIA, in his capacity as SECRETARY, AND DIRECTOR NILO L. ROSAS in
his capacity as REGIONAL DIRECTOR, DEPARTMENT OF EDUCATION, CULTURE AND
SPORTS, petitioners, vs. HON. COURT OF APPEALS AND DR. BIENVENIDO A.
ICASIANO, respondents.
DECISION
PURISIMA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court brought by Secretary and the
Director for the National Capital Region of the Department of Education, Culture and Sports (DECS), to question
the decision[1] of the Court of Appeals in CA-G.R. SP No. 35505.
The Court of Appeals found the facts as follows:
"On June 29, 1989, petitioner [private respondent herein] was appointed Schools Division Superintendent,
Division of City Schools, Quezon City, by the then President Corazon C. Aquino.
On October 10, 1994, respondent Secretary Gloria recommended to the President of the Philippines that the
petitioner be reassigned as Superintendent of the MIST [Marikina Institute of Science and Technology], to fill up
the vacuum created by the retirement of its Superintendent, Mr. Bannaoag F. Lauro, on June 17, 1994.
On October 12, 1994, the President approved the recommendation of Secretary Gloria.
On October 13, 1994, a copy of the recommendation for petitioners reassignment, as approved by the President,
was transmitted by Secretary Gloria to Director Rosas for implementation.
On October 14, 1994, Director Rosas, informed the petitioner of his reassignment, effective October 17, 1994.
Petitioner requested respondent Secretary Gloria to reconsider the reassignment, but the latter denied the
request. The petitioner prepared a letter dated October 18, 1994 to the President of the Philippines, asking for a
reconsideration of his reassignment, and furnished a copy of the same to the DECS. However, he subsequently
changed his mind and refrained from filing the letter with the Office of President.
On October 19, 1994, the petitioner filed the instant petition."[2]
On October 26, 1994, the Court of Appeals denied private respondents prayer for the issuance of a Temporary
Restraining Order (TRO).[3]
On November 22, 1994, it set aside its earlier resolution denying the prayer for the issuance of a TRO; and
thereafter, restrained the petitioners "from implementing the re-assignment of the petitioner [private respondent
herein] from incumbent Schools Division Superintendent of Quezon City to Vocational Schools Superintendent of
the Marikina Institute of Science and Technology." [4]
On December 21, 1994, the Court of Appeals issued another resolution setting the hearing of the petition for the
issuance of a writ of preliminary injunction and enjoining the petitioners from implementing the reassignment of
the private respondent.
On March 28, 1995, it issued its assailed decision; holding as follows:
"WHEREFORE, for lack of a period or any indication that it is only temporary, the reassignment of the petitioner
from Schools Division Superintendent, Division of City Schools, Quezon City, to Vocational Schools
Superintendent of the Marikina Institute of Science and Technology pursuant to the Memorandum of Secretary
Ricardo T. Gloria to the President of the Philippines dated 10 October 1994, is hereby declared to be violative of
petitioners right to security of tenure, and the respondents are hereby prohibited from implementing the same.
SO ORDERED."[5]
Petitioners are now before the Court seeking relief from the decision of the appellate court, contending
that:
I
RESPONDENT COURT OF APPEALS HAS ALLOWED ITSELF TO BE INSTRUMENTAL IN PRIVATE
RESPONDENTS CIRCUMVENTION OF THE PRESIDENTIAL IMMUNITY FROM SUIT BY GIVING
DUE COURSE AND GRANTING RELIEFS PRAYED FOR IN A SUIT PURPORTEDLY FILED
AGAINST PETITIONERS BUT ACTUALLY QUESTIONING AN ACT OF THE PRESIDENT.
II
RESPONDENT COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE IN A WAY
NOT IN ACCORD WITH LAW OR APPLICABLE DECISIONS OF THE SUPREME COURT[6]
The pivotal issue for resolution here is whether the reassignment of private respondent from School
Division Superintendent of Quezon City to Vocational School Superintendent of MIST is violative of his
security of tenure? Petitioners maintain that there is no violation of security of tenure involved. Private
respondent maintains otherwise.
In taking favorable action on private respondents petition for prohibition, the Court of Appeals
ratiocinated:
"Notwithstanding the protestations of counsel for the respondents, the reassignment of the
petitioner to MIST appears to be indefinite. No period is fixed. No objective or purpose, from
which the temporariness of the assignment may be inferred, is set. In fact, the
recommendation of respondent Secretary Gloria to the President that the position of
superintendent of MIST will best fit his (petitioners) qualifications and experience. (Exh. C-2)
implies that the proposed reassignment will be indefinite." [7]
Petitioners theorize that the present petition for prohibition is improper because the same attacks an act
of the President, in violation of the doctrine of presidential immunity from suit.
Petitioners contention is untenable for the simple reason that the petition is directed against petitioners
and not against the President. The questioned acts are those of petitioners and not of the President.
Furthermore, presidential decisions may be questioned before the courts where there is grave abuse of
discretion or that the President acted without or in excess of jurisdiction.[8]
Petitioners submission that the petition of private respondent with the Court of Appeals is improper for
failing to show that petitioners constituted themselves into a "court" conducting a "proceeding" and for
failing to show that any of the petitioners acted beyond their jurisdiction in the exercise of their judicial or
ministerial functions, is barren of merit. Private respondent has clearly averred that the petitioners acted
with grave abuse of discretion amounting to lack of jurisdiction and/or excess of jurisdiction in
reassigning the private respondent in a way that infringed upon his security of tenure. And petitioners
themselves admitted that their questioned act constituted a ministerial duty, such that they could be
subject to charges of insubordination if they did not comply with the presidential order. What is more,
where an administrative department acts with grave abuse of discretion, which is equivalent to a
capricious and whimsical exercise of judgment, or where the power is exercised in an arbitrary or
despotic manner, there is a justification for the courts to set aside the administrative determination thus
reached.[9]
Petitioners contend that the doctrine enunciated in Bentain vs. Court of Appeals[10] -- that "a
reassignment that is indefinite and results in a reduction in rank, status and salary, is in effect, a
constructive removal from the service" -- does not apply in the present case for the reassignment in
question was merely temporary, lasting only until the appointment of a new Vocational School
Superintendent of MIST.

After a careful study, the Court upholds the finding of the respondent court that the reassignment of
petitioner to MIST "appears to be indefinite". The same can be inferred from the Memorandum[11] of
Secretary Gloria for President Fidel V. Ramos to the effect that the reassignment of private respondent
will "best fit his qualifications and experience" being "an expert in vocational and technical education." It
can thus be gleaned that subject reassignment is more than temporary as the private respondent has
been described as fit for the (reassigned) job, being an expert in the field. Besides, there is nothing in
the said Memorandum to show that the reassignment of private respondent is temporary or would only
last until a permanent replacement is found as no period is specified or fixed; which fact evinces an
intention on the part of petitioners to reassign private respondent with no definite period or duration.
Such feature of the reassignment in question is definitely violative of the security of tenure of the private
respondent. As held in Bentain:

"Security of tenure is a fundamental and constitutionally guaranteed feature of our civil service.
The mantle of its protection extends not only to employees removed without cause but also to
cases of unconsented transfers which are tantamount to illegal removals (Department of
Education, Culture and Sports vs. Court of Appeals, 183 SCRA 555; Ibanez vs. COMELEC, 19
SCRA 1002; Brillantes vs. Guevarra, 27 SCRA 138).

While a temporary transfer or assignment of personnel is permissible even without the

employees prior consent, it cannot be done when the transfer is a preliminary step toward his
removal, or is a scheme to lure him away from his permanent position, or designed to indirectly
terminate his service, or force his resignation. Such a transfer would in effect circumvent the
provision which safeguards the tenure of office of those who are in the Civil Service (Sta. Maria
vs. Lopez, 31 SCRA 651; Garcia vs. Lejano, 109 Phil. 116)."[12]

Having found the reassignment of private respondent to the MIST to be violative of his security of
tenure, the order for his reassignment to the MIST cannot be countenanced.

WHEREFORE, the petition is hereby DENIED, and the Decision of the Court of Appeals in CA-G.R. SP
No. 35505 AFFIRMED. No pronouncement as to costs.

SO ORDERED.
 [G.R. No. 125350. December 3, 2002]
HON. RTC JUDGES MERCEDES G. DADOLE (Executive Judge, Branch 28), ULRIC R. CAETE (Presiding
Judge, Branch 25), AGUSTINE R. VESTIL (Presiding Judge, Branch 56), HON. MTC JUDGES
TEMISTOCLES M. BOHOLST (Presiding Judge, Branch 1), VICENTE C. FANILAG (Judge
Designate, Branch 2), and WILFREDO A. DAGATAN (Presiding Judge, Branch 3), all of Mandaue
City, petitioners, vs. COMMISSION ON AUDIT, respondent.
DECISION
CORONA, J.:
Before us is a petition for certiorari under Rule 64 to annul the decision[1] and resolution[2], dated September
21, 1995 and May 28, 1996, respectively, of the respondent Commission on Audit (COA) affirming the notices of
the Mandaue City Auditor which diminished the monthly additional allowances received by the petitioner judges
of the Regional Trial Court (RTC) and Municipal Trial Court (MTC) stationed in Mandaue City.
The undisputed facts are as follows:
In 1986, the RTC and MTC judges of Mandaue City started receiving monthly allowances of P1,260 each
through the yearly appropriation ordinance enacted by the Sangguniang Panlungsod of the said city. In 1991,
Mandaue City increased the amount to P1,500 for each judge.
On March 15, 1994, the Department of Budget and Management (DBM) issued the disputed Local Budget
Circular No. 55 (LBC 55) which provided that:
xxx xxx xxx
2.3.2. In the light of the authority granted to the local government units under the Local Government Code to
provide for additional allowances and other benefits to national government officials and employees assigned in
their locality, such additional allowances in the form of honorarium at rates not exceeding P1,000.00 in provinces
and cities and P700.00 in municipalities may be granted subject to the following conditions:
a) That the grant is not mandatory on the part of the LGUs;
b) That all contractual and statutory obligations of the LGU including the implementation of R.A. 6758 shall have
been fully provided in the budget;
c) That the budgetary requirements/limitations under Section 324 and 325 of R.A. 7160 should be satisfied
and/or complied with; and
d) That the LGU has fully implemented the devolution of functions/personnel in accordance with R.A.
7160.[3] (italics supplied)
xxx xxx xxx
The said circular likewise provided for its immediate effectivity without need of publication:
5.0 EFFECTIVITY
This Circular shall take effect immediately.
Acting on the DBM directive, the Mandaue City Auditor issued notices of disallowance to herein petitioners,
namely, Honorable RTC Judges Mercedes G. Dadole, Ulric R. Caete, Agustin R. Vestil, Honorable MTC Judges
Temistocles M. Boholst, Vicente C. Fanilag and Wilfredo A. Dagatan, in excess of the amount authorized by LBC
55. Beginning October, 1994, the additional monthly allowances of the petitioner judges were reduced to P1,000
each. They were also asked to reimburse the amount they received in excess of P1,000 from April to September,
1994.
The petitioner judges filed with the Office of the City Auditor a protest against the notices of disallowance.
But the City Auditor treated the protest as a motion for reconsideration and indorsed the same to the COA
Regional Office No. 7. In turn, the COA Regional Office referred the motion to the head office with a
recommendation that the same be denied.
On September 21, 1995, respondent COA rendered a decision denying petitioners motion for
reconsideration. The COA held that:
The issue to be resolved in the instant appeal is whether or not the City Ordinance of Mandaue which provides a
higher rate of allowances to the appellant judges may prevail over that fixed by the DBM under Local Budget
Circular No. 55 dated March 15, 1994.
xxx xxx xxx
Applying the foregoing doctrine, appropriation ordinance of local government units is subject to the
organizational, budgetary and compensation policies of budgetary authorities (COA 5 th Ind., dated March 17,
1994 re: Province of Antique; COA letter dated May 17, 1994 re: Request of Hon. Renato Leviste, Cong. 1 st Dist.
Oriental Mindoro). In this regard, attention is invited to Administrative Order No. 42 issued on March 3, 1993 by
the President of the Philippines clarifying the role of DBM in the compensation and classification of local
government positions under RA No. 7160 vis-avis the provisions of RA No. 6758 in view of the abolition of the
JCLGPA. Section 1 of said Administrative Order provides that:
Section 1. The Department of Budget and Management as the lead administrator of RA No. 6758 shall, through
its Compensation and Position Classification Bureau, continue to have the following responsibilities in connection
with the implementation of the Local Government Code of 1991:
a) Provide guidelines on the classification of local government positions and on the specific
rates of pay therefore;
b) Provide criteria and guidelines for the grant of all allowances and additional forms of
compensation to local government employees; xxx. (underscoring supplied)
To operationalize the aforecited presidential directive, DBM issued LBC No. 55, dated March 15, 1994, whose
effectivity clause provides that:
xxx xxx xxx
5.0 EFFECTIVITY
This Circular shall take effect immediately.
It is a well-settled rule that implementing rules and regulations promulgated by administrative or executive officer
in accordance with, and as authorized by law, has the force and effect of law or partake the nature of a statute
(Victorias Milling Co., Inc., vs. Social Security Commission, 114 Phil. 555, cited in Agpalos Statutory
Construction, 2nd Ed. P. 16; Justice Cruzs Phil. Political Law, 1984 Ed., p. 103; Espanol vs. Phil Veterans
Administration, 137 SCRA 314; Antique Sawmills Inc. vs. Tayco, 17 SCRA 316).
xxx xxx xxx
There being no statutory basis to grant additional allowance to judges in excess of P1,000.00 chargeable against
the local government units where they are stationed, this Commission finds no substantial grounds or cogent
reason to disturb the decision of the City Auditor, Mandaue City, disallowing in audit the allowances in question.
Accordingly, the above-captioned appeal of the MTC and RTC Judges of Mandaue City, insofar as the same is
not covered by Circular Letter No. 91-7, is hereby dismissed for lack of merit.
xxx xxx xxx[4]
On November 27, 1995, Executive Judge Mercedes Gozo-Dadole, for and in behalf of the petitioner judges,
filed a motion for reconsideration of the decision of the COA. In a resolution dated May 28, 1996, the COA
denied the motion.
Hence, this petition for certiorari by the petitioner judges, submitting the following questions for resolution:
I
HAS THE CITY OF MANDAUE STATUTORY AND CONSTITUTIONAL BASIS TO PROVIDE ADDITIONAL
ALLOWANCES AND OTHER BENEFITS TO JUDGES STATIONED IN AND ASSIGNED TO THE CITY?
II
CAN AN ADMINISTRATIVE CIRCULAR OR GUIDELINE SUCH AS LOCAL BUDGET CIRCULAR NO. 55
RENDER INOPERATIVE THE POWER OF THE LEGISLATIVE BODY OF A CITY BY SETTING A LIMIT TO
THE EXTENT OF THE EXERCISE OF SUCH POWER?
 III
HAS THE COMMISSION ON AUDIT CORRECTLY INTERPRETED LOCAL BUDGET CIRCULAR NO. 55 TO
INCLUDE MEMBERS OF THE JUDICIARY IN FIXING THE CEILING OF ADDITIONAL ALLOWANCES AND
BENEFITS TO BE PROVIDED TO JUDGES STATIONED IN AND ASSIGNED TO MANDAUE CITY BY THE
CITY GOVERNMENT AT P1,000.00 PER MONTH NOTWITHSTANDING THAT THEY HAVE BEEN
RECEIVING ALLOWANCES OF P1,500.00 MONTHLY FOR THE PAST FIVE YEARS?
IV
IS LOCAL BUDGET CIRCULAR NO. 55 DATED MARCH 15, 1994 ISSUED BY THE DEPARTMENT OF
BUDGET AND MANAGEMENT VALID AND ENFORCEABLE CONSIDERING THAT IT WAS NOT DULY
PUBLISHED IN ACCODANCE WITH LAW?[5]
Petitioner judges argue that LBC 55 is void for infringing on the local autonomy of Mandaue City by
dictating a uniform amount that a local government unit can disburse as additional allowances to judges
stationed therein. They maintain that said circular is not supported by any law and therefore goes beyond the
supervisory powers of the President. They further allege that said circular is void for lack of publication.
On the other hand, the yearly appropriation ordinance providing for additional allowances to judges is
allowed by Section 458, par. (a)(1)[xi], of RA 7160, otherwise known as the Local Government Code of 1991,
which provides that:
Sec. 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative
body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the
city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of
the city as provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and in this
connection, shall:
xxx xxx xxx
(xi) When the finances of the city government allow, provide for additional allowances and other benefits to
judges, prosecutors, public elementary and high school teachers, and other national government officials
stationed in or assigned to the city; (italics supplied)
Instead of filing a comment on behalf of respondent COA, the Solicitor General filed a manifestation
supporting the position of the petitioner judges. The Solicitor General argues that (1) DBM only enjoys the power
to review and determine whether the disbursements of funds were made in accordance with the ordinance
passed by a local government unit while (2) the COA has no more than auditorial visitation powers over local
government units pursuant to Section 348 of RA 7160 which provides for the power to inspect at any time the
financial accounts of local government units.
Moreover, the Solicitor General opines that the DBM and the respondent are only authorized under RA
7160 to promulgate a Budget Operations Manual for local government units, to improve and systematize
methods, techniques and procedures employed in budget preparation, authorization, execution and
accountability pursuant to Section 354 of RA 7160. The Solicitor General points out that LBC 55 was not
exercised under any of the aforementioned provisions.
Respondent COA, on the other hand, insists that the constitutional and statutory authority of a city
government to provide allowances to judges stationed therein is not absolute. Congress may set limitations on
the exercise of autonomy. It is for the President, through the DBM, to check whether these legislative limitations
are being followed by the local government units.
One such law imposing a limitation on a local government units autonomy is Section 458, par. (a) (1) [xi], of
RA 7160, which authorizes the disbursement of additional allowances and other benefits to judges subject to the
condition that the finances of the city government should allow the same. Thus, DBM is merely enforcing the
condition of the law when it sets a uniform maximum amount for the additional allowances that a city government
can release to judges stationed therein.
Assuming arguendo that LBC 55 is void, respondent COA maintains that the provisions of the yearly
approved ordinance granting additional allowances to judges are still prohibited by the appropriation laws passed
by Congress every year. COA argues that Mandaue City gets the funds for the said additional allowances of
judges from the Internal Revenue Allotment (IRA). But the General Appropriations Acts of 1994 and 1995 do not
mention the disbursement of additional allowances to judges as one of the allowable uses of the IRA. Hence, the
provisions of said ordinance granting additional allowances, taken from the IRA, to herein petitioner judges are
void for being contrary to law.
To resolve the instant petition, there are two issues that we must address: (1) whether LBC 55 of the DBM
is void for going beyond the supervisory powers of the President and for not having been published and (2)
whether the yearly appropriation ordinance enacted by the City of Mandaue that provides for additional
allowances to judges contravenes the annual appropriation laws enacted by Congress.
We rule in favor of the petitioner judges.
On the first issue, we declare LBC 55 to be null and void.
We recognize that, although our Constitution[6] guarantees autonomy to local government units, the
exercise of local autonomy remains subject to the power of control by Congress and the power of supervision by
the President. Section 4 of Article X of the 1987 Philippine Constitution provides that:
Sec. 4. The President of the Philippines shall exercise general supervision over local governments. x x x
In Pimentel vs. Aguirre[7], we defined the supervisory power of the President and distinguished it from the
power of control exercised by Congress. Thus:
This provision (Section 4 of Article X of the 1987 Philippine Constitution) has been interpreted to exclude the
power of control. In Mondano v. Silvosa,[i][5] the Court contrasted the President's power of supervision over local
government officials with that of his power of control over executive officials of the national government. It was
emphasized that the two terms -- supervision and control -- differed in meaning and extent. The Court
distinguished them as follows:
"x x x 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 ha[s] done in the performance of his
duties and to substitute the judgment of the former for that of the latter." [ii][6]
In Taule v. Santos,[iii][7] we further stated that the Chief Executive wielded no more authority than that of checking
whether local governments or their officials were performing their duties as provided by the fundamental law and
by statutes. He cannot interfere with local governments, so long as they act within the scope of their
authority. "Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body;
it does not include any restraining authority over such body,"[iv][8] we said.
In a more recent case, Drilon v. Lim,[v][9] the difference between control and supervision was further
delineated. Officers in control lay down the rules in the performance or accomplishment of an act. If these rules
are not followed, they may, in their discretion, order the act undone or redone by their subordinates or even
decide to do it themselves. On the other hand, supervision does not cover such authority. Supervising officials
merely see to it that the rules are followed, but they themselves do not lay down such rules, nor do they have the
discretion to modify or replace them. If the rules are not observed, they may order the work done or redone, but
only to conform to such rules. They may not prescribe their own manner of execution of the act. They have no
discretion on this matter except to see to it that the rules are followed.
Under our present system of government, executive power is vested in the President.[vi][10] The members of the
Cabinet and other executive officials are merely alter egos. As such, they are subject to the power of control of
the President, at whose will and behest they can be removed from office; or their actions and decisions changed,
suspended or reversed.[vii][11] In contrast, the heads of political subdivisions are elected by the people. Their
sovereign powers emanate from the electorate, to whom they are directly accountable. By constitutional fiat, they
are subject to the Presidents supervision only, not control, so long as their acts are exercised within the sphere
of their legitimate powers. By the same token, the President may not withhold or alter any authority or power
given them by the Constitution and the law.
Clearly then, the President can only interfere in the affairs and activities of a local government unit if he or
she finds that the latter has acted contrary to law. This is the scope of the Presidents supervisory powers over
local government units. Hence, the President or any of his or her alter egos cannot interfere in local affairs as
long as the concerned local government unit acts within the parameters of the law and the Constitution. Any
directive therefore by the President or any of his or her alter egos seeking to alter the wisdom of a law-
conforming judgment on local affairs of a local government unit is a patent nullity because it violates the principle
of local autonomy and separation of powers of the executive and legislative departments in governing municipal
corporations.
Does LBC 55 go beyond the law it seeks to implement? Yes.
LBC 55 provides that the additional monthly allowances to be given by a local government unit should not
exceed P1,000 in provinces and cities and P700 in municipalities. Section 458, par. (a)(1)(xi), of RA 7160, the
law that supposedly serves as the legal basis of LBC 55, allows the grant of additional allowances to judges
when the finances of the city government allow. The said provision does not authorize setting a definite
maximum limit to the additional allowances granted to judges. Thus, we need not belabor the point that the
finances of a city government may allow the grant of additional allowances higher than P1,000 if the revenues of
the said city government exceed its annual expenditures. Thus, to illustrate, a city government with locally
generated annual revenues of P40 million and expenditures of P35 million can afford to grant additional
allowances of more than P1,000 each to, say, ten judges inasmuch as the finances of the city can afford it.
Setting a uniform amount for the grant of additional allowances is an inappropriate way of enforcing the
criterion found in Section 458, par. (a)(1)(xi), of RA 7160. The DBM over-stepped its power of supervision over
local government units by imposing a prohibition that did not correspond with the law it sought to implement. In
other words, the prohibitory nature of the circular had no legal basis.
Furthermore, LBC 55 is void on account of its lack of publication, in violation of our ruling in Taada vs.
Tuvera[8] where we held that:
xxx. Administrative rules and regulations must also be published if their purpose is to enforce or implement
existing law pursuant to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of an
administrative agency and the public, need not be published. Neither is publication required of the so-called
letters of instruction issued by administrative superiors concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties.
Respondent COA claims that publication is not required for LBC 55 inasmuch as it is merely an
interpretative regulation applicable to the personnel of an LGU. We disagree. In De Jesus vs. Commission on
Audit[9]where we dealt with the same issue, this Court declared void, for lack of publication, a DBM circular that
disallowed payment of allowances and other additional compensation to government officials and employees. In
refuting respondent COAs argument that said circular was merely an internal regulation, we ruled that:
On the need for publication of subject DBM-CCC No. 10, we rule in the affirmative. Following the doctrine
enunciated in Taada v. Tuvera, publication in the Official Gazette or in a newspaper of general circulation in the
Philippines is required since DBM-CCC No. 10 is in the nature of an administrative circular the purpose of
which is to enforce or implement an existing law. Stated differently, to be effective and enforceable, DBM-
CCC No. 10 must go through the requisite publication in the Official Gazette or in a newspaper of general
circulation in the Philippines.
In the present case under scrutiny, it is decisively clear that DBM-CCC No. 10, which completely disallows
payment of allowances and other additional compensation to government officials and employees, starting
November 1, 1989, is not a mere interpretative or internal regulation. It is something more than that. And why
not, when it tends to deprive government workers of their allowance and additional compensation sorely needed
to keep body and soul together. At the very least, before the said circular under attack may be permitted to
substantially reduce their income, the government officials and employees concerned should be
apprised and alerted by the publication of subject circular in the Official Gazette or in a newspaper of
general circulation in the Philippines to the end that they be given amplest opportunity to voice out
whatever opposition they may have, and to ventilate their stance on the matter. This approach is more in
keeping with democratic precepts and rudiments of fairness and transparency. (emphasis supplied)
In Philippine International Trading Corporation vs. Commission on Audit [10], we again declared the same
circular as void, for lack of publication, despite the fact that it was re-issued and then submitted for publication.
Emphasizing the importance of publication to the effectivity of a regulation, we therein held that:
It has come to our knowledge that DBM-CCC No. 10 has been re-issued in its entirety and submitted for
publication in the Official Gazette per letter to the National Printing Office dated March 9, 1999. Would the
subsequent publication thereof cure the defect and retroact to the time that the above-mentioned items were
disallowed in audit?
The answer is in the negative, precisely for the reason that publication is required as a condition precedent to the
effectivity of a law to inform the public of the contents of the law or rules and regulations before their rights and
interests are affected by the same. From the time the COA disallowed the expenses in audit up to the filing of
herein petition the subject circular remained in legal limbo due to its non-publication. As was stated in Taada v.
Tuvera, prior publication of laws before they become effective cannot be dispensed with, for the reason that it
would deny the public knowledge of the laws that are supposed to govern it. [11]
We now resolve the second issue of whether the yearly appropriation ordinance enacted by Mandaue City
providing for fixed allowances for judges contravenes any law and should therefore be struck down as null and
void.
According to respondent COA, even if LBC 55 were void, the ordinances enacted by Mandaue City granting
additional allowances to the petitioner judges would still (be) bereft of legal basis for want of a lawful source of
funds considering that the IRA cannot be used for such purposes. Respondent COA showed that Mandaue Citys
funds consisted of locally generated revenues and the IRA. From 1989 to 1995, Mandaue Citys yearly
expenditures exceeded its locally generated revenues, thus resulting in a deficit. During all those years, it was
the IRA that enabled Mandaue City to incur a surplus. Respondent avers that Mandaue City used its IRA to pay
for said additional allowances and this violated paragraph 2 of the Special Provisions, page 1060, of RA 7845
(The General Appropriations Act of 1995)[12] and paragraph 3 of the Special Provision, page 1225, of RA 7663
(The General Appropriations Act of 1994)[13] which specifically identified the objects of expenditure of the IRA.
Nowhere in said provisions of the two budgetary laws does it say that the IRA can be used for additional
allowances of judges. Respondent COA thus argues that the provisions in the ordinance providing for such
disbursement are against the law, considering that the grant of the subject allowances is not within the specified
use allowed by the aforesaid yearly appropriations acts.
 We disagree.

Respondent COA failed to prove that Mandaue City used the IRA to spend for the additional allowances of
the judges. There was no evidence submitted by COA showing the breakdown of the expenses of the city
government and the funds used for said expenses. All the COA presented were the amounts expended, the
locally generated revenues, the deficit, the surplus and the IRA received each year. Aside from these items, no
data or figures were presented to show that Mandaue City deducted the subject allowances from the IRA. In
other words, just because Mandaue Citys locally generated revenues were not enough to cover its expenditures,
this did not mean that the additional allowances of petitioner judges were taken from the IRA and not from the
citys own revenues.

Moreover, the DBM neither conducted a formal review nor ordered a disapproval of Mandaue Citys
appropriation ordinances, in accordance with the procedure outlined by Sections 326 and 327 of RA 7160 which
provide that:

Section 326. Review of Appropriation Ordinances of Provinces, Highly Urbanized Cities, Independent
Component Cities, and Municipalities within the Metropolitan Manila Area. The Department of Budget and
Management shall review ordinances authorizing the annual or supplemental appropriations of provinces, highly-
urbanized cities, independent component cities, and municipalities within the Metropolitan Manila Area in
accordance with the immediately succeeding Section.

Section 327. Review of Appropriation Ordinances of Component Cities and Municipalities.- The sangguninang
panlalawigan shall review the ordinance authorizing annual or supplemental appropriations of component cities
and municipalities in the same manner and within the same period prescribed for the review of other ordinances.
If within ninety (90) days from receipt of copies of such ordinance, the sangguniang panlalawigan takes
no action thereon, the same shall be deemed to have been reviewed in accordance with law and shall
continue to be in full force and effect. (emphasis supplied)

Within 90 days from receipt of the copies of the appropriation ordinance, the DBM should have taken
positive action. Otherwise, such ordinance was deemed to have been properly reviewed and deemed to have
taken effect. Inasmuch as, in the instant case, the DBM did not follow the appropriate procedure for reviewing the
subject ordinance of Mandaue City and allowed the 90-day period to lapse, it can no longer question the legality
of the provisions in the said ordinance granting additional allowances to judges stationed in the said city.

WHEREFORE, the petition is hereby GRANTED, and the assailed decision and resolution, dated
September 21, 1995 and May 28, 1996, respectively, of the Commission on Audit are hereby set aside.

No costs.
SO ORDERED.
 DATU ZALDY UY AMPATUAN, G.R. No. 190259
ANSARUDDIN ADIONG, REGIE
SAHALI-GENERALE, Petitioner
vs
HON. RONALDO PUNO, in his capacity
as Secretary of the Department of Interior
and Local Government and alter-ego of
President Gloria Macapagal-Arroyo, Respondent
Promulgated:
June 7, 2011
x ---------------------------------------------------------------------------------------- x
DECISION
ABAD, J.:
On November 24, 2009, the day after the gruesome massacre of 57 men and women, including some news
reporters, then President Gloria Macapagal-Arroyo issued Proclamation 1946,[1] placing the Provinces of
Maguindanao and Sultan Kudarat and the City of Cotabato under a state of emergency. She directed the Armed
Forces of the Philippines (AFP) and the Philippine National Police (PNP) to undertake such measures as may be
allowed by the Constitution and by law to prevent and suppress all incidents of lawless violence in the named
places.
Three days later or on November 27, President Arroyo also issued Administrative Order 273 (AO
273)[2] transferring supervision of the Autonomous Region of Muslim Mindanao (ARMM) from the Office of the
President to the Department of Interior and Local Government (DILG). But, due to issues raised over the
terminology used in AO 273, the President issued Administrative Order 273-A (AO 273-A) amending the former,
by delegating instead of transferring supervision of the ARMM to the DILG. [3]
Claiming that the Presidents issuances encroached on the ARMMs autonomy, petitioners Datu Zaldy Uy
Ampatuan, Ansaruddin Adiong, and Regie Sahali-Generale, all ARMM officials,[4] filed this petition for prohibition
under Rule 65. They alleged that the proclamation and the orders empowered the DILG Secretary to take over
ARMMs operations and seize the regional governments powers, in violation of the principle of local autonomy
under Republic Act 9054 (also known as the Expanded ARMM Act) and the Constitution. The President gave the
DILG Secretary the power to exercise, not merely administrative supervision, but control over the ARMM since
the latter could suspend ARMM officials and replace them.[5]
Petitioner ARMM officials claimed that the President had no factual basis for declaring a state of emergency,
especially in the Province of Sultan Kudarat and the City of Cotabato, where no critical violent incidents occurred.
The deployment of troops and the taking over of the ARMM constitutes an invalid exercise of the Presidents
emergency powers.[6] Petitioners asked that Proclamation 1946 as well as AOs 273 and 273-A be declared
unconstitutional and that respondents DILG Secretary, the AFP, and the PNP be enjoined from implementing
them.
In its comment for the respondents,[7] the Office of the Solicitor General (OSG) insisted that the
President issued Proclamation 1946, not to deprive the ARMM of its autonomy, but to restore peace and order in
subject places.[8] She issued the proclamation pursuant to her calling out power [9] as Commander-in-Chief under
the first sentence of Section 18, Article VII of the Constitution. The determination of the need to exercise this
power rests solely on her wisdom.[10] She must use her judgment based on intelligence reports and such best
information as are available to her to call out the armed forces to suppress and prevent lawless violence
wherever and whenever these reared their ugly heads.
On the other hand, the President merely delegated through AOs 273 and 273-A her supervisory powers
over the ARMM to the DILG Secretary who was her alter ego any way. These orders did not authorize a take
over of the ARMM. They did not give him blanket authority to suspend or replace ARMM officials. [11] The
delegation was necessary to facilitate the investigation of the mass killings.[12]Further, the assailed proclamation
and administrative orders did not provide for the exercise of emergency powers. [13]
Although normalcy has in the meantime returned to the places subject of this petition, it might be relevant to rule
on the issues raised in this petition since some acts done pursuant to Proclamation 1946 and AOs 273 and 273-
A could impact on the administrative and criminal cases that the government subsequently filed against those
believed affected by such proclamation and orders.
The Issues Presented
The issues presented in this case are:
1. Whether or not Proclamation 1946 and AOs 273 and 273-A violate the principle of local autonomy
under Section 16, Article X of the Constitution, and Section 1, Article V of the Expanded ARMM Organic Act;
2. Whether or not President Arroyo invalidly exercised emergency powers when she called out the AFP
and the PNP to prevent and suppress all incidents of lawless violence in Maguindanao, Sultan Kudarat, and
Cotabato City; and
3. Whether or not the President had factual bases for her actions.
The Rulings of the Court
We dismiss the petition.
One. The claim of petitioners that the subject proclamation and administrative orders violate the
principle of local autonomy is anchored on the allegation that, through them, the President authorized the DILG
Secretary to take over the operations of the ARMM and assume direct governmental powers over the region.
But, in the first place, the DILG Secretary did not take over control of the powers of the ARMM. After law
enforcement agents took respondent Governor of ARMM into custody for alleged complicity in the Maguindanao
massacre, the ARMM Vice-Governor, petitioner Ansaruddin Adiong, assumed the vacated post on December 10,
2009 pursuant to the rule on succession found in Article VII, Section 12, [14] of RA 9054. In turn, Acting Governor
Adiong named the then Speaker of the ARMM Regional Assembly, petitioner Sahali-Generale, Acting ARMM
Vice-Governor.[15] In short, the DILG Secretary did not take over the administration or operations of the ARMM.
Two. Petitioners contend that the President unlawfully exercised emergency powers when she ordered
the deployment of AFP and PNP personnel in the places mentioned in the proclamation. [16] But such deployment
is not by itself an exercise of emergency powers as understood under Section 23 (2), Article VI of the
Constitution, which provides:
SECTION 23. x x x (2) In times of war or other national emergency, the
Congress may, by law, authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and proper to carry out a
declared national policy. Unless sooner withdrawn by resolution of the Congress, such
powers shall cease upon the next adjournment thereof.
The President did not proclaim a national emergency, only a state of emergency in the three places
mentioned. And she did not act pursuant to any law enacted by Congress that authorized her to exercise
extraordinary powers. The calling out of the armed forces to prevent or suppress lawless violence in such places
is a power that the Constitution directly vests in the President. She did not need a congressional authority to
exercise the same.
Three. The Presidents call on the armed forces to prevent or suppress lawless violence springs from
the power vested in her under Section 18, Article VII of the Constitution, which provides.[17]
 SECTION 18. The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may call out such
armed forces to prevent or suppress lawless violence, invasion or rebellion. x x x
While it is true that the Court may inquire into the factual bases for the Presidents exercise of the above
power,[18] it would generally defer to her judgment on the matter. As the Court acknowledged in Integrated Bar of
the Philippines v. Hon. Zamora,[19] it is clearly to the President that the Constitution entrusts the determination of
the need for calling out the armed forces to prevent and suppress lawless violence. Unless it is shown that such
determination was attended by grave abuse of discretion, the Court will accord respect to the Presidents
judgment. Thus, the Court said:
If the petitioner fails, by way of proof, to support the assertion that the
President acted without factual basis, then this Court cannot undertake an independent
investigation beyond the pleadings. The factual necessity of calling out the armed
forces is not easily quantifiable and cannot be objectively established since matters
considered for satisfying the same is a combination of several factors which are not
always accessible to the courts. Besides the absence of textual standards that the court
may use to judge necessity, information necessary to arrive at such judgment might
also prove unmanageable for the courts. Certain pertinent information might be difficult
to verify, or wholly unavailable to the courts. In many instances, the evidence upon
which the President might decide that there is a need to call out the armed forces may
be of a nature not constituting technical proof.
On the other hand, the President, as Commander-in-Chief has a vast
intelligence network to gather information, some of which may be classified as highly
confidential or affecting the security of the state. In the exercise of the power to call, on-
the-spot decisions may be imperatively necessary in emergency situations to avert
great loss of human lives and mass destruction of property. Indeed, the decision to call
out the military to prevent or suppress lawless violence must be done swiftly and
decisively if it were to have any effect at all. x x x.[20]
Here, petitioners failed to show that the declaration of a state of emergency in the Provinces of Maguindanao,
Sultan Kudarat and Cotabato City, as well as the Presidents exercise of the calling out power had no factual
basis. They simply alleged that, since not all areas under the ARMM were placed under a state of emergency, it
follows that the take over of the entire ARMM by the DILG Secretary had no basis too. [21]
But, apart from the fact that there was no such take over to begin with, the OSG also clearly explained
the factual bases for the Presidents decision to call out the armed forces, as follows:
The Ampatuan and Mangudadatu clans are prominent families engaged in the
political control of Maguindanao. It is also a known fact that both families have an
arsenal of armed followers who hold elective positions in various parts of the ARMM
and the rest of Mindanao.
Considering the fact that the principal victims of the brutal bloodshed are
members of the Mangudadatu family and the main perpetrators of the brutal killings are
members and followers of the Ampatuan family, both the military and police had to
prepare for and prevent reported retaliatory actions from the Mangudadatu clan and
additional offensive measures from the Ampatuan clan.
xxxx
The Ampatuan forces are estimated to be approximately two thousand four
hundred (2,400) persons, equipped with about two thousand (2,000) firearms, about four
hundred (400) of which have been accounted for. x x x
As for the Mangudadatus, they have an estimated one thousand eight hundred
(1,800) personnel, with about two hundred (200) firearms. x x x
Apart from their own personal forces, both clans have Special Civilian Auxiliary
Army (SCAA) personnel who support them: about five hundred (500) for the Ampatuans
and three hundred (300) for the Mangudadatus.
What could be worse than the armed clash of two warring clans and their
armed supporters, especially in light of intelligence reports on the potential involvement
of rebel armed groups (RAGs).
One RAG was reported to have planned an attack on the forces of Datu Andal
Ampatuan, Sr. to show support and sympathy for the victims. The said attack shall
worsen the age-old territorial dispute between the said RAG and the Ampatuan family.
xxxx
On the other hand, RAG faction which is based in Sultan Kudarat was reported
to have received three million pesos (P3,000,000.00) from Datu Andal Ampatuan, Sr. for
the procurement of ammunition. The said faction is a force to reckon with because the
group is well capable of launching a series of violent activities to divert the attention of
the people and the authorities away from the multiple murder case. x x x
In addition, two other factions of a RAG are likely to support the Mangudadatu
family. The Cotabato-based faction has the strength of about five hundred (500) persons
and three hundred seventy-two (372) firearms while the Sultan Kudarat-based faction
has the strength of about four hundred (400) persons and three hundred (300) firearms
and was reported to be moving towards Maguindanao to support the Mangudadatu clan
in its armed fight against the Ampatuans.[22]
In other words, the imminence of violence and anarchy at the time the President issued Proclamation 1946 was
too grave to ignore and she had to act to prevent further bloodshed and hostilities in the places
mentioned. Progress reports also indicated that there was movement in these places of both high-powered
firearms and armed men sympathetic to the two clans.[23] Thus, to pacify the peoples fears and stabilize the
situation, the President had to take preventive action. She called out the armed forces to control the proliferation
of loose firearms and dismantle the armed groups that continuously threatened the peace and security in the
affected places.
Notably, the present administration of President Benigno Aquino III has not withdrawn the declaration of a state
of emergency under Proclamation 1946. It has been reported[24] that the declaration would not be lifted soon
because there is still a need to disband private armies and confiscate loose firearms. Apparently, the presence of
troops in those places is still necessary to ease fear and tension among the citizenry and prevent and suppress
any violence that may still erupt, despite the passage of more than a year from the time of the Maguindanao
massacre.
Since petitioners are not able to demonstrate that the proclamation of state of emergency in the subject
places and the calling out of the armed forces to prevent or suppress lawless violence there have clearly no
factual bases, the Court must respect the Presidents actions.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.